Bennett v. Henderson

Decision Date07 August 1998
Docket NumberCivil Action No. 97-2151-GLR.
Citation15 F.Supp.2d 1097
PartiesDavid O. BENNETT, Plaintiff, v. William J. HENDERSON,<SMALL><SUP>1</SUP></SMALL> Postmaster General of United States Postal Service, Defendant.
CourtU.S. District Court — District of Kansas

Shellie L. James, Sloan, Listrom, Eisenbarth, Sloan & Glassman, Overland Park, KS, for Plaintiff.

Robert A. Olsen, Office of United States Attorney, Kansas City, KS, for Defendant.

MEMORANDUM AND ORDER

RUSHFELT, United States Magistrate Judge.

The court has under consideration Defendant's Motion for Summary Judgment (doc 26) and a Motion For Leave to File Separately Attachments to Declarations of Mark Scarborough and John Ford Submitted with Memorandum in Support of Defendant's Motion for Summary Judgment (doc. 28). Plaintiff opposes the motion for summary judgment. He has filed no response to the motion for leave. Accordingly, the court grants the latter motion as uncontested. See D.Kan. Rule 7.4. The court will consider the documents attached to the motion for leave as attachments to the submitted declarations.

Pursuant to Fed.R.Civ.P. 56(c), defendant seeks summary judgment on the claims of plaintiff. Plaintiff alleges discrimination in violation of the Rehabilitation Act of 1973 (the Act), 29 U.S.C. §§ 701-797b (1985 & Supp.1998). Section 501 of the Act, 29 U.S.C. § 791, protects federal employees from discrimination on the basis of disability.2 Johnson v. United States Postal Serv., 861 F.2d 1475, 1477-78 (10th Cir.1988). Plaintiff specifically alleges that defendant failed to accommodate him as a disabled individual protected under the Act and retaliated against him and terminated his employment because of his disability. (Pretrial Order, doc. 30, ¶ 4.) The following facts are either uncontroverted or, if controverted, viewed in the light most favorable to the plaintiff. Applied Genetics Int'l Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir.1990). The court has ignored immaterial facts and those not properly supported in the record. Pursuant to D.Kan. Rule 56.1, the court has deemed "[a]ll material facts set forth in the statement of the movant ... admitted for the purpose of summary judgment unless specifically controverted by the statement of [plaintiff]."

I. Factual Background

On Thursday June 23, 1994, plaintiff worked for defendant as a General Expediter (GE) PS-6 at its General Mail Facility in Kansas City, Kansas (GMF). On that date he completed his assigned duties and left work at the end of his shift with no complaint of injury or accident. Although experiencing soreness, he returned to work Friday, June 24, 1994. Throughout June 25 and 26, 1994, he experienced increased pain and stiffness in his cervical back area. He thus scheduled an appointment with his health care provider, Kaiser Permanente, for Monday, June 27, 1994. On that Monday he asked defendant to grant him two weeks sick leave.

On July 8, 1994, Paul W. Baumert, Jr., M.D. examined plaintiff. He diagnosed right cervical radiculopathy. He ordered plaintiff off work until July 22, 1994. He saw plaintiff for follow-up on July 22 and would not release him to work. On August 3, 1994, he released plaintiff for light duty until August 19, 1994, with the following restrictions: minimal stooping, twisting, and bending and minimal pushing, pulling, and repetitively lifting over twenty pounds. Defendant accommodated these restrictions by assigning plaintiff to available light duty positions. Plaintiff continued on light duty status until August 25, 1994, when he returned to regular duty. While attempting regular duty, he admitted to defendant that he could no longer perform the functions of the GE position. Accordingly, he did not return to work after September 5, 1994. On November 23, 1994, Dr. Baumert advised defendant that the condition of plaintiff would not improve and that plaintiff should seek a position in another environment.

On January 20, 1995, L.F. Glaser, M.D. examined plaintiff. Dr. Glaser concurred with the diagnosis of Dr. Baumert. Dr. Glaser indicated that he would not permit plaintiff to perform the duties of GE.

On February 20, 1995, Geoffrey L. Blatt, M.D. recommended that plaintiff should try returning to work. He further recommended that plaintiff look for a less strenuous position should that attempt fail. Dr. Blatt later opined in March 1995 that, although plaintiff would most likely not sustain more serious injury by returning to work, he had no problem recommending a career change. On January 9, 1996, Dr. Baumert opined that plaintiff "is very capable of gainful employment in a desk-type job which requires little strenuous activity."

Plaintiff has degenerative cervical disc disease. It prevents strenuous activities. His medical care providers have restricted his job opportunities to those which do not involve bending, twisting, stooping, pushing, pulling, and lifting more than twenty pounds. They have recommended that he switch to a more sedentary position. Plaintiff has difficulty, furthermore, in standing or sitting for long periods of time. His limitations preclude mowing the lawn, lifting a laundry basket, pushing a vacuum cleaner, maintaining an automobile, and performing recreational activities, such as softball.

Plaintiff has acknowledged that he cannot perform the duties of the GE position or the light duty tasks available at the GMF. In August or September 1994 he briefly spoke with his supervisor Charlie Frazier about changing the doors at the GMF to accommodate his condition. He asked no one, however, to evaluate whether the doors could be changed to accommodate his condition. He never asked for automated plates as an accommodation for his condition. He never requested the procurement of a motorized riding device or chair to assist him. He made no specific request for any other aids to accommodate his condition. His primary aim was to transfer to a vacancy within the GMF. He basically sought accommodation in the form of job transfer, rather than any type of expensive equipment or changes. Defendant had no vacant position to which it could transfer him, however, with physical restrictions within the limits that he could tolerate.

On December 19, 1994, plaintiff filed a formal complaint with the EEO Complaint Processing unit of the Mid America District of defendant. Among other remedies, he sought accommodation in the form of education, training, and job placement outside the United States Postal Service. The EEO counselor memorialized these requested accommodations in an Inquiry Report. Plaintiff has repeatedly requested either education, training, or job placement in the form of detail, transfer, or reassignment with the defendant. Other than the brief conversations with Mr. Frazier, plaintiff has sought no other accommodation.

By letter dated August 1, 1995, plaintiff sought a transfer to another governmental agency. He stated in that letter that he could no longer perform his "required job duties." He sought a position compatible with his physical restrictions. On August 7, 1995, defendant advised plaintiff that it could not transfer him to another federal agency, but he could request transfer to another Postal Service installation. On August 10, 1995, plaintiff requested information regarding detail, transfer, or reassignment. He sought education, training, and job placement with Continuation of Pay. In August of 1995 defendant had no positions to which it could transfer plaintiff. Although defendant could not transfer plaintiff within the Postal Service, it did locate an open position with the General Service Administration that was within his limitations.

Besides filing a formal complaint of discrimination, plaintiff has pursued several avenues of relief since June 23, 1994. On July 11, 1994, he requested Continuation of Pay (COP) benefits while he pursued a claim for injury under the Federal Employees' Compensation Act with the Office of Workers' Compensation Programs (OWCP), United States Department of Labor. He received such benefits for the period of July 8 through August 3, 1994. On September 12, 1994, he submitted a Notice of Occupational Disease and Claim for Compensation (CA-2 form) to his supervisor, Charlie Frazier. OWCP denied this claim initially and upon reconsideration.

The parties have engaged in much correspondence regarding the proceedings initiated by plaintiff and his work status. By letter dated September 21, 1994, defendant directed plaintiff to return to work by September 26, 1994, or show cause why he should be excused from work. It informed plaintiff that failure to explain his absences would result in his being designated Absent Without Leave (AWOL) and possibly disciplinary action, including termination. It further directed that plaintiff provide acceptable documentation from a physician. In response plaintiff referred defendant to the CA-2 form. On November 7, 1994, plaintiff contacted an Equal Employment Opportunity (EEO) Counselor and claimed discrimination under the Rehabilitation Act by reason of the letter of September 21, 1994. On November 19, 1994, and January 20, 1995, defendant requested that plaintiff provide documentation about his work status and anticipated date of return to work. Plaintiff advised defendant that he would provide such documentation when he received it.

On July 20, 1995, defendant notified plaintiff that his COP benefits had been denied and that his payroll records needed to be changed to sick leave, annual leave, or leave without pay. On July 24, 1995, plaintiff informed defendant that he would authorize no adjustment to his payroll record, until the OWCP again reviewed his claim. On August 21, 1995, defendant advised plaintiff that his claim had been disallowed and that, by August 28, 1995, he should report for duty or provide documentation as to his inability to work. It also advised him that failure to respond could result in corrective action,...

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