HOUSER v. POTTER
Filing
45
ORDER granting 38 Defendant John E. Potter, Postmaster General, United States Postal Service's Motion for Summary Judgment; denying 42 Plaintiff Clarence C. Houser, Jr.'s Motion for Summary Judgment, for the reasons set forth in the attached Memorandum & Order. Signed by Judge Cathy Bissoon on 5/9/2011. (rtt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CLARENCE C. HOUSER, JR.,
Plaintiff,
v.
JOHN E. POTTER, Postmaster General,
United States Postal Service,
Defendant.
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Civil Action No. 09-180
Magistrate Judge Cathy Bissoon1
MEMORANDUM AND ORDER
I.
MEMORANDUM
Pending before the Court is a Motion for Summary Judgment (Doc. 38) filed by
Defendant John E. Potter, Postmaster General, United States Postal Service, and a Motion for
Summary Judgment filed by Plaintiff Clarence C. Houser, Jr. (Doc. 42).2 For the reasons stated
herein, the Court will grant Defendant’s motion and deny Plaintiff’s motion.
BACKGROUND
A. Procedural Background
Pro se Plaintiff Clarence C. Houser, Jr. brought this action against Defendant John Potter,
Postmaster General, United States Postal Service.3 Plaintiff apparently alleges discrimination on
the basis of disability, which the parties and this Court have treated as a claim under the
Rehabilitation Act, 29 U.S.C. §§ 701 et seq. See Doc. 17 (Memorandum Order (May 21, 2010)).
1
By consent of the parties, the undersigned sits as the District Judge in this case. See Consent
forms (Docs. 14, 16).
2
Plaintiff’s “Motion for Summary Judgment” apparently also serves as Plaintiff’s response to
Defendant’s Motion for Summary Judgment.
3
For ease of reference, the Court will refer to the United States Postal Service as “Defendant.”
1
Other claims brought by Plaintiff were previously dismissed, and the Rehabilitation Act claim is
the only pending claim. Id.
Plaintiff alleges that Defendant failed to provide a reasonable accommodation for a knee
injury and assigned Plaintiff to job tasks beyond the physical restrictions imposed by his doctors.
See id. at ¶¶ 6-7. Specifically, Plaintiff appears to allege three theories of discrimination:
(1) Plaintiff was forced to perform work beyond his medical restrictions during his “limited
duty” work assignment from November 15, 2007 to about November 27, 2007; (2) Plaintiff was
entitled to have “light duty” work assigned to him to accommodate his injury from
December 4, 2007 to April 7, 2008; and (3) Plaintiff was forced to work beyond his medical
restrictions on April 11, 2008, resulting in a back injury.
Defendant has moved for summary judgment, asserting that: (1) Plaintiff did not have a
“disability,” as defined by the Rehabilitation Act; (2) Plaintiff was not “otherwise qualified” to
perform the essential functions of his job as a letter carrier; (3) Defendant did not fail to
accommodate a disability; and (4) Plaintiff was not forced to work beyond his medical
restrictions. See Doc. 39 (Def.’s Br.). Plaintiff filed a response (Docs. 42, 43), and Defendant
filed a reply (Doc. 44).
B. Factual Background
Plaintiff was formerly employed by the USPS as a part-time Flexible Carrier. See Doc.
41-1 at 2 (letter from Tracie P. Graham to Clarence C. Houser Jr. (May 27, 2004) (Def.’s Exh.
A); Doc. 2 at ¶ 5 (Compl.). On August 4, 2007, Plaintiff injured his knee. Doc. 41-8 at 4
(Houser Dep. at 37:5-8 (Def.’s Exh. H)). A doctor’s note dated August 7, 2007 noted that “Mr.
Clarence Houser is incapacitated @ this time until 8/13/7 from his regular walking job.” Doc.
41-13 at 2 (Def.’s Exh. M). A doctor’s note from August 9, 2007 explained: “Patient not able to
stand for long periods of time. Severe knee pain.” Id. An August 14, 2007 doctor’s note set
2
forth Plaintiff’s diagnosis as a meniscal tear with degenerative joint disease. Doc. 41-14 at 2
(Def.’s Exh. N). The doctor prescribed no work until further notice. Id. at 3. On September 24,
2007, Plaintiff had knee surgery. Doc. 41-20 (Doctor’s Office Note (Oct. 4, 2007) (Def.’s Exh.
T)); Doc. 43-1 at 16 (Pl.’s Br.).4
On November 6, 2007, a doctor cleared Plaintiff to return to work starting November 14,
2007, restricted to “sedentary work (desk job) no prolong [sic] walking or standing.” Doc 41-21
at 3 (Def.’s Exh. U). On November 15, 2007, Plaintiff accepted a “limited duty” work
assignment. Id. at 2 (USPS Offer of Modified Assignment (Limited Duty) form (Nov. 15,
2007)). Plaintiff’s limited duty work assignment included sedentary work such as answering
phones, casing (sorting) mail, and some driving. Doc. 41-4 at ¶¶ 11-13 (McGinnis Decl. (Def.’s
Exh. D)); Doc. 43-1 at 17-18 (Pl.’s Br.).
On December 4, 2007, Plaintiff stopped working because his worker’s compensation
claim was denied, which made him ineligible for a “limited duty” work assignment. Doc. 41-8
at 11-12 (Houser Dep. at 56:25 – 57:10 (Def.’s Exh. H)); Doc. 41-4 at ¶ 14 (McGinnis Decl.
(Def.’s Exh. D)); see also Doc. 41-23 at 2 (E-mail from Raymond J. Cvetic to Timothy M.
McIntyre (Nov. 26, 2007) (Def.’s Exh. W) (sending denial of Plaintiff’s worker’s compensation
claim and indicating that limited duty work should not be offered to Plaintiff)). Around this
time, Mr. Houser requested “light duty” work. Doc. 41-27 at 2 (letter from Plaintiff (undated)
(Def.’s Exh. AA)). On December 18, 2007, a doctor’s note explained that Plaintiff “[m]ay return
to light duty 1-2 hours standing/walking level ground only no stairs, 10 pound weight limits as of
Jan 4, 08.” Doc. 41-29 at 3 (Def.’s Exh. CC). Defendant approved Plaintiff’s request for light
4
Plaintiff’s “Exhibit” (Doc. 43-1) to his “Brief” (Doc. 43) includes a twenty-eight page
document signed by Plaintiff that appears to set forth Plaintiff’s arguments. The Court will
treat those pages as Plaintiff’s brief. See Doc. 43-1 at 10-27.
3
duty assignment on December 18, 2007. Id. at 5. Subsequent requests for light duty work based
on similar restrictions were approved on January 31, 2008 and March 5, 2008. Doc. 41-31
(Def.’s Exh. EE); Doc. 41-33 (Def.’s Exh. GG). Plaintiff nonetheless did not work from
December 4, 2007 to April 7, 2008, because no light duty work within Plaintiff’s medical
restrictions was available. Doc. 41-8 at 11-12 (Houser Dep. at 56:25 – 57:10 (Def.’s Exh. H));
Doc. 41-4 at ¶¶ 15-20 (McGinnis Decl. (Def.’s Exh. D)); Doc. 43-1 at 20 (Pl.’s Br.).
On April 3, 2008, Plaintiff’s doctor cleared Plaintiff to “try out of full route” of mail
delivery starting April 7, 2008. Doc. 41-34 at 2 (Def.’s Exh. HH). Plaintiff returned to work
delivering mail on April 7, 2008. See Doc. 41-8 at 11-12 (Houser Dep. at 56:25 – 57:10 (Def.’s
Exh. H)). On April 11, 2008, Plaintiff allegedly injured his back while delivering mail. Doc. 418 at 15-16 (Houser Dep. at 62:23 – 63:13 (Def.’s Exh. H)).
ANALYSIS
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted
if, drawing all inferences in favor of the non-moving party, “the pleadings, depositions, answers
to interrogatories and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c).
To make out a prima facie case of discrimination under the Rehabilitation Act, the
plaintiff bears the burden to demonstrate that: (1) he has a disability; (2) he is otherwise
qualified to perform the essential functions of the job, with or without reasonable
accommodations by the employer; and (3) he nonetheless suffered an adverse employment action
as a result of discrimination. Donahue v. Consol. Rail Corp., 224 F.3d 226, 229 (3d Cir. 2000)
(citing Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996)); 29 U.S.C. § 794(a).
4
A. Plaintiff Does Not Have a “Disability”
Plaintiff may establish that he suffers from a “disability” if he can show that he has a
physical or mental impairment which substantially limits one or more of his major life activities.
29 U.S.C. § 705(20)(B) (referring to 42 U.S.C. § 12102).5
Here, various doctor’s notes indicate that, from August 7, 2007 to April 3, 2008, Plaintiff
experienced some limitations on the major life activities of walking, standing, and lifting. See 42
U.S.C. § 12102(2)(A) (listing examples of “major life activities”). A note from August 9, 2007
states that Plaintiff is “not able to stand for long periods of time,” Doc. 41-13 at 2 (Def.’s Exh.
M), and on November 6, 2007, a doctor limited Plaintiff to “[s]edentary work (Desk Job) no
prolong [sic] walking or standing,” Doc 41-21 at 3 (Def.’s Exh. U). From December 18, 2007 to
March 3, 2008, several doctor’s notes explained that Plaintiff should not stand or walk for more
than one to two hours a day, and that Plaintiff should not lift more than ten pounds. Doc. 41-29
at 3 (Def.’s Exh. CC); Doc. 41-31 (Def.’s Exh. EE); Doc. 41-33 (Def.’s Exh. GG). By April 3,
2008, however, a doctor cleared Plaintiff to return to work with no restrictions. Doc. 41-34 at 2
(Def.’s Exh. HH).
Plaintiff has not demonstrated that any of his major life activities was “substantially”
limited. Whether a limitation is “substantial” depends on the “nature and severity of the
impairment,” the “duration or expected duration of the impairment,” and the actual or expected
“permanent or long term impact” resulting from the impairment. Keyes v. Catholic Charities of
the Archdiocese of Phila., No. 10-1543, 2011 WL 713640, at *3 (3d Cir. Mar. 2, 2011) (quoting
29 C.F.R. § 1630.2). A temporary impairment that limits a major life activity is not a
5
A plaintiff also may establish “disability” by demonstrating that he: (1) has a record of such
an impairment; or (2) is regarded as having such an impairment. 29 U.S.C. § 705(20)(B)
(referring to 42 U.S.C. § 12102). Plaintiff, however, does not appear to advance either of
these theories of disability. Additionally, Plaintiff has presented no evidence that he has a
record of such an impairment or that Defendant regarded him as having such an impairment.
5
“disability” under the Rehabilitation Act. Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 380 (3d
Cir. 2002); McDonald v. Pa. Dep’t of Public Welfare, Polk Ctr., 62 F.3d 92, 94-97 (3d Cir.
1995).
The vague doctor’s notes from August 9, 2007 and November 6, 2007 provide no details
regarding the severity of Plaintiff’s impairments of walking and standing, and do not mention
any impairment of Plaintiff’s ability to lift. The later doctor’s notes indicate that Plaintiff should
not stand or walk for more than one to two hours per day and should not lift more than ten
pounds, but none of those impairments rise to the level of a disability. See Kelly v. Drexel
Univ., 94 F.3d 102, 106-108 (3d Cir. 1996) (holding “comparatively moderate restrictions on the
ability to walk are not disabilities,” and concluding that inability to walk more than a mile,
inability to jog, and difficulty climbing stairs did not rise to level of disability); Taylor v.
Pathmark Stores, Inc., 177 F.3d 180, 186-87 (3d Cir. 1999) (finding inability to stand or walk for
more than fifty minutes at a time did not rise to level of disability); Marinelli v. City of Erie, 216
F.3d 354, 363-64 (3d Cir. 2000) (finding inability to lift more than ten pounds is not substantial
limitation on major life activity of lifting). Most significantly, the April 3, 2008 doctor’s note
underscores the temporary nature of Plaintiff’s impairment, which lasted approximately eight
months from August 2007 to April 2008.6 A limitation of one to two hours of walking or
standing per day, combined with a limitation of no more than ten pounds of lifting, for a period
of only eight months, does not constitute a “substantial” impairment of one or more major life
6
Plaintiff’s medical condition following his alleged back injury on April 11, 2008, is
irrelevant to whether Plaintiff had a disability because Plaintiff does not allege any
discriminatory conduct after his April 11, 2008 injury. In any event, Plaintiff’s impairments
after his back injury were less severe than his impairments prior to his return to work on
April 7, 2008. A “Physician Activity Status Report” dated April 17, 2008, indicates that
Plaintiff was able to lift up to forty pounds and could stand or walk for up to four hours per
day. Doc. 41-37 at 2 (Def.’s Exh. KK).
6
activities. 7 See Rinehimer, 292 F.3d at 380 (“[A] temporary, non-chronic impairment of short
duration is not a disability covered by the ADA.”); McDonald, 62 F.3d at 95-96 (finding inability
to work during two-month recovery from surgery was not disability under Rehabilitation Act).
Thus, Plaintiff has not established that he has a “disability” covered by the Rehabilitation Act.8
B. Plaintiff Has Provided No Evidence of Being Forced to Work Beyond His Medical
Restrictions
Finally, Plaintiff has failed to demonstrate that he was forced to work beyond his medical
restrictions, either during the period that he was assigned to limited duty in November 2007, or
when he resumed mail delivery in April 2008. When Plaintiff was assigned to limited duty in
November 2007, his doctor prescribed “[s]edentary work (Desk Job) no prolong [sic] walking or
standing.” Doc 41-21 at 3 (Def.’s Exh. U). During this time, Plaintiff argues that he cased
routes, which required lifting and standing for long periods of time. Doc. 43-1 at 17-18 (Pl.’s
Br.). Plaintiff submitted the signatures of five witnesses that have knowledge of him performing
this work. Doc. 43-1 at 44 (Exh. to. Pl.’s Br.). But Plaintiff provides no evidence regarding the
precise meaning of his doctor’s prescription for “no prolong [sic] walking or standing,” and no
7
Once a court determines that an individual is not substantially limited in any major life
activity other than working, the court should consider whether the individual is substantially
limited in the major life activity of working. Keyes, 2011 WL 713640, at *3 (citing
Mondzelewski v. Pathmark Stores, Inc. 162 F.3d 778, 783 (3d Cir. 1998)). In the present
case, the temporary nature of Plaintiff’s impairment indicates that Plaintiff was not
substantially limited in any major life activity. Further, Plaintiff does not appear to assert
that he is substantially limited in the major life activity of working and has provided no
evidence that he was precluded from a “broad range of jobs.” Sutton v. United Air Lines,
Inc., 527 U.S. 471, 492 (1999) (explaining that substantial limitation in the major life activity
of working requires preclusion “from more than one type of job, a specialized job, or a
particular job of choice”).
8
Because the Court finds that Plaintiff has not established that he has a disability, the Court
declines to address Defendant’s arguments regarding whether Plaintiff was “otherwise
qualified” and whether a reasonable accommodation was available. See McDonald, 62 F.3d
at 96-97 (declining to address whether reasonable accommodation would make plaintiff
otherwise qualified where plaintiff “fail[ed] to meet the threshold test of disability”).
7
evidence establishing the details of the work he was allegedly forced to perform. The five
witnesses referenced by Plaintiff signed a document that states: “A list of people that have
knowledge of Clarence Houser casing and pulling down routes to carry for overtime.” Id. The
document provides no information about what the witnesses observed (e.g., how long Plaintiff
stood during a work day or how much he lifted, whether someone “forced” Plaintiff to perform
those functions). Plaintiff, therefore, has not demonstrated that he was forced to work beyond
his medical restrictions while casing mail in November 2007.
With respect to Plaintiff resuming mail delivery in April 2008, Plaintiff admits that his
doctor cleared him to work with no limitations. Doc. 43-1 at 21 (Pl.’s Br.). Plaintiff seems to
suggest that Defendant intentionally assigned him an unfamiliar mail delivery route with a “high
volume” of mail. Id. But Plaintiff provides no evidence to support this allegation and his
contention is wholly undercut by the fact that he had no work restrictions when he returned in
April of 2008. Plaintiff, therefore, has not demonstrated that he was forced to work beyond his
medical restrictions while delivering mail in April 2008.
CONCLUSION
For all of the reasons stated above, Defendant’s Motion for Summary Judgment (Doc.
38) is granted and Plaintiff’s Motion for Summary Judgment (Doc. 42) is denied.
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II.
ORDER
For the reasons stated above, the Court hereby ORDERS that, Defendant’s Motion for
Summary Judgment (Doc. 38) is GRANTED and Plaintiff’s Motion for Summary Judgment
(Doc. 42) is DENIED.
IT IS SO ORDERED.
s/ Cathy Bissoon
Cathy Bissoon
U.S. Magistrate Judge
May 9, 2011
cc:
Clarence C. Houser, Jr. (via U.S. Mail)
All counsel of record (via CM/ECF e-mail)
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