Free Motion for Summary Judgment - 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 [email protected] Attorney for Defendants

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. Come now the Defendants, John E. Potter, Postmaster General, United States Postal Service ("Postal Service"); and Yvonne Pearson, separately and in her individual capacity, pursuant to Fed. R. Civ. Proc. 56 and LR Civ 56.1, and move for summary judgment on all outstanding counts to Plaintiff's First Amended Complaint. Defendants' motion is supported by the contemporaneously filed Statement of Facts ("SOF"), supporting exhibits, and the Memorandum of Points and Authorities included below. MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff's case accuses the Postal Service of prohibited employment discrimination based on his alleged disability, gender, and age, as well as retaliatory conduct against him for pursuing protected employment actions and wrongful discharge. The undisputed facts, however, prevent Plaintiff from establishing a prima facie case under each legal standard. CIV-03-2537-PHX-DGC DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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Further, the Postal Service's actions were premised upon legitimate business purposes, not discriminatory intent. Regarding Plaintiff's wrongful discharge claim, Plaintiff's claim must be dismissed for lack of jurisdiction. Summary judgment is thus warranted in Defendants' favor on all points herein.1 I LEGAL STANDARD GOVERNING SUMMARY JUDGMENT 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (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); Celotex Corp., 477 U.S. at 323. The moving party may discharge its burden by showing an absence of evidence to support the non-moving party's case. Celotex Corp., 477 U.S. at 322-23. In response, Plaintiff must set forth specific facts showing that there is a genuine issue for trial or significant probative evidence tending to support his claim or defense. Anderson, 477 U.S. at 248-50. The mere existence of a factual dispute will not defeat an otherwise properly supported motion for summary judgment; there must be a genuine issue of material fact. Id. at 247-48. "[I]f the factual context renders [the non-moving party's] claim implausible . . . [the non-moving party] must come forward with more persuasive evidence to support [his] claim than would otherwise be necessary" to show there is a genuine issue for trial. Matsushita, 475 U.S. at 587. In short, "[n]o longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." California Architectural Building Products, Inc. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir. 1987).

Counts I (ADA) and IX (§ 1983), as well as Defendant Pearson's liability under Plaintiff's Amended Complaint are addressed in Defendants' pending Motion to Dismiss. [Doc. No. 151]. Counts VI and VII are no longer applicable as they addressed Defendant National Postal Mail Handler's Union, which has been dismissed. [Doc. No. 154].
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II

PLAINTIFF CANNOT ESTABLISH A PRIMA FACIE CASE FOR DISABILITY DISCRIMINATION UNDER THE REHABILITATION ACT

To establish a prima facie case of disability discrimination 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, 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).2 Plaintiff cannot establish a prima facie case of discrimination under the Act. First and foremost, Plaintiff's impairment does not arise to the necessary level under applicable case law. Secondly, Plaintiff could not perform the essential functions of his job, despite the Postal Service's extensive efforts to accommodate him. Lastly, Plaintiff's inability to

perform the essential duties of his craft as a mailhandler vitiates any charge of discrimination concerning his termination. A Plaintiff was not Disabled within the Meaning of the 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 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 cannot establish these elements.
"Merely having an impairment does not make one disabled" under the Act. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195 (2002). Rather, the "central inquiry" is whether Plaintiff "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." Id. at 200-01. In his Functional Capacity Evaluation, Dr. Hyland concluded that Plaintiff "is

The standards under Title I of the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq. (ADA), apply equally to this Court's determination under the Rehabilitation Act. See 29 U.S.C.§ 791(g); McLean v. Runyon, 222 F.3d 1150, 1153 (9th Cir. 2000).
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independent in activities of daily living, including meal preparation, hygiene and dressing activities." (SOF ¶ 41; Ex 37). Dr. Highland noted that Plaintiff drove himself to his examinations and that he could work safely in a sedentary to light work category for an eight hour day. Id. Thus, Plaintiff was not limited in performing his daily activities and was not disabled under the Act. The only possible life activity affecting Plaintiff was his inability to handle mail. This alone, however, cannot establish a disability under the Act. To be substantially limited in the major life activity of "working," Plaintiff must be "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). While Plaintiff could not perform his particular duties as a mailhandler, the Postal Service, like Dr. Highland, found that Plaintiff could engage in alternate employment within the Service. Indeed, after acceptance of Plaintiff's OWCP claim, Plaintiff was able to work in the Service's security control division. (SOF ¶ 62; Ex 57). Plaintiff could work, he could perform the tasks central to most people's daily lives, and he was not disabled under the Act. See e.g. Thomas v. Holy Family Hospital 121
F. 3d 537, 539 (9th Cir. 1997) (finding that a nurse with cervical cancer was not restricted from life activities despite her lifting restrictions).3

Not only could Plaintiff perform daily functions, no evidence exists that he has a record of such disability. To have a record of an impairment that substantially limits a major
life activity, one must have "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.

Of note, neither Plaintiff's receipt of workers' compensation benefits nor his military classification as disabled establish disability under the Act. See McCleary v. National Cold Storage, Inc., 67 F.Supp. 2d 1288, 1300 (D. Kan. l999)(workers compensation); Robinson v. Neodata, 94 F.3d 499, 502 (8th Cir.1996); Bolton v. Scrivner, Inc., 36 F.3d 939, 943 (10 Cir. 1994)(disability rating).
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§ 1630.2(k); Coons, 383 F.3d at 886. As discussed above, indisputable evidence establishes that plaintiff does not have a record of an impairment that substantially limits a major life activity, including "working."

Further, the Postal Service never regarded Plaintiff as disabled under the broad terminology of the Act. A person is regarded as being disabled if he: (i) has a physical or
mental impairment that does not substantially limit major life activities but is treated by a covered entity as having such limitation; (ii) has an impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (iii) does not have a physical or mental impairment but is treated as having a substantially limiting impairment. 29 C.F.R. § 1630.2(l). Plaintiff's removal due to his inability to work as a mailhandler does not establish disability under the Act. See Thomas 121 F. 3d at 540 (plaintiff not regarded as disabled since she could perform a broad class of jobs outside of her present position) see also Wooten v. Farmland Foods , 58 F.3d 382, 386 (8th Cir. 1995) (an employer's decision to terminate an employee based upon physical restrictions imposed by her doctor did not indicate that the employer regarded her as having a substantially limiting impairment). Likewise, Plaintiff was removed for his inability to perform his job as a mailhandler and failure to abide by Postal Service procedures. (SOF ¶ 56; Ex 52). Plaintiff was not disabled under the Act. He could

perform a variety of tasks central to most people's daily lives, he had no record of an
extensive disability, and there is no evidence that the Postal Service ever regarded him as disabled within the meaning of the Rehabilitation Act.

B

Plaintiff is Not a Qualified Individual Able to Perform the Essential Functions of His Position

It is undisputed that Plaintiff could not perform the essential functions of his job as a mailhandler, either with or without reasonable accommodations. (SOF ¶36-37; Ex 3233)(noting parties' agreement that Plaintiff was unable to serve as a mailhandler). Moving outside of Plaintiff's assigned craft was also impossible, especially prior to completion of Plaintiff's OWCP claim. (SOF ¶ 67 Ex. 62) (deposition of Paul Harris); Hankins v. The Gap,
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Inc., 84 F.3d 797, 800-01 (6th Cir. 1996)(employer retains ultimate discretion to choose effective accommodation); 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."); See also Jasany v. United States Postal Service, 755 F.2d 1244, 1250 (6th Cir.1985) (employer cannot be required to accommodate handicapped employee by restructuring a job in a manner which would usurp legitimate rights of other employees under a collective bargaining agreement); 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.); Wimbley v. Bolger, 642 F.Supp. 481, 486 (W.D.Tenn.1986) (federal agency under no obligation to transfer handicapped employee from the job for which he is employed another 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). Since Plaintiff requested light duty and delayed proper filing of his DOL claim, the Postal Service was restricted by its union contract and could not accommodate him outside of his assigned craft. He could not do his job and he could not be reassigned. The Postal Services actions concerning both accommodation and termination were proper.4
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Plaintiff also charges that the Postal Service failed to engage in the "interactive process." (Pla Comp. at ¶ 107). Upon need 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)). Despite the hindrance surrounding labor agreements, the Postal Service made numerous efforts to accommodate Plaintiff and to allow him to explain his situation. The Service nominated Plaintiff to the DRAC, which assessed his restrictions and met with him to discuss his case. (SOF ¶ 30-31, 34-36). Even more exemplary, Paul Harris suspended Plaintiff's termination for
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C

Plaintiff's Termination Was Not Discriminatory Because He Could Not Perform the Essential Duties of His Craft as a Mailhandler

Where an employer relies on an employee's disability in its termination decision, the employer must demonstrate that the disability is relevant to the employee's job requirements. 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.)) The employee, however, bears the ultimate burden of providing that, despite his disability, he is qualified. Teahan, 951 F.2d at 515. Plaintiff was terminated because: (1) his permanent physical limitations precluded him from his position, (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 a mailhandler. (SOF ¶ 56; Ex 52). Again, there is no dispute that Plaintiff was unable to perform the duties of a mailhandler. (SOF ¶36-37; Ex 32-33). Plaintiff thus bears the burden of establishing that, despite his disability, he is qualified. As demonstrated above, he cannot. Plaintiff therefore cannot prove the third element of a prima facie case for disability discrimination. 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.). III THE POSTAL SERVICE DID NOT DISCRIMINATE AGAINST PLAINTIFF WITH REGARD TO GENDER OR AGE Plaintiff's claim that he was terminated or failed to receive appropriate accommodation because of his gender and age bear little weight in light of the undisputed facts. Claims for age discrimination under the ADEA and gender discrimination under Title VII are analyzed using the analysis articulated in McDonnell Douglas Corp. v. Green, 411
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approximately three months to afford Plaintiff a chance to explain his inaction and choose among the DRAC's employment options. (SOF ¶ 50, 52). Plaintiff, however, continually failed to meet the Postal Service in its efforts, and was terminated.
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U.S. 792 (1973). Ritter v. Hughes Aircraft Co., 58 F.3d 454, 456 (9th Cir.1995); Rose v. Wells Fargo & Co., 902 F.2d 1417, 1420 (9th Cir. 1990). A prima facie case for disparate treatment under McDonnell Douglas requires Plaintiff to show that: (1) he belongs to a protected class; (2) he was qualified for his position; (3) he was subject to an adverse employment action; and (4) similarly situated individuals outside his class were treated more favorably. Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123 (9th Cir.2000). Plaintiff, however, "cannot defeat summary judgment simply by making out a prima facie case." Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir.1991). Rather, the Postal Service can escape liability by proffering a legitimate, nondiscriminatory reason for its employment decision. Chuang, 225 F.3d at 1123-24. Upon a legitimate reason, Plaintiff must prove that the Postal Service's explanation is pretextual. Id. at 1124.5 Throughout, Plaintiff maintains the ultimate burden of

establishing discrimination. Rose, 902 F.2d at 1420-21. The Postal Service acknowledges Plaintiff's protected status for age (54 years old) (SOF ¶ 1) and gender (male), and that his termination constituted an adverse employment action. Plaintiff, however, cannot establish that he was qualified for his position or that other similarly situated employees were treated more favorably. Further, Plaintiff's inability to perform his duties as a mailhandler combined with the Postal Service's inability to transfer Plaintiff to another position due to bargaining restrictions presents a legitimate, non-discriminatory reason to substantiate the Service's decision. A Plaintiff Was Not Qualified for His Position as a Mailhandler

As elaborated above, both parties agree that Plaintiff did not meet the essential qualifications for his position as a mailhandler. (SOF ¶36-37; Ex. 32-33). Moreover, ample medical evidence establishes Plaintiff's inability to perform his position. See e.g. (SOF ¶ 22,

Defendants reserve the right to address issues of pretext on all McDonnell Douglas analyses in their reply should Plaintiff address the issue in his response brief.
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25; Ex 18-19)(medical opinions regarding Plaintiff's inability).6

Plaintiff's physical

restrictions, not his gender or age, disqualified him from his duties as a mailhandler. (SOF ¶ 36, 67; Ex 32, 62). Because Plaintiff could not perform the duties of his position, he was not qualified and cannot establish a prima facie case under Title VII or the ADEA. B Plaintiff Was Not Treated Less Favorably Than Similarly Situated Employees

Plaintiff cannot establish that either women or persons under forty in similar circumstances were treated more favorably. Regarding gender, Plaintiff elicited names of both men and women as having received better treatment ­ i.e. meeting with desired accommodations and not being terminated in response to an injury claim. (SOF ¶ 68; Ex 63) (Pla Resp. to Interrogatory No. 12). Thus, by Plaintiff's own admission, gender was not a factor in his treatment, and his Title VII claim must fail. The same argument stands for age. Plaintiff's discovery responses put forth no indication that individuals of lesser age were treated more favorably. See e.g. (SOF ¶ 69; Ex 64) (Plaintiff's deposition testimony regarding comparable employees). Moreover, no person listed by Plaintiff possessed circumstances precisely akin to Plaintiff ­ i.e. initially indicating an injury occurred off site, only to reverse such a request later. As with Title VII, Plaintiff presents no comparable employees to establish a prima facie case under the ADEA. C Plaintiff's Termination and Accommodation Were Premised Upon Legitimate, Non-Discriminatory Factors

Little time needs to be given to the Postal Service's legitimate purposes in terminating Plaintiff or its accommodation decisions, as they have been previously addressed. Plaintiff was not terminated because of age or gender. Rather, the Postal Service terminated Plaintiff because he lacked the ability to perform the essential duties of his position, he failed to exercise the options offered by the DRAC, and he could not be accommodated as a As with the Rehabilitation Act, Plaintiff's ability to perform the duties of other jobs within the Postal Service is irrelevant. Again, Plaintiff's eventual placement within Security Control was unavailable at the time of termination. See (SOF 66; Ex 61)(declaration concerning unavailability of alternate employment); (SOF 67; Ex 62)(same)
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mailhandler (SOF ¶ 56, Ex 52). The Postal Service's position was in accord with the law, and was not discriminatory. See Basith v. Cook County, 241 F.3d 919, 933 (7th Cir. 2001)(upholding termination of a disabled pharmacy technician because he "could not perform the essential functions of his job."). Regarding the Service's inability to afford Plaintiff his desired accommodation, accommodation outside of Plaintiff's mailhandler position was impossible prior to the acceptance of his OWCP claim, and there were no available positions within Plaintiff's craft in line with his medical restrictions. (SOF ¶ 66-67; Ex 61-62). Thus, Plaintiff's Title VII and ADEA claims must be dismissed. IV THE POSTAL SERVICE DID NOT RETALIATE AGAINST PLAINTIFF Plaintiff's retaliation claim is quite broad, alleging that each act in Plaintiff's Amended Complaint constitutes retaliation. (Pla. Comp. at ¶ 121) The same theme, however, applies to this claim: Plaintiff cannot establish a prima facie case, and the Postal Service's termination and accommodation decisions are supported by legitimate business purposes. Title VII, the ADEA, and the Rehabilitation Act follow the McDonnell Douglas analysis concerning retaliation. Under each 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 protected activity and the adverse action. Porter v. California Dept. of Corrections, 419 F.3d 885, 894 (9th Cir. 2005); Tempesta v. Motorola, Inc., 92 F.Supp.2d 973, 982 (D.Ariz. 1999). Should Plaintiff establish a prima facie case, the Postal Service may again escape liability through a legitimate, non-retaliatory purpose for its actions. Id. Upon this showing, the burden returns to Plaintiff to establish pretext. Id. A Many of Plaintiff's Actions Are Not Protected Activities

Plaintiff's retaliatory claims stem from three activities: (1) initiating three EEO actions, (2) requesting accommodation for his medical condition, and (3) processing FECA claims through the OWCP. The Postal Service acknowledges that Plaintiff's EEO filings and accommodation requests are protected activities. All matters concerning Plaintiff's FECA claims, however, are precluded from review. Pursuing a claim for benefits under FECA is

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not a protected activity under Title VII or the Rehabilitation Act. See e.g. Johnston v. Henderson, 144 F.Supp.2d 1341, 1354 (S.D. Fla. 2001)(retaliation action cannot be premised upon pursuing FECA claim); Almaguer v. White, 2002 WL 31396123, *2 (W.D. Tex. 2002)(dismissing retaliation claim concerning discontinuation of FECA benefits for engagement in protected activity).7 Further, decisions concerning the proffering and discontinuance of FECA benefits are expressly reserved to the Secretary of Labor, and exist outside of this Court's jurisdictional review. 5 U.S.C. § 8128(a), (b). Thus, Plaintiff's retaliation claims relating to Defendant Pearson's actions and all related activity concerning the processing and receipt of FECA benefits should be dismissed.8 B No Causal Connection Exists Between Plaintiff's EEO Filings and the Postal Service's Actions

Plaintiff cannot establish a causal connection between his protected EEO filings and his termination because the alleged adverse actions took place before the corresponding protected acts. Plaintiff initiated the two EEO claims related to this action (Nos. 1E- 8530016-03 and 4E-852-0050-03) on January 3, 2003, roughly three months after the Postal Service's final letter terminating Plaintiff and nearly one year after the Service's January 16, 2002 notice of proposed separation. (SOF ¶ 43, 60, 70; Ex 2, 39, 65). The same can be said for Plaintiff's accusation that the Postal Service refused to accommodate him because of these protected acts, because all activity concerning the Service's inability to accommodate Plaintiff occurred before the EEO filings. Simple logic mandates that there can be no causal connection where a protected activity occurs after the alleged adverse action. Plaintiff's retaliation claims must therefore fail in this regard.

Defendants are aware that the afore-cited unpublished opinion is not binding on this Court pursuant to 9th Cir. Rule 36-3(a). The citation is provided solely for illustrative purposes. This argument is likely moot due to Defendants' pending Motion to Dismiss Ms. Pearson. [Doc. No. 151].
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Plaintiffs remaining EEO action is both too remote and too unrelated to the present situation to warrant consideration. On October 18, 2000, Plaintiff met with an EEO counselor to complain that maintenance managers Terry Cook and Dennis Barber had prevented him from changing crafts. (SOF ¶ 33; Ex 29). Neither Cook nor Barber were responsible for the decision to terminate Plaintiff two years later, nor were they involved in the DRAC decision concerning Plaintiff's inability to work as a mailhandler. To establish a causal connection 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). Regarding 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); see also Coons, 383 F.3d at 887 (no causal connection where employee's request for reasonable accommodation came one year before his demotion); Beverly v. Costco, Wholesale Corp., 2005 WL 3529129, *1 (9th Cir. 2005)(no causal connection where thirteen months passed between plaintiff's grievance and termination). Further, a causal link can be broken through the involvement of another decision maker within the employer. Hernandez v. Spacelabs Medical Inc., 343 F.3d 1107, 1114-15 (9th Cir. 2003) (quoting Sherrod v. American Airlines, 132 F.3d 1112, 1122 (5th Cir.1998)(internal citation omitted)("The causal link. . . can be severed if there is evidence that the ultimate decision maker did not merely `rubber stamp' the recommendation of the employee with knowledge of the protected activity. . ."). There is no nexus between Plaintiff's October 2000 encounter with an EEO counselor and his October 2002 termination. Not only are the acts distant in time, the alleged discriminatory official, Paul Harris, played no part in the facts underlying the 2000 complaint. Further, the encounter is unrelated to Plaintiff's present case, as it concerned an alternative request for transfer. The same argument holds for the Postal Service's inability to accommodate Plaintiff with a new position. The Service's inability cannot be connected
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to the October 2000 action. As with the later filings, the Postal Service did not retaliate against Plaintiff for his October 2000 EEO action. A similar lack of evidence precludes any link between the Postal Service's actions and Plaintiff's requests for accommodation. Neither Plaintiff's termination, nor the Service's inability to accommodate him were due to his requests. To the contrary, the Postal Service made numerous efforts to accommodate Plaintiff within the bounds of its union agreements. See e.g. (SOF ¶ 34-37, Ex 30-33)(Postal Service's nomination and dealings with Plaintiff through the DRAC, including 30 day allowance to act); (SOF ¶ 54; Ex 50)(Revised letter of decision to Plaintiff, vacating earlier termination and allowing additional time to mitigate circumstances). Plaintiff was only terminated after he repeatedly failed to respond to the Postal Service's employment options. Faced with a non-responsive employee who could not perform the essential duties of his job, the Service was compelled to terminate him. There was no retaliation. C Plaintiff's Termination and Accommodation Were Premised Upon Legitimate, Non-Discriminatory Factors

As previously stated, the Postal Service terminated Plaintiff because he lacked the ability to perform the essential duties of his position, he failed to exercise the options offered by the DRAC, and he could not be accommodated as a mailhandler (SOF ¶ 56, Ex 52). The Postal Service's position was in accord with the law, and was not discriminatory. See Basith, 241 F.3d at 933. Regarding reassignment; again, the Service was unable to provide Plaintiff with his chosen assignment prior to acceptance of his OWCP claim due to its legitimate inability to usurp a labor contract. (SOF ¶ 67; Ex 62); Carter 822 F.2d at 467; see also (SOF ¶ 66; Ex 61) (dearth of available positions within Plaintiff's medical restrictions). Thus, should Plaintiff establish a prima facie case for retaliation on any ground, it will fail due to the legitimate bases for the Postal Service's decision.

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V

PLAINTIFF'S COUNT FOR WRONGFUL DISCHARGE IS SUPERCEDED BY HIS FEDERAL CLAIMS Count VIII of Plaintiff's Amended Complaint presents a state law claim for wrongful

discharge premised on the facts underlying Plaintiff's remaining allegations. There is no diversity in this matter, and Plaintiff is a federal employee suing his federal employer. As such, Plaintiff's claim for wrongful discharge must be dismissed for lack of subject matter jurisdiction. See Bush v. Lucas, 462 U.S. 367, 388-390 (1983); Brown v. General Services Administration, 425 U.S. 820, 835 (1976); White v. General Services Administration, 652 F.2d 913, 916-17 (9th Cir. 1981).9 VI CONCLUSION For the foregoing reasons, Defendants John E. Potter, Postmaster General, United States Postal Service; and Yvonne Pearson, separately and in her individual capacity respectfully request that this Court GRANT their motion for summary judgment and dismiss Plaintiff's Amended Complaint and action. Respectfully submitted this 13th day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Peter M. Lantka Peter M. Lantka Assistant U.S. Attorney

In further support of dismissing Plaintiff's wrongful discharge claim, the Postal Service incorporates the argument and legal citations from its Motion to Dismiss [Doc. No. 151] by reference pursuant to Local Rule 7.1(d)(2).
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CERTIFICATE OF SERVICE I hereby certify that on January 13, 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/LaRee Zickefoose U.S. Attorney's Office

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