Jordan v. U.S. Postal Service

• Decision Date: 20 August 2004
• Docket Number: No. 02-5196.,02-5196.
• Citation: 379 F.3d 1196
• Parties: Charles S. JORDAN, Jr., Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, John E. Potter, Postmaster, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

379 F.3d 1196

Charles S. JORDAN, Jr., Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, John E. Potter, Postmaster, Defendant-Appellee.

No. 02-5196.

United States Court of Appeals, Tenth Circuit.

August 20, 2004.

Appeal from the United States District Court for the Northern District of Oklahoma, Terry C. Kern, J Submitted on the briefs:^* Jean Walpole Coulter of Jean Walpole Coulter and Associates, Inc., Tulsa, OK, and Brian A. Curthoys, Tulsa, OK, for Plaintiff-Appellant.

David I. O'Meilia, United States Attorney; Loretta F. Radford, Assistant U.S. Attorney, U.S. Department of Justice, Tulsa OK; and Eric J. Scharf, Managing Counsel, and Stephan J. Boardman, Counsel of Record, United States Postal Service, Washington, D.C., for Defendant-Appellee.

Before SEYMOUR, McKAY, and TYMKOVICH, Circuit Judges.

McKAY, Circuit Judge.

Appellant Mr. Jordan appeals from a judgment granted in favor of Appellee United States Postal Service on his claim pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 791-793. He also appeals from the district court's ruling that although Appellee violated the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601-2654, Appellant "has no grounds for relief under the FMLA because he has shown no actual damages or grounds for equitable relief as a result of the retaliatory behavior of [Appellee]." Aplt.App. at 31.

The parties do not object to the relevant findings of fact entered by the district court after a bench trial on the Rehabilitation Act and the FMLA claims. See id. at 13-18. We summarize the facts as follows. Appellant began his relevant tenure of work for Appellee in Tulsa, Oklahoma, in 1994 as a part-time flexible clerk. From October 1996 through August 1997, and from February 1998 through April 1998, Appellant worked as a relief clerk at the Postal Source Data System ("PSDS"). Employee attendance is an absolute requirement for working at the PSDS. Appellant had excessive absences from work. Of the 254 days Appellant was scheduled to work during the October 1996 through August 1997 period, Appellant took forty-nine days of FMLA leave, eleven days of non-FMLA leave, seventeen days of annual leave, and eight hours of emergency leave. Of the fifty work days Appellant was scheduled to work during the February 1998 through April 1998 period, he used two days of FMLA leave, five days of non-FMLA leave, and four days of annual leave.

On May 1, 1997, shortly after being diagnosed with post-traumatic stress disorder, severe anxiety, paranoia, bipolar personality, and depression, Appellant requested sixty days of medical leave, which was granted. On July 5, 1997, he returned to work. On July 28, 1997, he requested a transfer from Tulsa to the Dallas postal facility due to his disability.

Although the Tulsa facility recommended that the Dallas facility accept the transfer request, each postal district makes its own decision regarding employee transfers. In fact, the collective bargaining agreement between Appellee and its employees mandates that the facilities operate independently of each other with respect to employee transfers. Therefore, under the collective bargaining agreement, the Tulsa postal facility could not force the Dallas facility to take an employee who has requested a transfer. In September 1997, the Dallas postal facility denied Appellant's transfer request because of his unexplained excessive absences, but informed Appellant by letter that his transfer request would be reconsidered if he explained his absences. Appellant did not respond to this letter.

On August 7, 1997, Appellant and his union steward met with Appellant's supervisor. At that meeting, Appellant's supervisor informed him that if he had further absences he would be placed on restricted sick leave and be given a letter of warning. Three days after this meeting Appellant's position was reposted. The notice of this reposting gave Appellant an opportunity to rebid his job.

On August 20, 1997, Appellant received a letter from Appellee informing him that he was involuntarily reassigned to the Airport Mail Facility as an unassigned regular, effective immediately. The reassignment occurred prior to the conclusion of the rebidding for his previous job, contrary to the Tulsa facility's traditional procedure of allowing an employee to remain in his current position until the bidding process is complete. Appellee offered no documentation supporting the necessity for the early reposting of Appellant's job. At trial, a co-worker testified that Appellant's supervisor reposted Appellant's position to get rid of him. The co-worker further testified that when Appellant returned to work following his FMLA leave, the supervisor's attitude toward Appellant was increasingly derogatory.

The same day that he was notified of his new status as an unassigned regular, Appellant wrote a letter containing a general implied threat of violence directed at his supervisor, the PSDS, and the personnel services for the Tulsa postal facility. Appellant's supervisor forwarded the letter to a threat assessment team, and on September 3, 1997, Appellant was placed on emergency leave without pay as a result of this letter. On September 10, 1997, Appellant sent a letter apologizing for his earlier threatening letter.

On September 23, 1997, Appellee notified Appellant that he was terminated. After Appellant filed a grievance, his termination was reduced to a six-month suspension (from October 31, 1997, until February 17, 1998) without pay. After further settlement negotiations, Appellee paid Appellant full back pay for the six-month suspension, with interest, and restored all leave that would have accrued during this period. Although the district court did not make a finding of fact on when Appellee received his back pay, it is clear from the record, and undisputed by Appellee, that back pay was given to Appellant in June 1998, about eight months after his suspension began.

In August 1999 Appellant returned to work, but, three months later, at the age of thirty-seven, he applied for and now receives disability retirement. Supp. to Rec., at 46-47. Disability payments are based on his psychologist's opinion that Appellant's mental disorders prevent him from returning to "any position at the U.S. Post Office." Id. at 95.

After a bench trial, the district court concluded that Appellant was disabled under the Rehabilitation Act but that Appellee had not violated the Act because it had offered all reasonable accommodations to Appellant. On the FMLA claim, the court found that Appellee violated Section 2615 of the FMLA by retaliating against him for exercising his FMLA rights and further found that Appellant "actually lost his wages and benefits during his time of suspension." Aplt.App. at 28. However, the court did not award damages on the ground that Appellant's "wages and benefits were already returned to him by the USPS, and to award them again would be granting a windfall to Plaintiff." Id.

On appeal, Appellant argues that the district court erred in holding that Appellee's failure to transfer him to Dallas did not violate the Rehabilitation Act and also erred in refusing to award liquidated damages and attorneys' fees for the FMLA claim. We review these issues of law de novo. Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1277 (10th Cir.2001).

We first address the Rehabilitation Act claim. The district court concluded as a matter of law that Appellee offered Appellant all reasonable accommodations, including allowing him to work shortened hours and assisting him in requesting a transfer to Dallas. Aplt.App. at 20-21. We affirm the district court's conclusion that Appellee offered all reasonable accommodations to Appellant and, therefore, did not violate the Rehabilitation Act.

"In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." 29 C.F.R. pt. 1630 App. 1630.2(o) (2003). Although under some circumstances an employer may offer a reassignment to a vacant position to accommodate a disability in this case Appellee was not required to transfer Appellant from Tulsa to Dallas in order to comply with the Rehabilitation Act.

Appellant argues that "[t]he only explanation given at trial for denial of Jordan's request for a transfer was the terms of the USPS collective bargaining agreement." Aplt. Br. at 19. But, Appellee's collective bargaining agreement (which mandates that each postal facility operates independently with respect to employee transfers) was only part of the explanation given for denying the transfer. The other critical fact — conceded by Appellant — is that, although Appellee told him it would reconsider his transfer request if he explained his absences, Appellant did not offer any explanation. In fact, Appellant gave no response to the Dallas facility's letter advising him that it would reconsider a transfer if Appellant explained his excessive absences.

Therefore, even if we agreed with Appellant that Appellee is "a single employer with multiple locations for purposes of accommodating Jordan's disability," Aplt. Br. at 5, and further agreed that the collective bargaining agreement cannot be enforced here, Appellant's claim would still fail since it was his failure to explain his absences, as requested, that caused his transfer denial to become final. For this reason, we agree with the district court that Appellee offered all reasonable accommodations required under the Rehabilitation Act, including offering him a shortened work day, facilitating a transfer request, and recommending that the transfer to Dallas be granted. Because we conclude that Appellee reasonably accommodated Appellant, we do not reach Appellee's alternative argument that Appellant was not a qualified individual with a disability under the Rehabilitation Act.

Appellant also appeals the...