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Novak v. Principi

July 24, 2006

GEORGE T. NOVAK, PLAINTIFF,
v.
ANTHONY J. PRINCIPI, SECRETARY, DEPARTMENT OF VETERAN AFFAIRS, DEFENDANT.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

Plaintiff George Novak ("Novak") has brought suit against his former employer, the Veterans Administration (the "VA" or the "Agency") for discrimination under the Rehabilitation Act, claiming that he was constructively discharged from his job after two hip surgeries. Both parties have now filed for summary judgment. For the reasons below, Novak's motion is denied and the Agency's motion is granted.

I. Background

Novak began his employment at the Hines VA hospital in 1985 as a plumber/pipe fitter. At the time he was hired, he suffered from a 30% service connected disability due to an injury he suffered during his military duty in which his left shoulder and back were seriously injured. In 1991, Novak transferred to the machine shop as a result of his difficulty in reaching overhead to do work due to that injury. In the machine shop, Novak worked as an industrial mechanic under supervisor Michael Marchitto. His duties included repair and maintenance of a variety of mobile and stationary hospital equipment. At the same time he was reassigned, Novak requested further restrictions on the work he was required to do, such as a limitation on ladder-climbing, a weight restriction on overhead lifting, and a restriction from working in tight areas.

In June 1996, as the result of an automobile accident, Novak suffered injuries severe enough to require hip replacement surgery. After the surgery and rehabilitation, Novak was able to return to his position, but with additional limitations that he not be assigned to work with ladders at all, not be required to work on roofs, not be required to work in tight spaces at all, and a lifting limitation of 25-30 pounds. In addition, he was allowed to use a motorized cart due to his inability to walk long distances. During this time, Novak continued to receive positive performance evaluations.

In 2000, Novak sustained another hip injury after being struck by a pick-up truck. As a result, he underwent a hip revision procedure in April of that year. Novak's orthopaedic surgeon informed the hospital that Novak's physical limitations required new restrictions, such as only returning to work after two months of rest and performing a job that required no standing, lifting, squatting or stooping for four months. In July of 2000, the surgeon recommended further restrictions, such as: no climbing ladders, no working on roofs or uneven areas, no stooping, bending, kneeling or lifting over five pounds, no work in restricted or tight areas, no pushing or pulling of heavy equipment, and no standing or walking for prolonged periods.

On July 19, 2000, the hospital advised Novak that his restrictions could not be accommodated within the machine shop, so instead he would be assigned as a surgical unit elevator operator for four months. As he neared the end of that assignment, on October 30, Novak's surgeon advised the agency to extend the light duty assignment until March 14. On March 2, 2001, the surgeon again recommended that the light duty assignment be continued until July 13, 2001. In a letter dated April 19, the agency approved the extension of light duty through July 13, but informed Novak that after that date the Agency might be unable to continue to provide a light duty assignment. If it were unable to do so, he would either be referred to the Great Lakes Human Resource Management Service ("GLHRMS") for reassignment or separated from his position based on an inability to perform.

On June 25, the doctor released Novak to work without any restrictions. From June through September 2001, Plaintiff claimed that he repeatedly requested a transfer to other positions, but all of these requests were denied. However, on November 29, Novak's surgeon advised the agency that the resumption of his duties had caused Novak pain in his hips, groin, and legs. He recommended that, from December 3 until February 4, 2002, Novak be assigned to a job that was "sedentary in nature and that he have a comfortable, firm, seated chair with the seating not less than 19 inches from the ground." The Agency subsequently assigned Novak to perform light-duty clerical work in the Engineering Service. On January 31, Novak's doctor sent a letter recommending that he be kept on the same light duty restrictions until retirement*fn1 and reiterating his advice that Plaintiff have a job that was sedentary in nature.

Novak claims that throughout his light duty assignments there were many incidents in which he was harassed and made fun of by his co-workers, including the Chief of his division, James Predlides, but no action was taken by management to discourage that behavior. In one incident in particular, on October 5, 2001, two of Novak's co-workers, Chuck Schweitzer and Jerry Pacholski were parked in a truck. When Plaintiff walked in front of the truck, Pacholski revved the engine and made the truck jump forward towards him. Novak filed a report about the incident with Predlides a week later, in addition to filing a report with the VA Chief of Police. In his police statement, Schweitzer stated that he believed that the incident was just "horseplay." On February 11, Novak's counsel sent correspondence to Brenda Stamps, the Agency's regional Equal Employment Opportunity ("EEO") Officer for Hines, Illinois, requesting that the VA: (1) appoint a representative to participate in the process of addressing and resolving Novak's requests for accommodation; (2) disclose all available funded positions in the commuting area; and (3) unconditionally offer to reassign Plaintiff to all positions which satisfied the legitimate, nondiscriminatory job requirements. The EEO Office of Resolution Management responded on April 1 that the requested actions were beyond the EEO Office's statutory authority, and were instead the responsibility of the Director of the Hospital. Novak does not claim that he forwarded the same request to the Director.*fn2

On April 4, 2002, Novak applied under Voluntary Early Retirement Authority to retire on September 27, 2002. That same day, Predlides recommended that the application be approved. The application was eventually approved on April 17, 2002. Novak claims that the actions of the Agency directly caused his retirement, effective September 27.

II. Summary Judgment Standard

Summary judgment is proper if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-33 (1986). A genuine issue of material fact exists when there is evidence on the basis of which a reasonable jury could find in the plaintiff's favor, allowing for all reasonable inferences drawn in a light most favorable to the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The movant must offer more than "[c]onclusory allegations, unsupported by specific facts" in order to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)). III. Discrimination under the Rehabilitation Act

Count I of Novak's claim is under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et. seq. The Rehabilitation Act prohibits any recipient of federal funds from discriminating against a qualified individual solely on the basis of his or her disability. In order to establish a prima facie case that he has been discriminated against, Novak must show that: (1) he suffers from a disability; (2) he is qualified to perform the essential functions of the position, with or without reasonable accommodation; and (3) he has suffered an adverse employment action as a result of his disability. Jackson v. City of Chicago, 414 F.3d 806, 810 (7th Cir. 2005).*fn3 In the employment context, the Rehabilitation Act requires that courts use the standards and provisions relating to employment of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 et. seq. (the "ADA"). See 29 U.S.C. § 794(d).*fn4 Qualified Individual with a Disability

Under the ADA, a qualified individual with a disability is "an individual with a disability, who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. ยง 12111(8). Novak has a disability under the ADA if he: (1) has a physical or mental impairment which substantially limits one or more of his major life activities; (2) has a record of such an impairment; or (3) is regarded ...


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