Brown v. Donahoe

Filing 56

ORDER granting 42 Motion for Summary Judgment. The Clerk of Court is kindly directed to enter judgment in favor of Defendant and terminate this action. Signed by Magistrate Judge Lawrence O Anderson on 11/15/13.(TLJ)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 James E. Brown, ) ) Plaintiff, ) ) vs. ) ) Patrick R. Donahoe, Postmaster General,) United States Postal Service, ) ) Defendant. ) ) No. CV-11-424-PHX-LOA ORDER 15 This action comes before the Court on Defendant Postmaster General Patrick R. 16 Donahoe’s Motion for Summary Judgment, requesting the entry of summary judgment on 17 Plaintiff’s pro se Second Amended Complaint. (Docs. 16, 42) After considering the parties’ 18 briefings, statements of facts, including Plaintiff’s Amended Statement of Facts,1 and the 19 relevant legal authorities, the Court will grant the Motion, enter judgment in favor of 20 Defendant, and terminate this action. 21 I. Background 22 Plaintiff is a letter carrier employed by the United States Postal Service (“Postal 23 Service”). This action arose between 2007 and 2008 when a number of postal routes were 24 converted from “drive-and-dismount” delivery routes, which are primarily driven, to “park- 25 1 26 27 28 On September 16, 2013, Plaintiff was ordered to file an Amended Statement of Facts on or before September 30, 2013, that fully complied with LRCiv 56.1. (Doc. 50) While he filed a timely Amended Statement of Facts, Plaintiff’s Amended Statement of Facts fails to comply with LRCiv 56.1 and establish a genuine dispute of material fact. The significant deficiencies of Plaintiff’s Amended Statement of Facts are discussed on pages 12-13. 1 and-loop,” or “park-point” routes, which require more walking to deliver and pick up mail. 2 In a “drive-and-dismount” route, also called an “across-the-curb” delivery or “hop and stop,” 3 the letter carrier drives a postal vehicle to each mailbox, takes a step or two across the curb, 4 places the mail into the mailbox, returns to the postal vehicle, and then drives to the next 5 mailbox. (Doc. 43, Defendant’s Statement of Facts (“DSOF”) ¶ 5) In a park-and-loop route, 6 a postal carrier drives to a designated point, parks the postal vehicle, fills his or her mail 7 satchel, and walks from mailbox to mailbox, looping the street back to the postal vehicle. 8 (Id.) 9 The Postal Service converted many of its routes to park-and-loop delivery as part of 10 its effort to create more “green routes,” which included more park-and-loop routes and other 11 routes where carriers walked from a postal station and did not use a postal vehicle at all. 12 (DSOF, ¶ 16) Converting to green routes reduces fuel usage, wear and tear on postal 13 vehicles, and minimizes the risk of injury to postal letter carriers by repeated mounting and 14 dismounting of their postal vehicles. (Id.) 15 Plaintiff began working as a letter carrier for the Postal Service in approximately 16 1999. (Id. at ¶ 1) Between September 2007 and February 2008, Plaintiff took a leave of 17 absence from the Postal Service to undergo surgery on both his feet for plantar fasciitis,2 and 18 he did not return to work until February 2008. (DSOF, ¶¶ 4, 12) During the time Plaintiff 19 was off work for his surgeries and post-surgery recovery, the Postal Service changed the 20 method of delivery for several postal routes, including Route 3278, pursuant to the Postal 21 Service’s effort to create more green routes. (Id. at ¶ 13) Specifically, Plaintiff’s old route, 22 Route 3278, was changed from a drive-and-dismount route, which included one and one-half 23 hours of park and loop, to a full park-and-loop route. (DSOF ¶ 14) In or about June 2008, 24 Plaintiff requested that his route be changed from a park-and-loop route, back to a drive-and- 25 26 27 2 Plantar fasciitis is the “inflammation involving the plantar fascia especially in the area of its attachment to the calcaneus and causing pain under the heel in walking and running.” See (last viewed on October 15, 2013) 28 -2- 1 dismount route as an accommodation for his medical walking restriction on the limited 2 number of hours he should walk each day. To accommodate Plaintiff’s maximum two-hour- 3 walking medical restriction, the Postal Service scheduled Plaintiff to carry the mail for part 4 of his Route 3278 in which he would walk for two hours, then hand off the remainder of 5 Route 3278 to other carriers to finish, and then move to another route, using both mounted 6 and drive-and-dismount deliveries. (DSOF ¶¶ 22-24, 29-32) During this period of walking 7 a maximum of two hours on Route 3278, handing off Route 3278 to another postal employee, 8 and then delivering mail on an auxiliary route, Plaintiff was not required to do anything that 9 was outside of his medical restrictions. (Id. at ¶ 45) Plaintiff worked Route 3278 as an 10 accommodated park-and-loop route within his restrictions for a year to a year-and-a-half. (Id. 11 at ¶ 47) 12 Plaintiff did not lose his job or suffer any reduction in pay or other postal benefit as 13 a result of his disability or the Postal Service providing him this medical accommodation. 14 (Id. at ¶ 46) 15 Although this adjusted mail delivery schedule satisfied his medical restrictions, 16 Plaintiff, who remains employed by the Postal Service to this day, was dissatisfied with the 17 Postal Service’s accommodation and requested that his original route be converted back to 18 an entire drive-and-dismount route. After the denial of his request to change the route back 19 to drive-and-dismount route, Plaintiff filed a disability discrimination claim against the Postal 20 Service with the Equal Employment Opportunity Commission (“EEOC”), alleging unlawful 21 disability discrimination because the Postal Service failed to provide him a reasonable 22 accommodation. (Doc. 16 at 2) 23 24 For purposes of summary judgment, the Postal Service does not dispute Plaintiff is disabled within the meaning of the Rehabilitation Act. 25 A. Plaintiff’s Allegations 26 On March 4, 2011, Plaintiff, representing himself, filed a Complaint, and an Amended 27 Complaint, and then a second Ammended [sic] Complaint (“SAC”). (Docs. 1, 9, 16) While 28 -3- 1 certainly not a model of pleading clarity,3 pro se Plaintiff’s SAC alleged the Postal Service 2 discriminated against Plaintiff “on the basis of [Plaintiff] being injured on the job[.]” (Doc. 3 16 at 1) Citing 5 C.F.R. 353.301(d) and Section 13 of the “Reasonable Accomodation [sic] 4 Handbook,” the SAC does not expressly allege a violation of a specific federal act or federal 5 statute. (Id. at 2) (bolding and all capital letters omitted). 6 The parties’ Proposed Case Management Plan clarifies that Plaintiff’s lawsuit is 7 predicated upon the Postal Service’s alleged violation of the Rehabilitation Act of 1973, as 8 amended, with general references to 5 C.F.R. 353.301(d) and Section 13 of the Handbook. 9 (Doc. 22 at 5-8) In his Statement of the Case, Plaintiff contends that “[s]hortly after 10 returning to work from a compensable work related injury[,] the Postal service made 11 accommodations to my bid assignment that were discriminative [sic] in nature, due to federal 12 laws and contractual agreements that they are bound by so as not to be discrimitive [sic] 13 when making accommodations.” (Id. at 1-2) Plaintiff claims that “[t]he only reason the 14 Postal Service was granted summary judgment on [his] EEO[C] claim was that everyone 15 throughout the process was employed by the Postal Service.” (Id. at 2) According to 16 Plaintiff, the Postal service “cause[d] much pain and suffering to the plaintiff which relief 17 is sought through the jury process.” (Id.) 18 B. the Postal Service’s Contentions 19 The Postal Service seeks summary judgment because Plaintiff cannot establish the 20 Postal Service failed to provide him a reasonable accommodation for his disability as he 21 “was given an accommodation that allowed him to work within his medical restriction and 22 resulted in no loss of pay” or other adverse employment action. (Doc. 43, DSOF ¶¶ 31, 45- 23 24 3 25 26 27 28 The Postal Service elected not to file a motion to dismiss Plaintiff’s Amended Complaint for failure to state a claim upon which relief may be granted under Rule 12(b)(6), Fed.R.Civ.P. Because Plaintiff’s Motion for Leave to Proceed In Forma Pauperis, doc. 2, was denied by the then assigned District Judge, the initial Complaint and Amended Complaint were never screened pursuant to 28 U.S.C. § 1915(e)(2) to determine if a plausible claim was alleged. Defendant’s Motion for More Definite Statement, doc. 15, was denied as moot when the prior Judge allowed Plaintiff’s SAC to stand. (Doc. 17) -4- 1 46) “Plaintiff worked with this accommodation for between and year and a year-and-a-half.” 2 Id. (citing DSOF ¶ 47) According to the Postal Service, Plaintiff’s claim fails “because he 3 was provided not only suitable work but actually continued to work his original route to the 4 extent his limitations permitted.” Id. The Postal Service points out that “Plaintiff continued 5 to perform his original function, completely within his limitations.” Id. The Postal Service 6 claims “[t]here is no dispute that the Postal Service provided Plaintiff with a job within his 7 medical restrictions.” Id. at 5 (citing DSOF ¶¶ 31, 45, 46). “While plaintiff may not like the 8 accommodation, his satisfaction is not guaranteed by the Rehabilitation Act.” (Doc. 42 at 5) 9 The Postal Service argues it is entitled to summary judgement as a matter of law. (Id.) The 10 Court agrees. 11 II. Summary Judgment 12 A district court must grant summary judgment if the pleadings and supporting 13 documents, viewed in the light most favorable to the nonmoving party, show “that there is 14 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter 15 of law.” Rule 56(a), Fed.R.Civ.P.; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 16 Substantive law determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 17 U.S. 242, 248 (1986). In addition, “[o]nly disputes over facts that might affect the outcome 18 of the suit under the governing law will properly preclude the entry of summary judgment.” 19 Id. The dispute must be genuine, that is, “the evidence is such that a reasonable jury could 20 return a verdict for the nonmoving party.” Id. 21 A principal purpose of summary judgment is “to isolate and dispose of factually 22 unsupported claims.” Celotex, 477 U.S. at 323-24. Summary judgment is appropriate when 23 a party “fails to make a showing sufficient to establish the existence of an element essential 24 to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322. 25 The moving party need not disprove matters on which the opponent has the burden of proof 26 at trial. Id. at 323. 27 The party opposing summary judgment may not rest upon the mere allegations or 28 denials of the party’s pleadings, but “[m]ust come forward with ‘specific facts showing that -5- 1 there is a genuine issue for trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 2 475 U.S. 574, 586-87 (1986) (quoting former Rule 56(e),Fed.R.Civ.P.) (emphasis in 3 original). There is no issue for trial unless there is sufficient evidence favoring the non- 4 moving party. If the evidence is merely colorable or is not significantly probative, summary 5 judgment may be granted. Anderson, 477 U.S. at 249-50. However, “[t]he evidence of the 6 non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. 7 at 255 (citation omitted). In evaluating the evidence submitted by both parties, all evidence 8 and inferences to be drawn therefrom must be construed in the light most favorable to the 9 non-moving party. T.W. Elec. Services v. Pacific Elec. Contractors Ass’n., 809 F.2d 626, 10 630-31 (9th Cir. 1987). 11 In Anderson, the Supreme Court explained that the summary judgment standard 12 mirrors the standard for a directed verdict. Anderson, 477 U.S. at 250-52. The inquiry under 13 each is the same: whether the evidence presents a sufficient disagreement to require 14 submission to a jury or whether it is so one-sided that one party must prevail as a matter of 15 law. Put another way, summary judgment should be granted when the non-moving party 16 fails to offer evidence from which a reasonable jury could return a verdict in his favor. Id. 17 at 252. The mere existence of a scintilla of evidence in support of the non-moving party’s 18 position is not sufficient. Id. 19 The various provisions of Rule 56, Fed.R.Civ.P., “[m]ean, taken together, that 20 whatever establishes a genuine issue of fact must both be in the district court file and set forth 21 in the response.” Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1029 (9th 22 Cir. 2001) (emphasis in original). “[A] district court is not required to comb the record to 23 find some reason to deny a motion for summary judgment and that, if a party wishes the 24 court to consider an affidavit for more than one issue, the party should bring that desire to 25 the attention of the court.” Id. at 1031 (internal quotation marks, bracket, and citation 26 omitted); see also Albrechtsen v. Board of Regents of University of Wisconsin System, 309 27 F.3d 433, 436 (7th Cir. 2002) (“‘Judges are not like pigs, hunting for truffles in’ the record.”) 28 (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). -6- 1 In ruling on a motion for summary judgment, a district court is not permitted to weigh 2 the evidence, pass upon credibility, or speculate on the ultimate findings of fact. Pepper & 3 Tanner, Inc. v. Shamrock Broadcasting, Inc., 563 F.2d 391, 393 (9th Cir. 1977). 4 III. The Rehabilitation Act 5 The Rehabilitation Act, 29 U.S.C. § 791 et seq., prohibits the Postal Service or any 6 other governmental agency from discriminating against its employees on the basis of a 7 disability. Brown v. Potter, 457 Fed.Appx. 668 (9th Cir. 2011); Boyd v. United States Postal 8 Serv., 752 F.2d 410, 413 (9th Cir. 1985) (“[S]ection 501 is the exclusive remedy for 9 discrimination in employment by the Postal Service on the basis of handicap.”).4 “The 10 Rehabilitation Act requires that government[al] agencies reasonably accommodate an 11 employee’s disability.” McLean v. Runyon, 222 F.3d 1150, 1153 (9th Cir. 2000) (citing 29 12 U.S.C. § 7945; Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1176 (9th Cir. 1998)). 13 While the Americans with Disabilities Act (“ADA”) is inapplicable to disability claims by 14 Postal Service employees, the liability standards are the same under each federal act. See 29 15 U.S.C. § 791(g); Thompson v. Donahoe, 2013 WL 3286196, at *9 (N.D. Cal. June 27, 2013) 16 (“The Rehabilitation Act incorporates the standards of substantive liability of the [ADA.]”) 17 18 19 20 21 22 23 24 25 26 27 28 4 Unlike the ADA, the definition of “discrimination” is not codified in the Rehabilitation Act. See Peebles v. Potter, 354 F.3d 761, 765 (8th Cir. 2004). “[S]ection 794(d) of the Rehabilitation Act, added in 1992, adopts the standards applied under the ADA to determine whether a violation of the former has occurred.” Id. The Postal Service regulations, promulgated under the authority of section 794(a), follow the ADA’s model. See 39 C.F.R. § 255.5 (2003) (Postal Service regulation stating EEOC regulations contained in 29 C.F.R. part 1614 apply to employment with the Postal Service); 29 C.F.R. § 1614.203 (2003) (EEOC regulation adopting standards contained in regulations promulgated under the ADA at 29 C.F.R. part 1630); 29 C.F.R. §§ 1630.4-1630.13 (2003) (defining “discrimination” by describing various acts). 5 Title 29 U.S.C. § 794(a) provides in relevant part that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity conducted . . . by the United States Postal Service. . . .” -7- 1 (citing 42 U.S.C. § 12101 et seq; Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2 2007)). Thus, the case law construing the ADA generally pertains equally to claims under 3 the Rehabilitation Act. See Edwards v. Tacoma Public Schools, 275 Fed.Appx. 629, 630 (9th 4 Cir. 2008) (“[W]e examine cases construing claims under the [ADA] . . . as well as section 5 504 of the Rehabilitation Act, because there is no significant difference in the analysis of 6 rights and obligations created by the two Acts.”) (citation and internal quotation marks 7 omitted); Zukle v. Regents of Univ. of California, 166 F.3d 1041, 1045 n. 11 (9th Cir. 1999) 8 (citations omitted). 9 Under the Rehabilitation Act, the ADA, the Fair Housing Act,6 and their various 10 regulations, numerous kinds of disability discrimination are prohibited. The means of 11 discrimination at issue in this case is the Postal Service’s alleged failure to provide Plaintiff 12 a reasonable accommodation in his employment. The Postal Service does not dispute that the 13 failure to make a reasonable accommodation in the employment of a disabled postal 14 employee is a form of prohibited discrimination. See 29 C.F.R. § 1630.9(a) (“It is unlawful 15 for a covered entity not to make reasonable accommodation to the known physical or mental 16 limitations of an otherwise qualified applicant or employee with a disability, unless such 17 covered entity can demonstrate that the accommodation would impose an undue hardship on 18 the operation of its business.”). If, however, a disabled employee “rejects a reasonable 19 accommodation,” the employee will not be considered a qualified individual with a 20 disability. 29 C.F.R. 1630.9(d); accord Reza v. International Game Technology, 351 21 Fed.Appx. 188, (9th Cir. 2009) (After employee rejected a reasonable accommodation, she 22 23 24 25 26 27 28 6 “The Fair Housing Act, 42 U.S.C. § 3601 et seq., as amended by the Fair Housing Amendments Act of 1988, prohibits discrimination ‘against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap.’” Hollis v. Chestnut Bend Homeowners Ass’n, 2013 WL 5372362, at *11 (M.D. Tenn. Sept. 24, 2013) (quoting 42 U.S.C. § 3604(f)(2)). “The FHA is a broad mandate to eliminate discrimination against [the disabled] and equalize housing opportunities for disabled individuals.” Jafri v. Chandler LLC, 2013 WL 5513238, at *4 (N.D. Ill. Oct. 4, 2013) (citation and internal quotation marks omitted). -8- 1 was no longer a qualified individual under the ADA.) (citing 29 C.F.R. § 1630.9(d)) 2 (footnote omitted). 3 An employee bringing a reasonable-accommodation claim under the Rehabilitation 4 Act must first establish a prima facie case. To establish a prima facie case that the Postal 5 Service failed to accommodate an employee’s disability, a plaintiff must first demonstrate: 6 “(1) he is disabled within the meaning of the ADA; (2) he is a qualified individual able to 7 perform the essential functions of the job with reasonable accommodation; and (3) he 8 suffered an adverse employment action because of his disability.” Allen v. Pac. Bell, 348 9 F.3d 1113, 1114 (9th Cir. 2003) (citation omitted); see also Samper v. Providence St. Vincent 10 Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012); Brown v. Potter, 457 Fed.Appx. 668, 669-70 11 (9th Cir. 2011) (quoting Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007) 12 (citation omitted); Peebles v. Potter, 354 F.3d 761 (8th Cir. 2004) (summary judgment in 13 favor of Postal Service affirmed on former letter carrier’s claim of failure to accommodate 14 his disability by refusing to place him in a light-duty position). 15 When an employee alleges a failure to accommodate his disability under the 16 Rehabilitation Act, the burden is on the employee to prove that he is a qualified individual 17 with a disability, and “with or without reasonable accommodation, [he could] perform the 18 essential functions of [his] job.” Buckingham v. United States, 998 F.2d 735, 739-40 (9th Cir. 19 1993). If an accommodation of a plaintiff as a qualified individual with a disability is 20 required to enable that plaintiff to perform the essential functions of the job, the plaintiff 21 must provide evidence sufficient to make at least a facial showing that a reasonable 22 accommodation is possible.7 Id. at 740. 23 24 7 25 26 27 28 Under the Rehabilitation Act, a “qualified individual” is an individual with a disability “who, with or without reasonable accommodation, can perform the essential functions of [the] position.” 29 C.F.R. § 1630.2(m). “Essential functions are the ‘fundamental job duties of the employment position . . . not including the marginal functions of the position.’” Quinones v. Potter, 661 F.Supp.2d 1105, 1122 (D. Ariz. 2009) (quoting 29 C.F.R. § 1630.2(n)(1)). -9- 1 The Rehabilitation Act requires the Postal Service to “reasonably accommodate an 2 employee’s disability” unless the accommodation would impose an undue hardship on the 3 Postal Service. Aurigue v. Potter, 45 Fed.Appx. 692, 693 (9th Cir. 2002) (citing 29 U.S.C. 4 § 794; McLean, 222 F.3d at 1153); see also 42 U.S.C. § 12112(b)(5) (defining discrimination 5 as including “not making reasonable accommodations to the known physical or mental 6 limitations of an otherwise qualified individual with a disability . . . .”); 29 C.F.R. § 1630.9. 7 In determining whether the Postal Service violated its duty to provide a reasonable 8 accommodation under the Rehabilitation Act, the standards under Title I of the ADA apply. 9 29 U.S.C. § 794(d); McClean, 222 F.3d at 1153. 10 “Reasonable accommodations include ‘reassignment to a vacant position,’ as well as 11 modifications made to the work environment and schedule of the employee’s current job.” 12 Brown, 457 Fed.Appx. at 670 (citing 42 U.S.C. § 12111(9); 29 C.F.R. § 1630.2( o)(1)-(2)). 13 “A necessary component of reasonable accommodation is an interactive, open, and ongoing 14 process of dialogue between the employer and employee to ‘identify the precise limitations 15 resulting from the disability and potential reasonable accommodations that could overcome 16 those limitations.’” Id. (citations omitted); see also Livingston v. Fred Meyer Stores, Inc., 388 17 Fed.Appx. 738, 741 (9th Cir. 2010). “This interactive process requires: (1) direct 18 communication between the employer and employee to explore in good faith the possible 19 accommodations; (2) consideration of the employee’s request; and (3) offering an 20 accommodation that is reasonable and effective.” EEOC v. UPS Supply Chain Solutions, 620 21 F.3d 1103, 1110 (9th Cir. 2010) (citation and internal quotation marks omitted). 22 “Determining whether a proposed accommodation . . . is reasonable, including whether it 23 imposes an undue hardship on the employer, requires a fact-specific, individualized inquiry.” 24 Nunes v. Wal–Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999) (citation omitted). An 25 employer is not obligated, however, to provide an employee the accommodation he requests 26 or prefers, the employer need only provide some reasonable accommodation.” Id. at 1110- 27 11; see also Miranda v. Wisconsin Power & Light Co., 91 F.3d 1011, 1016 (7th Cir. 1996) 28 (“The ADA does not obligate an employer to provide a disabled employee every - 10 - 1 accommodation on his wish list.”). If the accommodation provided is reasonable, “the inquiry 2 is over.” Sharpe v. American Tel. & Tel. Co., 66 F.3d 1045, 1050 (9th Cir. 1995). 3 “[D]iscrimination laws are ‘not intended as a vehicle for general judicial review of business 4 decisions.’” Id. (quoting Douglas v. Anderson, 656 F.2d 528, 535 (9th Cir. 1981)). 5 IV. Discussion 6 Plaintiff’s Response to Defendant’s Motion for Summary Judgment does not articulate 7 any prohibited basis that Plaintiff suffered employment discrimination because of his 8 disability. (Doc. 48) Plaintiff refers to 5 C.F.R. § 353.301(d),8 which deals with the 9 restoration of partially-recovered employees to the local commuting area when they are able 10 to return to limited duty, but he does not provide any factual information or nexus to how the 11 Postal Service violated this regulation when it provided Plaintiff a reasonable 12 accommodation that met his medical restrictions on his original postal route. (Id. at 1) 13 Plaintiff raises several arguments to avoid summary judgment on his reasonable- 14 accommodation claim, such as: (1) “[t]here would be no undue hardship on the employer to 15 change the manner in which the [Plaintiff’s] route would be done,” id.; (2) that partially 16 recovered employees should be treated the same as other handicapped employees under the 17 Rehabilitation Act[,]” id.; and (3) the Postal Service’s argument that Plaintiff cannot prove 18 the elements of disability discrimination is “without merit.” Id. at 2. Plaintiff makes no 19 reference to the factual record to support these arguments. The Plaintiff’s Response is devoid 20 of any reference to the factual record of the case and thus cannot sustain his claim of 21 unlawful disability discrimination. 22 Although Plaintiff has taken issue with the statements of Lisa Day, Troy Weber, and 23 one of his own deposition answers, Plaintiff has not disputed Defendant’s Statement of Facts. 24 Accordingly, the undisputed facts demonstrate that Plaintiff was provided a reasonable 25 26 27 28 8 Section 353.301(d) requires governmental agencies to “make every effort to restore in the local commuting area, according to the circumstances in each case, an individual who has partially recovered from a compensable injury and who is able to return to limited duty.” - 11 - 1 accommodation that allowed him to work as a letter carrier, within his medical restrictions, 2 and with no loss of pay or other benefit. (Doc. 43, DSOF, ¶¶ 32, 45-46) It is undisputed that 3 “Plaintiff never had to do anything that was outside of his medical restrictions.” (DSOF, ¶ 4 45) The Postal Service is not required to provide Plaintiff the accommodation he requested 5 or preferred. See UPS Supply Chain Solutions, 620 F.3d at 1110-11. 6 Additionally, Plaintiff has not alleged any adverse employment action, other than not 7 changing his route back to an entirely driving route which contravenes the Postal Service’s 8 policy to establish more green routes. The undisputed facts demonstrate that Plaintiff’s route 9 was changed along with several other routes as part of the green route policy. When his 10 medical restrictions prevented him from walking the entire route, the Postal Service allowed 11 Plaintiff to walk the route until he reached his medical restrictions and then deliver the mail 12 by truck for the rest of his tour. Plaintiff was given a route as a letter carrier consistent with 13 his medical restrictions and he was not required to do any postal work beyond his medical 14 restrictions. 15 Plaintiff claims in his Amended Statement of Facts that the Postal Service did not 16 engage in the interactive process, but he does not provide any reference to the record to 17 support the allegation. In fact, the record reflects the Postal Service engaged in an interactive 18 process to meet the needs of his disability. Plaintiff told his immediate supervisor Duarte 19 about his new, two-hour walking restriction and Duarte allowed Plaintiff to revert to driving 20 his walking route. (DSOF, ¶ 239) Because this accommodation was outside of the Postal 21 Service’s policy to establish more green routes, station manager Lisa (Butterworth) Day 22 overruled Duarte, instructed Plaintiff he could not continue to deliver the route as a drive- 23 and-dismount route, but reasonably accommodated Plaintiff by allowing him to keep his 24 25 26 27 28 9 Plaintiff spoke to his immediate supervisor, Duarte, about the new two-hour walking limit added to his restrictions. (DSOF, ¶¶ 14, 23) Duarte told Plaintiff that he could drive Route 3278 as he had done before it was changed to a park-and-loop route, eliminating the majority of walking from the route. (DSOF, ¶ 23) This required Plaintiff to drive a right-hand-drive postal truck, instead of the van that has been assigned to him for his parkand-loop route. (Id.) - 12 - 1 familiar route, walk it as designed for two hours, and then deliver mail on an auxiliary route 2 by driving. (DSOF, ¶¶ 16, 25, 29-30) The record reflects that upon learning of Plaintiff’s 3 medical restrictions, his direct supervisor and station manager reasonably accommodated 4 Plaintiff’s medical restrictions. Plaintiff’s reasonable accommodation allowed Plaintiff to 5 work within his medical restrictions, while preserving the Postal Service’s policy of 6 designating more green routes, a legitimate business decision. 7 Because it is undisputed that Plaintiff did not have his pay reduced or lose any 8 benefits and continued to do his original job as a letter carrier within his medical restrictions 9 due to a reasonable accommodation, Plaintiff has not demonstrated he suffered an adverse 10 employment action because of his disability. Under Title I of the ADA, a plaintiff must 11 demonstrate he suffered an adverse personnel action which materially affect the terms, 12 conditions, or privileges of his employment. 42 U.S.C. § 2000e-2(a)(1). See, e.g., Burlington 13 N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (holding in a Title VII case that “a 14 plaintiff must show that a reasonable employee would have found the challenged action 15 materially adverse); Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000) (adopting the 16 definition of adverse employment action propounded in EEOC’s Compliance Manual, which 17 interprets an adverse employment action as “any adverse treatment that is based on a 18 retaliatory motive and is reasonably likely to deter the charging party or others from 19 engaging in protected activity.”). An adverse employment action does not include “a mere 20 inconvenience or an alteration of job responsibilities.” Medina v. Income Support Div., N.M., 21 413 F.3d 1131, 1136 (10th Cir. 2005) (citation omitted). Plaintiff has failed to demonstrate 22 he suffered an adverse employment action by the Postal Service. 23 Pro se Plaintiff’s Amended Statement of Facts, doc. 52, like his original Statement 24 of Facts, does not comply with Local Rule (“LRCiv”) 56.1(a) and (b) in a number of 25 significant ways: 1) it does not set forth “[e]ach material fact . . . in a separately numbered 26 paragraph” or “refer to a specific admissible portion of the record where the fact finds 27 support” in the record; 2) it mixes facts not identified in the record and argument; and 3) it 28 does not set forth “a correspondingly numbered paragraph indicating whether [Plaintiff] - 13 - 1 disputes [Defendant’s] statement of fact set forth in that paragraph and a reference to the 2 specific admissible portion of the record supporting [Plaintiff’s] position if the fact is 3 disputed.” See LRCiv 56.1(a)-(b). Moreover, it is not signed under penalty of perjury so it 4 may not be considered an affidavit of Plaintiff’s testimony. 5 Plaintiff’s Amended Statement of Facts does not identify any of the numbered 6 paragraphs of Defendant’s Statement of Facts as being in dispute. Instead, Plaintiff takes 7 issue with some of the testimonial record in the case, without contradicting the factual 8 accuracy of Defendant’s Statement of Facts. 9 V. Conclusion 10 Based on the foregoing, Defendant Patrick R. Donahoe, Postmaster General, is 11 entitled to summary judgment as Plaintiff has failed to demonstrate a genuine dispute of 12 material fact. 13 IT IS ORDERED that Defendant Patrick R. Donahoe’s Motion for Summary 14 Judgment, doc. 42, is GRANTED. The Clerk of Court is kindly directed to enter judgment 15 in favor of Defendant and terminate this action. 16 Dated this 15th day of November, 2013. 17 18 19 20 21 22 23 24 25 26 27 28 - 14 -

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