HEATH v. DONAHOE
Filing
97
ORDER ON MOTIONS FOR SUMMARY JUDGMENT denying 31 Motion for Summary Judgment; granting in part and denying in part 35 Motion for Summary Judgment By JUDGE JON D. LEVY. (nwd)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
STEVEN HEATH,
Plaintiff,
v.
MEGAN BRENNAN,
Postmaster General,
Defendant.
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) Case No. 2:13-cv-00386-JDL
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Steven Heath, a former employee of the United States Postal Service,
has brought a suit for disability discrimination, alleging that the Postal Service
subjected him to a hostile work environment, failed to accommodate his disabilities,
and breached a settlement agreement. ECF No. 1. The Postal Service has moved for
summary judgment on each of Heath’s claims. ECF No. 35. Heath has filed a crossmotion on his claim for failure to accommodate.
ECF No. 31.1
After careful
consideration, I grant the Postal Service’s motion in part and deny it in part, and
deny Heath’s cross-motion.
The Postal Service has also filed a counterclaim against Heath, alleging breach of contract and unjust
enrichment. ECF No. 9 at 10. Neither party has moved for summary judgment on this claim.
1
I. FACTUAL BACKGROUND
Viewed in the light most favorable to Heath as the non-movant,2 the summary
judgment record reveals the following:
A.
Heath’s Employment Background
Steven Heath was employed by the Postal Service from 1982 until 2006 as a
letter carrier based out of the Postal Service’s Auburn office. ECF No. 36 at 1, 19;
ECF No. 55 at 1. In 1993, Heath developed tendinitis in both elbows and had to begin
wearing arm braces. ECF No. 32 at 2; ECF No. 57 at 1. Heath’s tendinitis prevented
him from fully performing his duties as a postal carrier, which necessitated
modifications to his duties. ECF No. 39-1 at 23.
Heath’s attempts to obtain accommodations for his tendinitis were met with
some resistance. At one point, Heath’s union representative approached a manager
about establishing accommodations for Heath and was told, “I’ll give him
accommodations. I’ll kick his ass.” ECF No. 34-1 at 29. Heath eventually filed three
complaints with the Equal Employment Opportunity Commission that resulted in
three consecutive settlement agreements with the Postal Service – one in March
1999, another in June 1999, and the third in June 2000. ECF No. 41 at 2. Two of
these agreements included provisions requiring that Heath’s supervisors be educated
about his medical restrictions. See ECF No. 41-1 at 2; ECF No. 41-3 at 3.
Heath’s need for physical accommodations elicited some negative comments
from his co-workers and from management. ECF No. 34-1 at 3. Supervisors criticized
Heath has moved for summary judgment on one of the three claims at issue. See ECF No. 31. On
his cross-motion, I also weigh the facts in the Postal Service’s favor, below.
2
2
Heath’s productivity, and this criticism occasionally led to confrontations. See ECF
No. 38-3 at 2-3. Co-workers “gave [Heath] a hard time,” see ECF No. 39-1 at 137, and
publically spoke about the status of his disability, see ECF No. 58-4 at 2. In one
incident in either 2003 or 2005, a co-worker saw Heath wearing wrist braces and
commented that Heath must have needed the braces because he had been
masturbating. ECF No. 39-1 at 26; ECF No. 38-3 at 4.
Over time, Heath developed mental health issues. In 1998, he was diagnosed
by Dr. C.D.M. Clemetson with a major depressive episode, which Dr. Clemetson noted
“seems [to have been] brought on and aggravated by the problems he has been having
at work, following his arm injury.” ECF No. 33-1 at 3. Shortly after this diagnosis,
Dr. Clemetson wrote a note to Kathy Dyer, the occupational health nurse
administrator for the Northern New England District of the Postal Service, detailing
Heath’s diagnosis. Id. at 5. The letter further noted, “[f]rom the psychiatric point of
view, it is very important that [Heath] not be harassed by his seniors at work.” Id.
As part of Heath’s resulting workers’ compensation claim for emotional
disabilities, a dispute arose between Dr. Clemetson and another medical examiner as
to whether Heath’s mental health issues were attributable to his work environment.
See id. at 31. A psychiatrist retained to resolve this dispute, Dr. David Bourne,
diagnosed Heath in 2005 with major depressive disorder and an anxiety disorder, and
found that the issues were “significantly related to . . . work-related events.” Id. at
33.
Bourne also wrote in his report that “[Heath] should avoid stressful
3
confrontations, and the employer should be thoughtful in how it deals with Mr.
Heath.” Id. at 34.
Dr. Bourne also completed a Department of Labor work capacity evaluation
form, which asked him to “please describe the duties or work environment(s) which
are suitable for your patient.” Id. at 36. Dr. Bourne wrote, “work with a supportive,
understanding supervisor at a comfortable pace. Avoid conflicts with co-workers,
avoid derogatory remarks and time-sensitive demands.” Id. Following Dr. Bourne’s
diagnosis, Heath’s workers’ compensation claim for psychological disabilities was
approved in March of 2005. ECF No. 32 at 9; ECF No. 57 at 8.
One of Kathy Dyer’s duties was to work with employees and management to
clarify employees’ medical restrictions. ECF No. 34-2 at 5-6. When Heath received
an M-1 or CA-17 form from a medical visit related to his workers’ compensation claim,
Dyer would forward the paperwork to Heath’s supervisors. Id. at 8. Dyer also spoke
with Michael Foster, the Postmaster at the Auburn office, about Heath’s
psychological needs. Id. at 10. In 2003, she advised Foster “to be thoughtful in your
communication, to be sensitive to his condition.” Id.
In June of 2005, Heath had a confrontation with Tom Robinson, one of his
supervisors. See ECF No. 77 at 8-11. Robinson approached Heath to remind him not
to discuss work while in the break room. Id. at 8-9. Heath responded that Robinson
should be avoiding unnecessary confrontations with him, and Robinson did not
appear to understand what Heath meant. Id. at 10-11. Robinson’s response caused
Heath to become concerned that reports, such as that from Dr. Bourne, were not being
4
brought to his supervisors’ attention, and he believed that his supervisors didn’t know
how to handle his psychological issues. Id. at 12. Heath then went to see Michael
Foster to tell Foster it did not appear that Robinson “understood what it means to be
an understanding supervisor.” Id.
B.
July 12, 2005 Modified Job Offer
Around this same time, Michael Foster prepared a modified job offer for Heath.
ECF No. 37 at 5. Modified job offers are created as a result of discussions between
an employee and his supervisors, and alter the duties that would typically be required
of an employee if the employee did not have medical restrictions. Id. at 3. Foster
spoke with Heath before drafting the modified job offer. Id. at 5. He also incorporated
the recommendations of an M-1 practitioner’s report from Dr. Frederick van Mourik,
which recommended “4 hrs/day, 5 days/wk. Early in, early out” due to Heath’s
“PTSD/Anxiety disorder,” and a CA-17 duty status report form from Dr. van Mourik
that recommended these same limited hours “due to psychological issues.” Id. at 45.
The modified job offer listed Heath’s “modified rehab duties.” ECF No. 38-2 at
2. These included physical restrictions such as no lifting over 10 pounds, and also
incorporated the modified hours schedule recommended by Dr. van Mourik. Id.
Heath also asked Foster to further modify his hours so that he could come in at an
earlier hour than other postal carriers in order to avoid confrontations with them.
ECF No. 39-1 at 42. This request was adopted. Id. at 42-43. Heath accepted the
offer, ECF No. 38-2 at 2, and the modified duties and schedule remained in effect
during the remainder of Heath’s employment at the Postal Service, ECF No. 37 at 5.
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However, after accepting the offer, Heath remained worried that his
supervisors would not adequately understand his job restrictions and the need for
him to avoid stressful confrontations at work. ECF No. 34-1 at 10-11. Accordingly,
he sent a three-page letter to Foster dated July 28, 2005, which listed incidents Heath
had had with his co-workers and supervisors over the prior 12 years. See ECF No.
38-3. The letter asked how Heath’s previous settlement agreements could be better
implemented, and directed Foster’s attention to two of Heath’s prior medical reports.
Id. at 4. Subsequently, Heath, Foster, and Thurston spoke briefly about the letter,
see ECF No. 34-1 at 10-11, but no further modifications were made to Heath’s job
duties.
C.
The Events of September 9, 2006
The events central to this case occurred on September 9, 2006.3
Heath’s
account of the day, which I credit for the purposes of summary judgment, is as follows.
On the morning of September 9, Heath needed the key to another postal station
in order to run an errand there. ECF No. 39-1 at 51. Michael Thurston, a supervisor,
instructed Heath to go into the break room and obtain a key from David Fleener. Id.
at 54. Instead, Heath asked a co-worker, John Vierra, to speak with Fleener for him
because Heath was anxious about encountering certain other employees in the break
room. Id. at 55; ECF No. 34-1 at 18-19. Vierra ran into Thurston on his way to the
break room, and the two had a conversation. ECF No. 39-1 at 56. Thurston then
The record is inconsistent as to whether the day in question was September 6 or September 9. See
ECF No. 39-1 at 49; ECF No. 42 at 2. Plaintiff acknowledges this confusion and suggests that
September 9 is the correct date. ECF No. 52 at 12. As the exact date does not appear material to the
parties’ dispute, I treat the day in question as September 9 for the sake of consistency.
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gestured for Heath to walk to where Thurston was standing. Id. Heath repeatedly
shook his head no – again, because he was reluctant to move somewhere in the post
office where he might encounter mail carriers with whom he had difficulties in the
past. Id. According to Heath, Thurston then “puff[ed] himself up” and said, “Come
here now.” Id. at 61. Thurston “look[ed] at [him] mean.” Id. at 63. Eventually,
Heath joined Thurston, and told Thurston, “How come you’re calling me down here,
Mike? You know I’ve got [an] issue.” Id. at 65. Heath then offered to go get the
paperwork evidencing his work restrictions. Id. Thurston initially said, “Go get
them,” but, as Heath moved away, he “hollered,” “Never mind. Go home.” Id.
After leaving as instructed, Heath never returned to work at the Postal
Service. ECF No. 36 at 17; ECF No. 55 at 14. He did not attempt to contact any of
his Auburn supervisors about the incident or about returning to work. ECF No. 36
at 18; ECF No. 55 at 14. Rather, Heath called the Postal Service’s human resources
office in Portland and stated that he would not be contacting anyone from the Auburn
office and that no one from the Auburn office should attempt to contact him. ECF
No. 36 at 19; ECF No. 55 at 15.
D.
The Administrative Process
On September 30, 2006, Heath submitted his pre-complaint counseling forms
related to the September 9 incident. ECF No. 41-7 at 2. These forms limited Heath’s
allegations to Thurston’s actions on September 9, alleging that Thurston had
discriminated against him because of his disability and breached the prior EEO
settlements. Id. at 2-3. After the conclusion of his pre-complaint counseling, Heath
pursued his claim through the Merit Systems Protection Board, which ultimately
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decided that it lacked jurisdiction. See ECF No. 41-11 at 10. Heath then turned to
the EEOC, where he filed a complaint on June 22, 2009. ECF No. 43 at 1. His EEOC
complaint was broader in scope than his initial, pre-complaint counseling forms,
raising 13 separate counts including hostile work environment, failure to
accommodate, breach of settlement agreements, retaliation, and intentional
discrimination. Id. at 4.
The EEOC issued a preliminary decision on April 22, 2013, ECF No. 41-14 at
21, finding in favor of Heath on his failure to accommodate claim, and in favor of the
Postal Service on Heath’s other claims, id. at 20. Heath filed his complaint in this
court prior to a damages hearing at the EEOC, thus bringing the administrative
process to an end. See ECF No. 1 at 9.
II. SUMMARY JUDGMENT STANDARD
A.
Federal Rule of Civil Procedure 56
Summary judgment is appropriate only if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see Ahmed v. Johnson, 752 F.3d 490, 495 (1st
Cir. 2014). In making that determination, a court must view the evidence in the light
most favorable to the non-moving party. Johnson v. Univ. of Puerto Rico, 714 F.3d
48, 52 (1st Cir. 2013).
B.
Local Rule 56
Local Rule 56 defines the evidence that the court may consider in deciding
whether genuine issues of material fact exist for purposes of summary judgment.
First, the moving party must file a statement of material facts that it claims are not
8
in dispute, with each fact presented in a numbered paragraph and supported by a
specific citation to the record. See Loc. R. 56(b). Second, the non-moving party must
submit its own short and concise statement of material facts in which it admits,
denies, or qualifies the facts alleged by the moving party, making sure to reference
each numbered paragraph of the moving party’s statement and to support each denial
or qualification with a specific citation to the record. Loc. R. 56(c). The non-moving
party may also include its own additional statement of facts that it contends are not
in dispute. Id. Third, the moving party must then submit a reply statement of
material facts in which it admits, denies, or qualifies the non-moving party’s
additional facts, if any. Loc. R. 56(d).
The court may disregard any statement of fact that is not supported by a
specific citation to the record, and the court has “no independent duty to search or
consider any part of the record not specifically referenced in the parties’ separate
statement of facts.” Loc. R. 56(f). Properly supported facts that are contained in a
statement of material or additional facts are deemed admitted unless properly
controverted. Id.
III. LEGAL ANALYSIS
A.
Hostile Work Environment
Count I of Heath’s complaint, captioned “First Claim of Wrongful Discharge,”
alleges that the Postal Service “created an environment that was extremely
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threatening and humiliating.” ECF No. 1 at 10-11. I treat this claim as a hostile
work environment claim under the Rehabilitation Act.4
In order to make out a hostile work environment claim, Heath must show that:
(1) he was disabled; (2) he was subjected to uninvited harassment; (3) this
harassment was because of his disability; (4) the harassment was so severe or
pervasive that it altered the conditions of his work and created an abusive work
environment; and (5) the harassment was both objectively and subjectively offensive.
McDonough v. Donahoe, 673 F.3d 41, 46 (1st Cir. 2012). The Postal Service concedes
that Heath was disabled, but argues that he cannot satisfy any of the remaining four
elements. ECF No. 35 at 12-13. I find that the fourth prong of the analysis decides
the issue, and accordingly focus on whether the harassment alleged by Heath was
sufficiently severe or pervasive.
Determining whether harassment is “sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working
environment” depends on all the relevant circumstances. Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21-23 (1993). This includes “the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
The exact contours of Heath’s first claim are somewhat unclear. Heath generally treats the claim
as a hostile work environment claim, see ECF No. 52 at 24, but also mentions a “wrongful discharge,”
see id. at 17. Because the claim has been treated as one alleging a hostile work environment in the
parties’ briefs, at oral argument, and before the EEOC, I do the same. If Heath intended to allege that
the Postal Service is liable for firing Heath on September 9 on some basis other than discrimination
based on a hostile work environment, he cites no authority in support of an alternative theory of
liability. See ECF No. 52 at 16-18.
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performance.” Id. at 23. The function of this analysis is to “separate the wheat from
the chaff” – to distinguish actual harassment that gives rise to a cognizable claim
from incidents that, while unfortunate, remain within the ambit of ordinary
workplace unpleasantries. Alvarado v. Donahoe, 687 F.3d 453, 461 (1st Cir. 2012).
Accordingly, simple teasing, offhand comments, and brusque behavior on the part of
supervisors do not, as a matter of law, create a hostile work environment. ColónFontánez v. Municipality of San Juan, 660 F.3d 17, 44 (1st Cir. 2011). Neither does
a single incident of harassment unless it is “extremely serious” or “egregious.” Id.;
Noviello v. City of Boston, 398 F.3d 76, 84 (1st Cir. 2005).
Heath’s hostile work environment claim is based explicitly on the events of
September 9, 2006.5 A reasonable jury could not, however, find that the September
9 occurrence was severe or pervasive harassment that created an abusive work
environment. The September 9 encounter, as Heath has presented it, is a single
incident where his supervisor yelled at him, gestured angrily, and sent him home.
The incident may have been disrespectful toward Heath and unpleasant for him to
experience, but it simply does not constitute the “extremely serious” or “egregious”
The typical hostile work environment claim turns on “an aggregation of hostile acts extending over
a period of time.” Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 18 (1st Cir. 2002). However, Heath’s
complaint alleges that “on September 9, 2006, the USPS supervisor created an environment that was
extremely threatening and humiliating,” and that “Mr. Thurston’s actions constituted severe and
hostile behavior[.]” ECF No. 1 at 10-11. Thus, the Postal Service treats Heath’s hostile work
environment claim as limited to the events of September 9, 2006. ECF No. 35 at 11. In response,
Heath references several statements of material fact as examples of the harassment to which he was
subjected. ECF No. 52 at 22. Each of these statements relates only to the events of September 9,
2006. ECF No. 32 at 23-26. In fact, this section of Heath’s opposition brief does not describe an
incidence of harassment occurring other than on September 9. See ECF No. 52 at 15-26. Accordingly,
I treat Heath’s claim as a claim that the actions of Michael Thurston on September 9, 2006, created a
hostile work environment.
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conduct that is required to sustain a hostile work environment claim on a single
incident. See Ponte v. Steelcase, Inc., 741 F.3d 310, 320-321 (1st Cir. 2014) (noting
that isolated instances of threatened rape or unwanted touching have been
sufficiently “egregious” to support a hostile work environment claim). Accordingly,
Heath’s hostile work environment claim based on the events of September 9 cannot
withstand summary judgment.
B.
Failure to Accommodate
Next, Heath alleges that the Postal Service failed to accommodate his mental
disability. ECF No. 1 at 11. To prevail on such a claim, a plaintiff must demonstrate
that her employer failed to provide a reasonable accommodation despite knowledge
of the plaintiff’s disability. Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 89 (1st Cir.
2012). The plaintiff employee generally must show that she made a direct and specific
request for the accommodation, unless the employer otherwise knew one was needed.
Id.; Reed v. LePage Bakeries, 244 F.3d 254, 261 (1st Cir. 2001). “The obligation is on
the employee to provide sufficient information to put the employer on notice of the
need for accommodation.” Jones, 696 F.3d at 89.
The parties have filed cross-motions for summary judgment on this claim. ECF
No. 31 at 5; ECF No. 35 at 2. Cross-motions do not alter the summary judgment
framework. See Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003). “[T]he
court must mull each motion separately, drawing inferences against each movant in
turn.” Id. (citation omitted); see also, e.g., Wightman v. Springfield Terminal Ry.
Co., 100 F.3d 228, 230 (1st Cir. 1996) (“Cross motions for summary judgment neither
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alter the basic Rule 56 standard, nor warrant the grant of summary judgment per
se. Cross motions simply require [the court] to determine whether either of the
parties deserves judgment as a matter of law on facts that are not disputed.”)
(citations omitted).
Heath alleges that the Postal Service failed to accommodate him by not
“prevent[ing] his supervisors from acting rudely and entering into unnecessary,
stressful confrontations with Mr. Heath.” ECF No. 31 at 5. He argues that after he
realized the Postal Service’s July 12, 2005 job offer would be inadequate to deal with
his
mental
disabilities,
the
Postal
Service
ignored
further
requests
for
accommodation on his part. See ECF No. 78 at 3-4. The Postal Service responds that
Heath did not make a sufficiently direct and specific request for an accommodation
after signing the July 12 offer. ECF No. 35 at 18. They also argue that Thurston’s
behavior on September 9 did not represent a failure to provide any of the
accommodations that Heath had requested. Id. at 21.
1.
The Scope of Heath’s Claim
I first address the question of the scope of Heath’s failure to accommodate
claim.
The Postal Service contends that Heath only exhausted the available
administrative remedies as to the events of September 9, 2006, and that he cannot,
therefore, obtain relief for any earlier events. Id. at 6-7.
As a general rule, the scope of a civil complaint that follows an administrative
process is “limited by the charge filed with the EEOC and the investigation which can
reasonably be expected to grow out of that charge.” Thornton v. United Parcel Service,
13
Inc., 587 F.3d 27, 31 (1st Cir. 2009) (citing Powers v. Grinnell Corp., 915 F.2d 34, 38
(1st Cir. 1990)).
Moreover, a federal employee proceeding on a disability
discrimination complaint must initiate pre-complaint counseling within 45 days of
“the matter alleged to be discriminatory[.]” 29 C.F.R. § 1614.105(a)(1).
Here, Heath initiated pre-complaint counseling on September 30, 2006, see
ECF No. 41-7 at 2, and is thus restricted to obtaining relief for a failure to
accommodate that occurred on or after August 16. See Tobin v. Liberty Mut. Ins. Co.,
553 F.3d 121, 130-31 (1st Cir. 2009) (noting the inapplicability of the continuing
violation doctrine to claims of failure to accommodate).
Because the events of
September 9 were the only actions that Heath challenged during this period, see ECF
No. 32, Heath’s claim is limited to his allegation that the Postal Service failed to
accommodate his disability on that day. Events prior to September 9, 2006, however,
are potentially relevant to the Postal Service’s knowledge of Heath’s disability and
need for an accommodation on September 9.
2.
The Postal Service’s Motion for Summary Judgment
I next address whether Heath adequately requested that the Postal Service
accommodate his disability by having his supervisors avoid stressful or unnecessary
confrontations with him. Heath asserts that this request came in a letter that he
sent to Michael Foster on July 28, 2005. ECF No. 1 at 11; ECF No. 31 at 10-11. The
letter recounted a history of perceived “unfair actions” on the part of the Postal
Service, and asked, “[w]hat would you suggest we do to implement the Mar 4, 1999
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EEO settlement[?]” ECF No. 38-3 at 2, 4. The letter also asked the Postal Service to
consider two different medical reports. Id. at 4.
On its face, the letter makes no explicit request for an accommodation. Even
if a reasonable jury might infer that Heath intended the letter to make concrete
requests, and not merely to initiate a dialogue, his requests were hidden in the text
of a lengthy letter which in turn referenced other documents. A reasonable jury could
not conclude that the letter’s indirect and equivocal manner of requesting that Heath
not be confronted by supervisors satisfied the requirement of a specific and direct
request for an accommodation. Indeed, even Heath appears to concede the same. See
ECF No. 52 at 27-32 (arguing not that Heath made a specific and direct request, but
that none was required).
However, a specific and direct request is not always necessary to give rise to
an employer’s duty to accommodate. Jones, 696 F.3d at 89; see also Reed, 244 F.3d at
261 (the “reasonable accommodation requirement usually does not apply unless
‘triggered by a request’”) (emphasis added). The request requirement exists because
an employer will generally be unaware of an employee’s disability and corresponding
need for accommodation absent some communication from the employee. See Kiman
v. N.H. Dep’t of Corrs., 451 F.3d 274, 283 (1st Cir. 2006). But if an employer already
knows or should know about an employee’s disability and attendant needs, the reason
for requiring notice diminishes. Accordingly, if an employer already knows of an
employee’s need for a specific accommodation, see Jones, 696 F.3d at 89, if the
employee’s disability prevents her from requesting an accommodation, or if “the
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employee’s need for an accommodation [is] obvious,” an employer may still have a
duty to accommodate, Reed, 244 F.3d at 261 n.7.
Considered in the light most favorable to Heath, this is an instance in which a
jury might reasonably conclude that the Postal Service knew of Heath’s need for an
accommodation, or that Heath’s need for accommodation was obvious. The Postal
Service had received a report from Dr. Bourne which stated in part: “[Heath] should
avoid stressful confrontations, and the employer should be thoughtful in how it deals
with Mr. Heath . . . [u]nnecessary confrontation should be avoided.” ECF No. 33-1 at
34. The report also included a recommendation that Heath “work with a supportive,
understanding supervisor.” Id. at 36. Heath referenced Dr. Bourne’s report in his
July 28, 2005 letter addressed to Foster, which concluded, “What can we do to assure
that . . . [Dr. Bourne’s] concerns for me are followed?” ECF No. 38-3 at 4. According
to Heath, he thereafter met with Foster and Robinson to discuss the letter on multiple
occasions. ECF No. 34-1 at 35.
Heath also spoke with Foster in June of 2005 about his concerns that Tom
Robinson did not adequately understand his psychological issues and how to
approach him appropriately. See ECF No. 77 at 12. Dr. Clemetson had previously
alerted the Postal Service that “[f]rom the psychiatric point of view, it is very
important that Heath not be harassed by his seniors at work,” ECF No. 33-1 at 5,
while Dr. Mitchell Pulver had written that Heath “continues to have panic attacks ...
especially when he interacts with his supervisor,” ECF No. 33-1 at 59.
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Finally, Kathy Dyer had told Foster to be sensitive when communicating with
Heath because of his psychological issues, see ECF No. 34-2 at 10, and also relayed to
Foster Dr. Bourne’s specific recommendation, based on Heath’s “persistent
depression [and] anxiety disorder [e]specially over workplace issues and conflicts,”
see ECF No. 33-1 at 36, that Heath’s supervisors avoid stressful confrontations with
him, ECF No. 34-2 at 12, 14.
Heath’s disabling conditions (PTSD, depression, and anxiety) and his
corresponding need for an accommodation (that his supervisors avoid confronting
him) were either known to the Postal Service or were obvious. Thus, Heath’s failure
to make a direct and specific request on the matter does not doom his claim.
In addition, there is a genuine dispute of fact as to whether Heath was denied
the accommodation on September 9. Heath’s account of September 9 suggests that
when he asked a co-worker to obtain a key for him rather than getting it himself, as
instructed, Thurston “hollered” at him in front of several co-workers, ordered Heath
to come to him, gestured angrily, and told him to go home after Heath stated that he
wanted to show him documents evidencing his workplace restrictions and
accommodations.
See supra.
Based upon this evidence, a jury could find that
Thurston confronted Heath in an unnecessary and stressful manner that failed to
accommodate Heath’s emotional disability. Thus, I conclude there are genuine issues
of material fact as to whether the Postal Service failed to provide Heath with a
reasonable accommodation. The Postal Service’s motion for summary judgment on
Count II of Heath’s complaint is denied.
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3.
Heath’s Motion for Summary Judgment
Crediting Thurston’s version of events casts his actions on September 9 in a
far different light than that portrayed by Heath. Thurston avers that he approached
Heath because Heath had violated Postal Service policy by asking a co-worker to sign
out the key rather than doing it personally. ECF No. 42 at 3. He does not admit
displaying any signs of anger or hostility, and notes that both he and Heath had to
raise their voices to overcome the noise of mail sorting machines. Id. at 2. Thurston
also denies that he ordered Heath to go home, claiming that Heath chose to leave on
his own. Id. at 3. Based on this account, a jury could reasonably find that Thurston’s
interaction with Heath was necessary and non-confrontational, and therefore, did not
violate Heath’s need for an accommodation. Accordingly, Heath’s cross-motion for
summary judgment is denied.
C.
Breach of Settlement Agreement
Heath also asserts that the Postal Service breached one of its settlement
agreements with him.6 ECF No. 1 at 12. As an initial matter, I address the question
that arose at oral argument as to whether the court has subject matter jurisdiction
over Heath’s claim.
Subject matter jurisdiction over claims against the federal government for
breach of contract typically lies in the Court of Federal Claims, and not the district
courts. See, e.g., Panosh v. Shinseki, 2012 WL 4589803, at *4-5 (D. Me. Aug. 13,
Heath’s complaint alleges the breach of two settlement agreements, one dated March 26, 1999, and
the other dated June 1, 2000. ECF No. 1 at 3, 12. At oral argument, however, Heath conceded that
because the 1999 agreement relates only to Heath’s physical, and not mental, disabilities, his claim
properly involves just the 2000 agreement.
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2012). However, because the Postal Service is an entity separate from the United
States, and because Congress has provided the district courts with original
jurisdiction over matters involving the Postal Service, “[t]he prevailing view” is that
there is “jurisdiction in the district courts over contract actions in which the Postal
Service is a party regardless of the amount involved.” Spodek v. United States Postal
Serv., 35 F. Supp. 2d 160, 163 (D. Mass. 1999); see also Benderson Dev. Co., Inc. v.
United States Postal Serv., 998 F.2d 959, 962 (Fed. Cir. 1993) (“[W]hen the Postal
Service exercises its authority to contract, it does so with the expectation that
disputes arising from such contracts may be resolved, without regard to the amount
in question, in the United States district courts.”) Accordingly, I conclude that subject
matter jurisdiction is present.
The settlement agreement in question (the “2000 agreement”) was reached on
June 1, 2000, after Heath filed a complaint with the EEOC. ECF No. 41-3 at 4; ECF
No. 41 at 2. The relevant provision states:
Mr. Heath will seek an updated assessment of his physical and
mental condition . . . [u]pon receipt of an updated [medical]
assessment, Mr. Heath’s representative will prepare a summary
of Mr. Heath’s medical restrictions for review by USPS medical
personnel. When the summary is agreed upon, the Postmaster
and Mr. Heath will meet with Mr. Heath’s supervisor to review
these restrictions. This review will be repeated upon the
assignment of any new supervisor.
ECF No. 41-3 at 3.
Heath claims that the Postal Service breached the 2000 agreement when
Michael Thurston and Michael Foster admitted that they had no knowledge of any
job restrictions related to Heath’s mental disabilities. ECF No. 1 at 12. According
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to Heath, Thurston and Foster’s purported ignorance is evidence that his supervisors
had not properly reviewed his medical restrictions, as the 2000 agreement required.
Id.
The Postal Service makes several arguments in support of summary judgment
on this claim, alleging that the 2000 agreement was superseded by subsequent
agreements, ECF No. 35 at 24, that it did not apply to Thurston, id. at 26, and that
Heath cannot establish that he satisfied the conditions precedent required to obligate
the Postal Service to review his restrictions with his supervisors, id. at 26-27. I find
this final argument persuasive.
The creation and provision of a summary of Heath’s medical restrictions by
“his representative” was a condition precedent to the Postal Service’s obligation to
review those restrictions with Heath and his supervisors. See ECF No. 41-3 at 3; see
also Restatement (Second) of Contracts § 224 (1981) (“A condition is an event . . .
which must occur . . . before performance under a contract becomes due.”). In order
to establish that this provision was binding against the Postal Service, therefore,
Heath must show that the condition was satisfied. See Irving v. Town of Clinton,
1998 ME 112, ¶ 4, 711 A.2d 141 (“An elementary rule of contract law is that the
nonoccurrence of a condition discharges the parties from their duties under the
contract.”). Yet Heath does not allege that a summary of his medical restrictions was
ever prepared or provided to the Postal Service. See ECF No. 1; ECF No. 52. Heath’s
statement of material facts is silent on this matter, see ECF No. 55, and my review of
the record reveals no evidence on this point. If Heath cannot establish that he
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obtained a summary of medical restrictions for his supervisors to review, the Postal
Service cannot be liable for failing to have its supervisors review those restrictions. I
conclude that Heath has not created a triable issue of fact on this issue, and that the
Postal Service’s motion for summary judgment is properly granted.
IV. CONCLUSION
For the foregoing reasons, the Postal Service’s motion for summary judgment
(ECF No. 35) is GRANTED as to Counts I and III of Heath’s complaint, and DENIED
as to Count II of Heath’s complaint. Heath’s cross-motion for summary judgment
(ECF No. 31) is DENIED.
SO ORDERED.
Dated: May 14, 2015
/s/ Jon D. Levy_____________
U.S. District Judge
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