Nighswander v. Henderson, No. 3:00CV7571.

Decision Date05 October 2001
Docket NumberNo. 3:00CV7571.
Citation172 F.Supp.2d 951
PartiesLynnette M. NIGHSWANDER, Plaintiff(s), v. William J. HENDERSON, Postmaster General, and National Association of Letter Carriers, Defendant(s).
CourtU.S. District Court — Northern District of Ohio

Sharon K. Cason-Adams, Sanborn, Brandon, Duvall & Bobbitt, Columbus, OH, Stephen P. Postalakis, Blaugrund, Herbert & Martin, Dublin, OH, for Lynnette M. Nighswander.

Holly T. Sydlow, Office of the United States Attorney, Northern District of Ohio, Toledo, OH, for William J. Henderson.

David M. Fusco, Schwarzwald, Rock & McNair, Cleveland, OH, Peter Herman, Cohen, Weiss & Simon, New York, NY, for National Ass'n of Letter Carriers.

ORDER

CARR, District Judge.

Plaintiff Lynnette M. Nighswander brings this action against Defendants William J. Henderson, Postmaster General, and the National Association of Letter Carriers, claiming she was discriminated against on the basis of disability. This court has jurisdiction pursuant to 29 U.S.C. § 185 and 28 U.S.C. §§ 1331. Pending is defendant United States Postal Service's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56(c). For the following reasons, defendant's motions shall be denied in part and granted in part.

BACKGROUND

Nighswander began working for the United States Postal Service ("USPS") in 1986 as a part-time flexible city letter carrier. She was promoted to full-time regular letter carrier in 1990. On November 9, 1993, Nighswander was involved in a motor vehicle accident while working. Nighswander suffered back and neck injuries and was diagnosed with lumbosacral strain/sprain, cervical strain, nerve impingement, and fibromyalgia. Nighswander's physician restricted her work duties, preventing Nighswander from performing her full-time regular carrier job. USPS assigned Nighswander to a limited duty, modified letter carrier position in its Tiffin Branch Post Office.

On March 7, 1995, Nighswander's orthopedic specialist placed Nighswander on permanent work restrictions, including restrictions on lifting.

On April 30, 1997, Jill Groves, Postmaster of the Tiffin office, gave Nighswander a rehabilitation job offer for the position of modified part-time flexible clerk. Nighswander was given three days to consider the offer, but later received an extension. Nighswander filed a grievance and a hearing was held with Supervisor Penny Spears on May 8, 1997. Spears denied the grievance and told Nighswander that Nighswander had no choice but to accept the job offer.

Groves heard Step Two of the grievance process, in which Nighswander was requesting that she be allowed to remain in her then current, modified, full-time regular carrier position. Groves denied this request and Nighswander's grievance. On May 16, 1997, Nighswander signed the job offer under protest. Nighswander subsequently initiated a discrimination charge with the EEOC.

On November 19, 1999, Administrative Law Judge Porter heard Nighswander's EEOC charge. Nighswander presented evidence of the USPS's practice of accommodating several disabled carriers in Akron, Ohio, by allowing them to remain in modified full-time carrier positions. USPS stipulated that, as to sixteen carriers in the Akron district post offices: 1) each carrier was a full-time, regular carrier at one time; 2) each carrier suffered an injury that resulted in permanent work restrictions preventing them from performing the essential functions of a full-time, regular mail carrier; 3) each carrier was offered and accepted a full-time modified carrier position as a disability accommodation; 4) none of the carriers was required to transfer to a part-time, flexible clerk position because of inability to perform the essential functions of a full-time regular carrier; and 5) some of the carriers became permanently, partially disabled before and after 1995. The Administrative Judge found that the USPS had not discriminated against plaintiff. (Doc. 20 Ex. 1 at 3).

STANDARD OF REVIEW
I. Motion to Dismiss Standard

No complaint shall be dismissed unless the plaintiff has failed to allege facts in support of plaintiff's claim that, construed in plaintiff's favor, would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). When deciding a motion brought pursuant to Fed.R.Civ.P. 12(b)(6), the inquiry is essentially limited to the content of the complaint, although matters of public record, orders, items appearing in the record, and attached exhibits also may be taken into account. See Yanacos v. Lake County, 953 F.Supp. 187, 191 (N.D.Ohio 1996). The court must accept all the allegations stated in the complaint as true, Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984), while viewing the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). A court, however, is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).

II. Summary Judgment Standard

Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting FED.R.CIV.P. 56(e)).

Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

In deciding the motion for summary judgment, the evidence of the non-moving party will be believed as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party's favor. Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). Summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c).

DISCUSSION
I. Counts I and II: Disability Discrimination in Violation of the Rehabilitation Act

Plaintiff's complaint alleges that the USPS violated §§ 501 and 504 of the federal Rehabilitation Act. Defendant moves for dismissal or summary judgment with three arguments: 1) plaintiff is unqualified for the job she seeks; 2) plaintiff failed to establish that similarly situated employees were treated differently; and 3) defendant provided plaintiff with a reasonable accommodation. I disagree as to each of defendant's contentions.

This circuit allows a plaintiff to proceed under both § 501 and § 504 of the Rehabilitation Act for a claim of disability discrimination. Hall v. United States Postal Serv., 857 F.2d 1073, 1077-78 (6th Cir. 1988).1

Section 501 of the Rehabilitation Act requires federal employers to develop a plan "to provide adequate hiring, placement, and advancement opportunities for individuals with disabilities." 29 U.S.C. § 791(b). Section 501 also requires federal employers to provide reasonable accommodation to employees with disabilities unless the accommodation would be an undue hardship. Dean v. Veterans Admin., Reg'l Office, No. 1:89CV2357, 1995 U.S. Dist. LEXIS 8782, at *44 (N.D.Ohio Jan. 6, 1995) (citing 29 C.F.R. § 1613.704).

Section 504 of the Rehabilitation Act provides:

No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

29 U.S.C. § 794(a).

In a Rehabilitation Act case, courts must apply the same standards as those used in interpreting cases under the Americans with Disabilities Act. See 29 U.S.C. § 794(d); Burns v. City of Columbus, Dep't of Pub. Safety, 91 F.3d 836, 842 (6th Cir.1996) ("By statute, the Americans with Disabilities Act standards apply in Rehabilitation Act cases alleging employment discrimination.") (citing 29 U.S.C. § 794(d)).

A. Prima Facie Case of Disability Discrimination

To make a claim for disability discrimination under the Rehabilitation Act, a plaintiff must establish that he or she is: "1) an individual with a disability under the Act, 2) otherwise qualified for the job with or without a reasonable accommodation, and 3) being discriminated against solely because of his or her handicap." Burns, 91 F.3d at 841; Doherty v. Southern Coll. of Optometry, 862 F.2d 570, 573 (6th Cir.1988).2

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