                     NONPRECEDENTIAL DISPOSITION
                       To be cited only in accordance with
                               Fed. R. App. P. 32.1


           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                             Argued February 20, 2007
                              Decided April 27, 2007

                                       Before

                          Hon. DANIEL A. MANION,, Circuit Judge

                          Hon. MICHAEL S. KANNE, Circuit Judge

                          Hon. DIANE P. WOOD, Circuit Judge


No. 06-3180                                     Appeal from the United States
                                                District Court for the Northern
GEORGE T. NOVAK,                                District of Illinois, Eastern District
             Plaintiff-Appellant,
                                                No. 02 C 7206
      v.
                                                James B. Zagel, Judge.
R. JAMES NICHOLSON, Secretary
of Department of Veterans Affairs,
                 Defendant-Appellee.


                                    ORDER

       For over eighteen years, George Novak, a partially disabled veteran, worked
for the Department of Veterans Affairs (“VA”) in various jobs. In 2002, after a
series of injuries and operations, he applied for and received early retirement. He
then sued the VA for disability discrimination. The district court granted the VA
summary judgment. Novak appeals. We affirm.
No. 06-3180                                                                    Page 2



                                          I.

       George Novak began working for the Hines VA Hospital in 1985 as a
plumber/pipefitter. At the time the VA hired Novak, he suffered a 30% disability
due to an injury he suffered during his military service, where his back and left
shoulder were seriously injured. In 1991, the VA transferred Novak to the machine
shop when it became difficult for him to continuing working as a plumper/pipefitter
due to his inability to reach overhead to perform certain work-related functions. In
the machine shop, Novak worked as an industrial mechanic, repairing and
maintaining hospital equipment. While working in this position, Novak received
some additional accommodations so that he did not have to climb ladders or lift
items overhead, and the work he had to do in tight areas was restricted.

       In June 1996, Novak suffered further injuries in an automobile accident
requiring hip replacement surgery. After rehabilitation, Novak returned to his
position in the machine shop, but he had additional limitations added: he was not
to work on roofs or in tight areas at all and had a lifting limitation of 25 - 30
pounds. Additionally, the VA allowed him to use a motorized cart due to his
inability to walk long distances.

       Novak sustained another hip injury in 2000 when he was struck by a pick-up
truck. In April of that year, he underwent a hip revision procedure. Novak’s
surgeon provided the VA with additional restrictions for Novak, which required him
to have two months of rest and then be placed in a job that would not require
standing, lifting, squatting or stooping for four months. Novak’s surgeon further
recommended that he not climb ladders, work on roofs or uneven areas and not
stoop, bend, kneel, or lift more than five pounds. The restrictions further prohibited
Novak from pushing or pulling heavy equipment or from standing or walking for
prolonged periods. The VA informed Novak that with these restrictions, he could
not work in the machine shop and that he would instead be assigned to a light duty
job as a surgical unit elevator operator for four months. That time was extended
twice, but with the final extension, the VA informed Novak that it might not be able
to continue to provide him with a light duty assignment after July 13, 2001. The
VA further explained that if it were unable to provide a continued light duty
assignment, it would either refer Novak to Human Resources for reassignment or
he would be terminated.

       On June 25, 2001, the doctor released Novak to work without any restrictions
and Novak returned to his job as a mechanic. From June through September 2001,
Novak repeatedly requested a transfer to other positions, but those requests were
all denied. Then on November 29, 2001, Novak’s surgeon informed the VA that the
No. 06-3180                                                                     Page 3



resumption of duties had caused Novak pain in his hips, groin, and legs and the
doctor recommended that from December 3, 2001, until February 4, 2002, Novak be
assigned to a job that was “sedentary in nature and that he have a comfortable,
firm, seated chair with the seating not less than 19 inches from the ground.” The
VA responded by assigning Novak to a clerical job in Engineering Services. On
January 31, 2002, Novak’s doctor sent another letter to the VA recommending that
Novak be kept on the same light duty restrictions until retirement.

       On April 4, 2002, Novak applied for early retirement. The VA approved the
request and Novak retired effective September 27, 2002. However, after his
retirement, Novak sued the VA, claiming the VA failed to accommodate his
disability, retaliated against him in violation of the Rehabilitation Act, 29 U.S.C. §
701 et seq. and Title VII, 42 U.S.C. § 2000e et seq., and constructively discharged
him. The parties filed cross-motions for summary judgment. The district court
denied Novak’s motion and granted the VA’s motion. Novak appeals.

                                          II.

       On appeal, Novak first argues that the district court erred in denying his
motion for summary judgment and granting the VA’s motion for summary judgment
on his failure to accommodate claim brought under the Rehabilitation Act of 1973.
We review decisions at the summary judgment stage de novo. See, e.g., Franklin v.
City of Evanston, 384 F.3d 838, 843 (7th Cir. 2004). “[W]e draw all reasonable
inferences from the evidence in the light most favorable to the nonmoving party . . .
.” Id. (quoting Williamson v. Ind. Univ., 345 F.3d 459, 462 (7th Cir. 2003)). “This
standard applies when cross motions for summary judgment are filed,” as they were
here. Franklin, 384 F.3d at 843.

       The Rehabilitation Act, 29 U.S.C. § 701 et seq., the counterpart of the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., for federal agency
defendants, prohibits recipients of federal funds from discriminating against a
qualified individual on the basis of his disability. To establish a failure to
accommodate claim under the Rehabilitation Act, a plaintiff must establish: 1) he is
a disabled person as defined by the statute; 2) that the employer was aware of the
disability; and 3) that he is “otherwise qualified” to perform the “essential
functions” of the job, “with or without reasonable accommodation.” See Winfrey v.
City of Chicago, 259 F.3d 610, 614 (7th Cir. 2001).

      Novak initially argues that the VA failed to accommodate him “because the
agency failed to engage in an interactive process in order to determine the
appropriate form of accommodation.” Appellant Brief at 15. However,
No. 06-3180                                                                                 Page 4



       the failure to engage in the interactive process by itself does not give rise to
       relief. Instead, we must first look at whether there is a genuine issue of
       material fact regarding the availability of a vacant position to accommodate
       [the plaintiff]. If there were such a position, only then do we consider
       whether the failure to provide that accommodation was due to a breakdown
       in the interactive process. It is the plaintiff’s burden to show that a vacant
       position exists for which he was qualified.

Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir. 2001) (internal citations
omitted). Therefore, even if the VA did not engage in an interactive process with
Novak, that failure is not actionable in and of itself; rather, Novak must first
present evidence of a vacant position.1 Id.

       While Novak complains that without the VA’s help he was unable to find a
vacant position, it was Novak’s responsibility in discovery to obtain the necessary
evidence to support his failure to accommodate case, for instance, by requesting
copies of vacancy or placement announcements. However, even after discovery,
Novak has not presented any evidence that a vacant position existed at the VA for
which he was qualified. Although Novak pointed to several positions in which he
was interested, he did not present any evidence that there were vacancies in those
positions. Novak admits as much in his brief stating, “[e]ven if some of the jobs
identified by Novak did not equate with actual vacancies at the hospital, that is no
excuse for the Agency to ‘hide the ball’ with respect to actual vacancies by
completely failing to engage in the interactive process.” Appellant Brief at 22.
Again, if there were no actual vacancies, the VA’s failure to engage in the
interactive process is not actionable. See Ozlowski, 237 F.3d at 840; see also Mays
v. Principi, 301 F.3d 866, 870-71 (7th Cir. 2002) (stating that the failure to “jaw
about accommodations is harmless” if no reasonable accommodation is possible).
Moreover, Novak admitted in his deposition that he never saw a job posted at the
VA that was consistent with his physical limitations and knowledge, skills, and
abilities.



       1
          Novak also complains that the VA did not establish the required procedures to facilitate
the granting of reasonable accommodations, as required by Executive Order 13164, 65 Fed. Reg.
46,565 (July 26, 2000). Appellant Brief at 17. However, this Executive Order provides that it
“does not create any right or benefit, substantive or procedural, enforceable at law or equity
against the United States, its agencies, its officers, its employees, or any person.” Id. Thus, even
if the VA failed to comply with this Executive Order, it does not provide a basis for liability on
Novak’s failure to accommodate claim.
No. 06-3180                                                                               Page 5



       Alternatively, Novak attempts to establish the existence of a position for
which he was qualified by pointing to the deposition testimony of Ralph Hubert.
Hubert supervised Novak when Novak was temporarily assigned to a clerical
position in the Material Management Unit. In that position, Novak worked on
inventories, data entry, bar code scanning, and physical inventories. Novak points
to Hubert’s deposition testimony that he was an “excellent worker” and that Hubert
was more than willing “to employ Novak in the position on a permanent basis if
given the opportunity to do so.” From that testimony, Novak claims that there was
a position for which he was qualified. Hubert’s testimony, however, does not
establish that there was vacancy in that position; rather, it shows the position was
merely a temporary position. As we have explained, “[o]ccasional opportunities to
work in another department are not equivalent to a vacancy for a permanent
position. Pointing to a current vacancy is required . . . .” McCreary v. Libbey-
Owens-Ford Co., 132 F.3d 1159, 1165 (7th Cir. 1997).

       Moreover, during oral argument we queried Novak on his reliance on
Hubert’s testimony. We noted that it seemed that Novak’s theory was that, while
there was not a job currently available in the Material Management Unit, the VA
had an obligation to process the paperwork to see if it could create the job. Novak’s
attorney responded: “That’s exactly what I’m saying.” An employer, however, is not
required to create a new position, temporary or permanent, to accommodate a
disabled employee. Giles v. United Airlines, Inc., 213 F.3d 365, 374 (7th Cir. 2000)
(stating that the obligation to accommodate reasonably does not mean that
employers must bump another employee or create a new position). Therefore,
Novak’s reliance on Hubert’s testimony is misplaced and his failure to present
evidence of a vacancy for which he was qualified dooms his case.2 See Ozlowski, 237
F.3d at 840. Accordingly, the district court properly denied Novak summary
judgment and granted the VA summary judgment on Novak’s failure to
accommodate claim.

     Novak also argues that the district court erred in granting the VA summary
judgment on his constructive discharge claim. Specifically, Novak claims that his


       2
          On appeal, the VA also argues that Novak’s reasonable accommodation claim fails
because Novak did not present sufficient evidence that he was disabled within the meaning of
the statute. The district court concluded that a genuine issue of material fact existed regarding
whether Novak was substantially limited in a major life activity, namely walking and working.
Because we conclude that Novak’s failure to identify a vacant position for which he was
qualified dooms his reasonable accommodation claim, we need not address the issue of whether
he was disabled within the meaning of the statute.
No. 06-3180                                                                      Page 6



treatment at the VA hospital after he filed his EEO complaint became so intolerable
that he had to quit. In support of his claims, Novak points to the fact that he was
called “bad back George,” was depicted in two caricatures as a “pirate with a peg
leg,” and that on one occasion a co-worker purposely revved the engine in a truck,
causing it to lurch forward at him. Novak also stated that the Service Chief, James
Predlides, told him: “You will never have a job. You’re out. That’s it.” And: “Get
out of Engineering Service.” Novak also complains that other times Predlides asked
him: “Are you still here? You didn’t retire yet? Did you put in for your disability?
Are you going?” Finally, Novak claims that because the VA refused to engage in the
interactive process and to reassign him to a light duty job, he had no choice but to
quit.

       We address the last point first: Because Novak failed to present evidence of a
vacant position for which he was qualified, Novak cannot rely on the VA’s refusal to
reassign him to a light duty position as evidence of a constructive discharge. As to
the other incidents: Novak must prove they made his “working environment. . . so
intolerable that [his] resignation qualified as a fitting response.” Rooney v. Koch
Air, LLC, 410 F.3d 376, 383 (7th Cir. 2005) (internal quotation omitted). This court
in Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1050 (7th Cir. 2000),
explored the circumstances where “conditions were so intolerable as a result of
unlawful discrimination that a reasonable person would be forced into involuntary
resignation.” In that case, the plaintiff had alleged a claim of constructive
discharge after refusing to return to work because a co-worker, named Vasilopulos,
had told him to “[g]et the f--- out of the office before I pop a cap in you’re a--.” The
plaintiff further claimed that Vasilopulos then “began prancing around, derisively
caricaturing African-Americans,” and “asked whether Tutman had seen a movie
entitled N----- with Hats.” Tutman, 209 F.3d at 1046. This was a one-time verbal
encounter for which Vasilopulos was disciplined. We rejected Tutman’s claim of
constructive discharge, concluding that “a reasonable employee would not have
found work conditions at CBS to be so intolerable that he would have to quit his
job.” Id. at 1050. In reaching this conclusion, we compared Tutman’s situation to
cases where there was a constructive discharge. See, e.g., Snider v. Consolidation
Coal Co., 973 F.2d 555, 558 (7th Cir. 1992); Taylor v. Western & S. Life Ins. Co., 966
F.2d 1188, 1191 (7th Cir. 1992); Sanchez v. Denver Pub. Sch., 164 F.3d 527, 534
(10th Cir. 1998). We explained that “[i]n Taylor, we found constructive discharge
when the plaintiffs’ boss constantly peppered the plaintiffs with racist comments,
brandished a pistol and held it to one plaintiff’s head.” Tutman, 209 F.3d at 1050
(citing Taylor, 966 F.2d at 1191.) Similarly, “[i]n Brooms v. Regal Tube Co., 881
F.2d 412, 417, 423 (7th Cir. 1989), the plaintiff established constructive discharge
where ‘repeated instances of grossly offensive conduct and commentary’ culminated
with an incident during which a co-worker showed the plaintiff a racist
No. 06-3180                                                                      Page 7



pornographic photograph, told her that she was hired to perform the task depicted
in the photograph, grabbed the plaintiff and threatened to kill her.” Tutman, 209
F.3d at 1050 (quoting Brooms, 881 F.2d at 417). From these cases, we concluded
that “[a] credible death threat that signals grave danger to the plaintiff’s bodily
integrity, as in Taylor and Brooms, can constitute grounds for finding constructive
discharge, but the harassment suffered by Tutman at [his coworker’s] hands falls
well short of this standard.” Tutman, 209 F.3d at 1050. We then concluded that
“[a] reasonable person would not have feared Vasilopulos as a result of his single
oblique threat, even construing all reasonable inferences in favor of Tutman, such
that he would feel forced to resign.” Id. In support of our conclusion, we relied on
Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873, 877-78 (7th Cir. 1999). In
Tutman, we summarized Simpson’s holding that a “co-worker’s comment that
‘someone should take a dish and knock [the plaintiff] upside the head’ did not
establish constructive discharge.” Tutman, 209 F.3d at 1050 (quoting Simpson, 196
F.3d at 877-78). “Likewise, in Lindale v. Tokheim Corp., 145 F.3d 953, 956 (7th Cir.
1998), ‘boorish behavior’ by co-workers was insufficient for constructive discharge.”
Tutman, 209 F.3d at 1050. We then concluded that “Vasilopulos’s harassment of
Tutman was closer to the abuse suffered in these cases than to the vicious
harassment in Brooms or Taylor, [but that] [e]ven assuming that Vasilopulos’s
harassment was so offensive and severe as to create a hostile work environment, his
conduct was not so egregious as to compel Tutman’s resignation and establish
constructive discharge.” Id.

       These cases demonstrate the severity of the conduct required to trigger a
constructive discharge. And in this case, the behavior to which Novak points falls
well short of the level of behavior required for a constructive discharge. The “bad
back George,” “pirate with a peg leg” caricature and the revving of an engine, while
unkind and boorish, were not so vicious in nature as to leave a reasonable person
believing they had no option but to retire. Predlides’ questioning of Novak as to
whether and when he was going on disability was also not egregious and in no way
compelled Novak’s resignation. In short, the incidents of which Novak complains do
not reach the level of an abusive working environment and thus do not support a
constructive discharge claim. Accordingly, the district court properly denied Novak
and granted the VA summary judgment on Novak’s constructive discharge claim.

       Finally, Novak claims that the district court did not consider his retaliation
claim and that therefore remand is necessary. Although the district court did not
address Novak’s retaliation claim in its order granting the VA summary judgment,
it did dispose of the entire case, thus implicitly rejecting Novak’s retaliation claim.
The district court may not have expressly addressed the retaliation claim because
at summary judgment Novak did not present any substantive argument regarding
No. 06-3180                                                                   Page 8



the retaliation claim. In fact, the VA argued to the district court that Novak waived
the claim. In any event, even if Novak did not waive his retaliation claim, because
our review is de novo, there is no need to remand for further proceedings. Rather,
we review the record as presented on appeal in the light most favorable to Novak to
determine if he presented sufficient evidence of retaliation. In support of his
retaliation claim, Novak points to the same incidents that he noted above in support
of his constructive discharge claim. He also claims the VA’s refusal to reassign him
was in retaliation for the complaint he filed with the EEO on April 26, 2001.
However, as explained above, Novak failed to show that there was a vacant position
available (as opposed to one which would need to be created) for which he was
qualified. Therefore, the VA’s failure to reassign him cannot constitute retaliation.
The other complained-of incidents also do not support a retaliation claim. Although
“it is now settled that retaliation to be actionable need not take the form of an
adverse employment action, Burlington Northern & Santa Fe Ry. Co. v. White, 126
S.Ct. 2405, 2409 (2006), ‘petty slights or minor annoyances’ won’t do.” Nair v.
Nicholson, 464 F.3d 766, 768 (7th Cir. 2006) (quoting Burlington Northern, 126
S.Ct. at 2415). Yet the revving of the engine and the passing comments and
caricatures were just that—trivial slights that would not “deter a reasonable
employee from complaining about discrimination.” Nair, 464 F.3d at 768-69
(quoting Burlington Northern, 126 S.Ct. at 2415-16). Accordingly, the VA was also
entitled to summary judgment on Novak’s retaliation claim.

                                         III.

       Novak failed to present evidence that the VA had a vacant position for which
he was qualified. Accordingly, the district court properly denied Novak’s motion for
summary judgment and granted the VA’s motion for summary judgment on the
failure to accommodate claim. Novak also failed to present evidence of conduct
sufficiently severe as to constitute illegal retaliation or a constructive discharge.
Therefore, the VA was entitled to summary judgment on these claims as well. For
these and the foregoing reasons, we AFFIRM.
