Failey v. Donahoe, No. 03:11-cv-01088-HU

CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)
Writing for the CourtDennis James Hubel
PartiesTHELMA ANN FAILEY, Plaintiff, v. PATRICK R. DONAHOE, Postmaster General; SHARON BLACKBURN, Facilities Manager; and UNITED STATES POSTAL SERVICE; Defendants.
Decision Date26 March 2013
Docket NumberNo. 03:11-cv-01088-HU

Facilities Manager; and UNITED STATES POSTAL SERVICE; Defendants.

No. 03:11-cv-01088-HU


Dated: March 26, 2013


Michael Fuller
Carl Cramer, Certified Law Student
Olsen Daines, PC
Attorneys for Plaintiff

S. Amanda Marshall
United States Attorney, District of Oregon
Janice E. Hebert
Assistant United States Attorney
Chris Morgan, Certified Law Student
Attorneys for Defendants

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HUBEL, Magistrate Judge:

The plaintiff Thelma Ann Failey brings this discrimination action against her former employer United States Postal Service ("USPS"); Patrick R. Donahoe, who is United States Postmaster General; and Sharon Blackburn, who was the Facilities Manager at the USPS's Mount Hood Detached Distribution Center ("DDC) in Portland, Oregon, during a portion of the time Failey worked at the DCC. Failey claims she was "forced into 'early retirement' . . . because of the color of her skin, her age, and her disability[,] . . . and because she had the courage to complain of prior discrimination." Dkt. #18, Second Amended Complaint, ¶¶ 1, 16. The matter currently before the court is the defendants' "Motion to Dismiss and in the Alternative for Summary Judgment." Dkt. #31; see Dkt. ## 32, 33, 37, & 38. Failey has opposed the motion, Dkt. ## 34 & 35, and the court heard oral argument on the motion on February 7, 2013. The motion is fully briefed and ripe for decision.


Failey worked at the DDC as a Mail Processing Clerk for nearly ten years. She had some health problems during that time that are only documented sparsely in the record before the court. She suffered a back injury on August 30, 2000, which resulted in some type of temporary modified duty restrictions through January 23, 2001.1 In June 2003, Jane O. Drummond, M.D., who was treating Failey for "chronic cervical radiculopathy," indicated Failey's

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work on "the FSM 100 sorting machine" was exacerbating her symptoms, and Failey should be restricted to working on the machine for "four hours with two hour breaks in between."2

Failey apparently suffered "neck and rotator cuff injuries in 2004,"3 which resulted in some type of work restrictions. Doctor's notes from July 2008, indicate Failey was assigned permanent modified duty restrictions as of May 29, 2007, that included no repetitive lifting over 15 to 20 pounds, no work at or above right shoulder level, and avoid work on "the AFSM 100 mail processing machine," although she was authorized to "push and pull up to 15-20# of force (not including cart or equipment weight) on wheels, etc."4

Failey was authorized to be off work from February 28, 2008, through March 27, 2008, for surgery to remove a mass in her lower left quadrant.5 She was seen in the ER on July 13, 2008, for an apparent neck injury, and was authorized to be off work through July 15, 2008. Upon her return, she was to be restricted to "no lifting more than 5 lbs., pushing, pulling, work at shoulder level or above [and] work requiring repeated or quick head movements for up to 2 weeks."6 Failey saw a doctor at Kaiser Permanente on July 18, 2008, to assert a new claim for workers' compensation

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benefits due to "sprain or strain of cervical spine."7 The workers' compensation form indicates a greater than 50% chance that Failey's injury was the "[r]esult of industrial exposure."8 She was released for modified work consistent with her existing restrictions through August 8, 2008.9 At a doctor's visit on August 12, 2008, her work restrictions were noted to be permanent.10

In addition to these injuries, Failey is diabetic, requiring the use of insulin. 11

At the time Blackburn came to the DDC, Failey was working on "Tour 2," a shift that went from 9:00 a.m. to 5:30 p.m. She had been working that shift as "a limited duty employee . . . for about 7 years."12 Blackburn's interactions with Failey took place between January and September 2008. 13 Blackburn does not hire and fire employees; her job is "to run the postal service in an efficient manner," which includes changing employees' shifts, and "[p]utting people where the need is, where the volume is."14 Blackburn observed that "a lot of employees on tour 2 day shift" - the shift when Failey was working - "were going home every day because there

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was no mail volume, and yet on swing shift around 8:00 [p.m.]," she was having to bring people in before their shift and pay a lot of overtime because of the higher mail volume. 15 As a result, Blackburn made the business decision to "excess, meaning get rid of jobs," the Tour 2 flat sorter crew, moving those employees to different shifts. 16 On July 25, 2008, Blackburn told Failey that she was going to be moved to Tour 3. 17 Soon thereafter, Blackburn gave letters to all of the employees whose shifts were going to be changed, and also had a "stand-up talk" with them regarding the upcoming change. 18 Failey received a letter dated August 8, 2008, advising her "that as a junior employee," she was "excess to the needs of the section," and her position was "no longer a necessary position based on the needs of the service due to the decrease in mail volume." The letter further stated that as of September 13, 2008, Failey's job schedule would be "1600 to 0030 with Schedule Days off on Sunday and Monday."19

In the Pre-Complaint Failey submitted to the USPS Equal Employment Opportunity office (the "EEO"), she indicated she and Blackburn had had discussions previously about moving Failey to Tour 3, and Failey had told Blackburn that due to her health

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problems - specifically, the scheduling of her insulin injections - she would not be "able to cope physically on tour 3."20 Failey asked for an accommodation to allow her to stay on Tour 2. 21 On August 13, 2008, the USPS referred Failey to the District Reasonable Accommodation Committee (the "DRAC"). The six-person DRAC met on August 21, 2008, to discuss Failey's request for accommodation. As part of their discussion, the DRAC talked with Failey by telephone. The DRAC recognized Failey's current medical restrictions, and found that none of her current restrictions related to the hours of work. The DRAC further found Failey's diabetes did not affect any of her major life activities. Failey's request for accommodation was denied. 22

Blackburn offered Failey a work schedule from 12:00 p.m. to 8:30 p.m., with the option of taking leave from 5:30 p.m. to 8:30 p.m. if Failey felt unable to complete the entire shift.23 Blackburn communicated this offer twice to an EEO representative, but Failey turned down the offer both times.24

Failey declined to accept the change from Tour 2 to Tour 3, instead taking disability retirement effective as of December 15,

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2008. Her last day in pay status with the USPS was September 28, 2008.25

On October 22, 2008, Failey filed an "EEO Complaint of Discrimination in the Postal Service."26 She claimed discrimination on the basis of Race ("African American"), Age ("60 yrs"), and Disability ("neck, back, shoulder").27 Failey described the nature of her discrimination claim as follows:

Ms. Failey was involved in an on the job injury in August of 2000. As a result, she suffered back injuries and therefore was put on light duty. She was involved in another on the job injury in 2003 in which she sustained injuries to her neck. Finally, she suffered a shoulder injury from an on the job accident in 2004. All of the accidents required Ms. Failey to remain on light duty. During her employment she made attempts to bid for certain jobs, specifically of a supervisor nature. Although she passed all the required tests, she was told that she should not bid for those jobs because of her light duty status, although she otherwise qualified.
Once Ms. Failey was finally given an opportunity to enter the supervisor training program, she was treated differently than the others in the program. She was micro-managed and over-evaluated during the program. She was criticized for not performing certain actions, in which others in the program were not criticized for [sic]. After the program was over Ms. Failey alleged age, race and disability discrimination.
The discrimination that occurred was not a single event, but was continuous action. Each time Ms. Failey was denied a chance to apply for a supervisor position she was being discriminated against because of her race, age

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and disability. She was treated differently because of her race. She was treated differently because she is 60 years old. On a number of occasions she was encouraged to seek early retirement by Sharon Blackburn. Further, she was discriminated against because of her physical disabilities. One of the reasons she was denied in applying for a supervisor position was because she was on a light duty as a result of her disabilities.
In August of 2008 Ms. Failey requested accommodations for her disability, the request being heard by the Accommodation Committee. Ms. Failey was interviewed by

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