Dickerson v. Bd. of Trustees of Cmty. Coll. Dist. No. 522

Decision Date18 October 2011
Docket NumberNo. 10–3381.,10–3381.
Citation25 A.D. Cases 193,657 F.3d 595,273 Ed. Law Rep. 46,43 NDLR P 254
PartiesRobert E. DICKERSON, Plaintiff–Appellant,v.BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 522, Counties of St. Clair, Madison, Monroe, Randolph, Washington, Bond, Perry and Montgomery and State of Illinois, Defendant–Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

OPINION TEXT STARTS HERE

Edward J. Szewczyk (argued), Attorney, Callis, Papa, Jackstadt & Halloran, Granite City, IL, for PlaintiffAppellant.Garrett P. Hoerner (argued), Attorney, Becker, Paulson, Hoerner & Thompson, Belleville, IL, for DefendantsAppellees.Before EASTERBROOK, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.WILLIAMS, Circuit Judge.

Robert Dickerson is a part-time janitorial custodian for a community college in Illinois and suffers from a mental disability. He brought this suit against his employer, alleging that he was discriminated against because of his disability in violation of the Americans with Disabilities Act.

In August of 2007 Dickerson was a part-time janitor. He applied for full-time positions and was rejected. The school evaluated Dickerson's job performance in December of 2007. He was rated “Unsatisfactory” in three of seven categories. On February 7, 2008, Dickerson filed a discrimination charge against the school with the Equal Employment Opportunity Commission (EEOC), stating that the school's failure to hire him for a full-time position was an act of unlawful discrimination.

On July 17, 2008, the school evaluated Dickerson's job performance again and decided to fire him. Dickerson filed another charge of discrimination with the EEOC, and added a retaliation claim. Later, he sued the school in federal district court, and a summary judgment motion was granted in favor of the school. Dickerson appealed.

We find that the district court was correct in granting summary judgment for the school on Dickerson's discrimination claim because the evidence in the record is insufficient to show that Dickerson was meeting his employer's legitimate employment expectations. His retaliation claim also fails because he did not point to sufficient evidence that he was performing his job satisfactorily. Therefore, we affirm.

I. BACKGROUND

Because the defendant-appellee 1 prevailed on summary judgment, we will recount the pertinent facts in the light most favorable to the plaintiff-appellant, Robert Dickerson. According to Dickerson's psychological report that was prepared for this litigation, Dickerson is mildly mentally impaired. He has a WAIS–III Full Scale IQ of 67 (which “falls in the range of mild mental retardation”), took special education classes in high school, and has difficulty acquiring, retaining, and processing information. Although he is disqualified from certain categories of jobs and professions because of his mental disability, in 1999 he secured a position as a part-time janitor for Belleville Area Community College District 522 (District 522). With three exceptions, Dickerson's part-time tenure proceeded without recorded incident. In December of 2005, Dickerson filed a union grievance against a supervisor who issued a warning claiming that Dickerson refused to perform a work assignment. In July of 2006, Dickerson received a warning for failing to secure job-related equipment, resulting in District 522's financial loss of $459.00 to replace the equipment. And in April of 2007, Dickerson received a warning for leaving his work site without first obtaining his supervisor's permission. Dickerson applied for full-time janitor positions at District 522 in 2005 and 2006. He was not hired for the positions. In August of 2007, Dickerson again applied for full-time janitor positions with his employer school. He was not hired for any of the positions. One successful part-time applicant was told that if he wanted to be elevated to a full-time position, he should “stay away from Bobby Dickerson.”

On October 17, 2007, Dickerson attended a meeting of District 522's Board of Directors and complained that he was being discriminated against because of his personal traits and a speech defect. Later he met with District 522's attorney and repeated his belief that he was being discriminated against.

On December 18, 2007, District 522 performed a written evaluation of Dickerson's work performance from November 2, 2006 to November 3, 2007. It was the first formal evaluation performed on Dickerson, and was made pursuant to a 2006 policy change by District 522 that mandated written evaluations for part-time employees. The evaluation was completed by Kenny Deffenbaugh, Assistant Director of the Physical Plant, who was Dickerson's direct supervisor, and the evaluation timeframe corresponded with Dickerson's employment anniversary, which was November 3, 1999. The evaluation form had seven categories. In each category there were five possible ratings: Outstanding, Very Good, Good, Satisfactory, and Unsatisfactory. Dickerson was rated as Satisfactory in “Attendance & Punctuality,” “Quality of Work,” “Knowledge of the Work” and “Attitude.” In these categories, Deffenbaugh noted that Dickerson “is consistently late for work and needs to improve”; some “jobs need to be redone because of not listening to the job instructions”; and Dickerson “does only the bare minimum to meet job requirements.” Dickerson was rated “Unsatisfactory” in the categories of “Quantity of Work,” “Responsibility,” and “Relationships With People.” In these areas, Deffenbaugh noted that Dickerson “needs constant supervision or he will wander off jobs”; and that [m]any times when Bobby is required to work with other staff members, they will request someone else to work with. He leaves the area and puts more burden on them.” Overall, Dickerson's job performance was rated as “Unsatisfactory”: “Bobby takes no initiative to be a leader or a positive employee to try to meet job requirements.... Bobby is the type of employee that will take a lot of my time as a supervisor just to make sure he is still working.” When he was presented with the evaluation, Dickerson disagreed with it and refused to sign it. Later he signed an affidavit declaring that his attendance and punctuality were “Outstanding” during the relevant time periods, and that he was “at least good” in each of the remaining evaluation categories. In January of 2008, Dickerson filed a grievance with his union, alleging that District 522 was discriminating against him because of his union activities, and that his poor written evaluation was a form of discriminatory, unjust discipline.

On February 7, 2008, Dickerson filed a charge of discrimination with the EEOC. He alleged that District 522 failed to promote him to a full-time janitor position because it believed he was mentally disabled. During the spring of 2008, some time after he filed his EEOC charge, Dickerson approached Larry Friederich, who was District 522's Vice President of Human Resources. Dickerson asked Friederich what he should be doing differently to be promoted to a full-time position. Friederich's response included something along the lines of “you are suing your employer and you should not be suing your employer.” Later, in deposition, Friederich admitted that he gave Dickerson this “common sense” advice, and that he knew of Dickerson's EEOC charge when he gave it.

On July 17, 2008, Deffenbaugh performed a follow-up evaluation of Dickerson's work performance; it covered the time period of December 19, 2007 through July 16, 2008. He noted that Dickerson showed improvement in securing equipment, but that he had not improved on being a team worker, communicating with his supervisor before leaving a task, or completing his share of the workload instead of shifting responsibilities to his co-workers. He also noted that Dickerson had been verbally warned about his unsatisfactory performance several times, and that he (Deffenbaugh) had personally talked to Dickerson on “many occasions” about what he needed to do to be a better employee. Deffenbaugh concluded that Dickerson had made insufficient progress in correcting the problems noted in his December 2007 evaluation, and that his performance remained “Unsatisfactory.” He recommended that Dickerson be fired because of poor performance. Indeed, District 522 fired Dickerson, effective September 10, 2008. Later, in a response to an interrogatory, District 522 admitted that the people involved in its decision to fire Dickerson included Deffenbaugh and Friederich.

Dickerson filed a union grievance over his termination. An arbitrator ruled that Dickerson be reinstated to his part-time position because District 522 had violated the parties' collective bargaining agreement by failing to employ progressive discipline in correcting Dickerson's behavior. District 522 did in fact reinstate Dickerson to his part-time position. Dickerson also filed another EEOC charge. He alleged that he had been fired in retaliation for filing his charge of discrimination against his employer, and that the firing itself was a further act of unlawful discrimination by his employer. He then brought a civil suit against District 522 in federal district court, alleging that the school broke the law when it did not award him a full-time janitorial position, gave him negative evaluations, and fired him. The district court granted summary judgment in favor of District 522, and Dickerson appealed to our court. At issue before us is whether the district court erred in granting summary judgment in favor of District 522.

II. ANALYSIS

Dickerson asserts that he was discriminated against and terminated in violation of the Americans with Disabilities Act (ADA). The district court dismissed Dickerson's claims under summary judgment. We review the court's grant of summary judgment de novo. Moore v. Vital Prods. Inc., 641 F.3d 253, 256 (7th Cir.2011). We construe all facts and draw all...

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