Schneider v. United States Postal Service et al

Filing 57

ORDER signed by Judge Brett H Ludwig on 1/28/22 denying 27 Motion for Summary Judgment; granting in part and denying in part 36 Motion for Summary Judgment. Summary judgment is granted on Counts I, III, and IV. Summary judgment is denied on Count II. (cc: all counsel)(MP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DANIEL R SCHNEIDER,
Plaintiff,

Case No. 16-cv-0013-bhl

v.
UNITED STATES POSTAL SERVICE,
MEGAN J BRENNAN,
Defendants.

DECISION AND ORDER
Plaintiff Daniel Schneider, a former United States Postal Service (USPS) employee, suffers
from major depression and anxiety disorder. In this long-pending case, he brings four claims
against the USPS, all related to his former employer’s alleged mishandling of his mental health
needs.

Schneider asserts: (1) failure-to-accommodate, (2) retaliation, and (3) constructive

discharge claims under the Rehabilitation Act of 1973, and (4) a claim for improper disclosure
under the Privacy Act of 1974. The USPS denies any liability. Both parties have moved for
summary judgment. Because the record is insufficient to permit a reasonable jury to find in
Schneider’s favor on his failure-to-accommodate, constructive discharge, and improper disclosure
claims, the Court will grant Defendants’ motion and deny Schneider’s motion as to those claims.
Questions of fact persist with respect to Schneider’s retaliation claim, however, so both sides’
motions will be denied on that count.
FACTUAL BACKGROUND 1
Daniel R. Schneider started working for the United States Postal Service in July 1988 as a
city carrier. (ECF No. 35 at 1.) From August 2009 to November 2011, he worked as a mailing

These facts are drawn from admitted allegations in the complaint (ECF No. 1) as well as the proposed statements
of undisputed facts (and responses) filed by the parties. (ECF Nos. 28, 35, 37, 43, & 45.) Disputed facts are viewed
in the light most favorable to the non-moving party.

1

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solutions specialist, and, from November 2011 until his disability retirement in 2013, he was a
supervisor of customer service. (Id.)
In 2001, a doctor diagnosed Schneider with major depression and anxiety disorder and
placed him on medication. (ECF No. 1 at 3.) Schneider claims his symptoms peaked in response
to work and home-related stressors and, at their most debilitating, rendered him entirely unable to
work. (Id.) Though his depression waxed and waned over the years, Schneider’s mental health
eroded substantially starting in 2010. (Id. at 4.) Over a period of several months, he was twice
granted leave under the Family and Medical Leave Act to address his depression, first in September
of 2010 and again in February 2011. (ECF No. 35 at 2-3.) During this same period, Schneider
received two warning letters for inadequate performance. (ECF No. 43 at 2-3.)
On October 3, 2011, with his depression still not under control, Schneider asked to switch
to a less stressful position in postal service operations. (ECF No. 35 at 4.) The following month,
he voluntarily accepted a demotion to the role of supervisor of customer service at the Franklin,
Wisconsin post office, where Maria Robinson served as his direct manager and Postmaster Susan
Lierman was his supervisor. (Id. at 5, 6, 8.) Schneider reports that he did not intend to work in
Franklin for more than a year because it required a daily 80-mile commute to and from his home
near Madison, Wisconsin. (ECF No. 1 at 5; ECF No. 43 at 4-5.) This proved prescient, because,
although his new job was less demanding, the long commute exacerbated his sleep difficulties and
depression. (ECF No. 1 at 5.) Despite these issues, the record does not show that Schneider ever
provided the USPS with a doctor’s note or other medical documentation indicating a need to work
closer to home. (ECF No. 43 at 5.)
In January 2012, just a few months after transferring, Schneider learned of vacant, unposted
supervisor positions in Madison. (ECF No. 35 at 6.) He contacted Acting Madison Postmaster
Diane LeVeque, seeking a lateral transfer to one of those positions as a way to accommodate his
depression. (Id.) Unfortunately for Schneider, the vacant supervisor positions were being held
open for employees impacted by impending postal facility consolidations, (ECF No. 38-11 at 10;
ECF No. 38-6 at 21:4-8 & 116:15-22), and Schneider was not one of those employees. He
nevertheless pursued a transfer and, during an impromptu phone interview in February 2012,
explained his condition and reason for seeking a move back to Madison. (ECF No. 42-1 at 9.)
LeVeque ultimately denied his request. (ECF No. 43 at 8.)

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After missing out on the supervisor transfers, Schneider began applying for other positions
that were posted and based in Madison. (ECF No. 1 at 5-11.) On each occasion, USPS supervisor
Brian DeValk rejected Schneider’s application. In March 2012, Schneider applied for two
openings in Madison, one as a shipping solutions specialist and the other a mailing solutions
specialist. (Id. at 5.) According to DeValk, Schneider lacked two of the necessary Knowledge,
Skills, and Abilities (KSA) requirements for the shipping specialist position, which instead went
to Steven Placek, a candidate who met all the KSA requirements. (ECF No. 43 at 11-14.) DeValk
also rejected Schneider for the mailing solutions specialist position. This rejection was allegedly
based on missing KSAs and Schneider’s disciplinary and performance history. (Id. at 16-17.) On
April 4, 2012, Schneider applied for a business solutions specialist position in Madison. (ECF No.
1 at 6.) An independent review board studied Schneider’s qualifications and recommended him
for an interview, but, in mid-June 2012, DeValk again rejected Schneider’s application, this time
based on unsatisfactory interview answers and his disciplinary and performance history. (ECF
No. 43 at 17, 19-22.)
On June 13, 2012, while his business solutions application was still under consideration,
Schneider filed an EEO case alleging failure to accommodate and retaliation. (ECF No. 35 at 9.)
Two weeks later, Schneider finally presented his doctor’s work restrictions to Postmaster Lierman
and formally requested an accommodation. (Id. at 9-10.) Lierman referred him to the agency’s
employee assistance program. (Id. at 10.) Then, on August 7, 2012, Lierman met with Schneider
and discussed his proposed accommodations, including his formal requests for family medical
leave to allow for medical appointments; time off during depressive episodes; and, based on his
health provider’s restrictions, eight-hour days, two consecutive days off per week, and a regular
schedule. (ECF No. 1 at 7.) As Lierman explained in an August 8 email to Nurse Judith Yerdon,
USPS granted these requested accommodations. (ECF No. 27-2 at 39.)
Around this same time, Schneider applied for yet another business solutions specialist
position in Madison. (ECF No. 43 at 23.) On September 13, 2012, while that application was
pending, Schneider claims Lierman called him into her office, told him no one else at USPS was
going to hire him, and referred to him as a “piece of shit.” (ECF No. 35 at 17.) Schneider’s
description of Lierman’s vulgarity during this meeting is consistent with a series of offensive
emails unearthed in discovery. In email chains dating from 2011-2013, Lierman, Robinson, and
DeValk made a litany of derogatory comments about Schneider to various other postal employees.

Case 2:16-cv-00013-BHL Filed 01/28/22 Page 3 of 19 Document 57

(ECF No. 35.) The remarks ranged from the relatively tame: “I can’t stand this guy,” (Id. at 30),
to the crude: “he’s f**king nuts.” (Id. at 19.) Schneider was not a party to any of these threads
and, other than the statements in Lierman’s office, none of these three USPS employees’ comments
were made to him directly. Ultimately, the USPS included Schneider among three candidates
interviewed for the business solutions position. (ECF No. 43 at 23.) But DeValk again rejected
Schneider’s candidacy and instead hired Tim Peterson, who, according to DeValk, had the highest
cumulative application and interview scores. (ECF No. 46 at 1-3.)
Schneider later submitted a fifth and final job application to DeValk, seeking a mailing
solutions specialist position in Madison. (ECF No. 43 at 27.) Schneider was one of two candidates
interviewed for the role, but on January 17, 2013, DeValk hired the other applicant, Mary Zientara,
because, according to DeValk, she had the higher interview scores and no negative performance
history. (Id. at 27-29.)
Between September 2012 and May 2013, Schneider contacted various USPS higher ups,
asking to get closer to home and requesting additional accommodations beyond those granted to
him in August of 2012. (ECF No. 35 at 28-32.) When nothing came of those inquiries, Schneider
chose to pursue retirement. On May 24, 2013, the Human Resources Shared Service Center
(HRSSC) received Schneider’s disability retirement application. (Id. at 32.) On October 7, 2013,
USPS closed Schneider’s reasonable accommodation request after his doctor designated him unfit
to work at all. (Id. at 38.) On October 25, 2013, Schneider reported to an EEO investigator: “I
was forced into an early disability retirement because of the UPS failure to provide a reasonable
accommodation and retaliation for enforcing my rights under FMLA and ADA.” (Id. at 39.)
SUMMARY JUDGMENT STANDARD
“Summary judgment is appropriate where the admissible evidence reveals no genuine issue
of any material fact.” Sweatt v. Union Pac. R. Co., 796 F.3d 701, 707 (7th Cir. 2015) (citing Fed.
R. Civ. P. 56(c)). Material facts are those under the applicable substantive law that “might affect
the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of
“material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. If the parties assert different views of the facts, the Court must view
the record in the light most favorable to the nonmoving party. E.E.O.C. v. Sears, Roebuck & Co.,
233 F.3d 432, 437 (7th Cir. 2000).

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ANALYSIS
Schneider brings four claims against the USPS: failure to accommodate, retaliation,
constructive discharge, and improper disclosure. The first three arise under the Rehabilitation Act
of 1973 and the fourth is brought pursuant to the Privacy Act of 1974. Based on the summary
judgment record, a reasonable jury could find for Schneider only on the retaliation claim.
Accordingly, Schneider’s motion for summary judgment will be denied in its entirety, and the
USPS’s motion will be granted in part and denied in part, with only Schneider’s retaliation claim
remaining for trial.
I.

Schneider Cannot Establish a Prima Facie Case on His Failure-to-Accommodate
Claim.
Schneider bases his failure-to-accommodate claim on the USPS’s failure to approve his

January 2012 request for a lateral transfer to Madison. (ECF No. 29 at 6.) To establish a prima
facie case under the Rehabilitation Act, Schneider must show: (1) he is a qualified individual with
a disability; (2) the USPS was aware of his disability; and (3) the USPS failed to reasonably
accommodate his disability. See Sansone v. Brennan, 917 F.3d 975, 979 (7th Cir. 2019). While
Schneider has marshalled sufficient evidence to create jury issues on the first two elements, he has
failed to so on the third. Indeed, despite ample time for discovery, Schneider has not sufficiently
identified a reasonable accommodation that the USPS denied him. This dooms his failure-toaccommodate claim.
A. A Reasonable Jury Could Find that Schneider is a Qualified Individual with a
Disability and that the USPS Was Aware of His Disability.
So long as it substantially limits one or more major life activities, 29 C.F.R. §1630.2(g),
depression can constitute a disability under the Rehabilitation Act. See Ogborn v. United Food
& Com. Workers Union, Loc. No. 881, 305 F.3d 763, 767 (7th Cir. 2002) (observing “[m]ajor
depression can constitute a disability under the ADA”). 2 Major life activities include working. 29
C.F.R. §1630.2(i)(1)(i). Over the years, Schneider’s major depression marred both his job
performance and attendance. (ECF No. 1 at 3.) Thus, Schneider easily provides sufficient
evidence that his depression rendered him an individual with a disability.

Title II of the ADA was modeled on the Rehabilitation Act, which means that standards applicable to one are
applicable to the other. Washington v. Indiana High School Athletic Ass’n, Inc., 181 F.3d 840, 845 n. 6 (7th Cir.
1999).
2

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Whether Schneider is a “qualified individual” with a disability is a closer question. Under
the applicable two-part test, Schneider must show both that he satisfied the prerequisites for his
position and could perform the position’s essential functions, with or without a reasonable
accommodation. Stern v. St. Anthony’s Health Center, 788 F.3d 276, 285 (7th Cir. 2015). Given
his 20 years of experience at the USPS, a jury could readily find that Schneider satisfied the
prerequisites for the supervisor positions in Madison. But his ability to perform the essential
functions of that job, with or without an accommodation, is less clear.
The Seventh Circuit has confirmed that “[s]potty attendance by itself may show lack of
qualification.” Byrne v. Avon Products, Inc., 328 F.3d 379, 381 (7th Cir. 2003). Calling
Schneider’s attendance “spotty” would be generous. From July 2012 to June 2013, he reported
for work on only 71 out of a possible 250 workdays, a woeful 28% attendance rate. (ECF No. 37
at 20-21.)

In addition, between 2010 and 2012, he received multiple warning letters for

unproductivity and insubordination. (ECF No. 28 at 2, 7, 10, 16-19, & 21.) But Schneider’s
disability is depression, which is not akin to a permanent physical limitation. See Majors v.
General Elec. Co., 714 F.3d 527 (7th Cir. 2013) (holding that an employee who could not
physically lift 20 pounds could not perform the essential functions of her job because her only
proposed accommodation was to have someone else lift the weight for her). At the risk of
expressing obvious tautology, an employee who cannot physically lift 20 pounds cannot physically
lift 20 pounds. This is true regardless of how supportive or accommodating her employer might
be. By contrast, the interplay between employer and employee can impact how the specter of
depression manifests. Failure to engage in an interactive process cannot make an employee who
cannot physically lift 20 pounds any worse at lifting the weight, but it could exacerbate a depressed
employee’s depression.

So even if the disabilities’ practical effects are the same—neither

employee can lift 20 pounds—the depressed employee stands on different ground because his
inability to lift the weight may have been caused, and may be ameliorated, by his employer’s
behavior. It is unclear whether Schneider’s performance issues followed ipso facto from his
depression or if they were the result of the USPS’s failure to accommodate him. Because the
record indicates Schneider did satisfactorily perform the essential functions of his job prior to
2010, the “essential functions” issue is a triable question of fact. See Haschmann v. Time Warner
Ent. Co., 151 F.3d 591, 599-600 (7th Cir. 1998) (holding that a jury was entitled to find that “the
disabling aspect of a disability is, precisely, an intermittent manifestation of the disability, rather

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than the underlying impairment”) (quoting Vande Zande v. Wisconsin Dep’t of Admin., 44 F.3d
538, 544 (7th Cir. 1995)). At summary judgment, that is enough to survive.
The record also supports Schneider’s contention that the USPS was aware of his disability.
Major depression is not a disability that readily announces itself. See Bultemeyer v. Fort Wayne
Cmty. Schools, 100 F.3d 1281, 1285 (7th Cir. 1996) (“In a case involving an employee with mental
illness . . . [i]t is crucial that the employer be aware of the difficulties[.]”); Hedberg v. Indiana Bell
Tel. Co., Inc., 47 F.3d 928, 932 (7th Cir. 1995) (“an employer cannot be liable under the ADA . .
. when it indisputably had no knowledge of the disability”). When battling invisible diseases and
disorders, it is incumbent on the employee to inform the employer of his imperceptible limitations.
The employee may not remain silent and then sue the employer for failing to intuit a disability out
of thin air. See Crandall v. Paralyzed Veterans of America, 146 F.3d 894, 898 (D.C. Cir. 1998).
While USPS alleges that Schneider failed to make LeVeque aware of his disability, the
record paints a very different picture. Far from holding his condition in confidence, Schneider
swears he informed LeVeque of his depression and that his transfer application was meant as a
request for accommodation. (ECF No. 42-1 at 9.) He also insists this occurred before LeVeque
denied the proposed Madison transfer. (Id.) While LeVeque rejects this fact pattern, (ECF No. 35
at 6), as she is certainly entitled, the veracity of her denial is not for the Court to decide at summary
judgment. The record contains sufficient evidence for a jury to find that she was well aware of
Schneider’s depression when she rejected his transfer request. Therefore, LeVeque cannot prevail
at summary judgment on lack of knowledge grounds.
B. Schneider’s Failure-to-Accommodate Claim Fails Because He Has Not Identified
Any Actually Available Accommodations that USPS Denied Him.
When a qualified individual with a disability makes his or her employer aware of the
disability, the employer has a duty to make reasonable accommodations for the disability. Dey v.
Milwaukee Forge, 957 F. Supp. 1043, 1050 (E.D. Wis. 1996) (citing Miranda v. Wisconsin Power
& Light Co., 91 F.3d 1011, 1016 (7th Cir. 1996)). A “reasonable accommodation” may include
measures like “job restructuring; part-time or modified work schedules; [or] reassignment to a
vacant position. . . .” 29 C.F.R. §1630.2(o)(2)(ii). The process of identifying and implementing
an accommodation begins with the employee “informing his employer of his disability” which
triggers the employer’s duty. Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir.
1998) (quoting Beck v. University of Wis. Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir.1996)). The

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employer must then “engage with the employee in an ‘interactive process' to determine the
appropriate accommodation under the circumstances.” Bombard v. Fort Wayne Newspapers, Inc.,
92 F.3d 560, 563 (7th Cir.1996). Both employee and employer have obligations to engage in this
process in good faith, and an employer who acts in bad faith or halfheartedly engages in the
interactive process may be held liable. Beck, 75 F.3d at 1135. Moreover, even if an employee’s
proposed accommodation would be impractical or ineffective, the employer has the affirmative
obligation to continue to strive for a workable accommodation. Gile v. United Airlines, Inc., 213
F.3d 365, 373 (7th Cir. 2000).
The USPS asserts it is entitled to summary judgment because no jury could find that it
failed to engage in the required interactive process. It cites evidence that it engaged with Schneider
and acceded to at least some of his accommodation requests. In particular, the USPS notes that
Lierman implemented Schneider’s doctor’s recommended changes to his schedule following an
August 2012 meeting. (ECF No. 27-2 at 39.) This responsiveness, while legally appropriate, does
not vitiate all potential liability arising from LeVeque’s actions. An employer has a duty to
“engage in a flexible, interactive process with the disabled employee needing accommodation so
that, together, they might identify the employee’s precise limitations and discuss accommodations
which might enable the employee to continue working.” Hendricks-Robinson, 154 F.3d at 693.
The record does not establish that LeVeque did this.

She denied Schneider’s proposed

accommodation and, at least allegedly, took no further action to identify an alternative, reasonable
way to accommodate his disability. The hypothetical trier of fact could certainly find that behavior
inconsistent with a good faith, interactive process. This factual issue does not end the matter,
however.
The USPS’s better summary judgment argument is that, even if it failed to engage fully
with Schneider, the only accommodations he has identified were transfers to positions not actually
“vacant” or available to him. Under Seventh Circuit law, this is a winning argument. The Court
of Appeals has emphasized that a breakdown of the interactive process is not, by itself, enough to
establish liability on a failure-to-accommodate claim; such breakdowns must be evaluated under
a no-harm-no-foul principle. See Rehling v. City of Chicago, 207 F.3d 1009, 1015 (7th Cir. 2000)
(“[t]he interactive process the ADA foresees is not an end in itself”) (quoting Sieberns v. Wal-Mart
Stores, Inc., 125 F.3d 1019, 1023 (7th Cir. 1997)). In Ozlowski v. Henderson, 237 F.3d 837, 840
(7th Cir. 2001), the Court of Appeals explained that courts must “first look at whether there is a

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genuine issue of material fact regarding the availability of a vacant position to accommodate” the
plaintiff. “If there were such a position, only then do we consider whether the failure to provide
that accommodation was due to a breakdown in the interactive process.” Id. Further, a reasonable
accommodation does not mean “an employer is required to fill a position which, based on a reason
wholly independent of the employee’s disability, it had chosen not to fill. Such a position is not
‘vacant.’” Id. at 841. This is where Schneider’s claim fails.
Schneider has not identified any actual accommodations that were denied him. With
respect to job transfers, the record shows there were no true “vacancies” for Schneider in Madison.
(ECF No. 44 at 3.) The open Madison positions were being held for employees impacted by
impending postal facility consolidations. (ECF No. 39 at 7-8.) Schneider was not impacted by
those consolidations and, as a result, the USPS was under no obligation to transfer him. Unable
to rely on these openings, Schneider is left to claim generally that the alleged breakdown in the
interactive process denied him the opportunity to fully explore a workable accommodation. (ECF
No. 41 at 7.) Maybe so, but, at summary judgment, it is his burden to identify one. See Johnson
v. Cambridge Industries, Inc., 325 F.3d 892, 901 (7th Cir. 2003) (“‘summary judgment is the ‘put
up or shut up’ moment in a lawsuit, when a party must show what evidence it has that would
convince a trier of fact to accept its version of events’”) (quoting Schacht v. Wisconsin Dep’t of
Corr., 175 F.3d 497, 504 (7th Cir. 1999)). A generic assertion that some vacancy might have been
found somewhere is insufficient at this stage in the game. Surely after years of litigation and
extensive discovery, Schneider would be capable of pointing to a possible reasonable
accommodation if one existed. His briefs, however, only vaguely argue that he did not have the
opportunity to fully explore the breadth of possible accommodations. (ECF No. 41 at 4.) If this
is the extent of his evidence, no reasonable factfinder could determine that the breakdown in the
interactive process led to a subsequent failure to accommodate. Accordingly, the USPS is entitled
to summary judgment on Schneider’s failure-to-accommodate claim.
II.

Schneider Has Sufficient Evidence to Raise a Jury Issue on His Retaliation Claim.
Schneider’s second claim is that the USPS retaliated against him for protected activity,

both when LeVeque denied his transfer request and when DeValk rejected his five job applications
for positions in Madison. “Both the FMLA and the ADA prohibit employers from retaliating
against employees who assert their statutory rights.” Freelain v. Village of Oak Park, 888 F.3d
895, 900 (7th Cir. 2018). “Retaliation claims under the FMLA and ADA require three familiar

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elements: (1) the employee engaged in statutorily protected activity; (2) the employer took adverse
action against the employee; and (3) the protected activity caused the adverse action.” Id. at 901
(citing Pagel v. TIN, Inc., 695 F.3d 622, 631 (7th Cir. 2012)).
At summary judgment, the Court employs the burden-shifting framework laid out by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under this

framework, the plaintiff must first come forward with sufficient evidence to create a prima facie
case on all three elements of his claim, including causation. McDonnell Douglas, 411 U.S. at 802.
If the plaintiff succeeds, “the burden shift[s] to the defendant to provide nonretaliatory
explanations for its actions.” Smart v. Ball State University, 89 F.3d 437, 440 (7th Cir. 1996).
Once the employer does so, the burden then returns to the plaintiff to show that the proffered
explanation is pretextual. Id. at 439. Because Schneider has gathered sufficient evidence to carry
his parts in this burden-shifting paradigm, his retaliation claim against DeValk will survive
summary judgment.
A. Schneider Has Made a Prima Facie Showing on His Retaliation Claim.
The record supports Schneider’s claim on the first element of his retaliation claim—that he
engaged in statutorily protected activity. Taking FMLA leave because of medical ailments
constitutes statutorily protected activity. See Freelain, 888 F.3d at 901. The same is true for
making an EEO filing. See Anderson v. Donahoe, 699 F.3d 989, 995 (7th Cir. 2012) (citing
Coleman v. Donahoe, 667 F.3d 835, 859-60 (7th Cir. 2012)). While working for the USPS,
Schneider took FMLA leave and filed an EEO complaint. Thus, he engaged in statutorily protected
activity during his tenure.
Schneider has also produced evidence from which a jury could find that he suffered an
adverse employment action.

“In the retaliation context, determining whether an action is

materially adverse means inquiring whether it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Boss v. Castro, 816 F.3d 910, 918 (7th Cir.
2016) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). While the
denial of a lateral transfer is not a materially adverse employment action, Johnson, 325 F.3d at
900, the denial of a promotion opportunity is. Id. (“[D]enial of an opportunity [for a promotion],
unlike the mere denial of a lateral transfer, constitutes a materially adverse employment action.”)
(citing Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465-66 (7th Cir. 2002)). Under this caselaw,
some of the job rejections Schneider received cannot qualify as adverse employment actions. More

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specifically, LeVeque’s decision to deny Schneider’s transfer request and DeValk’s decision not
to hire him for the business solutions specialist positions were not adverse employment actions
because they were denials of mere lateral transfers. (ECF No. 39 at 8.) On the other hand, moving
Schneider to the shipping solution specialist or mailing solutions specialist positions would have
been tantamount to a promotion. (Id.) Therefore, DeValk’s decisions not to hire Schneider for
those jobs could constitute adverse employment actions under Seventh Circuit law.
Schneider has also satisfied the causal element of his prima facie case. For a claim of
retaliation, the plaintiff will survive summary judgment if “the evidence would permit a reasonable
factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor
caused the . . . adverse employment action.” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th
Cir. 2016); see also Baines v. Walgreen Co., 863 F.3d 656, 661-62 (7th Cir. 2017) (quoting
Morgan v. SVT, LLC, 724 F.3d 990, 996 (7th Cir. 2013)) (“‘If a plaintiff can assemble from various
scraps of circumstantial evidence enough to allow the trier of fact to conclude that it is more likely
than not that discrimination lay behind the adverse action, then summary judgment for the
defendant is not appropriate.’”).
As an initial matter, “[a]n employer must have actual knowledge of the employee’s
protected activity to state a claim for retaliation.” Smith v. Lafayette Bank & Trust Co., 674 F.3d
655, 657 (7th Cir. 2012). The parties spend significant portions of their briefs debating what
Schneider told DeValk and when. But whether DeValk was more a confidant to whom Schneider
entrusted every stray reverie or an unwilling sounding board who suffered Schneider’s
communications through gritted teeth is ultimately irrelevant. There is ample evidence that
DeValk was aware of Schneider’s protected activity. In an email sent to DeValk on November
23, 2010, Schneider specifically referenced his use of FMLA leave and his mental health struggles.
(ECF No. 35 at 2.) And at the very latest, DeValk knew of Schneider’s EEO complaint in
September 2012, before denying him the second mailing solutions specialist role. (Id. at 18.)
With knowledge established, the Court must now consider whether Schneider’s evidence
is sufficient to permit a reasonable factfinder to conclude that his protected activity caused the
adverse employment actions at issue. Direct evidence of this causal connection—akin to the
employer announcing, “I ate the last cookie in the jar”—is exceedingly rare, and indeed, Schneider
does not have any. Baines, 863 F.3d at 661. What he does have, however, is an array of

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circumstantial evidence, the equivalent of the trail of cookie crumbs leading from the jar back to
the employer’s office.
Schneider first points to the derogatory way DeValk referenced him in email threads. (ECF
No. 29 at 22.) In emails sent on January 4-5, 2011, DeValk called Schneider “F’ing crazy” and
“the reason God made Bombay Saphire [sic].” (ECF No. 27-2 at 99.) On April 27, 2011, DeValk
asked a coworker of Schneider, “Still think he’s normal, Buzz?” (Id. at 108.) When the coworker
responded that he would not put up with Schneider, DeValk agreed, “You got that right.” (Id.)
On May 16, 2011, DeValk forward a copy of a private email exchange between he and Schneider
to other postal employees and referred to Schneider as “Walter Mitty.” (Id. at 104.)
Schneider next highlights a conversation DeValk had with Lierman around September 18,
2011 and emails DeValk and Lierman exchanged in early January 2013. (ECF No. 29 at 22-23.)
During the September conversation, DeValk inquired about Schneider’s FMLA leave, mocked and
revealed Schneider’s confidential EEO complaint, and consistently derided Schneider because of
his disability. (ECF No. 27-2 at 134-35.) In the January emails, DeValk probed deeper into
Schneider’s use of FMLA leave shortly before his interview for the second mailing solutions
specialist position. (Id. at 154-55.)
Schneider also emphasizes June 2012 emails between DeValk and his supervisor Kevin
Helmer. (ECF No. 29 at 22.) On June 22, 2012, right after DeValk rejected his application for the
first business solutions specialist role, Schneider emailed Helmer and informed him that his 201011 discipline and performance issues were attributable to mental illness. (ECF No. 27-2 at 14142.) In response, Helmer emailed DeValk and warned him to “Be careful.” (Id. at 141.) DeValk
replied, “I was very careful to keep it to his lack of performance,” a statement that might imply
that there were additional, unspoken reasons that DeValk needed to avoid. (Id.)
Finally, Schneider points to an avalanche of emails in which various USPS higher ups
disseminated his private medical information and ridiculed him for his disability. (ECF No. 29 at
23-24.) Lierman alone referred to Schneider as: “a head case” (ECF No. 35 at 11), a “little baby”
(Id. at 16), a “piece of shit” (Id. at 17), “f**king nuts” (Id. at 19 & 35), “the loser” (Id. at 21), a
“dumbass” (Id.), a “nut case” (Id. at 35), “seriously unstable” (Id.), and a “crazy dude.” (Id.) She
also shared his confidential medical information with multiple colleagues. (Id. at 18-21.) And in
a May 28, 2013 email, she confirmed that her plan was to either force him to retire or fire him.

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(ECF No. 35 at 33.) Maria Robinson similarly disclosed Schneider’s private medical information
to colleagues. (Id. at 30.) And she also mocked his disability in emails. (Id.)
While some of these statements may qualify as “stray remarks,” they are sufficient to create
a jury issue on causation. The Seventh Circuit has confirmed that “[a] remark or action by a
decision-maker reflecting unlawful animus may be evidence of his or her attitudes more
generally.” Joll v. Valparaiso Cmty. Schs., 953 F.3d 923, 935 (7th Cir. 2020) (citing Emmel v.
Coca-Cola Bottling Co. of Chicago, 95 F.3d 627, 632 (7th Cir. 1996)). And while remarks uttered
by non-decisionmakers cannot singularly satisfy the plaintiff’s burden in a retaliation case, see
Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O’Connor, J., concurring), they “are
evidence, which together with the other evidence in [a] case could lead a jury to conclude . . . that
the [defendant] engaged in unlawful discrimination.” Emmel, 95 F.3d at 632. “[C]ourts should
not discard circumstantial evidence simply because it does not provide direct proof of unlawful
intent.” Freelain, 888 F.3d at 905. Considering the volume and offensive nature of his superiors’
remarks, a reasonable factfinder could certainly conclude that Schneider’s disability and exercise
of his EEO rights was a motivating factor in DeValk’s actions.
This is true even though DeValk stamped his employment decisions with legitimate,
nondiscriminatory rationales based on a combination of poor past performance and insubordinate
behavior. (ECF No. 43 at 11-12, 15-17, 28-29.) True, these explanations satisfy DeValk’s burden
to offer a legitimate, non-discriminatory rationale for his behavior. However, if the jury believes
Schneider’s evidence and testimony, it could properly find these rationales mere pretext. See Ortiz,
834 F.3d at 766 (“In the end a jury might not credit [Plaintiff’s] evidence and could accept
[Defendant’s] explanations. But given the conflict on material issues, a trial is necessary.”). As
with Ortiz, the conflicts on material issues necessitate a trial. Accordingly, the USPS’s motion for
summary judgment will be denied with respect to Schneider’s retaliation claim.
III.

Schneider Has Not Come Forward with Sufficient Evidence to Create a Jury Issue
on His Constructive Discharge Claim.
Schneider’s third claim is that although the USPS never actually terminated his

employment, the agency’s unendurable working conditions were tantamount to discharge based
on discrimination. He argues that acts of incivility and harassment and an intentional failure to
engage in the interactive accommodation process establish the elements of the claim. (ECF No.
41 at 13-17.) While the host of offensive comments USPS personnel made about Schneider in

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emails (and allegedly in a single meeting with him) paint a negative picture of his employment
conditions, Schneider’s attempt to make out a claim faces several significant legal hurdles.
As a threshold matter, the Seventh Circuit has never conclusively determined that a “claim
of constructive discharge stemming from a hostile work environment is cognizable under the
ADA.” Sears, Roebuck & Co., 233 F.3d at 440. Because it makes no difference to the outcome,
the Court will assume that such a claim is cognizable. But, even reading all the evidence in
Schneider’s favor, he cannot prove either form of constructive discharge recognized in this circuit.
The Seventh Circuit has identified two different forms of constructive discharge. Chapin
v. Fort Row Motors, Inc., 621 F.3d 673, 679 (7th Cir. 2010). The first when an employee resigns
due to alleged discriminatory harassment (Id. at 679), the second “when an employer acts in a
manner so as to have communicated to a reasonable employee that she will be terminated.”
E.E.O.C. v. Univ. of Chicago Hosps., 276 F.3d 326, 332 (7th Cir. 2002). Under the second form,
an employee need not “sit in the corridor while waiting for someone to say ‘you have been fired,’”
nor must they remain on the job when they are “relegated to menial tasks and the employer makes
it clear that no better treatment can be hoped for.” Cigan v. Chippewa Falls Sch. Dist., 388 F.3d
331, 333 (7th Cir. 2004). Both forms mandate that the plaintiff demonstrate an unendurable work
environment. Pa. State Police v. Suders, 542 U.S. 129, 147 (2004). This “requires evidence that
quitting was the only way the plaintiff could extricate h[im]self from the intolerable conditions.”
Gawley v. Indiana Univ., 276 F.3d 301, 315 (7th Cir. 2001). This is a higher bar than a hostile
work environment. See Novak v. Nicholson, 231 F. App’x 489, 493 (7th Cir. 2007). “Whether the
plaintiff’s work environment meets that standard is determined from the viewpoint of a reasonable
employee.” Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 537 (7th Cir. 1993). Thus, “unless
conditions are beyond ‘ordinary’ discrimination, a complaining employee is expected to remain
on the job while seeking redress.” Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir.
1997) (citing Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir. 1996)).
A. Schneider Must Show Unendurable Working Conditions, Not Merely a Hostile
Environment.
Schneider argues that his constructive discharge claim should be analyzed under a more
lenient “hostile work environment” standard. (ECF No. 41 at 13.) He seizes upon language in a
district court decision, Suvada v. Gordon Flesch Co., No. 11 C 07892, 2013 WL 5166213 (N.D.
Ill. Sept. 13, 2013), in which that court recognized a constructive discharge claim under the ADA

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and purported to adopt the “more forgiving” hostile work environment standard. The Suvada
Court held, “[i]n [ADA] cases, the employer has a heightened duty to engage the employee in the
interactive process to identify a reasonable accommodation.” Id. at *10. “Thus, when considering
a constructive discharge claim brought under the ADA, the Court must evaluate the reasonableness
of the employee’s response with this heightened duty in mind.” Id. “Because an employer must
do more to see if an accommodation can be made for an employee with a disability, the standard
for reasonableness must be correspondingly more forgiving for an employer bringing an ADAbased constructive discharge claim.” Id.
Suvada is an eight-year-old, unreported district court case that explicitly decides a legal
issue the Seventh Circuit has reserved. Id. In the intervening years, no Seventh Circuit panel has
adopted the Suvada Court’s reasoning, and no other district court has endorsed this part of its
holding. This Court is not persuaded that Suvada’s proposed lighter standard for constructive
discharge is correct and will instead apply the Seventh Circuit’s clear holdings that a constructive
discharge claim like Schneider’s requires proof that his working conditions were truly
unendurable.
B. Schneider Did Not Suffer Discriminatory Harassment that Made His Working
Conditions Unendurable.
The discriminatory harassment form of constructive discharge is only found in the most
exceptional situations. See Porter v. Erie Foods, Int’l Inc., 576 F.3.d 629, 640 (7th Cir. 2009)
(permitting a claim for constructive discharge when harassment involved repeated use of a noose
and implied threats of violence); Taylor v. W.&S. Life Ins. Co., 966 F.2d 1188, 1198-99 (7th Cir.
1992) (finding constructive discharge where supervisor brandished a firearm and held it to the
plaintiff’s head); Brooms v. Regal Tube Co., 881 F.2d 412, 417 (7th Cir. 1989) (finding
constructive discharge where employee’s HR manager repeatedly showed her racist pornographic
pictures, told her she was hired to perform the sex act depicted in the pictures, and threatened to
kill her). Employers can wade deep into the recesses of the uncouth without triggering liability.
See Simpson v. Borg-Warner Auto., Inc., 196 F.3d 873, 877-78 (7th Cir. 1999) (holding that a coworker saying “someone should take a dish and knock [Plaintiff] upside the head” did not establish
constructive discharge); Lindale v. Tokheim Corp., 145 F.3d 953, 956 (7th Cir. 1998) (finding
boorish behavior like taking over employee’s cubicle or constantly logging her off of her computer
did not establish constructive discharge); Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044,

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1046 (7th Cir. 2000) (rejecting constructive discharge where a co-worker told Plaintiff to “[g]et
the fuck out of the office before I pop a cap in your ass” and then began prancing around, derisively
caricaturing African-Americans and using the N-word).
Schneider’s work environment hardly reflected the whimsical camaraderie of The Office—
his supervisor refused to speak with him for months—but it was equally far from the unendurable
conditions necessary for a finding of constructive discharge under Seventh Circuit caselaw. True,
Lierman did pull Schneider into her office, berate him, and call him a “piece of shit.” (ECF No.
35 at 17.) But “[o]ne threat and raised voices would not rise to the level of a hostile work
environment, and so it also cannot be the basis for [Schneider’s] constructive discharge claim.”
Chapin, 621 F.3d at 679.
Nor can Schneider rest on his complaint that his workplace was made unendurable by a
persistent stream of gossip-filled emails belittling him and questioning his medical condition.
There is no evidence that Schneider had knowledge of those emails until after the fact. He was
never copied on the email chains, and he only learned of them because of discovery in this case.
After-acquired evidence that contradicts one’s prior understanding of his social position may sour
memories, but sour memories are not evidence of intolerable working conditions.
C. The USPS Never Communicated to Schneider that He Would Be Terminated.
Schneider fares no better under the second form of constructive discharge. This second
form does not obviate the need for the plaintiff to prove unendurable working conditions. Id. But
rather than harassment, here the Court looks for situations where the “handwriting was on the wall”
and the plaintiff quit “just ahead of the fall of the axe.” Id. at 680 (quoting Lindale, 145 F.3d at
956); see also Univ. of Chicago Hosps., 276 F.3d at 332 (allowing plaintiff to proceed with
constructive discharge claim because she arrived at work to find her belongings packed and her
office converted to storage space, which occurred shortly after a supervisor was terminated for
refusing to fire the plaintiff); Kodish v. Oakbrook Terrace Fire Prot. Dist., 604 F.3d 490, 502 (7th
Cir. 2010) (finding constructive discharge where both parties agreed that, after giving a pro-union
speech, the plaintiff had only two choices: resignation or termination); Hunt v. City of Markham,
Ill., 219 F.3d 649, 655 (7th Cir. 2000) (holding “[a] person who is told repeatedly that he is not
wanted, has no future, and can’t count on ever getting another raise would not be acting
unreasonably if he decided that to remain with this employer would necessarily be inconsistent
with even a minimal sense of self-respect, and therefore intolerable”).

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If USPS intended to inform Schneider of his imminent termination, they did a poor job of
it. No reasonable person in Schneider’s shoes would discern an impending resign-or-be-fired
ultimatum where the employer has recently initiated the interactive accommodation process and
continued to assign the employee the same duties he has borne for the past year. See Chapin, 621
F.3d at 680 (finding that reassurances of job security vitiated reasonable fear of imminent
termination). While Lierman did declare that no one else at USPS was going to hire Schneider,
(ECF No. 35 at 17), this proclamation related to Schneider’s request for a transfer; it did not imply
termination from his existing position. Moreover, this statement is materially distinct from the
situation in Hunt, where the defendant mayor and other officials regularly pressured White police
officers to resign so they could be replaced with younger Black candidates. Hunt, 219 F.3d at 652.
Schneider tries to resuscitate his claim, arguing that USPS’s failure to accommodate
amounted to a constructive discharge. Although not flatly prohibited under Seventh Circuit law,
failure-to-accommodate constructive discharge claims require the plaintiff to show more than that
he was “being denied reasonable accommodations at every turn.” Sears, Roebuck & Co., 233 F.3d
at 441. Much to the contrary, in this case, several of Schneider’s accommodations were accepted
and implemented. (ECF No. 27-2 at 39.) To further torture an already-abused metaphor, if the
USPS was wielding an axe, it was clearly still on the backswing. Schneider has not presented
sufficient evidence to support a viable claim for constructive discharge.
IV.

Schneider Has No Claim Under the Privacy Act Because He Has Not Pleaded
Special Damages.
Schneider’s final claim is for a violation of the Privacy Act of 1974. This claim can be

more easily dispatched. The statute “serves to safeguard the public interest in informational
privacy by delineating the duties and responsibilities of federal agencies that collect, store, and
disseminate personal information about many individuals.” Ely v. Dep’t of Just., 610 F. Supp.
942, 945 (N.D. Ill. 1985), aff’d, 792 F.2d 142 (7th Cir. 1986) (citing Doe v. U.S. Civ. Serv.
Comm’n, 483 F. Supp. 539, 548 (S.D.N.Y. 1980)). It prevents unauthorized disclosure of “any
item, collection, or grouping of information about an individual that is maintained by an agency,
including . . . medical history” if such disclosure contains identifying information. 5 U.S.C.
§552a(a)(4). “The civil remedies provision of the Privacy Act provides that, for any ‘intentional
or willful’ refusal or failure to comply with the Act, the United States shall be liable for ‘actual
damages sustained by the individual as a result of the refusal or failure, but in no case shall a person

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entitled to recovery receive less than the sum of $1,000.’” F.A.A. v. Cooper, 566 U.S. 284, 291
(2012) (quoting 5 U.S.C. §552a(g)(4)(A)). This provision “‘parallels’ the remedial scheme for the
common-law torts of libel per quod and slander, under which plaintiffs can recover ‘general
damages,’ but only if they prove ‘special harm’ (also known as ‘special damages’). Id. at 295.
“‘Special damages’ are limited to actual pecuniary loss, which must be specially pleaded and
proved.” Id. Presumed damages will never suffice. Id. at 300.
Schneider did not plead special damages in his complaint. (ECF No. 1 at 16-17.) In an
apparent attempt to cure this defect, he advances two new damages theories for the first time in his
reply brief. (ECF No. 41 at 17-18.) But this after-the-fact bootstrapping contravenes the Supreme
Court’s holding in Cooper. Having failed to plead special damages, he cannot remedy the defect
in a last-minute amendment through his briefing. See Anderson v. Donahoe, 699 F.3d 989, 998
(7th Cir. 2012) (holding that a plaintiff “cannot amend his complaint ‘through arguments in his
brief to a motion for summary judgment’”) (quoting Grayson v. O’Neill, 308 F.3d 808, 817 (7th
Cir. 2002)). Moreover, his last-ditch special damages theories would not carry the day had they
been timely pled. Schneider first claims that the USPS’s disclosures cost him two potential job
transfers, theoretically depriving him of an increase in pay. (ECF No. 41 at 17-18.) But Schneider
never alleges a particular loss. This kind of speculative, non-specific “increase in pay” would not
satisfy the requirement for special damages in a libel per quod case. Action Repair, Inc. v. ABC,
Inc., 776 F.2d 143, 150 (7th Cir. 1985) (noting that a special damages statement was insufficient
because it did not allege a basis for the blanket monetary figure presented). Because the Privacy
Act’s remedial scheme parallels that of libel per quod, Cooper, 566 U.S. at 296, Schneider’s vague
assertion of a lost increase in pay will not satisfy the requirement for special damages here either.
With nothing left to lose, Schneider tosses a desperate Hail Mary, claiming as his actual
pecuniary loss the increased legal cost incurred discovering the improper disclosures of his private
information. (ECF No. 41 at 18.) This is analogous to a slander plaintiff arguing that the harm
he suffered was the cost of his slander lawsuit. And the plain text of the statute rejects this theory
of recovery. In relevant part, the Privacy Act reads:
In any suit . . . in which the court determines that the agency acted in a manner
which was intentional or willful, the United States shall be liable to the individual
in an amount equal to the sum of—
(A) actual damages sustained by the individual as a result of the refusal or
failure, but in no case shall a person entitled to recovery receive less than
the sum of $1,000; and

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(B) the costs of the action together with reasonable attorney fees as
determined by the court.
5 U.S.C. §552a(g)(4). Basic statutory construction tells us that Congress would have had no need
to include (B) if “the costs of the action” were included in the “actual damages” contemplated by
(A). Therefore, the costs of the action are not special damages under the Privacy Act, and their
increase cannot be the sole pecuniary loss suffered by a Privacy Act plaintiff.
Schneider neither pleaded and proved special damages, nor sufficiently alleged them in his
response and reply. As a result, his Privacy Act claim must fail at summary judgment.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s motion for
summary judgment under Fed. R. Civ. P. 56 (ECF No. 27) is DENIED.
IT IS FURTHER ORDERED that Defendants’ motion for summary judgment under
Fed. R. Civ. P. 56 (ECF No. 36) is GRANTED in part and DENIED in part. Summary
judgment is granted on Counts I, III, and IV. Summary judgment is denied on Count II.
Dated at Milwaukee, Wisconsin on January 28, 2022.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge

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