Butler v. Potter

• Decision Date: 22 November 2004
• Docket Number: No. 3:02-CV-383.,3:02-CV-383.
• Parties: Jesse BUTLER, Plaintiff, v. John POTTER, Postmaster General, United States Postal Service, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

Page 844

345 F.Supp.2d 844

Jesse BUTLER, Plaintiff, v. John POTTER, Postmaster General, United States Postal Service, Defendant.

No. 3:02-CV-383.

United States District Court, E.D. Tennessee, at Knoxville.

November 22, 2004.

Robert S. Olive, Olive & Olive, PC, Knoxville, TN, for Plaintiff.

John T. Buckingham, Elizabeth S. Tonkin, U.S. Department of Justice, Office of U.S. Attorney, Knoxville, TN, for Defendant.

MEMORANDUM OPINION

VARLAN, District Judge.

This employment discrimination case is before the Court on two pending motions: defendant's Motion for Summary Judgment [Doc. 21] and defendant's Motion to Strike [Doc. 33]. After the initial round of briefs [Docs. 22, 30, 34, 35, 38], plaintiff was permitted to file an amended complaint and the parties filed supplemental briefs on the summary judgment issues [Docs. 41, 49, 50]. The Court has carefully considered the pending motions and related pleadings, in addition to the arguments of counsel presented on October 25, 2004, in light of controlling law and the entire record.

For the reasons set forth herein, defendant's motion to strike will be denied and defendant's motion for summary judgment will be granted in part and denied in part.

I. Relevant Facts

As the defendant has noted, the briefing in this case has been somewhat disjointed, perhaps because it is unclear exactly what claims plaintiff is asserting. The Court has endeavored to discern those facts that are both relevant and necessary for a fair evaluation of the pending motions in light of the claims as they can be ascertained. As the Court is required to do in reviewing a motion for summary judgment, the facts will be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Plaintiff Jesse Butler was previously employed as a mail carrier with the United States Postal Service in Anderson County, Tennessee. He complains that a supervisor in the post office, Roger Asbury, periodically screamed obscenities at him and accused him of being Indian or Middle Eastern. It is undisputed that plaintiff is neither of Indian nor Middle Eastern origin; he is a white Caucasian.

Plaintiff filed a complaint with the Postal Service Equal Employment Office ("EEO") on April 17, 1998, in which he checked national origin and sex as the bases for discrimination.¹ [Doc. 42 at ¶ 11; Doc. 30, Ex. 1.] Plaintiff claims that during the week before April 24, 1998, Mr. Asbury made reference to "cutting" someone in plaintiff's presence. On April 24, 1998, shortly after Mr. Asbury reportedly said "I'll just have to cut him" in plaintiff's presence, the plaintiff suffered a heart attack as he was unloading a case of mail.² [Doc. 42 at ¶ 13.] Plaintiff was hospitalized, underwent surgery, and was absent from work during a long period of convalescence.

During the period of time when plaintiff was recovering from heart surgery, he complains that he was not selected for a position as a Building Equipment Mechanic. [Id. at ¶ 15.] The only information regarding his non-selection came from Ron Thompson, a maintenance supervisor, who played in a music group with plaintiff. It appears, although the record is not entirely clear, that Mr. Thompson was not involved in the decision to fill that position. He also complains of available positions of which he was neither advised nor selected during his period of convalescence [Id. at ¶ 18], although he admits that the persons selected for these other positions had more seniority.

Plaintiff states that he was released to return to work with some physical restrictions on August 25, 1998. However, he was advised that the Postal Service had no available positions to accommodate his restrictions. Specifically, plaintiff alleges that he requested a truck or light duty assignment as a reasonable accommodation and his request was denied. [Id. at ¶ 19.]

Plaintiff's physical restrictions were lifted on November 1, 1998, and he returned to work on November 14, 1998. He complains that he was then assigned "the most difficult walking route in the service," that he had to carry packages in the rain, that he was advised he could not be out after dark, and he received very little assistance from other carriers on his first day. [Id. at ¶ 20.] He further asserts that Teresa Welch, a supervisor, orally reprimanded him, for bringing back undelivered mail. On November 21, 1998, plaintiff claims he was followed by temporary manager Mike Wankowski in a dangerous and unsafe manner.

Plaintiff complains of further inappropriate language by Roger Asbury during the period of November 14 and December 7, 1998. He also asserts that a grievance meeting was scheduled on the same day he was scheduled to attend an EAP appointment. After a grievance meeting on December 8, 1998, plaintiff complains that he was assaulted in the men's room by Mr. Asbury who was "thrashing his arms about vigorously as he washed his hands, with his elbows coming within an inch of plaintiff's face." [Id. at ¶ 25.] The sequence of the next few events is not entirely clear, but plaintiff requested sick leave and then was advised he missed an EAP appointment that he did not even know had been set. When he tried to return to work, he was charged with being Absent Without Leave (AWOL) for missing an EAP appointment. He requested further leave and was granted a week of leave. When he was scheduled to work again, he returned to work to avoid being charged with another AWOL. The last day worked by plaintiff was January 19, 1999, and he ultimately resigned from the Postal Service in September 1999.

Plaintiff claims that he is disabled by virtue of a major depressive disorder, which affects his sleep, his ability to have sexual relations, and his ability to mentally focus on his job. [Id. at ¶ 33.] He further asserts that he was perceived as being disabled because he requested stress counseling in April 1998 and because he provided documentation regarding his condition to Jack Edson upon his return to work. [Id. at ¶ 33.]

It is undisputed that plaintiff filed two EEO complaints while he was employed with the Postal Service [Doc. 41, Exs. 3, 4, 5, 6]. The first, number 4H370012898 ("the 1998 complaint"), was filed May 27, 1998, and plaintiff checked national origin (perceived as Arab or Indian) and sex as the bases of discrimination. The EEO office accepted his complaint for investigation on the following issues: "You were demeaned, harassed, and cursed by Management to the point that you feel unsafe on the workroom floor, and have torpedoed your chances at promotion and/or will torpedo any chance you have for promotion in the future." [Id. at Ex. 4.] Plaintiff submitted a lengthy affidavit, dated November 24, 1999, as part of the investigation of the 1998 complaint. [Doc. 49, Ex. A.] Plaintiff filed a second complaint, number 4H370005599 ("the 1999 complaint"), on April 9, 1999, in which he asserted race (presumed Arabic), national origin (presumed Arabic), disability (stress and anxiety), and retaliation as the bases of discrimination. [Doc. 41, Ex. 5.] Plaintiff also submitted a lengthy affidavit during the investigation of the 1999 complaint which is contained in the record. [Doc. 30, Ex. 2 at pp. 13-32.]

As set forth in his Amended Complaint, plaintiff asserts discrimination because of his disability, including a failure to accommodate a disability, perceived race and/or national origin discrimination, hostile work environment, retaliation, and constructive discharge. [Doc. 42 at ¶ 1.]

II. Defendant's Motion to Strike

The defendant has moved [Doc. 33] to strike certain materials submitted in support of plaintiff's response to the motion for summary judgment. Specifically, defendant objects to: (1) the affidavit of Maria O'Shaughnessy; (2) Exhibit 1 to plaintiff's affidavit, pp. 92-96, 104-106, 115-117, 123-137; (3) Exhibit 3 to plaintiff's affidavit; and (4) Exhibit 7 to plaintiff's affidavit.³ Defendant contends that these materials do not meet the criteria of Fed.R.Civ.P. 56(c), which specifies the type of documents on which the Court may base its ruling on a motion for summary judgment. Defendant argues that the O'Shaughnessy affidavit and attached letter are objectionable because Dr. O'Shaughnessy was not disclosed as an expert witness, because no foundation has been laid for the opinions expressed in the affidavit, and the affiant lacks the expertise to express some of the opinions contained in the affidavit. The documents within Exhibit 1 and Exhibit 3 objected to by defendant are unauthenticated medical records which include the opinions of medical providers. Finally, defendant objects to Exhibit 7 as it is a bench decision from a discrimination complaint filed by another former employee of the Postal Service. Defendant argues that this opinion, offered for the administrative law judge's factual conclusions regarding Roger Asbury, are irrelevant to the instant case. In sum, defendant argues that these documents should be stricken from the record and should not be considered by the Court in ruling on the pending motion for summary judgment. [Doc. 34.]

Plaintiff opposes the motion to strike and submits that defendant has been properly notified of his intent to rely on the expert opinions of Dr. O'Shaughnessy through initial disclosures and written discovery. Plaintiff also argues that the legal authorities relied upon by the defendant are inaccurate in light of the Supreme Court's decision in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and that affidavits submitted in opposition to summary judgment no longer have to be admissible in evidence. Plaintiff further argues that most of Dr. O'Shaughnessy's opinions are within the purview of her expertise. With respect to the medical documents, plaintiff submits that they are offered to show the knowledge of the Postal Service employees of the...