Free Reply to Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PAUL K. CHARLTON United States Attorney District of Arizona PETER M. LANTKA Assistant U.S. Attorney Arizona State Bar No. Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 E-Mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Donald Chapman, v. Plaintiff, CIV-03-2537-PHX-DGC DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

John E. Potter, Postmaster General, United States Postal Service; and Yvonne Pearson, separately and in her individual capacity Defendants.

Defendants, by and through undersigned counsel, respectfully submit their Reply in Support of Motion for Summary Judgment. Defendants' reply is supported by the previously filed Statement of Facts ("SOF"), Supplemental Statement of Facts ("SSOF"), supporting exhibits, the Memorandum of Points and Authorities below, and all matters of record. MEMORANDUM OF POINTS AND AUTHORITIES The central issue before this Court is whether the Postal Service illegally discriminated against Plaintiff on the basis of gender or disability. It didn't. Not only do the undisputed facts fail to illicit discrimination by the Postal Service; as a matter of law, Plaintiff is unable to establish a prima facie case under either Title VII or the Rehabilitation Act. Specifically, Plaintiff was never disabled under the "demanding standard" articulated in Toyota Motor Mfg., Kentucky, Inc. v. Williams; and with regard to gender discrimination, Plaintiff cannot establish that female employees were treated more favorably than men. The Postal Service's actions are further justified by legitimate nondiscriminatory reasons, namely Plaintiff's obfuscation of the interactive process and willful concealment of his injury's

Case 2:03-cv-02537-DGC

Document 195

Filed 03/10/2006

Page 1 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

origin. Just as Plaintiff concedes judgment on Counts IV and XIII of his complaint, so too should this Court enter summary judgment for Defendants on Plaintiff's remaining claims. I PROPRIETY OF SUMMARY JUDGMENT "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)(quoting Fed. R. Civ. Proc. 1). This Court shall therefore enter summary judgment for Defendants where there is no disputed issue of material fact and judgment is warranted as a matter of law. Id. at 323; Fed.R.Civ.P. 56(c). While inferences should be drawn in favor to a nonmoving party, "[a]t summary judgment, this Court need not draw all possible inferences in [Plaintiff's] favor, but only all reasonable ones." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002)(emphasis original); see also Bahrampour v. Lampert, 356 F.3d 969, 974 (9th Cir. 2004)("a mere scintilla of evidence will not be sufficient to defeat a properly supported motion for summary judgment"). While Plaintiff contends that "there are significant issues of material fact," (Pla. Resp. at 1 fn.1); as delineated below, these "issues" are far from significant and falter in light of substantial case law awarding defendant employers summary judgment under mirrored circumstances. II PLAINTIFF CANNOT SUSTAIN ANY PRIMA FACIE FACTOR NECESSARY UNDER THE REHABILITATION ACT Under the Rehabilitation Act, Plaintiff must prove that: (1) he is disabled within the meaning of the Act; (2) he is a qualified individual able to perform the essential functions of his job, with or without reasonable accommodations; and (3) the Postal Service acted adversely against him solely because of his disability. Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir. 1999). Plaintiff's failure to establish any of these factors warrants summary judgment for Defendants. Walker v. Consolidated Biscuit Co., 116 F.3d 1481, 1997 WL 359054, *3 (6th Cir.1997).

2

Case 2:03-cv-02537-DGC

Document 195

Filed 03/10/2006

Page 2 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

A

Plaintiff Was Not Disabled under the Rehabilitation Act

Under the Rehabilitation Act, Plaintiff only qualifies as disabled where (a) his impairment substantially limits a major life activity; (b) he has a record of impairment, or (c) he is regarded as having such impairment. 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g). These terms "need to be interpreted strictly to create a demanding standard for qualifying as disabled." Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002). 1 Plaintiff's Condition Did Not Limit His Major Life Activities

Under Toyota Motor, the "central inquiry" in determining Plaintiff's disability is whether he could "perform the variety of tasks central to most people's daily lives," Id. at 200-01, which are defined as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). Following a two-day functional capacity evaluation, Plaintiff's own physician found Plaintiff "independent in activities of daily living, including meal preparation, hygiene and dressing activities," and even released Plaintiff to work in a sedentary to light work category for an eight hour day. (SOF ¶ 41; Ex 37). This alone diffuses Plaintiff's disability claim under the Act. Citing the same evaluation, Plaintiff now contends that his partial paralysis and limp establish a requisite disability. Not so. While the Postal Service does not dispute Plaintiff's walking difficulties, those problems fail to rise to the "demanding standard" necessary for a disability under the Act. A Plaintiff's disability under the Act is an extremely high threshold, and federal common law is replete with cases ruling against employees, including postal employees, whose walking disabilities fail to meet these high standards. See e.g. Vaughn v. Harvey, 140 Fed.Appx. 644, 647 (9th Cir. 2005)(plaintiff's lupus did not substantially limit walking despite evidence that she was limited in climbing stairs and took medication for pain); Allen v. U.S. Postmaster General, 158 Fed.Appx. 240, 243 (11th Cir. 2005)(summary judgment for Postal Service)(inability to walk long distances did not establish disability under the Act where plaintiff could go to grocery store, load groceries, care for herself and children, and do some household chores); Carpenter v. Potter, 91
3

Case 2:03-cv-02537-DGC

Document 195

Filed 03/10/2006

Page 3 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Fed.Appx. 705 (2nd Cir. 2003)(acknowledging walking as major life activity, but finding plaintiff postal employee not disabled); Penny v. United Parcel Service, 128 F.3d 408, 416 (6th Cir.1997)(plaintiff with 14% total body impairment was not disabled); Kelly v. Drexel Univ., 94 F.3d 102, 106 (3d Cir.1996)(plaintiff with severe post-traumatic hip impairment who could not walk more than a mile, jog, and had to use hand rail and pace himself when ascending stairs was not substantially limited in his ability to walk).1 There is no dispute for Rule 56 purposes concerning Plaintiff's limited ability to walk. While undoubtedly troublesome, this hindrance does not establish a disability

Numerous district court decisions mirror those cited above. See e.g. Garvin v. Potter, 367 F.Supp.2d 548, 561-62 (S.D.N.Y. 2005)(summary judgment for Postal Service)(plaintiff's leg ulcers and varicose veins which impeded walking did not constitute disability); Banks v. Potter, 253 F.Supp.2d 335, 345 -46 (D.Conn. 2003)(summary judgment for Postal Service); Mitchell v. Girl Scouts of the U.S.A., 2003 WL 22705121, *6 (S.D.N.Y 2003)(inability to do "substantial amount of walking ... while of course to an extent is limiting, does not rise to the level of a substantial limitation"); Piascyk v. City of New Haven, 64 F.Supp.2d 19, 28 (D.Conn.1999)(20% ankle impairment, 10% back impairment, difficulty climbing stairs, marked limp, constant ankle pain, periodic need to wear air cast, and inability to walk more than half mile did not indicate substantial limitation in ability to walk); Rosa v. Brink's, Inc., 103 F.Supp.2d 287, 290 (S.D.N.Y.2000)(inability to walk for long period did not amount to substantial limitation); Butterfield v. New York State, 1998 WL 401533, *9 (S.D.N.Y. 1998)(trouble walking "simply does not, as a matter of law, constitute a sufficiently substantial limitation"); Nedder v. Rivier College, 944 F.Supp. 111, 115-18 (D.N.H.1996) (inability to walk long distances, engage in housework, walking, bending, or getting into or out of car without considerable exertion did not constitute sufficiently substantial limitation); Penchishen v. Stroh Brewery Co., 932 F.Supp. 671 (E.D.Pa.1996)(plaintiff able to walk at one-half normal speed and climb stairs only by placing both feet onto each step not substantially limited in walking); Graver v. Nat'l Eng'g Co., 1995 WL 443944, *10-11 (N.D.Ill. 1995)(limp and pain while walking did not constitute disability); Stone v. Entergy Servs., Inc., 1995 WL 368473,*4 (E.D.La. 1995)(residual partial paralysis from polio, muscle weakness, one leg shorter than other, 15% total body impairment, difficulty climbing and descending stairs, and walking pace significantly slower than average did not establish disability); Rogers v. International Marine Terminals, Inc., 1995 WL 16787 (E.D.La. 1995)(plaintiff's bone spurs, ligament damage, gout, and 13% total body impairment was not substantially limited in ability to walk); Richardson v. William Powell Co., 1994 WL 760695 (S.D.Ohio 1994)(degenerative arthritis causing noticeable limp and difficulty climbing stairs not a disability).
4

1

Case 2:03-cv-02537-DGC

Document 195

Filed 03/10/2006

Page 4 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

under the Rehabilitation Act. Like the postal employee in Allen, Plaintiff could perform many functions of daily living despite his hindrance. While he was impeded, he was not disabled under the Act as a matter of law.2 2 Plaintiff Had No Record of Impairment and Was Never Regarded as Impaired

To establish a record of an impairment, Plaintiff must prove a history of, or misclassification as having a covered impairment. 29 C.F.R. § 1630.2(k); Coons v. Secretary of the U.S. Dept. of the Treasury, 383 F.3d 879, 886 (9th Cir. 2004). Importantly, the history must be of an impairment "that substantially limits a major life activity," not simply prior physical inhibitions. Id.; Heisler v. Metro. Council, 339 F.3d 622, 630 (8th Cir.2003). Despite his prior medical conditions, Plaintiff never submitted information indicating that he was limited in one or more major life activities under the Act. Plaintiff's suggestion that his hearing before the DRAC establishes a history is thus misleading. (Pla. Resp. at 5). The DRAC was convened because Plaintiff was unable to perform the essential functions of his position as a mailhandler, not because he was disabled under the broad definition of the Act. There was no history of impairment.3

While Plaintiff mentions Defendants' argument concerning his ability to work, he offers no response. (Pla. Resp. at 4)(". . .the analysis respecting `working' is unnecessary"). Defendants therefore reassert their contentions from prior briefs. (Dft. Mot. at 4; Dft. Resp. at 3-4). Likewise, Plaintiff's implication that receiving handicapped parking tags establishes a history of disability is illogical and contrary to law. Decisions concerning disability under alternative standards such as those employed under Arizona's handicapped parking regulations do not equate to a disability under the Act. See Robinson v. Neodata, 94 F.3d 499, 502 (8th Cir.1996); Bolton v. Scrivner, Inc., 36 F.3d 939, 943 (10 Cir. 1994)(alternate disability classifications fail to establish disability under the Act); see also Lyons v. Legal Aid Soc., 68 F.3d 1512, 1516 (2nd Cir. 1995)("question of whether it is reasonable to require an employer to provide parking spaces may well be susceptible to differing answers depending on, e.g., the employer's geographic location and financial resources").
5
3

2

Case 2:03-cv-02537-DGC

Document 195

Filed 03/10/2006

Page 5 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The same argument stands for the Postal Service's regard to Plaintiff's abilities. While acknowledging Plaintiff's inability to perform the essential duties of his craft, the Postal Service never regarded Plaintiff as unable to perform his major life activities. To the contrary, the Service's repeated attempts to foster Plaintiff's reentry into the workplace establish both its knowledge of Plaintiff's limitations and the fact that his impairment never rose to the extreme level for a disability under the Rehabilitation Act. See e.g. (SSOF ¶ 12, 16, 18-19; Ex 25, 27, 30, 32, 68). Further, Plaintiff's admitted ability to perform tasks dissimilar to his work classification strike against Plaintiff's argument as well. See Thomas v. Holy Family Hospital 121 F. 3d 537, 540 (9th Cir. 1997)(plaintiff not regarded as disabled since she could perform a broad class of jobs outside of her present position). B Plaintiff Could Not Perform the Essential Functions of a Mailhandler

Under the Rehabilitation Act, a position's essential functions are defined as "the fundamental job duties of the employment position the individual. . .holds or desires." 29 C.F.R. § 1630.2(n). Among other tasks, the essential duties of a mailhandler included loading and unloading mail trucks, dumping and sacking mail, and transporting mail within the postal facility. (SOF ¶ 6; Ex 2). By Plaintiff's own admission, "he was done being a mail handler," and such job was "not an option." (Pla. Separate SOF ¶ 33, 34, 39). This alone should dispose of the essential functions/qualified individual prong of Plaintiff's prima facie case. Beauford v. Father Flanagan's Boys' Home, 831 F.2d 768, 771 (8th Cir. 1987)(prerequisites for disability claim not met where plaintiff admitted she could not perform essential functions of her job); see also Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1109-10 (9th Cir. 2000). Plaintiff, however, proffers two arguments contending that he was qualified under the Act, both of which fail in light of the facts and appropriate legal standards. Plaintiff first contends that the Postal Service's listing of essential duties are overly exhaustive and should have been truncated to his needs. (Pla. Resp. at 6-7). The Service was never required to accept Plaintiff's categorization of what duties he deemed essential and those he could not perform. Webster v. Methodist Occupational Health Centers, Inc., 141
6

Case 2:03-cv-02537-DGC

Document 195

Filed 03/10/2006

Page 6 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

F.3d 1236, 1238 (7th Cir. 1998)(an "employer is entitled to define the job in question, in terms of both its essential functions and the qualifications required for it").4 Moreover, as bluntly stated by a DRAC member, the Postal Service "does not need people with a fine mind, they need people that can touch the mail." (Pla. Separate SOF ¶ 32). Plaintiff admittedly could not lift bags of mail as required, and accordingly, could not perform the essential functions of his position. Weyer, 198 F.3d at 1108-09; see also Barket v. NextiraOne, LLC., 2002 WL 1457631, *6 (D.Minn. 2002)(summary judgment for employer where plaintiff could perform "many" but not "all" the essential functions of his position). Plaintiff also contends that positions available outside his craft somehow establish a prima facie case. (Pla. Resp. at 7-8). Again, Plaintiff is mistaken on the appropriate legal standard. The Rehabilitation Act does not require the Postal Service to assign Plaintiff to an alternative position. Sutton v. Lader, 185 F.3d 1203, 1211 (11th Cir. 1999); see also Carter v. Tisch, 822 F.2d 465, 467 (4th Cir. 1987)("The case law is clear that, if a handicapped employee cannot do his job, he can be fired, and the employer is not required to assign him to alternative employment."). Likewise, Plaintiff's references to overtime and light/limited duty are incongruous. The "overtime" work to which Plaintiff refers constitutes stacking empty mail sacks, (Pla. Separate SOF ¶ 24), not a legitimate position to which he could be assigned full-time. As to limited or light duty assignments, as stated in Defendants' other memoranda, the Postal Service could not place Plaintiff in a limited duty position, such as his eventual modified job, until after February 2002 because he never submitted the necessary information for the OWCP to determine that his injury was work related. (SSOF ¶ 15, 28-30; Ex 40-42, 61-62, 67-68). By contrast, the Service was never legally obligated to provide Plaintiff with a light duty position, as those assignments are governed by collective bargaining agreements. (SSOF ¶ 15; Ex 61-62, 67); see also Hansen v. Henderson, 233 F.3d 521, 523-24 (7th Cir. The Postal Service's discretion is further illustrated by the portion of its employment manual on which Plaintiff relies. (Ex 39 § 2-2.4.1)("The law, however, does not require the employer to change or alter the essential functions of a job.").
7
4

Case 2:03-cv-02537-DGC

Document 195

Filed 03/10/2006

Page 7 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

2000)(Postal Service not obligated to manufacture new job where light duty job was not available).5 Irregardless, Plaintiff's citations to hypothetical, alternate employment bear little consequence because Plaintiff was unable to perform the essential duties of his own craft. Coons, 383 F.3d at 886 fn.3 (employer not required accommodate employee's disability when employee is "not disabled within the meaning of the Rehabilitation Act.").6 Plaintiff could not perform the essential functions of his craft, and as such, cannot establish a prima facie case. C The Postal Service Did Not Act Solely Because of Plaintiff's Disability

The Postal Service terminated Plaintiff for three reasons: (1) he was physically unable to perform the essential duties of his craft; (2) he failed to exercise the options offered by the DRAC; and (3) no reasonable accommodation existed regarding his original duties. (SSOF ¶ 39; Ex 52). Plaintiff fails to address these multiple bases in either his initial motion or response, particularly Plaintiff's admitted failure to respond to the Postal Service's numerous requests for action. See (Dft. Resp. at 10)(listing instances where Plaintiff ignored the Service's requests). Plaintiff was not solely discharged for his disability for these multiple Notably, Plaintiff is unable to list any open, available light duty positions during his disability. The depositions Plaintiff cites, for instance, provide no specifics. See e.g. (Pla. Ex 17; Francisco Dep. at 78:16 - 79:5)("[Question]: [D]o you personally know if there were any open vacant funded positions that Mr. Chapman could have done. [Answer]: ". .no."). Similarly, Richard Cox spoke to his belief that Plaintiff could work in a limited capacity cancelling mail but failed to point out any open, funded positions. (Pla. Ex 15; Cox Dep. at 36). Plaintiff proffers no response to the authority Defendants cite holding that Plaintiff's interactive process allegations should be dismissed due to his refusal to participate in the interactive process. See (Dft. Resp. at 9-12)(citing pertinent authority and delineating Plaintiff's obfuscation of the interactive process). Further, Plaintiff's accusations regarding the untimeliness of Defendants actions are improper. See e.g. (SSOF ¶ 16; Ex 27)(Postal Service response to Plaintiff's light duty request issued four days after receipt). As articulated in Defendants' prior briefs, the Postal Service made continual efforts to work with Plaintiff concerning his claim, and was consistently rebuffed by Plaintiff's inaction. Plaintiff's allegations concerning the existence of alternate positions can be disregarded for reasons expressed above.
8
6 5

Case 2:03-cv-02537-DGC

Document 195

Filed 03/10/2006

Page 8 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

reasons, and summary judgment is warranted on this basis alone. Walker, 1997 WL 359054 at *3 (disregarding arguments concerning disability itself where plaintiff failed to establish discharge solely because of disability). In addition, Plaintiff's admitted inability to perform the essential tasks of his craft further vitiates his prima facie case. Teahan v. Metro-North Commuter R. Co., 951 F.2d 511, 516 (2nd Cir.1991)(employee not terminated "solely by reason of the handicap" where he was not qualified for his position). III THERE WAS NO GENDER DISCRIMINATION Plaintiff offers scant opposition to the Postal Service's Title VII argument, simply stating that "[t]here is evidence in this case that women employees were treated preferentially to males." (Pla. Resp. at 12). Plaintiff's statement falters in light of his own deposition and discovery responses. Under Title VII, Plaintiff must establish that he was treated less favorably than similarly situated female employees to establish a prima facie case. Plaintiff cannot prove this essential element because he alleges that both men and women received better treatment than him. See (SOF ¶ 68; Ex 63)(Pla Resp. to Interrogatory No. 12); see also (Ex 68, p.160:5-15)(Pla. Dep.)(discussing more favorable treatment allegedly given to coworker "Charles Capizzi."); (Ex 11 to Pla. Supp. SOF)(Pla. Declaration ¶ 21)(alleging that employees who received favorable duty assignments were not exclusively women). Again, by Plaintiff's own admission, gender was not a factor in his treatment, and his Title VII claim must fail. Plaintiff fails to address Defendants' assertions regarding the remainder of Title VII's prima facie requirements, namely that Plaintiff was not qualified for his position or that the reasons articulated in Plaintiff's termination letter constitute legitimate, non-discrimination reasons for the Service's decision. As with Plaintiff's Rehabilitation Act claims, Plaintiff's inability to perform the essential duties of his craft and his refusal to respond to the Service's

9

Case 2:03-cv-02537-DGC

Document 195

Filed 03/10/2006

Page 9 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

inquiries further warrant denial of his Title VII claim. This is not a case of gender discrimination. Plaintiff's Title VII claim should be denied.7 IV THE POSTAL SERVICE NEVER RETALIATED AGAINST PLAINTIFF Plaintiff concedes that the EEO filings related to this lawsuit and his FECA actions cannot establish a retaliation claim. (Pla. Resp. at 14 fn.16). Plaintiff's remaining activities ­ his request for accommodation and the prior EEO meeting ­ are similarly removed from the alleged retaliatory actions. For instance, Plaintiff contends that the Postal Service's alleged untimely commencement of its interactive process and inability to secure the alternative positions he requested constitutes retaliation for seeking accommodation. (Pla. Resp. at 14). Such is not the case. Again, the Service responded to Plaintiff's initial light duty request in four days. (SSOF ¶ 16; Ex 27). After that time, Plaintiff never initiated any action with regard to the interactive process, but instead disregarded the Service's continual requests for information or action. Throughout the interactive process, the Service repeatedly sought to accommodate Plaintiff within the bounds of its union agreements, even going so far as to delay Plaintiff's termination in lieu of a further chance to accommodate him. (SOF ¶ 34-37, 54 Ex 30-33, 50).8 Such efforts were accommodative, not retributive. See Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9th Cir. 1994)(an insufficient act of Surprisingly, Plaintiff again contends that the Postal Service is "unable to explain how it was able to accommodate his disability when it was required to pay his OWCP award. (Pla. Resp. at 12). The Postal Service has explained this action to no end. Prior to Plaintiff's 2002 submission concerning the work-related nature of his injury, the Postal Service could not place Plaintiff in a limited duty position. (SSOF ¶ 44, Ex 62). Plaintiff's own refusal to submit this information, not the Service's actions, resulted in the delay. (SSOF ¶ 28-30; Ex 40-42, 68). The relative immediacy with which the Service was able to place Plaintiff in a limited duty position following the OWCP determination further reflects how Plaintiff's inaction impeded the accommodation of his claim. Plaintiff urges this Court to discount the Postal Service's referencing its union obligations as an "after-created" argument. (Pla. resp. at 15). The Service was well aware of its union commitments throughout its interaction with Plaintiff and before this lawsuit. (SSOF ¶ 44, Ex 62). Defendants' need to adhere to those agreements is proper and should be added to the litany of legitimate reasons for its decisions.
10
8 7

Case 2:03-cv-02537-DGC

Document 195

Filed 03/10/2006

Page 10 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

remediation does not constitute retaliation). Further, although Plaintiff did not receive the new jobs he desired, the Service gave him several options, including disability retirement. (SSOF ¶ 16, 23, 33; Ex 27, 33, 47). Plaintiff was not entitled to an accommodation of choice. Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997); Hankins v. The Gap, Inc., 84 F.3d 797, 800-01 (6th Cir. 1996)(employer retains "ultimate discretion" to choose effective accommodation).9 There was no retaliation. Plaintiff does not specifically address his October 18, 2000 EEO consultation. As addressed in Defendants' initial brief, the meeting is wholly divorced from any alleged adverse actions. Not only did the session occur two years before Plaintiff's termination, it addressed managers and a transfer wholly unrelated to the claim at issue. (SOF ¶ 33; Ex 29).10 The consultation is isolated and unrelated to Plaintiff's case. Concerning termination; yet again, Plaintiff was terminated after multiple attempts to accommodate him within the bounds of the Service's the union contract. (SSOF ¶ 39, 44; Ex 52, 62). The simple fact that Plaintiff could not perform his job alone constitutes a nondiscriminatory basis for termination. Teahan, 951 F.2d at 516; Basith v. Cook County, 241 F.3d 919, 933 (7th Cir. 2001). Moreover, the Service additionally terminated Plaintiff because of his continual disregard of its requests, not in retaliation. V CONCLUSION For the foregoing reasons, Defendants John E. Potter, Postmaster General, United States Postal Service; and Yvonne Pearson, separately and in her individual capacity

Plaintiff insinuates that he was "targeted for termination," (Pla. Resp. at 14), but offers no examples or evidence to substantiate his claim. The accusation is also poor due to the Postal Service's lengthy efforts to accommodate Plaintiff on numerous occasions. Even if this were to be construed as an argument of pretext, the Service's three legitimate reasons for termination, especially Plaintiff's continual disregard of its requests, defuse Plaintiff's retaliation claim. It should also be noted that the October 2000 EEO claim was dismissed for failure to file a formal complaint, (SOF ¶ 33; Ex 29), yet another example of Plaintiff's inaction.
11
10

9

Case 2:03-cv-02537-DGC

Document 195

Filed 03/10/2006

Page 11 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

respectfully request that this Court GRANT their motion for summary judgment and dismiss Plaintiff's Amended Complaint and action. Respectfully submitted this 10th day of March, 2006. PAUL K. CHARLTON United States Attorney District of Arizona

s/Peter M. Lantka Peter M. Lantka Assistant U.S. Attorney

12

Case 2:03-cv-02537-DGC

Document 195

Filed 03/10/2006

Page 12 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CERTIFICATE OF SERVICE I hereby certify that on March 10, 2006, I electronically transmitted the attached document, including exhibits, to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing, to the following CM/ECF registrants: William R. Hobson Law Offices of William R. Hobson 7303 W. Boston Street Chandler, Arizona 85226 [email protected] s/Nancy Stotler ____________________________
U.S. Attorney's Office

13

Case 2:03-cv-02537-DGC

Document 195

Filed 03/10/2006

Page 13 of 13