Joseph Rutledge v. Illinois Department of Childre , 785 F.3d 258 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1028
JOSEPH RUTLEDGE,
Plaintiff-Appellant,
v.
ILLINOIS DEPARTMENT OF HUMAN SERVICES, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 14 C 8943 — Rebecca R. Pallmeyer, Judge.
____________________
SUBMITTED APRIL 14, 2015 — DECIDED MAY 5, 2015
____________________
Before POSNER, FLAUM, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. The plaintiff, a military veteran
who claims to have serious psychiatric problems, was fired
by his employer, the Illinois Department of Human Services.
He sued the Department, alleging that it had fired him in vi-
olation of section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794(a), which forbids discrimination on the basis of
disability by agencies, such as the Illinois Department, that
receive federal money. The suit makes other claims, and
2 No. 15-1028
names other defendants, as well—indeed the first defendant
named in his complaint was the Illinois Department of Chil-
dren and Family Services, not the Department of Human
Services. But the only claim that the plaintiff is pursuing on
appeal is his disability claim under the Rehabilitation Act.
The district judge dismissed the entire suit without wait-
ing for a motion or answer by the defendants, on the alterna-
tive grounds that the plaintiff had failed to state a claim for
which the law could provide a remedy and that his claim
was untimely. The Department of Human Services was not
served with process and hasn’t responded to the suit in ei-
ther the district court or this court. The facts recited in this
opinion (other than those concerning the plaintiff’s disabil-
ity, which are substantiated by medical and official records)
are therefore merely allegations made in the complaint as
subsequently amplified in a document that the plaintiff filed
in response to the judge’s order to show cause why the com-
plaint should not be dismissed for failure to state a claim.
We shall treat all the plaintiff’s allegations as true for the
purpose of deciding whether, if they are true, the complaint
should not have been dismissed before the Department re-
sponded to it.
The plaintiff has suffered from post-traumatic stress dis-
order ever since his service in the Vietnam War, and has
been diagnosed with schizophrenia, bipolar disorder, and
depression. In 2004 the Department of Veterans Affairs de-
clared him 100 percent disabled. Despite that, the Illinois
Department of Human Services hired him that year as a
“certified nurse assistant residential case worker” and as-
signed him to a residential facility operated by the Depart-
ment for children and young adults with severe physical
No. 15-1028 3
disabilities. Two years later, he claims, a young resident of
the facility, angry about an order that he gave the resident
and joined by members of the resident’s family, assaulted
the plaintiff with an iron pipe and baseball bats. The De-
partment suspended him on the complaint of the resident’s
family and may or may not (as we’ll see) have subsequently
discharged him on the basis of an investigation by the Illi-
nois Department of Children and Family Services that re-
sulted in a preliminary finding that he had committed child
abuse and neglect. The finding of child abuse was later re-
tracted, however, and it was after that retraction, in 2014,
that he sued.
The district judge’s first ground of dismissal was that the
complaint failed to state “a basis for the conclusion that …
disability had anything to do with the discharge decision.”
That’s incorrect. The plaintiff alleges that his discharge os-
tensibly for neglect was actually motivated by his being dis-
abled—alleges in other words that neglect was a pretext.
The judge’s second ground was that the finding by the
Department of Veterans Affairs that the plaintiff was 100
percent disabled meant that he “was unable to perform his
job [for the Illinois Department of Human Services] as a res-
idential case worker, with or without accommodation, at any
time after 2004” (the date of the VA’s determination). That’s
wrong too. A veteran is deemed totally disabled if he suffers
from an impairment that would “render it impossible for the
average person to follow a substantially gainful occupation,”
even if the veteran applying for benefits is able, through ex-
ceptional ability or exertion, to work full time. 38 C.F.R.
§ 4.15 (emphasis added); Veterans Benefits Manual
§§ 3.1.1.2, 5.1.3 (Barton F. Stichman et al., eds., 2014 ed.).
4 No. 15-1028
There is no paradox in a person deemed totally disabled by
the Social Security Administration or the Department of Vet-
erans Affairs or some other agency nevertheless wanting,
finding, and holding a job, whether out of desperation or by
extraordinary effort or because his employer feels sorry for
him or because the agency that found him totally disabled
was mistaken in thinking that his physical or mental ail-
ments, even if very serious, were totally disabling.
The Illinois Department of Human Services must have
believed, despite the plaintiff’s VA disability rating and ex-
tensive history of mental illness, that he could do the job
they hired him for. Why else would they have hired him? As
we noted recently, “A disabled person may want to work,
may seek work, and in some cases may land work. We’ve
noted cases in which although the claimant is not only work-
ing but also earning a decent wage he really is permanently
disabled from engaging in gainful activity. Maybe his boss
feels desperately sorry for him and is retaining him on the
payroll even though he is incapable of working. That act of
charity ought not be punished by denying the employee
benefits and thus placing pressure on the employer to retain
an unproductive employee indefinitely. Maybe a seriously
disabled worker is able to work only by dint of his extraor-
dinary determination and the extraordinary assistance ex-
tended to him by kindly fellow workers.” Voigt v. Colvin, 781
F.3d 871, 876–77 (7th Cir. 2015), quoting Jones v. Shalala, 21
F.3d 191, 192 (7th Cir. 1994) (citations omitted). These com-
ments were made, moreover, without reference to an em-
ployer’s duty to provide a “reasonable accommodation”
necessary to enable a disabled person to work. 42 U.S.C.
§ 12112(b)(5)(A); Brumfield v. City of Chicago, 735 F.3d 619,
630 (7th Cir. 2013); Wisconsin Community Services, Inc. v. City
No. 15-1028 5
of Milwaukee, 465 F.3d 737, 747 (7th Cir. 2006). For all we
know, the Department of Human Services either made such
an accommodation to enable the plaintiff to work as an assis-
tant nurse or didn’t think he needed it in order to be able to
do that work.
For completeness we note that the Social Security Ad-
ministration, unlike the Veterans Administration, will cut off
all disability benefits if a person whom it had determined to
be totally disabled obtains “substantial gainful employ-
ment.” Office of Social Security, 2015 Redbook, “When Will
Your Benefits Stop?” www.ssa.gov/redbook/eng/returning-
to-work.htm#a0=2 (visited April 30, 2015). We don’t know,
however, whether the Administration would classify as sub-
stantial gainful employment a job in which the recipient of
social security disability benefits receives the kind of chari-
table indulgence by employer or coworkers discussed in our
Voigt and Jones opinions.
We turn to whether the plaintiff’s claim is barred by Illi-
nois’ two-year statute of limitations for personal-injury suits,
735 ILCS 5/13-202, which we’ve held—for example in Conley
v. Village of Bedford Park, 215 F.3d 703, 710 n. 5 (7th Cir.
2000)—to apply to suits filed in Illinois under section 504 of
the Rehabilitation Act. The plaintiff sued eight years after his
suspension. But it is unclear whether he was discharged un-
til shortly before he sued—indeed he may not yet have been
formally discharged though we doubt that he’s any longer
receiving a salary.
Much of the eight-year period was consumed by an in-
vestigation by the Illinois Department of Children and Fami-
ly Services that ended in 2014 with the dismissal of the child-
abuse charge against the plaintiff. We don’t know when the
6 No. 15-1028
Department of Human Services changed his suspension to a
discharge. But even if that happened more than two years
before he sued, the statute of limitations may have been
tolled until shortly (or at least within two years) before he
was cleared of the child-abuse charge by the investigation
that the Department of Children and Family Services con-
ducted, and administrative review of his employment status
was therefore complete. In the case of many Illinois state
employees, discharge requires a hearing, written approval
by the director of the employing agency, and judicial review
of the director’s division. Ill. Administration Code, title 80,
§§ 1.300, 302.705, 302.720, 302.750; Swinkle v. Illinois Civil Ser-
vice Commission, 903 N.E.2d 746, 748 (Ill. App. 2009); Illinois
Department of Revenue v. Illinois Civil Service Commission, 827
N.E.2d 960, 974–75 (Ill. App. 2005). So it can take a long time
for a discharge to ripen, though we don’t know whether
these provisions were applicable to this plaintiff. That is an
issue for the district court to explore on remand.
We affirm the dismissal of all the plaintiff’s claims except
his claim under the Rehabilitation Act, and all the defend-
ants other than the Illinois Department of Human Services,
but we reverse the dismissal of that claim and that defendant
and remand for further proceedings consistent with this
opinion. We express no view of the ultimate merit or timeli-
ness of the Rehabilitation Act claim.
Because the defendant hasn’t been served with process,
the district judge should direct that the acting secretary of
the Illinois Department of Human Services be served. And
because the issues remaining in play are factually and legal-
ly complex we suggest that the district judge consider re-
No. 15-1028 7
cruiting counsel for the plaintiff, who thus far has been pro-
ceeding pro se.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.