McCloud v. Potter, Civil Action No. 06-0216-BH-C.
| Decision Date | 10 May 2007 |
| Docket Number | Civil Action No. 06-0216-BH-C. |
| Citation | 506 F.Supp.2d 1031 |
| Parties | Kim McCLOUD, Plaintiff, v. John E. POTTER, Postmaster General, United States Postal Service, Defendant. |
| Court | U.S. District Court — Southern District of Alabama |
J. Charles Wilson, Mobile, AL, for Plaintiff.
Eugene A. Seidel, Gary A. Moore, U.S. Attorney's Office, Mobile, AL, Gillian Steinhauer, Memphis, TN, for Defendant.
This action is before on defendant's motion for summary judgment (Doc. 27), as to which the plaintiff has failed to timely respond. For the reasons stated in the separate Order entered this day (Doc. 37), the Court concludes that the facts set forth in the defendant's motion are undisputed and that the defendant is entitled to a judgment in his favor as a matter of law.
1. Kim R. McCloud, an African-American female, filed suit against John E. Potter, Postmaster General, United States Postal Service ("Defendant" or "USPS") on April 6, 2006, claiming violations of to the Rehabilitation Act of 1973 ("Rehab Act"), as amended, § 501, 29 U.S.C. § 791, et seq.; American With Disabilities Act of 1990, Title I, 42 U.S.C. § 12101 et seq; and on the basis of Plaintiff's race and sex in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2003e, et seq., to recover compensatory and punitive damages. (Complaint, Doc. 1).
2. On March 14, 2005, Defendant verbally denied McCloud's voluntary request for light duty (herein "RFLD") made that day which contained her chiropractic doctor-imposed fifteen (15) pound lifting limit. On March 29, 2005, Defendant denied this request in writing on the grounds that an employee must be able to lift at least twenty (20) pounds to be considered for light duty. (Complaint, ¶ 13; Ex. 1; McCloud Deposition (hereinafter "Depo"), p. 155, lines 6-15).
3. On May 11, 2005, Defendant denied in writing Plaintiff's request for light duty (submitted on May 3, 2005); which contained a revised chiropractic doctor-imposed lifting limit of twenty (20) pounds, among other restrictions. Joel Hall, the installation head or plant manager; stated that the basis for denial was the conflicting medical advice from different doctors and conflicting reports from the same doctor as to her prognoses. (Complaint, ¶ 13; Ex. 2; Declaration of Joel Hall).
4. McCloud claims she is a qualified individual with a disability and has not been accommodated. (Doc. 1, ¶¶ 7-9).
5. In response to the Court's show cause order of June 21, 2006 (Doc. 8). Plaintiff agreed (Doc. 11) to the dismissal of her claim for punitive damages. Accordingly, the Court entered an Order on July 17, 2006 (Doc. 12) dismissing any claim or demand for punitive damages.
6. Though not mentioned in the Complaint (Doc. 1) and not included in any union grievance or Plaintiff's two EEO complaints, in response to discovery requests, McCloud alleges another claim: that she also provided Defendant a RFLD with a revised lift limit of twenty (20) pounds on March 31, 2005.
7. In answers to discovery Plaintiff alleges that Defendant's denials of Plaintiff's two requests for light duty were motivated by an intention to retaliate against her as a result of her having engaged in protected activities prior to these occurrences. (Complaint, ¶¶ 10, 13 [Doc. 1]; Ex. 3, Defendant's Interrogatories, No. 1; Ex. 4, Plaintiff's Response No. 1).
8. In answers to discovery, Plaintiff also alleged unlawful discrimination in the slow or late payment of a bilateral settlement of the grievance (regarding the May 11, 2005, denial of the May 3, 2005, RFLD) reached between her union representatives and Defendant on July 19, 2005. This claim was the issue presented in Plaintiff's. EEO Complaint No. 1 H-366-0006-06 (Complaint, ¶ 18 [Doc. 1]; Ex. 3, Defendant's Interrogatories, No. 1; Ex. 4, Plaintiff's Response No. 1).
9. Plaintiff ultimately agreed the only issues included in this civil action are those issues articulated and decided in the two EEO complaints (No. 1H-366-0006-06 [] and No. 1H-366-0011-05 []) (Ex.3, Defendant's Interrogatories, No. 1; Ex. 4, Plaintiff's Response No. 1).
10. Plaintiff has agreed that if she has or ever had any worker's compensation claim, it is not included in this civil action. (Ex. 5, Defendant's Request for Admission No. 11; Ex. 4, Plaintiff's Admission Response No. 11).
11. The parties came to mutual agreement on Plaintiff's complete record on January 23, 2007 (Exhibits 6, 7).
12. In reliance on Plaintiff's identification of her entire record, Defendant made a complete copy of the Plaintiff's agreed upon record, it was scanned, Batesc® numbered and compiled into a three ring binder (containing pages 00001 to 00433) and then hand-delivered to Counsel for Plaintiff on March 6, 2007 well before Plaintiff's deposition. (Ex. 8).
13. As agreed during Plaintiff's deposition, the parties filed a Joint Stipulation for Partial Dismissal (Doc. 21) dismissing with prejudice all claims for damages in this pending civil action which arose from the EEO Complaint No. 1 H-366-0006-06 () the details of which will be outlined hereinbelow. (Depo., p. 103, lines 17-23; p.104, lines 6-10).
14. The only claim pending in this civil action is that which is the subject of the Final Agency Decision issued January 6, 2006 by the EEO Office Complaint No. 1H-366-0011-05, regarding the allegations of unlawful discrimination and retaliation when McCloud's two requests for light duty were denied. (Ex. 9).
15. Kim R. McCloud applied for a job at the USPS's Mobile Processing and Distribution Center (herein, "Mobile P & DC"), was hired and on September 12, 1998, she entered on duty as a Mail Processing Clerk being assigned to Tour 3 (this tour has assigned the general routine from 4:00PM to 12:30AM).
16. The job description and requirements of the Mail Processing Clerk are shown on Standard Position Description (Ex. 10) and Bargaining Unit Qualification Standard (Ex. 11). Of particular note from Ex. 11, is the following excerpt:
PHYSICAL REQUIREMENTS
Applicants must be physically able to efficiently perform the duties of the position, which require arduous exertion involving prolonged standing, walking, bending, and reaching, and may involve the handling of heavy containers of mail and parcels weighing up to 70 pounds.
17. Plaintiff agrees the job description and qualification standards accurately describe the arduous physical requirements encountered as a Mail Processing Clerk. (Depo., p. 300, lines 6-18).
18. The Mobile P & DC is located at 4538 Shipyard Road in Theodore, Alabama, and is an enormous industrial processing facility of approximately 100,000 square feet. It operates 24 hours per day, 7 days per week, all the year round. The Mobile P & DC receives, sorts, processes and distributes on the average of 1,000,000 pieces of mail per day. There are approximately 300 personnel members over 3 shifts (or "tours") per day to perform manual labor and to operate a variety of equipment, automation, planning and sequencing of receiving, distribution and processing mail. (Declaration of Earl Watson, [¶ 1]).
19. Non-management Employees at Mobile P & DC are represented by two unions, the National Mail Handlers Union and the American Postal Workers Union ("APWU"). Plaintiff has been a member of the APWU during the time relevant to her Complaint. A contract exists between the Union on behalf of the employees and the USPS ("the contract").
20. If a union member believes they have grounds for a dispute with the USPS management, the employee-member is represented through the grievance process by union stewards or officers. The grievance process begins with a complaint which should allege a violation of contract requirements and continues through a Step 1 hearing, a Step 2 hearing, and if still unresolved, it goes to binding arbitration. Employees are rarely present when their union representatives meet with USPS representatives over contract interpretation, offering of proof, or argument.
21. Disagreements over union contract disputes, interpretations or employee grievances based on the contract are not involved in the EEO process and are not issues involved in this lawsuit. (Ex. 5, Defendant's Request for Admissions, No. 12; Ex. 4, Plaintiff's Admission Response No. 12).
22. The settlement and payment of a grievance (union grievance # 055-05; USPS # HOOC-4H-C05112397) for backpay is also duplicated in its entirety in an EEO Complaint which is the remaining issue before this Court. Defendant satisfied the monetary claim. (Doc. 13, Defendant's Answer, ¶ G, Affirmative Defenses of Settlement, Payment; Ex. 5, Defendant's Request for Admissions, No. 8; Ex. 4, Plaintiff's Admission Response No. 8).
LIMITED Duty a matter of right for employees injured on-the-job.
23. LIMITED Duty is a phrase used to define work for employees who have sustained an on-the-job injury while on official duty for the USPS. For the period of time relevant to McCloud's claims, LIMITED Duty assignments for the Mobile P & DC were coordinated through the Injury Compensation (Worker's Compensation) Office in downtown Mobile, Alabama, which is managed by Mr. Bill Johnston, Injury Compensation Specialist. (Declaration of William "Bill" R. Johnston [¶ 1]).
24. On August 20, 2004, McCloud alleged an on-the-job injury which she claimed occurred in 1999 at the Mobile P & DC. As required by postal regulation, she was offered...
To continue reading
Request your trial
-
Anderson v. Dunbar Armored, Inc.
...facie case on her disparate treatment claim because she was replaced by someone within her same protected class); McCloud v. Potter, 506 F.Supp.2d 1031, 1047 (S.D.Ala.2007) (African-American female employee failed to establish that she was similarly situated to all comparator employees beca......
-
McMillian v. Donahoe
...harassment and retaliationmust be considered pursuant to Title VII and the myriad case law interpreting it. See McCloud v. Potter, 506 F. Supp. 2d 1031, 1046 (S.D. Ala. 2007) ("It is now well settled, Title VII is the 'exclusive, pre-emptive administrative and judicial scheme for the redres......