Is employee medically qualified for job?

Federal District Court Opinions

TAYLOR v. GEARAN, (D.C. 1997) 979 F. Supp. 1 Jeffrey C.
TAYLOR, Plaintiff, v. Mark GEARAN, Director, United States
Peace Corps, et al., Defendants. Civil Action No.
96-1800(PLF). United States District Court, D. Columbia.
September 14, 1997. West Page 2

Jeffery C. Taylor, Baltimore, MD, pro se. West Page 3

Roderick Thomas, Asst. U.S. Atty., Washington, DC, for
Defendant.

OPINON

PAUL L. FRIEDMAN, District Judge.

Jeffery C. Taylor brings this action under the
Rehabilitation Act of 1973, 29 U.S.C. § 701; Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e; 42 U.S.C. § 1983; and the equal protection
and due process clauses of the United States Constitution;
he also alleges various common law torts. At bottom, he
challenges the Peace Corps’ conclusion that he is not
medically qualified for a position as an overseas
volunteer. Defendants have moved to dismiss on a variety of
grounds or for summary judgment.[fn1]

I. BACKGROUND

In 1992, plaintiff applied for a position as a Peace Corps
Volunteer (“PCV”). After plaintiffs 1992 application lapsed,
the Peace Corps requested that he file a new application
and he did so in August 1993. In this application,
plaintiff responded in the negative to all questions
regarding whether he had ever undergone psychiatric or
psychological counseling or treatment. Defs.’ Statement of
Material Facts, ¶¶ 1-3.

In February 1994, the Peace Corps notified plaintiff that
he was preliminarily eligible for a position. Three months
later, on May 11, 1994, plaintiff was determined to be
medically qualified for service. Defs.’ Statement of
Material Facts, ¶¶ 4, 5. Plaintiff received
two placement offers — Lesotho and Cameroon.
Plaintiff declined the first placement and accepted the
Cameroon placement on May 24, 1994. Id. at ¶ 8.

As part of the security and legal eligibility check, the
Peace Corps performed a National Agency Check (“NAC”),
without which no applicant is eligible. See 22 C.F.R.
§ 305.3.[fn2] In a NAC, a federal agency requests
that all other federal agencies provide any information
they have about certain persons. In the course of
plaintiff’s NAC, the Air Force discovered a 1979 report on
plaintiff prepared by the Chief of the Mental Health Clinic
at Tyndall Air Force Base. After plaintiff had been offered
the Cameroon placement and after he had accepted it, the
Peace Corps Office of Placement received this report and
forwarded to the Office of Medical Services. Defs.’
Statement of Material Facts, ¶¶ 9, 19-20; see
Administrative Record (“A.R.”) at 431.[fn3]

The 1979 Air Force report stated that plaintiff suffered
from a “[p]ersonality disorder, severe, mixed, with
hypomanic schizoid, and narcissistic aspects. Motivation
and thought pattern are mixed and disorganized.” A.R. at
557. The report labeled this disorder “chronic” and stated
that it revealed itself “through habitual patterns of
behavior which interfere with adequate adjustment and cause
conflict with the environment.” Id.

On the basis of this diagnosis, plaintiff was honorably
discharged from the Air Force on April 18, 1979. The
discharge was “coded” to prevent plaintiff’s reenlistment
or his enlistment in the reserves. Defs.’ Statement of
Material Facts, ¶¶ 15, 16; Pl.’s Response in
West Page 4 Opp’n to Defs.’ Mem. of Points and Authorities,
4-5, 14.[fn4]

On August 10, 1994, defendant Charlene Dawson, Peace Corps
Screening Nurse in the Office of Medical Services, forwarded
the 1979 report to defendant Marilyn Krasner, a Peace Corps
Mental Health Consultant. Defs.’ Statement of Material
Facts, ¶ 20. Based on her review of the record, Ms.
Krasner determined that plaintiff would be at an “extremely
high risk for symptom exacerbation” if he were to serve
overseas because of the “stressful environment potential”
in the Peace Corps and overseas. Id. at ¶ 21; A.R.
at 142. Defendant Michael Silvers, a Peace Corps Medical
Advisor, reviewed Ms. Krasner’s report, concurred with the
assessment and determined that plaintiff should be
medically disqualified. Defs.’ Statement of Material Facts,
¶ 23; A.R. at 122.

On August 10 and 11, 1994, defendant Dawson informed
plaintiff orally and in writing that he was no longer
considered medically qualified, effectively withdrawing the
Peace Corps’ offer to plaintiff. Defs.’ Statement of
Material Facts, ¶¶ 24, 25; A.R. at 155
(letter to plaintiff dated August 11, 1994). Ms. Dawson
also notified plaintiff of his right to appeal and informed
plaintiff that a current psychiatric evaluation would be
needed for an appeal. Defs.’ Statement of Material Facts,
¶¶ 26, 27; A.R. at 155. Plaintiff provided a
current psychiatric evaluation by November 1994. Defs.’
Statement of Material Facts, ¶ 28. The evaluation he
submitted was generally favorable. It stated:

The mental status examination revealed a thin, neatly
dressed, cooperative, talkative male. He [sic] mood was
euthymic and affect was anxious. He denied suicidal or
homicidal thought. . . . His thoughts were coherent and
appropriate. He was alert and oriented to person, place
and time. His memory and concentration were adequate, and
there were no cognitive deficits.

Mr. Taylor was found to be a well functioning gentleman
without evidence of a major psychiatric disorder. . . . He
demonstrates no family or work interrelational problems.

A.R. at 158-59 (letter from Dr. James Harold to Charlene
Dawson, dated November 7, 1994). The evaluation also
mentioned a previous evaluation for stress that had not
been disclosed on plaintiff’s application for a PCV
position. Id. Defendant Dawson requested information
regarding this prior evaluation but plaintiff supplied no
further documentation. Defs.’ Statement of Material Facts,
¶¶ 31-32.

In December 1994, defendant Dawson advised plaintiff that,
after further review of the information it had, the Peace
Corps had determined that he still was not medically
qualified for service. Defs.’ Statement of Material Facts,
¶ 33. Plaintiff requested then-Director of the Peace
Corps Carol Bellamy to render a decision in his case. Id.
at ¶ 34. Plaintiff provided no additional records.
Id. Defendant David Gootnick, Director of the Office of
Medical Services, reviewed plaintiff’s record and concluded
that based on plaintiff’s psychological record he was not
medically qualified and so notified plaintiff on February
16, 1995. Id. at ¶ 36.

Shortly after receiving the initial adverse decision in
August 1994, plaintiff initiated an administrative
complaint under the Peace Corps’ American Diversity
Program. Defs.’ Statement of Material Facts, ¶ 37.
After informal counseling, he filed a formal complaint in
April 1995. Id. at ¶ 38. His formal complaint
alleged discrimination based on race and perceived mental
disability. Id. at ¶ 39. An investigation was
conducted, and a report of investigation was issued;
plaintiff was afforded the opportunity to supplement the
report but did not do so. Id. at ¶¶ 40-41.

Plaintiff filed the instant suit on July 30, 1996,
alleging discrimination based on a record of and/or a
perception of a mental disability, discrimination based on
race, the denial of equal protection and due process and
violations of state and federal law.

II. MOTION TO DISMISS

The defendants whom plaintiff has sued in their individual
capacities — Dr. Gootnick, Dr. Silvers, Ms. Krasner
and Ms. Dawson — West Page 5 move to dismiss the
claims against them on a number of grounds.

First, defendants maintain that they were never served
properly with the summons and complaint in this case and
that this Court therefore is without personal jurisdiction
over them. See Rule 4, Fed.R.Civ.P. As defendants point
out, the burden of establishing personal jurisdiction is on
plaintiff. See Reuber v. United States, 750 F.2d 1039, 1052
(D.C. Cir. 1984). The only evidence of any service on
defendants is plaintiff’s claim that Mr. Burn Reist, the
Peace Corps’ Executive Secretary, and “[B] Spencer,” a
Peace Corps resident agent, signed for all defendants in
their individual and official capacities. Pl.’s Response in
Opp’n to Defs.’ Mot. to Dismiss at 6; Pl.’s Affidavit of
Service of Process-Return, Docket Nos. 6, 9 (Dec. 2, 1996);
see Defs.’ Mem. of Points and Authorities, Ex. 1.

It is established that a defendant’s service on his or her
employer or its agents is not sufficient to effect personal
service on an individual being sued in his or her personal
capacity. See Simpkins v. District of Columbia, 108 F.3d
366, 368-69 (D.C. Cir. 1997) (government employees sued
personally for money damages must be personally served
under Rule 4(e), Fed.R.Civ.P.); Navy. Marshall & Gordon,
P.C. v. United States International Development-Cooperation
Agency, 557 F. Supp. 484, 489-90 (D.D.C. 1983) (federal
agents sued in individual capacities for money damages must
be served personally and not by certified mail or service
upon offices in which defendants work); Betlyon v. Shy, 573
F. Supp. 1402, 1405 (D.Del. 1983) (same). Plaintiff has
failed to demonstrate that he has personally served the
defendants sued in their individual capacities.

Second, regardless of service, these defendants argue that
they are entitled to official immunity with respect to any
claim asserted against them in their individual capacities
because plaintiff’s allegations do not establish that their
conduct violated any clearly established statutory or
constitutional rights of which a reasonable person would
have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818,
102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The burden is
on plaintiff to demonstrate a prima facie case of
defendants’ knowledge of impropriety. Krohn v. United
States, 742 F.2d 24, 31-32 (1st Cir. 1984). With the
exception of the Rehabilitation Act and Title VII claims,
plaintiff has failed to demonstrate or even allege that
defendants have violated any clearly established right of
plaintiff or acted unreasonably in regard to the matter
about which plaintiff complains.

Third, as defendants point out, there can be no
Bivens-type remedy for constitutional violations against
individuals where Congress has created a comprehensive
statutory scheme to provide relief from the government. See
Carlson v. Green, 446 U.S. 14, 18-19, 100 S.Ct. 1468,
1471-72, 64 L.Ed.2d 15 (1980). In this action, plaintiff
essentially seeks relief for alleged employment
discrimination based on disability and race. Because
Congress has provided a comprehensive remedial scheme,
there is no legitimate Bivens claim before the Court. See
Brown v. General Services Admin., 425 U.S. 820, 834-35, 96
S.Ct. 1961, 1968-69, 48 L.Ed.2d 402 (1976) (Title VII is
comprehensive scheme); Rattner v. Bennett, 701 F. Supp. 7,
9 (D.D.C. 1988) (Rehabilitation Act is comprehensive
scheme). Furthermore, because Title VII provides the
exclusive judicial remedy for claims of discrimination in
federal employment and the Rehabilitation Act of 1973 is
the exclusive remedy for disability discrimination by the
government, plaintiff’s equal protection claim must also be
dismissed. See Ethnic Employees of Library of Congress v.
Boorstin, 751 F.2d 1405, 1415 (D.C. Cir. 1985) (Title VII
is exclusive remedy); Paegle v. Dep’t of the Interior, 813
F. Supp. 61, 66-67 (D.D.C. 1993) (Rehabilitation Act is
exclusive remedy).[fn5] West Page 6

Fourth, to the extent that plaintiff alleges state common
law torts, he must sue the United States, which is the only
proper defendant, and then may do so only to the extent
that Congress has waived sovereign immunity for suit in the
Federal Tort Claims Act. United States v. Smith, 499 U.S.
160, 166, 111 S.Ct. 1180, 1185, 113 L.Ed.2d 134 (1991); see
Simpkins v. District of Columbia, 108 F.3d at 371.[fn6]

For all of these reasons, all claims against the
defendants sued in their individual capacities, except for
the Rehabilitation Act and Title VII claims, must be
dismissed. With respect to the latter, while an individual
may be a nominal defendant, relief may be obtained against
the employer only. Gary v. Long, 59 F.3d 1391, 1399 (D.C.
Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 569, 133
L.Ed.2d 493 (1995); Hackley v. Roudebush, 520 F.2d 108, 115
n. 17 (D.C. Cir. 1975); Nelson-Cole v. Borg-Warner Security
Corp., 881 F. Supp. 71, 73-74 (D.D.C. 1995); Rattner v.
Bennett 701 F. Supp. at 9. Accordingly, all claims against
defendants, save Director Gearan, will be dismissed.

III. SUMMARY JUDGMENT STANDARD

Summary judgment shall be granted if the pleadings,
depositions, answers to interrogatories and admissions on
file, together with the affidavits or declarations, if
any, demonstrate that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.
Material facts are those that “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,
2510, 91 L.Ed.2d 202 (1986). When considering a summary
judgment motion, “the evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn
in his favor.” Id. at 255, 106 S.Ct. at 2513; see also
Washington Post Co. v. United States Dep’t of Health and
Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989); Ross
v. Runyon, 859 F. Supp. 15, 21-22 (D.D.C. 1994), aff’d,
1995 WL 791567 (D.C. Cir. 1995).

Even in employment discrimination cases, however, the
non-moving party’s opposition must consist of more than
mere unsupported allegations or denials and must be
supported by affidavits or other competent evidence setting
forth specific facts showing that there is a genuine issue
for trial. Rule 56(e), Fed.R.Civ.P.; Celotex Corp. v.
Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91
L.Ed.2d 265 (1986). The non-moving party is “required to
provide evidence that would permit a reasonable jury to
find” in its favor. Laningham v. United States Navy, 813
F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant’s
evidence is “merely colorable” or “not significantly
probative,” summary judgment may be granted. Anderson v.
Liberty Lobby, Inc., 477 U.S. at 249-50, 106 S.Ct. at
2510-11; see Johnson v. Digital Equipment Corp., 836 F.
Supp. 14, 15 (D.D.C. 1993) (in discrimination case,
plaintiff cannot rest on mere allegations of pretext but
must point to genuine issues of material fact in the
record).

IV. THE REHABILITATION ACT

The Rehabilitation Act provides that “[n]o otherwise
qualified individual . . . shall, solely by reason of his
[or her] handicap, be excluded from the participation in,
be denied the benefits of, or be subjected to
discrimination under any program or activity conducted by
any Executive agency. . . .” 29 U.S.C. § 794(a). The
Act defines an “individual with a disability” as “any
person who (i) has a physical or mental impairment which
substantially limits one or more of such person’s major
life activities, (ii) has a record of such an impairment,
or (iii) is regarded as having West Page 7 such an
impairment.” 29 U.S.C. § 706(8)(B). “Major life
activities” are illustrated by the regulations as
“functions, such as caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.” 45 C.F.R. § 84.3(j)(2)(ii);
see 29 C.F.R. § 1613.702(c), 1630.2(i).

In order to establish a prima facie case of discrimination
under the Act, a plaintiff must show (1) that plaintiff is
an individual with a disability within the meaning of the
Act, (2) that plaintiff is otherwise qualified for the job,
and (3) that plaintiff was adversely treated or denied the
benefits of his position solely because of his handicap.
Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir.
1993), cert. denied, 511 U.S. 1011, 114 S.Ct. 1386, 128
L.Ed.2d 61 (1994); see also Gaskins v. Runyon, 921 F. Supp.
779, 781 (D.D.C.), aff’d, 1994 WL 704080 (D.C. Cir. 1994),
cert. denied, ___ U.S. ___, 116 S.Ct. 106, 133 L.Ed.2d 60
(1995). The inquiry into whether a person is disabled is an
individualized one and must be determined on a case-by-case
basis. Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir.
1986).[fn7]

A. Individual with a Disability

Because both plaintiff and defendants deny that plaintiff
is disabled, Pl.’s Response in Opp’n to Defs.’ Mem. of
Points and Authorities at 13; Defs.’ Mem. of Points and
Authorities at 24-26, plaintiff must show either (a) that
he has a record of an impairment and that such impairment
substantially limits a major life activity, or (b) that
defendants regarded him as being “impaired” and that they
perceived that impairment as substantially limiting a major
life activity. 29 U.S.C. § 706(8)(B). In other
words, the tests for having a record of or being perceived
as disabled mirror the test for having an actual disability
in that only recorded or perceived impairments that
substantially limit a major life activity will bring
plaintiff under the Act.

The 1979 Air Force report creates a record of an
impairment, a record that will follow plaintiff any time he
applies for a federal job for which a NAC is performed.
There is no evidence, however, that plaintiff’s record of a
personality disorder has ever substantially prevented him
from performing any major life activity.[fn8] Since leaving
the Air Force 18 years ago, plaintiff attended law school,
became a member of the Maryland bar and now works as a
Legal Aid attorney in Baltimore. He has provided no
evidence of any adverse impacts in employment as a result
of his unsuccessful effort to obtain a position as an
overseas PCV. Nor has plaintiff shown that the alleged
personality disorder, if any, has substantially limited any
other major life activity. He therefore has not made out a
prima facie case of having a record of a disability.

An employer will be found to have “regarded” an employee
as disabled where the employer perceives or treats its
employee as substantially impaired in a major life
activity. See Andrews v. State of Ohio, 104 F.3d 803,
809-10 (6th Cir. 1997); Daley v. Koch, 892 F.2d 212, 215-16
(2d Cir. 1989). This category includes persons who have an
impairment that substantially limits a major life activity
“only as a result of the attitudes of others toward such
impairment.” 45 C.F.R. § 84.3(j)(2)(iv); see 29
C.F.R. § 1630.2(l)(2).[fn9] In order to show that
the West Page 8 Peace Corps regarded him as disabled,
plaintiff must demonstrate not only that it found him to be
unqualified to be an overseas PCV but also that it
considered his impairment “to foreclose generally the type
of employment involved.” Chandler v. City of Dallas, 2 F.3d
at 1392 (quoting Forrisi v. Bowen, 794 F.2d at 933-34).

Although defendants deny that plaintiff is disabled, it
cannot legitimately be disputed that the Peace Corps’
Office of Medical Services regarded plaintiff as impaired.
Defendants Krasner and Silvers disqualified plaintiff
because they determined that the symptoms of his previously
diagnosed personality disorder could be exacerbated by
overseas service:

Assessment by M. Krasner: . . . [B]ased on [the 1979 Air
Force mental health report] appl[icant] would be [at]
extremely high risk for symptoms to exacerbate in
stressful (potential) [Peace Corps] environment. . . . Dr.
Silver’s . . . Decision: not medically qualified for
[Peace Corps] service; no current evaluation needed.

A.R. at 121-22 (Office of Medical Services File); see A.R.
144.

Defendants maintain, however, that they did not perceive
plaintiff’s impairment as one that substantially limited one
or more of plaintiff’s major life activities and therefore
plaintiff cannot qualify as an individual with a disability
under the Act. Defendants point out that plaintiff was kept
only from a narrow range of employment — overseas
PCV — and that such a narrow limitation is not
enough to justify the Court in concluding that defendants
treated plaintiff as disabled. The record before the Court
reflects, however, that defendants were deeply troubled by
plaintiff’s disorder as described in the 1979 Air Force
report.

Defendant Silvers declared:

[B]ased on the Air Force diagnosis of Mr. Jeffery Taylor
of February 9, 1979, he would not be medically qualified
for Peace Corps Service. . . . A diagnosis of personality
disorder is something a person carries with him or her
throughout life. Some people manage the disorder while
others do not.

. . . Someone with that type of disorder [the Air Force
diagnosis of mixed personality disorder] might not know he
had it and would not admit he had it.

* * * * * *