WILLIAM C. BILGER,
UNITED STATES DEPARTMENT OF AGRICULTURE,
Dan Glickman, Secretary of Agriculture,
[2002 DSD 28]
United States District Court
District of South Dakota -- Western Division
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Stan H. Anker, Rapid City, SD
Attorney for Plaintiff.
Diana J. Ryan, US Attorney's Office, Rapid City, SD
Attorney for Defendants
Opinion Filed Nov 7, 2002
Hon. Karen E. Schreier, U. S. District Judge
[¶1] Plaintiff, William C. Bilger, filed eight discrimination charges with the Equal Employment Opportunity Commission (EEOC) against defendant, United States Department of Agriculture (USDA), Dan Glickman, Secretary of Agriculture. Following an administrative hearing, an EEOC Administrative Law Judge found that defendant did not engage in any discrimination. Bilger subsequently filed a complaint in this court. Defendant now moves for summary judgment.
[¶2] Bilger began working full time as a supply technician in 1983 for the Forest Service, USDA, at the Box Elder Job Corp Center (Center) in Nemo, South Dakota. He started at a GS-5 position, and was later appointed to a GS-6 position in 1989. In 1987, Bilger was appointed the chief union steward. As part of his union steward duties, Bilger represented employees at the Center who encountered disputes with management.
[¶3] In August of 1995, Bilger injured his back, head, and left eye in a non-work-related injury. As a result of the accident, he has permanently impaired vision in his left eye and a diminished ability to walk and sit. According to his functional capacity evaluation, he has a 94 percent functional strength deficit. Bilger is also a diabetic.
[¶4] Due to his injuries, Bilger was off work for about six months. In February of 1996, he returned to work on a half-time schedule as directed by Dr. Carver, one of his doctors. As an accommodation to Bilger, defendant hired temporary help to assist him in performing his duties as a supply technician. By August of 1996, Bilger's work hours had increased to longer than half-days.
[¶5] On July 22, 1996, James Krugman became the Center director. Prior to Krugman's arrival, there was a high turnover rate of Center directors, with six different directors in a ten-year time frame. Both Krugman and Bilger admitted that they did not like each other. Krugman states that he "stood up to the union" and did not "give into demands like other directors."
[¶6] On October 8, 1996, Bilger's supervisor, Phyllis Lyndoe, provided Bilger with a letter requesting that each of Bilger's doctors provide a diagnosis and prognosis, including any limitations and accommodations necessary for Bilger to perform his job. After receiving this letter, Bilger contacted the EEO office on December 30, 1996, claiming that Lyndoe's request constituted harassment. About three months later, on March 27, 1997, Bilger filed his first EEO complaint against defendant. In the complaint, Bilger alleged that he was being discriminated against on the basis of his age and disability by being placed on a restricted work schedule that only allowed him to work four hours a day. After filing this complaint, Bilger claims that Krugman and Lyndoe retaliated against him and harassed him. He also claims that his duties were changed to be more difficult, burdensome, and oppressive for him to perform.
[¶7] In April of 1997, Dr. Eckridge verified that Bilger had a significant functional strength deficit that significantly impacted his functional ability. On May 5, 1997, Bilger was placed on part-time tour of duty, which resulted in his being placed on 40 hours of leave without pay per pay period. On May 27, 1997, his work detail was changed to full-time "light duty" with a 15-20 pound lifting restriction. During this time, Bilger's assignment was changed from a GS-6 position as a supply technician to a GS-5 position in residential living. Although his duties were changed, his pay was not reduced.
[¶8] In July of 1997, Bilger's physicians completed questionnaires indicating that he had the physical capabilities to perform the full range of his duties on a full-time basis, except for the operation of a truck. On June 26, 1997, Bilger returned to his full-time duty position as a supply technician. Upon his return as supply technician, new performance standards were enacted that prohibited his use of students to unload freight or work in the supply warehouse. Bilger was also required to deliver the linens to the dorms in a laundry cart, which, when full, weighed 300 pounds. Under the prior standards, Bilger routinely used students to unload freight and the students from the dorms picked up their laundry from a central location. On July 29, 1997, Krugman issued a written policy precluding the parking of private vehicles in front of the supply building. This is the location where Bilger previously parked.
[¶9] On September 22, 1997, Bilger injured his back while working with the laundry carts. He was placed on light duty status. Effective January 24, 1998, Bilger was detailed to the position of social services assistant for residential living's midnight shift. On February 3, 1998, Bilger requested removal from the midnight shift for medical reasons. In support of his request, Bilger provided his supervisor with a doctor's note dated January 28, 1998, which indicated that Bilger's diabetes would be better controlled by working the day shift. On August 12, 1998, defendant responded to Bilger's request for a medical accommodation and offered a medical examination to document the accommodation request. The letter also offered Bilger the option of keeping his current assignment on the midnight shift or being reassigned to the evening shift. Bilger was not offered reassignment to the supply warehouse. The letter specified that as a result of changes made at the warehouse, Job Corp was awaiting permission to abolish the supply technician position. In fact, no formal process was started to abolish the full-time supply position. Effective August 31, 1998, Bilger was moved to the evening shift. On November 9, 1998, a doctor verified that Bilger's diabetes was controlled by oral medication and stated that he was not precluded from being able to perform his current duties. On November 17, 1998, all employees were notified by letter that no private vehicle parking was allowed behind the dorms.
[¶10] In addition to Bilger's first EEO complaint, he filed seven additional EEO complaints concerning the terms and conditions of his employment. The complaints were dated, respectively, March 9, 1998; May 31, 1998; August 1, 1998; November 9, 1998; January 22, 1999; January 23, 1999; and August 2, 1999. All complaints have been consolidated for purposes of this case. (1) The EEOC found that defendant did not engage in discriminatory conduct. After receiving his right to sue letter, Bilger filed his complaint in federal court. The complaint alleges that defendant discriminated against him based on age and disability, failed to accommodate his disability, and harassed and retaliated against him. His claims arise under Title VII of the Civil Rights Act of 1964, as amended, 42 USC § 2000e-1, et seq.; the Age Discrimination in Employment Act of 1967 (ADEA), 29 USC § 621, et seq.; the Americans with Disabilities Act, 42 USC § 12101 et seq.; and the Rehabilitation Act of 1973, 29 USC § 791, et seq.
[¶11] Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if the movant can "show that there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law." In determining whether summary judgment should issue, the facts and inferences from those facts are viewed in the light most favorable to the nonmoving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 US 574, 106 SCt 1348, 1356-57, 89 LEd2d 538 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 US 242, 256, 106 SCt 2505, 2514, 91 LEd2d 202 (1986).
[¶12] A. Title VII and ADEA
[¶13] 1. Discriminatory Treatment
[¶14] Title VII of the Civil Rights Act of 1964 provides that all personnel actions affecting employees "shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 USC § 2000e-2(a)(1). The ADEA extends this protection to age discrimination, providing that all personnel actions affecting employees who are 40 years of age or older shall be made free from discrimination due to their age. 29 USC §§ 623(a)(1), 631(a).
[¶15] In a Title VII and ADEA case, the United States Supreme Court has outlined a three-step procedure for determining whether or not the parties have carried their respective burden of proof. O'Connor v. Consol. Coin Caterers Corp., 517 US 308, 116 SCt 1307, 134 LEd2d 433 (1996); McDonnell Douglas Corp. v. Green, 411 US 792, 93 SCt 1817, 36 LEd2d 668 (1973). First, plaintiff must establish a prima facie showing of discrimination due to sex, age, color, religion, or national origin. McDonnell Douglas, 411 US at 802. Second, if a prima facie case is established, the burden shifts to the agency to show legitimate, nondiscriminatory reasons for its actions. Id. Finally, plaintiff must establish by a preponderance of the evidence that the reasons offered by the agency are not the true reasons, but are merely a pretext for discriminatory acts. Id. at 803. If the evidence of the employer's proffered reason for its actions is undisputed by the employee, "the movant is entitled to a grant of summary judgment." Bassett v. City of Minneapolis, 211 F3d 1097, 1107 (8th Cir. 2000).
[¶16] The first step is to determine whether Bilger made a prima facie showing of discrimination. To establish a prima facie case of discrimination, the plaintiff must prove: (1) he is a member of a protected class; (2) he is qualified to perform his job; (3) the agency took adverse action against him; and (4) the plaintiff was treated differently and less favorably than similarly-situated employees who were not in his protected class. Schoffstall v. Henderson, 223 F3d 818, 825 (8th Cir. 2000). There is no dispute that Bilger is a member of a protected class for the purpose of his age claim and that he was qualified to perform his job. The questions are whether Bilger has shown adverse employment action and whether similarly-situated employees under the age of 40 were treated differently. The court does not need to decide whether defendant took an adverse employment action against Bilger because Bilger has made no showing that he was treated differently and less favorably than similarly-situated employees who were under the age of 40. See Bradley v. Widnall, 232 F3d 626, 632 (8th Cir. 2000) (party opposing summary judgment must provide sufficient probative evidence beyond speculation that alleged mistreatment was due to protected status). Because Bilger has not established a prima facie showing that he was treated differently than other employees under the age of 40, defendant is entitled to summary judgment on the issue of age discrimination.
[¶17] 2. Hostile Work Environment
[¶18] Hostile work environment harassment under Title VII occurs when "the workplace is permeated with 'discriminatory intimidation, ridicule, and insult' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Bradley, 232 F3d at 631 (quoting Harris v. Forklift Sys., Inc., 510 US 17, 21, 114 SCt 367, 126 LEd2d 295 (1993)) (citations omitted). A prima facie case of hostile work environment is established if Bilger shows: (1) he is a member of a protected group; (2) unwelcome harassment occurred; (3) the harassment and his protected-group status are causally connected; and (4) the harassment affected a term, condition, or privilege of employment. Id. Because the majority of the conduct at issue in this case allegedly occurred at the hands of Bilger's supervisors, he need not show that the Department of Agriculture knew or should have known of the harassment. Id.
[¶19] Harassment based on an individual's age in violation of the ADEA is actionable when the harassment is both objectively and subjectively offensive, such that a reasonable person would consider it to be hostile or abusive. Breeding v. Arthur J. Gallagher & Co., 164 F3d 1151, 1158 (8th Cir. 1999). To make this determination courts look "'at all the circumstances,' including the 'frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Faragher v. City of Boca Raton, 524 US 775, 787-88, 118 S. Ct. 2275, 141 LEd2d 662 (1998) (citing Harris, 510 US at 23).
[¶20] Bilger has not come forward with sufficient evidence of harassment on the basis of age to support a claim. The only age-related comments were regarding Bilger's eligibility for disability retirement. This isolated incident was not sufficiently derogatory or demeaning to amount to actionable harassment on the basis of age.
[¶21] Bilger relies on management's admission that a hostile work environment existed at the Center. Bilger has not pointed to any evidence in the record, however, that shows a causal connection between his age and the alleged hostile work environment. If a hostile work environment in fact exists, all the evidence indicates that such an environment exists because of union politics and not age discrimination. Employment decisions motivated by union-generated hostility are not covered under the discrimination laws. See Cooney v. Union Pac. R.R., 258 F3d 731, 736 (8th Cir. 2001) (even if "things were cooked for Zone 201" employees because of union politics, that does not show age discrimination). Bilger, therefore, has not met his burden to establish a prima facie case of harassment on the basis of age. Defendant is entitled to summary judgment on this claim.
[¶22] B. Rehabilitation Act/Americans with Disabilities Act
[¶23] Bilger alleges that the Department of Agriculture discriminated against him by failing to provide reasonable accommodations for his disability in violation of the ADA and Rehabilitation Act. (2) In the context of the ADA, the Eighth Circuit has held that "An employer commits unlawful discrimination . . . if the employer does 'not mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer].'" Ballard, 284 F3d at 960 (quoting Fjellstad v. Pizza Hut of Am., Inc., 188 F3d 944, 951 (8th Cir. 1999)) (quoting 42 USC § 12112(b)(5)(A)). When an employee affirmatively requests accommodation, the scope of the employer's obligation is determined through an "'informal, interactive process' between the employer and employee, identifying the limitations arising from the disability and potential accommodations that could overcome those limitations." Id. (quoting 29 CFR § 1630.2(o)(3)).
[¶24] Failure to participate in this interactive process is shown if the employee can demonstrate that "(1) the employer knew about the employee's disability; (2) the employee requested accommodations or assistance for his or her disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and (4) the employee could have been reasonably accommodated but for the employer's lack of good faith." Id.
[¶25] First, Bilger must show that he has a disability and that his employer was aware of his disability. Disability is defined as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such impairment; or
(C) being regarded as having such an impairment.
42 USC § 12102(2).
[¶26] To fall within this definition, a plaintiff must have an actual disability, have a record of a disability, or be regarded as having a disability. Sutton v. United Air Lines, 527 US 471, 119 S. Ct. 2139, 144 LEd2d 450 (1999). Major life activity has been described by the Supreme Court to include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Bragdon v. Abbott, 524 US 624, 118 SCt 2196, 141 LEd2d 540, (1998).
[¶27] Bilger alleges that his injuries include impaired vision, chronic back pain, a diminished ability to walk, and inability to properly control his diabetic condition. He claims these conditions and injuries constitute an actual disability that substantially limit him in the major life activities of working, seeing, and walking. Viewing the evidence in the light most favorable to the nonmoving party, Bilger has presented sufficient evidence of an actual disability to find that he is actually disabled in at least one major life activity.
[¶28] Defendant does not claim that Bilger is unqualified to perform the essential functions of his job, but rather disputes that Bilger suffered an adverse employment action. An adverse employment action is an action that materially affects the salary, benefits, or responsibilities of the plaintiff's employment. Jacob-Mua v. Veneman, 289 F3d 517, 521 (8th Cir. 2002). Bilger alleges that for a period of time he was placed on part-time status and required to use 40 hours of leave without pay per pay period because of his disability and that defendant failed to timely accommodate his request to be removed from the midnight shift because of his diabetic condition after providing his employer with a doctor's statement supporting his request. For purposes of this motion, these actions qualify as adverse employment actions. Thus, viewing the evidence in the light most favorable to Bilger, there is sufficient evidence to establish that he is disabled. There is also evidence that Bilger provided defendant with medical documentation of his disability.
[¶29] Second, Bilger must show that he requested an accommodation of his disability. On February 3, 1998, Bilger requested that his diabetic condition be accommodated by removing him from the midnight shift. Bilger provided his supervisor with a doctor's note dated January 28, 1998, which indicated that Bilger's diabetes would be better controlled by working the day shift. See Fjellstad, 188 F3d at 952 (reversing a grant of summary judgment to employer where the employee wrote a grievance letter to her employer in which she stated, "I request that I be reasonably accommodated."); Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F3d 1011, 1021 (8th Cir. 2000) (reversing a grant of summary judgment to employer where employee specifically requested assistance to locate an available position within the company to accommodate her physical limitations). This evidence is sufficient to show that Bilger requested an accommodation for his disability.
[¶30] Third, Bilger must show that defendant did not make a good faith effort to assist him in seeking accommodations. "The mere failure of an employer to engage in the interactive process does not give rise to per se liability, although for summary judgment purposes such failure is considered prima facie evidence that the employer may be acting in bad faith." Ballard, 284 F3d at 960 (emphasis in original). Here there is no evidence that defendant was engaged in an interactive process with Bilger. In fact, the evidence indicates that defendant did not respond to Bilger's request for accommodation until six months after the request was made, when it was denied. Thus, for purposes of summary judgment, such failure is considered prima facie evidence that defendant may be acting in bad faith.
[¶31] Fourth, Bilger must show the employer could have reasonably accommodated. The burden is on defendant to present evidence that it would have been unable to accommodate plaintiff by reassignment. See Fjellstad, 188 F3d at 952 (because defendant presented no evidence of inability to accommodate employee by assigning her to vacant shift manager position, court found employee met her burden). Defendant presented no evidence that it was unable to accommodate Bilger by assigning him to the day shift. Therefore, the court finds that summary judgment is precluded on Bilger's claim as to whether defendant acted in good faith and engaged in the interactive process of seeking reasonable accommodations under the ADA and Rehabilitation Act.
[¶32] C. Retaliation
[¶33] "To prevail on a retaliation claim brought under Title VII, 42 USC § 2000e-3(a), an employee must show that (1) [he] filed a charge of discrimination; (2) the employer subsequently took adverse employment action against [him]; and (3) the adverse action was causally linked to the filing of the charge of discrimination." Manning v. Metro. Life Ins. Co., 127 F3d 686, 692 (8th Cir. 1997). After plaintiff makes this prima facie showing, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Id. The presumption of retaliation disappears if the employer meets this burden. Id. Once a legitimate reason for termination has been set forth, the burden then shifts to the plaintiff to show that the employer's reason is pretextual. Snow v. Ridgeview Med. Ctr., 128 F3d 1201, 1206 (8th Cir. 1997).
[¶34] Bilger filed his first EEO complaint against defendant on March 27, 1977, alleging that he was being discriminated against on the basis of his age and disability. A month later, defendant placed Bilger on a part-time tour of duty that resulted in Bilger's being placed on 40 hours of leave without pay per pay period. Bilger requested an accommodation for his diabetic condition on February 3, 1998. Defendant responded to the request by denying it on August 12, 1998, just eleven days after Bilger filed another EEO complaint. Bilger was also notified at that time that he would not be reassigned to the supply warehouse. Each of these actions, for the purposes of this motion, qualifies as an adverse employment action. See LaCroix v. Sears, Roebuck & Co., 240 F3d 688, 691 (8th Cir. 2001) (adverse employment action is one which materially affects the salary, benefits, or responsibilities of plaintiff's employment). Bilger also alleges that on two occasions defendant eliminated private vehicle parking near his assigned duty station shortly after he filed an EEO complaint. While elimination of a parking space does not rise to the level of an adverse employment action, it may be considered as evidence of retaliation.
[¶35] There is sufficient evidence to establish a causal link to the filing of the charge of discrimination. The close proximity in time between Bilger's filing of an EEO claim and his being placed on a part-time duty, defendant's refusal to discuss Bilger's request for accommodation, defendant's unilateral change to Bilger's job duties, and defendant's elimination of private vehicle parking on two occasions are all evidence, which if proven true, establish a history of unfavorable actions by defendant against Bilger that may be causally related to the filing of his EEO complaints. See Hocevar v. Purdue Frederick Co., 223 F3d 721, 726-27 (8th Cir. 2000) (proximity in time and refusal to accommodate are relevant factors to consider in determining whether retaliation was true reason for discharge).
[¶36] Because Bilger has made a prima facie showing, the burden now shifts to defendant to articulate a legitimate, nondiscriminatory reason for its actions. Defendant claims that it placed Bilger on part-time status because it was awaiting clear medical direction and that it did not reassign Bilger to the warehouse because the full-time supply clerk position was being eliminated. Defendant does not articulate a reason for waiting six months to deny Bilger's request to accommodate his diabetic condition. Bilger alleges that defendant's reasons are a pretext to mask unlawful retaliation. There is evidence that defendant took no formal action to eliminate the full-time supply clerk position and defendant has not articulated a reason for the delay in responding to Bilger's request for accommodation. Viewed in the light most favorable to the nonmoving party, there is a question of fact as to whether defendant's reasons are a pretext to mask unlawful retaliation. Accordingly, it is hereby
[¶37] ORDERED, ADJUDGED, AND DECREED that defendant's motion for summary judgment (Docket 13) on plaintiff's claims under the ADA/Rehabilitation Act and his claim of retaliation is denied.
[¶38] IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that defendant's motion for summary judgment on all other issues is granted.
1. Bilger additionally complained of discrimination and retaliation without filing a formal complaint on the following dates: December 24, 1997, April 15, 1998, May 18, 1998, September 23, 1998, November 13, 1998, November 23, 1998, and June 22, 1999.
2. Cases interpreting the Americans with Disabilities Act (ADA) and the Rehabilitation Act are interchangeable. Ballard v. Rubin, 284 F3d 957, 960 n.3 (8th Cir. 2002).