Jоseph RUTLEDGE, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF HUMAN SERVICES, et al., Defendants-Appellees.
No. 15-1028.
United States Court of Appeals, Seventh Circuit.
Submitted April 14, 2015. Decided May 5, 2015.
785 F.3d 258
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 violation of section 504 of the Rehabilitation Act of 1973,
The district judge dismissed the entire suit without waiting for a motion or answer by the defendants, on the alternative grounds that the plaintiff had failed tо 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 either the district court or this court. The facts re-
The plaintiff has suffered from post-traumatic stress disorder ever sinсe his service in the Vietnam War, and has been diagnosed with schizophrenia, bipolar disorder, and depression. In 2004 the Department of Veterans Affairs declared 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 assigned him to a residential facility operated by the Department for children and young adults with severe physical disabilities. Two years later, he claims, a young resident of the facility, angry abоut 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 Department 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 Illinois Department of Children and Family Services that resulted in a preliminary finding that he had committed child abuse and neglect. The finding of child abuse was later retracted, 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. Thе plaintiff alleges that his discharge ostensibly for neglect was actually motivated by his being disabled-alleges in other words that neglect was a pretext.
The judge‘s second grоund 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 residential 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 tоtally 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 аpplying for benefits is able, through exceptional ability or exertion, to work full time.
The Illinois Department of Human Services must have believed, despite the plаintiff‘s VA disability rating and extensive 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
For completeness we note that the Social Security Administration, unlike the Veterans Administration, will cut off all disability bеnefits if a person whom it had determined to be totally disabled obtains “substantial gainful employment.” 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 substantial gainful employment a job in which the recipient of social security disability bеnefits receives the kind of charitable indulgence by employer or coworkers discussed in our Voigt and Jones opinions.
We turn to whether the plaintiff‘s claim is barred by Illinois’ two-year statute of limitations for personal-injury suits,
Much of the eight-year period was consumed by an investigation by the Illinois Department of Children and Family Services that ended in 2014 with the dismissal of the child-abuse charge against the plaintiff. We don‘t know when the Department оf 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 conduсted, 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.
We affirm the dismissal of all the plaintiff‘s claims except his claim under the Rehabilitation Act, and all the defendants 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 exprеss no view of the ultimate merit or timeliness of the Rehabilitation Act claim.
Because the defendant hasn‘t been served with process, the district judge should direct that the aсting secretary of the Illinois Department of Human Services be served. And because the issues remaining in play are factually and legally complex we suggest that the district judge consider recruiting counsel for the plaintiff, who thus far has been proceeding pro se.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.