Opinion
CAUSE NO. IP 01-0271-C H/F
August 27, 2002
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Teresa A. Ballard is an employee of the United States Postal Service. Ballard sued the Postal Service for sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and disability discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. The Postal Service moved for summary judgment on all claims.
As explained below, the Postal Service's motion for summary judgment is denied. The parties' submissions on the motion show that genuine issues of material fact abound, precluding summary judgment. In deciding the motion, the court is required to view the evidence in the light reasonably most favorable to plaintiff Ballard, giving her the benefit of any conflicts in the evidence and any reasonable inferences that might be drawn in her favor. See Haugerud v. Amery School Dist., 259 F.3d 678, 689 (7th Cir. 2001), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The parties' Local Rule 56.1 submissions, under a version of the rule that has since been amended, deserve brief comment. In response to the motion, plaintiff submitted a lengthy statement of additional material facts. The Postal Service objected to almost two-thirds of them. A significant number of the objections are without merit — for example, to statement of material fact 44:
44. Simonton and Thurston referred to female letter carriers on limited duty as "lazy," "stupid," and "pretty much worthless." Cummings Aff. ¶ 11; Ballard Aff. ¶¶ 85-86.
Defendant's Reply: Objection. Depositions and affidavits of the Plaintiff and her co-workers without supporting facts or explanatory details are merely speculation and cannot defeat summary judgment. Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000).
This objection is overruled. Several Postal Service objections, including this one, erroneously relied upon Jordan v. Summers. In Jordan v. Summers, the plaintiff filed a Title VII race discrimination suit against her employer — the United States Customs Service. The plaintiff argued that the Customs Service "had a long history of grooming and preselecting white females [sic] employees for promotion to the position of accountant." Id. at 343. The plaintiff's affidavit also stated: "The perception was that positions were being held for [those white women] until they had met detailed knowledge requirements to qualify for accountant positions." Id. Plaintiff failed to support these statements with specific facts and explanatory details and the district granted summary judgment for the defendant. The Seventh Circuit affirmed.
Plaintiff Ballard's statement of material fact 44 is not comparable to the statements made in Jordan. Ballard's statement of material fact 44 asserts a relatively specific fact that is admissible without further support or explanation. Ballard does not need to give the dates and times that her supervisors, Simonton and Thurston, made those statements for them to be admissible.
Ballard's statement of material fact 41 is another good example:
41. Simonton selected Thurston to be his carrier supervisor. Ex. K, p. 136, lines 5-6.
Defendant's Reply: Objection. Plaintiff's statement of fact misstates Simonton's deposition testimony.
This objection is also overruled. Simonton's deposition testimony included the following exchange:
Q What's your opinion of Greg Thurston's supervisory skills?
A He's a good supervisor, strong person. You know, I chose him when I came to Speedway. He was everything I needed so I mean I'm real pleased with him.
* * *
Q So you chose him?A Yeah.
Simonton Dep. at 135-36. The statement of material fact is supported by the deposition testimony.
The foregoing are only examples. Defendant's objections in the Rule 56.1 submissions are numerous and largely without merit, reflecting some of the problems that led this court to amend Rule 56.1 recently to streamline such submissions. The court could not rule on all the objections individually without devoting unreasonable time to this case, at the expense of other litigants before the court. Objections can be renewed at trial and will be ruled upon at that time.
Turning to the merits of Ballard's claims, the Rehabilitation Act of 1973 prohibits discrimination in federal employment against an individual with a disability. 29 U.S.C. § 791. Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, contains various provisions for encouraging the federal government to employ the disabled. Hamm v. Runyon, 51 F.3d 721, 724 (7th Cir. 1995). The Rehabilitation Act incorporates the employment provisions of the ADA, 29 U.S.C. § 791(g), and the Seventh Circuit has described the two statutes as "nearly identical." Silk v. City of Chicago, 194 F.3d 788, 798 n. 6 (7th Cir. 1999); Washington v. Indiana High School Athletic Ass'n, Inc., 181 F.3d 840, 845 n. 6 (7th Cir. 1999).
The definitions under the Rehabilitation Act and the ADA are substantially the same, and the case law under the ADA applies equally to the Rehabilitation Act. Compare 29 U.S.C. § 705(9)(B), with 42 U.S.C. § 12102(2); see also Stein v. Ashcroft, 284 F.3d 721, 725 n. 2 (7th Cir. 2002) (ADA's definition of "disability" was taken "almost verbatim" from the Rehabilitation Act); Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 193 (2002) (using Rehabilitation Act regulations to interpret the ADA); Hamm, 51 F.3d at 725 (using ADA case law to interpret the Rehabilitation Act).
On July 23, 1997, Ballard was injured on the job. She developed shin splints and foot blisters from walking her route and was in severe pain. The Postal Service assigned Ballard to temporary limited duty. In August 1997, Ballard was in such great pain that she asked the post office manager Jeffery T. Simonton and letter carrier supervisor Greg Thurston for permission to go home early. According to Ballard's evidence, they only laughed and told Ballard to finish her route. Ballard finished her route that day even though she was in tremendous pain. The pain was so great that she had to take time off work to recuperate. She did not work from August 19, 1997 to November 25, 1997. Ballard returned to work under permanent restrictions. These restrictions included standing and walking no more than a total of four hours a day, and no lifting or carrying more than 30 pounds. Pl. Ex. F.
To establish disability discrimination, Ballard must show that (1) she is disabled within the meaning of the Rehabilitation Act, (2) she is qualified to perform the essential functions of the job, and (3) she suffered an adverse employment action because of her disability. Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944, 950 (7th Cir. 2000) (ADA case). The Postal Service argues that Ballard does not have a disability protected under the Rehabilitation Act and that she did not suffer an adverse employment action.
The Rehabilitation Act defines the term "disability" as a "physical or mental impairment that substantially limits one or more major life activities." 29 U.S.C. § 705(9)(B); Hamm, 51 F.3d at 724. Walking and standing are major life activities. See 29 C.F.R. § 1630.2(i); Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944, 951 (7th Cir. 2000) (walking); Gabriel v. City of Chicago, 9 F. Supp.2d 974, 982 (N.D.Ill. 1998) (standing). Ballard has presented evidence that she cannot walk and stand for more than a total of four hours a day. From that evidence, a reasonable jury could find that she is substantially limited in the major life activities of standing and walking. A reasonable jury could also find that the Postal Service regarded Ballard as disabled, which would also satisfy the statutory requirement for disability.
Plaintiff has come forward with evidence that Simonton, branch manager of the Speedway Post Office, and Greg Thurston, letter carrier supervisor at the Speedway Post Office, referred to female letter carriers on limited duty as "lazy," "stupid," and "pretty much worthless." Cummings Aff. ¶ 11; Ballard Aff. ¶¶ 85-86. Defendant denies that such comments were made, but that dispute obviously cannot be resolved on summary judgment. Also, there is a dispute over who the actual decisionmaker was in this case, but plaintiff has offered ample evidence that both were sufficiently involved in the decisions about her treatment to make both men's actions and beliefs relevant. See, e.g., Willis v. Marion County Auditor's Office, 118 F.3d 542, 547 (7th Cir. 1997). Also, plaintiff has offered evidence that both men made these comments, which can fairly support an inference that discriminatory animus motivated the treatment of plaintiff as a female letter carrier with medical restrictions. Plaintiff has also come forward with evidence that both Simonton and Thurston took actions regarding plaintiff that were inconsistent with the applicable collective bargaining agreement and inconsistent with their treatment of other employees. The evidence presents a "mosaic" of circumstantial evidence of discrimination sufficient to create genuine issues of material fact that need to be decided by a jury. See generally Troupe v. May Department Stores Co., 20 F.3d 734, 737 (7th Cir. 1994) (describing such a "mosaic of discrimination" as a viable means of proof).
Defendant's reply brief complains that the comments attributed to Simonton and Thurston amount to circumstantial evidence that is "virtually impossible to disprove at the summary judgment stage." Def. Reply Br. at 7. Exactly so. Such evidence presents genuine issues of material fact that the court is not authorized to resolve on summary judgment by weighing the evidence in the paper record. Also, defendant's criticism of plaintiff's affidavits as "self- serving" does nothing to advance defendant's case. Defendant's affidavits are no less "self-serving." See, e.g., Dunn v. Nordstrom, Inc., 260 F.3d 778, 785 (7th Cir. 2001) (reversing grant of summary judgment; employer's affidavits from management personnel "are no more credible than the affidavits presented by [employee] Dunn"); Szymanski v. Rite-Way Lawn Maintenance Co., 231 F.3d 360, 364-65 (7th Cir. 2000) (reversing summary judgment; employer's proffers were "no less self-serving, and no more supported in the record" than employee's evidence).
A reasonable jury could also find that the Postal Service's actions toward Ballard amounted to adverse employment action, even if economic damages from those actions appear likely to be modest. The Seventh Circuit has defined an adverse employment action as "more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002). However, "not everything that makes an employee unhappy" is an actionable adverse action. Id.
After Ballard returned to work with permanent restrictions, the Postal Service changed her job duties. Ballard is a letter carrier. A letter carrier position is a "craft" position, meaning that it has specific duties and responsibilities not shared by other employees within the Postal Service. Simonton testified that a supervisor is obligated to give an employee on limited duty work within her craft, if she can do the work and the work is available. Simonton Dep. at 92; see also Cummings Aff., Ex. 1, p. 13-10 to 13-11 (collective bargaining agreement requiring that employee first be given available work within her craft at her usual facility on her regular schedule).
The Postal Service assigned duties to Ballard outside of the letter carrier craft. Thurston assigned Ballard to perform menial tasks such as answering the phone and retrieving packages for customers that came in the post office. For the majority of time, she "just sat in a chair with nothing to do." Ballard Dep. at 150. Furthermore, Ballard's schedule was changed from 7:30 a.m. through 4:30 p.m. to 9:00 a.m. through 6:00 p.m. Ballard's scheduled days off were also changed from Wednesday and Sunday to Thursday and Sunday. Ballard was also denied the opportunity for overtime work. Ballard signed up for overtime work assignments on the post office's Overtime Desired List. When Thurston saw Ballard's name on the list, he laughed and said that employees on limited duty do not get overtime and that "we only give [overtime] to carriers who can carry mail." Ballard Dep. at 134. Thurston did not allow Ballard to work overtime for the duration of his supervision at the Speedway branch.
The facts viewed in the light reasonably most favorable to Ballard indicate that she suffered an adverse employment action. While an adverse employment action normally results in tangible economic consequences (e.g., termination, demotion, or reduction of salary and retirement benefits), it is not required to do so to be considered adverse employment action. See, e.g., Bryson v. Chicago State Univ., 96 F.3d 912, 916-17 (7th Cir. 1996) (holding that plaintiff established that the employer's actions affected a tangible aspect of her employment when it took away her title and prevented her from engaging in committee work); Knox v. State of Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996) (moving an employee "from a spacious, brightly lit office to a dingy closet" could constitute an adverse employment action); McCabe v. Sharrett, 12 F.3d 1558, 1564 (11th Cir. 1994) (employee suffered adverse job action where she had fewer responsibilities, was made to perform more menial tasks, and had lesser opportunity for salary increases in her new position); Collins v. Illinois, 830 F.2d 692, 702-04 n. 7 (7th Cir. 1987) (collecting cases and holding involuntary transfer of employee to a lateral position with lesser responsibilities and working conditions amounted to adverse employment action even where the transfer did not result in a reduction of pay or benefits).
The Postal Service assigned only low-level duties outside of Ballard's craft. Ballard spent most of her time sitting "in a chair with nothing to do." More important, Thurston did not allow Ballard to work overtime. These actions materially affected tangible aspects of Ballard's employment and could be deemed adverse employment actions. Thurston's statement that "we only give [overtime] to carriers who can carry mail" provides a direct connection between the adverse employment action and Ballard's disability. For these reasons, summary judgment on Ballard's disability discrimination claim is denied.
Ballard also alleges that the Postal Service violated Title VII by discriminating against her because of her sex. Title VII prohibits an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). The plaintiff must satisfy two distinct requirements, showing first that she was treated differently because of her sex, and second that the difference in treatment affected her compensation, terms, conditions, or privileges of employment. Haugerud v. Amery School Dist., 259 F.3d 678, 691 (7th Cir. 2001).
Ballard has presented enough evidence for a reasonable jury to conclude that the alleged difference in treatment was because of her sex. Ballard has come forward with evidence that Simonton and Thurston were hostile toward female letter carriers, especially those with medical restrictions, and that they treated her worse than they treated other similarly situated males. The evidence of hostility need not rise to the level of an independently actionable "hostile environment" to provide evidentiary support for a claim of sex discrimination regarding more specific adverse employment actions. Also, on another occasion, Thurston asked letter carriers to volunteer for a special assignment. When Heather Coning, a female letter carrier volunteered, Thurston stated in front of other employees that "he was looking for a certain military look and wanted a man to do the job." Pl. Ex. D. When the evidence is viewed in the light reasonably most favorable to plaintiff, a reasonable jury could conclude that she was treated differently because of her sex. Ballard has also presented enough evidence for a reasonable jury to conclude that the difference in treatment amounts to an adverse employment action. The court previously concluded that Ballard can present a genuine issue of material fact as to whether she suffered an adverse employment action for her disability discrimination claim. That discussion and reasoning are equally applicable here. Thus, summary judgment on Ballard's sex discrimination claim is also denied.
Conclusion For the foregoing reasons, defendant John E. Potter's motion for summary judgment is denied. The court will conduct a scheduling conference on Friday, October 4, 2002, at 9:00 a.m. in Room 330, U.S. Courthouse, Indianapolis, Indiana, to schedule a trial and address other scheduling matters.
So ordered.