Opinion
Case No. 2:99-CV-0321PGC
October 20, 2003
ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT GALE NORTON
Plaintiff Allan T. Cummings ("Mr. Cummings") filed a motion for summary judgment. Defendant Gale Norton, Secretary of the Department of the Interior, which includes the National Park Service ("NFS"), filed a cross motion for summary judgment. Having thoroughly reviewed the pleadings and the oral arguments, the court DENIES Mr. Cummings's motion for summary judgment and GRANTS the defendant's motion for summary judgment on all claims.
STATEMENT OF FACTS
On August 30, 1999, Mr. Cummings filed this suit against the defendants, alleging breach of contract, wrongful termination of employment in violation of the Rehabilitation Act of 1973, failure to accommodate a disability under the Rehabilitation Act, and retaliation against him for engaging in protected activity. Mr. Cummings obtained employment with the National Park Service ("NPS") in 1983 as a part-time seasonal employee. In 1984, Mr. Cummings began working as a seasonal Park Ranger with a level two law enforcement commission. He continued in this position through 1993.
29 U.S.C. § 701 ET SEQ.
In 1988, Mr. Cummings applied for a permanent Park Ranger position with law enforcement duties at Canyonlands National Park. When he was not selected for the position by Margaret Johnston, Chief Ranger at Canyonlands, he filed a complaint of disability discrimination alleging that he was not selected because Johnston had improperly perceived him to be an alcoholic. In 1993, an administrative judge from the Equal Employment Opportunity Commission ("EEOC") found that NPS had discriminated against Mr. Cummings based on a perceived disability of alcoholism. Based on the administrative judge's recommendations, on October 25, 1993, Mr. Cummings and NPS entered into a settlement agreement. In exchange for Mr. Cummings withdrawing his EEOC complaint, NPS agreed that: (1) it would place Mr. Cummings in a permanent law enforcement Park Ranger position at Arches National Park; (2) upon completion of a favorable background check on Mr. Cummings, NPS would place him in the basic law enforcement training course at the Federal Law Enforcement Training Center ("FLETC"); (3) if Mr. Cummings was unable to meet the requirements of the training course, NPS would place him in an equivalent position in pay without law enforcement duties; and (4) NPS would pay Mr. Cummings $10,000.
At the time the parties signed the settlement agreement, Mr. Cummings met with Walter Dabney, the Superintendent of the Southeast Group of Utah and Gail Menard, the Administrative Officer, to review the criteria of NPS Law Enforcement Guidelines which could disqualify Mr. Cummings from holding a law enforcement position. Dabney inquired whether Mr. Cummings had any skeletons in his closet which would prevent him from completing the background check or the training course, and Mr. Cummings replied that he did not.
In December 1993, Mr. Cummings was placed in a permanent law enforcement position at Arches National Park. The Office of Personnel Management ("0PM") began its background investigation in October 1993 and submitted a report to NPS on February 9, 1994 stating that there were potentially actionable issues concerning Mr. Cummings's suitability to hold a law enforcement position, namely that he had made several misrepresentations about his background on his employment applications. Based on these concerns, on December 7, 1994, NPS determined that Mr. Cummings could not attend the law enforcement training course and disqualified him from holding a law enforcement position.
After NPS disqualified Mr. Cummings from holding the law enforcement, position, pursuant to the settlement agreement it reassigned him to the position of Film Permit Coordinator at Arches on January 22, 1995. Based upon some of the issues raised in the 0PM background check, NPS conducted its own investigation of Mr. Cummings's Official Personnel File. NPS's investigation found that Mr. Cummings had made numerous misrepresentations about his background on 14 different employment applications which he had submitted to NPS between 1982 and 1993. Among other things, Mr. Cummings claimed that he had received a college degree, that he had never been convicted by a military court-martial, that he received a Purple Heart while he was in the military, and that he had not been convicted of any crimes. All of these claims were false: Mr. Cummings never received a college degree, he had been convicted by a military court-martial, he never received a Purple Heart, and he had been convicted three times for driving while intoxicated and one time for check fraud.
After NPS completed its background investigation, Superintendent Noel Poe of Arches National Park charged Mr. Cummings with falsifying government documents and sent him a Proposed Removal letter on September 27, 1995. Mr. Cummings replied in writing to Robert W. Reynolds, Deputy Field Director of the Colorado Plateau Area on October 23, 1995, arguing that he had previously established a case of discrimination based on his alcoholism and that he was also disabled by post-traumatic stress disorder ("PTSD") deriving from his service in the Vietnam War. Specifically, Mr. Cummings submitted a letter dated October 12, 1995, from LeJean Sommerville, whose credentials are unknown, which stated that she had diagnosed Mr. Cummings with PTSD. According to Sommerville, this condition caused him to experience memory lapses and periodic blackouts which could affect his ability to fill out applications correctly.
On March 5, 1996, Deputy Director Reynolds issued a final decision to remove Mr. Cummings from federal employment and Mr. Cummings was terminated from his employment on March 8, 1996. This lawsuit followed.
STANDARD OF REVIEW
Summary judgment is appropriate where 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." All material facts will be deemed admitted for the purpose of summary judgment, unless the opposing party specifically controverts these facts with material facts of record. In this case, NPS has set forth sufficient material facts, not specifically controverted by Mr. Cummings, which justify the court granting judgment as a matter of law for NPS.
Fed.R. Civ, P. 56(c); Celotex Corp., v. Catrett, 477 U.S. 317, 322 (1986).
DISCUSSION
Mr. Cummings argues that the defendant discriminated against him based upon two disabilities: alcoholism and post-traumatic stress disorder. The Rehabilitation Act of 1973 provides that:
[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service,
However, if an individual's misconduct is related specifically to the disability of alcoholism or illegal drug use, the Rehabilitation Act does not provide protection from discipline.
Nielsen v. Moroni Feed Company, 162 F.3d 604, 609 (10th Cir. 1998); Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1086 (10th Cir. 1997).
Due to the similarity between the Rehabilitation Act and the Americans with Disabilities Act ("ADA"), cases interpreting either statute are "applicable and interchangeable." Therefore, the court will rely on cases regarding both statutes without distinction. The Tenth Circuit has instructed that "both the ADA and the Rehabilitation Act clearly contemplate removing from statutory protection unsatisfactory conduct caused by alcoholism and illegal drug use." In other words, a disabled person who is an alcoholic or an illegal drug user is not excused for misconduct in the workplace which would subject a non-disabled person to discipline. Mr. Cummings admits that he is an alcoholic and that he was drinking excessively from the time of his service in Vietnam until 1990 or 1991. The numerous misrepresentations on his applications occurred throughout the 1980s, thus his claim based on alcoholism fails because alcoholism-related misconduct is not protected by the Rehabilitation Act.
Norman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998) (quoting Allison v. Department of Corrections, 94 F.3d 494, 497 (8th Cir. 1996)).
8Nielsen, 162 F.3d at 609.
Burch v. Coca-Cola, 119 F.3d 305, 320, n. 14 (5th Cir. 1997).
Even though alcoholism-related misconduct is not protected, Mr. Cummings further argues that the Rehabilitation Act and the ADA protect him because he was allegedly not using alcohol or drugs at the time of his termination. In Nielsen, the court stated that "the ADA specifically . . . protects an individual who has . . . been rehabilitated successfully and is no longer engaging in [the use of alcohol or drugs]." Relying on such case law, Mr. Cummings claims that because he was not using alcohol at the time of his termination, his past misconduct should be protected under the Rehabilitation Act. But the relevant question here is not whether he was using alcohol at the time of his termination, but whether the misconduct for which he was removed was caused in part by his past abuse of alcohol. Mr. Cummings's claim states that his past misconduct was caused by both alcoholism and PTSD. Based on the exception excluding alcoholism-related misconduct from coverage under the Rehabilitation Act, this court will only address Mr. Cummings's claim of discrimination based on PTSD.
Nielsen, 162 F.3d at 610 (quoting 42 U.S.C. § 12114(b) (2003)).
Pending before the court is the defendants' motion for summary judgment based on four claims. The court will analyze each of these claims in turn.
I. Breach of Contract
Mr. Cummings alleges that NPS breached the 1993 settlement agreement when it terminated him from his position as Film Permit Coordinator at Arches National Park. Summary judgment is proper for the defendant on this claim for two independent reasons: First, the settlement agreement was voidable and unenforceable based on Mr. Cummings's misrepresentations; second, in any event, NPS complied with its limited obligations under the agreement.
A. The 1993 settlement agreement is voidable and unenforceable
NPS argues that the 1993 settlement agreement between Mr. Cummings and NPS is voidable and unenforceable because Mr. Cummings made material misrepresentations regarding his background, which NPS relied upon in agreeing to the settlement. Based on the undisputed facts in the record, the court finds that Mr. Cummings's misrepresentations were material to NPS's assent to the settlement agreement and that NPS reasonably relied on those misrepresentations, therefore, the settlement agreement is voidable and unenforceable.
A settlement agreement is, of course, a contract. A contract is voidable when: (1) a party makes a fraudulent or material misrepresentation; (2) the recipient's assent to the contract is induced by the fraudulent or material misrepresentation; and (3) the recipient is justified in relying on the misrepresentation. Each of these three requirements exists here. 1. Mr. Cummings made material misrepresentations to NPS
See Restatement (Second) Contracts § 164(1) (1981); Green Const. Co. v. Kansas Power Light Co., 1 F.3d 1005, 1010 (10th Cir. 1993); Miller v. Celebration Mining Co., 29 P.3d 1231, 1235 (Utah 2001).
In the context of discussions between NPS and Mr. Cummings concerning the possibility of NPS law enforcement position and its prerequisite background check, Mr. Cummings's statement about having no skeletons in his closet was material to the execution of the settlement agreement. The materiality of a misrepresentation is ordinarily a mixed question of law and fact to be determined by the trier of fact. However, law when reasonable minds could not differ on the question, the materiality of a misrepresentation is appropriately decided as a matter of law.
Wagnon v. State Farm Fire Casualty Co., 146 F.3d 764, 768 (10th Cir. 1998) (citations omitted).
Id.
On the day that Mr. Cummings and NPS signed the settlement agreement, the undisputed facts show that Superintendent Dabney specifically asked Mr. Cummings whether there were any "skeletons in his closet" which would prevent him from passing the OPM background check as provided in the settlement agreement. Superintendent Dabney also asked Mr. Cummings: "[w]hat past things, Allan, are there going to be because if they're the wrong things, I can't sign this agreement. I can't send you to FLETC." Mr. Cummings responded that he had no skeletons in his closet and the parties proceeded to sign the agreement. Besides being responsible for any false statements made in his past employment applications, Mr. Cummings knew that he had a criminal history because he had been convicted of three charges of driving while intoxicated and on one charge of check fraud. Mr. Cummings had worked as a seasonal law enforcement ranger since 1983 and had applied for permanent positions with NPS a number of times over that period. Based on his experience with NPS and the statements made by Superintendent Dabney, Mr. Cummings was aware that a background investigation would be conducted prior to the training course for permanent law enforcement officersand that his history would potentially disqualify him from attending such training and becoming a permanent NPS law enforcement officer. Therefore, when Mr. Cummings asserted to Superintendent Dabney that there were no "skeletons in his closet," while discussing matters that might bear on a law enforcement background check, he made a misrepresentation which was material to the settlement agreement.
Cummings Depo at 120.
DabneyDepo. at 43.
2. Mr. Cummings's misrepresentations induced NPS to enter into the agreement
Based on Mr. Cummings's misrepresentations about his background, NPS was induced to enter into the settlement agreement. Mr. Cummings argues that his statement about not having any "skeletons in his closet" did not or should not have induced NPFS to enter into the settlement agreement because the law enforcement training course was only one portion of the agreement and the parties had inserted a contingency provision to provide Mr. Cummings with a non-law enforcement position if he failed to meet the requirements of the training course. Nevertheless, the undisputed facts demonstrate that NPS would never have agreed to give Mr. Cummings an option for a permanent law enforcement position, let alone any permanent position if he had been truthful about his background. As it was, NPS had no reason to doubt Mr. Gumming's ability to pass the background check required for training. The settlement agreement did provide for Mr. Cummings' placement in a non-law-enforcement position should he be "unable to meet the requirements of the training course." But such contingency did not directly relate to the background check, nor did it provide that he would remain permanently employed regardless of the results of the background check.
In his deposition, Superintendent Dabney stated that "for obvious reasons, our intent [at the National Park Service] is to not have folks out dealing with the public that have a criminal problem." In response, Mr. Cummings does not challenge Superintendent Dabney's testimony, rather, he contends that five years earlier he had submitted an application listing some of his DUFs and that the NPS should have known that he had problems with memory loss, generally. Mr. Cummings, however, does not argue that he has lacked specific memory of his criminal convictions or of his employment application misrepresentations, nor does he argue that Superintendent Dabney was somehow aware of his past misconduct. Thus, the undisputed facts demonstrate that if NPS had known of some of the instances in Mr. Cummings's background, including his full criminal history, it would not have entered into any settlement agreement involving permanent employment. Mr Cummings's material misrepresentation that he had no "skeletons in his closet" which could potentially disqualify him from entering law enforcement training, therefore induced NPS to enter into the settlement agreement.
DabneyDepo. at 45.
3. NPS was justified in relying on Mr. Cummings's material misrepresentations
NFS was justified in relying on Mr. Cummings's misrepresentations because it had no notice of Mr. Cummings's problematic background prior to the agreement. Mr. Cummings argues that NPS had no justification for relying on his material misrepresentations because NPS should have known that Mr. Cummings's background as a Vietnam veteran might put him at risk for making misrepresentations on his employment applications. Mr. Cummings testified that he engaged in a conversation with the Chief Ranger at Arches National Park, Jim Webster in October 1993, prior to the settlement agreement. Mr. Cummings testified that he told Webster about his experiences in Vietnam and that he believes he mentioned periods of memory loss and blackouts since the war. Therefore, Mr. Cummings argues, NPS should have deduced from this conversation that Mr. Cummings might have made some misrepresentations on his applications. However, as discussed in Part II of this opinion, Webster had no basis to conclude that Mr. Cummings's comments about Vietnam were statements providing notice of a disability which would cause him to misrepresent his background on his employment applications on numerous occasions and to misstate his criminal history.
Mr. Cummings argues that NPS should have performed background investigations on him during his years of part-time and seasonal employment prior to the settlement agreement. But it is important to note that Mr. Cummings was a part-time seasonal employee up until the settlement agreement was signed. He had never been subject to the full background investigation that a full-time permanent park ranger must undergo. Therefore, NPS was not unreasonable in its reliance on Mr. Cummings's misrepresentations, even though NPS had not conducted its own background investigation before signing the agreement.
In sum, NPS has shown that (1) Mr. Cummings's statement about "skeletons in his closet" was material to the settlement agreement; (2) Mr. Cummings's statement about his background induced NPS to enter into the agreement; and (3) NPS was justified in relying on his claim that there was nothing in his background which would potentially disqualify him from the law enforcement training. Therefore, the court concludes that the settlement agreement is voidable and unenforceable, and grants summary judgment for the defendant on this claim. B. NPS complied with the terms of the agreement.
Even though the settlement agreement is voidable and unenforceable, the court also finds that NPS complied with the terms of the settlement agreement, Therefore, there could have been no breach of contract based on defendant's termination of Mr. Cummings's employment.
Voluntary settlement agreements which resolve EEO employment discrimination claims are binding on both parties. Neither the plaintiff nor the defendant may renege on the voluntary agreement once it has been signed. Here, the voluntary 1993 settlement agreement contemplated the possibility of a permanent law enforcement position for Mr. Cummings. If Mr. Cummings could not meet the requirements of the training course, the settlement agreement provided that he would be transferred to an equivalent position without law enforcement duties. After the 0PM background investigation resulted in the disqualification of Mr. Cummings for a law enforcement position, NPS followed the terms of the settlement agreement and reassigned him to the non-law-enforcement Park Ranger position of Film Permit Coordinator at Arches National Park. NPS had thus complied with the requirements of the settlement agreement.
29 C.F.R. § 1614.504(a); Jackson v. Widnall, 99 F.3d 710, 714 (5th Cir. 1996).
Id.
Only after NPS placed Mr. Cummings in the new position on January 22, 1995, did it begin its own background investigation based upon the suspicions raised during the 0PM investigation. NPS's own background investigation uncovered misrepresentations on 14 different employment applications which Mr. Cummings had completed from 1982 to 1993. Based on these misrepresentations, NPS charged Mr. Cummings with misrepresenting material and non-material facts on government documents and recommended his termination from federal employment. Mr. Cummings was removed from his position on March 8, 1996.
Although the settlement agreement guaranteed a non-law enforcement position for Mr. Cummings if he could not meet the requirements of the law enforcement training course, it did not purport to promise permanent employment regardless of his conduct. Instead, fairly read, the agreement only promised Mr. Cummings the opportunity to work in the new position, subject to the same possibility of removal that attends any other position. After placing Mr. Cummings in this new position, NPS was justified in conducting its own background investigation after suspicions were raised by the results of the OPM investigation. In addition, Mr. Cummings was employed by NPS for over two years between the time of the settlement agreement and his ultimate removal from federal employment. During that time, NPS followed the written terms of the agreement and terminated Mr. Cummings only after independently uncovering his past misrepresentations. Therefore, the court concludes that NPS complied with the terms of the 1993 settlement agreement.
II. Failure to Accommodate a Disability Under the Rehabilitation Act
Mr. Cummings claims that NPS failed to accommodate his disability under the Rehabilitation Act. Since NPS did not have the required notice of Mr. Cummings's disability, it did not fail to accommodate him under the Rehabilitation Act. Therefore, the court grants summary judgment for NPS on this claim as well.
In order for Mr. Cummings to establish a prima facie case for failure to accommodate a disability under the Rehabilitation Act, he must show that (1) he is an individual with a disability within the meaning of the statute; (2) his employer had notice of his disability; (3) he could perform the essential functions of his position with reasonable accommodations; and (4) his employer failed to make reasonable accommodations for his disability. The key issue in this case is the second requirement: whether the employer had notice of Mr. Cummings's disability. The court concludes that summary judgment is appropriate for NPS because it lacked notice of his ability. Summary judgment may also be appropriate for NPS on the fourth requirement (reasonable accommodation), although the court finds it need not reach this question.
Spielman v. Blue Cross and Blue Shield of Kansas, 33 Fed. Appx. 439, 443 (10th Cir. 2002) (citing Rhoads v. F.D.I.C, 257 F.3d 373, 387 n. 11 (4th Cir. 2001)).
The Rehabilitation Act requires employers to make reasonable accommodations for the employee's known physical or mental disabilities unless the accommodation would impose an undue hardship on the employer. The employer has no duty to provide reasonable accommodations to an employee until it is made aware of the employee's disabilities. In addition, the employer is under no obligation to inquire whether an employee has a disability which needs to be accommodated, rather, it is the employee's responsibility to request an accommodation for a disability from the employer. "An employee has the initial duty to inform the employer of a disability before ADA liability may be triggered for failure to provide accommodations — a duty dictated by common sense lest a disabled employee keep his disability a secret and sue later for failure to accommodate."
29 C.F.R. § 1614.203(c)(1) (emphasis added).
29C.F.R. § 1630.9.
See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1171 (10th Cir. 1999); Woodman v. Runyon, 132 F.3d 1330, 1344 (10th Cir. 1997); 29 C.F.R. § 1630.9.
Beck v. Univ. of Wisconsin Ed. of Regents, 75 F.3d 1130, 1134 (7th Cir. 1996).
While the employee has the responsibility to inform his or her employer of a disability and to request accommodation, no "magic words" are required for an employee to give notice of the disability. For example, "[i]n expressing a desire for reassignment, an employee need not use magic words. But, the employee must convey to the employer a desire to remain with the company despite his or her disability and limitations."
Midland Brake, 180 F.3d at 1172 (citations omitted).
Mr. Cummings contends he gave sufficient notice to NPS of his PTSD in the previously mentioned October, 1993 conversation with Chief Ranger Webster about his experiences in Vietnam and with alcohol. Mr. Cummings testified, Whether quote/unquote PTSD ever came up, I do not know" (in fact, Mr. Cummings was not diagnosed with PTSD until 1995), but that he "believe[s]" severe memory lapses and periodic blackouts were "mentioned" at the time. Mr. Cummings does not recall telling Webster that the memory lapses or blackouts affected his work, and he is not aware that he made any request for accommodations for these conditions,
Cummings Depo. at 102-104, 144-145.
Id. at 144-45.
Mr. Cummings's conversation with Webster is insufficient to trigger the requirements of the Rehabilitation Act. In a general way, Mr. Cummings related some of his life experiences to Webster, but he gave very few details concerning any condition he might have had, and he never linked any condition to his job performance, nor did he request on-the-job accommodations of any kind. If Mr. Cummings in fact mentioned the periodic memory lapses and blackouts as he believes he did, he gave no detail as to whether, when, or how such conditions manifested themselves on the job. Given the general nature of the discussion, as described by Mr. Cummings, Webster simply had no basis to conclude that Mr. Cummings had a disability that required on-the-job accommodation, let alone what such accommodation might be.
Mr. Cummings argues that he was unable to ask for accommodations for his disability during the 1993 conversation with Webster because he was unaware that PTSD caused him to make the numerous misrepresentations on his applications until after the OPM investigation discovered the misrepresentations in 1994. But because Mr. Cummings himself did not know of or express his need for accommodation to Webster, it would be nonsensical to require Webster to deduce Mr. Cummings's need for accommodation from the general conversation.
Mr. Cummings incorrectly relies on a letter from LeJean Sommerville ("Sommerville"), which she sent to Superintendent Noel Poe ("Poe") on October 12, 1995, to show that he gave notice to NPS of his disability and requested accommodations. Sommerville's letter stated that she had treated Mr. Cummings in 1995 and diagnosed him with PTSD, which caused him to lie and make poor decisions, among other things. Sommerville's letter does not request any changes to Mr. Cummings's job or request any accommodations for Mr. Cummings's disability. More importantly for present purposes, even if Sommerville's letter had requested accommodations for Mr. Cummings's disability, Poe received the letter more than two weeks after he sent the Proposed Removal letter to Mr. Cummings.
At least one federal circuit court has held that a request to be excused for past misconduct after a notification of termination is not a cognizable request for accommodation. In that case, an employee presented a doctor's letter concerning her multiple sclerosis to her employer two weeks after she had been notified of her termination. Based on the timing of the letter, the Eighth Circuit held that it was a request for reinstatement of her employment rather than a request for accommodation. The logic of the Eighth Circuit's decision applies equally here. Enforcement of the Rehabilitation Act is prospective, and thus an employer is not required to excuse an employee's past misconduct if the employer had no notice of the employee's disability until after termination procedures began. At best, Sommerville's letter could only have functioned as a request for a second chance for Mr. Cummings, which request would not trigger the requirements of the Rehabilitation Act.
See Mole v. Buckhorn, 165 F.3d 1212, 1218 (8th Cir. 1999).
Id. at 1216.
Id. at 1218; see also Burch v. Coca-Cola Co., 119 F.3d 305, 314 (5th Cir. 1997) ("[A]n employee who requests only the opportunity to return to an unmodified, previously-held position fails to state a cognizable claim [under the ADA]"); Siefken v. Village of Arlington Heights, 65 F.3d 664, 666-67 (5th Cir. 1995).
See, e.g., Burch v. Coca-Cola, Co., 119 F.3d 305, 320 n. 14 (5th Cir. 1997); Siefken v. Village of Arlington Heights, 65 F.3d 664, 666-67 (7th Cir. 1995).
In sum, NPS had no notice of Mr. Cummings's disability until, at the earliest, after NPS began the termination process. That is too late in the day. Because Mr. Cummings has failed to establish a prima facie case of failure to accommodate a disability under the Rehabilitation Act, the court grants summary judgment to the defendant on this claim.
III. Wrongful Termination Under the Rehabilitation Act
Mr. Cummings contends that NPS wrongfully terminated him under the Rehabilitation Act because he suffered from PTSD. The undisputed facts plainly establish that NPS terminated Mr. Cummings because of the numerous misrepresentations on his applications, not because of his disability. Therefore, the court grants summary judgment to the defendant on this claim.
In order to establish a prima facie case of wrongful termination, Mr. Cummings must show that (1) he was a disabled person under the statute; (2) he was otherwise qualified for the job regardless of his disability; and (3) he was terminated from his employment based on his disability. The parties do not dispute that PTSD is a disability under the Rehabilitation Act or that Mr. Cummings may be otherwise qualified for employment with NPS apart from his disability. This claim hinges on the third element: whether NPS terminated Mr. Cummings because he has PTSD.
Wells v. Shalala, 228 F.3d 1137, 1144 (10th Cir. 2000); Butler v. City of Prairie Village, Kan., 172 F.3d 736, 748 (10th Cir. 1999); Roberts v. Progressive Independence, Inc., 183 F.3d 1215 1221 (10th Cir. 1999); Woodman v. Runyon, 132 F.3d 1330, 1338 (10th Cir. 1997).
For disability discrimination cases such as the present case, where Mr. Cummings has no direct evidence of discrimination and the employer denies that disability status was a factor in its employment decision, the McDonnell-Douglas burden-shifting framework is appropriate. This framework provides that within the summary judgment context, the plaintiff:
McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-4, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 n, 3 (10th Cir. 1997).
must raise a genuine issue of material fact on each element of the prima facie case. . . . After establishment of a prima facie case, the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for its employment decision. If the employer comes forward with a nondiscriminatory reason for its actions, the burden then reverts to the plaintiff to show that "there is a genuine dispute of material fact as to whether the employer's proffered reason for the challenged action is pretextual — i.e., unworthy of belief."
Morgan at 1323 ( quoting Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995)).
Morgan at 1323 ( quoting Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995)).
In order to establish the third element, Mr. Cummings must show some affirmative evidence that his disability was a determining factor in the employer's decision to terminate him. While this burden on the plaintiff to show some affirmative evidence "is not onerous," it is also "not empty or perfunctory" The plaintiff must produce evidence that, "if the trier of fact finds it credible, and the employer remains silent, [he] would be entitled to judgment as a matter of law."
Selenke v. Medical Imaging of Colorado, 248 F.3d 1249, 1259 (10th Cir. 2001); Butler, 172 F.3d at 748; Morgan, 108 F.3d at 1323.
Morgan, 108 F.3d at 1323-24 (citations omitted).
Butler, 172 F.3d at 748-49.
NFS contends it terminated Mr. Cummings after conducting two separate background investigations which uncovered multiple misrepresentations made by Mr. Cummings on numerous employment applications. NPS argues that it believed Mr. Cummings's honesty and integrity had been irreparably compromised, resulting in the loss of trust of his co-workers and supervisors and destruction of the employment relationship. Mr. Cummings has failed to meet his burden of providing any responsive evidence of discrimination. He offers only his own belief he was discriminated against, which is not sufficient to create a triable issue of fact. Moreover, as discussed above, NPS was unaware that Mr. Cummings had been diagnosed with PTSD until after it had begun termination proceedings. Indeed, even Mr. Cummings himself was unaware that he suffered from PTSD until Sommerville diagnosed it in 1995, and then he failed to inform NPS of his disability or its possible effects on his job performance until, at the earliest, after he received notice of his termination.
Mr. Cummings argues that under the Tenth Circuit's decision in Butler v. City of Prairie Village, Kansas he need only show that NPS terminated him "under circumstances which give rise to an inference that the termination was based on [his] disability." However, the court continues, "[t]his showing `requires the plaintiff to present some affirmative evidence that disability was a determining factor in the employer's decision" Moreover, this analysis in Butler applies to the establishment of a prima facie case of discrimination, and does not address the rebuttal burden under McDonnell-Douglas, In Butler, the plaintiff presented evidence that his evaluation scores declined "soon after [he] announced his disability and requested an accommodation." Moreover, the plaintiff was able to show he was the only employee to lose his job in a departmental reshuffling and that his harassment complaint was handled differently than those of other employees. Here, Mr. Cummings has marshaled no comparable evidence. In short, there is no evidence from which a reasonably jury could infer infer that NPS terminated Mr. Cummings based on his disability rather than because of his numerous misrepresentations on his applications. Accordingly, the court grants summary judgment to the defendant on this claim.
Butler, 172 F.3d at 748 (citing Morgan, 108 F.3d at 1323).
Id.
Id. at 749.
Id.
IV. Retaliation under the Rehabilitation Act
Mr. Cummings' final claim is that NPS terminated his employment in retaliation for his earlier EEO complaint. Finding no triable issue here as well, the court grants summary judgment to the defendant on this claim.
In order for Mr. Cummings to establish a prima facie case of retaliation under the Rehabilitation Act, he must show that (1) he engaged in an activity that was protected by the statute; (2) he was subjected to an adverse employment action contemporaneous to or subsequent to the protected activity; and (3) there was a causal connection between the protected activity and the adverse employment action. As with discrimination charges, the McDonnell-Douglas burden shifting analysis applies to the retaliation claim: if the employer can show that it had a legitimate, non-discriminatory reason for terminating the employee, the employee has the burden to present evidence that the employer's stated reason was a pretext for an improper motivation of termination based on retaliation for engaging in a protected activity.
Selenke v. Medical Imaging of Colorado, 248 F.3d 1249, 1264 (10th Cir. 2001) (quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999)); Morgan, 108 F.3d at 1324.
Selenke, 1248 F.3d at 1264 (quoting Anderson, 181 F.3d at 1178).
Mr. Cummings has satisfied the first two requirements for a retaliation claim under the Rehabilitation Act because it is undisputed that he filed an EEO complaint, an activity protected by the Rehabilitation Act, and he was terminated from his position subsequent to the filing of his EEO complaint. However, Mr. Cummings fails to meet the third element of his retaliation claim because he has failed to provide evidence of a causal connection between the EEO complaint and his subsequent termination. Even assuming he has stated some kind of causal connection in making his prima facie claim, Mr. Cummings has failed to create a triable issue as to whether NPS's stated reason for terminating his employment was a pretext for retaliation.
A. There is no causal connection between the EEO complaint and Mr. Cummings's termination
Mr. Cummings argues that NPS never performed a background investigation on him until after he settled his EEO complaint, thus creating an inference that NPS terminated his employment in retaliation for the EEO complaint which the parties had previously settled. A protected activity which is closely followed by an adverse employment action may create an inference of retaliation. For example, in Marx v. Schnuck Markets, Inc., the Tenth Circuit found an inference of retaliation where the plaintiffs employer disciplined and demoted him several weeks after the plaintiff filed a class action suit against the employer for failure to pay overtime. However, unless the adverse employment action occurs very closely in time to the protected activity, the plaintiff must present some additional evidence beyond the temporal sequence in order to establish the causal connection. No bright line rule creates the precise amount of time to establish a causal connection; rather, the temporal proximity must be viewed in light of the facts of each case.
Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir. 1996); see also Chavez v. City of Arvada, 88 F.3d 861, 866 (10th Cir. 1996).
Id.
Anderson, 181 F.3d AT 1179.
Compare Marx, 76 F.3d at 329 (holding that disciplinary procedures which began within weeks of plaintiff s protected activity inferred a causal connection) with Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) ("three-month period between the [protected] activity and termination, standing alone, does not establish causation").
Here, Mr. Cummings filed his EEO complaint in 1989; he settled the complaint with NPS in 1993; and he received the Proposed Removal letter from NPS in 1995 which resulted in his removal from service in 1996. If the court views the dates in a light most favorable to Mr. Cummings, there was a two-year gap between the settlement of his EEO complaint in 1993 and the date that he received the Proposed Removal letter in 1995. This court finds that the lapse of two years defeats an inference of temporal proximity between Mr. Cummings's protected activity and his notice of removal from employment with NPS.
Because Mr. Cummings has failed to present any evidence from reach a reasonably jury could infer that his termination was causally connected to his EEO complaint, the court finds that summary judgment for NPS is proper on this claim as well
B. NPS's reason for terminating Mr. Cummings's employment was not pretextual
Even if Mr. Cummings could establish a prima facie case of retaliation, summary judgment is appropriate for NPS because he has failed to produce any evidence that NPS's proffered reason for terminating him was false and that discrimination or retaliation was a factor in his termination. To be sure, Mr. Cummings need not present direct evidence of an improper motive. A plaintiff can create a triable issue of fact on pretext by showing:
such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions [exist] in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons. . . . Mere conjecture that the employer's explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment.
Morgan, 108 F.3d at 1323 (quotations omitted); see also Marx, 76 F.3d at 327-28.
Morgan, 108 F.3d at 1323 (quotations omitted); see also Marx, 76 F.3d at 327-28.
NPS contends that it terminated Mr. Cummings's employment after it learned of the numerous misrepresentations on his employment applications resulting in the destruction of trust and the employment relationship between Mr. Cummings and NPS. Under the McDonnell-Douglas framework, since the defendant has offered a legitimate reason for terminating Mr.
Cummings's employment, Mr. Cummings has the burden to show a genuine dispute of material fact as to whether the defendant's stated reason is actually pretextuaL
Morgan, 108 F.3d at 1323.
Mr. Cummings argues that NPS's reason is a pretext for retaliation because of the timing of the background investigation that led to his termination. As the court discussed previously, there is no causal connection between the timing of the settlement and the timing of the Proposed Removal letter. Two years elapsed between the date of the settlement agreement and the date that Mr. Cummings received the Proposed Removal letter. Without any other evidence, the timing between the settlement agreement and the Proposed Removal letter is not sufficient to establish a causal connection.
As for the timing of the background investigation, Mr. Cummings contends that the investigation commenced shortly after the settlement agreement was signed, thus showing that NPS may have been motivated to retaliate against Mr. Cummings through investigating his background. But without any additional evidence, this conjecture is not sufficient to show some inference of pretext. When Mr. Cummings signed the settlement agreement, he agreed to undergo a background investigation conducted by OPM. This was no special requirement foisted on him alone; to the contrary, it is well known that all candidates for federal law-enforcement positions must pass the OPM background investigation in order to attend law-enforcement training. It is true that NPS conducted its own, more detailed investigation of Mr. Cummings after it received the results from the OPM investigation several months after the settlement agreement was signed, but it only began that investigation after OPM brought several significant misrepresentations on Mr. Cummings's applications to the attention of NPS. If NPS had conducted its own investigation before or contemporaneously to 0PM's investigation, perhaps an arguable inference of retaliation might exist, for then NPS would have then been treating Mr. Cummings differently than other new law-enforcement employees. But the undisputed facts here demonstrate that NPS did not conduct its own investigation until after 0PM brought significant concerns to light, and it did not notify Mr. Cummings of his proposed removal until two years after the settlement agreement.
In addition, Mr. Cummings argues that in the ten years that he had been working for NPS before the settlement agreement NPS never ran a background investigation on him until after the settlement agreement was signed, and that this shows some evidence of pretext. But, as the court has already discussed, the 0PM investigation was a standard requirement for law-enforcement positions, and the NPS investigation only commenced after OPM's investigation uncovered several misrepresentations on his applications. Before that, Mr. Cummings was a seasonal law enforcement ranger for NPS; he was never a permanent employee. Therefore, NPS was not required to run a full background investigation on him, nor did they otherwise know of any reason why they should. Mr. Cummings has offered no evidence that he was treated harshly compared to similarly situated employees. Indeed, his entire argument on this issue is somewhat difficult to follow, as it seems to suggest that NPS should have singled him out for a full background investigation while he was merely a seasonal employee. Acting in such fashion arguably would have constituted illegal discrimination against Mr. Cummings; failing to do so surely does not.
Finally, Mr. Cummings argues that the errors for which he was removed from his employment were insignificant because NPS learned of the misrepresentations from the 0PM investigation in February, 1994, but it did not notify Mr. Cummings of his proposed removal until September, 1995. Perhaps NPS should have terminated Mr. Cummings more rapidly. However, the court disagrees that numerous misrepresentations about one's criminal history, educational background, and military service are insignificant to employment. Rather, a pattern of lying over a series of years demonstrates that an employee is not honest or trustworthy enough to be qualified for employment at all.
In sum, because Mr. Cummings has only offered conjecture that the defendant's explanation for terminating his employment is illegitimate, the court concludes that there is no evidence that the defendant's stated reason is pretextual. For this reason as well, summary judgment is proper for NPS.
CONCLUSION
The court GRANTS defendant Gale Norton's motion for summary judgment on all causes of action. Because summary judgment is proper for the defendant, the court DENIES plaintiff Allan T. Cummings's cross-motion for summary judgment.