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Arnett v. Brownlee

July 26, 2005

MARION J. ARNETT PLAINTIFF
v.
R.L. BROWNLEE, ACTING SECRETARY, DEPARTMENT OF THE ARMY DEFENDANT



The opinion of the court was delivered by: J. Leon Holmes United States District Judge

OPINION AND ORDER

Plaintiff Marion J. Arnett, a former civilian employee of the United States Army, Little Rock District Corps of Engineers ("the Corps"), brought this employment discrimination action against the United States Army ("the Army"), claiming that he was refused a reasonable accommodation for his disability, retaliated against for engaging in protected activity, and terminated because of disability and age in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq., Section 501 and 505 of the Rehabilitation Act, 29 U.S.C. § 701 et seq., Title I and V of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. The Army moves for summary judgment on the disability and age discrimination claims (Docket #15). The Court hereby GRANTS that motion in its entirety.*fn1

I. Summary Judgment Standard

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56©; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In deciding a motion for summary judgment, the Court views the facts in the light most favorable to non-moving party and draws all inferences in his favor, keeping in mind that "summary judgment seldom should be granted in discrimination cases where inferences are often the basis of the claim." Duncan v. Delta Consol. Indus., Inc., 371 F.3d 1020, 1024 (8th Cir. 2004) (citing Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir. 1999)). See also Bassett v. City of Minneapolis, 211 F.3d 1097, 1099 (8th Cir. 2000). If the evidence would allow a reasonable jury to return a verdict for the non-moving party, summary judgment should be denied. Derickson v. Fidelity Life Assoc., 77 F.3d 263, 264 (8th Cir. 1996).

II. The Facts Viewed in the Light Most Favorable to Arnett

On June 21, 1999, the Corps hired Arnett, then aged 44, to work as a Realty Specialist, a GS-9 developmental position with a full performance level of GS-11.*fn2 Arnett was hired as a term employee, meaning that his first year of employment was a trial period during which the Corps could terminate him at any time as long as it abided by appropriate notification regulations. See 5 C.F.R. §§ 316.301 - 304. By regulation, the Corps was to utilize the trial period as fully as possible to determine the fitness of an employee; the Corps was also to terminate an employee during this period if he failed to demonstrate fully his qualifications for continued employment. 5 C.F.R. 315.803.*fn3

As a Realty Specialist, Arnett negotiated real estate acquisitions for government projects and prepared associated documentation. In that function, Arnett was required to communicate or contribute to communication "by mail, by phone, and in person with landowners at all scales and levels of society (e.g., farmers, business executives, county and state officials, school board members, high ranking military officers, attorneys)," as well with legal representatives within the Corps, the Department of Justice, and the United States Attorney's Office. Internally, Arnett was also required to complete Negotiator's Reports, consisting of narrative summaries of his actions during the negotiation, resulting recommendations, and supporting mathematical entries and totals. Arnett's first level, or immediate, supervisor and performance rater was Anthony Ragar, the Assistant Chief of the Real Estate division. Arnett's second level supervisor and senior rater was Billy Cabe, the Chief of the Real Estate division. Arnett's team leader was Patricia Bennett, who assigned Arnett's daily work but was not considered a supervisor.

Arnett came to the Corps with no knowledge or belief that he suffered from dyslexia or other learning disability. Arnett knew that he had difficulty writing, often transposing letters and misspelling words, but, according to Arnett, the problem had never interfered with his ability to perform any job requiring him to do so. In past positions,*fn4 Arnett's supervisors evaluated his writing on content, not on spelling, punctuation, or grammar. Arnett testified that, approximately one month into his employment, Bennett told him that she thought he had dyslexia because it reflected itself in his writing. Bennett told Arnett what she knew about dyslexia and later gave him literature to read on the subject. Arnett apparently adopted Bennett's belief that he had dyslexia. Despite Bennett's suggestion to do so, however, Arnett did not seek medical diagnosis of the problem at his own expense or the Corps's. Instead, he asked Bennett if she would identify mistakes on his paperwork and return it to him for corrections so that he could learn from his mistakes.*fn5 The mistakes Bennett identified in his writing varied from transposed letters, punctuation errors, grammatical mistakes, and missed spacing, to content-related mistakes involving unique Corps terminology with which Arnett was not familiar. According to Arnett, Bennett never told him that he was performing poorly. When asked whether he needed to perform better, Bennett dismissed the notion, telling Arnett, "you just transpose a few letters, there's nothing bad about that, happens all the time." Ragar, too, told Arnett that he was doing a good job up until April.

In January 2000, Arnett turned in a Negotiator's Report to Ragar that Bennett had not corrected. Upon reviewing it, Ragar was "amazed at how poor the writing was." Thinking that Arnett had rushed in preparing the report, he consulted with Bennett, only to find out that the report was typical of the quality she received from Arnett. Ragar asked Bennett to keep copies of Arnett's draft reports in the future. Ragar testified that review of these subsequent reports caused him deep concern. Overlooking stylistic errors, including Arnett's non-usage or misusage of Corps terminology, Ragar believed that the content could have been clearer, the spelling was somewhat lacking, the grammar was seriously lacking, and the overall quality fell below Corps standards. Ragar was most concerned with the grammar-related problems reflected in both Arnett's oral and written communication. According to Ragar, no similarly situated employee exhibited such problems. Ragar testified that Arnett would "never be the professional person we needed to go out and talk to landowners . . . . He was not functioning even at the nine level, much less [at] . . . a higher level." Ragar informed Cabe of the problems and recommended that Cabe terminate Arnett before the end of his probationary term.

On April18, Ragar informed Arnett that management intended to terminate him before the end of his probationary term. Arnett told Ragar that Bennett said that he had dyslexia and asked him if the Corps could provide him training in areas they felt he was deficient. Ragar responded that Arnett's writing was probably on a fifth or sixth grade level and that it was going to take real remediation to bring it up to par, the kind of long-term remedial training that the Corps did not have the luxury of offering to a probationary employee. Probationary employees, said Ragar, were required to show competent performance within one year. Arnett's year was up at the end of June. Arnett testified that Ragar told him that his poor grammar skills were probably the result of bad habits picked up at an early age or in the military.

Some time after this, Cabe, Ragar, and Arnett met and Cabe told Arnett that he was terminating him, with formal notice to follow. Arnett testified that Cabe told him that he was being terminated because of his poor communication skills and because he had applied for a GS-11 appraiser position in early April. Cabe asserts that he terminated Arnett solely because of his lack of communication skills, which he had personally observed and received complaints of from Ragar and Bennett. After receiving this information, Arnett contacted Corps's Equal Employment Opportunity personnel and began discussing related matters with them. Some time after, Arnett received a performance appraisal indicating an overall performance rating of "unsuccessful," the lowest of five possible rating levels, based on Arnett's failure to meet the standard in "communication."

On May 3, 2000, Cabe sent Arnett a letter formalizing the separation and announcing the effective date of June 2, 2000. The letter stated that Arnett was being terminated based on his "poor communication skills, both oral and written." The letter went on to explain that the purpose of the one-year trial period under 5 C.F.R. § 316.304 was to determine whether an employee possessed the skills, conduct, performance, and character traits necessary for continued employment and that Arnett had not displayed these characteristics.

After notice of termination, Arnett saw Dr. Glen H. Lowitz, a clinical psychologist, to determine whether he had dyslexia. Dr. Lowitz prepared a psychological evaluation report on May 18, 2000, summarizing Arnett's test results in the Weschler Adult Intelligence Scale - III and the Weschler Individual Achievement Test and concluding that Arnett "manifests an atypical developmental learning disorder (learning disability) . . . with impact upon reading and spelling." Dr. Lowitz recommended that Arnett enroll in adult reading and spelling classes, practice reading aloud to family members, and use reading and spelling aids to combine auditory, visual, and tactile input. Arnett presented Dr. Lowitz's report to Corps officials some time prior to his effective termination date.

Arnett was effectively terminated on June 2, 2000, after which he filed timely claims of retaliation and ...


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