Free 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, Plaintiff, v. 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 Response to Plaintiff's Motion for Partial Summary Judgment. Defendants' response is supported by the contemporaneously filed Supplemental Statement of Facts ("SSOF"), supporting exhibits, the Memorandum of Points and Authorities included below, and all matters of record. MEMORANDUM OF POINTS AND AUTHORITIES CIV-03-2537-PHX-DGC DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff's motion attempts to cull a discrimination claim from the Postal Service's legitimate, nondiscriminatory efforts to address Plaintiff's disability in light of its obligations and the governing law. As demonstrated below, Plaintiff cannot establish a prima facie case for either discrimination or retaliation under the Rehabilitation Act. Not only does he fail to ally his condition with the type of disability contemplated by the Act, Plaintiff cannot circumvent the undisputed factual record showing both the Postal Service's good faith efforts to accommodate him and his willful hindrance of that process. Plaintiff should not be awarded summary judgment.

Case 2:03-cv-02537-DGC

Document 185

Filed 02/01/2006

Page 1 of 16

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

I

SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted when the pleadings, depositions, answers to

interrogatories, affidavits, and admissions on file demonstrate that there is no disputed issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986). The moving party must establish both the lack of any genuine issue of material fact and its entitlement to judgment. Matsushita Electric Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 577 (1986). Once the moving party carries its initial burden, the non-moving party must provide evidence setting forth "specific facts showing that there is a genuine issue for trial." Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). All evidentiary inferences should be drawn in the light most favorable to the nonmoving party. King County v. Rasmussen, 299 F.3d 1077, 1083 (9th Cir. 2002).

II

PLAINTIFF CANNOT SUSTAIN AN ACTION FOR DISCRIMINATION UNDER THE REHABILITATION ACT Plaintiff gives short shrift to the appropriate standard and analysis for disability

discrimination under the Rehabilitation Act. To establish a prima facie case under the 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, either 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); Wong v. Regents of University of California, 192 F.3d 807, 816 (9th Cir. 1999). Plaintiff cannot satisfy any of these factors, each warranting a decision favoring the Postal Service. Further negating Plaintiff's claim, Plaintiff was terminated for legitimate,

nondiscriminatory reasons. A Plaintiff Was Not Disabled Under the Rehabilitation Act.

An individual is disabled under the Rehabilitation Act if he: (a) has a physical or

mental impairment substantially limiting one or more major life activity; (b) has record of such impairment, or (c) is regarded as having such impairment. 42 U.S.C. § 12102(2); 29 2

Case 2:03-cv-02537-DGC

Document 185

Filed 02/01/2006

Page 2 of 16

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

C.F.R. § 1630.2(g); Coons v. Secretary of the U.S. Dept. of the Treasury, 383 F.3d 879, 884 (9th Cir. 2004). Plaintiff fails to address these factors and cannot establish a prima facie case in light of the undisputed factual record.1 1 Plaintiff's Condition Failed to Limit His Major Life Activities

As established in the Postal Service's Motion for Summary Judgment, the "central
inquiry" in determining whether Plaintiff is disabled under the Act is whether he "is unable to perform the variety of tasks central to most people's daily lives, not whether [he] is unable to perform the tasks associated with [his] specific job." Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 185 (2002). The Federal Regulations further this objective, defining

"major life activities" as "caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i).

Plaintiff was not substantially limited in his major life activities. In his Functional Capacity Evaluation, which was taken at Plaintiff's behest, Dr. Hyland concluded that Plaintiff was "independent in activities of daily living, including meal preparation, hygiene and dressing activities." (SSOF ¶ 25; Ex 37). Dr. Hyland further concluded that Plaintiff was capable of working safely in a sedentary to light work category for an eight hour day. Id. Regarding the activity of "working," Plaintiff can only establish a disability if he was "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. § 1630.2(j)(3) (emphasis added). Plaintiff admits that he was not disabled under this criteria. (Pla Mot. at 3) (stating that Plaintiff "could have performed [a modified position] prior to being

Plaintiff cites Reynolds v. Brock, 815 F.2d 571 (9th Cir. 1987), in support of his legal standard. Reynolds acknowledges the need to address disability under the Act, but pays little attention to the appropriate test, summarily finding that the plaintiff's epilepsy constituted a disability. Id. at 573-74. Lucero v. Hart, 915 F.2d 1367 (9th Cir. 1990), also cited by Plaintiff, does not address this factor.

1

3

Case 2:03-cv-02537-DGC

Document 185

Filed 02/01/2006

Page 3 of 16

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

discharged."); see also (SSOF ¶ 10, Fn.1; Ex. 68, p. 149:14-17) (Plaintiff's statement that he was able to stack bags in the mail room). While these basic activities were insufficient to substantiate the essential duties of Plaintiff's mailhandler craft, they demonstrate that Plaintiff was not precluded from "a broad range of jobs" as defined by the Act. Plaintiff was not substantially limited in his major life activities and was not disabled under the Act. 2 Plaintiff Had no Record of Impairment

To have a record of an impairment, Plaintiff must establish "a history of, or [have] been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities." 29 C.F.R. § 1630.2(k); Coons, 383 F.3d at 886. Plaintiff cannot establish a history of impairment, including impairment while "working." To the contrary, Plaintiff's past injuries did not preclude his employment, but were met with accommodation whenever possible. (SSOF ¶ 4; Ex. 8, 13, 16) (detailing Plaintiff's physical restrictions and accommodations from 1993 through 2000). Moreover, any past impairment, similar to Plaintiff's 2000 injury, was not sever enough to inhibit a major life activity. Coons, 383 F.3d at 886 (citing 42 U.S.C. § 12102(2)(B); Heisler v. Metro. Council, 339 F.3d 622, 630 (8th Cir.2003)("the record must be of an impairment that substantially limits a major life activity"). There was no record of impairment. 3 The Postal Service Never Regarded Plaintiff as Disabled

Under the Act, an employee is regarded as disabled if he: (1) has a physical or mental
impairment that does not substantially limit major life activities but is treated as having such limitations; (2) has an impairment substantially limiting major life activities only as a result of the attitudes of others toward such impairment; or (3) does not have an impairment but is treated as having a substantially limiting impairment. 29 C.F.R. § 1630.2(l). While aptly understanding that Plaintiff could not perform the essential duties of a mailhandler, the Postal Service never regarded or treated Plaintiff as having an impairment that substantially limited major life activities. In opposite, the Postal Service repeatedly attempted to garner Plaintiff's assistance in seeking alternate employment within the bounds of its union restrictions. See e.g. (SSOF ¶ 12, 16, 18-19; Ex. 25, 27, 30, 32, 68). Plaintiff was not regarded as disabled.

4

Case 2:03-cv-02537-DGC

Document 185

Filed 02/01/2006

Page 4 of 16

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

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); Wooten v. Farmland Foods , 58 F.3d 382, 386 (8th Cir 1995) (employer's decision to terminate employee based upon physical restrictions imposed by her doctor did not indicate that the employer regarded her as having a substantially limiting impairment).

While hampered, there is no evidence indicating that Plaintiff was unable to perform the activities of daily living which an average person in the general population could perform, nor can Plaintiff establish that his disability precluded him from a wide array of work functions. He had no record of an extensive disability, and there is no evidence that
the Postal Service ever regarded him as disabled under the Act's broad definition. Plaintiff

was not disabled under the Act, and resultantly, cannot establish a prima facie case.
B Plaintiff is Not a Qualified Individual Able to Perform the Essential Functions of His Position

Under the Federal Regulations, a qualified individual with a disability "means an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. § 1630.2 (m)(emphasis added). The essential functions of a position are defined as "the fundamental job duties of the employment position the individual with a disability holds or desires." 29 C.F.R. § 1630.2 (n). Plaintiff asserts that he was a qualified individual "by showing that upon being required to pay his salary, the USPS brought him back to a `modified mail handler' position." (Pla Mot. at 4 fn.4). Plaintiff's assertion bears little relationship to the law or the facts. By his own admission and the DRAC's evaluation, Plaintiff was "permanently messed up" and unable to perform the essential duties of a mailhandler. (SSOF ¶ 8, Ex. 23). Plaintiff informed the DRAC that he was "done with [his] craft" and that he "can't do it." (SSOF ¶ 19, Ex. 30, 32, 68); see also (SSOF ¶ 3; Ex. 2) and (SSOF ¶ 7; Ex. 21, 23)(comparing Plaintiff's physical restrictions to the essential duties of a mailhandler).

5

Case 2:03-cv-02537-DGC

Document 185

Filed 02/01/2006

Page 5 of 16

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

Despite his admission and the restrictions imposed by his physician, Plaintiff now contends that his eventual placement into a modified position establishes him as a qualified individual. Not so. The Postal Service could only create a "limited" duty position for Plaintiff within the mailhandler craft, such as his eventual modified job, once the OWCP determined that Plaintiff's injury was work related. (SSOF ¶ 15, 44; Ex. 61-62, 67). Creation of such a position was simply impossible at the time that Plaintiff sought accommodation because he had not submitted any information to the OWCP or the Postal Service indicating that his injury was connected to his employment. Id.; see also (SSOF ¶ 28-30; Ex. 40-42, 68) (Plaintiff indicating that he failed to inform the OWCP that his injury was work related until February 2002, over sixteen months after returning to work); (SSOF ¶ 19-20; Ex. 30, 32, 61, 68)(unavailability of positions within Plaintiff's medical restrictions); (SSOF ¶ 44; Ex 62)(impossibility of assigning Plaintiff to alternate crafts due to union agreement); Jasany v. United States Postal Service, 755 F.2d 1244, 1250 (6th Cir.1985) (employer cannot be required to accommodate handicapped employee by usurping legitimate rights of other employees under a collective bargaining agreement); Carter v. Tisch, 822 F.2d 465, 467 (4th Cir. 1987)(addressing Postal Service's inability to reassign due to collective bargaining agreement)("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."). Thus, Plaintiff's assertion that he was qualified under the Rehabilitation Act is incorrect. He could not perform the essential duties of a mailhandler and cannot establish a prima facie case for discrimination.2 C

Plaintiff's Termination Was Not Discriminatory

Without argument, Plaintiff asserts that termination "because of his handicap" constitutes prohibited discrimination. (Pla. Mot. at 4). Plaintiff is incorrect. While the Postal
2

Further, it does not follow that Plaintiff could perform the essential functions of a mailhandler from his admitted ability to serve in a modified capacity. A position's "essential functions" do not encompass the marginal functions of the position. 29 C.F.R. § 1630.2 (n). 6

Case 2:03-cv-02537-DGC

Document 185

Filed 02/01/2006

Page 6 of 16

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

Service understandably terminated Plaintiff in part because he was unable to serve as a mailhandler, the Service's reasoning was not discriminatory under the Act. Further, Plaintiff's willful disregard toward the Service's attempts to accommodate him and the Service's need to conform to its union obligations present legitimate reasons for the termination. Under the Act, the Postal Service is within its right to rely on an employee's disability in its termination decision so long as it demonstrates that the disability is relevant to the employee's position. Mustafa v. Clark County School District, 157 F.3d 1169, 1175-76 (9th

Cir. 1998) (citing Teahan v. Metro-North Commuter R. Co., 951 F.2d 511, 514-16 (2nd
Cir.1991.)) Throughout, the employee maintains the burden of proving that he is qualified despite his disability. Teahan, 951 F.2d at 515. Plaintiff was eventually terminated 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. (SSOF ¶ 39; Ex 52). As discussed above, there is no dispute that Plaintiff's disability prevented him from performing the essential duties of a mailhandler. (SSOF ¶ 8, 19; Ex. 23, 30, 32, 68). Thus, his disability was relevant to his position. Also discussed above, Plaintiff cannot establish that he was a qualified individual despite his disability. He simply could not do his job, and the Postal Service did not discriminate against him in its termination decision. Teahan, 951 F.2d at 516 ("If the consequences of the handicap are such that the employee is not qualified for the position, then a firing because of that handicap is not discriminatory, even though the firing is `solely by reason of' the handicap.")(emphasis original, citation omitted.). D Plaintiff was Terminated for Legitimate, Nondiscriminatory Reasons

Further precluding liability, the Postal Service terminated Plaintiff for legitimate, nondiscriminatory reasons. Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir.1990)("If the plaintiff makes out a prima facie case of wrongful termination under the [Rehabilitation] Act. . .[s]ummary judgment is still proper if the defendants can rebut any prima facie case with

7

Case 2:03-cv-02537-DGC

Document 185

Filed 02/01/2006

Page 7 of 16

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

evidence of a nondiscriminatory reason for the termination."). First and foremost, Plaintiff's inability to serve as a mailhandler constitutes a nondiscriminatory basis for termination. See e.g. Miller v. California Dept. of Corrections, 1998 WL 917525, *6 (N.D. Cal.1998)(demotion based on employee's inability to perform essential functions of her position because of a disability constituted legitimate, nondiscriminatory reason for employer's action). Additionally, the Postal Service terminated Plaintiff because he failed to respond to the Service's five attempts to seek accommodation. (SSOF ¶ 39; Ex. 52). Plaintiff's

disregard toward his employer's directives further substantiates the Service's decision. Lastly, the Postal Service could not reassign Plaintiff prior to the DOL's acceptance of his OWCP claim because of the limitations on transfer stemming from its union obligations. See Daubert v. United States Postal Service, 733 F.2d 1367, 1370 (10th Cir.1984) (Postal Service could rely on collective bargaining agreement in discharging plaintiff. The agreement "clearly articulates a legitimate business reason" for discharge.)(emphasis added); See also Jasany, 755 F.2d at 1250; Wimbley v. Bolger, 642 F.Supp. 481, 486 (W.D. Tenn.1986)(citing multiple cases) ("a federal agency is under no obligation to transfer handicapped employee from the job for which he is employed to some other position in order to provide him with work which he can perform."); Carty v. Carlin, 623 F.Supp. 1181,1189 (D. Md.1985) (Postal Service not required to accommodate handicapped employee by reassigning him to another position). Plaintiff cannot establish a prima facie case for discrimination under the Rehabilitation Act. While hindered, he consistently maintained the ability to perform the activities of daily

living and was not disabled under the broad terms of the Act. Plaintiff's handicap prevented him from performing the essential duties of a mailhandler, precluding him from classification as a qualified individual. Lastly, the Postal Service's decision to terminate Plaintiff was not discriminatory both because of Plaintiff's inability to fulfill his duties and because of its nondiscriminatory reasons. The Postal Service, not Plaintiff, is entitled to summary judgment on these grounds. 8

Case 2:03-cv-02537-DGC

Document 185

Filed 02/01/2006

Page 8 of 16

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

III

THE POSTAL SERVICE ENGAGED IN A MEANINGFUL INTERACTIVE PROCESS WITH PLAINTIFF Upon an employee's desire for accommodation, an employer must engage in an

informal interactive process "to clarify what the individual needs and identify the appropriate accommodation." Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002)(citing Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000)). Plaintiff contends that the Postal Service failed to engage in an interactive process (1) by doing "nothing for many months after putting Chapman out of work on nonpay status," and (2) by failing to consider modifications to Plaintiff's job duties. (Pla. Mot. at 6-7).3 Plaintiff's allegations, however, yield little benefit in light of the Postal Service's repeated attempts to accommodate him within the confines of its regulations and Plaintiff's willful refusal to meet the Service in its efforts. A Plaintiff's Accommodation Claims should be Summarily Dismissed

As a preliminary and dispositive matter, this Court need not consider Plaintiff's arguments. An employer is not required to reasonably accommodate an employee's disability when the employee is "not disabled within the meaning of the Rehabilitation Act." Coons, 383 F.3d at 886 Fn.3. As previously established, Plaintiff was never disabled under the terms of the Act; and as such, the Postal Service never had to accommodate his disability. Plaintiff's argument concerning the interactive process should therefore be summarily dismissed. B The Postal Service Fully Interacted with Plaintiff and was Met with Obstinance and Inaction

Should this Court choose not to dismiss Plaintiff's claims summarily, the Postal Service engaged in a continual process of meeting with Plaintiff and attempting to accommodate him within the bounds of his craft and the Service's restrictions. Plaintiff,

Plaintiff also includes a substantial amount of legislative history on the affirmative aspects surrounding the hiring, placement, and advancement of individuals with disabilities under the Rehabilitation Act. (Pla. Mot. at 4-5). While informative, the information is irrelevant to this Court's evaluation. 9

3

Case 2:03-cv-02537-DGC

Document 185

Filed 02/01/2006

Page 9 of 16

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

however, refused to comply with any of the Service's initiatives. For instance:
1. The Postal Service responded to Plaintiff's September 24, 2000 request for light duty on September 28, 2000, indicating that it could not locate any light duty assignments meeting Plaintiff's physical limitations. The Service gave Plaintiff several options, including sick leave, and asked Plaintiff to contact his supervisor with any questions. (SSOF ¶ 16; Ex. 27). Plaintiff never responded to the letter and never contacted his supervisor regarding leave. 2. On January 6, 2001, Plaintiff's supervisor nominated Plaintiff to the DRAC for assessment. (SSOF ¶ 18; Ex. 30). Following its meeting with Plaintiff, the DRAC issued Plaintiff a letter on February 9, 2001, allowing him to either request reassignment or apply for disability retirement within thirty days. Again, Plaintiff did nothing. (SSOF ¶ 18-19, 23; Ex. 30, 32-33, 68). 3. On March 14, 2002, the DOL wrote Plaintiff, indicating that his request for OWCP benefits would be denied for lack of information. The correspondence afforded Plaintiff thirty days to supplement his claim, yet Plaintiff failed to respond, and the claim was denied on April 30, 2002. (SSOF 31-32; Ex. 45-46).4 4. Defendant Pearson wrote Plaintiff on May 7, 2002 regarding the DOL's denial and permitting Plaintiff ten days to seek light duty or disability retirement. (SSOF 32-33; Ex. 46-47). Plaintiff never responded. 5. On June 17, 2002, plant manager Paul Harris issued Plaintiff a letter of termination, which he retracted following a meeting with Plaintiff and his representatives and again allowed Plaintiff thirty days to comply with the DRAC's February 2000 options. Yet again, Plaintiff failed to comply. (SSOF ¶ 34-39; Ex. 49-50, 52). In each situation, Plaintiff repeatedly refused to meet the Postal Service in its interactive efforts. Under the Rehabilitation Act, "both sides must participate in [the] goodfaith exploration of possible accommodations." Enriching, Inc. v. City of Fountain Valley, 2005 WL 2436479, *1 (9th Cir. 2005) (citing Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d

The Postal Service cannot be held liable for any action associated with the processing or evaluation of Plaintiff's OWCP claim. 5 U.S.C. § 8128(a), (b) (decisions concerning the proffering and discontinuance of FECA benefits are expressly reserved to the Secretary of Labor). The aforementioned is only included to show evidence of Plaintiff's inaction. 10

4

Case 2:03-cv-02537-DGC

Document 185

Filed 02/01/2006

Page 10 of 16

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

1128, 1137 (9th Cir.2001)). Failure to do so by the party seeking an accommodation can defeat a claim for discrimination. Allen v. Pacific Bell, 348 F.3d 1113, 1115-16 (9th Cir.2003) (per curiam) (affirming summary judgment where plaintiff refused to participate in interactive process with prospective employer); Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 737 (5th Cir. 1999) (plaintiff's "deafening silence" in response to accommodation options negated interactive process claim); Roberts v. Mega Life and Health Ins. Co., 2005 WL 659026, *4 (N.D. Tex. 2005)(citing Loulseged, 178 F.3d at 740)("when the employee intentionally abandons the accommodations dialogue, or abandons it because of her `subjective spin' that taints her perception of the employer's efforts, then the employer is relieved of liability under the ADA). Plaintiff's failure to meet the Postal Service in its efforts warrants judgment against Plaintiff on his interactive process claims. Regardless of Plaintiff's "subjective spin," the Postal Service extensively engaged in the interactive process, even temporarily suspending Plaintiff's termination in a final effort to accommodate him. (SSOF ¶ 34-39; Ex. 49-50, 52). Plaintiff's attempt to criticize the Service's accommodation options is trivial at best. (Pla Mot. at 7 fn.5).5 Plaintiff suggests that his eventual accommodation in security control indicates that he could have been placed in a modified position sooner. Again, the Service could not establish a modified, limited duty position until the DOL determined that Plaintiff's injury was work related. (SSOF ¶ 15, 44; Ex. 61-62, 67). Plaintiff knew that his injury was work related, but intentionally withheld the information from the Postal Service and the DOL until October 2002 (SSOF ¶ 30, 40-41; Ex. 41, 53, 55, 68) even going so far as to disregard the DOL's March 14, 2002 request for more information. (SSOF ¶ 31-32; Ex. 45-46). Plaintiff cannot now assert that a position which only became available in 2002 could have been implemented in 2000. The Postal Service had substantial discretion in its

accommodation options, and did not have to accommodate Plaintiff outside his craft. Hankins

Plaintiff's footnote simply lists hypothetical accommodations and fails to illicit specific opportunities to which Plaintiff could have been assigned within his mailhandler craft prior to acceptance of his OWCP claim. 11

5

Case 2:03-cv-02537-DGC

Document 185

Filed 02/01/2006

Page 11 of 16

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

v. The Gap, Inc., 84 F.3d 797, 800-01 (6th Cir. 1996)(citing 29 C.F.R. pt. 1630 app. at 415) (employer retains ultimate discretion to choose effective accommodation); Burch v. City of Nacogdoches, 174 F.3d 615, 620-21 (5th Cir. 1999)("the ADA does not require an employer relieve an employee of any essential functions of his or her job. . ."); see also (SSOF ¶ 20; Ex. 61)(noting absence of vacant, available, funded positions within Plaintiff's restrictions). Even if positions were available outside Plaintiff's craft; again, the Service could not place Plaintiff in a union-governed bid position. (SSOF ¶ 44; Ex 62); Carter, 822 F.2d at 467. The Postal Service legitimately participated in an interactive process to accommodate Plaintiff's injury. Watkins v. Ameripride Servs., 375 F.3d 821, 829 (9th Cir. 2004) (employer prevails on reasonable accommodation where there simply was no vacant position which a disabled employee was qualified and capable of performing with or without accommodation).6 Plaintiff's request for summary judgment on this issue is ill-fated. IV THE POSTAL SERVICE NEVER RETALIATED AGAINST PLAINTIFF Plaintiff contends that the Postal Service retaliated against him for seeking a modified job assignment by (1) removing him from his mailhandler position; (2) participating in the DRAC review process in bad faith; and (3) terminating him because of his disability and accommodation requests. (Pla. Mot. at 8). None of these actions were retaliatory. To establish a prima facie case of retaliation under the Rehabilitation Act, Plaintiff must establish: (1) that he engaged in a protected activity; (2) an adverse action was taken against him; and (3) a causal connection between the two. Coons, 383 F.3d at 887; Brown v. City of Tucson, 336 F.3d 1181, 1187 (9th Cir.2003). Should Plaintiff establish a prima facie case, the Postal Service may escape liability through a legitimate, non-retaliatory

Plaintiff further attempts to make issue of the timeliness of the Postal Service's response. (Pla. Mot. at 6)(accusing the Service of failing to act for "many months."). The Postal Service was never required to issue a lightning-fast response to Plaintiff's request. Loulseged, 178 F.3d at 737 ("Nothing in the regulations or the cases indicates. . .that an employer must move with maximum speed to complete this process . . ."). Many delays in fact stemmed from Plaintiff's refusal to respond to the Service's inquiries, which was a chief factor in his eventual termination. (SSOF ¶ 39, Ex. 52).

6

12

Case 2:03-cv-02537-DGC

Document 185

Filed 02/01/2006

Page 12 of 16

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

purpose for its actions. Id. Upon this showing, the burden returns to Plaintiff to establish pretext. Id.7 Plaintiff is unable to establish a prima facie case because there is no causal connection between his request for accommodation and the Postal Service's actions. Further, Plaintiff's expressed inability to perform his job in addition to his failure to respond to the Service's accommodation attempts present legitimate bases for the Service's actions. A There is No Causal Connection Between Plaintiff's Requests for Accommodation and the Postal Service's Actions

To establish a causal link between a protected activity and an adverse action, Plaintiff must produce evidence of a "nexus" between the two acts. White v. Digex, Inc., 149 Fed.Appx. 655, 658 (9th Cir. 2005). Concerning timeliness, "in order to support an inference of retaliatory motive, the termination must have occurred fairly soon after the employee's protected expression." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir.2002). Such a connection is impossible concerning Plaintiff's termination. Plaintiff initially sought accommodation in September 2000. (SSOF ¶ 11-14; Ex. 24-26, 68). His termination, however, came two years later and was not official until after Plant Manager Harris rescinded his initial letter of termination, allowing Plaintiff his fifth chance to comply with the Postal Service's requests. (SSOF ¶ 34-39; Ex. 49-50, 52). His termination was not retaliatory. In opposite to his termination, Plaintiff contends that the shortness of time between his removal and notice of disability establishes causation. (Pla. Mot. at 8 fn. 6). Although Plaintiff stopped coming into work in September 2000, simple proximity is insufficient to establish a nexus between these events. Coons, 383 F.3d at 887 (no causal link where the plaintiff "merely argued that the closeness in time between his engagement in the protected activity and the adverse employment action established causality"). Further, Plaintiff misstates the facts. He was never "removed" from work until his October 1, 2002 termination. (SSOF ¶ 39; Ex. 52). To the contrary, Plaintiff's supervisor asked him to leave

The Postal Service acknowledges that Plaintiff's request for accommodation is a protected activity. Plaintiff does not address any alleged retaliation based on his EEO filings.

7

13

Case 2:03-cv-02537-DGC

Document 185

Filed 02/01/2006

Page 13 of 16

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

work on September 23, 2000, rather than sit in the sack room, because there was nothing for Plaintiff to do. (SSOF ¶ 11; Ex. 24, 68). The Postal Service, in fact, repeatedly sought Plaintiff's return to work. See e.g. (SSOF ¶ 16; Ex. 27)(September 28, 2000 correspondence); (SSOF ¶ 23; Ex. 33)(DRAC letter requesting Plaintiff to seek reassignment or retirement); (SSOF ¶ 33; Ex. 47)(correspondence from Defendant Pearson informing Plaintiff of his imminent return to work). The Postal Service's inability to accommodate Plaintiff was not due to his requests. There was no retaliation. Likewise, Plaintiff's accusation that the DRAC's actions were conducted in bad faith cannot be taken seriously. The entire point of the DRAC is to seek reasonable

accommodations for injured employees. Naturally, the DRAC meeting was "caused" by Plaintiff's request for accommodation.8 To say that it was retaliatory, however, is

preposterous. Again, Plaintiff informed the DRAC that he was"done with [his] craft." (SSOF ¶ 19, Ex 30, 32, 68). Thus, the DRAC's decision that Plaintiff should either seek reassignment or retire was not discriminatory. B The Postal Service's Actions Stem from Legitimate, NonDiscriminatory Motives

The Postal Service's legitimate motivations have been thoroughly discussed and render further support against Plaintiff's retaliation claims. 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)(upholding termination of disabled employee because he "could not perform the essential functions of his job."). Moreover, the Service additionally terminated Plaintiff because of his continual disregard of its requests, not in retaliation. Id. Regarding accommodation and treatment with the DRAC; again, the Postal Service

This Court should note that causation in this regard is tenuous as well. Plaintiff's supervisor, not Plaintiff, initiated the DRAC proceedings. (SSOF ¶ 18; Ex. 30). 14

8

Case 2:03-cv-02537-DGC

Document 185

Filed 02/01/2006

Page 14 of 16

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

was limited in accommodating Plaintiff due to the dearth of available positions within the mailhandler craft and its union restrictions. (SSOF ¶ 20, 44; Ex. 61; 62). Plaintiff's repeated statement that his eventual position in security control establishes retaliation (or even pretext) is likewise unsupportable in light of the Postal Service's restrictions and Plaintiff's intentional refusal to alert the DOL or the Postal Service of his work-related claim. See Horvath v. Dalton, 2000 WL 338951, *1 (9th Cir. 2000)(plaintiff unable to establish retaliation concerning employer's untimely processing of her disability application where she failed to provide evidence documenting her permanent disability for a substantial time). The Postal Service continually attempted to accommodate Plaintiff. Just as there was no discrimination, there was no 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, by counsel, respectfully request that this Court DENY Plaintiff's Motion for Partial Summary Judgment, and in turn, GRANT Defendants' motion on all issues. 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

15

Case 2:03-cv-02537-DGC

Document 185

Filed 02/01/2006

Page 15 of 16

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
s/Nancy Stotler

CERTIFICATE OF SERVICE I hereby certify that on February 1, 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]

________________________

16

Case 2:03-cv-02537-DGC

Document 185

Filed 02/01/2006

Page 16 of 16