Free Motion for Leave to File Excess Pages - 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 Postal Service (USPS) hereby requests summary judgment on all Plaintiff's claims which include: sex; age; and disability discrimination; wrongful discharge; and illegal retaliation. Defendants respectfully request all claims against them be dismissed. This Motion is supported by the attached Memorandum.1 Overview: Donald Chapman made a series of bad decisions regarding his health, his job, his marriage, his finances, and his house. Rather than accepting responsibility for his mistakes, Chapman blames the Postal Service by alleging age, sex, disability discrimination, retaliation and wrongful discharge. USPS went out of its way to help Chapman. However, Chapman neglected the six opportunities USPS gave him to save his job. Despite Chapman's contentions, his claims are not supported by the facts or the law. CIV-03-2537-PHX-DGC MOTION FOR SUMMARY JUDGMENT

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Defendants Statement of Facts are incorporated herein by reference.
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Chapman, a USPS mail handler, was off work for approximately three years from September 2000 until December 11, 2003. Chapman initially left work for a spinal cord surgery in July of 2000. Upon returning in September 2000, Chapman's medical restrictions rendered him unable to perform the essential duties of a mail handler. Recognizing Chapman's restrictions, USPS provided reasonable accommodation by offering him a sedentary position in "re-wrap" where he could work at his own pace taping together torn pieces of mail. Chapman refused the position and requested alternative light duty work. Because USPS had no light duty work available within Chapman's medical restrictions it nominated Chapman to the District Reasonable Accommodation Committee (DRAC) to assess whether there was an accommodation which would enable Chapman to perform his mail handlers duties. At the DRAC meeting Chapman stated, "he was done with the mail handler craft" and requested a computer job. USPS could not provide computer work to Chapman unless USPS illegally crossed crafts, a violation of the union contract. Since the DRAC could not provide computer work, it gave him three options, Chapman refused to respond. For 20 months Chapman continued to request light duty work, which the USPS provided (assuming such light duty work is available) for employees who are injured off the job. Chapman waited until after notification of his proposed removal for physical inability and failure to follow postal service policy and procedures, to file a Department of Labor Worker's Compensation claim (DOL claim) for work related injuries. On these facts, USPS could have issued Chapman a Notice of Proposed Removal on September 23, 2001, one year after he became physically unable to work as a mail handler. Instead, USPS offered Chapman six opportunities to continue working. USPS first deferred issuing the Notice of Proposed Removal for four months. The Notice was eventually issued in January 2002, affording Chapman thirty days to respond. Again, Chapman failed to do anything, while USPS generously awaited DOL's decision. Chapman's DOL claim was denied in April 2002. USPS waited another two months and sent Chapman a Letter of Decision on June 17, 2002.

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On June 28, 2002, Senior Plant Manager Paul Harris agreed to the extraordinary measure of meeting with Chapman and union officials. At this meeting, Chapman blamed his delay in responding to USPS on alcohol, prescription drugs, the break up of his marriage, and the loss of his house. Harris informed Chapman that his alcohol problems and emotional issues required treatment and on July 18, 2002, USPS issued a Revised Letter of Decision giving Chapman an additional 30 days to respond. Chapman failed to take advantage of his sixth opportunity to keep his job when he failed to seek the required treatment. USPS waited another three months for Chapman to respond. At this point, Chapman's position had been held open for two years and, on October 1, 2002, USPS issued Chapman a Letter of Decision administratively removing him effective October 12, 2002. Chapman appealed DOL's decision. On December 26, 2002, after Chapman provided new important information which had not been previously provided to the USPS, the hearing officer found Chapman's injuries were work related. In August 2003, Chapman was offered a permanent modified job in security control. Even though Chapman had not worked or been paid by USPS for over three years, he failed to accept the position for four months. Chapman was paid back wages for the time off work. He currently seeks damages for emotional distress, the loss of his house, and the loss of his marriage. Even though Chapman continually claimed he wanted to work, his actions in this case contradict his claims. Legal Argument Summary Judgment Standard A party is entitled to summary judgment as a matter of law when the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file demonstrate that there is no disputed issue of material fact. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). Once the moving party carries its initial burden, the non-moving party may not simply rest on its pleadings, but must provide evidence that "[sets] forth specific facts showing that there is a genuine issue for trial." Id. at 1076 (quoting Fed. R. Civ. P. 56(c)). All evidentiary inferences, however, should be drawn in the light most favorable to the non-moving party. King County v. Rasmussen, 299 F.3d 1077, 1083 (9th Cir. 2002).

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When a plaintiff presents no evidence to support an essential element of his or her case, there is no genuine issue as to any material fact and summary judgment is appropriate. See Brother Records, Inc. v. Jardine, 318 F.3d 900, 903 (9th Cir. 2003); Celotex Corporation v. Catrett, 477 U.S. 317, 322-23 (1986). "If the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Id. 903. Legal Requirements As To Title VII Claims In proving his claim, Chapman bears the burden of establishing a prima facie case of disparate treatment based on discrimination by introducing evidence giving to an inference of unlawful discrimination. Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1109-10 (9th Cir. 1991). Thus, Chapman must demonstrate that: (1) he is a member of a protected class; (2) he was performing his job in a satisfactory manner; (3) he suffered an adverse employment action; and (4) he was treated differently than similarly situated persons outside his protected class. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Sischo- Nownejad, 934 F.2d at 1109. Chapman must further establish that the alleged disparate treatment was the result of intentional discrimination based upon his protected class characteristics. A mere finding that there was disparate treatment does not prove a claim under Title VII. Equal Employment Opportunity Commission v. Flasher Co., Inc., 986 F.2d 1312, 1314 (10th Cir. 1992). Title VII does not make unexplained differences in treatment per se illegal, nor does it make inconsistent or irrational employment practices illegal. Id. at 1319. Should Chapman establish a prima facie case, USPS bears the burden to articulate a legitimate, nondiscriminatory reason for the challenged action. Upon such articulation, the burden returns to Chapman to prove that the articulated reason is pretextual. McDonnell Douglas, supra. In order to rebut USPS's legitimate reason for its action, Chapman must show the stated reasons are a pretext for the alleged discrimination. Waggoner v. City of Garland, Texas, 987 F.2d 1160, 1166 (5th Cir. 1993). This requires more than simply showing that the reason given was false, but rather, demonstrating that the real reason was discriminatory. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993); see also Nidds v. Schindler Elevator Corp., 113 F.3d 912, 915 (9th Cir. 1996). Bradley v. Harcourt, Brace and Co., 104 F.3d 267,

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270 (9th Cir. 1996) (The plaintiff must present "specific, substantial evidence of pretext.") In assessing a defendant's response to a plaintiff's evidence of pretext, "`it is not the fact finder's function' to second guess business decisions or to question [an employer's] means to achieve a legitimate goal." Gilman v. Runyon, 865 F.Supp. 188, 193 (S.D.N.Y. 1994. The sole inquiry in a Title VII case is whether the given reasons for discharge mask unlawful discrimination. This Court must not assess whether the employer's decision was erroneous or even rational, so long as the employer's actions were not taken for discriminatory reasons. Id. at 193; see also Weihaupt v. AMA, 874 F.2d 419, 429 (7th Cir. 1989) (courts do not sit as a super-personnel department that reexamines an entity's business decisions; the inquiry is limited to whether the employer gave an honest explanation of its behavior). The burden shifting to a defendant upon the establishment of a prima facie case by the plaintiff is not a burden of persuasion, but only a requirement that some reasonable, nondiscriminatory explanation be articulated. See Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25 (1978). "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id. In the context of summary judgment, once a defendant offers a legitimate, nondiscriminatory reason for the adverse action, it has carried its burden of production and the presumptions created by the prima facie case disappears. This is true even though there has been no assessment of the credibility of the defendant's witnesses at this stage. Wallis v. J.R. Simplot Co., 26 F.3d 885, 892 (9th Cir. 1994). Elements of Age Discrimination To prove age discrimination, Chapman must show: (1) he is a member of the protected class, that is, he is age 40 or older; (2) he was qualified for the position in question; (3) that he suffered an adverse employment action; and, (4) the circumstances give rise to an inference of discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993). In evaluating age discrimination claims, courts employ the burden shifting approach developed in McDonnell Douglas Corp. v. Green. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). Under a disparate treatment theory, a plaintiff must show that age actually played a role in the decision making process and had a determinative influence on the outcome. Pottenger v, Potlatch Corp.,

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329 F.3d 740, 745 (9th Cir. 2003). Chapman cannot establish a prima facie case of age discrimination. Further, even if this Court finds a prima facie case, USPS had a legitimate, nondiscriminatory reason to terminate Chapman's employment. Chapman Cannot Prove a Prima Facie Case of Age Discrimination No factual basis has been presented in Chapman's First Amended Complaint or his discovery responses establishing an age discrimination claim. [SOF 68] Incredibly, Chapman neglected to provide basic information such as the age or date of birth of his comparative employees. [SOF 68] For this reason alone, summary judgment on Chapman's age discrimination is proper on the merits. Chapman's Medical Restrictions Rendered Him Unqualified Chapman told the DRAC "He is done with this craft. He cannot do it." [SOF 66] Even if this statement is disputed, there is overwhelming evidence to support USPS's claim that Chapman's medical condition prevented him from performing all of the essential functions of a mail handler. Before Chapman's surgery on June 8, 2000, Dr. Steinke wrote USPS that he was unable to work due to his right upper extremity and thigh numbness, dizziness, nervousness and anxiety. [SOF 22] After his surgery on August 29, 2000, Dr. Letellier noted that Chapman would not be able to return to work at USPS because his medical restrictions prevented him from standing, bending, twisting, or using his right arm and his right leg. [SOF 25] After surgery, Chapman's restrictions were extensive, he could not walk more than 500 feet at a time. As a mail handler Chapman was required to load, unload and move the mail. [SOF 6] At the DRAC, Chapman failed to suggest any accommodations that would allow him to perform the duties of a mail handler. Instead, he requested an unspecified computer job. [SOF 36] The only logical conclusion based upon Chapman's job responsibilities, his medical restrictions and request for a different position is that he was unable to perform his mail handler responsibilities with or without accommodation. Assuming there was a specific computer position available for Chapman, USPS would have violated the union contract prohibiting the crossing of crafts if Chapman was given the position because he was still on light duty. [SOF 66, 67] Even if Chapman requested reassignment or change of craft, Chapman's medical restrictions prevented him from being

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assigned computer work. Chapman could not use his right arm, his dominant hand, for more than five minutes at a time. [SOF 28] Further, Chapman reported to his doctors that he had to shut down a computer business he had on the side due to his medical restrictions. [SOF 44] See Holtzclaw v. DSC Communications Corp., 255 F. 3d 254 (5th Cir. 2001) (Court of Appeals upheld summary judgment for employer where plaintiff failed to show he was physically able to do the job he sought). Additionally, Chapman cannot establish that he was qualified for the position in security control before his DOL claim was accepted. [SOF 66, 67] Security Control is not a bid job. According to Laurel Allen, USPS Manager, Personnel Services, for the Arizona District, it was a job specially created for Chapman once his DOL claims had been accepted. [SOF 66] Similarly, Chapman was not qualified for a position as a greeter or telephone operator prior to acceptance of his DOL claim. A greeter and a telephone operator are not jobs but merely simple tasks performed by employees in other crafts. Since Chapman failed to request reassignment, USPS would violate the union contract by crossing crafts if it provided this type of work to Chapman. [SOF 67] Chapman fails to establish a prima facie case of age discrimination since he fails to provide basic information like age or date of birth of his comparison employees. [SOF 68] Chapman's physical restrictions not his age prevented him from working as a mail handler. [SOF 27, 36, 67] Further, Chapman's failure to request reassignment not age discrimination disqualified him from these jobs as greeter or telephone operator. Chapman cannot demonstrate that younger similarly situated employees were treated better than him. No Similarly Situated Employees Chapman does not compare himself with employees who are similarly situated to himself. See Vasquez v. County of Los Angeles, 349 F. 3d 634, 641 (9th Cir. 2003) citing Hollins v. Atlantic Co., Inc., 188 F. 3d 652, 659 (6th Cir. 1999). Not only does Chapman fail to provide the age or date of birth of any of his comparison employees, he also fails to establish that his comparison employees are in the same craft, have the same job, have the same supervisor, and are subject to the same standards. [SOF 69, 71] In order to determine whether his comparison employees are subject to the same standards, they must have the same injuries, have the same

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date of injury, have submitted their DOL claims on the same date, and have the same date of DOL acceptance of their claim. These standards are important to understand because USPS policies and procedures and DOL obligations are dependant upon whether Chapman was eligible for light duty, limited duty, or permanent modified job. [SOF 60, 72] USPS maintains two separate and distinct programs for employees who are unable to perform the essential functions of their position due to a medical condition. One program, known as light duty applies to individuals who suffer from non-work-related medical impairments. [SOF 66, 60, 72] Limited duty applies to employees who suffer on-the-job injuries, and is governed by 5 U.S.C. § 8101, Federal Employee Compensation Act (FECA). FECA also establishes a detailed regulatory scheme for the filing and/or denial of worker's compensation claims. The program is administered by the Department of Labor, Office of Workers' Compensation ("OWCP"). In contrast, the light duty program is governed by the applicable collective bargaining agreement. The Postal Service is not obligated to "make work" or create a position for a person requesting a light duty assignment. [SOF 66, 67, 72] Light duty work is only provided if such work is available. [SOF 66, 67, 72] At this point in time, Chapman claimed his injuries were not work related and requested a light duty position. [SOF 30] Accordingly, Chapman cannot prove a prima facie case of age discrimination since he failed to establish that any of his comparison employees were similarly situated to him. [SOF 68, 69, 71] Based on the distinction between light and limited duty, USPS had a legitimate business reason for its action. USPS Has a Legitimate Business Reasons for its Actions Assuming Chapman can prove a prima facie case of age discrimination, USPS had multiple legitimate business reasons to remove Chapman. Even though Chapman told his doctors that he thought his injuries were work related as early as November 1999, he failed to inform USPS or file a DOL claim until 20 months after he was sent home. [SOF 23, 45] Therefore, Chapman was only qualified for a light duty assignment in the mail handler craft. USPS offered Chapman a light duty job in re-wrap which he failed to accept. [SOF 28]

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In January 2001, Chapman was provided an opportunity to present his case to the DRAC to determine if he could perform the essential functions of his mail handler job with or without accommodation. Chapman informed the DRAC "he was done being a mail handler". [SOF 36] He also failed to notify USPS of any accommodations that would render him capable of performing all of the essential functions of a mail handler. [SOF 36] As a result, the DRAC discussed three options with Chapman: (1) request reassignment; (2) apply for permanent light duty; and (3) apply for disability retirement. [SOF 36] Since Chapman had already applied for permanent light duty and there was no work available for him, he only had two options left. [SOF 33] However, Chapman failed to select either of these options. [SOF 43, 53, 56] Chapman also fails to demonstrate that another position in the mail handler craft was available, funded, and vacant. [SOF 66] According to Laurel Allen's affidavit, there were no available funded vacant positions in the mail handler craft within Chapman`s restrictions. [SOF 66] USPS had a business to run. It could not keep Chapman's position open forever. USPS kept Chapman's mail handler position open and unfilled for more than two years. [SOF 67] Other mail handlers had to work overtime since Chapman's position remained unfilled. [SOF 67] USPS provided a legitimate business reason for removing Chapman. In his Letter of Decision dated October 2002, Senior Plant Manager Harris stated that he was unable to modify Chapman's mail handler position, because it would not be in the best interests of USPS nor would it promote the efficiency of the service to continue Chapman's employment. [SOF 56] Chapman has failed to provide any evidence that he was removed due to his age. Although Chapman's co-workers received limited duty jobs and permanent modified positions, Chapman was not eligible for these jobs until his DOL claim was accepted. [SOF 66, 68, 69, 70] Chapman controlled the filing of his DOL claim. DOL was responsible for accepting or denying his claim, not the USPS. [SOF 63] No Evidence of Pretext Chapman has the ultimate burden of showing that the legitimate business reasons offered by USPS were a pretext for illegal age discrimination and that USPS intentionally discriminated

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against him because of he was over 40 years old. Chapman has no evidence supporting his claim of age discrimination. Conclusion Chapman fails to establish a prima facie case of age discrimination. Incredibly, Chapman fails to provide the age or date of birth of his comparison employees. [SOF 68, 70 ] There is no question that Chapman could not perform the essential functions of a mail handler due to his medical restrictions. [SOF 36, 41] According to Laurel Allen's affidavit, there were no vacant funded positions available for Chapman in his craft or any other craft with his medical restrictions. [SOF 66] Even if there was an open position in another craft that Chapman could fill, USPS would violate the union contract if they provided Chapman the position. [SOF 66, 67] Until Chapman's DOL claim was accepted, he was excluded from all limited duty and permanent modified jobs. [SOF 66, 68, 70] The DRAC gave Chapman two additional options to pursue, but he refused to pursue them. For these reasons, USPS had a legitimate business reason to remove Chapman. Summary judgment should be entered in favor of USPS on his age discrimination claim. Sex Discrimination To establish a prima facie case of sex discrimination, Chapman must demonstrate: (1) he is a member of a protected class; (2) he was subjected to adverse action by the Agency; and (3) he was treated less favorably than similarly situated persons not within his protected classes. See Mc Donnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The central question in any employment discrimination case is whether the employer would have taken the same action had the employee been of a different sex and everything else remained the same. See Carson v. Bethlehem Steel Corp., 82 F. 3d 157, 158 (7th Cir. 1996).

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Chapman Fails to Prove a Prima Facie Case of Sex Discrimination USPS does not dispute Chapman is a member of a protected class. Nevertheless Chapman cannot demonstrate that female employees were treated better than him. (Complaint 112). Neither Chapman's First Amended Complaint nor his discovery responses establish a sex discrimination claim. See Hardage v. CBS Broadcasting 427, F.3d 1177 (9th Cir. 2005). Again, Chapman failed to provide enough information for an adequate comparison to be made for the same reasons laid out in the age discrimination section of this motion. [SOF 68, 69, 70] Accordingly, Chapman does not establish a prima facie case of sex discrimination. Chapman Fails to Identify Any Similarly Situated Female Employees Treated More Favorably than Him In his response to Interrogatory No. 12, Chapman provides the names of both male and female comparison employees. Since Chapman alleges both male and female employees were treated better than him he cannot establish a prima facie case of sex discrimination. Assuming Chapman can show comparable female employees were treated better than him, USPS had a legitimate business reason which is fully briefed in the age discrimination section of this motion. No Evidence of Pretext Chapman has the ultimate burden of showing that the legitimate business reasons offered by USPS were a pretext for sex discrimination. This he cannot show. Conclusion Plaintiff cannot establish a prima facie case of sex discrimination. He identifies both female and male employees who were treated better than him. [SOF 68] Nevertheless, Chapman fails to provide specific information about the female employees allegedly treated better than him. [SOF 68, 69, 70] Without more specific information, Chapman fails to prove sex discrimination. Therefore, Chapman's sex discrimination claim should be dismissed and judgment entered for USPS on this claim. Disability Discrimination To establish a prima facie case of disability discrimination under the Rehabilitation Act, the plaintiff must prove three elements: (1) he was disabled within the meaning of the act; (2) he was qualified individual able to perform the essential functions of her job, either with or

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without accommodations; and (3) his federal employer acted adversely against him solely because of his disability. Zukle v. Regents of Univ. Of Cal., 166 F.3d 1041, 1045 (9th Cir. 1999). The existence of a disability is a keystone requirement. E.E.OC. V. United Parcel Service, Inc., 306 F.3d 794, 796 (9th Cir. 2002) amended by 311 F.3d 1132 (9th Cir. 2002). Therefore, a person who is not disabled is not entitled to a reasonable accommodation. 29 C.F.R.§ 1630.2(o)(1). Under 42 U.S.C. § 12102(2)(A), a person is disabled if he has "a physical or mental impairment that substantially limits one or more of the major life activities." While the determination of whether a person is disabled is made on a case by case basis and is highly individualized, a major life activity is not defined by what may be important to an individual plaintiff. Instead, "the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with her specific job." Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 200-201 (2002)(carpal tunnel did not qualify as disability). Notably, Toyota has not held that working is a major life activity. "Merely having an impairment does not make one disabled for purposes of the ADA." 534 U.S. at 195. For this reason, it is not sufficient for the plaintiff to merely submit medical documentation of a diagnosed impairment. Id. at 198. Chapman Is Not a Qualified Disabled Person There is no dispute that Chapman was capable of performing the activities of daily living. Additionally, Dr. Hyland who performed a Functional Capacity Exam on Chapman, at his request, found he was capable of performing the activities of daily living. [SOF 41] Chapman claims that he is disabled in his ability to work, lift, and walk. In Thomas v. Holy Family Hospital 121 F. 3d 537, 539 (9th Cir. 1997), the Ninth Circuit found that a nurse who had a cervical injury was not considered disabled even though she had 25 pound lifting on a continuous basis, more than 50 pounds twice a day, and more than 100 pounds once a day. The Ninth Circuit determined these lifting restrictions do not constitute a significant restriction on one's ability to lift, work, or perform any other life activity. Id. at 539. Even a leg deformity which caused moderate difficulty in walking and a limp have been found free of a substantial limitation in the major life activity of walking. Talk v. Delta Airlines. Inc., 165 F.3d 1021, 1025 (5th Cir. 1999). Similarly, the fact that Chapman received workers' compensation benefits does

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not mean he is "disabled". McCleary v. National Cold Storage, Inc., 67 F.Supp. 2d 1288, 1300 (D. Kan. l999). Similarly, Chapman's military disability rating is also insufficient to prove Chapman was disabled under the Rehabilitation Act. Even though Chapman has a permanent disability according to his doctors and the DOL, the Supreme Court's holding in Toyota establishes this type of evidence is insufficient to prove Chapman is "disabled" under the Rehabilitation Act. Regarded As Disabled Chapman also claims that he was regarded as permanently disabled by USPS. Specifically, Chapman points to the disability sign USPS required him to place in the window of his car even though he already had a license plate indicating that he was disabled. Chapman's claim completely disregards the reasoning in Toyota which requires he prove that USPS regarded him as disabled for purposed of the Rehabilitation Act. Further, Chapman's removal due to his inability to work as a mail handler, does not mean USPS regarded him as "disabled". In Thompson, the Ninth Circuit found no violation of the Rehabilitation Act when a nurse who had been previously accommodated by modifying her schedule and assigning her to a light duty position was eventually terminated by the hospital for inability to perform her job. The Ninth Circuit found that even though her restrictions were permanent, the hospital did not regard Thompson as "disabled" since she could perform a broad class of jobs even though she could not work as nurse at that hospital. Id. at 540. The Court noted that "an employer's decision to terminate an employee `based upon the physical restrictions imposed by [her] doctor...does not indicate that [the employer] regarded her as having as having a substantially limiting impairment." Id. at 540, citing Wooten v. Farmland Foods , 58 F.3d 382, 386 (8th Cir 1995) (major life activity of working does not mean working at a particular job of that person's choice) Likewise, Chapman was removed for "inability to perform his job as a mail handler" and failure to abide by USPS policies and procedures. [SOF 43, 54, 56] This court should find Thompson directly on point in this case. Chapman cannot prove he was disabled or regarded as disabled. [SOF 41] For these reasons, Chapman cannot prove a prima facie case of disability discrimination in violation of the Rehabilitation Act.

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Reasonable Accommodation In the unlikely event that Chapman is found to be "disabled" or "regarded as disabled", USPS made every effort to find a reasonable accommodation for Chapman to work as a mail handler. [SOF 34, 35, 36, 37, 43, 53, 54, 56, 66, 67] The employer is not solely responsible for finding an employee a reasonable accommodation. The employee with a disability bears the responsibility of notifying the employer of any and all physical or psychological limitations. See Mole v. Buckhorn Rubber Products, Inc., 165 F.3d 1212, 1217 (8th Cir. 1999). As the Court observed in Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir. 1996), the duty of the employee to inform the employer of a disability is dictated by "common sense lest a disabled employee keep his disability a secret and sue later for failure to accommodate." That is exactly what happened in this case. Chapman never informed USPS about the severity of the injury to his spine, neck and back until he could no longer work as a mail handler in June of 2000. Even though Dr. Fountain told Chapman in 1991 that he should find another job and Dr. Debruin told Chapman he had a degenerative condition, this information was not provided to USPS until it was too late. [SOF 8, 9 27, 36, 45] At this point in time Chapman could not perform the essential functions of his job with or without an accommodation. [SOF 27, 30, 36, 37, 43, 45, 53, 54, 56, 70] Chapman's age was not a factor in this case. [SOF 70] Thus Chapman cannot prove that USPS acted in violation of the Rehabilitation Act. Chapman's claim that he was not reasonable accommodated is without merit and therefore, Chapman cannot establish a prima facie case of disability discrimination. Chapman Was Not Entitled To Accommodation Of Choice "[U]nder the [Rehabilitation Act] a qualified individual with a disability is 'not entitled to the accommodation of her choice, but only to a reasonable accommodation.' " Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997); Hankins v. The Gap, Inc., 84 F.3d 797, 800-01 (6th Cir. 1996))(the employer retains the 'ultimate discretion' to choose effective accommodation). Since Chapman requested light duty and delayed filing his DOL claim, USPS was restricted by the union contract. An employer is not required to accommodate a handicapped employee by restructuring a job in a manner which would usurp

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the legitimate rights of other employees in a collective bargaining agreement. Guillot v. Garrett, 970 F.2d 1320 (4th Cir. 1992). Even if Chapman was disabled according to the Rehabilitation Act, he was not entitled to a computer job. The Parties Engaged In The Interactive Process In Good Faith Neither the Rehabilitation Act nor the ADA refer to the "interactive process." Case law established that the interactive process is triggered when an employee requests an accommodation. See Ballard v. Rubin, 284 F.3d 957, 960 (requesting an accommodation is a "'predicate requirement' for the initiation of the interactive process.") See Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002). Once initiated, the process is not a one-way street to be navigated only by the employer. The purpose of a reasonable accommodation is to permit the plaintiff to perform the essential functions of his job. Part of the plaintiff's burden is identifying a reasonable accommodation that would "effectively enable her to perform her job." Reed v. Lepage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001). In this case USPS nominated Chapman to the DRAC because he could not perform the essential functions of his mail handler job. [SOF 30, 31, 34, 35, 36] The DRAC assessed Chapman's medical restrictions and met personally with Chapman to discuss his case. [SOF 34, 36] Chapman, however, did not want to work as a mail handler and requested computer work. [SOF 36] In this case, the parties engaged in the interactive process in good faith. Even if Chapman could establish that USPS failed to engage in the interactive process in good faith, this alone does not make USPS liable for disability discrimination. If USPS can demonstrate that reassigning Chapman to a vacant position would cause undue hardship, then USPS is not required to reassign a handicapped employee.

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1 2 3 4 5 6 7 8 9 10 11 12 13

Undue Hardship The Rehabilitation Act does not require an employer to reassign a handicapped employee to a vacant position, even if he is qualified to perform the work. Fedro v. Reno, 21 F.3d 1391, 1395 (7th Cir. 1994); Meyers v. Hose, 50 F.3d 278, 284 (4th Cir 1995)(a postal employee, whose asthma prevented him from performing the requirement of his job as a laborer-custodian, was not entitled to reassignment). The Rehabilitation Act only prohibits an employer from denying reassignment that is reasonable and available under its own regulations. See, Bradley v. Univ. of Texas M.D. Anderson Cancer Center, 3 F.3d 922 (5th Cir. 1993). The treatment of workers who have injuries or illnesses caused by their employment is significantly different because of the Federal Employees Compensation Act, 5 U.S.C. § 8102, as mentioned above. This distinction is critical for understanding why reassigning Chapman to a computer position or any other job outside his craft would cause USPS undue hardship. Here, Chapman requested light duty after he left the work floor on September 23, 2000.

14 [SOF 30] This request put Chapman's injury in the off-the-job duty category. Chapman failed 15 to notify USPS that his injury was work-related until he filed his DOL claim. [SOF 45] As a 16 result, USPS searched for available light duty work which Chapman could perform within his 17 restrictions. [SOF 36, 66] Once Chapman refused re-wrap, Hiram Johnson, the Plant Supervisor, 18 checked to see if there were any light duty jobs available at the Plant or Rio Salado which 19 Chapman could perform with his medical restrictions. [SOF 29] 20 21

No Evidence of Pretext Chapman has the ultimate burden of showing USPS's legitimate business reason was a Chapman cannot establish pretest for disability

22 pretext for disability discrimination. 23 discrimination. 24 25 26

Conclusion Chapman cannot establish that he is disabled or regarded as disabled in violation of the Rehabilitation Act. USPS engaged in the interactive process in good faith and made every effort

27 to find reasonable accommodation for Chapman. [SOF 28, 36, 66] Chapman was not entitled to 28 an accommodation of his choice. [SOF 70] USPS would violate its own policies and procedures

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1 and the union contract thereby causing USPS due hardship if it assigned Chapman to work with 2 computers, as a greeter, or telephone operator. [SOF 70] 3 4

Retaliation To prove a prima facie case of retaliation, Chapman must demonstrate that: (1) he engaged

5 in protected activity; (2) he suffered an adverse employment decision; and (3) a causal connection 6 existed between his activity and the employment decision. See Hardage v. CBS Broadcasting 7 427, F.3d 1177,1188 (9th Cir. 2005). If Chapman makes a prima facie case, the burden shifts to 8 USPS to articulate a legitimate non-discriminatory reason for the adverse employment action. 9 Chapman then bears the ultimate burden of demonstrating that this reason is pretextual. Id. 10

In paragraph 121 of his First Amended Complaint, Chapman asserts "that USPS has

11 engaged in unlawful employment practices and retaliated and continues to retaliated against 12 Plaintiff for the reason of Plaintiff's exercise of protected rights under the ADA, Rehabilitation 13 Act, Title VII of the Civil Rights Act of 1964, ADEA and for seeking OWCP benefits to which 14 he was entitled."2 15 16

Complaints Chapman makes a series of allegations against Yvonne Pearson, a USPS injury

17 compensation's specialist. [SOF 68] None of these claims are adverse actions prohibited under 18 Title VII. Yvonne Pearson is not Chapman's supervisor nor does she have any ability to effect 19 the terms and conditions of his employment. DOL decides whether Chapman's claim should be 20 accepted or rejected, not Yvonne Pearson. [SOF 62, 63] 21

Furthermore Yvonne Pearson's actions are not causally connected to Chapman's removal.

22 Chapman was removed for inability to perform the essential functions of a mail handler and 23 failure to follow postal service policies and procedures. [SOF 56] Chapman's removal was 24 initiated prior to his filing of his DOL claim and his contact with Yvonne Pearson. [SOF 43, 45] 25

While Pearson's handling of Chapman's claim was not professional, her actions were not

26 discriminatory. She could have been more helpful. Several letters were mailed to the wrong 27 28

In this case Chapman recites 15 pages of facts and labels them all retaliation. Because some of the facts presented by Chapman are not retaliatory they will be labeled complaints. The other facts will be addressed as adverse actions.
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2

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1 address or to the wrong person. She made mistakes. See, Packer v. Garrett, 735 F. Supp. 8, 9-10 2 (D.D.C. 1990)(errors made in the processing of an EEO complaint charge does not establish 3 discrimination). Similarly, errors made in the processing of Chapman's DOL claim do not 4 amount to discrimination. 5

In a letter to K. Jones identifying the reasons to deny Chapman's claim, Pearson stated that

6 it was rumored Chapman was dropped in the hospital. [SOF 47] Pearson's failure to testify at the 7 DOL hearing was also a mistake. [SOF 48] She testified at deposition that she did not realize she 8 could be required to testify. [SOF 48] No one had ever requested her to do so. [SOF 48] 9

Pearson followed USPS policy in connection with Chapman's DOL claim. [SOF 48] She

10 was responsible for articulating USPS position to the Department of Labor. [SOF 48] Pearson 11 was not required to rubberstamp plaintiff's DOL claim. [SOF 48] She is entitled to present issues 12 to the DOL claims examiner for review. [SOF 47, 48] Chapman, not Pearson, was responsible 13 for filling out the CA-7's and submitting them with the correct information to the Injury 14 Compensation Office. [SOF 48, 62] 15

While Chapman's DOL payments were delayed, a review of the CA-7's submitted by

16 Chapman immediately shows why they were not timely processed. [SOF 48, 62] Chapman's CA17 7 forms did not have the proper dates or lacked his signature. [SOF 48, 62] Three of the CA-7's 18 were handwritten and signed by Chapman but they did not have dates to be compensated just the 19 word "ongoing". [SOF 48, 62] The other CA-7's were typed but had no signatures. [SOF 48, 62] 20 Pearson's actions were consistent with policy and therefore, are not actionable. See McAlindin 21 v. County of San Diego, 192 F.3d 1226, 1238-39 (9th Cir. 1999), amended by 201 F.3d 1211 (9th 22 Cir. 2000)(it is clear that employment actions which are trivial or consistent with policy are not 23 actionable). 24

The actions of Kirk Lenertz , Linda Hartshorn, Stacy Roman, Laurel Anne, Constance

25 Katz-Robbins, Donna Spinis, Loreen Wiley, and Mike Smith were also consistent with USPS 26 policy and are not actionable. [SOF 36, 37, 70] These individuals were members of the DRAC. 27 [SOF 36, 37, 70] None of them supervised Chapman or made the decision to remove him for 28 inability to perform the essential duties of a mail handler.

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1

Chapman asserts that one of the DRAC committee members told him, "We do not need

2 people with a good mind, we need people to touch the mail."[SOF 68] While Chapman believes 3 this statement was intended to ridicule him, this comment does not constitute an adverse action. 4

Likewise, the actions of Johnny Camou, Vanaja Thiyagarajan, Emmitt Haynes, Dave

5 Carey, Dave Dilettoso, Bob Hemphill, and Olga Carlson were taken also pursuant to USPS 6 policy. [SOF 27, 28, 34, 36, 46, 54, 68] Simply because Chapman does not like the actions they 7 took does not mean they can be classified as adverse actions.

All of these individuals

8 documented issues relating to his DOL claim or his removal. However, none of them had any 9 direct involvement with Chapman's removal. [SOF 27, 28, 34, 36, 46, 54, 68] 10 11

Adverse Action In order for conduct to be actionable, it must affect the terms, conditions, privileges, or

12 duration of employment. See 42 U.S.c. § 2000e-2(a)(1); Yeron v. Henry, 91 F.3d 370, 378 (2nd 13 Cir. 1996). "[N]ot everything that makes an employee unhappy is an actionable adverse action." 14 Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). USPS's inability to provide Chapman 15 with light duty work prior to filing his DOL claim should not be considered an adverse action, 16 because he was provided work, and he rejected it. [SOF 28] (Dissatisfaction with a reassignment 17 of duties is not an adverse action). See e.g., Forkkio v. Powell, 306 F.3d 1127, 1130 (D.C. Cir. 18 2002). 19

USPS does not dispute Chapman's removal constituted an adverse actions. Contrary to

20 Chapman's claims, the evidence establishes that Senior Plant Manager Paul Harris went out of 21 his way to help Chapman and gave him six chances to help himself. [SOF 54, 56, 67] USPS first 22 deferred issuing the Notice of Proposed Removal for four months. [SOF 43, 56] The Notice was 23 eventually issued in January 2002, affording Chapman thirty days to respond. [SOF 54, 56] 24 Again, Chapman failed to do anything, while USPS generously awaited DOL's decision. [SOF 25 54, 56] Chapman's DOL claim was denied in April 2002. USPS waited another two months and 26 sent Chapman a Letter of Decision on June 17, 2002. [SOF 53] 27

On June 28, 2002, Senior Plant Manager Paul Harris agreed to the extraordinary measure

28 of meeting with Chapman and union officials. [SOF 54, 67] At this meeting, Chapman blamed

his delay in responding to USPS on alcohol, prescription drugs, the break up of his marriage, and
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1 the loss of his house. [SOF 54] Harris informed Chapman that his alcohol problems and 2 emotional issues required treatment and on July 18, 2002, USPS issued a Revised Letter of 3 Decision giving Chapman an additional 30 days to respond. [SOF 54, 67] Chapman failed to take 4 advantage of his sixth opportunity to keep his job when he failed to seek the required treatment. 5 [SOF 67] USPS waited another three months for Chapman to respond. [SOF 54, 56] At this 6 point, Chapman's position had been held open for two years and, on October 1, 2002, USPS 7 issued Chapman a Letter of Decision administratively removing him effective October 12, 2002. 8 [SOF 28, 30, 56] 9 10

Protected Activity Protected activities include: (1) opposing an unlawful employment practice; and (2)

11 participating in a statutorily authorized proceeding. See 42 U.S.C. § 2000e-3(a). Time delay can 12 be a critical factor. See Clark County School Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) 13 (temporal proximity must be "very close" in order to show causality sufficient to establish a prima 14 facie case of retaliation). 15

Only adverse treatment that is based on a retaliatory motive and is reasonably likely to

16 deter the complainant and others from engaging in protected activity is prohibited. See Ray v. 17 Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000). Only non-trivial employment actions that 18 deter reasonable employees from complaining about Title VII violations would constitute 19 actionable retaliation. Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). An 20 employer cannot be paralyzed into inaction simply because an employee has filed a complaint 21 under Title VII. Id. 22

USPS does dispute that Chapman engaged in protected activity for filing three EEO

23 actions. However, Chapman cannot demonstrate a causal connection between his EEO actions 24 and his removal. Contrary to Chapman's assertion, pursuit of FECA benefits is not protected 25 activity as defined either by Title VII or the Rehabilitation Act. Johnson v. Henderson, 144 26 F.Supp. 1341, 1354 (S.D. Florida 2001). 27

Chapman fails to plead or prove that any adverse action was taken with a retaliatory

28 animus. In his first EEO Complaint 1E-853-0012-01, Chapman alleges that two supervisors in

the custodial craft, Terry Cook and Dennis Barber, did not provide him a job in the custodial craft
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1 while they accommodated other employees. [SOF 33] Plaintiff failed to timely exhaust this claim 2 since Barber and Cook took action in 1995-1997 and Chapman did not file his first EEO until 3 2000. See 29 C.F.R, Section 1614.105 (b).[SOF 33] 4

In his second EEO Complaint, Chapman lists the discriminating officials as Paul Harris

5 and Dave Carey. Dave Carey's only involvement with this case was his signature on the October 6 2002 Letter of Decision. [SOF 60] Senior Plant Manager Paul Harris was the official who 7 removed Chapman. [SOF 54, 56] He went out of his way to help Chapman as described above. 8 Chapman fails to show that Harris or Carey knew of his previous EEO action. [SOF 70] 9

In the third EEO Complaint, Chapman alleges Yvonne Pearson was the discriminating

10 official. She had not been previously named. As discussed above, her actions did not constitute 11 adverse actions. For these reasons, no causal connection exists between Chapman's removal and 12 the exercise of his protected EEO activity. Assuming Plaintiff is able to make a prima facie case 13 of retaliation, USPS had multiple legitimate business reasons for its actions. [SOF 60, 67] 14 15

Legitimate Non Discriminatory Reason For Agency's Action USPS had a legitimate, non-discriminatory reason for requiring employees to be capable

16 of performing the essential duties of their position. Without a minimum performance standard, 17 USPS cannot operate an efficient business. USPS provided Chapman an opportunity to work in 18 re-wrap. USPS nominated Chapman to the DRAC. At the DRAC meeting, Chapman and USPS 19 officials discussed whether there was a reasonable accommodation that would allow him to 20 perform the essential functions of a mail handler. There were no reasonable accommodations 21 available that would not cause USPS undue hardship. Having fulfilled its legal obligations, USPS 22 had no choice other than to remove Chapman from his mail handler position. 23 24

No Evidence of Pretext Chapman must present "specific and substantial evidence" that Henderson, Harris, Barber,

25 Carey and Pearson were the responsible management officials who intended to discriminate 26 against Chapman on the basis of sex, age, disability or retaliation. See, Godwin v. Hunt-Wesson, 27 Inc., 150 F.3d 1217, 1222 (9th Cir. 1998). "Mere assertions" and "conclusory allegations" are 28 insufficient to show pretext. Steckl v. Motorola, 703 F.2d 392, 393 (9th Cir. 1983). No viable

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1 pretext claim exists because Chapman has not set forth any specific and substantial evidence to 2 support his claim of retaliation. 3 4

Conclusion: Chapman has failed to establish a prima facie case of age, sex, disability discrimination,

5 wrongful discharge and retaliation. Assuming Plaintiff is able to make a prima facie case of 6 discrimination on all these issues, USPS had multiple legitimate business reason for its actions. 7 Summary Judgment in favor of USPS should be entered on all claims. Accordingly, this court 8 should dismiss this case with prejudice. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted this 30TH day of December, 2005. PAUL K. CHARLTON United States Attorney District of Arizona

HARRIET M. BERNICK Assistant U.S. Attorney

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1 2

CERTIFICATE OF SERVICE I hereby certify that on December 30, 2005, I electronically transmitted the attached

3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice 4 of Electronic Filing and served via regular mail service the Exhibits thereto, to the following 5 CM/ECF registrants: 6

William R. Hobson Law Offices of William R. Hobson 7303 W. Boston Street 8 Chandler, Arizona 85226
7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

S/ LaRee Zickefoose U.S. Attorney's Office

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