Florence v. Runyon

• Decision Date: 12 November 1997
• Docket Number: No. CA 3-95-CV-1396-D.,CA 3-95-CV-1396-D.
• Citation: 990 F.Supp. 485
• Parties: Gerald G. FLORENCE, Plaintiff, v. Marvin T. RUNYON, Postmaster General, United States Postal Service, Defendant.
• Court: U.S. District Court — Northern District of Texas

990 F.Supp. 485

Gerald G. FLORENCE, Plaintiff, v. Marvin T. RUNYON, Postmaster General, United States Postal Service, Defendant.

No. CA 3-95-CV-1396-D.

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

November 12, 1997.

COPYRIGHT MATERIAL OMITTED

Noemi Alessandra Collie, Law Office of Noemi A. Collie, Dallas, TX, for Plaintiff.

Stafford Hutchinson, U.S. Atty's Office, Dept. of Justice, Dallas, TX, for Defendant.

FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

BOYLE, United States Magistrate Judge.

Before the court is the Defendant's Motion for Summary Judgment filed December 16, 1996. This motion was referred to the undersigned Magistrate Judge for recommendation pursuant to the District Court's Order of Reference filed on June 24, 1997. Having reviewed the pleadings and the evidence submitted by the parties in connection with the motion, the undersigned recommends that the motion be Denied in its entirety as follows:

This is a suit by Gerald G. Florence against his employer, the Postmaster General of the United States Postal Service¹ ("Postal Service") alleging handicap² discrimination under § 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq., ("the Act") and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3 ("Title VII"). This case centers on an unwanted transfer plaintiff received in December, 1990. Florence, a limited duty employee of the Postal Service, claims that the transfer was based on his handicap and in retaliation for his previously filed EEO's.

The Postal Service has moved for summary judgment contending for several reasons that judgment must be entered in its favor in this case. First, with respect to Florence's claim of handicap discrimination under the Rehabilitation Act, the Service argues that Florence is not an "otherwise qualified" individual under the Act because he is unable to perform his duties as a letter carrier. Should the court find that plaintiff is "otherwise qualified, the Postal Service next maintains that it has articulated a legitimate nondiscriminatory reason for his transfer. As to Florence's Title VII retaliation claim, the Service argues that the challenged transfer does not constitute an "adverse employment action," an essential element of his retaliation claim.³ Each of these issues will be addressed at length by the undersigned but, first, a review of relevant background facts is necessary.

Factual Summary⁴

Plaintiff, Gerald G. Florence, is a 41 year-old employee of the Postal Service hired on July 6, 1985, as a letter carrier.⁵ In 1986, he suffered an on-the-job back injury in an automobile accident after which he could no longer perform all the duties of a letter carrier. Thereafter, he was assigned to limited duty at various stations.⁶ On March 28, 1989, he received a limited duty assignment to the Highland Hills Station in Dallas.⁷ He was not required to carry mail at Highland Hills.⁸ In December, 1990, Florence was transferred from Highland Hills to the Brookhollow Station against his will. The transfer altered his scheduled work hours, his duties and lengthened his travel time to work.⁹ Florence's job description, benefits, and salary, however, were not affected by the transfer.¹⁰ According to Florence, the transfer came about after his supervisor, Clyde Henderson, asked him to change his restrictions so that he could carry mail at Highland Hills.¹¹ Florence contends, he was transferred to the Brookhollow Station after he failed to change his restrictions.¹² The Postal Service rejoins that the reason for Florence's transfer to Brookhollow was not his handicap but the lack of available work for the limited duty employees at Highland Hills.¹³ The Service also states that in November, 1990 Florence's restrictions were changed so that he could carry mail and he refused to carry out this responsibility.¹⁴

In July, 1993, Florence was transferred back to his modified job assignment at Highland Hills.¹⁵

Against this factual backdrop, the Court turns to its analysis of the defendant's motion beginning with a review of the relevant summary judgment standards.

Summary Judgment Standards

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material facts exists and that, as a matter of law, the movant is entitled to judgment. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Only disputes about those facts will preclude the granting of summary judgment. Id.

The burden is on the movant to prove that no genuine issue of material fact exists. Latimer v. Smithkline & French Laboratories, 919 F.2d 301, 303 (5th Cir.1990). If the non-movant bears the burden of proof at trial, the movant for summary judgment need not support the motion with evidence negating the opponent's case; rather, the movant may satisfy its burden by showing that there is an absence of evidence to support the non-movant's case. Id.; Little, 37 F.3d at 1075.

Once the movant makes this showing, the burden shifts to the non-movant to show that summary judgment is not appropriate. Little, 37 F.3d at 1075 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548 2553-54, 91 L.Ed.2d 265 (1986)). "This burden is not satisfied with `some metaphysical doubt as to the material facts,' ... by `conclusory allegations,' ... by `unsubstantiated assertions,' or by only a `scintilla' of evidence." Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Lujan v. National Wildlife Fed'n, 497 U.S. 871, 871-73, 110 S.Ct. 3177, 3180, 111 L.Ed.2d 695 (1990); Hopper v. Frank, 16 F.3d 92, 97 (5th Cir.1994); Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994), respectively). Rather, the non-moving party must "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (quoting FED. R. CIV. P. 56(e)). In determining whether a genuine issue for trial exists, the court must view all of the evidence in the light most favorable to the non-movant. Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 292 (5th Cir.1990) (citing Bodnar v. Synpol, Inc., 843 F.2d 190, 192 (5th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 248 (1988); Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986)).

With these summary judgment standards as a guide, the court turns to its task of analyzing each of the defendant's arguments.

Rehabilitation Act

The Postal Service moves for summary judgment on plaintiff's claims of handicap discrimination on two grounds. First, the Service claims that Florence cannot meet his burden of establishing a prima facie case under the Rehabilitation Act because he is not "otherwise qualified" for his job. Secondly, the defendant urges that even if the court finds Florence qualified, that it has articulated a non-discriminatory reason for his transfer. Each of these arguments will be addressed in turn, however, the court must first determine the appropriate legal standards to apply to plaintiff's Rehabilitation Act claims.

1. Standards Under § 501

Florence brings this suit under § 501 of the Act, codified at 29 U.S.C. § 791, and not pursuant to § 504, codified at 29 U.S.C. § 794. Because the law regarding the elements of proof necessary under a § 501 suit are not well-settled under the existing authority and because the courts have occasionally utilized § 504 standards in § 501 cases, a brief discussion of both sections is necessary.

"Section 501 of the Rehabilitation Act of 1973 provides for the establishment of an affirmative action program for the employment of handicapped individuals within the United States Postal Service." de la Torres v. Bolger, 781 F.2d 1134, 1135 (5th Cir.1986) citing 29 U.S.C. § 791(b). Section 504 of the Act prohibits discrimination against any "`otherwise qualified handicapped individual ...as defined in section 706(7)..., solely by reason of his handicap...'" Id., citing 29 U.S.C. sec. 794.

As originally drafted, the Rehabilitation Act did not specifically contain authority permitting suits against federal agencies for violations of its provisions. Prewitt v. United States Postal Service, 662 F.2d 292, 302 (5th Cir.1981) In 1978 the Act was amended to provide a cause of action for handicapped individuals against the federal government and its agencies under both sections 501 and 504. Prewitt, 662 F.2d at 301-04; Spence v. Straw, 54 F.3d 196, 199 (3rd Cir.1995). Federal agencies, including the Postal Service, may be sued under either provision of the Act. Bolger, 781 F.2d at 1135 n. 1; Spence, 54 F.3d at 199-200.

The 1978 amendments provided that suits under § 501 should be patterned after Title VII of the Civil Rights Act of 1964, whereas claims under § 504 should be patterned upon Title VI of the Civil Rights Act of 1964. Bolger, 781 F.2d at 1135 citing 29 U.S.C. § 794a(a)(1) & (2).¹⁶

While the 1978 amendments to the Act establish that the Postal Service may be sued for handicap discrimination under § 501 or § 504, the extent to which the elements proof under each section coincide is not so clear. It is settled that under § 504, a plaintiff must establish the following elements to prove his prima facie case: (1)that he is an individual with a handicap; (2) that he was otherwise qualified to perform the position in question; (3) that he worked for the United States Postal Service; and (4) that he was adversely treated solely because of his handicap. 29 U.S.C. § 794; Magee v. United States Postal Service, 903 F.Supp. 1022, 1026 (W.D.La.1995) see also Chandler v. City of Dallas, 2 F.3d 1385,...