Silk v. Batts and Guarnieri

• Decision Date: 08 October 1999
• Docket Number: No. 98-1155,98-1155
• Citation: 194 F.3d 788
• Parties: (7th Cir. 1999) WILLIAM H. SILK, Plaintiff-Appellant, v. CITY OF CHICAGO, WILLIAM BATTS, in his individual and official capacity as Commander of the Chicago Police Department, and JOHN GUARNIERI, in his individual and official capacity as Lieutenant of the Chicago Police Department, Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 788

194 F.3d 788 (7th Cir. 1999)

WILLIAM H. SILK, Plaintiff-Appellant, v. CITY OF CHICAGO, WILLIAM BATTS, in his individual and official capacity as Commander of the Chicago Police Department, and JOHN GUARNIERI, in his individual and official capacity as Lieutenant of the Chicago Police Department, Defendants-Appellees.

No. 98-1155

In the United States Court of Appeals For the Seventh Circuit

Argued December 3, 1998

Decided October 8, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 C 143--David H. Coar, Judge. [Copyrighted Material Omitted]

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Before CUDAHY, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

Sergeant William H. Silk brought this action against the City of Chicago ("the City") and two of its police officers. Sergeant Silk alleged that they violated the Americans with Disabilities Act ("ADA") and the Rehabilitation Act of 1973 by discriminating against him and by subjecting him to a hostile work environment because of his disability, sleep apnea. In the district court, Sergeant Silk raised other claims, including a federal civil rights claim and pendent state law claims. He now appeals only the dismissal on summary judgment of the disability discrimination and hostile work environment claims. For the reasons set forth in this opinion, we affirm the judgment of the district court.

I BACKGROUND

A. Facts¹

Sergeant Silk, a police officer with the City's Chicago Police Department ("CPD") since 1970, was promoted to the rank of sergeant in 1986 and was assigned to the 6th Police District in 1990. He had a commendable work record, with good performance evaluations and no record of conflicts with co-workers. During the periods relevant to this case, two of Sergeant Silk's superior officers at the 6th Police District were Commander William Batts and Lieutenant John Guarnieri. The 6th District, like others in the CPD, assigned its police officers on a rotating basis to one of three shifts: the first watch (11 p.m. or 12 midnight to 7 or 8 a.m.), the second watch (7 or 8 a.m. to 3 or 4 p.m.), and the third watch (3 or 4 p.m. to 11 p.m. or 12 midnight). Needless to say, for most police officers, working the second watch is much more desirable than working the first or third watch.

In 1992, Sergeant Silk was diagnosed with severe sleep apnea, a condition characterized by interruptions in breathing during sleep. According to the record, although sleep apnea itself is not fatal, the secondary cardiovascular effects--including hypertension and stroke--can be. Sergeant Silk's physician informed the CPD that he needed to work a steady shift because of his sleep apnea. His sleep specialist physician at the Sleep Disorder Center of Rush- Presbyterian-St. Luke Hospital did not recommend a particular watch, but did note that working the night shift is not ideal for someone with a sleep disorder. The CPD then assigned Sergeant Silk to "convalescent duty" status, with the job restrictions of "no first watch" and "no change in shift." Three months later, in June 1992, after further letters from the sleep specialist physician and Sergeant Silk's attorney, his status was changed to "limited duty," which is a longer term restriction and which also included a "no first watch" restriction. In January 1993, Sergeant Silk's physician sent another letter, this time requesting that, due to his sleep apnea, he work only the "second watch" day shift. The Medical Services Section of the CPD further accommodated Sergeant Silk; from January 1993 on, he worked only the day shift.

Sergeant Silk, who has two masters degrees in law-related fields and a Ph.D. in public administration, did have other employment: He was an instructor for Chicago State University and taught a class once a week, 6-7:30 p.m. He taught in order to supplement his income and, he hoped, to make teaching his career after he retired from the CPD. Police officers are subject to restrictions concerning secondary employment; General Order 89-8, promulgated by the Superintendent of the CPD in 1989, establishes the conditions under which police officers may work a second job. It states that CPD members who are on limited duty may not engage in secondary employment inconsistent with the member's limitations.² In December 1993, Commander Batts submitted a complaint with CPD's Internal Affairs Division ("IAD") charging that Sergeant Silk was violating the General Order by teaching while on limited duty status.

At a hearing on the charge, Sergeant Silk explained that his teaching once a week from 6 p.m. until 7:30 p.m. did not affect his normal sleep pattern, violate his medical profile, interfere with his duties as a police officer or violate any General Order. However, in January 1994, after its investigation, the IAD ordered Sergeant Silk to cease and desist working secondary employment while on limited duty status. Sergeant Silk appealed the order to the Director of the IAD. The Director denied the appeal, stating that, "since you are unable to work the third watch for the Chicago Police Department, there is no justification for permitting you to work the third watch or any segment of the third watch for a secondary employer." R.71, Dfts' 12(M) Stmt. para. 63. Sergeant Silk was suspended for five days as a result of his violation of Order 89-8. Shortly thereafter, on January 28, 1994, the Sergeant filed a charge of disability discrimination against the City with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission ("EEOC").

After the accommodations to his sleep apnea condition were made, Sergeant Silk submits that every aspect of his conditions of employment deteriorated. The Sergeant claims that, as a result of the resentment among officer co-workers and supervisors over the fact that he worked only the day watch, he was subjected to a hostile work environment which manifested through a pattern of harassment. He describes and categorizes the harassment and hostility he endured in the following way:

A. Verbal Harassment. Other sergeants and lieutenants in the district openly criticized him and treated him with ongoing hostility. Sergeant Silk offered two examples: (1) At roll call, Captain Burns referred to Sergeant Silk's "[vulgarity] medical problem." R.76, Ex.A at 64. (2) In a public lobby area, defendant Lt. Guarnieri called Silk a "useless piece of [vulgarity]"; he also referred to him as a "medical abuser" and "limited duty phony." Id. at 232-33. Sergeant Silk states that he complained verbally to Commander Batts about Captain Burns' comment but did not complain about Lieutenant Guarnieri's remarks and generally did not report the harassment because, he asserts, such remarks were an ongoing problem and because senior officers were among the perpetrators.

B. Threats of Physical Violence. According to Sergeant Silk, co-worker Sergeant Sumner Jones threatened him. In his deposition, Sergeant Silk states that, when he was working the desk, Sergeant Jones walked up and stated, "You are a phony medical limited duty, and if I were in industry, they would order me to kick your [vulgarity] and all this." R.76, Ex.A at 241. A few minutes later, Jones returned and said, "Get out of my way, Silk. It won't take much to have me knock you on your [vulgarity] right now." Id. At that point, Sergeant Silk stated, he began composing his complaint to Commander Batts about the incident.

On October 6, 1994, Sergeant Silk complained in writing to Commander Batts, who then registered the complaint with the IAD. There was an investigation; Sergeant Silk's allegations were not sustained, and no discipline was imposed. After that, Sergeant Jones apologized for being "really out of line there," id. at 242, and stayed away from Sergeant Silk.

Sergeant Silk also contended that Captain Burns told him that he should be careful because there might be a bomb under his car. Although the Sergeant testified in his deposition that he took the captain's statement seriously, he also realized that Captain Burns was known for making statements like that and he did not report the bomb threat to anyone.

C. Lowered Performance Ratings. Before the accommodations were made, Sergeant Silk's performance ratings typically had no negative comments, and his scores had been in the 90s (on a scale of 100). However, after being assigned to limited duty, the Sergeant claimed, his ratings dipped, and negative comments were written on his evaluations, with reference to his disability and to the resentment by his peers of his inability to work any night watch.

D. Compelled Loss of Secondary Employment. After Commander Batts submitted a complaint claiming that Sergeant Silk's teaching violated the CPD's Order 89-8 concerning secondary employment, the CPD ordered him to stop teaching and suspended him for violating Order 89-8.

E. Administrative Harassment. Sergeant Silk listed a number of administrative decisions that he termed "petty harassments." Appellant's br. at 10. He contended that earned days of leave were taken away or changed without justification; that he was not allowed to "act up" to the higher supervisory level of field lieutenant;³ or that sometimes he was not given other patrol cars to supervise.⁴ As a result, he asserted, he was an object of ridicule among patrol officers in the District. In addition, he pointed out, Commander Batts chastised him for wearing orthopedic shoes- -even though he had medical authorization to wear them.

B. Decision of the District Court

The district court first considered whether Sergeant Silk was a qualified individual with a disability. It determined that sleeping, like breathing, is a major life activity and that, if his sleep apnea is severe enough, it would substantially limit a major life activity. Because the...