Overton v. Reilly

• Decision Date: 22 October 1992
• Docket Number: No. 91-3186,91-3186
• Parties: 60 Fair Empl.Prac.Cas. (BNA) 128, 60 Empl. Prac. Dec. P 41,835, 2 A.D. Cases 254, 3 NDLR P 138 Edward B. OVERTON, Plaintiff-Appellant, v. William K. REILLY, Administrator, Environmental Protection Agency, and United States Environmental Protection Agency, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1190

977 F.2d 1190

60 Fair Empl.Prac.Cas. (BNA) 128,

60 Empl. Prac. Dec. P 41,835, 2 A.D. Cases 254,

3 NDLR P 138

Edward B. OVERTON, Plaintiff-Appellant, v. William K. REILLY, Administrator, Environmental Protection Agency, and United States Environmental Protection Agency, Defendants-Appellees.

No. 91-3186.

United States Court of Appeals Seventh Circuit.

Argued April 30, 1992.

Decided Oct. 22, 1992.

James C. Schroeder, Vincent J. Connelly, Kathleen Gorr (argued), Mayer, Brown & Platt, Chicago, Ill., for plaintiff-appellant.

Linda A. Wawzenski, Asst. U.S. Atty., Madeleine S. Murphy, Asst. States Atty., Fred Foreman, U.S. Atty., Office of the U.S. Atty., Criminal Div., Chicago, Ill., for defendants-appellees.

Before CUDAHY and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

CUDAHY, Circuit Judge.

Edward Overton brought a claim against the United States Environmental Protection Agency (EPA) under sections 501 and 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 & 794 et seq. (1988). Overton claims that the EPA fired him because of his handicap. The district court granted summary judgment for the EPA, and we reverse.

I.

We review a grant of summary judgment de novo, and must take the facts in the light most favorable to the non-movant. Martin v. Consultants & Administrators, Inc., 966 F.2d 1078, 1084 (7th Cir.1992). The following account, drawn from the briefs, the memorandum opinion of the district court and the record, presents the facts of the case from Overton's point of view.

Overton lacks a finger on his left hand, but the missing finger does not hold him back much. Overton is somewhat disabled, however, by an emotional illness, which appears to put a strain on his contacts with other people. Despite a long history of mental illness, which includes severe bouts of depression, ¹ in 1985 Overton managed to graduate from the University of Illinois at Chicago with a B.S. in Chemistry. Upon graduation, the Illinois Department of Rehabilitation Services (DORS) recommended that Overton apply for a job with the EPA, which had a Disabled Persons Program. DORS notified Seth Diblee, the head of the Program, that Overton had personal and emotional problems and took a small amount of medication to control tension. The DORS letter concluded, however, that Overton's disability would not interfere with his performance as a chemist.

Diblee referred Overton to Gregory Parker, the (then) Chief of the Underground Injection Control Section of the EPA for Region V, based in Chicago. Parker offered Overton a job with the permit unit of his section. According to Parker's deposition testimony, he hoped that a chemist would add to the overall expertise of the Permit Unit staff, which consists mostly of geologists. Parker did not know that Overton would have difficulty communicating with the public. On the other hand, Parker and Overton did not discuss public contact, and Overton was under the impression that the job did not require any. Overton's job description states that personal contacts "primarily include employees in the agency, both inside and outside the immediate office, including higher-grade staff, professionals and support staff." Overton App. at 68. It makes no mention of contacts with the public.

Soon after he started work in December 1985, Overton began to have trouble with the new supervisor of the Permit Unit, Valerie Jones. Overton admits to falling asleep at his desk during his first week, when he had nothing to do and his medication made him drowsy. Jones claims and Parker also stated, that Overton slept on the job rather more often. Larger troubles arose in January 1986, however, when Jones announced that all of the members of the Permit Unit technical staff would have to write permits--an activity that requires some amount of communication with permit applicants. Shortly after this announcement, Overton informed Jones that his emotional problems made personal contact with members of the public difficult for him, if not impossible. Overton asked that his job be restructured so that he could avoid using the telephone and meeting with permit applicants in person. He also asked for more assignments that would require use of his knowledge of chemistry. According to Diblee and Overton, Jones refused even to consider making accommodations along these lines. Jones herself testified that her response was to suggest that Overton seek another position within the agency.

In subsequent performance reviews, Jones criticized Overton for his "inability to communicate effectively with the regulated community." Dep. of Valerie Jones at 61 (Dec. 19, 1990). The reviews also report that Overton continued to sleep on the job and that he was having difficulty with the technical aspects of permit writing.

Despite these negative reviews, there is evidence that Overton was at least trying hard. Although there were eleven or twelve members of the Permit Unit technical staff, Overton completed 25 percent of the Unit's file reviews (apparently a dirty job that other employees avoided). Overton also completed 42 permits, approximately 20 percent of those completed by the Unit as a whole.

There is also evidence that Overton was doing acceptable work. During 1986, Parker took Overton under his wing: he reviewed Overton's work, talked to him frequently and asked him to perform a substantial research project. According to Parker, Overton showed progress in learning to write permits. Although Overton made mistakes, they were not that serious, nor were they unexpected in light of Overton's lack of geological expertise. Parker opined that Overton was better than other permit writers of his acquaintance who had substantially more experience.

Overton sent the results of his research project to Mario Salazar, a member of the EPA's technical staff in Washington, for peer comments. Salazar commended Overton's paper and sent it to other managers in his office, with the suggestion that the relevant regulations be amended. When Jones saw the paper, however, she disagreed with Overton's conclusions and criticized him for circulating the paper outside of proper channels.

As early as February or March 1986, Jones told Parker that Overton should not be in the Permit Unit because he lacked a geotechnical background and because of his psychological problems. In October 1986, Jones gave an unfavorable evaluation of Overton's performance for fiscal year 1986. She cited the inordinate amount of supervision Overton required, his failures to communicate and his lack of progress in understanding the technical aspects of the permit process. Following the negative review, Jones fired Overton as of December 1986. Overton filed an internal complaint, exhausted his administrative remedies and then sued.

One more set of facts is worth noting. In September 1985, before he was hired by the EPA, Overton applied for disability benefits. When he started work at the EPA, Overton notified the Social Security Administration (SSA) that he had taken gainful employment. In January 1986, the SSA determined that Overton was eligible for disability benefits, based on his emotional handicap. Given his employment status, the SSA awarded benefits on a nine-month trial basis. When Overton found out that he would be terminated, in October 1986, Overton notified the SSA, which continued his benefits.

On the EPA's motion for summary judgment, Judge Parsons concluded that there was no genuine issue that Overton was not "otherwise qualified" for his position. Mem.Op. and Order at 16 (July 9, 1991) (Mem.Op.). The EPA had made every "reasonable accommodation" for Overton's handicap; Overton had presented no evidence that he "could have performed the essential functions of any position"; and Overton's suggested accommodations were unreasonable in that they required the EPA to manufacture a new position for him. Id. at 14-15.

II.

Overton brought suit under sections 501 and 504 of the Rehabilitation Act of 1973. 29 U.S.C. §§ 791 & 794. The district court treated Overton's claim as one brought solely under section 504. Mem.Op. at 1. To compound the confusion, we have expressed some doubt that section 504 applies to employment discrimination suits against federal agencies. McGuinness v. United States Postal Service, 744 F.2d 1318, 1321-22 (7th Cir.1984); see also Johnson v. United States Postal Service, 861 F.2d 1475, 1477 (10th Cir.1988), cert. denied, 493 U.S. 811, 110 S.Ct. 54, 107 L.Ed.2d 23 (1989); Boyd v. United States Postal Service, 752 F.2d 410, 413 (9th Cir.1985) (section 501 is exclusive remedy for federal employees). Other circuits, however, believe that 504 does apply. See, e.g., Treadwell v. Alexander, 707 F.2d 473, 475 (11th Cir.1983); Smith v. United States Postal Service, 742 F.2d 257, 260 (6th Cir.1984); Prewitt v. United States Postal Service, 662 F.2d 292, 302-04 (5th Cir.1981) (discussing legislative history); cf. Ristoff v. United States, 839 F.2d 1242, 1243-44 (7th Cir.1988) (assuming without discussion that plaintiff may sue federal employer under section 504). The EPA is also in dissent from our musings in McGuinness, as it has promulgated regulations under section 504 that apply to its own employees. See 40 C.F.R. pt. 12 (1991). ²

Neither of the parties has addressed the applicability of section 504 or the differences (if any) between a claim brought under 501 and a claim brought under 504. We need not address these questions either, since the threshold issue on which the district court granted summary judgment is identical (or at least substantially similar) under both provisions.

Section 504 authorizes discrimination suits by "otherwise qualified handicapped individual[s]." Section 501(b) is phrased in very different terms: the section says nothing about discrimination or qualifications and merely requires federal agencies to submit affirmative action plans. Nonetheless, section 505(a)(1), 29 U.S.C. 794a(a)(1) (1988),...