Kinsella v. Rumsfeld

• Decision Date: 19 February 2003
• Docket Number: No. 02-6029.,02-6029.
• Parties: Patrick KINSELLA, Plaintiff-Appellant, v. Donald H. RUMSFELD, Secretary, Department of Defense, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

320 F.3d 309

Patrick KINSELLA, Plaintiff-Appellant, v. Donald H. RUMSFELD, Secretary, Department of Defense, Defendant-Appellee.

No. 02-6029.

United States Court of Appeals, Second Circuit.

Argued: October 28, 2002.

Decided: February 19, 2003.

Shawn F. Brousseau, Napierski, Vandenburgh & Napierski, L.L.P., Albany, NY, for Appellant.

Elizabeth S. Riker, Assistant United States Attorney (Joseph A. Pavone, United States Attorney for the Northern District of New York; William F. Larkin, Assistant United States Attorney, of counsel), Syracuse, NY, for Appellee.

Before: FEINBERG, JACOBS, and SACK, Circuit Judges.

SACK, Circuit Judge.

Plaintiff Patrick Kinsella appeals from the decision of the United States District Court for the Northern District of New York (Howard G. Munson, Judge) granting the defendant's motion for summary judgment and dismissing the complaint, which alleges the defendant's discriminatory termination of and failure to promote Kinsella in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. Kinsella argues that he elicited sufficient evidence from which a finder of fact could properly conclude that his employment was terminated and that he was denied promotion because of his disability. We conclude that he submitted sufficient evidence to survive the motion for summary judgment with respect to his unlawful termination claim but not with respect to his failure to promote claim. Accordingly, we affirm in part, and vacate and remand in part.

BACKGROUND

Standard of Review

We review a district court's grant of summary judgment de novo, construing the evidence in the light most favorable to the nonmoving party. Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999), cert. denied, 529 U.S. 1098, 120 S.Ct. 1832, 146 L.Ed.2d 776 (2000). Summary judgment is appropriate where "there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law," Fed.R.Civ.P. 56(c), i.e., "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A fact is "material" for these purposes if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. We therefore note at the outset that because we are required to construe the evidence in the light most favorable to the plaintiff, and therefore recite the facts in that manner, the account that follows may not reflect the facts that would be found by a finder of fact after a full trial.

Factual Background

Kinsella was born with a coloboma¹ present in each eye. As a result, he has been legally blind all his life. Without correction, his vision is 20/600 in his right eye and 20/700 in his left eye. With correction, his vision is 20/200 in both eyes. Because of his impairment, he cannot drive, cannot shop or travel alone, and cannot read without the aid of a magnifying glass.

In 1986, despite the severe problems with his eyesight, Kinsella was hired by the United States Air Force to work as a "Copier/Duplicator Equipment Operator" in its printing shop located at the Griffiss Air Force Base ("Griffiss") in Rome, New York. In 1989, Kinsella was moved to the Air Force's Rome Laboratories facility, which was less than half a mile from the Griffiss facility, where he continued to be a Copier/Duplicator Equipment Operator, but took on additional responsibilities. His new duties included operating and maintaining a high speed copier, color copier, drill press, laser cutter, and stapler. Kinsella repeatedly requested that his job with its augmented responsibility be reclassified as a "Bindery Machine Operator," which would entail a promotion and increase in pay, arguing that he was effectively fulfilling the requirements of that job anyway. He received no promotion, however, remaining a Copier/Duplicator Equipment Operator throughout his employment by the defendant.

In April 1992, the Navy's Defense Printing Service ("DPS") assumed control of both the Griffiss printing facility and the Rome Laboratories printing facility. According to the deposition testimony of Robert Voisine, Kinsella's immediate supervisor at the Rome Laboratories, Robert Feller, then director of DPS facilities at Griffiss, told Voisine at or shortly after that time that "he [Feller] didn't know how Patrick [Kinsella] got into the position he was in, being blind, and he didn't feel that we could keep a blind guy working as a printer or copier operator." Voisine dep. at 14. In April 1993, Kinsella filed an informal complaint with DPS's Equal Employment Opportunity ("EEO") counselor, alleging that Feller had threatened Kinsella with disciplinary action because of his disability. Kinsella did not pursue his April 1993 complaint.

In October 1993, John Peterson replaced Feller as director of DPS printing facilities at Griffiss. Peterson conducted efficiency surveys and determined that the two printing facilities — Griffiss and Rome Laboratories — were "less than 40 percent efficient." Peterson dep. at 17. After trying various other methods to improve efficiency, Peterson decided to consolidate the Griffiss and Rome Laboratories printing facilities and reduce the number of employees at the combined operation.

In October 1994, Peterson received permission to execute a reduction in force ("RIF"). The following month, he notified the eight DPS employees at the combined operation that their positions would be eliminated as of January 1995 to improve efficiency and productivity. In their place, three new Bindery Machine Operator positions were to be created, leaving a three-person print shop at the Rome Laboratories facility. Kinsella was told that he did not qualify for any of the three Bindery Machine Operator jobs.

According to Voisine's deposition testimony, prior to the RIF, Peterson had a conversation with Voisine about post-RIF staffing of the shop.

[T]he gist [of what Peterson told Voisine] was [that Peterson] didn't understand how [Kinsella] got hired for the job in the first place, and this new organization was not going to be able to run with him.... They just did not believe that a blind person could run copiers and do print work.

Voisine dep. at 21.

Although only three of the DPS employees were rehired in the print shop, all the former print shop employees were hired by the Defense Department — except Kinsella. Before the RIF, eight employees performed print work for DPS at the two different print shop locations. Robert Voisine, Deborah Boudreau, and Patrick Kinsella worked at the Rome Laboratories location. Voisine was the supervisor and Boudreau and Kinsella operated and maintained the machines. Less than a half a mile away, at the Griffiss location, Frank Loomis was supervisor, Diane Peters inputted print orders, and Gary Staudy, Steven Rocchio and Timothy Jones ran the offset duplicator presses. Immediately after the RIF, Voisine, Loomis, and Jones, all senior to Kinsella, continued to work for DPS in the Rome Laboratories print shop, filling the three newly created Bindery Machine Operator positions. After the RIF, the Defense Finance and Accounting Service of the Department of the Army ("DFAS"), a Defense Department organization distinct from DPS, created a print shop in the same building as the DPS Rome print shop, and hired Boudreau, who was junior to Kinsella and whom Kinsella had trained at the Rome Laboratories print shop. The DFAS print shop job, which was temporary, was not posted and Boudreau did not apply for it, but she received the job anyway. Boudreau remained in that position, operating DFAS's two printing machines, until September 1995 when DFAS offered her a permanent position in its accounting department. DFAS later hired all the other pre-RIF DPS print shop employees: Loomis and Staudy to work in its newly created print shop, Rocchio to work in the mailroom, and Peters to work in accounting. Only Kinsella was never rehired at the Griffiss or Rome Laboratories locations.

After the RIF, Kinsella was offered a job as a military pay clerk in Scotia, New York. But Scotia is more than 90 miles from Rome and Griffiss. The job was not a realistic option for Kinsella particularly in light of his inability to drive, so he did not accept it. Kinsella remained unemployed until April 1995, when he found a part-time job with lower pay and fewer benefits, as a toll collector for the New York State Thruway Authority.

Although DFAS management was distinct from DPS management, Peterson conceded at his deposition that the newly created DFAS print shop was under his supervision. Peterson further testified that he asked DFAS management to consider...