move to dismiss the claims against them on a number of grounds.
First, defendants maintain that they were never served properly with the summons and complaint in this case and that this Court therefore is without personal jurisdiction over them. See Rule 4, Fed. R. Civ. P. As defendants point out, the burden of establishing personal jurisdiction is on plaintiff. See Reuber v. United States, 242 U.S. App. D.C. 370, 750 F.2d 1039, 1052 (D.C. Cir. 1984). The only evidence of any service on defendants is plaintiff's claim that Mr. Burn Reist, the Peace Corps' Executive Secretary, and "[B] Spencer," a Peace Corps resident agent, signed for all defendants in their individual and official capacities. Pl.'s Response in Opp'n to Defs.' Mot. to Dismiss at 6; Pl.'s Affidavit of Service of Process - Return, Docket Nos. 6, 9 (Dec. 2, 1996); see Defs.' Mem. of Points and Authorities, Ex. 1.
It is established that a defendant's service on his or her employer or its agents is not sufficient to effect personal service on an individual being sued in his or her personal capacity. See Simpkins v. District of Columbia, 323 U.S. App. D.C. 312, 108 F.3d 366, 368-69 (D.C. Cir. 1997) (government employees sued personally for money damages must be personally served under Rule 4(e), Fed. R. Civ. P.); Navy, Marshall & Gordon, P.C. v. United States International Development-Cooperation Agency, 557 F. Supp. 484, 489-90 (D.D.C. 1983) (federal agents sued in individual capacities for money damages must be served personally and not by certified mail or service upon offices in which defendants work); Betlyon v. Shy, 573 F. Supp. 1402, 1405 (D. Del. 1982) (same). Plaintiff has failed to demonstrate that he has personally served the defendants sued in their individual capacities.
Second, regardless of service, these defendants argue that they are entitled to official immunity with respect to any claim asserted against them in their individual capacities because plaintiff's allegations do not establish that their conduct violated any clearly established statutory or constitutional rights of which a reasonable person would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1981). The burden is on plaintiff to demonstrate a prima facie case of defendants' knowledge of impropriety. Krohn v. United States, 742 F.2d 24, 31-32 (1st Cir. 1984). With the exception of the Rehabilitation Act and Title VII claims, plaintiff has failed to demonstrate or even allege that defendants have violated any clearly established right of plaintiff or acted unreasonably in regard to the matter about which plaintiff complains.
Third, as defendants point out, there can be no Bivens-type remedy for constitutional violations against individuals where Congress has created a comprehensive statutory scheme to provide relief from the government. See Carlson v. Green, 446 U.S. 14, 18-19, 64 L. Ed. 2d 15, 100 S. Ct. 1468 (1980). In this action, plaintiff essentially seeks relief for alleged employment discrimination based on disability and race. Because Congress has provided a comprehensive remedial scheme, there is no legitimate Bivens claim before the Court. See Brown v. GSA, 425 U.S. 820, 834-35, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976) (Title VII is comprehensive scheme); Rattner v. Bennett, 701 F. Supp. 7, 9 (D.D.C. 1988) (Rehabilitation Act is comprehensive scheme). Furthermore, because Title VII provides the exclusive judicial remedy for claims of discrimination in federal employment and the Rehabilitation Act of 1973 is the exclusive remedy for disability discrimination by the government, plaintiff's equal protection claim must also be dismissed. See Ethnic Employees of Library of Congress v. Boorstin, 243 U.S. App. D.C. 186, 751 F.2d 1405, 1415 (D.C. Cir. 1985) (Title VII is exclusive remedy); Paegle v. Dep't of the Interior, 813 F. Supp. 61, 66-67 (D.D.C. 1993) (Rehabilitation Act is exclusive remedy).
Fourth, to the extent that plaintiff alleges state common law torts, he must sue the United States, which is the only proper defendant, and then may do so only to the extent that Congress has waived sovereign immunity for suit in the Federal Tort Claims Act. United States v. Smith, 499 U.S. 160, 166, 113 L. Ed. 2d 134, 111 S. Ct. 1180 (1991); see Simpkins v. District of Columbia, 108 F.3d at 371.
For all of these reasons, all claims against the defendants sued in their individual capacities, except for the Rehabilitation Act and Title VII claims, must be dismissed. With respect to the latter, while an individual may be a nominal defendant, relief may be obtained against the employer only. See Gary v. Long, 313 U.S. App. D.C. 403, 59 F.3d 1391, 1399 (D.C. Cir.), cert. denied, 116 S. Ct. 569 (1995); Hackley v. Roudebush, 171 U.S. App. D.C. 376, 520 F.2d 108, 115 n. 17 (D.C. Cir. 1975); Nelson-Cole v. Borg-Warner Security Corp., 881 F. Supp. 71, 73-74 (D.D.C. 1995); Rattner v. Bennett 701 F. Supp. at 9. Accordingly, all claims against defendants, save Director Gearan, will be dismissed.
III. SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits or declarations, if any, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P. Material facts are those that "might affect the outcome of the suit under the governing law. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). When considering a summary judgment motion, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255; see also Washington Post Co. v. United States Dep't of Health and Human Services, 275 U.S. App. D.C. 101, 865 F.2d 320, 325 (D.C. Cir. 1989); Ross v. Runyon, 859 F. Supp. 15, 21-22 (D.D.C. 1994), aff'd, 1995 U.S. App. LEXIS 37172, 1995 WL 791567 (D.C. Cir. 1995).
Even in employment discrimination cases, however, the non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Rule 56(e), Fed.R.Civ.P.; Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in its favor. Laningham v. United States Navy, 259 U.S. App. D.C. 115, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50; see Johnson v. Digital Equipment Corp., 836 F. Supp. 14, 15 (D.D.C. 1993) (in discrimination case, plaintiff cannot rest on mere allegations of pretext but must point to genuine issues of material fact in the record).
IV. THE REHABILITATION ACT
The Rehabilitation Act provides that "no otherwise qualified individual . . . shall, solely by reason of his [or her] handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity . . . conducted by any Executive agency . . . ." 29 U.S.C. § 794(a). The Act defines an "individual with a disability" as "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." 29 U.S.C. § 706(8)(B). "Major life activities" are illustrated by the regulations as "functions, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 45 C.F.R. § 84.3(j)(2)(ii); see 29 C.F.R. §§ 1613.702(c), 1630.2(i).
In order to establish a prima facie case of discrimination under the Act, a plaintiff must show (1) that plaintiff is an individual with a disability within the meaning of the Act, (2) that plaintiff is otherwise qualified for the job, and (3) that plaintiff was adversely treated or denied the benefits of his position solely because of his handicap. Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir. 1993), cert. denied, 511 U.S. 1011, 128 L. Ed. 2d 61, 114 S. Ct. 1386 (1994); see also Gaskins v. Runyon, 921 F. Supp. 779, 781 (D.D.C.), aff'd, 1994 U.S. App. LEXIS 36606, 1994 WL 704080 (D.C. Cir. 1994), cert. denied, 116 S. Ct. 196 (1995). The inquiry into whether a person is disabled is an individualized one and must be determined on a case-by-case basis. Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir. 1986).
A. Individual with a Disability
Because both plaintiff and defendants deny that plaintiff is disabled, Pl.'s Response in Opp'n to Defs.' Mem. of Points and Authorities at 13; Defs.' Mem. of Points and Authorities at 24-26, plaintiff must show either (a) that he has a record of an impairment and that such impairment substantially limits a major life activity, or (b) that defendants regarded him as being "impaired" and that they perceived that impairment as substantially limiting a major life activity. 29 U.S.C. § 706(8)(B). In other words, the tests for having a record of or being perceived as disabled mirror the test for having an actual disability in that only recorded or perceived impairments that substantially limit a major life activity will bring plaintiff under the Act.
The 1979 Air Force report creates a record of an impairment, a record that will follow plaintiff any time he applies for a federal job for which a NAC is performed. There is no evidence, however, that plaintiff's record of a personality disorder has ever substantially prevented him from performing any major life activity.
Since leaving the Air Force 18 years ago, plaintiff attended law school, became a member of the Maryland bar and now works as a Legal Aid attorney in Baltimore. He has provided no evidence of any adverse impacts in employment as a result of his unsuccessful effort to obtain a position as an overseas PCV. Nor has plaintiff shown that the alleged personality disorder, if any, has substantially limited any other major life activity. He therefore has not made out a prima facie case of having a record of a disability.
An employer will be found to have "regarded" an employee as disabled where the employer perceives or treats its employee as substantially impaired in a major life activity. See Andrews v. State of Ohio, 104 F.3d 803, 809-10 (6th Cir. 1997); Daley v. Koch, 892 F.2d 212, 215-16 (2d Cir. 1989). This category includes persons who have an impairment that substantially limits a major life activity "only as a result of the attitudes of others toward such impairment." 45 C.F.R. § 84.3(j)(2)(iv); see 29 C.F.R. § 1630.2(l)(2).
In order to show that the Peace Corps regarded him as disabled, plaintiff must demonstrate not only that it found him to be unqualified to be an oversees PCV but also that it considered his impairment "to foreclose generally the type of employment involved." Chandler v. City of Dallas, 2 F.3d at 1392 (quoting Forrisi v. Bowen, 794 F.2d at 933-34).
Although defendants deny that plaintiff is disabled, it cannot legitimately be disputed that the Peace Corps' Office of Medical Services regarded plaintiff as impaired. Defendants Krasner and Silvers disqualified plaintiff because they determined that the symptoms of his previously diagnosed personality disorder could be exacerbated by overseas service:
Assessment by M. Krasner: . . . Based on [the 1979 Air Force mental health report] applicant would be [at] extremely high risk for symptoms to exacerbate in stressful (potential) [Peace Corps] environment. . . . Dr. Silver's . . . Decision: not medically qualified for [Peace Corps] service; no current evaluation needed.
A.R. at 121-22 (Office of Medical Services File); see A.R. 144.
Defendants maintain, however, that they did not perceive plaintiff's impairment as one that substantially limited one or more of plaintiff's major life activities and therefore plaintiff cannot qualify as an individual with a disability under the Act. Defendants point out that plaintiff was kept only from a narrow range of employment -- overseas PCV -- and that such a narrow limitation is not enough to justify the Court in concluding that defendants treated plaintiff as disabled. The record before the Court reflects, however, that defendants were deeply troubled by plaintiff's disorder as described in the 1979 Air Force report.
Defendant Silvers declared:
Based on the Air Force diagnosis of Mr. Jeffery Taylor of February 9, 1979, he would not be medically qualified for Peace Corps Service. . . . A diagnosis of personality disorder is something a person carries with him or her throughout life. Some people manage the disorder while others do not.
. . . Someone with that type of disorder [the Air Force diagnosis of mixed personality disorder] might not know he had it and would not admit he had it.