Stanciel v. Potter

Filing 49

OPINION AND ORDER granting 39 Motion for Summary Judgment. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MILTON STANCIEL,
Plaintiff,
Civil Case No. 11-11512
Honorable Patrick J. Duggan

v.
PATRICK R. DONAHOE, Postmaster General of
the United States,1
Defendant.
_____________________/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
On April 8, 2011, Milton Stanciel (“Plaintiff”), a former United States Postal
Service employee, filed this action alleging employment discrimination based on gender
and disability. In a First Amended Complaint filed June 19, 2012, Plaintiff asserted the
following claims against Defendant: (I) disability discrimination under the Rehabilitation
Act of 1973; (II) disability discrimination under the Michigan Persons With Disabilities
Civil Rights Act; (III) a violation of his procedural due process rights under 42 U.S.C.
§ 1983; (IV) a substantive due process violation under 42 U.S.C. § 1983; (V) gender
discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”); and (VI)
gender discrimination in violation of the Michigan Elliott-Larsen Civil Rights Act.

1

Plaintiff initially named John E. Potter in his official capacity as the Postmaster
General as Defendant. Substitution has been made in accordance with Federal Rule of
Civil Procedure 25(d) as Mr. Donahoe was appointed to that position in October 2010.
See http://about.usps.com/who-we-are/leadership/pmg-exec-comm.htm#p=1.

Defendant filed a motion to dismiss Plaintiff’s claims on July 5, 2012. As a result of
Plaintiff’s subsequent abandonment of certain claims and this Court’s ruling on
Defendant’s motion to dismiss, only Counts I and V of Plaintiff’s First Amended
Complaint remain pending.
Presently before the Court is Defendant’s motion for summary judgment with
respect to those remaining claims, filed pursuant to Federal Rule of Civil Procedure 56 on
February 12, 2013. The motion has been fully briefed and the Court held a motion
hearing on May 2, 2013. For the reasons that follow, the Court grants Defendant’s
motion.
I.

Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is appropriate

“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). The central
inquiry is “whether the evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512 (1986).
After adequate time for discovery and upon motion, Rule 56 mandates summary
judgment against a party who fails to establish the existence of an element essential to
that party’s case and on which that party bears the burden of proof at trial. Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986).
The movant has the initial burden of showing “the absence of a genuine issue of
2

material fact.” Id. at 323, 106 S. Ct. at 2553. Once the movant meets this burden, the
“nonmoving party must come forward with specific facts showing that there is a genuine
issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
106 S. Ct. 1348, 1356 (1986) (internal quotation marks and citation omitted). To
demonstrate a genuine issue, the nonmoving party must present sufficient evidence upon
which a jury could reasonably find for that party; a “scintilla of evidence” is insufficient.
See Liberty Lobby, 477 U.S. at 252, 106 S. Ct. at 2512.
“A party asserting that a fact cannot be or is genuinely disputed” must designate
specifically the materials in the record supporting the assertion, “including depositions,
documents, electronically stored information, affidavits or declarations, stipulations,
admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1). The
court must accept as true the non-movant’s evidence and draw “all justifiable inferences”
in the non-movant’s favor. See Liberty Lobby, 477 U.S. at 255, 106 S. Ct. at 2513.
II.

Factual and Procedural Background
Plaintiff began working for the United States Postal Service (“USPS”) as a mail

handler on or about January 1, 1991. (First Am. Compl. ¶ 8.) Prior to that date, and
beginning in 1989, he worked for USPS as a casual temporary employee. As an
employee of USPS, Plaintiff was a member of the National Postal Mail Handlers Union,
Local 307 (“union”). (Id. ¶ 14.)
Plaintiff suffers from a mental impairment. (Id. ¶ 11.) He was diagnosed with a
learning disability in sixth grade and attended special education classes throughout his
3

primary and secondary education. (Def.’s Mot. Ex A at 9-10, 25-26, 30.) Because of his
mental impairment, Plaintiff’s initial hiring with USPS was through its special hiring
process. This allowed Plaintiff to be excused from USPS’ standard postal service exams
to determine literacy or ability to serve as an employee. (Id.)
Among the paperwork completed when Plaintiff was first hired by USPS is a
certification of disability form which lists Plaintiff as having disability code 90, defined
as “mental retardation.” (Def.’s Mot. Exs. C, T.) The form is dated January 23, 1990.
(Id. Ex. T.) There is no other mention of Plaintiff’s disability in his employment file. He
was identified on other forms used to record personnel actions as a code “05,” signifying
no disability. (Id. Exs. B, C.)
As a regular, full-time mail handler, Plaintiff was assigned to USPS’ Bulk Mail
Center in Allen Park, Michigan. (First Am. Compl. ¶ 15.) He became a “sack sorter,”
keying in zipcodes of mail as it passed him on a conveyor belt. Plaintiff excelled at his
work, keying 850-900 pieces of mail an hour– where the quota was 550– at a 97%
accuracy rate. (Def.’s Mot. Ex. A at 71-72.)
During his tenure at USPS, Plaintiff lived at different locations in Detroit. He
either drove or took the bus to work until early 2006, when his driver’s license was
suspended. He then rode the bus almost exclusively. Plaintiff learned a different bus
route to the Allen Park facility from each of his residences. (Id. at 77.)
Throughout his employment with USPS, Plaintiff experienced attendance
problems. The Court attaches to this decision the chart Defendant provides in its motion
4

summarizing the disciplinary actions taken against Plaintiff for attendance problems
before the action at issue in this case.2 (See Attach. A; see also Def.’s Br. in Supp. of
Mot. at 11-13.) As reflected in that summary, Plaintiff received thirteen multi-day
suspensions for attendance infractions between July 1994 and June 2009. (See id.)
Plaintiff also received five notices of removal during his tenure with USPS that ultimately
were modified to provide him with another chance to retain his employment. Plaintiff
was terminated following a sixth notice of removal.
Plaintiff utilized various strategies during his employment to avoid attendance
infractions. For a while he called into work ahead of time when he knew he would be a
few minutes late and asked his supervisor, Donna Bright, to punch him in before he
arrived. (Def.’s Mot. Ex. A at 78.) Eventually Ms. Bright refused to do this after
Plaintiff made the request “too many times.” (Id. at 78, 93.) Even though he knew it was
against the attendance rules, Plaintiff also took his time card home with him overnight so
he could clock in at the first time clock he encountered when entering the facility rather
than at the clock closest to his work station, where his time card normally would be kept.
(Id. at 79-80.) Plaintiff also obtained permission from Ms. Bright to use annual leave to
cover the time he missed when tardy. (Id. at 84-85.) Eventually, however, Plaintiff ran

2

Certain details regarding Plaintiff’s infractions and/or discipline are missing from
Defendant’s summary. (See Def.’s Br. in Supp. of Mot. at 11-13.) After the motion
hearing, Defendant submitted the documents providing further details of the infractions.
(ECF No. 48.) Plaintiff, however, has not disputed the accuracy of Defendant’s summary
of his attendance infractions and the details of the discipline are not determinative to
Defendant’s motion.
5

out of annual leave to use. (Id.)
Plaintiff was disciplined for being absent without leave (“AWOL”) on many
occasions. (See Attach. “A”; ECF No. 48.) Nevertheless, as he testified during his
deposition in this matter, he was aware of the USPS form he needed to complete to
comply with the general procedure for requesting time off of work, even if he needed to
ask co-workers to help him complete the form. (Id. at 86-90.) On at least one occasion
where Plaintiff requested but was denied leave, he decided to take the time off anyway.
(Id. at 92.)
In 2008, Plaintiff developed a drinking problem and was drinking alcohol on a
daily basis. (Id. at 103.) He testified that he did not have a drinking problem before then.
(Id. at 62.) He also was using marijuana and cocaine. (Id. at 65, 124.) Plaintiff testified
that he drank one can of beer at lunch and maybe one can before work. (Id. at 103-04.)
He further testified, however, that he never drank at work, was never drunk at work, and
his drinking never interfered with his work tasks. (Id. at 104.) According to Plaintiff, he
heard second- or third-hand that Ms. Bright and two other USPS employees, Darwin
Walker and Harold Solomon, smelled alcohol on him on one or more occasions. (Id. at
105-07.)
On February 4, 2009, Plaintiff participated in a pre-disciplinary or investigative
interview for a proposed 14-day suspension for attendance infractions. (Def.’s Mot. Ex.
V.) In the interview, he indicated that the reason for his poor attendance was “car
problems.” (Id.) At this time, Plaintiff asked to participate in the Employee Assistance
6

Program or “EAP.” (Id. Ex. P at 9, 83.) Ms. Bright provided him with instructions on
how to reach EAP. (Id.)
On September 22, 2009, Plaintiff participated in another pre-disciplinary or
investigative interview for attendance problems. (Def.’s Mot. Ex. H.) Plaintiff again
cited transportation problems as the reason for his absences. (Id.) During her deposition
in this matter, Ms. Bright testified that she did not offer Plaintiff an accommodation at
this meeting because she did not know one was needed. (Id. Ex. P at 12.) She further
testified that she was unaware of Plaintiff’s drinking problem and Plaintiff did not inform
her of his problem during the interview.3 (Id. at 51.) Ms. Bright also testified that she
was unaware USPS certified Plaintiff as disabled. (Id. at 25.)
On September 22, 2009, Betty Mitchell, Acting Supervisor Distribution
Operations, issued a letter of removal notifying Plaintiff of his termination effective
October 30, 2009. (Def.’s Mot. Ex. K.) The letter stated that the termination was based
on irregular attendance. (Id.) After receiving the letter, Plaintiff consulted with a union
representative who advised him to enter rehabilitation to try and get his job back. (Id. Ex.
A at 157-58.) Plaintiff was admitted to an in-patient alcohol and drug abuse treatment

3

In his response brief to Defendant’s motion, Plaintiff states that he informed Ms.
Bright at the pre-disciplinary interview meeting of his need for an accommodation to
correct his disability of alcoholism. (Pl.’s Resp. Br. at 18.) Plaintiff cites no evidence,
however, to support this assertion. While he cites to the “Due Process Investigative
Interview Attendance” form completed on the date of the meeting (see id.), the form does
not mention Plaintiff’s drinking, alcoholism, or need for an accommodation for
alcoholism. (Pl.’s Resp. Ex. 21.)
7

program on September 26, 2009. (First Am. Compl. ¶ 28.) He returned to work on
October 8, 2009, and remained at work until his removal effective October 30, 2009. (Id.
¶ 29.) He claims that he maintained a perfect attendance record during this period. (See
Pl.’s Resp. Br. at 19, citing Ex. 24.)
On October 29, 2009, with the assistance of a union representative, Plaintiff filed a
grievance concerning his termination. (Def.’s Mot. Ex. D.) In the grievance, Plaintiff
stated that he has a mental disability and asked that USPS “address” his disability. (Id.)
On May 20, 2010, a Redress Meeting was conducted with Plaintiff, union representatives
Glenn Berrien and Mike Mendez, and Plant Manager Keith Pugh. (Def.’s Mot. Ex. A at
174.) As a result of this meeting, a Redress Mediation Settlement Agreement was
reached whereby Plaintiff was given another chance to return to work on the condition
that he inter alia maintain regular attendance and pass a medical clearance, including a
clean drug test. (Id. Ex. U.) Plaintiff subsequently repudiated the agreement, however,
claiming that the required drug test was an unfair condition. (Id. Ex. W.) On December
15, 2010, an arbitrator denied Plaintiff’s grievance on the grounds that USPS “had just
cause for [his] removal . . ..” (Id. Ex. E.)
On November 12, 2009, Plaintiff contacted an Equal Employment Opportunity
(“EEO”) counselor alleging that he was terminated because of “mental disability”
discrimination. (Def.’s Mot. Ex. I.) On December 10, 2009, USPS sent Plaintiff a notice
informing him that he had to file a formal discrimination complaint with USPS within 15
days. (Id. Ex. J.) Plaintiff did not file a formal complaint in that time period.
8

On April 6, 2010, Plaintiff again contacted an EEO counselor to initiate counseling
concerning the September 22, 2009 removal notice. (Id. Ex. L.) This time, Plaintiff
alleged hostile work environment, sex discrimination, physical disability discrimination,
retaliation, and age discrimination and he filed a timely formal discrimination complaint.
(Id. Exs. L, M.) USPS dismissed the complaint on July 28, 2010. (Id. Ex N.) The
decision was upheld by the Equal Employment Opportunity Commission (“EEOC”) on
February 9, 2011. (Id. Ex. O.) On that date, the EEOC sent Plaintiff a right to sue letter.
(First Am. Compl. ¶ 33.) As indicated previously, he filed the present action on April 8,
2011.
III.

Applicable Law and Analysis
In Count I of his First Amended Complaint, Plaintiff alleges that he suffers, or

suffered during the relevant period, from two disabilities: a severe mental impairment and
alcoholism. (First Am. Compl. ¶ 38.) He further alleges that, with or without reasonable
accommodations, he was qualified to perform the job duties of a mail handler but
Defendant failed to reasonably accommodate his disabilities in violation of the
Rehabilitation Act. (Id. ¶¶ 38, 40.) Plaintiff also claims that “Defendant . . . repeatedly
disciplined and terminated Plaintiff solely because of his disabilities” and that similarly
situated, non-disabled employees “were not disciplined and/or terminated for their many
attendance infractions.” (Id. ¶ 45.)
In Count V, Plaintiff claims that his termination constituted gender discrimination
in violation of Title VII. (Id. ¶¶ 78-83.)
9

A.

Failure to Accommodate in Violation of the Rehabilitation Act

To prevail on his “failure to accommodate” claim, Plaintiff must first establish a
prima facie case by showing that: (1) he is an individual with a disability; (2) he is
qualified for the position; (3) Defendant was aware of his disability; (4) an
accommodation was needed , i.e., a causal relationship existed between the disability and
the request for accommodation; and (5) Defendant failed to provide the necessary
accommodation. DiCarlo v. Potter, 358 F.3d 408, 419 (2004). If Plaintiff presents a
prima facie case, the burden shifts to Defendant to demonstrate that Plaintiff cannot
reasonably be accommodated, because the accommodation would impose an undue
hardship on its operations. Id. Defendant seeks summary judgment with respect to this
claim, arguing: (1) Plaintiff’s alcohol use does not constitute a disability because it did
not limit any of his major life activities; (2) Defendant was unaware of Plaintiff’s
alcoholism and mental disability; (3) Plaintiff did not request an accommodation for his
alleged disabilities; and, (4) he was not otherwise qualified for his position because he
could not perform the “essential function” of regular attendance even with the
accommodations he now seeks. While the Court believes that most of Defendant’s
arguments entitle it to summary judgment on Plaintiff’s failure to accommodate claim, it
will address only some of those arguments here.
First, the Court agrees that Plaintiff fails to show that he was disabled because of
alcoholism. To be disabled for purposes of the Rehabilitation Act, a plaintiff must “(1)
have a physical or mental impairment which ‘substantially limits’ him or her in at least
10

one ‘major life activity,’ (2) have a record of such an impairment, or (3) be regarded as
having such an impairment.” Mahon v. Crowell, 295 F.3d 585, 590 (6th Cir. 2002)
(quoting 29 U.S.C. § 705(20)(B)). Alcoholism constitutes a disability if, like other
physical or mental conditions, it “substantially limits one or more major life activities.”
Moorer v. Baptist Mem’l Health Care Sys., 398 F.3d 469, 479 n.4 (6th Cir. 2005). Here,
Plaintiff asserts in response to Defendant’s motion that alcoholism affected his ability to
work. (Pl.’s Resp. Br. at 26-27.) Plaintiff, however, presents no evidence suggesting that
his alcoholism substantially limited his ability to work or engage in one or more other
major life activities. Importantly, Plaintiff specifically testified during his deposition that
he was never drunk at work and that his drinking never interfered with his work tasks.
(Def.’s Mot. Ex. A at 104.)
Plaintiff also has not shown that Defendant was aware of his alcoholism. At most
he creates an issue of fact with respect to whether a supervisor and co-worker on one
occasion smelled alcohol on his breath.4 (See Pl.’s Resp. Br. at 18 n.23, citing Ex. 1 at
105.) This, however, does not raise a question of fact with respect to whether the

4

Plaintiff testified during his deposition that he only heard from “other people” that
Ms. Bright smelled alcohol on his breath. (Pl.’s Resp. Ex. 1 at 105-06.) He could not
remember who those people were and the admissibility of this evidence is doubtful as it
contains several levels of hearsay without an apparent exception. A summary judgment
opponent must “make [his] case with a showing of facts that can be established by
evidence that will be admissible at trial.” Alexander v. CareSource, 576 F.3d 551, 558
(6th Cir. 2009) (citing Fed. R. Civ. P. 56(e)(2)). Accordingly, hearsay evidence cannot be
considered in a motion for summary judgment. Jacklyn v. Schering-Plough Healthcare
Prods. Sales Corp., 176 F.3d 921, 927 (6th Cir. 1999).
11

supervisor was aware that Plaintiff was an alcoholic.
The Court also finds insufficient admissible evidence showing that Plaintiff’s
supervisors were aware of his mental disability. While he presents evidence indicating
that his supervisors and co-workers knew he had some mental impairment, this is not
equivalent to knowing that he had a “disability” as defined under the law. See 29 U.S.C.
§ 705(20)(B) (defining “disability” as requiring, not only a physical or mental
impairment, but one “that substantially limits one or more of the major life activities of
such individual.”). As the Fifth Circuit Court of Appeals has explained:5
For purposes of proving ADA discrimination, it is important to distinguish
between an employer’s knowledge of an employee’s disability versus an
employer’s knowledge of any limitations experienced by the employee as a
result of that disability. The distinction is important because the ADA
requires employers to reasonably accommodate limitations, not disabilities.
“The determination of whether an individual has a disability is not
necessarily based on the name or diagnosis of the impairment the person
has, but rather on the effect of that impairment on the life of the individual.”
29 C.F.R. [§] 1630.2(j), App. (1995); 42 U.S.C. § 12112(a)(5)(A) (“[T]he
term ‘discriminate’ includes . . . not making reasonable accommodations to
the known physical or mental limitations of an otherwise qualified
individual with a disability . . ..”) (emphasis added); 29 C.F.R. [§] 1630.9,
App. (1995)(“Employers are obligated to make reasonable accommodations
only to the physical or mental limitations resulting from the disability that is
known to the employer.”) (emphasis added).
Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 164, cert. denied, 519 U.S. 1029, 117 S.
Ct. 586 (1996). The Taylor court pointed out that “while a given disability may limit one

5

The Fifth Circuit was addressing a disability discrimination claim brought under the
Americans with Disabilities Act (“ADA”); however, cases construing the Rehabilitation Act and
ADA are generally applicable to both. See A.C. ex rel. J.C. v. Shelby County Bd. of Educ., 711
F.3d 687, 696-97(6th Cir. 2013) (citing Andrews v. Ohio, 104 F.3d 803, 807 (6th Cir.1997)).
12

employee (and therefore necessitate a reasonable accommodation), it may not limit
another.” Id. For that reason, the court held that “it is incumbent upon the . . . plaintiff to
assert not only a disability, but also any limitation resulting therefrom.” Id. The
Rehabilitation Act, like the ADA as indicated by the Taylor court, only makes it unlawful
for an employer to fail to make a reasonable accommodation for the “known physical or
mental limitations of an otherwise qualified applicant or employee with a disability, . . ..”
29 C.F.R. § 1630.9(a) (emphasis added).
Plaintiff does not point to any evidence in the record that would lead a reasonable
trier of fact to conclude that his supervisors knew or should have known that he was not
arriving on time or was absent without leave because of his alleged disabilities.6 Further,
the requested accommodations that Plaintiff claims he made would not have alerted his
supervisors to any limitation resulting from his disabilities.7 Notably, when provided the

6

Interestingly, Plaintiff points out that he maintained a perfect attendance record
after attending drug and alcohol rehabilitation. He states: “Clearly, Plaintiff’s not
drinking affected his ability to report to work timely.” (Pl.’s Resp. Br. at 27.) This
assertion undermines any claim that his attendance problems were related to his mental
impairment, suggesting instead that they were solely the result of his alcoholism. As
discussed above, however, there is no evidence that Defendant was aware of Plaintiff’s
alcoholism.
7

In response to Defendant’s motion, Plaintiff claims that he requested two
accommodations. (See Pl.’s Resp. Br. at 22.) First Plaintiff claims that he “asked his
supervisors for help with the Postal Service policies and procedures.” (Id.) This refers to
Plaintiff’s requests for help completing attendance-related forms. (Id. at 9-10.) This
“request” could not be interpreted as a request for an accommodation.
Second, Plaintiff claims that he requested a “revised work schedule.” (Id. at 23.)
While Plaintiff did not identify in his response brief what type of revised schedule he
(continued...)
13

opportunity to explain his attendance infractions, Plaintiff referred only to his
transportation problems.
For these reasons, the Court holds that Defendant is entitled to summary judgment
with respect to Plaintiff’s claim that it failed to accommodate his disability in violation of
the Rehabilitation Act.
B.

Disability Discrimination in Violation of the Rehabilitation Act

Absent direct evidence of discrimination, the familiar McDonnell Douglas burden
shifting formula applies to claims of disability discrimination under the Rehabilitation
Act. See Jones v. Potter, 488 F.3d 397, 403-04 (6th Cir. 2007) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)). According to this
formula, the plaintiff first must present a prima facie case of discrimination by showing
that: (1) he is disabled; (2) he is otherwise qualified for the job, with or without

7

(...continued)

specifically requested, he discusses two types recognized by USPS: (1) a “flex schedule”
where employees arriving late by thirty (30) minutes or less may be required or permitted
to make up the time by extending their work day (id. at 13, citing Ex. 17 [Handbook at
143.13]); and (2) an “alternative” work schedule where an employee is allowed to start
and stop work at times different than the usual shifts. (Id. at 14, citing Ex. 18.) At the
motion hearing, Plaintiff’s counsel seemed to focus on the first type. USPS argued that
such a revised work schedule is not reasonable because it would leave Plaintiff’s position
unattended for a significant period when he unexpectedly failed to show on time– often
by more than thirty minutes– and would create a situation where two people would be
present to do his job when his shift was scheduled to have ended. Further, the Court is
not certain that such an “accommodation” would resolve Plaintiff’s many attendance
infractions for failing to report to work at all when scheduled (i.e., when he was AWOL)
or arriving more than thirty minutes late. For the same reason, the Court does not see
how an alternative work schedule would correct Plaintiff’s attendance problems.
14

reasonable accommodation; (3) he suffered an adverse employment action; (4) his
employer knew or had reason to know of his disability; and (5) he was replaced by a
nondisabled person or his position remained open. Jones, 488 F.3d at 404 (citing Timm v.
Wright State Univ., 375 F.3d 418, 423 (6th Cir. 2004)). “The final element ‘may also be
satisfied by showing that similarly situated non-protected employees were treated more
favorably.’” Id. (quoting Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1246 (6th Cir.
1995)). If the plaintiff establishes a prima facie case, the burden shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the challenged employment decision.
Id. (citation omitted). “Should the employer carry this burden, then the burden returns to
the plaintiff to prove by a preponderance of the evidence that the employer’s proffered
reason was in fact a pretext designed to mask illegal discrimination.” Id.
As discussed above, Plaintiff fails to demonstrate that USPS was aware of his
alcoholism when it terminated him. Thus he cannot make out a prima facie case of
discrimination based on that alleged disability.8 Defendant seeks summary judgment with

8

Moreover, as Defendant argues in its summary judgment motion, its dismissal of
Plaintiff for his absenteeism, even if related to or caused by his alcoholism, does not
constitute disability discrimination in violation of the Rehabilitation Act. See Maddox v.
Univ. of Tenn, 62 F.3d 843, 846-48 (6th Cir. 1995), abrogated on other grounds by Lewis
v. Humboldt Acquisition Corp., 681 F.3d 312, 314 (6th Cir. 2012). In Maddox, the court
found that the University of Tennessee discharged the plaintiff for unacceptable conduct
(i.e., driving while intoxicated) rather than his disability (i.e., alcoholism) and thus did not
engage in disability discrimination. The court explained that
to hold otherwise, an employer would be forced to accommodate all
behavior of an alcoholic which could in any way be related to the
(continued...)
15

respect to Plaintiff’s claim that it engaged in discrimination based on Plaintiff’s mental
disability arguing that he is not “otherwise qualified” for the mail handler position. More
specifically, Defendant argues that regular attendance is an essential employment
function and Plaintiff has not demonstrated that he can perform this function with or
without a reasonable accommodation. Defendant also sets forth a legitimate, nondiscriminatory reason for Plaintiff’s termination (i.e., excessive attendance violations) and
contends that Plaintiff cannot show that this reason was a pretext for disability
discrimination. The Court will address only this last prong of the analysis.
It is Plaintiff’s burden to demonstrate pretext. Jones, 488 F.3d at 406. To satisfy
this burden, Plaintiff “must show by a preponderance of the evidence ‘either (1) that the
proffered reason[] had no basis in fact, (2) that the proffered reason[] did not actually
motivate his discharge, or (3) that [the reason was] insufficient to motivate [his]
discharge.” Id. (quoting Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084
(6th Cir. 1994)). Plaintiff does not challenge the fact of his attendance violations.
Instead, he claims essentially that those violations were insufficient to motivate his
discharge. To make this point, he argues that female co-workers with attendance

8

(...continued)

alcoholic’s use of intoxicating beverages; behavior that would be
intolerable if engaged in by a sober employee or, for that matter, an
intoxicated but non-alcoholic employee.
Maddox, 62 F.3d at 847.
16

problems were not terminated.
Plaintiff, however, fails to present any details of these co-workers’ infractions. He
does not establish what their attendance infractions were, when the infractions were
accumulated, or how many times these co-workers violated USPS’ attendance rules. As a
result, Plaintiff presents insufficient evidence to enable a reasonable trier of fact to
conclude that it was his disability– rather than attendance infractions– that led to his
discharge.
The Court therefore holds that Defendant is entitled to summary judgment with
respect to Plaintiff’s claim of disability discrimination as well.
C.

Gender Discrimination in Violation of Title VII

Plaintiff does not present direct evidence of gender discrimination and thus his
Title VII claim is subject to the same McDonnell Douglas burden shifting test set forth in
the previous section. See Grace v. USCAR, 521 F.3d 655, 677 (6th Cir. 2008). To make
out a prima facie case of gender discrimination, Plaintiff must show that he: (1) is a
member of a protected group; (2) was subjected to an adverse employment decision; (3)
was qualified for the position; and (4) was replaced by a person outside the protected
class, or that similarly situated non-protected employees were treated more favorably. Id.
(citing Peltier v. United States, 388 F.3d 984, 987 (6th Cir. 2004)). For the reasons stated
with respect to his disability discrimination claim, Plaintiff fails to raise an issue of fact
concerning the last element of his prima facie case of gender discrimination. He does not
claim that he was replaced by a woman and he presents no evidence of similarly-situated
17

female employees who were treated more favorably.
Thus the Court concludes that Defendant also is entitled to summary judgment
with respect to Plaintiff’s Title VII gender discrimination claim.
IV.

Conclusion
Remaining in this action are Plaintiff’s claims that Defendant failed to

accommodate his disability and engaged in disability discrimination in violation of the
Rehabilitation Act and discriminated against him on the basis of his gender in violation of
Title VII. For the reasons set forth above, Plaintiff fails to demonstrate a genuine issue of
material fact and the Court holds that, based on the undisputed facts, Defendant is entitled
to judgment as a matter of law with respect to these claims.
Accordingly,
IT IS ORDERED, that Defendant’s motion for summary judgment is GRANTED
and Counts I and V of his First Amended Complaint are DISMISSED WITH
PREJUDICE.
Dated:May 8, 2013

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copies to:
Felicia Duncan Brock, Esq.
AUSA Laura A. Sagolla

18

Summary of Defendant’s Discipline of Plaintiff for Attendance Infractions

DATE

DOCUMENT

DESCRIPTION

6.11.92

Letter of Warning

Failure to adhere to
attendance regulations

7.13.93

Letter of Warning

AWOL

7.24.93

Grievance Settlement

Letter of Warning to be
removed within 1 year
provided no similar
violations occur

8.24.93

Letter of Warning

Failure to adhere to
attendance regulations

7.7.94

7-Day Suspension

Unscheduled leave and
AWOL-cited three prior
Letters of Warning from
June 1992, July 1993, and
August 1993

7.24.94

Grievance Settlement

Seven-day suspension
reduced to three-day
without lost time provided
does not receive 3
infractions within a period
of 6 months

2.7.95

7-day Suspension

Unscheduled leave and
AWOL. Cited 3 Letters of
Warning and three-day
suspension

3.26.96

7-day Suspension

Unscheduled leave- failure
to be regular in attendance.
Two 3-day suspensions and
3 Letters of Warning

4.17.96

Grievance Settlement

7-day suspension modified
to working suspension, to
remain in OPF for 6
months during which time
attendance will be

Summary of Defendant’s Discipline of Plaintiff for Attendance Infractions

DATE

DOCUMENT

DESCRIPTION
monitored and should he
have 4 unexcused absences
during that period, will be
given a 7-day without
modification. Six month
period ends 10/17/96

9.23.97

Letter of Warning

Unscheduled Leave

4.21.98

5-day Suspension

7.2.98

7-day Suspension

9.8.98

14-day Suspension

10.18.98

14-day Suspension

4.16.99

Notice of Removal #1

Reduced to 14-day
suspension

1.5.00

Notice of Removal #2

Failure to maintain a
regular work schedule.
Cites 14-day of 5.6.99, 14day of 4.16.99, 14-day of
10.18.98, 14-day of 9.8.98,
7-day of 7.2.98, 5-day of
4.21.98, and Letter of
Warning of 9.23.97

3.21.01

Letter of Warning

7.2.01

7-day Suspension

9.27.01

14-day Suspension

4.2.02

Notice of Removal #3

5.4.02

Grievance Settlement

Reducing notice of
removal to Last Chance
Agreement #1

12.3.02

Notice of Removal #4

Based on violation of Last
Chance Agreement #1 by

Summary of Defendant’s Discipline of Plaintiff for Attendance Infractions

DATE

DOCUMENT

DESCRIPTION
unscheduled leave and
AWOL, plus earlier actions
of 14-day dated 9.7.01, 7day dated 7.2.01, and
Letter of Warning dated
3.21.01

2.7.03

Grievance Settlement

Reducing notice of
removal to Last Change
Agreement #2 (ordered to
go to EAP)

6.23.04

Letter of Warning

Unscheduled leave

12.3.04

7-day Suspension

1.9.06

14-day Suspension

6.20.06

Notice of Removal #5

8.7.06

Grievance Settlement

4.28.08

Letter of Warning

9.27.08

7-day Suspension

Unscheduled leave and
AWOL, cites Letter of
Warning dated 4.26.08

10.18.08

Grievance Settlement

7-day suspension to remain
in file for 7 months, to be
expunged on 5.1.09 if
discipline free for same or
similar infractions

2.4.09

14-day Suspension

Unscheduled leave, cites
Letter of Warning of
4.28.08 and 7-day of
9.27.08

Failure to adhere to
attendance regulations

Reducing notice of
removal to 21-day
suspension

Summary of Defendant’s Discipline of Plaintiff for Attendance Infractions

DATE

DOCUMENT

4.9.09

Grievance Settlement

9.22.09

Notice of Removal #6

DESCRIPTION

Unscheduled leave and
AWOL, cited 14-day of
2.4.09, 7-day of 9.27.08,
and Letter of Warning of
4.26.08