Chahil v. Glickman Petition for Writ of Certiorari

    In the

Docket No.

Supreme Court of the United States
October Term, 1997

PARSHOTAM SINGH CHAI III., Ph. D.
Petitioner

v.

DAN GLICKMAN 
Secretary of Agriculture

Respondent

On Petition for Certiorari to the United States 
Court o f Appeals for the Fourth Circuit

PETITION FOR W RIT OF CERTIORARI

Daniel M. Press
Counsel o f Record fo r Petitioner

Philip K. Chung 
Russell B. Adams, III 
CHUNG & PRESS, P C.
6723 Whittier Ave., Suite 302 
McLean, VA 22101 
(703) 734-3800



QUESTIONS PRESENTED

1. To constitute adverse employment actions actionable 
under Title VII of the Civil Rights Act o f 1964 or the 
Rehabilitation Act o f 1973, as amended, must each instance of 
disparate treatment of a federal employee based on membership 
in a protected class reach a threshold level of seriousness even 
when it forms part of a pattern o f discriminatory mistreatment?

2. Does a pattern o f discriminatory treatment in violation 
o f Title VII of the Civil Rights Act o f 1964 and the 
Rehabilitation Act o f 1973, in which some of a series of related 
acts of discrimination occurred outside the limitation period for 
administrative complaints but with continuing effects within the 
time period covered by timely complaints, constitute a 
continuing violation, thereby rendering the whole course of 
conduct actionable?

3. Does giving a disabled employee no work to do yet 
rating him fully satisfactory, admittedly because o f his disability, 
constitute direct evidence of discrimination actionable under the 
Rehabilitation Act when it affects the employee’s chances for 
promotion and advancement?

4. Does accommodation o f one aspect o f a blind federal 
employee’s disability by providing assisted reading equipment 
satisfy the agency’s duty under the Rehabilitation Act to provide 
reasonable accommodation when it fails to accommodate other 
aspects o f the disability by requiring the blind employee to 
navigate a stairway to use a printer and by failing to provide a 
working environment free of smoke and glare?

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PARTIES

The parties in the Courts below were Petitioner 
Parshotam Singh Chahil and the Secretary o f Agriculture, 
currently Respondent Dan Glickman.

There being no corporate parties, a list of parents and 
subsidiaries is not required.

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TABLE OF CONTENTS

Questions Presented 1

Parties ii

Table o f Contents iii

Table of Authorities vi

Citations to Opinions and Orders Entered in the Case 1

Statement o f Jurisdiction 1

Statutes Involved 1

STATEMENT OF THE CASE 2

Basis for Federal Jurisdiction in the Courts Below 2

Factual Background 2

ARGUMENT 13

I. There is no minimum threshold necessary for an 13
act o f discriminatory treatment to constitute an 
adverse employment action under Title VII of 
the Civil Rights Act o f 1964 or the 
Rehabilitation Act o f 1973, as amended, 
particularly when it forms part o f a pattern o f 
discriminatory mistreatment.

II. Where there is a pattern o f discriminatory treat- 18 
merit in violation o f Title VII of the Civil Rights 
Act of 1964 and the Rehabilitation Act o f 1973, 
in which some of a series of related acts of 
discrimination occurred outside the limitation 
period for administrative complaints but with 
continuing effects within the time period covered

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by timely complaints, it constitutes a continuing 
violation, thereby rendering the whole course of 
conduct actionable.

Ill Giving an employee with a disability no work to 21
do yet rating him fully satisfactory, admittedly 
because of his disability, constitutes direct 
evidence o f discrimination actionable under the 
Rehabilitation Act.

IV. The decision below, in holding that accommo- 25
dation of only one aspect of Dr. Chahil’s 
disability by providing assisted reading 
equipment satisfies the agency’s duty under the 
Rehabilitation Act to provide reasonable 
accommodation, despite failing to accommodate 
other aspects of the disability by requiring him to 
navigate a stairway to use printers on another 
floor and by failing to provide a working 
environment free o f smoke and glare, creates a 
conflict among the circuits on an important issue 
and decides an important federal question that
should be settled by this court.

CONCLUSION 28

APPENDIX A1

Opinion of the U. S. Court o f Appeals for the Fourth A1
Circuit, October 7, 1997.

Memorandum Opinion o f the U.S. District Court A5
for the District o f Maryland, October 15, 1996

Order Granting Summary Judgment, October 15, 1996 A14

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Order o f U.S. Court of Appeals for the Fourth Circuit Al 5
Denying Petition for Rehearing

STATUTORY AND REGULATORY PROVISIONS Al 6

29 U.S.C. §791 A16

29 U.S.C. § 794a A17

42U.S.C. § 1981a A 17

42 U.S.C. § 2000e-2 A19

42 U.S.C. §2000e-3 A20

42 U.S.C. § 2000e-16 A20

29 C.F.R. § 1630.4 A22

29 C.F.R. § 1630.5 A22

29 C.F.R. § 1630.9 A23

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Cases Ease
Bazemore v. Friday, 478 U.S. 385 (1986) 19

Bishop v. Wood, 426 U.S. 341 (1976) 3

Brinkley-Obu v. Hughes Training, Inc., 19
36 F.3d 336 (4th Cir. 1994)

Carter v. Bennett, 840 F.2d 63 (D.C. Cir. 1988) 26-27

Collins v State o f Illinois, 830 F.2d 692 (7th Cir. 1987) 15

Glass v. Petro-Tex Chemical Corp., 19
757 F.2d 1554 (5th Cir. 1985)

Green v. Los Angeles Cty. Superintdt. o f Schools, 20
883 F.2d 1472, 1480 (9th Cir. 1989)

Harris v. Forklift Systems, Inc. 510 U.S. 17 (1993) 13-18

Hayes v. Shalala, 902 F. Supp. 259 (D.D.C. 1995) 16-17

Jenkins v. Home Ins. Co., 635 F.2d 310 (4th Cir. 1980) 19

Johnson v. Shalala, 991 F.2d 126 (4th Cir. 1993), 25-26
cert, denied 513 U.S. 806(1994)

M cDonnell Douglas Corp. v. Green, 21,24
411 U.S. 792(1973)

M eritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) 13-18

Nealon v. Stone, 958 F.2d 584 (4th Cir. 1986) 19

Page v. Bolger, 645 F.2d 227 (4th Cir. 1981) 13-18

Palmer v. Shultz, 815 F.2d 84 (D.C. Cir. 1987) 16

Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971) 15

TABLE OF AUTHORITIES

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Shepard v. Adams, 670 F. Supp. 22 (D.D.C. 1987) 19

Sosa v. Hiraoka, 920 F.2d 1451 (9th Cir. 1990) 19-21

Southeastern Community College v. Davis, 26
442 U.S. 397(1979)

Taylor v. FDIC, 132 F.3d 753 (DC. Cir. 1997) 17

Taylor v. Home Ins. Co., I l l  F.2d 849 (4th Cir. 1985) 19

Timus v. Secretary o f Labor, 16
782 F. Supp 122 (D.D.C. 1991)

Trans-World Airlines v. Thurston, 469 U.S. I l l  (1984) 21

Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990) 22-24

Williams v. Owens-Illinois, Inc., 20
665 F.2d 918 (9th Cir.), cert, denied,
459 U.S. 971 (1982)

Statutes

28 U.S.C. § 1254 1

28 U.S.C. § 1291 2

28 U.S.C. § 1331 2

28 U.S.C. § 1343 2

29 U.S.C. § 791 passim

29 U.S.C. § 794a 2

42 U.S.C. § 1981a 3,17-18

42 U.S.C. § 2000d et seq. Passim

42 U.S.C. §2000e-2 14,24

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42 U.S.C. § 2000e-5 2

42 U.S.C. § 2000e-16 2

Regulations

29 C.F.R. § 1614.105 20

29 C.F.R. § 1630.4 15

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CITATIONS TO OPINIONS AND ORDERS 
ENTERED IN THE CASE

The opinion of the U.S. Court o f Appeals for the Fourth 
Circuit which is sought to be reviewed herein was unreported. 
It is on the Lexis database at Chahil v. Secretary o f Agriculture, 
1997 U.S. App. LEXIS 27296. It is reported in table format at 
125 F.3d 847(1997).

The opinion of the U.S. District Court for the District of 
Maryland in Chahil v. Secretary o f Agriculture, No. CA-94- 
3201-CCB, is unpublished.

STATEMENT OF JURISDICTION

The judgment sought to be reviewed in this Court is the 
Opinion of the United States Court of Appeals for the Fourth 
Circuit, issued on October 7, 1997. An Order denying 
Petitioner’s timely Petition for Rehearing and Suggestion for 
Rehearing in Banc was entered on December 22, 1997. This 
Petition is filed within 90 days o f the order denying rehearing.

Jurisdiction to review on certiorari the judgment in 
question is conferred on this Court by 28 U.S.C. § 1254

STATUTES YNYOLYEH

The following statutes and regulations involved in this 
case are set forth verbatim in the Appendix:

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Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791 and 
794a.

Civil Rights Act of 1991, 42 U.S.C. § 1981a

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 
-3, and -16,

Regulations promulgated under the Rehabilitation Act, 29 
C.F.R. §§ 1630.4, .5, and .9

STATEMENT OF THE CASE

Basis for Federal Jurisdiction in the Courts Below

This action was brought in the U.S. District Court for 
the District o f Maryland under Title VII o f the Civil Rights Act 
of 1964,42 U.S.C. § 2000d et seq., and the Rehabilitation Act, 
29 U.S.C. § 791, against the United States Secretary of 
Agriculture. Subject matter jurisdiction in the District Court 
was proper under 42 U.S.C. §§ 2000e-5(f)(3) and -16(c), 29 
U.S.C. § 794a, and 28 U.S.C. §§ 1331 and 1343. Jurisdiction 
in the Court o f Appeals on appeal from the final judgment 
therein was conferred by 28 U.S.C. § 1291.

Factual Background

This Action, alleging discrimination in federal 
employment, was filed on November 17, 1994, in the U.S. 
District Court for the District of Maryland. After discovery, the 
Defendant Secretary of Agriculture moved for summary

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judgment, and on October 15, 1996 (entered on the docket on 
October 17), the District Court (Blake, J.) entered an Opinion 
and Order granting the Defendant's Motion as to all counts. 
That judgment was summarily affirmed by the U.S. Court of 
Appeals for the Fourth Circuit, and a Petition for Rehearing and 
Suggestion for Rehearing in Banc was denied.

In granting summary judgment for respondents, the 
District Court was required to resolve all genuine disputes as to 
material facts in favor o f Dr. Chahil. As a result o f the case 
having been disposed of by motion for summary judgment, in its 
appraisal of petitioner’s claim, this Court must accept his version 
o f the facts. Bishop v. Wood. 426 U.S. 341, 347 and n .ll  
(1976).

This case stems from the defendant's continuing pattern 
o f discrimination against Parshotam Singh Chahil, Ph. D , from 
1985 to 1994, while he was employed with the Human Nutrition 
Information Service ("HNIS"), an agency o f the U.S. 
Department o f Agriculture (“USDA”). In April, 1984, Dr. 
Chahil accepted a position as a mathematical statistician with 
HNIS in Hyattsville, Maryland. JA 101. Dr. Chahil applied for 
this advertised position and was hired by Dr. Brucy Gray on the 
basis of a telephone interview. JA 44. Dr. Chahil was employed 
as a GS-11 (Step 1) on a GS-11/13 career ladder. JA 10. Dr. 
Chahil to this day, nearly 14 years later, is still employed as a 
GS-11. LL

‘JA cites refer to the Joint Appendix filed by the parties in the Court 
o f Appeals.

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Dr. Chahil was bom on November 1, 1937, in 
Ghaarangna, Punjab, India. JA 9. Dr. Chahil is a devout Sikh 
and he actively observes all aspects o f that religion. JA 9. Dr. 
Chahil was the only Sikh employed at HNIS during his tenure 
with that agency. JA 711. As a part of his religion Dr. Chahil 
wears a turban and maintains a full beard, which presents a very 
distinct appearance. JA 9.

In January, 1985, shortly after his arrival at HNIS, Dr. 
Chahil developed a severe cornea problem which has required 
numerous surgeries in both eyes, including comeal transplants. 
JA 10. Additionally, Dr. Chahil developed glaucoma which also 
required extensive treatment. JA 53, 54. Despite the 
treatments Dr. Chahil is legally blind. JA 10. He cannot read 
standard-sized printed material without the assistance o f a 
magnifying device or equipment. JA 1263.

Dr. Chahil's supervisors repeatedly and continuously 
ignored Dr. Chahil's needs and rights as a disabled employee. 
Rather than take affirmative steps to determine the extent to 
which his needs could be accommodated, Dr. Chahil's 
supervisors often ignored or inexcusably denied his requests for 
accommodation.

In April, 1985, upon Dr. Chahil's return to work after his 
first eye surgery, his ability to perform his job duties largely 
depended on the assistance his supervisor, Brucy Gray, would 
provide. JA 1253. During this time Dr. Chahil approached Mr. 
Gray and made it clearly known that because o f his disability he 
was unable to use the computer equipment because he could not 
see the screen. JA 1264. As such, Dr. Chahil made repeated

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requests to Mr. Gray for assistance, including a reader. JA 1264, 
1539, 1540, 1543, 1546.

Mr. Gray did not provide any accommodation to Dr. 
Chahil. Mr. Gray simply ignored Dr. Chahil's requests for 
accommodations. Mr. Gray then intentionally intimidated Dr. 
Chahil by stating that if Dr. Chahil "could not see the screen, he 
then could not do his work, and then he should take the next 
step" — clearly implying that Dr. Chahil should quit. JA 1264, 
1543.

Mr. Gray openly admits that he and his branch were 
responsible for the acquisition o f automatic data processing 
("ADP") equipment, including equipment that could have 
accommodated Dr. Chahil. JA 1251, 1253. Mr. Gray testified 
under oath that he undertook great efforts to determine the 
availability o f special high-tech equipment for low vision 
disabled employees. JA 1250-1253. Such efforts included 
attending high-tech conferences and seminars to observe 
demonstrations o f such equipment. JA 1251-1252. Mr. Gray 
even testified that he became more sensitive to the need for such 
equipment in light o f Dr. Chahil's disability. JA 1251, 1254, 
1255. Yet when questioned as to why Dr. Chahil never received 
such accommodations, Mr. Gray simply responded "I don't 
recall." JA 1256, 1257.

In or about April, 1988, Dr. Peter Basiotis became Dr. 
Chahil's supervisor. JA 1172, 1266. At that time, Dr. Chahil 
renewed his request for some sort o f specialized computer 
equipment which could accommodate his low vision disability. 
JA 1265. Unlike Mr. Gray, Dr. Basiotis did agree to the

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acquisition o f the equipment, a decision approved by his 
supervisor Dr. Rizek. JA 1180, 1181. However, after HNIS 
provided such approval, Dr. Chahil received no further 
assistance from Dr. Basiotis or HNIS with regard to the 
selection and procurement o f the equipment. JA 1266, 1556.

What ensued was a slow, time-consuming, and 
frustrating process, which took over two years before Dr. Chahil 
had the actual use of such equipment. JA 1265, 1266, 1555- 
1577. Dr. Chahil did eventually receive the equipment, and after 
some time working out the kinks with the system Dr. Chahil 
eventually had a working system by the Fall o f 1990. JA 1571.

HNIS further discriminated against Dr. Chahil by failing 
to provide him with the same word processing capabilities 
provided to all other HNIS personnel. During Dr. Chahil's 
tenure at HNIS, HNIS undertook two agency-wide upgrades of 
its ADP capabilities. JA 1215-1221. With each upgrade, HNIS 
blatantly excluded Dr. Chahil from participating and benefiting 
in the upgrades. 14.

By the end of 1992, Dr. Chahil's low vision disability had 
become well documented with HNIS, especially with regard to 
Dr. Chahil's need for a special office environment. JA 1464- 
1466 Dr. Chahil's eyes were very susceptible to infection, JA 
1465-1466, and HNIS did accommodate Dr. Chahil in providing 
him with an office with adequate ventilation. JA 16.

Despite his need for this special office environment, on 
or about January 27,1993, Mr. David Rust, Dr. Chahil's second 
line supervisor, notified Dr. Chahil that he intended to remove

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him from his office accommodation and place him in a 
secretarial bay area. JA 1239, The cramped secretarial bay area 
offered no ventilation. JA 1137, 1143-1146. Dr. Chahil could 
not control the glare from the lights in this bay area, and he did 
not have sufficient space to set up his equipment. JA 1135- 
1136.

Mr. Rust moved Dr. Chahil into the secretarial bay, 
ignoring the abundance o f information and documentation 
supporting Dr. Chahil's need for office accommodations. JA 
1237,1464-1466. This decision exposed Dr. Chahil to a smoke 
filled environment, with no ability to control the glare of the 
light creating a situation detrimental to Dr. Chahil's health. The 
situation was corrected only after Dr Chahil was forced to 
complain o f the defendant's actions. JA 1138.

The defendant further disregarded Dr. Chahil's needs by 
depriving him of printing facilities while he was located on the 
fourth floor o f HNIS's offices JA 214-215. Defendant's delay 
in immediately correcting the situation exemplifies the 
defendant's disregard of Dr. Chahil's right to reasonable 
accommodations. It is indisputable that Dr. Chahil immediately 
notified his first- and second-line supervisor when he was barred 
from using the fourth floor printer which was located in his 
office suite. JA 1395-1399. Instead o f looking into the matter, 
Dr. Chahil's supervisors simply did nothing, forcing Dr. Chahil, 
a blind man to traverse the stairs between the third and fourth 
floors whenever he needed a document printed. JA 1267.

Beginning in 1985, soon after Dr. Chahil had become 
stricken with his low-vision disability, the terms and conditions

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of his employment became dramatically down-graded, 
effectively placing Dr. Chahil in the HNIS "dog-house". The 
record establishes that Dr. Chahil was isolated from the 
mainstream of HNIS' regular activities, and he was denied the 
opportunity to assume responsibilities and obligations needed to 
advance his career as a mathematical statistician.

While Dr. Chahil's career stagnated at HNIS, similarly 
situated HNIS employees, outside o f his Title VII and 
Rehabilitation Act protected classes, did not suffer the same 
fate, but instead flourished under the same HNIS first and 
second line supervisors. Such similarly situated employees 
received regular promotions, were assigned far more significant 
assignments, undertook supervisory responsibilities, and 
participated on professional agency and inter-agency committees 
and work groups.

In 1986 Dr. Chahil filed an administrative complaint 
against Brucy Gray asserting that Mr. Gray had wrongfully 
failed to provide a within-grade pay increase. JA 1264. 
Subsequently, Brucy Gray simply did not provide any 
assignments to Dr. Chahil, essentially beginning Dr. Chahil's 
tenure in the HNIS dog house. JA 1542, 1550, 1551. Dr. 
Chahil's 1986-1987 Year End Accomplishments Report clearly 
demonstrates that Mr. Gray did not provide Dr. Chahil with any 
assignments, a matter with which Dr. Chahil openly confronted 
Mr. Gray. JA 1317. Despite this failure to provide work, Mr. 
Gray arbitrarily appraised Dr. Chahil's 1986-87 performance as 
"meets fully successful", a rating that Dr. Chahil did not want if 
he could not earn it properly. JA 1553, 1554.

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Mr. Gray also readily admits that he gave Dr. Chahil 
arbitrary evaluations which were not supported by Dr. Chahil's 
performance. JA 1259, 1260. Mr. Gray's sole explanation for 
this comes down to the simple assertion that he was charitable 
to Dr. Chahil, and that otherwise Dr. Chahil would have lost his 
job. JA 1260. But without productive work, coupled with 
productive criticisms, Dr. Chahil became unable to get 
promoted.

In April, 1988, the defendant removed Dr. Chahil from 
the Survey Statistics Branch — the HNIS Branch with the 
statisticians — placing him under the supervision o f Dr. Peter 
Basiotis. JA 1172, 1266. While Dr. Chahil readily admits that 
Dr. Basiotis never exhibited any hostility towards him and that 
he always treated him in a professional manner, it is inescapable 
that the defendant assigned Dr. Basiotis as the plaintiffs 
supervisor for no other reason than to baby-sit the plaintiff.

The feet that Dr. Basiotis was baby-sitting Dr. Chahil is 
exemplified by the fact that the first two years o f Dr. Basiotis' 
supervision simply involved observing Dr. Chahil's attempt to 
acquire his low vision computer equipment. JA 141. The 
defendant made no demands o f Dr. Chahil during this period, 
and it amply allowed Dr. Chahil to toil away on the acquisition 
o f the equipment. JA 125-146.

Dr. Chahil was not given any other assignment other 
than a long term project. JA 1265, 1266. As such, Dr. Chahil 
did not have the opportunity to interact on a daily basis with the 
other HNIS statisticians and personnel. JA 1266 Dr. Chahil's 
deprivation o f any meaningful professional interaction with the

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other HNIS statisticians lasted for four years. JA 1265-1266. 
During this four year period neither Dr. Basiotis, nor any other 
HNIS supervisor provided any criticism of Dr. Chahil's work. 
Id,

For the period from 1985 through approximately 
November, 1992, the careers o f those HNIS employees 
"similarly situated" to Dr. Chahil flourished. HNIS had three 
mathematical statisticians similarly situated to Dr. Chahil. They 
were Joseph Goldman, Renee Powell, and Alvin Nowverl. The 
periods of employment with HNIS for each o f Goldman, Powell 
and Nowverl overlapped with Dr. Chahil's employment with 
HNIS. It is indisputable that the careers o f Goldman, Powell 
and Nowverl advanced, while Dr. Chahil's career simply 
floundered.

Mr. Goldman is a white male who does not have any 
disability. The defendant hired Mr. Goldman in 1987 as a 
mathematical statistician at the GS-7 grade level. JA 1213. 
Subsequently, while Dr. Chahil remained a GS-11, Mr. Goldman 
was promoted to a GS-9 in 1988, to a GS-11 in 1990, and to a 
GS-12 in mid-1991 when he received a position with the 
Nutrition Monitoring Division of HNIS. Mr. Goldman was 
promoted to a GS-13 in early 1995. JA 1206.

Ms. Powell is a black female who does not have any 
disability. Ms. Powell began her employment with the defendant 
in 1978 as a mathematical statistician at the GS-5 grade level. 
JA 1199. Ms. Powell regularly received promotions such that 
in 1979 she was promoted to a GS-7, in 1980 or 1981 she was 
promoted to a GS-9, in 1983 she was promoted to a GS-11, and

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to aG S -1 2 in  1989. JA 1199-1200.

Mr. Nowverl is a black male who does not have any 
disability. Mr. Nowverl began his employment with the 
defendant in June, 1980 as a statistician at the GS-5 grade level. 
JA 1224. Mr. Nowverl regularly received promotions. In 
September, 1981, Mr. Nowverl was promoted to a GS-7. In 
September, 1982, he then received a promotion to a GS-9, and 
then to a GS-11 in 1985. JA 1224. In January, 1990, Mr. 
Nowverl was promoted to a GS-12. JA 1224.

Goldman, Powell and Nowverl each received far more 
significant assignments and opportunities from the defendant. 
Such assignments and opportunities included the following: (1) 
advising and assisting HNIS personnel in statistical matters, data 
and computer usage and use o f specialized software packages; 
(2) providing technical information to non-agency personnel 
concerning HNIS surveys and assisting in development and 
application of new technology; (3) various statistical work with 
regard to the Nationwide Food Consumption Surveys ("NFCS") 
and the Continuing Surveys for Individual Intake (MCSFHH); and 
(4) the supervision of student assistants. JA 1405, 1406, 1407, 
1420-1422.

Dr. Chahil's career stagnated despite the fact that he was 
the most highly credentialed statistician. Dr. Chahil's formal 
education concluded in 1973 when he received a Ph. D. in 
Statistics and Quantitative Genetics from Louisiana State 
University. JA 1522. In his doctoral studies at Louisiana State 
University, Dr. Chahil pursued extensive studies in the field of 
statistics which eventually culminated in the acceptance and

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publication of his doctoral dissertation. JA 1522.

After receiving his Ph.D. in 1973, Dr. Chahil was 
employed in various academic and governmental positions, in 
which each position utilized, and added to, his experience as a 
statistician. JA 1523-1536. In October, 1980, Dr. Chahil began 
his first position with the USDA in the Food and Nutrition 
Service Agency ("FNS") in the Midwest Regional Office in 
Chicago, Illinois. JA 10. Dr. Chahil was initially employed as 
a mathematical statistician at a GS-9 grade, however within a 
few months he was quickly promoted to the GS-11 position as 
a regional statistician. JA 10. Dr. Chahil was employed at the 
Midwest Regional Office through most of 1984, and during this 
time he received annual performance appraisals which regularly 
rated his work as "meets fully successful". JA 1306, 1537. 
Thus by the time Dr. Chahil joined HNIS in 1984 he had 
approximately eleven years o f practical experience, four of 
which were with the USDA, coupled with his Ph.D. in statistics.

At all times relevant to this action Dr. Chahil was a 
qualified statistician. In addition to the fact that Dr. Chahil was 
the most credentialed statistician at HNIS, defendant cannot 
dispute the assessments by supervisors who actually had the 
technical capability to make an informed opinion o f Dr. Chahil's 
work. The record overflows with assessments from Dr. Basiotis 
positively commenting on Dr. Chahil's ability as a statistician. 
JA 1175, 1176, 1177, 1179, 1183, 1184, 1318-1329, 1400. 
Furthermore, both Renee Powell and Joseph Goldman, Dr. 
Chahil's peers and fellow statisticians, uniformly characterized 
Dr. Chahil's work as a good work product. JA 1198, 1207.

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ARGUMENT

L There is no minimum threshold necessary for an act 
of discriminatory treatm ent to constitute an adverse 
employment action under Title VII of the Civil 
Rights Act of 1964 or the Rehabilitation Act of 1973, 
as amended, particularly when it forms part of a 
pattern  of discriminatory mistreatment.

The Fourth Circuit’s decision in Page v. Bolger. 645 
F.2d 227 (4th Cir. 1981), the principal case relied upon by the 
court’s below to dismiss Appellant’s claims, is not still valid in 
light o f the Civil Rights Act o f 1991's expansion of remedies 
under Title VII, the Supreme Court’s decisions in Harris v. 
Forklift Systems. Inc. 510 U.S. 17 (1993) and Meritor Sav. 
Bank v Vinson, 477 U.S. 57 (1986) and decisions o f other 
Courts o f Appeals.

Without explaining which “negative experiences” it 
considered to be or not to be adverse employment actions, 
District Court Opinion at n.3 (Appendix at A10), the district 
court excluded several incidents o f the pattern and practice of 
discriminatory treatment of Appellant by reference to Page. The 
Fourth Circuit did not expand on the district court’s reasoning. 
The reliance o f both upon Page is misplaced. It is unsupported 
by the current statutory language (particularly that added by the 
Civil Rights Act o f 1991), more current case law, and by the

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Title VII, as codified at 42 U.S.C. § 2000e-2(a), makes 
it an unlawful employment practice for an employer:

(1) ... to discriminate against any individual with 
respect to his compensation, terms, conditions, 
or privileges o f employment, because o f such 
individual's race, color, religion, sex, or national 
origin; or

(2) to limit, segregate, or classify his 
employees... in any way which would deprive or 
tend to deprive any individual o f employment 
opportunities or otherwise adversely affect his 
status as an employee, because o f such 
individual's race, color, religion, sex, or national 
origin.

The phrase "other terms, conditions, or privileges of 
employment" is intended to include, inter alia, H[j]ob assign­
ments,... lines o f progression, ... [selection... for training,

language of Page itself.2

2Even under Pace, actions remediable under the anti-discrimination 
laws certainly include decisions such as hiring, granting leave to, discharging, 
promoting, and compensating the employee — the latter two clearly w ell pled 
within the scope o f Dr. Chahil's formal complaints. However, personnel 
actions covered by Title VII are by no means limited to just these actions. Page 
recognized that "there are certainly' other [decisions] than those we have 
specifically identified that may be... considered [as ultimate employment 
actions]— for example, entry into training programs." M at 233. Page simply 
held that "interlocutory or mediate" decisions that did not directly affect the 
Plaintiff and which were not remediable under Title VII at that time, such as the 
com position o f an evaluation panel in Page itself do not rise to Title VII 
violations. Xd- at 233.

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including... professional meetings, conferences, and other related 
activities." See 29 C.F.R. § 1630.4. Dr. Chahil was denied the 
opportunity to attend professional meetings and conferences; he 
was moved out of the line of progression in his career track, 
relegated to the "dog house” given make-work tasks or no job 
assignments and, as a result, denied promotions when everyone 
around him was promoted from grades lower than his to grades 
above his. Other courts of appeals have held that this 
constitutes adverse employment action. See, e.g. Collins v State 
of Illinois 830 F.2d 692, 703 (7th Cir. 1987) (adverse job action 
not limited to pay or benefits, and includes moving an 
employee's office to an undesirable location and transferring an 
employee to an isolated comer o f the workplace).

Today, as opposed to the time o f Page. Title VTI's 
prohibition against discrimination with respect to terms, 
conditions, or privileges of employment "is not limited to 
'economic' or tangible' discrimination." Harris v. Forklift 
Systems. Inc.. 510 U.S. 17 (1993) (harassment o f female 
employee need not seriously affect psychological well-being or 
lead to injury to be actionable as "abusive work environment") 
fquoting Meritor Sav. Bank v. Vinson. 477 U.S. 57, 64 (1986)). 
Indeed, it is intended "to strike at the entire spectrum of 
disparate treatment' which includes requiring people to work in 
a discriminatorily hostile or abusive environment.") Id at 370, 
(quoting Meritor at 64). See also Rogers V. EEQC, 454 F.2d 
234, 238 (5th Cir. 1971) (charge o f segregating employer’s 
patients stated claim o f unlawful discrimination in terms and 
conditions o f employee's employment). Only by looking at all 
of the circumstances o f a particular case, such as the frequency 
o f the discriminatory conduct and whether it unreasonably

-15-



interferes with work performance, can it be determined whether 
an environment is hostile or abusive. Harris at 371.

Title VII's application to the terms and conditions of 
employment in a manner analogous to this case is exemplified by 
the decision in Timus v. Secretary o f Labor, 782 F. Supp 122, 
124 (D.D.C. 1991). In Timus. the plaintiff, a federal employee, 
filed a Title VII action alleging that the quality o f her duties 
were down-graded after her return from maternity leave. She 
established a sex discrimination claim based on pregnancy by 
showing that, when she returned from maternity leave, she was 
not given the same responsibilities that she had performed before 
her leave.

In Haves v. Shalala. 902 F. Supp. 259, 266 (D.D.C. 
1995), that court noted that while that circuit had not directly 
addressed the holding in Page, "where it has spoken, it has 
adopted a broader interpretation of actionable ‘personnel 
actions’ than that o f the Fourth Circuit." (Citing Palmer v. 
Shultz. 815 F.2d 84 (D.C. Cir.1987)). That court concluded 
that the plaintiff-employee "must be permitted to argue that the 
totality o f actions taken by his employer collectively created a 
harassing and retaliatory environments, even if individual actions 
may not have left a permanent paper trail or may even have been 
‘mediate’ employment decisions as identified by this court in 
Page.

To the extent Page v. Bolger holds that actions such as 
those taken against Appellant, particularly when viewed as a 
pattern, are not actionable, Appellant submits that Page has been 
impliedly overruled by two subsequent events. It was not until

-16-



Meritor Savings Bank v. Vinson. 477 U.S. 57 (1986), and 
Harris v. Forklift Systems. Inc.. 510 U.S. 17 (1993), after Page 
was decided, that the concepts of a hostile or abusive work 
environment and of harassment not rising to the level o f a 
constructive discharge were recognized as unlawful 
discrimination by this Court. To the extent Page excludes from 
Title VII protection more than "interlocutory or mediate 
decisions," it relies on the outdated concepts o f employment 
discrimination rejected in Meritor and Harris, and is overruled 
by them. See Haves v. Shalala. 902 F. Supp. 259, 266-67 
(D.D.C. 1995) (recognizing inconsistency between Page and 
Meritor).3

Moreover, Page was decided under an older version of 
Title VII in which the remedies available for employment 
discrimination were limited to injunctive relief and back pay. No 
damages were recoverable, so for discrete acts not amenable to 
injunctive relief, and not directly affecting earnings, Title VII 
could easily be seen not to afford a remedy. This changed with 
the enactment o f the Civil Rights Act o f 1991, 105 Stat. 1071, 
Pub. L. No. 102-166 (Nov. 21, 1991), in which Title VII 
plaintiffs (including Federal employees) were given the right to 
trial by jury and to compensatory damages for "future pecuniary 
losses, emotional pain, suffering, inconvenience, mental anguish, 
loss o f enjoyment o f life, and other nonpecuniary losses". 42 
U.S.C. § 1981a. This landmark legislation changed the 
landscape o f Title VII and created a remedy for injuries that 
were previously not actionable. The district court and the Court

•v  m ic . 132 F.3d 753 (D  C. Cir. 1997), the D.C. Circuit 
stated that it was not deciding the issue presented by Page.

-17-



of Appeals did not consider or even address these issues, even 
though they were raised before them. This Court should hold 
that Page, decided ten years prior to the 1991 Act, merely 
recognized the lack o f an effective remedy at that time but was 
subsequently overruled by the 1991 Act.

Because both Page and the lower courts’ opinions in this 
case are inconsistent with this Court’s decisions in Harris and 
Vinson, and with the Civil Rights Act of 1991, this Court should 
grant certiorari to consider these important issues.

II. Where there is a pattern of discriminatory treatment 
in violation of Title VII of the Civil Rights Act of 
1964 and the Rehabilitation Act of 1973, in which 
some of a series of related acts of discrimination 
occurred outside the limitation period for 
administrative complaints but with continuing 
effects within the time period covered by timely 
complaints, it constitutes a continuing violation, 
thereby rendering the whole course of conduct 
actionable.

The District Court and Court o f Appeals refused to 
consider Dr. Chahil’s evidence o f discriminatory treatment 
occurring prior to his first EEO administrative complaint in 
1992. During the period up to and following the time when D. 
Chahil filed his first complaint, he was unlawfully subjected to 
a continuing pattern o f discriminatory incidents and practices in 
a continuing violation o f his rights under Title VII and the 
Rehabilitation Act. This rendered actionable all such conduct 
despite the lack o f prior administrative complaints.

-18-



This Court and the Courts of Appeals have embraced the 
concept o f “continuing violation”. The district court and the 
Fourth Circuit overlooked this extensive body o f law.

The continuing violation doctrine has been widely 
accepted. In Bazemore v. Friday. 478 U.S. 385 (1986), this 
Court held that continuing effects of pre-Title VII wage 
differentials were actionable under Title VII. In Nealon v. 
Stone. 958 F.2d 584 (4th Cir. 1986), the Fourth Circuit itself 
held, in an Equal Pay Act case, that if there are effects of 
discrimination which occurred before the limitation period that 
continue into the time period covered by timely complaints, the 
continuing discrimination is actionable. See also Brinkley-Obu 
v. Hughes Training. Inc.. 36 F.3d 336 (4th Cir. 1994); Jenkins 
v. Home Ins. Co.. 635 F.2d 310, 312 (4th Cir. 1980); lajdaO L 
Home Ins. Co., 777 F.2d 849 (4th Cir. 1985).

The Fifth Circuit has expressly held that "prohibited 
employment discrimination in promotion and transfer may often 
be a continuing violation," and that "[a] persisting and 
continuing system of discriminatory practices in promotion or 
transfer produces effects that may not manifest themselves as 
individually discriminatory except in cumulation over a period of 
time." Glass v. Petro-Tex Chemical Coro.. 757 F.2d 1554, 1561 
(5th Cir. 1985) (internal cites omitted); see also Shepard v. 
Adams. 670 F. Supp. 22, 25 (D.D.C. 1987).

Other courts o f appeal have likewise adopted the 
concept o f “continuing violations”. For example, Sosa v. 
Hiraoka. 920 F.2d 1451, 1455 (9th Cir. 1990) held:

-19-



Allegations of conduct occurring prior to the 
180-day period4 are actionable if Sosa can show 
that they are part o f a "continuing violation" of 
Sosa's Title VII rights. Under the continuing 
violation doctrine, "a systematic policy of 
discrimination is actionable even if some or all of 
the events evidencing its inception occurred 
prior to the limitations period." Williams v. 
Owens-Illinois Inc . 665 F.2d 918, 924 (9th 
Cir.), cert, denied. 459 U.S. 971 [] (1982). We 
apply the continuing violation doctrine because 
"the continuing system of discrimination 
operates against the employee and violates his or 
her rights up to a point in time that falls within 
the applicable limitations period." L I  
Moreover, Sosa may establish a continuing 
violation "not only by demonstrating ... [an 
employer]-wide policy or practice, but also bv 
demonstrating a series of related acts against 
a single individual:" that is, against Sosa alone.
Green v. Los Angeles Ctv. Superintdt. of 
Schools. 883 F.2d 1472, 1480 (9th Cir. 1989) 
(emphasis added).

While the conduct against Appellant took place, in part, 
outside the limitations period, the effect — the actual 
discrimination which Title VII and the Rehabilitation Act are

*Sosa dealt with a private Title VII claim. Such private claim s have 
a 180-day period during which a complaint can be filed with the EEOC. In 
Federal claim s, an informal complaint must be filed with the agency within 
either 30 or 45 days, 29 C.F.R. § 1614.105, but the legal analysis is identical.

-20-



designed to avoid — lasted well within the period covered by the 
administrative complaints and in feet was major factor in causing 
the matters raised in the complaints.

The violations o f Dr. Chahil’s Rehabilitation Act and 
Title VII rights within the period covered by his administrative 
complaints, and the fact that those violations are a part o f a 
pattern, practice and pervasive policy of discrimination reaching 
back to the first days o f his disability, render the whole course 
o f conduct actionable. Sosa. 920 F.2d at 1455. Certainly Dr. 
Chahil presented enough evidence that the violations were 
continuous to establish a genuine issue as to the material facts.

As such, this Court should grant certiorari to resolve the 
differences among the circuits on this important federal issue.

I ll Giving an employee with a disability no work to do 
yet rating him fully satisfactory, admittedly because 
o f his disability, constitutes direct evidence of 
discrimination actionable under the Rehabilitation 
Act.

The Courts below found that there was no direct 
evidence of discrimination against Dr. Chahil, and proceeded to 
apply the test o f M cPnnneH Douglas Corp. v. Green, 411 U.S. 
792, 802 (1973) should be applied. That burden-shifting test is 
“inapplicable where the Plaintiff presents direct evidence of 
discrimination.” Trans-World Airlines v. Thurston. 469 U.S. 
I l l ,  121 (1984). In this case, however, the lower courts 
misconstrued what constitutes “direct evidence.”

-21-



While Dr. Chahil’s supervisors were well aware of Dr. 
Chahil’s disability, the availability of equipment to accommodate 
it, and the obligation to provide such accommodations, they 
failed and refused to do so. Mr. Brucy Gray admitted that he 
knowingly gave Dr. Chahil no work to do yet rated him “fully 
satisfactory” because o f his disability, thereby precluding Dr. 
Chahil from being promoted. This direct discrimination was 
continued by the other supervisors, in whose minds Gray had 
instilled the idea that Dr. Chahil was “useless” because he was 
blind.

Direct evidence need not come in the form of 
discriminatory remarks, as the lower courts seemed to assume. 
It can even be in the form of facially more favorable treatment. 
In Vaughn v. Edel. 918 F.2d 517 (5th Cir. 1990), the court 
found that the plaintiff, a black female attorney. Had shown 
direct evidence that such discrimination motivated her discharge:

Keller [her department manager) testified that to 
avoid provoking a discrimination suit he had told 
Vaughn’s supervisors not to confront her about 
her work. ... Keller also testified that he had 
deliberately overstated Vaughn’s evaluations in 
order not to start the process that might 
eventually lead to termination. This direct 
evidence clearly shows that Keller acted as he 
did solely because Vaughn is black. Texaco has 
never offered any evidence to show that in 
neither confronting Vaughn about her poor 
performance nor counselling her it would have 
acted as it did without regard to her race.
Vaughn has, consequently, established that

-22-



Texaco discriminated against her.

918 F.2d at 521-22. The court continued:

Initially, Texaco’s decisions not to criticize 
Vaughn and not to state her correct evaluations 
may have appeared beneficial, even — had she 
been aware o f them -- to Vaughn. She did, for 
example, receive a merit pay increase in 1986 
that she would not have received had Keller 
given her the evaluation that he believed she 
deserved. Ultimately, however, whether
Texaco's decisions may have damaged Vaughn's 
employment status at Texaco will never be 
known. Furthermore, whether Texaco's
decisions ultimately benefitted or harmed 
Vaughn is irrelevant. The decisions not to apply 
the usual procedures in Vaughn's case were 
racial decisions. Texaco has never stated any 
reason other than that she was black for treating 
Vaughn as it did. Had Texaco treated Vaughn in 
a color-blind manner from 1985 to 1987, 
Vaughn might have been fired by April 1987 for 
unsatisfactory work; on the other hand, she 
might have sufficiently improved her 
performance so as not to be one o f the two 
"lowest ranked" employees, thereby avoiding 
termination in April 1987. Consequently, Texaco 
must bear the cost o f its lost opportunity to 
determine whether Vaughn might have remained 
one of the two "lowest ranked" contract analysts 
had it not made decisions based on race. This 
circuit will not sterilize a seemingly objective

-23-



decision to fire an employee when earlier 
discriminatory decisions have infected it.

Because Texaco's behavior was race-motivated,
Texaco has violated Title VII Texaco limited or 
classified Vaughn in a way which would either 
"tend to deprive [her] of employment 
opportunities or otherwise adversely affect [her] 
status as an employee." 42 U.S.C. § 2000e- 
2(a)(2). Texaco has also "otherwise" 
discriminated against Vaughn with respect to her 
"terms, conditions, or privileges of 
employment." 42 U.S.C. § 2000e-2(a)(l).

Similarly, in assigning Dr. Chahil no work to do yet giving him 
favorable performance evaluations, and the continuation o f this 
“different” treatment by assigning him to Dr. Basiotis where he 
had no interaction with the other statisticians and otherwise 
isolating him, the Secretary denied him the opportunity to 
improve and to develop and demonstrate the management and 
supervisory skills that he needed for promotion. The District 
Court found that, as a result o f a lack o f such skills, he was 
ineligible for promotion and supervisory responsibilities -- the 
“legitimate non-discriminatory reason” given under McDonnell 
Douglas for the agency’s actions. As in Yauglm, the lower 
courts should have recognized this as direct evidence of 
discrimination and “not sterilizefd] a seemingly objective 
decision [] when earlier discriminatory decisions have infected 
it.”

The failure to follow Vaughn creates a split among the 
circuits on this important issue which this Court should resolve

-24-



on certiorari.

IV. The decision below, in holding th a t accommodation 
of only one aspect of Dr. Chahil’s disability by 
providing assisted reading equipment satisfies the 
agency’s duty under the Rehabilitation Act to 
provide reasonable accommodation, despite fading 
to accommodate other aspects of the disability by 
requiring him to navigate a stairway to use printers 
on another floor and by failing to provide a working 
environment free of smoke and glare, creates a 
conflict among the circuits on an im portant issue 
and decides an im portant federal question tha t 
should be settled by this c o u rt

The courts below held that providing assisted reading 
equipment to Dr. Chahil satisfied the Secretary’s duty to 
reasonably accommodate his disability, despite the fact that his 
employer refused to make the printers on his own floor available 
to him and despite the fact that assigning him a smoky work 
space that was not glare free aggravated his condition. The 
panel opinion in this case overlooked the Fourth Circuit’s own 
decision in Johnson v. Shalala. 991 F,2d 126, 132 (4th Cir. 
1993), cert denied 513 U.S. 806 (1994), which held that a 
partial or incomplete accommodation would fall short o f the 
requirements o f the Rehabilitation Act.

The Rehabilitation Act demands more o f the federal 
government than simple equality o f treatment—the 
government must affirmatively take steps to 
accommodate employees with handicaps, unless

-25-



accommodation would impose undue hardship on the 
government. 29 U.S.C. § 791; 29 C.F.R. § 1613.704. 
Treating disabled workers the same as workers without 
a disability falls short o f satisfying the requirements of 
the Rehabilitation Act. See Southeastern Community 
College v Davis. 442 U.S. 397, 410-11, 60 L. Ed. 2d 
980, 99 S. Ct. 2361 (1979).

Johnson v. Shalala. 991 F.2d 126, 131 (4th. Cir. 1993).

The district court in this case, summarily affirmed by the 
Court o f Appeals, held that the Secretary made reasonable 
accommodation of Dr. Chahil’s disability because it provided 
him with assisted reading equipment. But that accommodation 
(late in coming) does not mean that the Government can ignore 
other aspects o f Appellant’s disability, such as his sensitivity to 
smoke and difficulty in navigating stairs due to his blindness. 
Providing him assisted reading equipment does not make it any 
more reasonable that Appellant was denied the right to use the 
printers on his own floor or to have a smoke and glare free 
office that did not harm his eyes further. The decision o f the 
district court is clearly not in accord with Johnson.

The decision below also conflicts with, and misconstrues, 
Carter v. Bennett. 840 F.2d 63 (D.C. Cir. 1988), which held that 
once readers, assisted reading equipment, and a reduced 
workload were provided to a visually impaired employee, it was 
not required that the employer pro\ <de further accommodations 
geared to the same aspect of the disability. But that does not 
mean that the employer could, by providing only one partial 
accommodation, avoid its obligation to provide Appellant "with

-26-



reasonable accommodation as is necessary to enable him to 
perform his essential functions." 840 F.2d at 67. Availability of 
computer-assisted reading equipment does not address the 
sensitivity o f a cornea transplant patient and glaucoma sufferer 
to smoke and glare. Nor does assisted reading equipment 
address the sheer physical danger posed by requiring Appellant 
to climb stairs each time he needed to print a document. These 
aspects o f Appellant’s disability must also be reasonably 
accommodated. The question, as Carter holds, is simply one of 
reasonableness, and what the Appellee did concerning 
accommodation o f Appellant’s disability does not satisfy the 
requirements of the Rehabilitation Act.

The extent to which an employer must go to 
accommodate an employee’s disability is an important federal 
question, and it is one on which the lower courts need guidance 
from this Court. As such, Dr. Chahil asks that this Court grant 
certiorari on this issue.

-27-



CONCLUSION

WHEREFORE, Petitioner respectfully requests that this Court 
grant a writ of certiorari directed to the U.S. Court of Appeals 
for the Fourth Circuit to consider the questions presented herein.

Dated: March 23, 1998.
Respectfully submitted,

Daniel M. Press
Counsel o f Record fo r  Petitioner

Philip K. Chung 
Russell B. Adams, HI 
CHUNG & PRESS, P C.
6723 Whittier Ave., Suite 302 
McLean, VA 22101 
(703) 734-3800

-28-



APPENDIX

UNPUBLISHED

UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

PARSHOTAM SINGH CHAHIL, Ph D., 
Plaintiff-Appellant,
v. No. 96-2818
SECRETARY OF AGRICULTURE,
United States Department o f Agriculture, 
Defendant-Appellee.

Appeal from the United States District Court 
for the District o f Maryland, at Baltimore. 

Catherine C. Blake and Peter J. Messitte, District Judges. 
(CA-94-3201 -CCB)

Submitted: September 9, 1997

Decided: October 7, 1997

Before HALL, NIEMEYER, and MICHAEL, 
Circuit Judges.

Affirmed by unpublished per curiam opinion.

-A l-



COUNSEL
Daniel M. Press, Philip Chung, Russell B. Adams EH, CHUNG 
& PRESS, P.C., McLean, Virginia, for Appellant. Lynne A. 
Battaglia, United States Attorney, Allen F. Loucks, Assistant 
United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
See Local Rule 36(c).

OPINION
PER CURIAM:

Appellant Parshotam Singh Chahil appeals from a district court 
order granting the Defendant's motion for summary judgment 
and dismissing Chahil's complaint alleging unlawful employment 
discrimination. Chahil raises six issues on appeal: (1) whether 
the district court applied the appropriate standard o f review in 
granting summary judgment; (2) whether the district court erred 
by finding some of his claims time-barred and others as not 
raised in his administrative complaints; (3) whether he presented 
evidence showing that he was the victim of adverse employment 
actions; (4) whether he presented direct evidence o f unlawful 
employment discrimination; (5) whether he presented sufficient 
evidence to show that the Defendant's reasons for its actions 
were pretextual; and (6) whether the Defendant provided 
reasonable accommodation for his disability. Finding no 
reversible error, we affirm.

Chahil, who has a Ph.D. in statistics, worked for the Human 
Nutrition Information Service, an agency of the United States 
Department o f Agriculture ("USDA"), from 1984 until 1994, 
when the agency was disbanded. In 1985, Chahil developed a

-A2-



severe cornea problem, which required numerous surgeries in 
both eyes, and glaucoma. These maladies rendered Chahil legally 
blind and unable to read without using a magnifying device.

In 1992, Chahil filed the first of six formal EEO complaints with 
the USDA's EEO office alleging that his supervisors were hostile 
toward him and blocked his advancement; that the agency would 
not remove the supervisors; that his supervisors "killed" his 
independent research project; that he was not included in a 
rotating supervisor program; that he was moved out o f his 
private office and into a smoke-filled secretarial bay; and that he 
was forced to use printers on another floor. Chahil asserted that 
these actions were the result of unlawful discrimination based on 
his disability. The agency investigated Chahil's claims and issued 
a right to sue letter.

Chahil filed a timely complaint in district court, alleging that 
every one o f his supervisors since 1985 discriminated against 
him based on his disability, race, national origin, and religion. 
Chahil also alleged that the Defendant failed to accommodate his 
disability and that his supervisors retaliated against him for filing 
formal and informal EEO complaints.* After extensive 
discovery, the Defendant filed a motion for summary judgment, 
which the court granted.

After considering the parties' briefs and joint appendix, we affirm 
for the reasons stated in the district court's thorough opinion.5ee 
Chahil v. Secretary o f Agric., No. CA-94-3201-CCB (D. Md. 
Oct. 17, 1996). We reject Chahil's assertion that the district 
court made an improper credibility determination in granting 
summary judgment. After the Defendant gave a legitimate, non-

♦Chahil does not appeal the district court's grant o f summary judgment on the 

retaliation claim s.

-A3-



discriminatory reason for its actions, Chahil bore the burden of 
showing that the reason was a pretext for illegal discrimination. 
Texas Dep't o f Community Affairs v. Burdine, 450 U.S. 248, 
253 (1981). The district court properly found that Chahil's 
personal speculations standing alone were insufficient to satisfy 
this burden. See Evans v. Technologies Applications & Serv. 
Co., 80 F.3d 954, 960-61 (4th Cir. 1996). We dispense with oral 
argument because the facts and legal contentions are adequately 
presented in the material before the court and argument would 
not aid the decisional process.

AFFIRMED

-A4-



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MARYLAND

PARSHOTAM SINGH CHAHIL

V. Civil Action No. CCB-94-3201

SECRETARY OF AGRICULTURE,
UNITED STATES DEPARTMENT 
OF AGRICULTURE

MEMORANDUM OPINION

Plaintiff Parshotam Singh Chahil, Ph. D., has sued his 
employer, the Secretary o f Agriculture, alleging twelve claims 
under three different statutes: Title VII, § 1981, and the 
Rehabilitation Act o f 1973. Eight o f these claims involve 
discriminatory treatment on the basis o f race, national origin, 
religion, or low-vision disability. Two additional claims relate 
to the Secretary's alleged failure to accommodate Dr. Chahil's 
disability, and his final two claims assert that the Secretary 
retaliated against him following his formal and informal 
complaints o f discrimination. The Secretary disputes these 
claims, and has filed a motion for summary judgment. No 
hearing is deemed necessary. See Local Rule 105.6. For the 
reasons set forth below, the motion will be granted.

BACKGROUND
Dr. Chahil is a naturalized citizen from India who 

practices the Sikh religion, which includes wearing a full beard 
and turban. In 1984 the Human Nutrition Information Service, 
an agency of the Department o f Agriculture, hired Dr. Chahil to 
work as a statistician with a GS-11/13 career ladder. During his

-A5-



years with the department, Dr. Chahil was never given more 
than within scale pay raises.

Shortly after coming to work for the Department of 
Agriculture, Dr. Chahil began to experience vision difficulties. 
He now suffers from a low vision disability. The Department 
provided Dr. Chahil with some specialized equipment to 
accommodate his vision difficulties.

ANALYSIS

Rule 56(c) o f the Federal Rules o f Civil Procedure 
provides that:

[Summary judgment] shall be rendered forthwith if 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.

The Supreme Court clarified that this does not mean that 
any factual dispute will defeat the motion:

By its very terms, this standard provides that the mere 
existence o f some alleged factual dispute between the 
parties will not defeat an otherwise properly supported 
motion for summary judgment; the requirement is that 
there be no genuine issue o f material fact.

Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 247-48 (1986) 
(emphasis in original).

Moreover, the Supreme Court has explained that the

-A6-



Rule 56(c) standard mirrors the standard for judgment as a 
matter of law under Federal Rule of Civil Procedure 50 (a). The 
Court has stated that “there is no issue for trial unless there is 
sufficient evidence favoring the nonmoving party for a jury to 
return a verdict for that party.” Anderson. 477 U.S. at 249; see 
also Shaw v, Stroud, 13 F.3d 791, 798 (4th Cir.), cert, denied. 
115 S. Ct. 67 & .68 (1994) ; Catawba Indian Tribe v. South 
Carolina. 978 F.2d 1334, 1339 (4th Cir. 1992), cert denied. 113 
S. Ct. 1415 (1993). "The party opposing a properly supported 
motion for summary judgment may not rest upon mere 
allegations or denials of [its] pleading, but must set forth specific 
facts showing that there is a genuine issue for trial." Rivanna 
Trawlers Unlimited y. Thompson Trawlers. Inc,, 840 F.2d 236, 
240 (4th Cir. 1988). The court must "view the facts and draw 
reasonable inferences in a light most favorable to the nonmoving 
party," Shaw. 13 F. 3d at 798, but it also must abide by its 
affirmative obligation to ensure that factually unsupported 
claims and defenses do not proceed to trial. Feltv v. Graves- 
Humphreys Co.. 818 F.2d 1126, 1128 (4th Cir. 1987) (citing 
Celotex Corp. v. Catrett 477 U.S. 317, 323-24 (1986) ) .  " [A] 
defendant . . . should not be required to undergo the 
considerable expense of preparing for and participating in a trial" 
unless the plaintiff has produced "evidence on which a jury 
might rely" in support of the claims alleged. E.F. Hutton 
Mortgage Corp. v. Equitable Bank N A ,  678 F. Supp. 567,573 
(D Md. 1988).

I. Discrimination Claims

Dr. Chahil’s complaint includes eight counts of 
discriminatory treatment related to his race, national origin, 
religion, and disability. During the course o f pleading his case 
Dr. Chahil refers to only one piece o f direct evidence, a 
statement made by Brucy Gray sometime in the 1980's regarding

-A7-



Dr. Chahil's ability to see the screen due to his disability. 
Plaintiffs Opposition at 42-45.1 This statement will not be 
considered relevant evidence because it was made four years 
before Dr. Chahil filed his first formal complaint with the EEOC 
and was not relied on in any of his EEOC complaints.2 See 
Birkbeck v. Marvel Lighting Corp... 30 F.3d 507, 511-12 (4th 
Cir.) cert denied. 115 S. Ct. 666 (1994) . Furthermore, the 
statement was made only once, idL, and was not made by or in 
the presence of persons alleged to have discriminated against Dr. 
Chahil as recounted in the EEOC complaints. See Douglas. 
PHH Fleet America Corp.. 832 F. Supp. 1002, 1010 (D. Md. 
1993).

In the absence of direct proof, the McDonnell-Douglas 
test is appropriate for eight o f Dr. Chahil's twelve claims. The 
same test can be used under all three statutes. Ennis v. National 
Ass'n of Business and Educational Radio. Iml, 53 F.3d 55, 57- 
58 (4th Cir. 1995) (referring to Title VII and the Rehabilitation 
Act); Williams v. Ceiheronics. Inc.. 871 F.2d 452, 460 (4th Cir. 
1989) (referring to § 1981 and Title VII). For purposes o f 
considering the Title VII, § 1981, and Rehabilitation claims the 
court will assume without deciding that Mr. Chahil presented a

'The Secretary also refers to a comment made by Mr. Rust in late 
April or early May o f 1992: "Well, you're having all this problem with Harris. 
Have you thought about just moving to India, leaving, you know?" Plaintiffs 
Deposition June 28,1995 at 72-73 (Defendant's Exhibit 1C). In his opposition 
to defendant's motion for summary judgment Dr. Chahil does not rely on this 
evidence. Even if  this statement was considered, it is not enough to show  
discrimination on the basis o f national origin where the statement was made 
only once and is unsupported by other evidence. Birkbeck v. Marvel Lighting 
Com.. 30 F.3d 507 ,512  (4th Cir.), cert, denied. 115 S. Ct. 666 (1994).

'Many o f Dr. Chahil’s complaints in this lawsuit were never presented 
to the EEOC and are barred as untimely or for lack o f administrative 
exhaustion.

-A8-



prima facie case o f discrimination on the basis of race, national 
origin, religion, and disability. This raises an inference of 
discrimination and shifts the burden o f production to the 
Secretary to articulate a legitimate, non-discriminatory reason 
for the actions alleged. McDonnell Douglas Corp. v. Green. 411 
U S. 792, 802 (1973).

The Secretary claims that all of the actions taken against 
Dr. Chahil related to his lack o f prerequisite abilities and 
technical capacity as well as his poor leadership skills and failure 
to publish articles. This articulation o f non-discriminatory 
reasons is well documented in defendant’s records. See 
Defendant’s Memorandum in support o f Summary Judgment at 
33-39. The burden of production accordingly shifts back to Dr. 
Chahil to show that the reasons were merely pretextual. 
McDonnell Douglas. 411 U.S. at 804.

Plaintiff bears the burden o f showing that defendant 
intentionally discriminated against him on the basis o f his race, 
national origin, religion, and disability. Lucas v. Dole. 835 F.2d 
532, 533 (4th Cir. 1987). The key to this showing is that the 
plaintiff must demonstrate that "discrimination was the real 
reason" for the challenged actions. Theard v. Galxco. Inc.. 47 
F.3d 676, 680 (4th Cir. 1995), quoting SL.Mary'S HQHQL££Dl£r 
v. Hicks. 509 U.S. 502, 514 (1993). The plaintiff must do more 
than assert his belief that he was discriminated against in order 
to  show he has been the victim of intentional discrimination. 
Evans v. Technologies Applications & Service Co.. 80 F.3d 954, 
960 (4th Cir. 1996); Robinson.y. Montgomery Ward and Cq„ 
Inc . 823 F.2d 793, 796 (4th Cir. 1987), cert, denied. 484 U.S. 
1042 (1988). Dr. Chahil must show "either directly by 
persuading the court that a discriminatory reason more likely 
motivated the employer or indirectly by showing that the 
employer's proffered explanation is unworthy o f credence," that

-A9-



the legitimate, nondiscriminatory explanation offered by the 
Secretary is pretextual. Long v. Ringling Bros-Bamum & 
Bailev Combined Shows. Inc.. 882 F. Supp. 1553, 1564 (D. 
Md. 1995), quoting Texas Department o f Community Affa i r s  
Bnrdine. 450 U.S. 248, 256 (1981). $££ alSQ Abasiekong V. City 
of Shelbv. 744 F.2d 1055, 1058 (4th Cir. 1984).

In this case Dr. Chahil has failed to present evidence, 
direct or circumstantial, to support the idea that his negative 
experiences were based on his race, religion, national origin, or 
low-vision disability,3 or that discrimination was more likely the 
reason for the experiences. Long. 882 F. Supp. at 1564. Dr. 
Chahil also has not shown that the Secretary's explanation is 
unworthy of credence or that "but for" the discrimination, he 
would not have suffered his alleged harms. Douglas. 832 F. 
Supp. at 1010. Dr. Chahil could have called multiple witnesses 
to attest to the alleged discriminatory acts, but did not. 
e g.. Defendant's Exhibits 52 and 55. Instead, Dr. Chahil relies 
on his own speculation and assertion to establish that the 
explanation is pretextual and that the defendant acted with 
discriminatory intent.4 At the summary judgment stage o f the 
proceeding, this lack o f evidence is fatal. The Secretary's 
legitimate explanation, by contrast, are well-supported and 
persuasive. Because Dr. Chahil failed to offer proof that creates 
a genuine issue of material fact, the Secretary's motion for

’Many of the negative experiences alleged by Dr. Chahil are 
insufficient to constitute adverse employment actions remediable by the 
and-discrimination statutes he relies on. See Page v. Bolger. 645 F.2d 
227,233 (4th Cir. 1981), cert, denied. 454 U.S. 92 (1982).

ffo the extent any other admissible evidence was presented, it 
also was insufficient to establish discriminatory intent. &£ Benzies v. 
Illinois Dept of Mental Health and Developmental Disabilities, 810 
F.2d 146,148 (7th Cir. 1987), cert, denied. 483 U.S. 1006 (1987).

-A10-



summary judgment on counts one through eight will be granted. 

II. Reasonable Accommodation Claims

Counts nine and ten o f the complaint require some 
consideration o f what constitutes a reasonable accommodation 
under the Rehabilitation Act o f 1973. 29 U.S.C. § 701 et seq. 
Where an employee could do the job if provided "reasonable 
accommodation," the employer is required to provide such 
accommodation. 29 C.F.R. § 1614.203(cXl); Johnson v. 
Sullivan. 764 F. Supp. 1053, 1065 (D. Md. 1991). 
Accommodations that impose "undue financial and 
administrative burdens" are not considered reasonable. 
Southeastern Community College v. Davis. 442 U.S. 397,412 
(1979) . "[0]nce the employer puts forth credible evidence of 
reasonable accommodation or inability to accommodate, plaintiff 
has the burden o f providing evidence regarding possible 
accommodation to rebut the employer's evidence." Johnson. 764 
F. Supp. at 1065 (citations omitted).

In Carter v. Bennett the court was faced with a similar 
situation where defendant provided some accommodation for 
plaintiffs blindness. 651 F. Supp. 1299 (D. D C. 1987), afijd, 
840 F 2d 63 (1980). Plaintiff, a federal employee, subsequently 
complained under the Rehabilitation Act that he was not 
reasonably accommodated. He argued that in addition to some 
accommodations already in place, the government should 
provide him with "a full time reader o f his choice, more 
technically advanced equipment, and easier access to additional 
work space." Id at 1301. The court found that the plaintiff was 
not entitled to relief and explained that "[t]he government is not 
obligated under the statute to provide plaintiff with every 
accommodation he may request, but only with reasonable 
accommodation as is necessary to enable him to perform his

-A l l -



essential functions." Id

With respect to Dr. Chahil's two complaints before the 
EEOC5 for failure to reasonably accommodate, Dr. Chahil 
complains that the Secretary failed to accommodate him when 
on January 27, 1993 he was relocated to work in a smoke-filled 
environment without space for his low-vision equipment. 
Plaintiffs Complaint at ^ 79. He was moved to a smoke-free 
room on February 5, 1993 and to a better space in April 1993 
but then beginning in July 1993 was forced to use printers on the 
floor below his office. £fi£ Defendant's Motion for Summary 
Judgment Exhibits IC at 18, 28, 52, 87-89; Exhibit 6 at 13-16; 
Exhibit 38.

The Department has provided undisputed evidence that 
it reasonably accommodated Dr. Chahil's low-vision disability. 
Specifically, the Secretary provided a student assistant, 
expensive computer equipment at Dr. Chahil’s request, time to 
obtain and learn how to use that equipment, and a private office. 
Plaintiffs Deposition on June 26, 1995 at 62-64, 155-57; 
Defendant's Motion for Summary Judgment Exhibits 2, 6 at 15.

Dr. Chahil has not shown the court any convincing 
evidence that his additional accommodations were necessary. 
Dr. Chahil has not provided medical evidence o f a problem 
caused by the changes in his workplace. In addition, he has not 
shown the court that he could not do his job and thereby 
suffered adverse action. Because Dr. Chahil has not

5Dr. Chahil alleges various failures to accommodate. This 
opinion limit.*; its consideration to the two incidents which were alleged 
in EEOC complaints and made subjects of counts nine and ten of Dr. 
Chahil’s complaint filed in this court. See Defendant's Motion for 
Summary Judgment Exhibit 53,55; Plaintiffs Complaint 79, 83.

-A12-



demonstrated that these accommodations were necessary for 
adequate performance o f his job there is no genuine issue to 
preclude summary judgment. Accordingly, the Secretary’s 
motion for summary judgment on counts nine and ten will be 
granted.

IQ. Retaliation Claims

In order to prevail on a retaliation claim a plaintiff must 
first establish a prima facie case by showing that: (1) he engaged 
in a protected activity; (2) the defendant took adverse 
employment action against him; and (3) there is a causal nexus 
between the adverse action and the protected activity. Carter v . 
Ball. 33 F.3d 450, 459 (4th Cir. 1994). If  the employer rebuts 
the inference raised by the prima facie case with a non- 
retaliatory explanation for his actions, the plaintiff bears the 
burden o f showing that the defendant's reasons are pretextual.
Id.

Assuming arguendo that Dr. Chahil established a prima 
facie case, the Secretary is still entitled to summary judgment on 
these claims. As was the case with the discrimination claims, the 
Secretary had substantial reasons for its actions and Dr. Chahil 
has not shown those reasons to be pretextual. Therefore, 
defendant's motion for summary judgment on counts eleven and 
twelve will be granted.

A separate Order follows.

Oct. 15. 1996 
Date

Zs/_____ ______ ____
Catherine C. Blake 
United States District Judge

-A13-



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MARYLAND

PARSHOTAM SINGH CHAHIL

V. Civil Action No. CCB-94-3201

SECRETARY OF AGRICULTURE, 
UNITED STATES DEPARTMENT 
OF AGRICULTURE

ORDER

For the reasons stated in the accompanying 
Memorandum Opinion, it is hereby ORDERED that:

1 . defendant's motion for summary judgment is 
GRANTED; and

2. copies o f this Order and the accompanying 
Memorandum Opinion shall be mailed to counsel o f record.

Oct. 15. 1996 
Date

IsL___________ _
Catherine C. Blake 
United States District Judge



UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

FILED
December 22, 1997

No. 96-2818
C A-94-3201 -CCB

PARSHOTAM SINGH CHAHIL, Ph D.
Plaintiff - Appellant

v.

SECRETARY OF AGRICULTURE,
United States Department o f Agriculture 

Defendant - Appellee

On Petition for Rehearing with Suggestion for Rehearing In Banc

The appellant's petition for rehearing and suggestion for 
rehearing in banc were submitted to this Court. As no member 
o f this Court or the panel requested a poll on the suggestion for 
rehearing in banc, and

As the panel considered the petition for rehearing and is 
o f the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and 
suggestion for rehearing in banc are denied.

For the Court,
/s/ Patricia S. Connor___

CLERK

-A15-



STATUTORY AND REGULATORY PROVISIONS

Rehabilitation Act of 1973, as amended

29 U.S.C. § 791. Employment of individuals with disabilities

(b) Federal agencies; affirmative action program  plans. 
Each department, agency, and instrumentality (including the 
United States Postal Service and the Postal Rate Commission) 
in the executive branch shall, within one hundred and eighty 
days after September 26, 1973, submit to the Commission and 
to  the Committee an affirmative action program plan for the 
hiring, placement, and advancement o f individuals with 
disabilities in such department, agency, or instrumentality. Such 
plan shall include a description o f the extent to which and 
methods whereby the special needs o f employees who are 
individuals with disabilities are being met. Such plan shall be 
updated annually, and shall be reviewed annually and approved 
by the Commission, if the Commission determines, after 
consultation with the Committee, that such plan provides 
sufficient assurances, procedures and commitments to provide 
adequate hiring, placement, and advancement opportunities for 
individuals with disabilities.

(g) Standards used in determining violation of section
The standards used to determine whether this section has been 
violated in a complaint alleging nonaffirmative action 
employment discrimination under this section shall be the 
standards applied under title I o f the Americans with Disabilities 
Act o f 1990 (42 U.S.C. 12111 et seq.) and the provisions of 
sections 501 through 504, and 510, o f the Americans with 
Disabilities Act o f 1990 (42 U.S.C. 12201-12204 and 12210), 
as such sections relate to employment.

-A16-



29 U.S.C. § 794a. Remedies and attorney fees

(aXl) The remedies, procedures, and rights set forth in section 
717 o f the Civil Rights Act o f 1964 (42 U.S.C. 2000e-16), 
including the application o f sections 706(f) through 706(k) (42 
U.S.C. 2000e-5(f) through (k)), shall be available, with respect 
to any complaint under section 791 of this title, to any employee 
or applicant for employment aggrieved by the final disposition 
o f such complaint, or by the failure to take final action on such 
complaint. In fashioning an equitable or affirmative action 
remedy under such section, a court may take into account the 
reasonableness o f the cost o f any necessary work place 
accommodation, and the availability o f alternatives therefor or 
other appropriate relief in order to achieve an equitable and 
appropriate remedy.

(2) The remedies, procedures, and rights set forth in title VI o f 
the Civil Rights Act o f 1964 [42 U.S.C. 2000d et seq ] shall be 
available to any person aggrieved by any act or failure to act by 
any recipient o f Federal assistance or Federal provider o f such 
assistance under section 794 o f this title.

(b) In any action or proceeding to enforce or charge a violation 
o f a provision of this subchapter, the court, in its discretion, may 
allow the prevailing party, other than the United States, a 
reasonable attorney's fee as part o f the costs.

Civil Rights Act of 1991

42 U.S.C. § 1981a. Damages in cases of intentional 
discrimination in employment

(a) Right of recovery
(1) Civil rights In an action brought by a complaining party

-A17-



under section 706 or 717 of the Civil Rights Act o f 1964 [42 
U.S.C. 2000e-5, 2000e-16] against a respondent who engaged 
in unlawful intentional discrimination (not an employment 
practice that is unlawful because o f its disparate impact) 
prohibited under section 703, 704, or 717 o f the Act [42 U.S.C. 
2000e-2, 2000e-3, 2000e-16], and provided that the 
complaining party cannot recover under section 1981 o f this 
title, the complaining party may recover compensatory and 
punitive damages as allowed in subsection (b) o f this section, in 
addition to any relief authorized by section 706(g) o f the Civil 
Rights Act o f 1964, from the respondent.

(2) Disability In an action brought by a complaining party 
under the powers, remedies, and procedures set forth in section 
706 or 717 of the Civil Rights Act o f 1964 [42 U.S.C. 2000e-5, 
2000e-16] (as provided in section 107(a) o f the Americans with 
Disabilities Act o f 1990 (42 U.S.C. 12117(a)), and section 
794a(aXl) o f title 29, respectively) against a respondent who 
engaged in unlawful intentional discrimination (not an 
employment practice that is unlawful because o f its disparate 
impact) under section 791 o f title 29 and the regulations 
implementing section 791 of title 29, or who violated the 
requirements o f section 791 o f title 29 or the regulations 
implementing section 791 of title 29 concerning the provision of 
a reasonable accommodation, or section 102 o f the Americans 
with Disabilities Act o f 1990 (42 U.S.C. 12112), or committed 
a violation of section 102(bX5) of the Act, against an individual, 
the complaining party may recover compensatory and punitive 
damages as allowed in subsection (b) o f this section, in addition 
to any relief authorized by section 706(g) o f the Civil Rights Act 
o f 1964, from the respondent.

(3) Reasonable accommodation and good faith effort In
cases where a discriminatory practice involves the provision of

-A18-



a reasonable accommodation pursuant to section 102(b)(5) of 
the Americans with Disabilities Act o f 1990 [42 U.S.C. 
12112(b)(5)] or regulations implementing section 791 o f title 
29, damages may not be awarded under this section where the 
covered entity demonstrates good faith efforts, in consultation 
with the person with the disability who has informed the covered 
entity that accommodation is needed, to identify and make a 
reasonable accommodation that would provide such individual 
with an equally effective opportunity and would not cause an 
undue hardship on the operation o f the business,

(c) Jury trial I f  a complaining party seeks compensatory or 
punitive damages under this section—

(1) any party may demand a trial by jury; and
(2) the court shall not inform the jury o f the limitations 

described in subsection (b)(3) o f this section.

Title VII of the Civil Rights Act of 1964, as amended

42 U.S.C. § 2000e-2. Unlawful employment practices

(a) Employer practices It shall be an unlawful employment 
practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, 
or otherwise to discriminate against any individual with respect 
to his compensation, terms, conditions, or privileges o f 
employment, because o f such individual's race, color, religion, 
sex, or national origin; or

(2) to limit, segregate, or classify his employees or 
applicants for employment in any way which would deprive or 
tend to deprive any individual o f employment opportunities or 
otherwise adversely affect his status as an employee, because o f 
such individual's race, color, religion, sex, or national origin.

-A19-



(m) Impermissible consideration of race, color, religion, sex, 
or national origin in employment practices Except as 
otherwise provided in this subchapter, an unlawful employment 
practice is established when the complaining party demonstrates 
that race, color, religion, sex, or national origin was a motivating 
factor for any employment practice, even though other factors 
also motivated the practice.

42 U.S.C. § 2000e-3. O ther unlawful employment practices

(a) Discrimination for making charges, testifying, assisting, 
or participating in enforcement proceedings It shall be an 
unlawful employment practice for an employer to discriminate 
against any o f his employees or applicants for employment, for 
an employment agency, or joint labor-management committee 
controlling apprenticeship or other training or retraining, 
including on-the-job training programs, to discriminate against 
any individual, or for a labor organization to discriminate 
against any member thereof or applicant for membership, 
because he has opposed any practice made an unlawful 
employment practice by this subchapter, or because he has made 
a charge, testified, assisted, or participated in any manner in an 
investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-16. Employment by Federal Government

(a) Discriminatory practices prohibited; employees or 
applicants for employment subject to coverage All personnel 
actions affecting employees or applicants for employment 
(except with regard to aliens employed outside the limits o f the 
United States) in military departments as defined in section 102 
of title 5, in executive agencies as defined in section 105 o f title 
5 (in clu d in g  employees and applicants for employment who are

-A20-



paid from nonappropriated funds), in the United States Postal 
Service and the Postal Rate Commission, in those units o f the 
Government of the District o f Columbia having positions in the 
competitive service, and in those units o f the judicial branch o f 
the Federal Government having positions in the competitive 
service, and in the Government Printing Office, the General 
Accounting Office, and the Library o f Congress shall be made 
free from any discrimination based on race, color, religion, sex, 
or national origin.

(c) Civil action by employee o r applicant for employment 
for redress of grievances; time for bringing of action; head 
of department, agency, or unit as defendant Within 90 days 
o f receipt o f notice o f final action taken by a department, 
agency, or unit referred to in subsection (a) o f this section, or by 
the Equal Employment Opportunity Commission upon an appeal 
from a decision or order o f such department, agency, or unit on 
a complaint of discrimination based on race, color, religion, sex 
or national origin, brought pursuant to subsection (a) o f this 
section, Executive Order 11478 or any succeeding Executive 
orders, or after one hundred and eighty days from the filing o f 
the initial charge with the department, agency, or unit or with 
the Equal Employment Opportunity Commission on appeal from 
a decision or order o f such department, agency, or unit until 
such time as final action may be taken by a department, agency, 
or unit, an employee or applicant for employment, if aggrieved 
by the final disposition of his complaint, or by the failure to take 
final action on his complaint, may file a civil action as provided 
in section 2000e-5 o f this title, in which civil action the head o f 
the department, agency, or unit, as appropriate, shall be the 
defendant.

Code of Federal Regulations

-A21-



It is unlawful for a covered entity to discriminate on the basis of 
disability against a qualified individual with a disability in regard 
to:
(a) Recruitment, advertising, and job application procedures;
(b) Hiring, upgrading, promotion, award o f tenure, demotion, 
transfer, layoff, termination, right o f return from layoff, and 
rehiring;
(c) Rates of pay or any other form of compensation and changes 
in compensation;
(d) Job assignments, job classifications, organizational 
structures, position descriptions, lines o f progression, and 
seniority lists;
(e) Leaves o f absence, sick leave, or any other leave;
(f) Fringe benefits available by virtue of employment, whether or 
not administered by the covered entity;
(g) Selection and financial support for training, including: 
apprenticeships, professional meetings, conferences and other 
related activities, and selection for leaves o f absence to pursue 
training;
(h) Activities sponsored by a covered entity including social and 
recreational programs; and
(i) Any other term, condition, or privilege o f employment.

The term discrimination includes, but is not limited to, the acts 
described in Secs. 1630.5 through 1630.13 o f this part.

29 C.F.R. § 1630.5 Limiting, segregating, and classifying.

It is unlawful for a covered entity to limit, segregate, or classify 
a job applicant or employee in a way that adversely affects his or 
her employment opportunities or status on the basis o f disability.

29 C.F.R. § 1630.4 Discrimination prohibited.

-A22-



(a) It is unlawful for a covered entity not to make reasonable 
accommodation to the known physical or mental limitations of 
an otherwise qualified applicant or employee with a disability, 
unless such covered entity can demonstrate that the 
accommodation would impose an undue hardship on the 
operation o f its business.
(b) It is unlawful for a covered entity to deny employment 
opportunities to an otherwise qualified job applicant or 
employee with a disability based on the need o f such covered 
entity to make reasonable accommodation to such individual's 
physical or mental impairments.
(c) A covered entity shall not be excused from the requirements 
of this part because of any failure to receive technical assistance 
authorized by section 506 o f the ADA, including any failure in 
the development or dissemination o f any technical assistance 
manual authorized by that Act.
(d) A qualified individual with a disability is not required to 
accept an accommodation, aid, service, opportunity or benefit 
which such qualified individual chooses not to accept. However, 
if  such individual rejects a reasonable accommodation, aid, 
service, opportunity or benefit that is necessary to enable the 
individual to perform the essential functions o f the position held 
or desired, and cannot, as a result o f that rejection, perform the 
essential functions o f the position, the individual will not be 
considered a qualified individual with a disability.

29  C.F.R. § 1630.9 Not making reasonable accommodation.

-A23-



Law Office of Frederick S, Mittelman, Esq.
5 179 37th Road North 

Arlington, VA 222.07 - 1825 
(703) 534-3953 

Fax: (703) 534-5975 
E-mail: Fredmittelman@worldnetatt.net

April 6, 1998

Elaine Jones
NAACP Legal Defense and Educational Fund, Inc.
99 Hudson Street 
New York, NY 10013

RE: Am icus participation in Chahil v. Dan Glickman, Secretary of A griculture; 
(U.S.S.C. No. 97-1593, cert, pending)

Dear Elaine:

The enclosed cert, petition filed by some colleagues of mine raises some issues I 
think might be of interest to the LDF. I would greatly appreciate your taking the time to 
review it and consider it for amicus participation at the certiorari stage. Responses to the 
petition are due April 27, 1998.

Dr. Parshotam Chahil is a Sikh mathematical statistician employed by the 
Department o f Agriculture. Since 1985 he has suffered from severe corneal problems 
which leave him legally blind. He requires special equipment to read normal type and 
must be in a smoke and glare free environment.

He was subjected to a long and continuing pattern of discrimination based on his 
disability and religion made up of many seemingly little events. He was never given a 
reasonable accommodation that dealt with the total of the factors of his disability. The 
facts are set out in more detail in the petition.

The District Court granted summary judgment based upon Page v. Bolger , 645 
F.2d 227(4th Cir. 1981), and the Fourth Circuit summarily affirmed adopting the District 
Court’s reasoning. Page essentially has been read by most of the circuits having 
considered the issue to stand for the proposition that only ultimate employment decisions 
rise to the level of Title VII violations. This proposition has not been revisited since the 
1991 changes in Title VII and the development of hostile environment law.

The District Court, and by it’s affirmance, the Court of Appeals, refused to 
consider discriminatory events which were part of the continuing pattern of discrimination

Admitted in Virginia, District of Columbia, New York

mailto:Fredmittelman@worldnetatt.net


Elaine Jones 
Page 2 
April 6, 1998

against Dr, Chahil, saying they occurred outside the very strict limitations period for federal 
workers. This completely nullifies the long standing continuing violation doctrine as defined in
Basemore v. Friday, 478 U S 385 (1986).

Additionally, the courts below held that accommodating one aspect of Dr. Chahil’s 
disability satisfied the Agency’s obligations under the Rehabilitation Act even though other 
serious aspects o f the disability were left totally unaccommodated.

If  you are interested, the client would appreciate any amicus support you could provide. I
or Dr. Chahil’s counsel can answer any questions and provide more material.

Hope everything is going well for you and the Fund.

Sincerely,

Frederick S. Mittelman 
Attorney at Law

Enclosure

cc: Dan Press

Admitted in Virginia, District of Columbia, New York