Hiler v. Brown

• Citation: 177 F.3d 542
• Decision Date: 20 May 1999
• Docket Number: No. 98-5014,98-5014
• Parties: 9 A.D. Cases 628 Wayne HILER, Plaintiff-Appellee, v. Jesse BROWN, Secretary of Veterans Affairs, officially, Defendant, J.C. Watkins, Maintenance and Operations General Foreman; Robert Wiedo, Assistant Director of Engineering Services; Larry Kuzma, Chief Director of Engineering Services, individually, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 542

177 F.3d 542

9 A.D. Cases 628

Wayne HILER, Plaintiff-Appellee, v. Jesse BROWN, Secretary of Veterans Affairs, officially, Defendant,

J.C. Watkins, Maintenance and Operations General Foreman;

Robert Wiedo, Assistant Director of Engineering Services;

Larry Kuzma, Chief Director of Engineering Services,

individually, Defendants-Appellants.

No. 98-5014.

United States Court of Appeals, Sixth Circuit.

Argued March 17, 1999.

Decided and Filed May 20, 1999.

Richard A. Olderman (argued and briefed), U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, APPELLATE STAFF, Washington, D.C., for Appellants.

Eugene F. Mooney (argued and briefed), MOONEY, MOONEY & MOONEY, Lexington, Kentucky, for Appellee.

Before: BOGGS, CLAY, and GODBOLD ^*, Circuit Judges.

CLAY, Circuit Judge.

Defendants-Appellants, J.C. Watkins, Robert Wiedo, and Larry Kuzma, supervisors at the United States Department of Veterans Affairs Medical Center ("Veterans Administration"), appeal the district court's denial of their motion for summary judgment on Plaintiff Wayne Hiler's claim of retaliation under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-794a (1994). Defendants allege that the district court erroneously denied their claim for qualified immunity, as the Rehabilitation Act does not create a private cause of action against supervisors in their individual capacities for retaliation. Hence, Defendants maintain that they are immune from personal liability for alleged retaliation under the Rehabilitation Act. For the reasons set forth below, we agree and REVERSE the district court's decision.

I.

Plaintiff Wayne Hiler, a veteran of the armed forces, served as a tank commander in the United States Army during the Vietnam War. During his military tour, Hiler sustained arm and head injuries and as a consequence now labors under brain and neurological damage that impairs many of his major life activities, including self-care and employment. Hiler suffers from aphasia, impairment of his handwriting ability, and an assortment of other physical limitations. ¹

Since January 23, 1994, Hiler has been employed as a pipefitter at the Veterans Administration in Lexington, Kentucky. Despite his disability, Hiler has successfully performed his duties as a pipefitter and is a certified Wastewater Operator, licensed High Pressure Boiler Operator, certified Construction Representative, a certified Backflow Tester, and a certified Refrigeration Technician. Hiler, who was previously employed as a supervisor at other companies, applied on nine occasions for seven vacant supervisor positions at the Veterans Administration. ² Hiler was not selected for any of the positions for which he applied, however, because candidates were evaluated, in part, by their performance on timed written examinations. Specifically, candidates were required to handwrite their resume spontaneously in ten minutes, and to handwrite responses to verbal questions under time pressures.

Because Hiler's disability impairs his ability to commit his thoughts to paper quickly, he objected to the use of the written examinations to test his qualifications as a supervisor. His disability does not affect his capacity to make immediate spontaneous responses verbally, by typewriter, or electronically by computer. Regardless, the interviewers refused to eliminate or modify the testing procedures, or to otherwise accommodate Hiler's disability.

Three of Hiler's supervisors, J.C. Watkins, Robert Wiedo, and Larry Kuzma, were actively involved in the selection process for the management positions that he sought. Generally, Watkins, the Maintenance and Operations General Foreman, was the interviewing official, Wiedo, the Assistant Director of Engineering Services, was the concurring official, and Kuzma, the Chief Director of Engineering Services, was the selecting official. Watkins interviewed Hiler on five occasions, and Wiedo interviewed Hiler once. Because Hiler's performance on the written examinations was inferior to the performance of other candidates, Watkins and Wiedo did not recommend Hiler as a supervisor, and Hiler's applications were consequently rejected by Kuzma.

After exhausting his administrative remedies, Hiler filed suit in the district court on February 14, 1997, against Jesse Brown, Secretary of Veterans Affairs, in his official capacity, and his supervisors, in their official and individual capacities, for disability discrimination, failure to accommodate, and retaliation. ³ Hiler's complaint, which was subsequently amended, asserted that the defendants violated the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 794 (1994), Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 1981a (1994), the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12203 (1994), and the Kentucky Civil Rights Act, Ky.Rev.Stat. Ann. § 344.280 (Baldwin 1994). In response, the defendants filed a joint motion to dismiss and motion for summary judgment on July 3, 1997, claiming, among other things, that (i) the district court should dismiss the claims against all defendants in their official capacities, on grounds that they are not the proper party defendants; and that (ii) the Rehabilitation Act's anti-retaliation provision does not create a private right of action against supervisors in their individual capacities.

Prior to discovery, the district court issued an opinion and order on November 25, 1997, finding in relevant part, that Hiler could not maintain a disability discrimination claim against his supervisors, in their official capacities, under the Rehabilitation Act since by statute the only proper defendant is the head of the Veterans Administration, Defendant Brown. The district court determined, however, that Hiler could maintain his retaliation claim against his supervisors in their individual capacities, and thereafter denied the supervisors' claim for qualified immunity. The district court therefore permitted Hiler to pursue his disability discrimination claim against Defendant Brown in his representative capacity, and his retaliation claim against his supervisors in their individual capacities. Hiler's supervisors filed a timely notice of appeal to this Court on December 24, 1997, placing before this Court the narrow issue of whether the Rehabilitation Act creates a private cause of action against supervisors, in their individual capacities, for alleged retaliatory employment practices. ⁴

II.

This Court has jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. § 1291. A district court's order denying qualified immunity is immediately appealable as a final judgment within the meaning of § 1291 insofar as the appeal raises purely legal, rather than factual, issues. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Berryman v. Rieger, 150 F.3d 561, 562 (6th Cir.1998). The district court's denial of a qualified immunity claim is reviewed de novo. See Ward v. Dyke, 58 F.3d 271, 273 (6th Cir.1995).

III.

The Rehabilitation Act of 1973 prohibits discrimination and retaliation in employment against disabled persons by federal agencies. See 29 U.S.C. §§ 791, 794 (1994); Smith v. United States Postal Serv., 742 F.2d 257, 259 (6th Cir.1984). Significantly, the anti-retaliation provision of the Rehabilitation Act, which incorporates by reference § 12203(a) of the ADA, provides in relevant part that "[n]o person shall discriminate against an individual because such individual has opposed any act or practice made unlawful by this Act." 29 U.S.C. § 794(a) (1994). Under the Rehabilitation Act, an aggrieved federal employee is entitled to the "remedies, procedures, and rights" set forth in Title VII of the Civil Rights Act. Id.

In the present case, the district court, relying on a "plain language" interpretation of the Rehabilitation Act, concluded that supervisors can be held personally liable in damages for retaliation. For support, the district court observed that the term "person" as used in the Rehabilitation Act should be given the same meaning as it has under Title VII, which defines "person" as including "one or more individuals." 42 U.S.C. § 2000e(a) (1994). Adopting Hiler's position, the district court determined that the express and plain meaning of the statute allows a private right of action against supervisors, in their individual capacities, for retaliation. Indeed, the court stated that "when Congress defined 'person' as 'one or more individuals' it meant 'individuals.' "

Although the district court's "plain language" interpretation of the anti-retaliation provision of the Rehabilitation Act has some surface appeal, we believe that the district court's decision falls short of fully resolving the question of supervisor liability under the anti-retaliation provision of the Rehabilitation Act. While this is an issue of first impression, we believe that placing significance on the word "person," as did the district court, frustrates the statutory scheme and remedial purposes of the Rehabilitation Act and ignores analogous case law which hold that supervisors are not liable personally for employment discrimination. Asking what Congress intended the word "person" to mean misdirects the focus of this suit, as the relevant inquiry is what remedies are available to an aggrieved federal employee for retaliation under the Rehabilitation Act.

An individual seeking monetary or equitable relief for retaliation under the Rehabilitation Act must discern what remedies are available to them under Title VII. The enforcement provisions of Title VII permit civil actions against an "employer, employment agency, labor organization, or joint labor-management committee...." 42 U.S.C. § 2000e-5(b) (1994). An employer is further defined under Title VII as "a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such person." ⁵ 42 U.S.C. § 2000e(b) (1994). Hence, individuals who are not employers...