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DORN v. POTTER

February 28, 2002

PAUL DORN, PLAINTIFF,
V.
JOHN E. POTTER,[FN1] POST MASTER GENERAL, U.S. POSTAL SERVICE (ALLEGHENY MID-ATLANTIC AREAS AGENCY), DEFENDANT.



The opinion of the court was delivered by: Gary L. Lancaster, United States District Judge

    MEMORANDUM

This is an action in employment discrimination. Plaintiff, Paul Dorn, alleges that he was subjected to a hostile work environment and eventually discharged from his employment with the United States Postal Service because of his disability in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Rehabilitation Act"). Plaintiff seeks money damages.

Defendant has filed a motion for summary judgment, arguing, inter alia, that the undisputed material facts show that plaintiff was not disabled under the law.

For the reasons set forth below, defendant's motion will be granted.

I. BACKGROUND

Unless otherwise specifically indicated, the following material facts are undisputed.*fn2

A. Plaintiff's Alleged Disabilities

Plaintiff is twenty-nine years old. He contends that he suffers from three disabilities: a speech impediment, a learning disability, and a back injury he sustained the day defendant terminated his employment.

Plaintiff's speech impediment is a problem with pronunciation. Specifically, plaintiff does not roll his tongue correctly and does not pronounce the letters "S" and "R" correctly. Plaintiff contends that his speech impediment is obvious and that, as a result, people often have a difficult time understanding him.

Plaintiff cannot recall the last time he went to a doctor about his speech impediment. He thought it was probably seven or eight years ago when he saw an allergist. The last time plaintiff underwent speech therapy was approximately fifteen years ago. Plaintiff is not sure whether he has informed his current primary care physician about his speech impediment. When asked if he had any present plans to see any doctors about his speech problems, plaintiff responded that he might in the future. No doctor ever informed plaintiff of any restrictions or limitations due to his speech impediment.

Plaintiff is able to use a regular, unmodified telephone at home and at all of the jobs he has had. He can call people up on the telephone and have them understand him. Sometimes, people ask plaintiff to repeat things or say they cannot understand him. According to plaintiff, his speech impediment has only affected his ability to get telemarketing jobs; it hasn't affected his ability to get other jobs. Plaintiff also testified that his speech impediment has not affected any of his hobbies or his ability to run and maintain his household.

Plaintiff's alleged learning difficulties involve learning and written and oral comprehension. Plaintiff sometimes does not comprehend what people are saying to him and what takes some people minutes to understand may take plaintiff several hours to understand. Plaintiff could not identify a specific doctor that informed him of having a learning disability, and it has been at least five years since he has seen a doctor on this issue. Plaintiff's most recent testing for having a learning disability was about ten or fifteen years ago, possibly when he was in middle school. Plaintiff could not remember the name of the doctor who performed this testing. No doctor has ever limited plaintiff's activities due to his learning difficulties, nor has plaintiff ever been prescribed any medication or treatment for this problem. Plaintiff has no plans to go to a doctor about his learning problem.

Plaintiff testified at his deposition that other than paying bills (which his wife does), his learning difficulties do not affect his ability to run his household. Plaintiff now contends that due to his learning disability, he cannot balance a checkbook, complete the weekly grocery shopping, or remember to perform various tasks. His learning problem also has somewhat affected his hobby of drawing, but otherwise his hobbies are not affected.

Plaintiff contends that he suffered a back injury on August 13, 1998, when he was struck by a motorized cart at the postal facility where he worked for defendant. Plaintiff had no prior injuries to his back. Plaintiff had difficulty with just about everything for approximately six to eight months after his back injury, but now is able to do many things such as showering. Plaintiff also can walk about one mile, lift about 50-75 pounds, bench press 100 pounds, sit in a chair for approximately two hours and stand for two hours without pain. Plaintiff contends that he cannot move heavy objects such as furniture or exercise to keep physically fit. He also claims to continue to experience back pain when, for example, the weather changes. In addition, plaintiff alleges that his ability to perform sexually, although improved, is not what it used to be prior to his back injury.

At the time of his first day of deposition testimony (August 30, 2001), plaintiff's typical day involved setting his alarm clock to get himself up in the morning, waking, showering, packing his own lunch, and taking the bus to work by himself. Plaintiff also performs odd jobs around the house such as remodeling his home, household repairs (e.g., plumbing and fixing the washing machine, shower, and dishwasher), some cleaning (e.g., dusting, sweeping, mopping the floor, vacuuming, and washing windows), and cooking. Plaintiff also performs outdoor chores such as mowing the lawn, shoveling the sidewalk, and performing outside maintenance.

Plaintiff has had a driver's license since he was nineteen years old. One of plaintiff's hobbies is taking long drives during which he likes to get lost intentionally and then find his way home. Plaintiff testified that his hobbies also have included weightlifting, wrestling, football, drawing, slot machines, and computer games, although he contends he can no longer do things such as lift weights or exercise due to his back injury. Plaintiff also enjoys reading wrestling magazines, mysteries, and joke books. He stated that the reading material must be interesting because he gets bored very easily.

Plaintiff chose to leave high school without graduating because he got tired of other students picking on him because of his speech and learning problems and he wanted to get into the real world" and earn money. Plaintiff studied for and passed the G.E.D. exam on his first attempt. Plaintiff could not recall having any special or additional instruction with regard to his speech impediment or learning problems when studying for the G.E.D. After earning his G.E.D. and getting bored with his then current job, plaintiff applied on his own to the Community College of Allegheny County ("CCAC") and studied welding. Plaintiff did not complete the program due to financial difficulties. Plaintiff earned the highest score available in all his welding courses and did not have any special classes due to his speech or learning problems.

B. Plaintiff's Employment History

Prior to working for defendant, plaintiff held the following jobs: neighborhood handyman (i.e., cutting grass, handyman work, painting, fixing screen doors, fixing small appliances, and fixing furniture); dishwasher at various establishments; construction laborer; and valet at Children's Hospital. Plaintiff was laid off by Children's Hospital. Otherwise, he left each of his jobs voluntarily and was not fired from any of them. Plaintiff's feedback from employers has never indicated any major problems with plaintiff's work.

Plaintiff worked for defendant on two separate occasions as a casual employee. Casual employees are hired on a temporary basis to supplement the workforce during high volume and/or high vacation times (such as Christmas or the summer months). Casual employees are not union members and enjoy none of the benefits of union membership. Because casual employees supplement the regular workforce and are generally hired during high volume and/or high vacation times, regular attendance is an essential function of the job of a casual employee. Because they are a supplement to the regular work force, casual employees do not have a fixed schedule. Rather, they are used on an "as needed" basis. Casual employees are hired to perform either mailhandler or clerk functions.

Plaintiff received a copy of the terms of casual employment, and he understood that his appointment as a casual employee was for a specific length of time. He also understood that he would have a supervisor and would be working as frequently as twelve hours a day, seven days a week. During orientation, defendant informed plaintiff that, as a casual employee, he was not entitled to any sick leave, paid vacation, or benefits. Plaintiff also understood that defendant, as the employer, was the one to set his hours. Plaintiff understood that it was important that he be regular in attendance and that if his attendance was not regular, his employment could be terminated.

On his medical examination and history form, plaintiff did not indicate that he had a speech impediment or that he was slow and had a learning problem. On the "General Information Sheet" he completed, he indicated that he did not have any medical problems that should be evaluated prior to his employment with defendant. When plaintiff went for his Postal Service medical examination, he told the physician that he "had a speech problem where people don't understand me." Plaintiff did not speak to the physician about being slow and having a learning problem. On the medical forms, the postal physician did not indicate any abnormalities, significant findings, limitations, or restrictions with respect to plaintiff.

Plaintiff had two appointments as a casual employee with defendant. Plaintiff's first casual appointment began November 7, 1997 and ended as a matter of course on January 2, 1998. Plaintiff was absent from work on five occasions during this first appointment.

In between his first and second casual appointments with defendant, plaintiff worked as a telephone solicitor with Reese Brothers, a company that raises money for different entities. Plaintiff's position involved calling people on the telephone, identifying himself, reading from a prepared script, and asking for a donation. All telephone operators at Reese Brothers, including plaintiff, were monitored for ...


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