Free Statement - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona HARRIET BERNICK Assistant U.S. Attorney Arizona State Bar No. 013462 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 defendant, United States Postal Service

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Donald Chapman, Plaintiff, v. John E. Potter, Postmaster General, United States Postal Service; National Postal Mail Handler's Union, Defendants. The defendant, United States Postal Service, hereby submits the following Statement of Facts in Support of its Motion for Summary Judgment pursuant to F.R.C.P 56 and Local Rule 1.10 of the Rules of Practice of the United States District Court for the District of Arizona. Statement of Facts 1. Donald Chapman was born on July 23, 1951, and he is currently 54 years old. CIV-03-2537-PHX-DGC DEFENDANT, UNITED STATES POSTAL SERVICE'S STATEMENT OF FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

(Complaint ¶ 9). 2. Chapman currently resides at 1143 W. Laredo Street, Chandler, Arizona and his

prior address was 609 W. San Marcos Drive, Chandler, Arizona (Complaint ¶ 6). 3. On September 14, 1985, Chapman was hired as a distribution clerk by the United

States Postal Service (USPS). (Complaint at ¶ 10). 4. Plaintiff currently receives 10% disability compensation from the Veterans

Administration (VA) for residuals of his leg fracture that occurred in a motorcycle accident while he was in the military. (Exhibit 1).

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5.

Shortly after his employment with USPS began, Chapman became a mail handler

at USPS. (Complaint at ¶ 11) 6. In 2000, the essential duties of a mail handler were : 1) loading and unloading trucks

of mail; (2) dumping and sacking mail in appropriate areas within the Postal Facility; (3) hand canceling stamps, operating a cancelling machines, culling cancelled mail and separating mail by type; (4) making simple distribution of parcel post and bundles; rewraping damaged parcels that require no scheme knowledge; (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. (Exhibit 2). 7. In 1990, Chapman was involved in two car accidents. Neither accident was work-

related. Chapman took over 520 hours off of work. (Exhibit 3). 8. On February 28, 1991, Dr. Fountain, Chapman's personal physician, noted in his

medical record and advised him due to the car accidents, he should to look for another job within the postal system (electronics, computers, or managerial in order to improve his back. (Exhibit 4). 9. On April 3, 1991, Chapman's Chiropractor, Dr. De Bruin, noted in his medical

record that Chapman's prognosis was poor for full recovery from motor vehicle related injuries with significant potential for future middle back problems. (Exhibit 5). 10. On October 22, 1993, Chapman went to the VA for increasing pain and parethesias of his right leg. (Exhibit 6 ). 11. On October 27, 1993, Chapman again went to the VA for treatment. Chapman told the VA doctor that he had pain and paresthesias with his right leg and "sometimes I can't feel my foot." The doctor thought his problems were secondary to his right leg fracture. (Exhibit 7). 12. On October 29,1993, Chapman requested and received light duty for a walking restriction. The VA noted in the medical record that Chapman's light duty request for the walking restriction was from his VA injury to his right leg.. (Exhibit 8). 13. On April 7, 1995, Chapman had a left shoulder strain while working and was referred to the USPS Injury Compensation Office. (Exhibit 9).

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14. On August 17, 1995, February 14, 1996, and May 9, 1997, Chapman requested a change of craft from mail handler to custodian and was denied a change of craft due to his attendance.(Exhibit 10). 15. On May 17, 1996, USPS Health Unit received a brief medical note from Chapman for light duty but it cannot be processed without diagnosis and rationale. Chapman then withdrew his request for light duty.(Exhibit 11). 16. On November 17, 1999, Chapman saw a VA doctor and requested a note restricting work activity due to right leg extremity complaints. Chapman's walking was restricted by the doctor to no more than 2 hours in an 8 hour shift. The doctor made a separate note in his medical record that the walking restriction is due to " residual of auto accident and right fibula fracture." (Exhibit 12). 17. On November 19, 1999, Chapman was provided light duty for his walking restrictions until February 19, 2000. (Exhibit 13). 18. On March 3, 2000, USPS followed up on Chapman's light duty request which had expired on February 19, 2000, and informed employee that he was required to submit more information or return to regular duty. (Exhibit 14). 19. On March 15, 2000, Chapman requested a note from the VA regarding restrictions of no more than 2 hours of walking in 8 hour shift. (Exhibit 15). 20. Chapman's request for light duty regarding his right leg extremity was extended by USPS until June 16, 2000. (Exhibit 16). 21. On June 6, 2000, Chapman was referred to Dr. Letellier, a neurosurgeon, for disc herniation at C5-C6. The following restrictions were imposed : no lifting over 5 pounds and to avoid prolonged standing , walking or sitting for 6 weeks. (Exhibit 17). 22. On June 8, 2000, Dr. Steinke, Chapman's personal physician, noted that Chapman is unable to work due to right upper extremity and thigh numbness; dizziness, nervousness and anxiety. On the same date, USPS agreed to work Chapman within his restrictions, but would not guarantee an 8 hour schedule. (Exhibit 18). 23. On June 21, 2000, Dr. Letellier performed a neurological consult on Chapman. Dr. Letellier noted in the patient history section of his medical record the following: numbness since
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12/19/99, loss of use of right hand and leg, back pain, and numbness to anterior thigh-foot and right hand. Chapman told Dr. Letellier that "he thinks the extremely heavy lifting he does at U.S. Postal Service that he has done for the past fifteen years has been the cause of it." (Exhibit 19). 24. On July 10, 2000, Chapman underwent a cervical fusion at C5-C6. ( Exhibit 20). 25. On August 29, 2000, Dr. Letellier noted in his medical record that there has been no improvement since the 7/2000 surgery per Chapman. Dr. Letellier stated in his medical record Chapman "would be unable to return to post office and nothing else could be offered from neurological standpoint." (Exhibit 21). 26. On September 14, 2000, Dr. Steinke, Chapman's personal physician, received a letter from the law firm Lewis and Roca requesting medical records because they were investigating a matter regarding Donald Chapman. (Exhibit 22). 27. On September 15, 2000, Chapman provided USPS nurse Olga Carlson with a note from Dr. Letellier with the following restrictions: (1) sedentary job with no lifting over 20 pounds; (2) no repetitive use of of right hand for more than 5 minutes at a time; (3) no walking more than 500 feet at a time; (3) no standing, bending or twisting for more than 10 minutes at a time. Chapman told Carlson, "that he is permanently messed up" and that he lost 80% use of his right hand, drags his right leg, is unable to walk any great length, and leg is numb. Carlson quoted Chapman he is, "in pain most of the time." Carlson also noted employee is very depressed over medical results and physical well- being. Carlson quoted Chapman "has sued the VA for 1.5 million for disability." On September 21, Chapman returned to USPS medical with a request for light duty and a medical certificate filled out by his doctor explaining his absence since July 10, 2000. (Exhibit 23). 28. On September 25, 2000, Chapman wrote his first statement about the events that transpired on September 21, 22, and 23, 2000. He noted Richard Hepler was the supervisor on September 21 and 22. Chapman was instructed to sit down and take it easy until Hepler had the opportunity to look at his paperwork. Hepler never looked at Chapman's paperwork and he sat in the sack room for two days. On September 23, 2000, Chapman met with supervisor Vanaja Thiyagarajan who asked him what he had done for the last two days. Chapman explained that

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Hepler had him sit in the sack room, and told him a job would be provided. Chapman noted that Vanaja looked at his restrictions and asked if he could work in rewrap. Chapman informed her that he had extremely limited use of his right hand and that after about five minutes of use his hand is totally inoperable. Chapman pointed out that his restrictions prohibited use of right hand for more than five minutes at a time. Vanaja then told Chapman to sit down and she would be back. After approximately 15 minutes, Vanaja told Chapman there was no work for him with his medical restrictions and sent him home. (Exhibit 24). 29. Hiram Johnson, Manager of Distributed Operations, testified during his deposition that when Vanaja received Chapman's light duty on September 23, 2000, he called two places. "I called my Rio Salado plant which processes flats and also check inside the building to see if there was any work available for Chapman." "We did try to find him work". However, there was no work available for his restrictions at the time. (Exhibit 25). 30. On September 24, 2000, Chapman made a written request for permanent light duty assignment. (Exhibit 26). 31. On September 28, 2000, Chapman was sent a note from the Manager of Distribution Operations officially informing him that his light duty request could not be accommodated.(Exhibit 27). 32. On October 7, 2000, Chapman wrote to Letellier's office requesting paperwork so he could be allowed to return to "limited duty". Chapman also noted in his letter that he has "retained" an attorney to look into bringing a lawsuit against the VA and Dr. Ross. Chapman also states that he has hired an OWCP lawyer in Seattle. Last, Chapman states," I understand that my disabilities are permanent...I further understand that I am not of much use in any type of gainful employment and I have accepted the doctor's opinion." (Exhibit 28). 33. On October 18, 2000, Chapman requested an appointment with an EEO counselor concerning EEO 1E-853-0012-01 for age, physical disability, race and sex discrimination. Chapman listed Terry Cook, manager of maintenance and Dennis Barber, also manager of maintenance as discriminating officials. Chapman stated that on September 15, 2000, he was notified by his physician that he had a permanent disability. Other employees in similar situations were allowed to change crafts so that permanent physical damage would not occur.
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EEO 1E-853-0012-01 was eventually dismissed because Chapman failed to file a Formal Complaint. (Exhibit 29) (EEO file) 34. On January 6, 2001, Chapman was nominated by his supervisor Vanaja to the District Reasonable Accommodation Committee (DRAC) for an assessment. Chapman's job description, personal statement (undated), and work restrictions were reviewed. (Exhibit 30). 35. On January 19, 2001, Chapman was notified of the DRAC meeting to discuss his case scheduled for January 25, 2001. (Exhibit 31). 36. On January 25, 2001, the DRAC met with Chapman to review his case. After a review of the essential functions of mail handler position, the notes from the meeting reflect that that Chapman stated, " He's done with this craft. He can't do it." Chapman also stated, he's researched this through OPM on the internet, "Until they do whatever they can do with my back, I don't know if I'll even be able to walk." As a result, Chapman and the DRAC agreed that he could not perform the essential functions of a mail handler. Chapman mentioned his web page design business where 70 wpm was required for both hands. The DRAC and Chapman discussed his options :(1) reassignment and (2) apply for disability retirement. (Exhibit 32). 37. On February 9, 2001, Kirk Lenertz, Chairman of the Reasonable Accommodation Committee sent Chapman a letter thanking him for attending the meeting and reiterated Chapman's options: (1) You may request reassignment and (2) You may request disability retirement. Chapman was also informed that he had thirty days form the date of this notice to make your decision and notify Personnel.(Exhibit 33). 38. On February 13, 2001, Mark Garcia sent Dr. Letellier a letter on behalf of Don Chapman. Mr. Garcia requested medical records to include: test results, reports,

diagnosis/prognosis.(Exhibit 34). 39. On February 23, 2001, Dr. Calica, a neurosurgeon, prepared a consultation regarding Donald Chapman for Dr. Steinke, Chapman's personal physician. Dr. Calica noted that Chapman had become dissatisfied with Dr. Letellier. On March 27, 2001, Dr. Calica had a follow up visit with Chapman. In Dr. Calica's progress report, he noted Chapman wants a disability evaluation. Dr.Calica referred him to Dr. Porter or one of his associates for a disability evaluation. (Exhibit 35).
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40. On May 14, 2001, Chapman was seen by a neurologist, Dr. Bliklen for pain management. Dr. Bliklen noted in his medical record that Chapman was in the process of trying to obtain disability as he no longer is able to perform his duties at the Postal Service. Dr. Bliklen prescribed medication for pain and depression. Dr. Bliklen wanted to see Chapman for follow up visit in one month.On June 20, 2001, Dr. Bliklen saw Chapman for a follow up visit. Dr. Bliklen noted in his medical record that Chapman has seen dramatic improvement with both his depression and his pain. Chapman was prescribed a higher dose of the pain medication because Chapman had 50% improvement. Chapman was to follow up with Bliklen. (Exhibit 36). 41. On November 14, and 15, 2001, a Functional Capacity Evaluation (FCE) was completed by Dr. Mark Hyland. The purpose of the FCE was to determine Chapman's safe physical ability to return to his pre-injury work status or alternative work status. Dr. Hyland noted in his report that Chapman drove himself to the evaluation on both days. Dr. Halvorson noted, " he is 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 8 hour day.(Exhibit 37). 42. On December 18, 2001, a progress note was signed by Dr. Halvorson and Dr. Porter who saw Chapman for a disability evaluation. It is noted in the medical record that Chapman is unhappy with the length of time it has taken to complete his evaluation. However, Drs. Halvorson and Porter stated that Chapman was referred for a Functional Capacity Evaluation in July but did not get it taken care of until November. Chapman failed to follow up with a cardiology consult, urology consult, and has failed to receive recommended psychological counseling.(Exhibit 38). 43. On January 16, 1002(sic), a Notice of Proposed Separation- Disability was sent to Chapman. Chapman was informed USPS was taking administrative action pursuant to the Employee Labor Manual (ELM) Section 365.34 for physical inability to perform the duties of his position. According to Postal Regulation 365.342 , at the end of one year of continuous absence without pay, an employee who has been absent because of illness may be separated for disability. This action is not mandatory, however, if there is reason to believe the employee will recover within a reasonable length of time beyond the one year period, the employee may be
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granted additional leave in 30 day periods, not to exceed 90 days. If the employee's condition indicates that Leave Without Pay (LWOP) beyond that period is necessary incident to a full recovery, the postal official must submit a comprehensive report to the area manager of Human Resources with appropriate recommendation and retain the employee on the rolls pending a decision. (Exhibit 39). 44. On January 28, 2002, Dr. Porter wrote a report for Chapman's disability claim. Dr. Porter noted in his medical record that he thought Chapman's injury was associated with his work based upon the patient history provided to him by Chapman. Dr. Porter wrote that Chapman stated he was continuously asked to do things that were beyond his capability. Chapman also stated that USPS required him to use legs and his arms constantly and be able to lift up to 70 pounds. Dr. Porter also noted that Chapman told him about a remote motor vehicle accident in 1990. Dr. Porter wrote in his medical record that Chapman told him there were no residual deficits from the car accident .(Exhibit 40). 45. On February 13, 2002, Chapman filed a CA-2 claim (reoccurrence of injury or preexisting injury) with the Department of Labor (DOL) Office of Workers Compensation Program (OWCP). Chapman noted on his claim form that his injury was to his (neck and spine) condition. Chapman noted that he first learned of the reoccurrence of his injury in November 1999, but he did not realize it was work related until May 2000 "when his doctor (unnamed) told me my condition was related to job." Chapman stated that his reason for delay in filing was because he wanted to make sure all required information was gathered (Exhibit 41). 46. On February 20, 2002, Johnny Camou, a USPS supervisor, filled out an accident report for Chapman's CA-2 (reoccurrence or aggravation of pre-existing injury) which allegedly occurred in November of 1999. (details unspecified). (Exhibit 42). 47. On February 25, 2002, Yvonne Pearson, an Injury Compensation Specialist with USPS, wrote to the DOL Claims Examiner K. Jones regarding her doubts about how Chapman sustained his injuries and the causal relationship to his federal employment. She also mentioned that it was rumored that Chapman was dropped by hospital personnel and was suing the hospital for medical malpractice. ( Exhibit 43).

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48. Yvonne Pearson, testified at her deposition that she has worked as an Injury Compensation Specialist for 11 years. She was previously a union steward. In her tenure as an Injury Compensation Specialist, no one ever accused her of lying until the Chapman case. Pearson testified that Chapman only brought her one CA-7 form requesting compensation. She told Chapman that the form had the wrong date on it and he never returned the form to USPS. Chapman, not USPS, must establish the date of injury so Pearson can establish a pay rate which includes base pay, their night deferential changes. contract changes, cola changes. life insurance benefits, and health benefits so this start date is important. If the date of injury is not provided on the CA-7 DOL cannot process the claim. Pearson also testified it took her a while to find Chapman a job because jobs with his severe restrictions and few and far between. She tried to keep him in the same facility and on the same tour. She made every effort to get him a job as soon as possible. The position in security control is not a bid job. It is a job created for rehab workers who had their claims accepted. All of the workers in security control are rehab workers. No light duty workers were eligible for the job in security control. Cheryl Mendoza from the Department of Labor faxed her Chapman's CA-7 forms. All of the forms she received were typed with no date, no signature, and no indication that they had been received by Pearson's office. She also testified that the modified position in security control for Chapman was not accepted until December 2003. The job was offered in July of 2003. There was no delay on her office's part in processing the CA-7 forms. She could have given the position to someone else because it took Chapman so long to accept the position. Yvonne stated that she was "shocked" when asked to testify at the appeal hearing because she had never been asked to testify before. ( Exhibit 44). 49. On March 14, 2002, the DOL Examiner K. Jones, wrote Chapman a letter informing him that he had not identified specific work activities that had contributed to his condition. She also wanted more information about his 1990 motor vehicle accident and the associated medical records. She provided Chapman with 30 days to provide this information. (Exhibit 45). 50. On April 30, 2002, K. Jones sent Chapman a Letter of Decision indicating his compensation was denied because no objective medical rationale was provided and he failed to provide the evidence regarding his 1990 motor vehicle accident. (Exhibit 46).
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51. On May 7, 2002, Yvonne Pearson wrote Chapman informing him that his DOL claim had been denied and he should be expected to assume full duties of his mail handler position without restriction. She also presented three options: 1)temporary light duty, (2) permanent light duty, or (3) disability retirement.(Exhibit 47). 52. On May 28, 2002, Mrs. Chapman filed a Petition for Order of Protection claiming Chapman was drinking and verbally abusive and he had been physically and verbally abusive throughout their marriage. (Exhibit 48). 53. On June 17, 2002, Senior Plant Manager Paul Harris issued a certified Letter of Separation-Disability. The letter states Chapman's removal will be effective on June 22, 2002. (Exhibit 49). 54. On June 18, 2002, Senior Plant Manager Paul Harris sent a Revised Letter of Decision to Chapman. In the letter, Postmaster Harris stated that after he issued the June 17, 2002, Letter of Removal, NPMHU Local President Tony Francisco contacted him on June 26, 2002, to discuss Chapman's case. Senior Plant Manager Harris further stated, "I met with Mr. Francisco on 06/27/02 and based on information he presented to me at this meeting, I decided to meet with you concerning my decision to uphold the proposed removal action. A meeting was scheduled for 06/28/ 02, to be held with you and your representatives, Tony Francisco and Steward Mark Garcia. I had agreed to this meeting in order to initially give you an opportunity to offer some mitigation to explain your failure to contact me prior to having issued the Letter of Decision. Secondly I agreed to this meeting to additionally allow you a final opportunity to respond to the charges within the proposed removal notice. I met with you and your representatives on 06/28/02, to give you an opportunity to explain your failure for not only responding to me concerning the charges within the proposed removal notice, but also your failure to respond to the 2/09/01 RAC decision letter. Since the RAC conclusion was that no reasonable accommodation existed which would allow you to perform the essential functions of your Mailhandler position, you were provided with the only options available to you at the time. You were given 30 days to make a decision and to notify the Personnel Office of your decision. You failed to elect either option.

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At this meeting you stated that you did not elect either of the RAC options because you had relied on your Doctor's recommendation that you wait a year to see if any change in your condition would occur. You acknowledged that they had not. You stated that you had failed to respond to me concerning the proposed removal action because you were experiencing dependency problems, both prescription drugs and Alcohol (sic), which left you incapable of responding. You also stated that the combination of dysfunctional occurrences within your personal life but outside of your control left you despondent over the entire matter. You stated that you were now more cognizant of the issue, having stopped drinking alcohol and ceased taking the medications approximately two months ago. You added that you currently were not in a formal treatment program, but that you intended to enter one as soon as possible to aid in your recovery. Based on your responses at this meeting, I decided to allow you an opportunity to provide me with information in which to personally review and explore your potential for reasonable accommodation. I directed you to provide me with further input on this matter. A letter, dated 7/01/02, was forwarded to me from Steward Mark Garcia requesting as an accommodation, the possibility of a reassignment into an existing or created position based on a list of itemized skills that you possess. I gave full consideration to this request for accommodation, but unfortunately find that I am unable to identify any light duty assignment within the facility which would match your skills and also meet your physical limitations. Based on your specific circumstances and the responses you advanced at the meeting held on 06/28/02, I have decided to temporarily withhold judgement (sic) of this matter. First, I am going to rescind the Letter of Decision, dated 06/17/02. Second, I am going to reiterate to you the options presented to you by the RAC Committee, which were: (1) You could request reassignment. (2) You could request Disability Retirement. I am going to give you an additional 30 days from your receipt of this notice in order to make a decision and to notify the Personnel Office. At the end of that 30-day period, I will then render my decision in this matter." (Exhibit 50).

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55. On September 26, 2002, Mark Garcia wrote Senior Plant Manager Harris telling him he was acting as Chapman's temporary Alcoholic Anonymous sponsor. Garcia went to only one meeting with Chapman. (Exhibit 51). 56. On October 1, 2002, Senior Plant Manager Harris issued a Letter of Decision terminating Chapman effective October 12, 2002. 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 with the Postal Service." Chapman was also advised about his MSPB rights. (Exhibit 52). 57. On October 10, 2002, Chapman and Garcia had a follow up meeting with Dr. Porter regarding his initial letter dated January 28, 2002. Chapman requested Dr. Porter to revise his prior statement regarding the herniated discs and their association with Chapman's work environment. (Exhibit 53). 58. On October 24, 2002, Chapman has an appeal hearing on the denial of his claim. (Exhibit 54). 59. On December 26, 2002, a Hearings and Review Branch reversed its initial decision dated April 30, 2002 decision based on additional evidence received and approved Chapman's Worker's Compensation Claim. (Exhibit 55). 60. On January 3, 2003, Chapman filed a formal EEO Complaint # 1E- 853-0016-03. Chapman alleged sex discrimination; age discrimination; disability discrimination; and retaliation. Chapman alleged Paul Harris and Dave Carey were the discriminating officials. Chapman stated the date of discrimination was October 4, 2002, when he received the notice of termination. The retaliation claim was based on previous activity dated 10/18/2000 case # 1F853-0012-01. The Final Agency Decision found no discrimination. The Final Agency Decision determined that Chapman was not a qualified disabled individual; Chapman had failed to present a prima facie case for sex or age discrimination; there was no causal connection to show that Plant Manager Paul Harris removed Chapman based on filing the prior EEO's; the current EEO was not causally connected to the prior EEO because too much time between the two actions;

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USPS had a legitimate non-discriminatory reason for its actions; and there was no evidence of pretext.(Exhibit 2). 61. On July 22, 2003, Chapman was arrested for a DUI. (Exhibit 56). 62. On July 29, 2003, USPS offered Chapman a modified position in security control. It was reviewed by District Medical Advisor and was found to be suitable on September 23, 2003. That letter was copied and sent to the wrong attorney by the DOL. On November 21, 2003, Mr. Goodwin, Chapman's OWCP lawyer, was sent a copy of the letter as well as supporting evidence. On November 20, 2003, Attorney Goodwin was assured the job offer was bona fide. Attorney Goodwin was concerned the job offer was based on old medical information. An updated job offer dated December 11, 2003 was sent to Chapman, however, he had already accepted the position on December 5, 2003. Chapman gradually returned to work pursuant to his doctor's orders. (Exhibit 57). 63. On October 31, 2003, Department of Labor Office of Worker's Compensation, received three handwritten three CA-7 forms -front side only- signed on 2/04/03, 6/2/03 and 8/25/03 by Chapman . The three forms requested "ongoing" compensation were duplicative of each other. There was no Injury Compensation Stamp on any of the forms indicating the form had been submitted through USPS Injury Compensation Office. For this reason, DOLl requested the USPS Injury Compensation Specialist, Yvonne Pearson, to provide the reverse of the CA-7 by 11/12/03. The reverse of these CA-7's were received by DOL on 11/14/03. Additionally, the front side of another series of CA-7 forms had also been received on the same date. They were unsigned and undated and claimed leave without pay from 9/23/2000 up through 10/20/2003. Mr. Chapman's CA-7's were processed and he was paid in excess of $100,000. (Exhibits 57 and 58). 64. Chapman was deposed in this case on 9/20/05, 9/22/05 and 9/23/05. At his deposition, Chapman admitted that he did not tell the DRAC that he could work in the sack room.. Chapman also claimed at his deposition that he did not file OWCP claim until February 13, 2002, because that is when the doctor told him to "make it out". When asked if he placed a call in June of 2000 to Attorney Theresa Goering to reopen his case, Chapman was unable to recall. (Exhibit 59).
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65. Dr. Pitt, the expert hired by USPS, conducted an Independent Medical Examination by interviewing and testing Chapman on July 25, 2005. Chapman told Dr. Pitt that he went to AA only once because he did not belong there. Chapman also told Dr. Pitt that he had a nice business from 1994 until he got hurt doing internet web design. When Chapman was asked what a typical day was like between 9/23/2000 and 12/11/2003, he stated, "I'm like a 1000 times better physically now than I was back then. It was an effort to stand up." (PR pg. 56-57, 40 and 1-2. (Exhibit 60). 66. Laurel Allen, Manager of Personnel Services for USPS, provided an affidavit regarding her actions in this case. She noted in her affidavit that she participated in the DRAC process for Chapman case. She reviewed the Hiring Activity Log which is only available to USPS management official to determine if there was an available, funded, vacant positions for Chapman. She determined that no vacant, available, funded positions were available for Chapman with his medical restrictions. She stated through the interactive process, "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." Chapman was eventually provided a modified job in security control which is not a bid job but, was created specifically for Chapman to accommodate his limitations once the Department of Labor accepted his claim.(Exhibit 61). 67. Paul Harris testified at his deposition, "I've been a postal executive for the last 16 years. I bet I haven't had a dozen of these cases." Harris also stated the union must be very selective in the cases they bring to me. I looked at the case even though it was outside the time limits. Harris was asked if USPS could have put Chapman in security control before his claim was accepted by OWCP. Harris replied, "Not without violating some sort of bargaining agreement." He also stated "Light duty is not for security control". When asked if Harris thought Chapman actively participated in the 12 step process, Harris stated," No, I don't believe he did" Harris testified that Chapman was not provided a job because he failed to comply with the AA process, but it wasn't the sole reason. Harris testified , ".. the reason he did not get a job back with the Post Office was compounded with he wasn't doing this and he did not qualify under light duty" Harris further stated the other reasons were the failure to follow deadlines with regard
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to the fact finding and the RAC options. Harris also testified, "I really went out of my way to help Mr. Chapman. I did everything I could possibly do to help..We did not discriminate against Mr. Chapman. " (Exhibit 62). 68. Chapman's Answers to Interrogatories (Exhibit 63) . 69. Chapman's deposition testimony regarding his comparison employees. (Exhibit 64). 70. On January 3, 2003, Chapman filed a third EEO action # 4E-852-0050-03. In this EEO Formal Complaint, Chapman alleged discrimination on the basis of race, sex, age and disability due to Yvonne Pearson's claims made on October 24, 2002 at the DOL appeals hearing. This claim was dismissed on January 27, 2003, for failure to state a claim. (Exhibit 65). 71. Affidavit of Yvonne Pearson with information regarding Chapman's comparison employees. (Exhibit 66). 72. Booklet regarding Injury Compensation Policies. (Exhibit 67). Respectfully submitted this 30th day of December, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/HARRIET M. BERNICK HARRIET M. BERNICK Assistant U.S. Attorney

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CERTIFICATE OF SERVICE I hereby certify that on this December 30, 2005, 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 7 Chandler, Arizona 85226
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S/LaRee Zickefoose U.S. Attorney's Office

Case 2:03-cv-02537-DGC

Document 159

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