Opinion
Cause No. 1:00-CV-380
March 21, 2002
MEMORANDUM OF DECISION AND ORDER
On October 2, 2000, plaintiff Glen W. McClendon ("McClendon") filed a complaint against his former employer, the City of Fort Wayne ("the City"), Tim Davie ("Davie"), the Chief of the Fort Wayne Fire Department, and firefighter Paul Bontempo ("Bontempo"). McClendon's complaint alleged claims pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, 42 U.S.C. § 1983, and state tort law claims. In short, McClendon claims that Defendants failed to accommodate his disability and discriminated against him on the basis of his race and his disability.
On November 22, 2000, Defendants moved for a more definite statement, specifically requesting that McClendon clarify which claims were being brought against which defendants. The Court granted the motion for a more definite statement on December 19, 2000, and McClendon filed an amended complaint on January 12, 2001. On July 23, 2001, McClendon filed a notice of voluntary dismissal of the state law claims against Bontempo and the City and the Court dismissed those claims on July 30, 2001. Shortly thereafter, the City objected to the form of the order of dismissal on the basis that McClendon had never filed state law claims against the City. On August 15, 2001, the Court held an in-person status conference regarding the form of the dismissal and ordered the parties to submit a stipulated order that correctly reflected both parties' position as to which claims were dismissed. The parties apparently were unable to agree to the form of the order and consequently, the City moved, on January 10, 2002, to have the July 30, 2001 order corrected. McClendon responded to the motion on January 23, 2002 and Defendants filed their reply on January 31, 2002.
On January 10, 2002, the City and Davies moved for summary judgment on all of Plaintiff's claims. Plaintiff McClendon filed his response on January 23, 2002, to which Defendants replied in support of their pending summary judgment motion on March 12, 2002. For the reasons set forth herein, the City's motion for a corrected dismissal order will be GRANTED. The City's and Davies motion for summary judgment will be DENIED.
FACTUAL BACKGROUND
Plaintiff McClendon began working for the Fort Wayne Fire Department ("FWFD") on February 20, 1981 and continued his employment there until March 15, 2000. McClendon started as a rookie firefighter and over the years, rose through the ranks to become a Captain in the Combat Division in 1986 and then a Captain in the Training Division in 1996.
On October 1, 1998, McClendon suffered a workplace injury. While on a training exercise, McClendon, along with members of the rookie class, was dismantling a mobile home. McClendon was standing inside a trash dumpster when firefighter Paul Bontempo threw a pick-head ax into the dumpster. The ax struck McClendon in the legs, injuring both of his knees. The nature of McClendon's injury included torn ligaments, torn tendons, and a meniscus tear. As a result of the injury, McClendon underwent arthroscopic surgery in May 1999. In July 1999, McClendon's treating physician, Dr. Michael McArdle ("Dr. McArdle") informed McClendon that he needed reconstructive knee surgery on both knees, but that the right knee was in dire need of surgery because "the tibia and the fibula [were] touching each other." (McClendon Dep. at 41). Therefore, on August 20, 1999, McClendon underwent reconstructive knee surgery on his right knee. As a result of the injury and the surgery, McClendon also suffers "post-traumatic osteoarthritis due to secondary blood trauma" in both knees and both ankles. (McClendon Dep. at 33, 43; Pl. Ex. A).
McClendon alleges that he is substantially limited in his ability to walk, run, stand, crawl, bend, squat, climb, and jump. Due to his restrictions, McClendon cannot play basketball, football, volleyball, drive long distances, wash his car, dance, or mow his lawn. When he does walk, he does so slowly because he is inhibited by a severe limp which requires the use of a cane. Even with the use of a cane, McClendon can only walk short distances of less than a city block. McClendon is also substantially limited in his ability to care for himself because bathing, dressing, and using the restroom often require assistance. McClendon describes the pain as a "sharp radiating" pain that is constant and debilitating. (McClendon Aff. ¶ 10).
Dr. McArdle describes McClendon as having "great difficulty in walking," and characterizes McClendon's physical impairment as "debilitating." McArdle explains that McClendon is significantly restricted in the condition, manner, and duration in which he can walk in comparison to an average person's ability to walk. McArdle further describes the duration of McClendon's impairment as "indefinite" and "permanent" with the symptoms worsening over time. (McArdle Aff. ¶ 4-7).
As a result of his injury and the need for surgery, McClendon took a leave of absence from the FWFD in August 1999 and remained off work until January 19, 2000. During McClendon's leave, Mayor Graham Richard was elected and Chief Davie was appointed by the new mayoral administration to head the FWFD. At the Mayor's behest, Davie reorganized his Department. He appointed new district and assistant chiefs and allowed them to recommend personnel changes within their areas of responsibility. As a result of his reorganization, at least 11 firefighters had their responsibilities changed, including McClendon.
On December 27, 1999, while McClendon was still on leave of absence, Davie informed McClendon that he was being reassigned from his position as Instructor in the Training Division to that of Captain in the Combat Division. Davie explained to McClendon during a telephone conversation that Chief Bruce Zieger ("Zieger") was being promoted to Chief of Training and Development and that Davie was allowing Zieger to select his own staff of Instructors. Nevertheless, Davie had final approval of all hiring and firing decisions.
On January 7, 2000, as part of preparing to return to work, McClendon had a functional capacity exam ("FCE"). The result of the FCE qualified McClendon for "medium level work," but contained the following restrictions:
Glen was able to complete the critical demands of his job, however, there are a few concerns that should be considered . . . Glen could not tolerate being on his feet constantly. Glen is able to squat, crawl, climb, and kneel but to do these tasks for any length of time may be contraindicated with a total knee [replacement] at the age of 48.
(Pl. Ex. B). McClendon hand-delivered the FCE to Davie's Administrative Assistant, Jennifer Daily, on January 13, 2000.
On January 19, 2000, McClendon returned to work. On January 24, 2000, Davie and McClendon had a conversation regarding McClendon's restrictions, as set forth in the January 7, 2000 FCE. As a result of this discussion, Davie sent McClendon a letter on February 1, 2000 asking that McClendon consult with his doctor again regarding his ability to perform as a Captain in the FWFD Combat Division. McClendon complied and on February 9, 2000, sent a letter to Davie reporting that Dr. McArdle had prohibited him from crawling, climbing ladders, and working at unprotected heights. The February 9, 2000 letter also requested that McClendon be transferred to a position within the FWFD where he could comply with Dr. McArdle's orders, namely a position as an Instructor or an Inspector.
The FWFD posted openings for several Instructor positions and several Inspector positions during the relevant time period. On December 29, 1999, one Instructor position and three Inspector positions opened. Both of these positions closed (i.e. stopped accepting applications) on or about January 10, 2000. The December 29, 1999 Instructor position was filled by Jim Noll, a Caucasian male. The three Inspector positions closed without being filled. On January 13, 2000, the FWFD posted a second Instructor position and re-posted the three unfilled Inspector positions. The January 13, 2000 Inspector positions closed on January 24, 2000; the Instructor position closed on January 28, 2000.
The December 29, 1999 Instructor position opened because McClendon had been transferred out of the Training Division.
On March 15, 2000, Davie sent a letter to McClendon informing him that because he could not perform the essential functions of the firefighter job, either with or without accommodations, and because there were "no vacant positions . . . within the department," McClendon could not return to active status with the FWFD. The March 15, 2000 letter also notified McClendon that he was to be placed before the Pension Board to determine his employment status. (Pl. Ex. H). Davie recommended to the Pension Board that McClendon be "pensioned off," which McClendon ultimately was. McClendon was officially removed from the City's payroll on June 30, 2000.
DISCUSSION I. Defendants' Motion for a Corrected Order of Dismissal
As noted above, on July 23, 2001, McClendon filed a notice of voluntary dismissal of the state law claims against Bontempo and the City. The Court dismissed those claims on July 30, 2001. The City objects to the form of the order of dismissal on the basis that McClendon had never filed state law claims against the City in this Court. The City's objection is not just academic. Plaintiff McClendon has re-filed the dismissed claims in state court. The statute of limitations on the state claims has run, however, and any attempts by McClendon to have the limitations period tolled will depend on whether the subject claims were timely filed in this Court.
This question can be easily answered. In response to this Court's December 19, 2000 Order granting Defendants' motion for a more definite statement, McClendon filed his first amended complaint. In the first amended complaint, McClendon divided his claims into several separate counts. Only one count, Count IV, contained state law claims. That Count alleged a tort law claim against Defendant Bontempo arising out of the incident where Bontempo threw an ax into the dumpster in which McClendon was standing. Count IV named only Bontempo, and did not name the City, as a defendant. The balance of McClendon's amended complaint raises claims under federal law. Since filing the first amended complaint, Plaintiff has not filed any further amendments purporting to allege state law claims against the City.
As a result, it appears that the City is correct that state tort law claims were never pending against it in this Court. The July 30, 2001 order granting the voluntary dismissal of the state law claims against the City was in error. The Defendant's motion for a corrected order will be granted and the Court will grant the dismissal without prejudice of Plaintiff's state law claims against Bontempo only. Because only state law claims are lodged against Bontempo, he will be dismissed as a defendant in this action.
II. Defendants' Motion for Summary Judgment
McClendon has asserted claims against the City and Davie under the ADA for failure to accommodate; under the ADA for discrimination on the basis of his disability; under Title VII for discrimination on the basis of his race; under 42 U.S.C. § 1981 for discrimination on the basis of his race; and under 42 U.S.C. § 1983 for violations of Title VII and 42 U.S.C. § 1981. After a brief discussion of the summary judgment standard, the Court will examine each of these claims in turn.
A. Applicable Legal Standard
"Summary judgment is proper only 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.'" Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1031 (7th Cir. 1998) (quoting Fed.R.Civ.P. 56(c)). While the moving party "always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record, if any, which it believes demonstrate the absence of a [genuine issue of] material fact, there is nothing in Rule 56 that requires a moving party to negate an essential element of an opponent's claim for which the opponent will bear the ultimate burden at trial." Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 3178 (1986)). Rather, the standard for granting summary judgment requires the district court to grant summary judgment if the record before us "could not lead a rational trier of fact to find for the non-moving party." McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)).
The burden is therefore on the non-movant to set forth "specific facts showing that there is a genuine issue for trial." Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998) (quoting Fed.R.Civ.P. 56(e)). "In determining whether a genuine issue of material fact exists, courts must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party." Debs v. Northeastern Illinois Univ., 153 F.3d 390, 394 (7th Cir. 1998). Substantive law determines which facts are "material"; that is, those facts which might affect the outcome of the suit under the governing law. See McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 299 (7th Cir. 1996). Consequently, a dispute over irrelevant or unnecessary facts does not preclude summary judgment. See Hardin v. S.C. Johnson Sons, Inc., 167 F.3d 340, 344 (7th Cir. 1999).
The non-moving party may not rest on the allegations of the pleadings in opposing a motion for summary judgment. See Crim v. Bd. of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 540 (7th Cir. 1998). Rather, the non-moving party must produce some evidence sufficient to show that a genuine issue of material fact exists. "Futhermore, a `party needs more than a scintilla of evidence . . . to defeat summary judgment.'" Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998) (quoting Senner v. Northcentral Technical College, 113 F.3d 750, 757 (7th Cir. 1997)). Thus, a summary judgment determination is essentially an inquiry as to whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.
B. ADA Failure to Accommodate Claim
In order for a plaintiff to recover under the ADA for an employer's failure to reasonably accommodate the plaintiff's disability, the plaintiff must make a prima facie showing (1) that he was or is disabled as defined by the ADA; (2) that his employer was aware of the disability; and (3) that he was qualified for the position in question and can perform the essential functions of the job either with or without reasonable accommodations. See Basith v. Cook County, 241 F.3d 919, 927 (7th Cir. 2001). The Court will consider each of these requirements in turn.
First, Defendants argue that McClendon has not satisfied the first prong of the prima facie inquiry. That is, Defendants contend that McClendon has not produced sufficient evidence to show that he was disabled as defined by the ADA at the time of the challenged decisions. The ADA defines "disability" as (1) a physical or mental impairment that substantially limits one or more major life activities; (2) having a record of such impairment; or (3) being regarded as having such an impairment. See E.E.O.C. v. Sears, Roebuck Co., 233 F.3d 432, 438 (7th Cir. 2000). Defendants contend that the restrictions McClendon's filings in this Court describe are significantly more limiting than McClendon's restrictions were at the time of the challenged actions. In other words, the City argues that McClendon's condition has worsened over time and that at the relevant time period, in January 2000, McClendon was not so limited as to be considered disabled under the ADA. Notably, Defendants state that "Nowhere does McClendon offer evidence of the state of his condition in January 2000 . . ." (Reply to Plaintiff's Response to Motion for Summary Judgment p. 2). To the contrary, McClendon has submitted a copy of the January 7, 2000 FCE which indicates that McClendon had limitations on his abilities to be on his feet and to squat, crawl, climb, and kneel at that time.
On summary judgment, it is not the Court's role to decide whether McClendon is disabled under the ADA. Rather, at this stage, the Court must only decide whether a rational jury, in viewing the evidence in the light most favorable to the plaintiff, could come to such a conclusion. See Sears, 233 F.3d at 438. The Court is satisfied that a rational jury could conclude, on the basis of the January 7, 2000 FCE, that McClendon was disabled in January 2000.
Defendants next argue that they were not aware of McClendon's disability when Davie transferred McClendon to the Combat Division and as a result, McClendon has not satisfied the second prong of the prima facie case. Davie admits that he was aware that McClendon was injured and undergoing knee replacement surgery at the time of the transfer. (Pl. Ex. O, p. 19). However, it is the Defendants' contention that Davie was not aware of the extent of McClendon's limitations until McClendon returned to work and presented permanent restrictions to Davie. Accordingly, a genuine issue of material fact exists as to whether Davie was aware of McClendon's disability at the time he transferred McClendon to the Combat Division.
Plaintiff's theory of liability rests on the proposition that the City and Davie transferred him to the Combat Division knowing he would be unable to perform the essential functions of that position, thereby allowing the City to terminate McClendon's employment. As a result, Defendants must have been aware of McClendon's disability prior to the transfer on December 27, 1999.
Finally, Defendants argue that McClendon has not satisfied the third prong of the prima facie case either. Defendants contend that because of his physical limitations, McClendon was unable to perform the functions of a combat firefighter and that no reasonable accommodation existed that would allow McClendon to maintain his employment. McClendon does not appear to contend that he was or is able to perform the essential functions of a combat firefighter. When an employee is unable to perform his job, with or without accommodation, the employer must consider reassignment as one form of accommodation. See Hendricks-Robinson v. Excel Corporation, 154 F.3d 685, 693 (7th Cir. 1998). If a vacant position is available and the disabled employee is qualified for it, the ADA may require an employer to reassign him as a reasonable accommodation. Id.
Here, Defendants contend that at the time McClendon expressly requested to be reassigned on February 9, 2000, no vacancies in the FWFD existed which McClendon could fill. However, Court believes that Defendants had a duty to consider transferring McClendon long before February 9, 2000. The Seventh Circuit has stated, "Under the ADA, an employee begins the accommodation `process' by informing the employer of his disability; at that point, an employer's liability is triggered for failure to provide accommodations." Hendricks-Robinson, 154 F.3d at 693 (emphasis added; internal citations omitted); see also Gile v. United Airlines, Inc., 213 F.3d 365, 373 (7th Cir. 2000) ("The employee first must start by informing the employer of her disability. . . . At that point, the ADA obligates the employer to engage with the employee in an interactive process to determine the appropriate accommodation under the circumstances.") (internal citations omitted).
In this case, McClendon first notified Davie of his restrictions on January13, 2000. Accordingly, the duty of the FWFD to consider accommodations began on that date. McClendon has produced several job postings that show that on January 13, 2000, the FWFD opened one Instructor position and three Inspector positions, for which McClendon would have been qualified. The Instructor position closed on January 24, 2000; the Inspector positions closed on January 28, 2000. No one bid on the Instructor position and it remained un-filled. The three Inspector positions were bid upon and filled sometime prior to February 9, 2000. Accordingly, Plaintiff has produced sufficient evidence to show that several vacancies existed during the period in which the City had a duty to consider reasonable accommodations for McClendon.
Defendants cannot hide behind the fact that McClendon had not submitted an application for the posted positions through the formal bidding system. In Gile v. United Airlines, Inc., 213 F.3d 365 (7th Cir. 2000), the Seventh Circuit heard a case in which the employer argued that because the plaintiff had failed to bid for a vacant position, the employer could do nothing for her. The Seventh Circuit rejected that reasoning, saying "The employer is obligated to identify the full range of alternative positions for which the individual satisfies the employer's legitimate, nondiscriminatory prerequisites and consider transferring the employee to any of these other jobs." Id. at 374. As a result, the City had a duty to identify all positions for which McClendon was qualified and attempt to transfer him to one of those vacant positions. This they did not do.
Defendants' final argument is that McClendon was not qualified for any position at the FWFD because all FWFD employees must first and foremost, be firefighters. In other words, the City argues that the ability to fight fires is an "essential function" of all positions within the FWFD. When determining if a job requirement is essential, courts look to several factors including: (1) the employer's judgment; (2) written job descriptions; (3) the amount of time spent performing the function; (4) the consequences of not requiring the incumbent to perform the function; (5) the work experience of past incumbents in the job; and (6) the current work experience of incumbents in similar jobs. See Lenker v. Methodist Hospital, 210 F.3d 792, 796 (7th Cir. 2000) (citing 29 C.F.R. § 1630.2(n)(3)). Here, McClendon has produced copies of the job descriptions of Instructors and Inspectors. The Instructor job description is completely void of any firefighting requirement. The Inspector job description states that, "The Inspector may be asked to report to the scene of a working fire and would be under the direct supervision of the Incident Commander." The description does not specify that the Inspector would be required to combat the fire, however. Moreover, to the extent that an Inspector might be required to fight a fire, the language of the job description — "The inspector may be asked to report to the scene of a working fire . . ." — suggests that any firefighting ability may be a marginal function of the job. Defendants, for their part, have only produced the self-serving affidavit testimony of Davie regarding a "longstanding policy" that all FWFD employees be firefighters. The record contains no copies of any written policy supporting Davie's affidavit testimony. Accordingly, a genuine issue of material fact exists as to whether the ability to combat fires was an essential function of all FWFD positions. Summary judgment on the failure to accommodate claim will be denied.
C. ADA Discrimination Claim
McClendon also claims that the City discriminated against him on the basis of his disability. A plaintiff can raise an inference of discrimination either by putting in enough evidence, whether direct or circumstantial, to raise a genuine issue whether employer has a discriminatory motivation in carrying out the challenged employment action or by using the McDonnell Douglas burden-shifting framework. See Kariotis v. Navistar International Transportation Corp., 131 F.3d 672, 676 (7th Cir. 1997). Here, McClendon concedes that he has no "smoking gun" direct evidence of disability discrimination. Therefore, McClendon proceeds according to the now familiar McDonnell Douglas framework.
To make out a prima facie case of discrimination under the ADA, a plaintiff must show that: (1) he is disabled within the meaning of the ADA; (2) he is qualified to perform the essential functions of the job either with or without reasonable accommodation; (3) he suffered an adverse employment actions; and (4) he was replaced by a person not in his protected class. See Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001). The City concedes that McClendon meets requirements two and four. However, the City contends that McClendon was not disabled within the meaning of the ADA and that McClendon did not suffer an adverse employment action.
As discussed in the section regarding McClendon's failure to accommodate claim, the Court believes an issue of fact exists as to whether McClendon was disabled according to the ADA. Moreover, the Court believes there is an issue of fact with respect to whether McClendon suffered an adverse employment action. The City argues that McClendon did not suffer an adverse employment action because he was transferred from his position as a Captain in the Training Division to a position as a Captain in the Combat Division. This transfer effected no change in McClendon's status or salary. While this may be the case, the ultimate result of the transfer was that McClendon was discharged for being unable to perform the essential functions of a combat firefighter. The Defendants cite no cases, and the Court has found none, which state that it is lawful for an employer to transfer a disabled employee to a position the employee cannot perform and then discharge that employee for being unable to perform the essential functions of the job. Indeed, such a result would be contrary to common sense and would directly contradict the purpose of the ADA's prohibition on disability discrimination. Plaintiff has submitted sufficient evidence to show that he suffered an adverse employment action. Consequently, McClendon has made out a prima facie case of disability discrimination.
Once a plaintiff makes a prima facie showing, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Once the employer does so, the plaintiff has the burden of showing that the employer's proffered reason is pretext. See Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873, 876 (7th Cir. 1999). According to the Seventh Circuit, "[a] plaintiff can prove pretext either by presenting direct evidence that a discriminatory reason motivated the employer's decision or by presenting evidence that the employer's proffered reason is unworthy of credence, thus raising the inference that the real reason is discriminatory." Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1310 (7th Cir. 1997).
Here, Defendants argue that Chief Davie transferred McClendon because he believed McClendon was not the best person for the job. Specifically, the City asserts that McClendon was "occasionally unprepared, demonstrated a negative attitude about the department, and did not present material effectively." (Memorandum in Support of Defendant City of Fort Wayne's and Tim Davie's Motion for Summary Judgment p. 11). However, in his deposition, Davie admitted that he had never personally seen McClendon be unprepared or present material ineffectively. (Davie Dep. at 64-65). Moreover, when asked whether he had received complaints about McClendon from other FWFD employees, Davie could not name any specific individuals who had complained. (Dave Dep. at 56). As a result, the Court is satisfied that McClendon has produced enough evidence to raise an issue of fact as to whether the City's reason for transferring McClendon was pretextual. Accordingly, summary judgment on the ADA discrimination claim will be denied.
D. Race Discrimination under Title VII and 42 U.S.C. § 1981
McClendon has also brought claims that the FWFD discriminated against him on the basis of his race under both Title VII and 42 U.S.C. § 1981. The Seventh Circuit has stated that "We analyze § 1981 claims in the same manner as claims brought pursuant to Title VII. . . ." Bratton v. Roadway Package System, Inc., 77 F.3d 168, 176 (7th Cir. 1996). Accordingly, the Court will consider both the Title VII and the § 1981 claims at the same time.
An almost identical analysis applies to race discrimination claims as to disability discrimination claims. A plaintiff can either produce enough direct or circumstantial evidence to raise a genuine issue of material fact that the employer was unlawfully motivated by race or the plaintiff can proceed via the McDonnell Douglas burden-shifting framework. See Weigel v. Target Stores, 122 F.3d 461, 465 (7th Cir. 1997) (finding that same analysis applies to both Title VII and ADA discrimination claims). Here, McClendon proceeds according to McDonnell Douglas.
To make out a prima facie case of race discrimination under the McDonnell Douglas framework, a plaintiff must show that: (1) he was a member of a protected class; (2) he was meeting his employer's legitimate performance expectations; (3) he suffered adverse employment action; and (4) his employer treated similarly situated persons not in the protected class more favorably. See Simpson, 196 F.3d at 876. The City again concedes that McClendon was qualified for the Instructor position and that he was meeting the City's legitimate performance expectations. Moreover the City concedes the fourth prong of the prima facie case — that it hired Jim Noll, a non-disabled, Caucasian male, to replace McClendon and thus treated a similarly situated employee more favorably. Finally, the City does not appear to contest the fact that McClendon is African-American, and therefore, a member of a protected class.
Accordingly, the City only contends that McClendon has not suffered an adverse employment action. As discussed above, the Court is satisfied that an issue of fact exists as to whether transferring McClendon laterally and then discharging him constitutes an adverse employment action. Moreover, for the same reasons as set forth in the previous section, the Court believes McClendon has put forth a genuine issue as to whether the City's proffered reason for the transfer and discharge was pretextual. Accordingly, summary judgment on the Title VII and § 1981 claims will be denied.
E. Claims Under 42 U.S.C. § 1983
McClendon has sued the City and Davie, in both his official and individual capacities, pursuant to 42 U.S.C. § 1983. Section 1983 confers no substantive rights upon plaintiffs, but rather is a mechanism for vindicating federal rights elsewhere conferred. See Albright v. Oliver, 510 U.S. 266, 271 (1994). In this case, McClendon seeks to enforce his substantive rights under Title VII and 42 U.S.C. § 1981 via section 1983.
Defendants argue that Davie is entitled to summary judgment in his individual capacity under the doctrine of qualified immunity. Qualified immunity shields government officials performing discretionary functions from liability for civil damages insofar as their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Once a defendant has raised the defense of qualified immunity, the plaintiff bears the burden of establishing that qualified immunity does not apply. See Eversole v. Steele, 59 F.3d 710, 717 (7th Cir. 1995). However, in making the qualified immunity determination, the court must draw all inferences favorable to the plaintiff. See Thomas v. Roach, 165 F.3d 137, 143 (2nd Cir. 2000).
Based on the Supreme Court's decision in Harlow, the Seventh Circuit has established a two-step inquiry to determine whether qualified immunity applies. First, "the plaintiff must show that the law was clearly established when the challenged conduct occurred." This requires the court to consider "whether the law was clear in relation to the specific facts confronting the public official when he or she acted." Apostal v. Landau, 957 F.2d 339, 341 (7th Cir. 1992). The Supreme Court and Seventh Circuit have emphasized that the identification of a clearly established right is to be determined not in broad terms, but in a particularized sense. See Anderson v. Creighton, 483 U.S. 635, 639 (1987); Kernats v. O'Sullivan, 35 F.3d 1171, 1176 (7th Cir. 1994). In making that determination, courts generally review the case law existing at the time of the alleged unlawful conduct, focusing on particularized facts and concrete legal principles. See Kernats, 35 F.3d at 1176.
In the second step of the qualified immunity inquiry, the court must evaluate "the objective legal reasonableness of the defendant's conduct." Apostal, 957 F.2d at 341. This requires the court to determine whether reasonably competent officials would agree on the application of the clearly established law to the facts confronting the official. Id. This test establishes an objective standard that makes the defendant's subjective motive or intent irrelevant. See Stevens v. Umsted, 131 F.3d 697, 706 (7th Cir. 1997).
Here, McClendon argues that Davie discriminated against him on the basis of his race by laterally transferring him to a combat position and then terminating McClendon when McClendon was physically unable to perform the functions of the combat position. In other words, McClendon claims that Davie manipulated the reorganization of the FWFD to find a way to discharge McClendon and that this manipulation was motivated by race discrimination.
In response, Davie contends the lateral transfer itself was not unlawful. This argument, however, ignores the net effect of the decision to transfer McClendon. As a result of his transfer to the Combat Division, McClendon was ultimately discharged. It is clear that an employer cannot discharge an employee on the basis of his race. See Title VII, 42 U.S.C. § 2000e-2(a)(1) ("It shall be unlawful for any employer to fail or refuse to hire or to discharge any individual . . . because of such individual's race . . .") (emphasis added). That McClendon was discharged in two steps — a lateral transfer followed by a discharge — makes no difference. At the time of the events at issue in this case, it was clear that an employer may not discharge an employee on the basis of race.
The second step of the qualified immunity inquiry is a determination of whether Davie's actions were objectively reasonable. Viewing the facts in the light most favorable to McClendon, it cannot be said that transferring a disabled employee to a combat firefighter position and then discharging that employee because he cannot perform the functions of the job is objectively reasonable. Such actions are especially unreasonable if motivated by race. Therefore, the Court concludes that Davie is not entitled to qualified immunity. Summary judgment on the § 1983 claims will be denied.
CONCLUSION
Based on the foregoing, Defendants' motion for summary judgment is hereby DENIED. Defendants' motion to correct this Court's July 30, 2001 order of dismissal is hereby GRANTED. The July 30, 2001 order is VACATED. The Court now finds that no state law claims were ever pending against the City in this case. Defendant Bontempo is hereby DISMISSED as a defendant in this action. No state law claims remain pending in this case.
SO ORDERED