Florence v. Frank

• Decision Date: 16 September 1991
• Docket Number: No. CA3-90-0310-G.,CA3-90-0310-G.
• Parties: Gerald G. FLORENCE v. Anthony M. FRANK, Postmaster General of The United States.
• Court: U.S. District Court — Northern District of Texas

774 F. Supp. 1054

Gerald G. FLORENCE v. Anthony M. FRANK, Postmaster General of The United States.

No. CA3-90-0310-G.

United States District Court, N.D. Texas, Dallas Division.

September 16, 1991.

COPYRIGHT MATERIAL OMITTED

Stafford Hutchinson, Asst. U.S. Atty., Dallas, Tex. and William H. Brown, Jr., Office of Field Legal Service, U.S. Postal Service, Memphis, Tenn., for U.S. Postal Service.

Mark Williams, Fort Worth, Tex., for plaintiff Gerald Florence.

ORDER

FISH, District Judge.

After making an independent review of the pleadings, files and records in this case, and the findings, conclusions and recommendation of the United States Magistrate Judge, I am of the opinion that the findings and conclusions of the Magistrate Judge regarding defendant's Motion for Summary Judgment are correct and they are adopted as the findings and conclusions of the Court.

IT IS THEREFORE ORDERED that the Findings, Conclusions and Recommendations of the United States Magistrate Judge are adopted.

SIGNED AND ENTERED.

FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE ACTING AS SPECIAL MASTER

JANE E. JACKSON, United States Magistrate Judge. Sept. 6, 1991.

Pursuant to the District Court's Order of August 23, 1990, referring the above referenced case to the undersigned to act as a special master, pursuant to Rule 53, Fed. R.Civ.P. and Title 28, United States Code, Section 636(b)(2), the following findings, conclusions and recommendations of the Magistrate Judge regarding the Motion for Summary Judgment are submitted to the District Court.

This is a suit by Gerald G. Florence ("Florence"), plaintiff, against the United States Postal Service ("Postal Service") based on Title VII of the Civil Rights Act of 1964, (as amended, 42 U.S.C. § 2000e et seq.); § 501 of the Rehabilitation Act of 1973 (as amended 29 U.S.C. § 791 et seq.) and 39 U.S.C. § 1208(b) of the Postal Reorganization Act (39 U.S.C. § 101 et seq.). Plaintiff complains that he has been discriminated against on the basis of race and sex in violation of Title VII. He also complains that he has been discriminated against on the basis of his handicap in violation of the Rehabilitation Act, and further that the Postal Service breached a collective bargaining agreement by transferring him to a particular postal station in violation of 39 U.S.C. § 1208(b) of the Postal Reorganization Act.

Before the Court is the defendant's Motion for Summary Judgment. For the reasons set out below, I recommend that the motion be granted.

FACTUAL SUMMARY

Plaintiff is a thirty-four (34) year old black male employee of the Postal Service hired on July 8, 1985, as a letter carrier. (Plaintiff's Deposition¹ at 7) He suffered a back injury (a chronic lumbosacral spine sprain) as a result of an on-the-job injury sustained in an automobile accident on August 21, 1986. (Id. at 77); (Deposition Exhibit² No. 1). As a result of his injury, he was out of work for seven (7) months. (Id. at 17.) He applied for and was paid injury compensation by the Department of Labor for the seven (7) months he was out. (Id. at 18.) At the time of his injury his duties included walking and carrying mail. (Id. at 16) His injury prevented him from those activities. (Id.) When he returned after seven (7) months, he was unable to return to full duties. (Id. at 18) In July, 1987, he bid on a letter carrier job at the Highland Hills Station which he was awarded on the basis of his seniority. (Id. at 19) The specific job required eight (8) hours, however, at this time plaintiff could only work four (4) hours and do sedentary work. (Id. at 204-205, Henderson Affidavit³ P. 2, Dep.Ex. No. 1) The bid position was route 4151, "a park and loop" route, which required walking and carrying mail. (Hend. Supp.Aff. page 3) This job entailed the same duties as his previous carrier job. He began work on July 6, 1987. (Pl.Dep. at 19 and 20; Hend.Aff. P. 2) His supervisor at the Highland Hills Station was Clyde Henderson, a black male. (Id. at 20; Hend. Aff. at 1, 2). In a report dated July 16, 1987, ten (10) days after his transfer, plaintiff's attending physician indicated that it was "undetermined" if plaintiff's disability would last ninety (90) days or longer but that his prognosis was good for "eventual recovery". (Dep.Ex. No. 1) Plaintiff was at the Highland Hills station from July 6th through August 19th of 1987. (Pl.Dep. at P. 24) Highland Hills was not set up to handle limited duty employees on a long-term basis. (Hend.Supp.Aff. at 2) In an August 5, 1987, Attending Physician's Supplemental Report, plaintiff's prognosis was again stated to be "good for eventual recovery" however, it was still undetermined whether or not his disability would last longer than ninety (90) days. (Dep.Ex. No. 2) According to Henderson, based upon this August report indicating the undetermined length of his disability, his inability to lift over ten (10) pounds or work more than four (4) hours, he was sent to Northlake. (Hend.Supp.Aff. at 2.; Hend.Aff.Ex. D) Northlake was a designated limited duty station that had a large number of male and female, both black and white, employees from facilities throughout Dallas unable to perform the full range of their regularly assigned duties due to work-related injuries. (Pl.Dep. at 24, 25, 58; Marquez Aff. at 3)

At the time plaintiff was sent to Northlake there was a white female limited duty employee named Sandy Bonilla who remained at Highland Hills. (Pl.Dep. at 58-59) Plaintiff did not know the nature or duration of her injury. (Id. at 59) There were several other limited duty female employees who remained at Highland Hills, however, plaintiff also did not know the nature of their injuries. (Id. at 60-63) Postal Service records reflect that Bonilla's injury at this time consisted of a pulled right thigh muscle which had occurred on the job on August 7, 1987. (Hend.Supp. Aff. at 2; Exhibit A) Her prognosis as of the date of her injury was "good". (Hend. Supp.Aff., Exhibit B) This report was furnished to Postal Service. (Hend.Supp.Aff., P. 2.) She was released by her doctor back to full-duty twenty (20) days after her injury on August 27, 1987. (Hend.Supp.Aff. at 2, 3, Ex. C) After his transfer to Northlake, plaintiff was briefly returned in February, 1988, to Highland Hills. (Hend.Aff., P. 3, Exhibit E) He could at this time carry mail on a limited two-hour per day basis. (Pl.Dep. at 39, 205, 206) He was sent back to Northlake after a few weeks at Highland Hills due to his inability to carry mail. (Hend.Aff. at 3) As of January 1, 1988, his treating physician's report still showed that he could work only four (4) hours a day and was unable to lift over ten (10) pounds. Again his prognosis was "good for eventual recovery." (Dep.Ex. 4) In another physician's report on April 19, 1988, plaintiff's doctor reported that he could now work eight (8) hours but still could not carry mail. (Dep.Ex. No. 5) By November 17, 1989, plaintiff's treating physician reported that plaintiff's disability was permanent and that he could no longer carry mail. (Dep.Ex. No. 7)

Plaintiff challenged his transfer to Northlake under the grievance procedure in effect between Postal and the National Association of Letter Carrier, AFL-CIO (NALC). The grievance proceeded through all the steps of the grievance process, ultimately going to arbitration. (Pl.Dep. at 85; Dep.Ex. 12) After a hearing, the arbitrator denied plaintiff's grievance. (Pl.Dep. at 69; Dep.Ex. 14); (Marquez' Aff. at 3, 4) Plaintiff now maintains that the union did not include certain documents in the grievance procedure or make several important arguments in his behalf. (Pl.Dep. at 86, 87, 89) Plaintiff also believes that several essential questions were not asked of him by his union representative, George White, during the arbitration. (Pl.Dep. at 124, 125, 139, 143-48)

Plaintiff also filed an EEO complaint to challenge his transfer from Highland Hills to Northlake. (Pl.Dep. at 73, Exhibit 9) That complaint was investigated by the Postal Service and a final agency decision found that plaintiff had not been discriminated against in connection with his transfer to Northlake. (Pl.Dep. at 74) The EEOC affirmed that finding on appeal. (Pl.Dep. at 74, Exhibits 10 & 11) Plaintiff then filed the instant suit.⁴

Standards Applicable to Summary Judgment Motions

Summary judgment is appropriate under Fed.R.Civ.P. 56(c) if the record evidence shows that no genuine issue exists regarding a material fact and that as a matter of law, the movant is entitled to judgment. LTV Educational Sys., Inc. v. Bell, 862 F.2d 1168, 1172 (5th Cir.1989). The moving party has the burden of establishing the absence of a genuine issue of material fact. Everhart v. Drake Management, Inc., 627 F.2d 686, 690 (5th Cir.1980). To determine which factual issues qualify as material, the court first examines the substantive law governing the case, and then, to determine whether an issue of material fact is genuine, the court must determine whether the evidence is such that a reasonable jury could return a verdict for the nonmovant. Tarka v. Franklin, 891 F.2d 102, 104 (5th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1809, 108 L.Ed.2d 940 (1990). In considering whether to grant the summary judgment motion, the court must view the evidence in the light most favorable to the nonmovant. Erco Industries Ltd. v. Seaboard Coast Line R.R. Co., 644 F.2d 424, 428 (5th Cir.1981). The court should also make all justifiable inferences in the nonmovant's favor. O'Neill v. Air Line Pilot's Ass'n Int'l, 886 F.2d 1438, 1443 (5th Cir.1989).

When the movant makes a properly supported motion, the nonmovant may not rest on unsupported allegations or simple denials of the movant's pleadings. LTV Educational Sys., 862 F.2d at 1172; Fed. R.Civ.P. 56(c). In these circumstances, the nonmovant must go beyond the pleadings and must specify the evidence before the court which shows that genuine...