Montgomery v. Frank

• Decision Date: 07 July 1992
• Docket Number: No. 91-72325.,91-72325.
• Citation: 796 F. Supp. 1062
• Parties: Katrina D. MONTGOMERY, Plaintiff, v. Anthony M. FRANK, Postmaster General, Defendant.
• Court: U.S. District Court — Western District of Michigan

796 F. Supp. 1062

Katrina D. MONTGOMERY, Plaintiff, v. Anthony M. FRANK, Postmaster General, Defendant.

No. 91-72325.

United States District Court, E.D. Michigan, S.D.

July 7, 1992.

Stephen J. Markman, U.S. Atty., by Geneva S. Halliday, Asst. U.S. Atty., Detroit, Mich., for defendant.

Michael J. Tauscher, Damm & Tauscher, Detroit, Mich., for plaintiff.

OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

GADOLA, District Judge.

Plaintiff Katrina D. Montgomery filed this action March 24, 1991, alleging handicap discrimination under the Rehabilitation Act, 29 U.S.C. §§ 701-796i. Defendant Postmaster General Anthony M. Frank filed the instant motion for summary judgment May 20, 1992.¹ Plaintiff Katrina D. Montgomery filed a response June 4, 1992; and defendant filed a reply June 17, 1992. For the reasons stated below, this court will grant defendant's motion for summary judgment.

FACTS

On September 9, 1978, plaintiff received an appointment as a distribution clerk at the Detroit General Mail Facility. Effective September 29, 1980, plaintiff transferred to the position of city carrier and was assigned to the Oak Park station of the Detroit Post Office. City carriers are employed in a unit governed by a collective bargaining agreement, commonly referred to as the "National Agreement," between the United States Postal Service and the National Association of Letter Carriers.

On April 18, 1981, plaintiff became a full-time, regular city carrier. By August 29, 1983, plaintiff had successfully bid on a route at the Seven Oaks station of the Detroit Post Office. At all times since January 1990, postal service Equal Employment Opportunity "EEO" posters containing the information regarding whom to contact with a claim of handicap discrimination and the 30-day limit for contacting one of defendant's EEO counselors were posted in conspicuous places both in the lobby and on the workroom floor of the Seven Oaks station.

On or about August 5, 1987, plaintiff was injured when she was assaulted by a customer. In July 1989, plaintiff returned to the Seven Oaks station in a limited duty capacity. In May 1990 plaintiff returned to restricted duty, carrying mail for one to two hours per day. Plaintiff worked an irregular schedule from May 14, 1990, to June 29, 1990, totalling 116 hours.

On May 7, 1990, the Office of Worker's Compensation Programs "OWCP" notified plaintiff that her claim of disability due to on-the-job injuries was denied. As a result she lost her eligibility for limited duty. On June 29, 1990, plaintiff filed a Notice of Occupational Disease. Plaintiff stopped working at this time because of her injuries and the pain associated as a result. Plaintiff was placed on a "leave without pay" status beginning June 29, 1990, and lasting until October 29, 1990.

On August 15, 1990, plaintiff was issued a notice of removal for failure to be able to perform the physical requirements of her full-time, letter carrier position. The effective date of her removal was October 5, 1990. On December 17, 1990, plaintiff contacted defendant's EEO counselor via telephone and requested EEO counseling. On March 18, 1991, plaintiff requested reinstatement and a change of classification. The change of classification would have allegedly enabled her to continue working without the physical stress of letter carrying.

On April 2, 1991, plaintiff entered into a settlement agreement with defendant in which plaintiff was scheduled for a fitness for duty examination. The agreement provided that

The grievant shall be scheduled for a fitness for duty examination. If the FFD results show that the grievant can return to duty without restriction, she may apply for reinstatement and her request will be approved.

Glenn Lee decl. at para. 11. On April 15, 1991, John Horne, the Detroit field division general manager/postmaster, issued a final agency decision on plaintiff's EEO administrative complaint which provided as follows:

This is a final agency decision of the United States Postal Service on the above referenced matter. In that complaint, the complainant alleged she was discriminated against on August 15, 1990 because of her handicap (cervical problem) when she received a Notice of Separation/Disability.

Title 29 CFR 1613.214 requires that a complainant bring the alleged discriminatory act to the attention of the Equal Employment Opportunity Counselor within thirty (30) calendar days of its effective date. According to the Report of Counseling, the complainant contacted the Equal Employment Opportunity Counselor on December 17, 1990, or 125 days after the incident. As the complainant did not contact the EEO Counselor within the prescribed time limits, the complaint is rejected as untimely.

Id. at para. 10.

On April 22, 1991, the OWCP accepted plaintiff's claim of occupational disease (cervical and dorsal spinal injuries) retroactive to June 29, 1990. On April 25, 1991, plaintiff was given a fitness for duty examination by postal service medical officer M.E. Keller, M.D. On April 29, 1991, plaintiff received notification that she was fit for full duty.

On May 29, 1991, William Smiley, defendant field director of human resources, notified plaintiff that her request for change of status was denied because of her "safety performance." In a letter dated June 11, 1991, Dr. Beale, plaintiff's physician, indicated that plaintiff was totally and permanently disabled from working as a mail carrier. On June 24, 1991, plaintiff received instructions to return to work on June 19, 1991. Plaintiff returned to work on June 19, 1991, and worked in a limited duty capacity on June 19, 1991, and June 20, 1991. Plaintiff was provided with a "lobby receptionist" position, assisting customers in filling out forms, answering questions, and handing out literature.² Plaintiff left early on June 20, 1991, allegedly because of her injuries. On June 21, 1991, plaintiff requested a one-day sick leave and never returned to work.

In September 1991, plaintiff received another notice of removal for failing to attend a fitness for duty examination scheduled for August 19, 1991. This notice of removal has since been resolved and rescinded.

In a letter dated October 21, 1991, plaintiff's doctor indicated that she was permanently disabled and unable to perform the sedentary job of "lobby receptionist."

Retroactive to June 29, 1990, plaintiff has received tax-free, workers compensation benefits equal to 75% of the salary of her full-time, letter carrier position for each and every work day on which she has been unable to work.

STANDARD OF REVIEW

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "A fact is `material' and precludes grant of summary judgment if proof of that fact would have the effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties, and would necessarily affect the application of appropriate principles of law to the rights and obligations of the parties." Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984) (quoting Black's Law Dictionary 881 (6th ed. 1979)) (citation omitted). The Court must view the evidence in a light most favorable to the nonmovant as well as draw all reasonable inferences in the nonmovant's favor. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir.1984).

The movant bears the burden of demonstrating the absence of all genuine issues of material fact. See Gregg v. Allen-Bradley Co., 801 F.2d 859, 861 (6th Cir. 1986). The initial burden on the movant is not as formidable as some decisions have indicated. The moving party need not produce evidence showing the absence of a genuine issue of material fact; rather, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the moving party discharges that burden, the burden shifts to the nonmoving party to set forth specific facts showing a genuine triable issue. Fed.R.Civ.P. 56(e); Gregg, 801 F.2d at 861.

To create a genuine issue of material fact, however, the nonmovant must do more than present some evidence on a disputed issue. As the United States Supreme Court stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986),

There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the nonmovant's evidence is merely colorable, or is not significantly probative, summary judgment may be granted.

(Citations omitted); see also Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). The standard for summary judgment mirrors the standard for a judgment as a matter of law under Fed.R.Civ.P. 50(a). Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Consequently, a nonmovant must do more than raise some doubt as to the existence of a fact; the nonmovant must produce evidence that would be sufficient to require submission of issue to the jury. Lucas v. Leaseway Multi Transp. Serv., Inc., 738 F.Supp. 214, 217 (E.D.Mich.1990), aff'd, 929 F.2d 701 (6th Cir.1991). The evidence itself need not be the sort admissible at trial. Ashbrook v. Block, 917 F.2d 918, 921 (6th Cir.1990). However, the evidence must be more than the nonmovant's own pleadings and affidavits....