Razote v. Potter

Filing 45

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 6/27/2011:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

REGINO E. RAZOTE,
Plaintiff,

Case No. 09 C 4943

v.
Hon. Harry D. Leinenweber
JOHN E. POTTER, Postmaster
General,
Defendant.

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Postmaster General John E.
Potter’s (hereinafter, the “Postal Service”) Motion for Summary
Judgment on

Plaintiff

Regino Razote’s

(hereinafter, “Razote”)

disability discrimination, race and gender discrimination, and
retaliation claims.

For the reasons stated herein, the motion is

granted.
I.

BACKGROUND

The following facts are taken from the parties’ Local Rule
56.1 statements, deposition testimony, and exhibits.

Razote is a

Filipino man who has worked as a letter carrier for the Niles
branch of the U.S. Postal Service since 1994. He continues to work
for the Postal Service as a letter carrier in a “limited-duty”
position.
the

Razote brought the instant four-count complaint against

Postmaster

General

alleging

disability

discrimination

in

violation of the Rehabilitation Act (Count I), gender and race
discrimination in violation of Title VII of the Civil Rights Act
(Counts II and III), and retaliation in violation of Title VII
(Count IV).

Razote’s disability discrimination claim is based on

his assertion that the Postal Service failed to provide him with a
reasonable accommodation, forced him to work outside his medical
restrictions, and forced him to take a medical leave of absence.
Razote’s gender and race discrimination claims are based on his
allegation that similarly situated disabled female employees and
those of other races were given light-duty positions while he was
denied

one.

Razote’s

retaliation

claim

alleges

that

his

supervisors denied him a light-duty position and forced him to work
outside his job restrictions in retaliation for his having made
Equal Employment Opportunity (“EEO”) complaints.
In March 2005, Razote injured his back while lifting a tub of
mail and suffered a sciatic nerve injury.

Razote remained off of

work until September 2005. When he returned to work, his physician
placed certain limitations on Razote, including that he could lift
no more than five pounds, stand no more than one hour at a time,
and walk no more than twenty minutes at a time.

Razote also was

limited in his ability to climb, bend, stoop, and twist.

His

condition has not improved since that time, and those limitations
remain in place.

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Razote’s

physical

limitations

are

inconsistent

with

his

position as a letter carrier because that work requires continuous
lifting of ten to thirty-five pounds and intermittent standing,
walking, bending and twisting, for six to eight hours a day.
Because Razote could no longer perform the regular duties of a
letter carrier, the Department of Labor’s Office of Worker’s
Compensation Programs (the “OWCP”) directed the Postal Service to
provide Razote with a permanent job that met his restrictions if it
was possible to do so.
Subsequently, Razote was given a “limited-duty” assignment.
The Postal Service assigns workers to such positions when an
employee is injured on the job.

Such assignments allow employees

to continue working in a full-time job that is close to their prior
employment, while accommodating physical restrictions.

Before

accepting a limited-duty assignment, an employee can review and
comment on the terms of the assignment to confirm that the required
tasks are within the employee’s job limitations.

After discussing

the terms of the assignment with a supervisor, the employee and
supervisor must sign a form indicating that the offer of limitedduty was accepted or declined.
The Postal Service also has a “light-duty” assignment, which
is available to workers suffering from a serious injury or illness
that temporarily renders the employee unable to perform his or her
previous job, regardless of whether the injury occurred on the job.
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A light-duty assignment must be requested in writing.

It does not

guarantee

hours,

the

availability

of

work

or

particular

and

assignment to these positions is determined in accordance with the
collective bargaining agreements between the Postal Service and its
employees.
Razote

was

September 2005.

first

offered

a

limited-duty

assignment

in

He accepted it and renewed such offers in January

2006, November 2006, August 2008, December 2009, and August 2010.
On each occasion, Razote was able to review the terms specified in
the offer of limited duty and discuss his concerns with his
supervisor, Susan Dalke (“Dalke”). In each instance, Razote signed
the form and accepted the offer.

Although Razote acknowledges

signing these forms, he contends that he is asked to perform tasks
that go beyond those listed and exceed his physical capabilities.
Razote testified that he signed the forms even though they did not
reflect all of his job duties because he loves his job and wants to
keep it.

However, he testified that since December 2009, he has

not been asked to perform any tasks not included on the forms.
On December 10, 2009, Razote contends he had a conversation
with Dalke in which he told her that his limited-duty job was
beyond his physical capabilities.

Razote contends that he asked

Dalke if there were any light-duty jobs available at the Post
Office.

He maintains that she responded by saying, “There are no

light-duty jobs available at the post office at all.
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We can send

you to rehab at Wal-mart or JC Penney.”

(Apparently, according to

Razote’s testimony, these companies have contracts with the Postal
Service to provide employment to injured postal workers.)
Razote contends that he suffered a recurrence of his injury on
February 12, 2010 and February 20, 2010, because his supervisors
forced him to perform tasks that went beyond his limitations,
including picking up heavy packages and pushing and pulling heavy
equipment.

Razote took a medical leave of absence and used sick

time until July 31, 2010, when he was forced to return to work
because he ran out of sick time.

The Postal Service denies that

Razote’s injury was caused by his supervisors asking him to perform
work that exceeded his limited-duty assignment.
II.

LEGAL STANDARD

Summary judgment is appropriate where the record shows that
there is no genuine dispute as to an issue of material fact.
R. CIV. P. 56(a).

FED .

A fact is material if it could affect the outcome

of the suit under the governing law, and a dispute is genuine where
the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
In ruling on summary judgment, the Court does not weigh the
evidence or determine the truth of the matter, but determines
whether a genuine issue of material fact exists that warrants
trial.

Id. at 249.

In addressing a motion for summary judgment,
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the court must review the record in the light most favorable to the
non-moving party and draw all reasonable inferences in that party’s
favor.

Vanasco v. National-Louis Univ., 137 F.3d 962, 965 (7th

Cir. 1998).

However, a genuine issue of fact is not shown by “some

metaphysical doubt as to the material facts.”

Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The moving party bears the burden of establishing the basis
for its motion, together with evidence demonstrating the absence of
any genuine issue of material fact.
U.S. 317, 323 (1986).

Celotex Corp. v. Catrett, 477

Once the moving party has met this burden,

the nonmoving party may not rest on mere allegations, but must
present specific facts showing that a genuine issue exists for
trial.

Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160,

163 (7th Cir. 1984).

To support their positions that a genuine

issue of material fact does or does not exist, the parties may cite
to materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations,
stipulations, admissions, and interrogatory answers, or show that
the materials in the record do or do not establish a genuine
dispute.

FED. R. CIV. P. 56(c).

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III.
A.

ANALYSIS

Count I: Disability Discrimination

Razote brings a claim for disability discrimination under the
Rehabilitation Act, 29 U.S.C. § 794(a).

The Rehabilitation Act

prohibits discrimination in the same manner as the Americans with
Disabilities Act and uses the same standards, but applies to
employees

of

federally

funded

programs.

Coleman

v.

Potter,

09 C 3824, 2010 WL 4134337, at *6 (N.D. Ill. Oct. 19, 2010).

The

parties agree that Razote has no direct evidence of discrimination,
so he is proceeding under the McDonnell Douglas burden-shifting
method.

This requires Razote to establish a prima facie case of

discrimination, meaning a showing that:

(1) he is disabled within

the meaning of the Rehabilitation Act; (2) he is qualified to
perform

the

essential

functions

of

his

job

with

or

without

accommodations; and (3) he suffered an adverse employment action
because of his disability.

Dvorak v. Mostardi Platt Assoc., Inc.,

289 F.3d 479, 483 (7th Cir. 2002).

If the plaintiff can establish

each of these elements, the burden shifts to the employer to offer
a legitimate, non-discriminatory reason for the employment action.
Id. at 485 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973)).

If the employer does so, the plaintiff must prove by

a preponderance of the evidence that the employer’s proffered
reason was a pretext for discrimination.

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Dvorak, 289 F.3d at 485.

Initially, the Court notes that Razote’s theory as to what
constituted disability discrimination in this case is not entirely
clear.

In his Second Amended Complaint, Razote alleges that the

Postal

Service

failed

to

provide

him

with

a

reasonable

accommodation on December 10, 2009 (presumably referring to his
conversation with Dalke in which he claims she told him no lightduty

jobs

were

available),

forced

him

to

work

outside

his

restrictions, and forced him to take a medical leave of absence in
violation of the Rehabilitation Act following the recurrence of his
injury.

However, in his response brief, Razote claims he has been

continually denied a light-duty job from the date of his injury to
the present.
Regardless, the Postal Service challenges Razote’s ability to
establish that he was otherwise qualified to perform the job in
question and that he suffered an adverse employment action.

The

Court will address each issue in turn.
1.

Qualified Individual

As to Razote’s qualifications, the Postal Service notes that
by his own admission, Razote cannot perform the work of a letter
carrier, with or without reasonable accommodation. See Pl.’s Resp.
to Def.’s L.R. 56.1 Statement of Material Facts, ¶ 6.

But while

Razote acknowledges that he cannot do the regular work of a letter
carrier because it involves too much walking and heavy lifting, he
argues that he can perform the essential functions of the limited- 8 -

duty job assigned to him since 2005.

He contends the limited-duty

job is the relevant comparator for determining whether he is
otherwise qualified.
The Seventh Circuit has not directly addressed this issue in
light of the Postal Service’s practice of assigning limited-duty
jobs to employees injured on the job but has provided some guidance
on the issue. For example, in Basith v. Cook County, 241 F.3d 919,
929–30 (7th Cir. 2001), the Court noted that merely because an
employer may be able to restructure a job so that a disabled
employee can fill the position does not mean that the essential
functions of the position have changed.

But in Hendricks-Robinson

v. Excel Corp., 154 F.3d 685, 697 (7th Cir. 1998), the Court noted
that

while

the

ADA

does

not

compel

an

employer

to

convert

temporary, light-duty assignments into permanent ones, if the
light-duty positions offered to permanently disabled employees were
in fact permanent jobs, assignment to them would be treated as a
permanent reassignment for the purposes of an ADA accommodation.
District courts have divided on the issue of whether to
consider limited-duty assignments given to injured postal workers
to be official positions.

For example, in Luckiewicz v. Potter,

670 F.Supp.2d 400, 408–09 (E.D. Pa. 2009), the court found that
because the Rehabilitation Act did not require the Postal Service
to create a new position for the plaintiff when he was injured, and
because he was never assigned to a vacant, funded position that
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would replace his letter carrier job, his letter carrier job was
the appropriate benchmark for determining whether the plaintiff was
otherwise qualified under the Act.

Id.; see Alenski v. Potter,

No. CV 03 2179, 2005 WL 1309043, at *16 (E.D.N.Y. May 18, 2005)
(holding

that

merely

because

plaintiff

had

held

limited-duty

assignment for three years did not mean the essential duties of the
letter carrier position had changed).
Other courts, including those in this district, have ruled
otherwise.

See McMillan v. Potter, 06 C 2121, 2010 WL 1791268, at

*4 (N.D. Ill. May 5, 2010) (finding a question of fact as to
whether limited-duty position was temporary for the purposes of
deciding

for

which

position

plaintiff

had

to

be

“otherwise

qualified”); Winston v. Potter, 01 C 2349, 2004 WL 3119834, at *5
(N.D. Ill. Dec. 1, 2004) (“Once an employer places an injured
employee on limited duty, the employee’s qualifications must be
measured in relation to the limited duty position occupied, not the
position formerly held.”).
Here, Razote first accepted a limited-duty assignment in
September 2005, and renewed similar offers on five subsequent
occasions.

Apparently, Razote was occasionally sent from Niles to

other branches of the Post Office to work under other supervisors.
The Postal Service classifies limited-duty jobs as temporary and
Razote likewise considered this a temporary job.

Indeed, the crux

of his Complaint is that he was not given a permanent job within
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his physical restrictions. This weighs against finding that Razote
was a qualified individual under the Rehabilitation Act.

However,

Razote was repeatedly assigned to work in a limited-duty capacity
for several years.

Although longevity alone is not enough to show

the arrangement was permanent, it is significant that the Postal
Service knew Razote was permanently disabled and continued to
assign him to limited-duty work.

Williams v. Eastside Lumberyard

and Supply Co., 190 F.Supp.2d 1104, 1117–18 (S.D. Ill. 2001).
Ultimately, however, the Court need not resolve this issue because
Razote cannot establish that he has suffered an adverse employment
action.
2.

Adverse Action

An adverse action typically involves:

(1) a decrease in pay

or benefits, or a termination of employment; (2) a lateral transfer
that affects the plaintiff’s career prospects; and (3) cases in
which the plaintiff is not transferred, but the conditions in which
he works are changed in a way that is humiliating, degrading,
unsafe, or unhealthful.

Nichols v. Southern Illinois University-

Edwardsville, 510 F.3d 772, 780 (7th Cir. 2007).
Preliminarily, it is important to clarify the meaning of
light-duty work as those terms are used by the parties.

In the

Postal Service regulations, light-duty work refers to a formal job
assignment governed by the collective bargaining agreement between

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the Postal Service and its unions. Light-duty work is provided, if
available, to an employee temporarily unable to perform his or her
regular duties and must be requested in writing.

Razote has not

brought forth any evidence that he ever bid for a light-duty
assignment as required under the Postal Service regulations.
Therefore, the failure of the Postal Service to assign Razote to
such a position cannot be considered an adverse action. See Nelson
v. Potter, 05 C 3670, 2007 WL 1052490, at *8 (N.D. Ill. April 2,
2007) (noting that duty to reasonably accommodate an employee under
the Rehabilitation Act does not require an employer to violate a
collective bargaining agreement or its own legitimate transfer
policies).
However,

Razote

apparently

did

not

want

temporary, light-duty jobs, but a permanent one.

one

of

these

In his response

brief, Razote contends, “the issue in this case is that Defendant
impermissibly

denied

Plaintiff

a

permanent

violation of Post Office regulations.”
to Def.’s Mot. for Summ. J., at 8.
this

appears

to

be

a

light-duty

job

in

Pl.’s Mem. of Law in Opp’n

Although not explicitly stated,

reference

to

the

Federal

Employees

Compensation Act (“FECA”), 5 U.S.C. § 8101, under which the Postal
Service has the duty to provide accommodations to employees with
job-related injuries.
that

the

position

The OWCP administers FECA, and requested

Postal

Service

within

his

accommodate

physical

Razote

limitations.

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with

a

See

permanent
5

C.F.R.

§

353.101(c)

(providing

that

an

employee

who

is

physically

disqualified from his position is entitled to be placed in another
position for which he is qualified, while, to the extent possible,
keeping the same status and pay.)
Razote’s argument, at least in part, seems to be that the
Postal Service failed to comply with FECA, and thus violated the
Rehabilitation Act. However, Razote fails to provide any authority
for this proposition.

Further, the Court notes that the OWCP

accepted Razote’s limited-duty assignments, and such decisions are
typically

not

exclusive

remedy

employees.

reviewable
for

in

this

workplace

Court

injuries

because
suffered

FECA
by

is

the

federal

5 U.S.C. § 8116(c); see Meester v. Runyon, 149 F.3d

855, 857 (8th Cir. 1998) (holding that FECA claimant was not
entitled to judicial review of the Department of Labor’s decision
that a proposed position was an appropriate accommodation).

More

to the point, Razote is suing under the Rehabilitation Act, not
FECA, and he has failed to develop a coherent theory as to how the
Postal Service violated the provisions of the Rehabilitation Act,
which do not require an employer to reassign an employee to a
permanent light–duty position.

Gratzl v. Office of Chief Judges,

601 F.3d 674, 680 (7th Cir. 2010).
Razote also contends that he suffered an adverse action
because he was forced to work beyond his physical capabilities in
his limited-duty assignment, resulting in a recurrence of his
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injury on February 12 and February 20, 2010, which ultimately
forced him to take a medical leave of absence when he used up his
available sick time.

The problem for Razote is that prior to the

recurrence of his injury, he did not challenge the conditions of
his limited-duty assignment through the procedures outlined by the
OWCP. Razote admits that he had an opportunity to review the terms
specified

in each

of

the

limited-duty

offers

and

to

discuss

concerns with Dalke. In each instance, Razote signed the forms and
accepted the assignment without noting any problems in the space
provided on the forms.

Although Razote argues that he was asked to

perform duties that went beyond those listed, Razote testified that
since December 2009, he has not been assigned any tasks that were
not included on the forms.

It is difficult for the Court to see

how Razote can claim to have suffered an adverse employment action
through a workplace injury when he was performing tasks that he
agreed he was capable of performing.

This is particularly true

because, in arguing that he is otherwise qualified under the
Rehabilitation Act, Razote contends he is able to perform the
essential functions of his limited-duty job.

Defendant’s Motion

for Summary Judgment on Count I is granted.
B.

Counts II and III: Gender and Race Discrimination

Razote attempts to make a prima facie showing of race and
gender discrimination under Title VII using the McDonnell Douglas
burden-shifting test, which requires him to show:
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(1) he is a

member of a protected class; (2) his job performance met his
employer’s legitimate expectations; (3) he suffered an adverse
employment action; and (4) another similarly situated individual
who was not in the protected class was treated more favorably.
Burks v. Wis. Dep’t. of Transp., 464 F.3d 744, 750–51 (7th Cir.
2006).
In order for an employee to be similarly situated, the court
must consider all relevant factors, which vary depending on the
context of the case.
(7th Cir. 2009).

McGowan v. Deere & Co., 581 F.3d 575, 579

The Court should take a “flexible, common-sense

approach” to determine whether there are sufficient common factors
between

determine

whether

discrimination was involved in an employment decision.

Id. at

579–80.

the

plaintiff

and

a

co-worker

to

To determine whether two employees are comparable, the

court looks at factors including:

(1) whether they held the same

job description; (2) were subject the same standards; (3) were
subordinate

to

the

same

supervisor;

and

(4)

experience, education and other qualifications.

had

comparable

Ajayi v. Aramark

Business Services, Inc., 336 F.3d 520, 532 (7th Cir. 2003).
Razote alleges that he can state a prima facie case for race
and gender discrimination because non-Asian and female employees
were given light-duty jobs following on-the-job injuries.

The

first problem with Razote’s claim is that he has not shown that he

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suffered an adverse employment action.

Even if he could do so, his

claim fails because he fails to provide enough information about
his colleagues’ disabilities, restrictions, or job requirements to
show that they were similarly situated.

Matthews v. United States

Steel Corp., No. 2:08-CV-37-PRC, 2010 WL 2076814, at *7 (N.D. Ind.
May 24, 2010).
1.

Racial Discrimination

The first comparator Razote names in his racial discrimination
claim is Sam Mercado (“Mercado”). It is undisputed that Mercado is
a letter carrier who received a formal reassignment to the job of
distribution clerk following a dog bite injury to his arm in 1988.
Mercado

received

that

reassignment

through

the

union

bidding

process in place at the time. Razote asserts that he “believes Mr.
Mercado was given a light-duty job because he was not Asian.”

He

alleges discrimination because he was not reassigned following his
injury like Mercado.
participated
reassignment.

in

a

However, Razote offers no evidence that he
union

bidding

process

to

obtain

a

job

Additionally, Razote acknowledges that Mercado was

not physically limited in the same manner as Razote because Mercado
was able to bend, stand, and twist his torso.

As such, Mercado is

not an appropriate comparator.
Razote’s other comparators for his racial discrimination claim
are women he worked with in March 2007 after he was temporarily
transferred to the Kedzie-Grace station.
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Razote alleges that Nela

Ward

(“Ward”),

an

African-American

woman,

and

Filana

Kelly

(“Kelly”), a Hispanic woman, were letter carriers who were injured
on the job and who were given light-duty jobs.

But Razote offers

no evidence of how these women were injured or the nature of their
limitations,

and

acknowledged

that

these

women

had

physical

capabilities that he did not, including bending and twisting.
Additionally, these women were not supervised by Dalke, but by a
manager named Karen Washington.

For these reasons, Ward and Kelly

also are not appropriate comparators.

Defendant’s Motion for

Summary Judgment on Count II is granted.
2. Gender Discrimination
In alleging gender discrimination, Razote points to Ward,
Kelly, and three additional women, named only as Robyn, Melanie,
and Leah.

Razote met the latter three women in 2007 during a

temporary assignment to the Ravenswood station.

All of Razote’s

female comparators had different supervisors than he.
Notwithstanding that, he provides no information about their
injuries or physical limitations.

For example, Robyn operated a

cage, which meant handing out and taking keys and calling carriers
for the priority and express mail.

Razote “believes” Robyn was

injured on the job and obtained a light-duty assignment, but does
not know how she was injured or what her restrictions are.
Similarly, Razote contends that Melanie was a light-duty carrier
“which meant she could not deliver mail and could only work in the
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station.”
J., at 13.

Pl.’s Mem. of Law in Opp’n to Def.’s Motion for Summ.
But Razote offers no other information as to her job

duties or limitations.

As for Leah, Razote says he believes she

was originally a mail sorter or clerk before being assigned a job
answering phones at Ravenswood.

So she did not hold the same

position as he did, and she is an inappropriate comparator.

More

importantly, Razote cannot rely upon speculation about these women
to survive summary judgment.

See Matthews, 2010 WL 2076814, at *7

(“While personal knowledge may form the basis of evidence offered
in opposition to summary judgment and may include reasonable
inferences supported by facts in the record, such inferences may
not

be

based

intuitions.”).

on

flights

of

Defendant’s

fancy,
Motion

speculation,

hunches,

or

for

Judgment

on

Summary

Count III is granted.
C.

Count IV: Retaliation

Razote brought his retaliation complaint under Title VII,
which prohibits an employer from retaliating against an employee
who has opposed an unlawful employment practice.

Hilt-Dyson v.

City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002) (citing 42
U.S.C. § 2000e-3(a)).

The Court notes that Razote did not bring a

retaliation claim under the Rehabilitation Act, but the test for
establishing retaliation is the same under both laws.

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Porch v.

Potter, No. 06 C 6322, 2008 WL 4216264, at *4 (N.D. Ill. Sept. 8,
2008).
Razote apparently wishes to proceed under the direct approach,
which requires that the employee show that:

(1) he engaged in

statutorily protected expression; (2) he suffered an adverse action
by the employer; and (3) there was a causal link between the
protected expression and the adverse action.

McClendon v. Ind.

Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997).

Here, Razote

argues that he engaged in statutorily protected activity when he
filed EEO complaints in May 2007 and January 2010. In retaliation,
Razote alleges, Defendant failed to provide him with a light-duty
job on December 10, 2009 (the date of his meeting with Dalke),
assigned him tasks outside his restrictions, and forced him to take
a medical leave of absence.
complaints,

but,

as

Here, Razote can show that he made EEO

discussed

above,

he

cannot

show

that

he

suffered an adverse employment action.
Further, Razote has not established a causal link between
Dalke’s alleged refusal of his request for a permanent light-duty
job in December 2009 and a complaint filed more than two years
earlier because too much time passed between those events to raise
a causal inference.

See Childs v. Earle M. Jorgenson Co., No. 00 C

5853, 2001 WL 1607565, at *6 (N.D. Ill. Dec. 17, 2001) (noting that
even a span of three months can be insufficient to establish causal
link).

Razote attempts to get around this by arguing that he was
- 19 -

denied a light-duty job every day since his injury in violation of
Postal Service regulations.

But this argument fails because, as

explained above, Razote is not suing under the Postal Service
regulations, but under the Rehabilitation Act.
Razote

raises

no

other

evidence

that

Other than timing,

discriminatory

animus

motivated the Postal Service’s decision not to provide him a
permanent light-duty job.

Defendant’s Motion for Summary Judgment

on Count IV is granted.
IV.

CONCLUSION

For the reasons stated herein, Defendant’s Motion for Summary
Judgment is granted in its entirety.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE: 6/27/2011

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