Dones v. Donahoe
Filing
23
MEMORANDUM OPINION (c/m to Plaintiff 12/12/13 sat). Signed by Chief Judge Deborah K. Chasanow on 12/12/13. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
CONNELL DONES
:
v.
:
Civil Action No. DKC 12-3369
:
PATRICK R. DONAHOE
:
MEMORANDUM OPINION
Presently pending and ready for review in this employment
discrimination case are two motions.
Plaintiff Connell Dones
filed a motion to proceed in forma pauperis to be able to seek
reconsideration
counsel.
of
this
(ECF No. 9).
court’s
denial
of
appointment
of
Second, Defendant Patrick R. Donahoe,
Postmaster General of the United States, filed a renewed motion
to dismiss or, alternatively, for summary judgment.
19).
(ECF No.
The issues have been briefed, and the court now rules, no
hearing being deemed necessary.
following
reasons,
Local Rule 105.6.
Plaintiff’s
motion
will
be
For the
granted.
Defendant’s motion will be granted in part and denied in part.
I.
Background
Unless
construed
otherwise
in
the
nonmoving party.
noted,
light
most
the
facts
favorable
outlined
to
here
are
Plaintiff,
the
Plaintiff is a male who was sixty (60) years old during the
relevant time period.
He was an employee of the United States
Postal Service (“USPS”) from October 1993 to October 5, 2010.1
This
case
centers
around
Defendant’s
refusal
to
accommodate
Plaintiff’s disability by providing a swivel chair which led to
Plaintiff’s retirement from USPS.
Plaintiff was a mail processor at USPS’s Southern Maryland
Processing and Distribution Center in Capitol Heights, Maryland.
The mail processor job involves working in front of two banks of
sorting
bins
Plaintiff
positioned
suffered
an
reaggravated in 2006.
at
a
right
on-the-job
angle
injury
in
(ECF No. 1 ¶ 7).
injury was Cervicalgia, or neck pain.
to
each
2000,
other.
which
was
Plaintiff’s specific
At some point after the
2000 injury, Plaintiff applied for, and was granted, workers’
compensation pursuant to the Federal Employees’ Compensation Act
(“FECA”),
which
Compensation
is
administered
Programs
(“OWCP”)
by
the
within
Office
DOL.
of
OWCP
Workers’
terminated
Plaintiff’s claim for medical and wage loss benefits effective
December
recent
10,
2007
medical
after
records
it
determined
established
1
that
that
his
Plaintiff’s
Cervicalgia
most
had
Plaintiff, proceeding pro se, does not identify his sex or
age in his complaint or opposition to Defendant’s motion for
summary judgment.
Plaintiff’s characteristics are drawn from
the Claim of Discrimination form he filed with the National
Equal Employment Opportunity Investigative Services Office
(“NEEOISO”), a precursor to this litigation. (ECF No. 19-9).
2
ceased
or
was
no
longer
injury-related.
(ECF
No.
22-10).
Plaintiff apparently attempted to file a recurrence claim on
March 31, 2009, but a May 29, 2009 letter from DOL indicates
that it was not in receipt of this claim.
(ECF No. 22-11).
On
October 8, 2008, Defendant offered – and Plaintiff accepted – a
modified
assignment
which
stated
that
his
assignments
would
require no lifting of more than twenty-five (25) pounds, no
twisting of the neck, and bending and stooping for an average of
four to six hours per day.
Plaintiff’s
(ECF No. 22-8).
immediate
supervisors
Thibodeaux and Mr. Bryan Owens.
were
Mr.
Tyrone
According to Plaintiff, they
insisted that he work while sitting on a stool with a rest bar.
(ECF No. 22-2 ¶ 7, affidavit of Connell Dones).
stool
did
not
ameliorate
neck
twisting,
as
A stationary
Plaintiff’s
work
required him to deposit mail in bins set at ninety-degree angles
from each other.
Plaintiff
leave
to
use
(See ECF No. 22-9).
has
a
repeatedly
swivel
universally denied.
2010 request.
requested
chair.
The
from
his
requests
management
were
almost
This case stems from Plaintiff’s September
(ECF No. 1 ¶ 14).
Plaintiff had previously
requested the use of a swivel chair in August and October 2009,
the latter request resulting in an EEO complaint.
(Id. ¶ 15).
At the time of the September 2010 request for accommodation,
Plaintiff
had
two
pending
EEO
3
complaints
against
USPS
management, including Messers. Thibodeaux and Owens.
(ECF No.
22-1, at 3).
On June 1, 2010, Dr. Thu Nguyen completed United States
Department of Labor, Office of Workers’ Compensation Programs
(“OWCP”) Form CA-17, “Duty Status Report.”
Plaintiff’s
pain.
diagnosis
due
to
injury
as
Dr. Nguyen listed
Cervicalgia,
or
neck
The report states that Plaintiff’s work should require no
twisting of the neck and that he needs a swivel chair.
(ECF No.
22-3).
Mr. Thibodeaux submitted an affidavit in this case.
He
states that on one or two occasions Plaintiff requested use of a
swivel chair.
Mr. Thibodeaux “informed Plaintiff that he must
request that his physician write a prescription for the swivel
chair, and submit the prescription to his case worker at the
Department of Labor for approval.”
that
he
Plaintiff’s
never
received
physician
or
(ECF No. 19-14).
He states
any
a
medical
documentation
from
DOL
approval.
According
Mr.
to
Thibodeaux, all other postal employees with swivel chairs who
worked in Plaintiff’s area had the use of those chairs approved
by DOL.
According
to
Plaintiff,
Mr.
Thibodeaux
consistently
referred Plaintiff to DOL, stating its approval was necessary.
(ECF No. 22-2 ¶¶ 12-13).
Plaintiff argues, however, that DOL
was not a viable option as it had already terminated his claim
4
effective December 10, 2007.
Plaintiff contends that, in any
event, DOL is not the sole authority for granting disability
accommodation
requests
within
USPS.
Plaintiff
alleges
that
other employees received accommodations without being required
to submit their requests to DOL.
Plaintiff was unable to learn
the full names of these individuals because of privacy issues.
(ECF No. 22-1 ¶ 18).
Plaintiff also produced prior physician treatment records
indicating
the
same
prescription,
swivel chair at work.
namely
the
Plaintiff
of
a
These doctor’s notes are dated February
12, 2008, March 18, 2008, and May 28, 2009.
22-6).
necessity
alleges
that
these
(ECF Nos. 22-4 to
prescriptions
were
substantially similar to the prescriptions submitted by other
postal
employees
Plaintiff
attaches
employees.
who
the
were
granted
doctor’s
(ECF No. 22-7).
notes
use
of
given
swivel
to
three
chairs.
postal
By contrast, Plaintiff’s requests
for a swivel chair were consistently denied with one exception.
In
2007
request.
or
2008,
Ms.
Margaret
Boston
approved
Plaintiff’s
She did not forward the request to DOL, saying it was
not necessary because it was a request for an accommodation.
Mr. Thibodeaux subsequently removed the chair, insisting that
Plaintiff could not use the chair.
(ECF No. 22-1 ¶ 10).
It is
unclear what Ms. Boston’s position was with USPS or vis-à-vis
Mr. Thibodeaux.
5
Plaintiff offered to purchase a swivel chair with his own
funds but management would not accede.
(ECF No. 22-1 ¶ 16).
Plaintiff feared that without the swivel chair, he would either
reinjure
duties
himself
or
adequately
terminated.
that
such
he
would
that
he
be
unable
would
be
to
perform
his
disciplined
or
Plaintiff asserts that as a result of being forced
to work in this unsafe environment, he had no choice but to
retire on October 5, 2010.
II.
(ECF No. 1 ¶ 18).
Procedural History
Plaintiff filed a claim of discrimination with USPS’s Equal
Employment
Opportunity
Office
(“EEO”)
on
October
15,
2010.
Plaintiff claimed discrimination based on race, color, gender,
age,
retaliation,
and
disability
when:
(1)
he
was
denied
a
swivel chair in September 2010; (2) he was given a letter of
warning after asking for leave pursuant to the Family Medical
Leave Act (“FMLA”); and (3) when he was forced to retire.
No. 19-13).
(ECF
USPS issued a final agency decision on October 12,
2012 rejecting his claims.
(Id.).
Plaintiff avers that he
received this decision on October 17, 2012.
(ECF No. 12, at 3).
On November 16, 2012, Plaintiff filed a pro se complaint in this
court.
(ECF
refusal
to
No.
1).
provide
Plaintiff
him
a
contends
swivel
chair
that
Defendant’s
and
subsequent
constructive termination of his employment constitute employment
discrimination on the basis of sex, age, disability and prior
6
protected activity in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, et seq.; the Age Discrimination
in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.; and the
Rehabilitation Act, 29 U.S.C. § 701, et seq.2
On November 19,
2012, Plaintiff moved for appointment of counsel pursuant to 28
U.S.C. § 1915(e).
That motion was denied on March 22, 2013
because Plaintiff had not moved to proceed in forma pauperis.
(ECF No. 8).
On March 29, 2013, Plaintiff filed a motion to
reconsider that decision.
(ECF No. 9).
On April 10, 2013, Defendant filed a motion to dismiss or,
in the alternative, summary judgment.
(ECF No. 10).
Defendant
argued for dismissal based on Plaintiff’s failure to exhaust his
claims
administratively.
As
Plaintiff
pointed
out
in
his
opposition, Defendant was referring to a set of claims different
than those in the present litigation.
(ECF No. 12).
Before the
court had a chance to rule, Defendant filed a renewed motion to
dismiss for failure to state a claim or, alternatively, for
summary judgment on June 14, 2013, addressing the merits of
Plaintiff’s claims.
(ECF No. 19).
In accordance with Roseboro
v. Garrison, 528 F.2d 309 (4th Cir. 1975), the clerk of court
mailed a letter to Plaintiff on June 20, 2013, notifying him
2
Plaintiff has elected not to pursue his claim of
discrimination based on denial of FMLA leave.
Plaintiff also
has not listed race and color as bases for discrimination in his
complaint.
7
that
a
dispositive
motion
had
been
filed
and
that
he
was
entitled to file opposition material or risk entry of judgment
against
him.
(ECF
No.
motion on July 5, 2013.
20).
Plaintiff
(ECF No. 22).
opposed
Defendant’s
Defendant did not file a
reply.
III. Motion to Reconsider Appointment of Counsel
Plaintiff’s request for appointment of counsel pursuant to
28 U.S.C. § 1915(e) was denied because he failed to move to
proceed in forma pauperis (“IFP”), the mechanism for appointment
of counsel in civil cases.
(ECF No. 8).
Plaintiff subsequently
filed a motion to reconsider that decision, stating that he
desired to file an IFP petition, but his then-spouse would not
provide
her
financial
information.
Because
he
felt
this
omission made the form ineligible for consideration, he did not
submit it.
In his motion for reconsideration, he represents
that he has since divorced and requests leave to file the IFP
petition for reconsideration of appointment of counsel.
(ECF
No. 9).
Plaintiff’s motion will be granted and he will be permitted
to file an IFP petition which will be considered as part of a
renewed request for appointment of counsel pursuant to 28 U.S.C.
§ 1915(e).
8
IV.
Defendant’s Motion: Standard of Review
Defendant styles its motions as one to dismiss, or in the
alternative, for summary judgment.
matters
outside
the
pleadings,
Because the parties rely on
the
court
will
construe
the
motion as one for summary judgment.
A motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the moving
party
is
entitled
to
judgment
as
a
matter
of
law.
See
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);
Anderson
v.
Liberty
Lobby,
Inc.,
477
U.S.
(1986).
The moving party bears the burden of showing that there
is no genuine dispute as to any material fact.
242,
250
However, no
genuine dispute of material fact exists if the nonmoving party
fails to make a sufficient showing on an essential element of
his or her case as to which he or she would have the burden of
proof.
Celotex, 477 U.S. at 322–23.
Therefore, on those issues
on which the nonmoving party has the burden of proof, it is his
or her responsibility to confront the summary judgment motion
with an affidavit or other similar evidence showing that there
is a genuine dispute for trial.
Summary judgment is appropriate under Federal Rule of Civil
Procedure Rule 56(a) when there is no genuine dispute as to any
material
fact,
and
the
moving
party
is
plainly
judgment in its favor as a matter of law.
9
In
entitled
to
Anderson v.
Liberty
Lobby,
Inc.,
the
Supreme
Court
explained
that,
in
considering a motion for summary judgment, the “judge’s function
is not himself to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for
trial.”
477 U.S. at 249 (1986).
A dispute about a material
fact is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Id. at 248.
Thus, “the judge must ask himself not whether he thinks the
evidence unmistakably favors one side or the other but whether a
fair-minded
jury
could
return
a
party] on the evidence presented.”
verdict
for
the
[nonmoving
Id. at 252.
In undertaking this inquiry, a court must view the facts
and the reasonable inferences drawn therefrom “in the light most
favorable to the party opposing the motion.”
Matsushita Elec.
Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting
United
States
v.
Diebold,
Inc.,
369
U.S.
654,
655
(1962)); see also E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d
397, 405 (4th Cir. 2005).
The mere existence of a “scintilla” of
evidence
the
in
support
of
non-moving
party's
case
is
sufficient to preclude an order granting summary judgment.
not
See
Anderson, 477 U.S. at 252.
A “party cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.”
Shin v.
Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).
10
Indeed,
this
court
has
an
affirmative
obligation
to
prevent
factually unsupported claims and defenses from going to trial.
See
Drewitt
v.
Pratt,
999
F.2d
774,
(4th
778–79
Cir.
1993)
(quoting Felty v. Graves–Humpreys Co., 818 F.2d 1126, 1128 (4th
Cir. 1987)).
V.
Analysis
A.
Sex and Age Discrimination
Plaintiff has alleged unlawful employment discrimination on
the basis of sex and age.
A plaintiff may establish a claim for
intentional discrimination using two methods.
He may either
demonstrate “through direct or circumstantial evidence” that his
sex
or
age
“motivated
the
employer’s
adverse
employment
decision,” Hill v. Lockheed Martin Logistics Mgmt., Inc., 354
F.3d
277,
284
(4th
Cir.
2004),
or
he
may
“proceed
under
a
‘pretext’ framework” - commonly referred to as the McDonnell
Douglas approach - “under which the employee, after establishing
a
prima
facie
case
of
discrimination,
demonstrates
that
the
employer’s proffered permissible reason for taking an adverse
employment action is actually pretext for discrimination,” id.
at 285.
Plaintiff has presented no direct evidence that his adverse
employment action was based on his sex or age and does not rely
on this method in his opposition brief.
Absent direct evidence,
Plaintiff must prove his case circumstantially using the pretext
11
framework
established
in
McDonnell
Douglas.
Under
this
framework, Plaintiff must first demonstrate a prima facie case
of disparate treatment, which requires Plaintiff to show that:
(1) he is a member of a protected class; (2) he was performing
at a level that met his employer’s legitimate expectations at
the time of the adverse employment action; (3) he suffered an
adverse
employment
action;
and
(4)
his
employer
treated
similarly situated employees outside his protected class more
favorably.
See Coleman v. Md. Court of Appeals, 626 F.3d 187,
190 (4th Cir. 2010) (Title VII), aff’d on other grounds, 132
S.Ct. 1327 (2012); Hill, 354 F.3d at 285 (ADEA).
Defendant does
not dispute that the first two prongs are satisfied.
Plaintiff’s
evidence
claim
sufficient
employment
action.
discriminatory
conditions,
act
or
fails
to
because
show
An
that
benefits
that
adverse
he
has
not
suffered
employment
‘adversely
of
he
the
proffered
an
action
affect[s]
plaintiff's
the
adverse
is
“a
terms,
employment.’”
Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir.
2007) (quoting James v. Booz-Allen & Hamilton, Inc., 368 F.3d
371, 375 (4th Cir. 2004)).
Where, as here, an employee is not
discharged, such actions typically take the form of a decrease
in
compensation,
promotion.
demotion,
or
loss
See James, 368 F.3d at 376.
12
of
an
opportunity
for
Plaintiff
resulted
in
contends
work
that
the
conditions
constructively discharged.
denial
so
of
a
intolerable
swivel
that
chair
he
was
A constructive discharge is a form
of an adverse employment action.
Boone v. Goldin, 178 F.3d 253,
255-56 (4th Cir. 1999), abrogated on other grounds by Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).
“In
this circuit, the standard for constructive discharge requires a
plaintiff
to
deliberate
quit.”
show
effort
both
by
intolerable
the
employer
working
to
force
conditions
the
and
employee
a
to
Johnson v. Shalala, 991 F.2d 126, 131 (4th Cir. 1993).
“Intolerability”
is
not
established
by
showing merely that a reasonable person,
confronted with the same choices as the
employee, would have viewed resignation as
the wisest or best decision, or even that
the employee subjectively felt compelled to
resign; presumably every resignation occurs
because the employee believes that it is in
his
best
interest
to
resign.
Rather
“[i]ntolerability . . . is assessed by the
objective standard of whether a ‘reasonable
person’ in the employee’s position would
have felt compelled to resign,” Bristow [v.
Daily Press, Inc.], 770 F.2d [1251] at 1255
[(4th Cir. 1985)] (emphasis added) — that is,
whether he would have had no choice but to
resign.
Blistein v. St. John’s Coll., 74 F.3d 1459, 1468 (4th Cir. 1996),
overruled on other grounds by Oubre v. Entergy Operations, Inc.,
522 U.S. 422 (1998) (emphasis in original).
Deliberateness can be shown “by actual evidence of intent
by
the
employer
to
drive
the
13
employee
from
the
job,
or
circumstantial evidence of such intent, including a series of
actions that single out a plaintiff for differential treatment.
Johnson, 991 F.2d at 131 (citing Johnson v. Bunny Bread Co., 646
F.2d 1250, 1256 (8th Cir. 1981) (stating that the “fact that
employees
were
treated
identically
rebuts
any
inference”
of
constructive discharge)).
Plaintiff has not provided sufficient evidence that he was
subjected
to
objectively
intolerable
working
conditions.
Plaintiff was given a modified duty assignment; the denial of a
further modification to use a swivel chair does not constitute
an intolerable working condition that left Plaintiff with no
choice but to resign.
See Williams v. Giant Food Inc., 370 F.3d
423, 434 (4th Cir. 2004) (finding that the plaintiff was not
constructively discharged where she alleged that her supervisors
yelled at her, told her she was a poor manager, gave her poor
evaluations, chastised her in front of customers, and required
her
to
work
plaintiff’s
with
an
allegations
injured
were
back
true,
because,
these
even
actions
if
the
were
not
objectively intolerable).3
Furthermore,
even
if
Plaintiff
suffered
an
adverse
employment action, he has failed to produce evidence necessary
3
Because Plaintiff has failed to demonstrate objectively
intolerable working conditions, it is not necessary to consider
whether Defendant’s actions were taken with an intent to drive
Plaintiff to resign.
14
to satisfy the final prong of the prima facie case.
Plaintiff
does provide doctor’s notes of postal employees who he alleges
were given swivel chairs without having to go through DOL.
No. 12-7).
(ECF
However, Plaintiff does not provide any evidence as
to how these employees were similarly situated.
“The similarity
between comparators . . . must be clearly established in order
to be meaningful.”
Lightner v. City of Wilmington, 545 F.3d
260, 265 (4th Cir. 2008).
as
to
sex
or
age
of
Plaintiff has provided no information
these
other
postal
employees,
their
supervisors, their job duties, or their physical condition that
resulted
in
them
being
allowed
to
use
a
swivel
chair.
Consequently, Plaintiff has failed to establish a prima facie
case of sex or age discrimination.
B.
Disability Discrimination
Giving Plaintiff’s pleadings a liberal reading, he claims
two
violations
of
the
Rehabilitation
discharge, and (2) failure to accommodate.
Act:
(1)
wrongful
The prima facie case
for wrongful discharge is identical to that for Title VII.
Rhoads
v.
FDIC,
257
F.3d
373,
387
n.11
(4th
Cir.
See
2001).
Plaintiff fails to make a prima facie case on wrongful discharge
for the same reasons as discussed supra in the context of his
age and sex discrimination claims.
To establish a prima facie case for failure to accommodate,
Plaintiff must show: “(1) that he was an individual who had a
15
disability
within
the
meaning
[employer]
had
notice
of
reasonable
accommodation
of
his
he
the
statute;
disability;
could
(2)
(3)
perform
that
that
the
the
with
essential
functions of the position . . . ; and (4) that the [employer]
refused to make such accommodations.”
Wilson v. Dollar Gen.
Corp., 717 F.3d 337, 345 (4th Cir. 2013) (quoting Rhoads, 257
F.3d at 387 n.11) (alteration in original).
“Implicit in the
fourth element is the ADA requirement that the employer and
employee
engage
reasonable
in
an
interactive
accommodation.”
process
Haneke
v.
to
identify
Mid–Atlantic
a
Capital
Mgmt., 131 F.App’x 399, 400 (4th Cir. 2005) (citing 29 C.F.R. §
1630.2(o)(3)).
Defendant in its motion does not dispute that Plaintiff had
a disability and that USPS was on notice of that disability.
Furthermore,
implement
no
party
Plaintiff’s
Plaintiff’s
satisfied
accommodate
turns
functions
of
mail
on
disputes
that
Defendant
accommodation.
the
prima
whether
processor
he
with
facie
could
a
refused
Therefore,
case
for
perform
reasonable
whether
failure
the
to
to
essential
accommodation,
i.e., a swivel chair.
Plaintiff bears the burden of establishing his ability to
perform the essential functions of his job with a reasonable
accommodation.
209,
213
(4th
Tyndall v. Nat’l Educ. Centers, Inc., 31 F.3d
Cir.
1994).
“Reasonable
16
accommodations”
are
“[m]odifications or adjustments to the work environment, or to
the manner or circumstances under which the position held or
desired
is
customarily
performed,
that
enable
a
qualified
individual with a disability to perform the essential functions
of that position.”
29 C.F.R. § 1630.2(o)(1)(ii).
“In order to
be reasonable, the accommodation must be effective (i.e., it
must
address
the
job-related
difficulties
presented
by
the
employee’s disability), and it must allow the employee to attain
an ‘equal’ level of achievement, opportunity, and participation
that a non-disabled individual in the same position would be
able to achieve.”
Fleetwood v. Harford Sys. Inc., 380 F.Supp.2d
688, 699 (D.Md. 2005).
Based on the evidence provided, the use of a swivel chair
to
perform
the
functions
of
a
mail
processor
could
be
a
reasonable accommodation for an employee with Cervicalgia such
that summary judgment for Defendant is not proper.
Defendant
contends that Plaintiff was already being provided reasonable
accommodations as outlined in the limited duty assignment and
“has adduced no evidence that the use of a swivel chair was a
further
reasonable
accommodation
necessary
to
the
performance of his already modified job assignment.”
19-1, at 18-19).
actual
(ECF No.
This argument seems to ignore the numerous
doctor’s notes Plaintiff obtained indicating that he was not to
twist his neck and should be provided a swivel chair.
17
(See ECF
Nos. 22-3 to 22-6).
swivel
chair
position,
a
reasonable
especially
processors
argument
was
There is a genuine dispute as to whether a
that
accommodation,
light
granted
were
in
accommodation
such
a
swivel
and
of
fact
chairs.
chair
does
the
not
would
invoke
for
Plaintiff’s
that
other
Defendant
not
the
be
a
mail
makes
no
reasonable
defense
of
“undue
hardship.”
Mr. Thibodeaux’s affidavit states that he was never given
any medical documentation by Plaintiff.
As an initial matter,
this affidavit appears to be in conflict with the affidavit Mr.
Thibodeaux
submitted
in
connection
with
USPS’s
internal
investigation, where in response to the question “Were you aware
of Complainant’s medical condition?
If so, when and how were
you made aware and what do you believe Complainant’s medical
condition to be?”, he stated “Complainant told me and his CA17
Medical.”
(ECF
Plaintiff’s
documentation
difference.
No.
19-8,
supervisor
from
at
3).
truly
never
Plaintiff,
Specifically,
But
that
Defendant’s
even
accepting
received
fact
any
would
secondary
that
medical
make
argument
no
is
that Plaintiff has failed to establish that “he was denied the
swivel chair for any ground other than that he was to first
submit a prescription for the chair from his medical provider to
the Department of Labor to obtain that entity’s approval of
such” which Plaintiff failed to do.
18
(ECF No. 19-1, at 19).
Plaintiff’s
that
he
supervisor
advised
Mr.
Thibodeaux
Plaintiff
of
this
submitted
an
requirement
affidavit
each
Plaintiff approached him requesting a swivel chair.
19-14).
Similar
testimony
administrative case.
Decision,
Case
No.
was
provided
in
time
(ECF No.
Plaintiff’s
(See ECF No. 19-13, at 19-20, Final Agency
1K-206-0041-10).
This
all
suggests
that
raising the issue with Plaintiff’s supervisors would have been
futile, as they would have pointed him to DOL.
Defendant
has
provided
no
documents
indicating
that
a
disabled postal employee seeking a reasonable accommodation in
the
form
of
Department
of
a
swivel
Labor.
chair
It
must
is
seek
undisputed
approval
that
from
the
Plaintiff
was
injured on-the-job in 2000 and applied for financial and medical
benefits
through
the
Federal
Employees’
Compensation
(“FECA”), a statute administered by DOL-OWCP.
Act
Plaintiff was
approved and received benefits until December 10, 2007 when OWCP
determined
that
his
injuries
had
“ceased,
or
are
no
injury-related” based on his most recent medical reports.
longer
(ECF
No. 22-10).
The fact that Plaintiff no longer had a viable worker’s
compensation claim does not mean that he is no longer a disabled
individual eligible for a reasonable accommodation.
It appears
that Plaintiff’s supervisors may have confused the Department of
Labor’s workers’ compensation programs with the requirements of
19
the Rehabilitation Act.
Their repeated guidance to Plaintiff
that he must obtain DOL approval for a reasonable accommodation
is unsupported by the record and seemingly goes against USPS’s
own
handbook
on
the
reasonable
accommodation
process,
which
envisions most reasonable accommodation requests will be handled
internally.
United
States
Postal
Service,
Handbook
EL-307,
Reasonable Accommodation, An Interactive Process (Oct. 1, 2008),
available
at
http://about.usps.com/handbooks/el307.pdf.
The
handbook acknowledges that limited duty requests are processed
through the mechanisms provided by FECA, but goes on to state
that
“[n]onetheless,
there
are
circumstances
in
which
an
employee in a . . . limited duty . . . assignment can raise
issues
that
warrant
referral
Accommodation Committee].”
“[w]hen
an
employee
has
to
the
Id. at 59.
an
illness
[USPS’
Reasonable
One example provided is
or
injury
that
may
also
qualify as a disability under the Rehabilitation Act and the
employee seeks accommodation for that disability.”
Id; see also
id. at 7 (“[a]n employee who sustains an on-the-job injury that
results in permanent or long-term substantial limitations of a
major life activity may be protected by both the Rehabilitation
Act and the Federal Employees’ Compensation Act.”); Szedlock v.
Tenet, 61 F.App’x 88, 93 (4th Cir. 2003) (finding a work-related
injury
covered
by
accommodate claim).
FECA
“quite
distinct”
from
a
failure
to
The handbook states that an employee can
20
make a request for accommodation to his supervisor or manager.
Id. at 9.
Such a request starts the “reasonable accommodation
process,”
which
requires
the
supervisor
to
act
engage the requestor in an informal dialogue.
instances,
it
is
appropriate
to
refer
the
promptly
Id.
and
In some
request
to
the
Reasonable Accommodation Committee, but notably, the handbook
states that “[n]ot all requests for accommodation need to be
referred
to
a
RAC.
For
example,
if
an
employee
requests
specialized equipment, such as an ergonomic chair, there is no
need for RAC involvement.”
time
the
reasonable
Id. at 10 (emphasis added).
accommodation
process
is
activated,
Every
USPS
instructs its supervisors to engage in a five-step process to
determine whether to provide an accommodation.
There is no
mention in the handbook of requiring approval from OWCP or DOL.
At
this
stage
of
the
proceedings,
with
the
evidence
currently provided, there is a genuine dispute of material fact
as to whether providing Plaintiff a swivel chair would have been
a reasonable accommodation and summary judgment is not proper on
Plaintiff’s failure to accommodate claim.
C.
Retaliation
Lastly, Plaintiff alleges that the swivel chair denial and
subsequent constructive discharge were retaliation for his prior
EEO activity.
Under the Rehabilitation Act, to establish a
prima facie case of retaliation, Plaintiff must show that: (1)
21
he
engaged
adversely
in
a
against
protected
him,
and
activity,
(3)
the
(2)
protected
causally connected to the adverse action.
at 218.4
his
employer
acted
activity
was
See Holland, 487 F.3d
As to the final prong, Plaintiff must prove “that the
unlawful retaliation would not have occurred in the absence of
the alleged wrongful action or actions of the employer.”
Univ.
of Texas S.W. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013).
Unlike a discrimination claim, a plaintiff need not establish an
“ultimate employment decision” to make out his prima facie case;
rather, he must show only that the action would be seen as
materially adverse through the eyes of a reasonable employee.
Burlington N., 548 U.S. at 68.
“‘Although conduct short of
ultimate employment decisions can constitute adverse employment
action,’ there still must be a ‘tangible effect on the terms and
conditions of employment.’”
Geist v. Gill/Kardash P'ship, 671
F.Supp.2d 729, 737 n.6 (D.Md. 2009) (quoting James, 368 F.3d at
4
Plaintiff is not clear as to whether his retaliation claim
is brought under Title VII or the Rehabilitation Act. Title VII
does not protect an employee from retaliation where the
protected activity involves an alleged disability.
See Berkner
v. Blank, No. DKC 12-1390, 2013 WL 951562, at *8 (D.Md. Mar. 11,
2013). Although the Rehabilitation Act does not have a specific
retaliation provision, it incorporates the remedies applicable
under the Americans with Disabilities Act including 42 U.S.C. §
12203(a),
which
makes
it
unlawful
to
retaliate
against
individuals for making a charge, testifying, assisting, or
participating in an investigation, proceeding or hearing
regarding charges of disability discrimination.
29 U.S.C. §
794a.
Considering Plaintiff is pro se, his claim will be
construed as alleging a violation of the Rehabilitation Act.
22
375).
Actions like “petty slights, minor annoyances, and simple
lack of good manners” are insufficient to support a retaliation
claim, even under this lower standard.
at
68.
Thus,
objective
an
point
reasonable
action
of
worker
discrimination.”
is
view,
from
Burlington N., 548 U.S.
materially
“it
making
well
adverse
might
or
if,
have
supporting
from
an
dissuaded
a
charge
of
a
Id.
Defendant does not dispute that Plaintiff has previously
engaged
Plaintiff
in
protected
has
failed
activity,
to
show
but
that
instead
he
contends
suffered
an
that
adverse
employment action even under the lesser standard needed on a
retaliation claim.
Defendant’s limited argument is unpersuasive.
A reasonable
jury could find that denial of the swivel chair could constitute
a tangible effect on the terms of Plaintiff’s employment as a
mail processor, such that a reasonable worker would be dissuaded
from filing a discrimination claim.
Defendant argues that the
fact that Plaintiff filed a discrimination claim demonstrates
that he was not so dissuaded and that it cannot, as a result,
constitute an adverse action.
Accepting that argument would
eviscerate the anti-retaliation protection; an employer could
always argue that the fact that the employee filed the claim is
proof
that
he
was
not
dissuaded
23
from
making
a
charge
of
discrimination.
This would turn Burlington Northern’s lesser
standard for retaliation claims into a nullity.
Finally,
Defendant
argues
that
even
if
Plaintiff
has
established a prima facie case on retaliation, he has failed to
show that Defendant’s legitimate, non-discriminatory reason for
that denial was pretext.
As discussed supra, however, there is
sufficient doubt as to whether obtaining a DOL approval for a
swivel chair is necessary to obtain a reasonable accommodation.
Therefore,
summary
judgment
is
not
proper
on
Plaintiff’s
retaliation claim.
VI.
Conclusion
For the foregoing reasons, the motion to dismiss or, in the
alternative, for summary judgment filed by Defendant will be
granted in part and denied in part.
Judgment will be granted in
favor of the Defendant for Plaintiff’s claims of sex and age
discrimination
discrimination.
and
wrongful
discharge
on
the
basis
of
Defendant’s motion will be denied with respect
to Plaintiff’s claims for retaliation and failure to accommodate
his disability.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
24
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