Free Response to Motion - District Court of Arizona - Arizona

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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, Plaintiff, v. John E. Potter, Postmaster General, United States Postal Service; and Yvonne Pearson, separately and in her individual capacity, Defendants. Defendants, John E. Potter, Postmaster General, United States Postal Service; and Yvonne Pearson, separately and in her individual capacity, by the undersigned, pursuant to LRCiv 56.1(a) respectfully submit Defendants' Supplemental Statement of Facts ("SSOF") in Response to Plaintiff's Motion for Partial Summary Judgment on Liability. CIV-03-2537-PHX-DGC DEFENDANTS' SUPPLEMENTAL STATEMENT OF FACTS IN RESPONSE TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

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DEFENDANTS' SUPPLEMENTAL STATEMENT OF FACTS
1. For purposes of completeness, Defendants make reference to and incorporate

herein all exhibits submitted in support of Defendants' Motion for Summary Judgment and statements made in Defendants' initial Statement of Facts. In addition, a complete transcript of Plaintiff's deposition has been added to the existing exhibits in response to Plaintiff's Motion. (Ex 68). 2. Plaintiff began employment with the Postal Service on September 14, 1985 as

a distribution clerk. (Comp. ¶ 10). Shortly thereafter, Plaintiff was assigned to a position in the mailhandler craft. (Comp. ¶ 11).

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3.

In 2000, the essential duties of a mailhandler were : (1) loading and unloading

mail trucks; (2) dumping and sacking mail within the postal facility; (3) hand canceling stamps, operating cancelling machines, culling cancelled mail, and separating mail by type; (4) making simple distributions of parcel post and bundles; and re-wrapping damaged parcels; (5) transporting mail within the facility using hand-powered equipment; (6) transporting mail within the facility using powered industrial equipment; and (7) preparation of mail. (Ex 2). 4. Plaintiff had received accommodations for physical restrictions prior to 2000.

On October 29,1993, Plaintiff requested and received a light duty assignment stemming from a past injury to Plaintiff's right leg, which permitted Plaintiff to work with a walking restriction. (Ex 8). Following the Postal Service's request and Plaintiff's submission of medical information on or about November 19, 1999, Plaintiff's light duty was extended to February 19, 2000. (Ex 13). Plaintiff's restrictions were further extended to June 16, 2000 after Plaintiff submitted additional information. (Ex 16). 5. Plaintiff received a neurological consultation from Dr. Marc A. Letellier on

June 21, 2000, during which Plaintiff informed Dr. Letellier that "he thinks the extremely heavy lifting he does at the U.S. Postal Service that he has done for the past fifteen years has been the cause of [numbness, hand, and leg problems]." (Ex 19). 6. 7. Plaintiff underwent a cervical fusion on July 10, 2000. ( Ex 20). Following surgery, on August 29, 2000, Dr. Letellier noted that Plaintiff had

not improved and would be unable to return to the post office (Ex 21). Dr. Letellier placed the following restrictions on Plaintiff's return to work: (1) sedentary job with no lifting over 20 pounds; (2) no repetitive use of right hand for more than five minutes at a time; (3) no walking more than 500 feet at a time; and (3) no standing, bending, or twisting for more than ten minutes at a time. (Ex 23). 8. On September 15, 2000, Plaintiff provided the Postal Service with the above

restrictions, stating that he was "permanently messed up" and "in pain most of the time."

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Plaintiff further informed the Postal Service that he had lost 80% use of his right hand, was forced to drag his right leg, and was unable to walk any great length. Id. 9. Plaintiff returned to work on or about September 21, 2000, at which time he

informed the temporary supervisor, Richard Hepler, of his disability and was instructed to sit down and take it easy until Hepler had an opportunity to examine Plaintiff's paperwork. (Ex 24; 68). 10. Plaintiff made no effort to seek Helper, and sat in the Postal Service's sack room for two days. Id.1 11. On September 23, 2000, Plaintiff's supervisor, Vanaja Thiyagarajan, examined

Plaintiff's restrictions and asked Plaintiff whether he could work in re-wrap as an alternative assignment. Plaintiff refused the accommodation, informing Thiyagarajan that his

restrictions prohibited use of his right hand for more than five minutes at a time. Id. 12. Thiyagarajan then inquired into alternative positions for Plaintiff with Hiram

Johnson, Manager of Distributed Operations. Johnson inquired into positions at several locations, but could find no work available within Plaintiff's restrictions at the time. (Ex 25). 13. As a result, Thiyagarajan informed Plaintiff that no work could be located

within his restrictions and sent Plaintiff home. (Ex 24). 14. The next day, Plaintiff submitted a written request for permanent light duty

assignment. In his request, Plaintiff stated: "I am permanently disabled. . . ." (Ex 26). 15. The Postal Service maintains two separate and distinct programs for employees

who are unable to perform the essential functions of their position due to a medical condition: "limited" and "light" duty. "Limited" duty applies to employees who suffer on-the-job injuries, and is governed by the Federal Employee Compensation Act (FECA), 5 U.S.C. §

Plaintiff's deposition testimony conflicts with his sworn statement on this point. Compare (Ex 24)(Plaintiff's statement that he sat inactive in the Postal Service's sack room for two days) with (Ex 68, p. 149)(Plaintiff's statement that he performed some duties in the sack room during September 21 and 22, 2000). The discrepancy, however, is insignificant for purposes of a Rule 56 motion. 3

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8101. Limited duty is administered by the Department of Labor, Office of Workers' Compensation ("OWCP"). By contrast, requests for "light" duty positions are governed by applicable collective bargaining agreements. Unlike limited duty, the Postal Service is not obligated to create a position for employees requesting light duty assignments. [Ex 61-62, 67]. Light duty work is only provided if such work is available. Id. 16. Plaintiff's light duty request was denied on September 28, 2000, because the

Postal Service could not locate any light duty assignments meeting Plaintiff's physical limitations. In its denial letter, the Postal Service afforded Plaintiff several options, namely (1) authorized sick leave or (2) leave without pay. The letter further outlined internal forms and contacts for Plaintiff to use in exercising his options. (Ex 27). There is no indication in the factual record that Plaintiff followed up on either option. 17. On or about October 7, 2000, Plaintiff wrote Dr. Letellier, requesting

information on his medical condition to submit to the Postal Service. (Ex 28). 18. On January 6, 2001, Thiyagarajan nominated Plaintiff to the District

Reasonable Accommodation Committee ("DRAC") for an assessment of Plaintiff's injury and the Postal Service's ability to accommodate his disability. (Ex 30). 19. On January 25, 2001, the DRAC met with Chapman to review his case. The

DRAC reviewed Chapman's job description, personal statement, and work restrictions. During the meeting, Plaintiff indicated that he was, "done with [his] craft" and that he "can't do it." As a result, both Plaintiff and the DRAC agreed that Plaintiff could not perform the essential functions of a mailhandler. The parties further discussed Plaintiff's accommodation options: (1) reassignment or (2) apply for disability retirement. (Ex 30, 32, 68). 20. Laurel Allen, Postal Service Manager of Personnel Services, participated in the

DRAC process. Upon review of the Postal Service Hiring Activity Log, Allen determined that no vacant, available, funded positions were available within Plaintiff's medical restrictions. Allen further determined that, "the committee and Mr. Chapman jointly could not identify any reasonable accommodations to allow Chapman to perform the essential functions of his mail handler position." (Ex 61).

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21.

At the time of the hearing, Plaintiff had not submitted any OWCP claims

indicating that his injury was work-related. (Ex 68). 22. At the meeting, Plaintiff suggested possible accommodation through a position

with computers. (Ex 30, 32, 68). 23. On February 9, 2001, the DRAC chairman issued Plaintiff a letter reiterating

his accommodation options and affording Plaintiff thirty days to notify the personnel department of his decision. (Ex. 33). There is no indication in the record that Plaintiff exercised either option. 24. 25. At no time did Plaintiff ever request reassignment to a different craft. (Ex 68). On November 14, and 15, 2001, Mr. Mark Hyland performed a Functional

Capacity Evaluation ("FCE") on Plaintiff to determine Plaintiff's physical ability to return to pre-injury or alternative work status. Noting that Plaintiff was "independent in activities of daily living including meal preparation, hygiene and dressing activities," Dr. Hyland concluded that Chapman could work safely in the sedentary to light work category for an eight hour day. (Ex 37). 26. Regarding the FCE, December 18, 2001 progress notes signed by Drs.

Halvorson and Porter, who evaluated Plaintiff's disability, indicate Plaintiff's delay in completing the evaluation process. Specifically, the physicians' notes state that Plaintiff was referred for a FCE in July but did not submit to examination until November. Further, Plaintiff failed to follow up with cardiology and urology consults, or recommended psychological counseling. (Ex 38). 27. On January 16, 2002, the Postal Service issued Plaintiff a Notice of Proposed

Separation-Disability. The notice indicated that the Postal Service was taking administrative action pursuant to the Employee Labor Manual ("ELM") § 365.34 for Plaintiff's physical inability to perform the duties of his position. (Ex. 39). 28. On January 28, 2002, over sixteen months after Plaintiff's return to work and

contrary to former submissions, Dr. Porter drafted a report for Plaintiff indicating that Plaintiff's injury was associated with his employment. (Ex 40).

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29.

On February 13, 2002, nearly seventeen months after Plaintiff's return to work,

Plaintiff filed a CA-2 claim (reoccurrence of injury or pre-existing injury) with the OWCP, indicating that his current disability stemmed from his employment. (Ex 41). Plaintiff's CA2 claim was followed by a Postal Service accident report from Johnny Camou, a Postal Service supervisor, on or about February 20, 2002. (Ex. 42). 30. Plaintiff stated that he delayed filing an OWCP claim because he wanted to

make sure all required information was gathered. (Ex 41, 68). 31. On March 14, 2002, DOL Examiner K. Jones wrote Plaintiff regarding his

submission and informed Plaintiff that he had not identified specific work activities contributing to his condition. Ms. Jones further indicated a need for information concerning Plaintiff's 1990 motor vehicle accident and requested the associated medical records. The DOL afforded Plaintiff thirty days to respond with the required information. (Ex 45). 32. Plaintiff never complied with the DOL request; and on April 30, 2002, Ms.

Jones issued a Letter of Decision to Plaintiff denying his compensation because no objective medical rationale was provided concerning his condition and because Plaintiff failed to provide the requested evidence regarding his 1990 accident. (Ex 46). 33. On May 7, 2002, Defendant Yvonne Pearson, a Postal Service Injury

Compensation Specialist, issued Plaintiff another letter informing him that his DOL claim had been denied and that he should expect to resume his mail handler position without restrictions. In the alternative, Ms. Pearson's letter provided Plaintiff with three choices: (1) requesting temporary light duty, (2) requesting permanent light duty, or (3) seeking disability retirement. Ms. Pearson afforded Plaintiff ten days to advise his supervisor of his decision. (Ex 47). Plaintiff never followed up on Ms. Pearson's options. 34. Due to Plaintiff's failure to comply with the Postal Service's requests and his

inability to perform his job as a mailhandler, Senior Plant Manager Paul Harris issued a certified Letter of Separation-Disability to Plaintiff on June 17, 2002. (Ex 49). 35. Following Harris's letter, Plaintiff's union president, Tony Francisco,

approached Harris and intervened on Plaintiff's behalf. In response, Harris met with

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Francisco, Union Steward Mark Garcia, Plaintiff, and Plaintiff's representative on June 28, 2002 to afford Plaintiff an opportunity to explain his inaction in response to the February 9, 2001 DRAC determination and to mitigate the reasons for Plaintiff's termination. (Ex 50). 36. During the June 28, 2002 meeting, Plaintiff indicated that he failed to respond

to the DRAC options because he was waiting to see if his condition changed. He further acknowledged that he had been experiencing dependency issues and personal problems. In light of these considerations, Harris suspended his June 28, 2002 decision to allow Plaintiff an opportunity to present information concerning his mitigation and to allow Harris an opportunity to personally review and explore Plaintiff's potential for reasonable accommodation. Id. 37. On July 1, 2002, Garcia wrote Harris requesting reassignment for Plaintiff into

an existing or created position based on a list of itemized skills. Harris, however, could not identify any light duty assignment within the facility that matched Plaintiff's skills and met his physical limitations. Id. 38. Based on the foregoing, Harris suspended Plaintiff's termination and again

offered Plaintiff an opportunity to choose from the DRAC's alternatives: (1) requesting reassignment to an alternative craft or (2) disability retirement. As before, Harris afforded Plaintiff thirty days to notify the Personnel Office of his decision. In doing so, Harris specifically stated that he would render his decision following the thirty-day period. Id. 39. Plaintiff again did nothing; and on October 1, 2002, Harris issued a Letter of

Decision terminating Chapman because: (1) his permanent physical limitations prevented him from performing the essential duties of a mailhandler; (2) he failed to exercise the options offered by the DRAC; and (3) because no reasonable accommodation existed allowing him to perform the essential requirements of his position. Harris stated: "I find that I am unable to modify the original proposal and based on the circumstances, it would not be in the best interest of the Postal Service, nor would it promote the efficiency of the service to continue your employment . . . ." (Ex 52).

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40.

On October 10, 2002, Plaintiff and Garcia met with Plaintiff's physician, Dr.

Porter, regarding Dr. Porter's January 28, 2002 medical records. Dr. Porter's notes indicate that Plaintiff requested Dr. Porter to revise his prior statement regarding Plaintiff's herniated discs and their association with his work environment. (Ex 53). 41. On October 24, 2002, Plaintiff attended an appeal hearing on the denial of his

OWCP claim. (Ex 54). Based on information received since its April 30, 2002 decision, the DOL reversed its earlier determination and approved Plaintiff's workers compensation claim on December 26, 2002. Among other reasons, the Panel reversed its decision because Dr. Porter's amended report established that Plaintiff's injury was work related. (Ex. 55). 42. On January 3, 2003, Chapman filed a formal EEO Complaint (# 1E- 853-0016-

03), alleging sex, age, and disability discrimination as well as retaliation. The EEO found no discrimination under any theory, reasoning that Plaintiff was not a qualified disabled individual and had failed to present a prima facie case for sex or age discrimination. Regarding retaliation, the EEO determined that there was no causal connection between Plaintiff's protected activities and his adverse action, that too much time had elapsed between Plaintiff's action and the alleged retaliation, and that the Postal Service possessed a legitimate non-discriminatory reason for its actions. (Ex 2). 43. Upon receipt of the revised OWCP decision, the Postal Service offered Plaintiff

a modified position in security control on July 29, 2003. The position was reviewed by the District Medical Advisor on or about September 23, 2003 and was found suitable. Plaintiff accepted the position on December 5, 2003. (Ex. 57).2 44. The modified position in security control was not a bid job, but was created

specifically for Plaintiff after the DOL accepted his claim. (Ex 61). The Postal Service was unable to offer Plaintiff this position prior to the DOL's decision due to its bargaining agreement with the labor union. (Ex 62).

Delays in Plaintiff's acceptance were due to communications with Plaintiff's counsel, misdirected mail, and necessary review by the OWCP. (Ex 57). 8

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45.

Prior to Plaintiff's return to work, the DOL received and processed CA-7 forms

from the Plaintiff, requesting compensation for Plaintiff's injuries, which were now deemed work-related. The DOL processed the claims and paid Plaintiff over $100,000 in benefits. (Ex 57, 58). Respectfully submitted this 1st day of February, 2006. PAUL K. CHARLTON United States Attorney District of Arizona

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

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CERTIFICATE OF SERVICE I hereby certify that on February 1, 2006, I electronically transmitted the attached document 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 s/Nancy Stotler _________________________

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