Opinion
Civil No. 03-6107-HO.
September 21, 2004
ORDER
Plaintiff brings this action pursuant to the Rehabilitation Act, 29 U.S.C. §§ 701 et seq. Plaintiff alleges that he was employed as a supervisor of customer service from March 14, 1998, until he was forced into medical retirement on November 15, 2002.
Plaintiff alleges that he suffers from ulcerative colitis, Krown's disease, irritable bowel syndrome, and post traumatic stress disorder from his military service during the Gulf War. Plaintiff maintains that he qualifies as a handicapped individual under the Rehabilitation Act. Plaintiff further alleges that he requested reasonable accommodation from his employer and did not receive it, resulting in physical and emotional pain. The accommodation requested by plaintiff and allegedly refused by defendant was a transfer and removal of supervisory duties. Plaintiff also alleges that because he requested accommodation under the Rehabilitation Act and filed an EEOC complaint, defendant proposed plaintiff's termination in May 2002 and forced plaintiff into medical retirement. Plaintiff asserts claims for discrimination and retaliation based on the Rehabilitation Act.
The government moves for summary judgment against plaintiff's discrimination claim asserting that plaintiff was not disabled within the meaning of the Rehabilitation Act, plaintiff was not otherwise qualified to perform the essential functions of his job with or without accommodation, plaintiff has failed to identify any reasonable accommodations, and plaintiff did not suffer any adverse employment action. The government moves for summary judgment against plaintiff's retaliation claim asserting that plaintiff was not subject to an adverse employment action and that there is no causal link between plaintiff's EEOC complaint and the proposed termination.
A. Failure to Accommodate Claim
The standards of the Americans with Disabilities Act (ADA) are used to determine if a violation of the Rehabilitation Act has occurred. 29 U.S.C. § 791(g). In order to qualify for relief, the plaintiff must show that: (1) he is a disabled person within the meaning of the statute; (2) he is qualified, with or without reasonable accommodation, to perform the essential functions of the job he holds or seeks; and (3) that he suffered an adverse employment action because of his disability. See Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996). Defendant contends that plaintiff is not disabled, that he is not otherwise qualified with or without reasonable accommodation, and that he did not suffer any adverse employment action.
1. Disability
"Disability" means:
(1) A physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(2) A record of such an impairment; or
(3) being regarded as having such an impairment.
"Physical or mental impairment" means:
(1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or
(2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.29 C.F.R. § 1630.2(h)
"Major Life Activities: means
functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.29 C.F.R. § 1630.2(i)
substantially limits means:
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.29 C.F.R. § 1630.2(j)(1).
With respect to the major life activity of working, substantially limits means "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. § 1630.2(i)(2)(3)(i).
Plaintiff asserts that he was substantially limited in working and interacting with others. As noted above, working is a major life activity.
Plaintiff maintains that his condition significantly restricted his ability to perform supervisory jobs primarily because of the stress involved. On May 1, 2000, plaintiff wrote a letter requesting accommodation in the form of a transfer from supervisory duties due to ulcerative colitis and post-traumatic stress disorder. Plaintiff was initially placed on medical leave without pay, but after complaining the leave was changed to administrative leave with pay.
Plaintiff suffered no loss of pay or benefits.
In response to being placed on leave, plaintiff submitted a note from Dr. Whitehead of the Veteran's Administration dated May 4, 2000, in which Dr. Whitehead stated that plaintiff "can continue working as a supervisor while his transfer is processed." Ex. 120 (attached to #25). On May 10, 2000, Dr. Whitehead clarified that he "prefer [plaintiff] move from a position managing others within the next four months," but that "he can continue as a customer service manager." Ex 124 (emphasis in original). While plaintiff's medical evidence is not entirely clear, plaintiff has created an issue of fact as to whether he is substantially limited in performing his supervisory job even though plaintiff continued working in the his position from the time he returned to work on May 23, 2000, until November 15, 2002 and that fitness for duty exams conducted by the Postal Service demonstrated an ability to perform the job of manager.See Ex. 107, 109, and 128. By August 7, 2002, Dr. Whitehead does opine that the severity of plaintiff's symptoms make it impossible for him to perform the duties required of his supervisory position. Ex. 149, p. 35.
Plaintiff states that his condition caused him to be absent from work on a regular basis. Defendant did remove supervisory duties as an accommodation.
The inability to perform a postal service supervisor job may not equate to being significantly restricted in the ability to perform a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. Plaintiff, however, argues that he cannot perform any job where he is required to deal with people in a one on one manner with sufficient evidentiary support. This does preclude a class of jobs or broad range of jobs and thus plaintiff has demonstrated, for purposes of opposing summary judgment, he is a disabled person. However, plaintiff essentially demonstrates that he is unable to perform any job with the postal service with or without accommodation.
Plaintiff also asserts that interacting with others is a major life activity. See Nimi-Montalbo v. White, 243 F.Supp.2d 1109, 1123 (D.Hawaii). However, at best plaintiff presents sufficient evidence only to demonstrate restriction on the ability to interact with others in the work place and not in general. To show that he is substantially limited in his ability to interact with others, plaintiff must show that "relations with others were characterized on a regular basis by severe problems, for example, consistently high levels of hostility, social withdrawal, or failure to communicate when necessary." Id. Quoting McAlindin v. County of San Diego, 192 F.3d 1226, 1235. "Mere trouble getting along with coworkers is not sufficient to show a substantial limitation." McAlindon, 192 F.3d at 1235. As noted above, plaintiff's assertions of inability to interact with others in the workplace demonstrates that he is not otherwise qualified to perform his job with the Postal Service.
Plaintiff's memo only relates that he has a stress reaction when disciplining his children and during conflict with his wife, and then without cite to the record states that when he is faced with interactions, his symptoms exacerbate. The government notes that plaintiff communicates effectively with his medical providers, interacts with his daughters, engages in recreational activities with family and friends, chauffeurs his daughter and her friends, assists his daughter's volleyball team and engages in workouts at the gym with his wife.
2. Otherwise Qualified
Plaintiff concedes he was not otherwise qualified for his supervisory job with or without accommodation, but argues that he was qualified for a transfer position. A "qualified individual with a disability" includes an individual "who could perform the essential functions of a reassignment position, with or without reasonable accommodation." Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1111 (9th Cir. 2000) (en banc), vacated in part on other grounds, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002). However, plaintiff fails to identify the position he could qualify for in light of the fact that his alleges inability to interact with others. Rather, plaintiff argues that he initiated an inquiry into whether he could be accommodated by a transfer and that obligated defendant to assist in identifying an available position. Accordingly, plaintiff argues summary judgment must be denied because defendant failed to engage in a good faith interactive process.
Plaintiff claims in his memo that he in fact applied for a position that he was otherwise qualified for, an operation support specialist (without documentary support), but he does not state how he could be qualified in light of his alleged inability to interact with others. Plaintiff also claims he identified labor relations specialist as a job for which he is qualified. It appears that the positions plaintiff claims he could have qualified for were in the Portland area. The government maintains that there were no vacant positions within plaintiff's commuting area. See Mclean v. Runyon, 222 F.3d 1150, 1153 (9th Cir. 2000).
On October 11, 2001, the USPS District Reasonable Accommodation Committee met with plaintiff regarding reasonable accommodation. On October 12, 2001, the Committee determined that plaintiff's condition was too severe to accommodate because plaintiff stated, to the effect, that he would likely be unable to maintain regular attendance in any position. See Ex. 131, 132. Plaintiff did not appeal this decision.
The Committee also noted that plaintiff had been accommodated in that he was not required to supervise employees for sometime, but still missed work half the time. See Ex. 131.
Plaintiff was advised of his right to appeal within 45 days. Not only did plaintiff fail to appeal, he included the findings to support his subsequent application for disability.
On December 14, 2001, plaintiff made an application for disability with the Office of Personnel Management indicating he had been disabled since May of 2000. Ex. 133. The application was approved on October 25, 2002. Ex. 133. Thus, plaintiff fails to demonstrate how any accommodation could have been made or what additional process the USPS should have engaged in to accommodate him. Plaintiff does not adequately explain the contradiction between his claims of disability and claims of being "otherwise qualified." Plaintiff fails to discuss the requirements for the jobs he claims he was "otherwise qualified" for or how his inability to interact with others would not prevent him from performing these jobs with or without accommodation.
While the ADA does require good faith interaction, it requires it on the part of both parties. Plaintiff requested a transfer in May of 2000. The request was forwarded to the USPS District Reasonable Accommodation Committee. Shortly thereafter, plaintiff filed applications with the Department of Labor Office of Workers Compensation which required obtaining medical opinions. The claim was denied on January 8, 2001, and plaintiff's request for accommodation was then placed on the USPS District Reasonable Accommodation Committee agenda. Plaintiff did not respond to the Committee's request to meet until October, 2001 after a last chance letter was sent. See Declaration of Paul Nettler (attached to #25). During the meeting, plaintiff claimed he would probably have a problem with attendance even his job was "operating a snow cone machine." Ex. 131. Prior to the meeting, defendant had removed the requirement of supervising employees and contact with the public, but plaintiff claims this was not enough. Defendant engaged in the USPS District Reasonable Accommodation Committee process which was slowed by the worker's compensation claim. As noted above, plaintiff has failed to identify a position that defendant should have offered as a transfer option that he was "otherwise qualified" to perform. There are no issues of fact as to whether defendant engaged in good faith in the interactive process or that plaintiff is "otherwise qualified."
3. Adverse Employment Action
Plaintiff maintains that the adverse employment actions he suffered were the leave without pay incident and the failure to accommodate his request for transfer. As noted above, plaintiff fails to identify a transfer job for which he was qualified and defendant did make attempts at accommodation. Moreover, within five days of plaintiff's complaint regarding his leave without pay, his leave was changed to administrative leave with pay. Plaintiff suffered no pay loss or loss of leave time. Thus, the incident does not qualify as an adverse employment action. Cf. Brooks v. City of San Mateo, 229 F.3d 917, 929 (9th Cir. 2000) (That employer city rescheduled plaintiff to an unfavorable shift and denied her vacation preference after she complained about sexual harassment was not an "adverse employment action" for purposes of retaliation claim under Title VII because those actions were not final, and when plaintiff complained, the city accommodated her preferences by allowing her to switch shifts and vacation dates with other employees).
Because plaintiff has failed to adequately demonstrate that he was otherwise qualified or that he suffered an adverse employment action, defendant's motion for summary judgment is granted with respect to plaintiff's first claim for relief.
B. Retaliation Claim
Plaintiff alleges that defendant has taken measures in retaliation for plaintiff asserting his statutory rights including: (1) Proposing plaintiff's termination in May of 2002; and (2) forcing plaintiff into medical retirement because defendant refused to accommodate him.
To prevail on this claim, plaintiff must show that (1) he engaged in a protected activity; (2) defendant subjected him to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action. See Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994). If plaintiff asserts a prima facie retaliation claim, the burden shifts to defendant to articulate a legitimate nondiscriminatory reason for its decision. Id. at 1464-1465. If defendant articulates such a reason, plaintiff bears the ultimate burden of demonstrating that the reason was merely a pretext for a discriminatory motive.Id. Plaintiff maintains that after he filed an EEO complaint, defendant was not willing to process his transfer request for approximately 17 months and proposed plaintiff's removal from employment.
The proposed termination was never acted upon and thus was not an adverse employment action. Cf. Brooks, 229 F.3d at 929. Moreover, the proposal came about 21 months after the EEO complaint was filed and was proposed by someone other than who was named in the complaint.
Plaintiff's complaint does not allege the delay in addressing the transfer request only the refusal to accommodate him. As noted above, plaintiff fails to demonstrate that he was otherwise qualified with accommodation. Plaintiff's allegations of disability and qualification for his job or some other job within the USPS are simply inconsistent. To the extent plaintiff would be allowed to now assert delay as retaliation, plaintiff does not adequately dispute Nettler's reasonable explanation that the delay was caused by the lack of medical record initially, plaintiff's repeated unavailability to meet with the Committee, and because the plaintiff was being accommodated temporarily through the removal of supervisory duties and contact with the public. See Declaration of Paul Nettler at ¶¶ 16-18. Accordingly, defendant's motion for summary judgment is granted on plaintiff's second claim for relief.
In order to bring a retaliation claim under the Rehabilitation Act, a federal employee must exhaust available administrative remedies. See 29 C.F.R. § 1614.105(a). Plaintiff did not raise the issue of failure to timely process his transfer request in his EEO complaint. Failure to comply with exhaustion requirements is fatal to the claim. See Chersoky v. Henderson, 330 F.3d 1243, 1245 (9th Cir. 2003).
CONCLUSION
For the reasons stated above, defendant's motion for summary judgment (#22) is granted and this action is dismissed.