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Luckiewicz v. Potter

November 20, 2009

JOHN LUCKIEWICZ, PLAINTIFF,
v.
JOHN E. POTTER, POSTMASTER GENERAL DEFENDANT.



The opinion of the court was delivered by: Eduardo C. Robreno, J.

MEMORANDUM

I. INTRODUCTION

Plaintiff filed the instant Complaint on February 20, 2008. On March 18, 2009, Plaintiff filed an Amended Complaint. In Count I of the Amended Complaint, Plaintiff brings a Rehabilitation Act claim for denial of accommodation and transfer.*fn1 Count I alleges that Defendant "involuntarily transferred [Plaintiff] unlawfully due to his disability and or perceived disability and denied him his request to remain at the Olney Station as an accommodation to his physical disability in violation of 29 U.S.C. § 701 et seq." In Count II, Plaintiff brings a retaliation claim under the Rehabilitation Act. Count II alleges that "Defendant retaliated against [Plaintiff] when the Agency involuntarily transferred him again after he commenced informal counseling." In Count III, Plaintiff brings a disparate treatment claim, alleging that Defendant "did not allow [Plaintiff] to work overtime from September 2006 to July 2007, and on other periods thereafter to the present, because of his disability and or perceived disability while allowing other workers to work overtime."*fn2 Plaintiff seeks damages and a return full time to the Olney postal station.

Defendant filed a motion for summary judgment, arguing: (1) Plaintiff is not a "qualified individual" under the Rehabilitation Act; (2) Plaintiff was transferred for legitimate, nondiscriminatory reasons; (3) the USPS did not fail to accommodate Plaintiff; (4) Plaintiff was not subject to disparate treatment; and (5) Plaintiff cannot establish a causal connection between his EEO complaints and his transfer to the Main Office Delivery Post Office (MOD). (Doc. no. 16 at 2, 12-28.) For the reasons that follow, it will be granted.

II. BACKGROUND AND RELEVANT FACTS

A. Employment and Injury as a Letter Carrier

John Luckiewicz ("Plaintiff") is a letter carrier with the United States Postal Services ("USPS") in Philadelphia. (Doc. no. 16, Ex. A at 6, 9) (Pl.'s Dep., Feb. 10, 2009.) Plaintiff began working for the USPS in July 1997. (Id. at 6.) On February 17, 2005, Plaintiff was involved in a car accident while delivering mail. (Id. at 11.) He sustained injuries to his legs, a broken rib, a punctured lung and neck pain. (Id. at 11-12). A few months after his injury, Plaintiff returned to work under limited and light duty. (Id. at 13, 53-54.)

Letter carriers have many duties. (Pl.'s Dep. at 8-10.) Primary among those duties are sorting (or, as USPS names it, "casing") mail for their routes and delivering the mail. (Doc. no. 16, Ex. B ¶ 3 (Decl. of J. Breslin); Pl.'s Dep. at 10.) Each morning, before starting delivery, letter carriers spend time casing and bundling the mail for their routes. (Decl. of J. Breslin at ¶ 3.) After casing, letter carriers spend approximately six-and-a-half to seven hours delivering the mail, which they accomplish through a combination of walking, driving, and climbing steps. (Id. at ¶ 4.) Letter carriers must be able to lift and carry bags of mail and parcels weighting over 25 pounds. (Id. at ¶ 5.)

Casing and delivering mail are considered to be two essential functions of letter carriers. (Pl.'s Dep. at 10; Decl. of J. Breslin at ¶¶ 3, 5.) Due to Plaintiff's injury, he cannot deliver mail. (Pl.'s Dep. at 14-15; Decl. of J. Breslin at ¶ 6; Decl. of A.C. Disante at ¶ 3.) There is no accommodation that the USPS could devise that would allow Plaintiff to deliver mail along a full, regular route. (Pl.'s Dep. at 15-16, 26, 32.) Plaintiff has never asked his supervisors for accommodations that would allow him to deliver mail. (Id. at 66-67.)

After his injury, Plaintiff was placed on limited duty by the USPS.*fn3 (Id. at 51.) Under the Limited Duty Program, the USPS accommodates employees injured while on the job who are temporarily unable to perform their regular functions. (Doc. no. 16, Ex. D, USPS Limited Duty Program Management Handbook 157.) Nevertheless, throughout his employment with the USPS, Plaintiff's job title has remained "letter carrier." (Pl.'s Dep. at 70.) Plaintiff's salary range and union membership are based upon his position as a letter carrier. (Doc. no. 16, Ex. B at ¶ 11.

B. Limited Duty Program Positions

In September 2006, Plaintiff reached maximum medical improvement, according to his physician. (Doc. No. 16, Ex. H, Form CA-17 dated 9/27/06.) Plaintiff's treating physician listed Plaintiff's medical and physical limitations as: (1) sitting for no more than two hours at a time; (2) driving, standing, walking, pushing and pulling for no more than 30 minutes a day; (3) typing, or fine manipulation, for no more than one hour a day; (4) lifting no more than 25 pounds and (5) a total prohibition on climbing. (Id.; Ex. A at 21-23.)

As required by the Limited Duty Program, Plaintiff's supervisors modified his duties based on his limitations to provide him with work her could do. (Doc. no. 16, Ex. A at 52, 70; Ex. B. at ¶¶ 8-11.) Plaintiff could not deliver mail along a route, but was able to case mail, process certified mail notification, drive briefly to deliver express mail, pick up mail from collection boxes and bring mail to letter carriers on the street. (Ex. A. at 24-25, 28-29, 52-53; Ex. B at ¶ 10.)

During his limited duty tenure at Olney Station, Plaintiff's supervisors found it difficult to assign Plaintiff 40 hours a week of work for which he was qualified to perform. (Decl. of J. Breslin at ¶ 8; Decl. of A.C. Disante at ¶ 5.) In November 2006, after being placed in the Limited Duty Program, Plaintiff was temporarily transferred to the Main Office Delivery Post Office (MOD) to work for "Operation Santa Clause" and returned to Olney Station in December 2006. (Ex. B at ¶ 13; Ex. A at 80.) In February 2007, Plaintiff agreed to a temporary assignment at the William Penn Annex to assist in scanning delivery confirmation barcodes. (Ex B. at ¶ 17-19.) Plaintiff's supervisor, Ms. Julian Breslin, offered the assignment to Plaintiff because there was not enough work within his restrictions at Olney Station and believed the work at William Penn Annex would provide him with more hours. (Id.) Plaintiff returned to Olney station on or about March 19, 2007. (Ex. A at 112.)

C. Change in Overtime Usage Enforcement

Even though the USPS overtime policy was that overtime should only be given to employees when justified, the policy was not enforced in the past. (Doc. no. 16, Ex. E at ¶ 9 (Decl. of M. McKenna).) However, with the USPS in Philadelphia losing revenue because of a significant drop in the volume of mail that was processed (id. at ¶ 4), USPS officials were forced to address concerns about the cost of overtime, including overtime for disabled employees (Id. at ¶¶ 5-7). As a result, the Philadelphia Postmaster implemented a series of measures designed to curtail overtime pay for both disabled and non disabled employees.

D. Transfer out of Olney Station

In March 2007, changes in passport requirements for air travel generated a need for more workers to process passport applications. (Doc. no. 16, Ex. G ¶ 3 (Decl. of R. Bethune).) The Philadelphia Main Post Office, also known as Main Office Delivery ("MOD"), was responsible for processing most of these passports. (Id.) Postmaster Martin asked Philadelphia station managers to send injured employees who were not being used productively at their assigned stations to MOD to assist with the passport processing. (Id. at ¶ 4.) MOD was then located at 30th and Market Streets in Philadelphia. (Id. at ¶ 2.) Numerous other limited duty employees were transferred from other post offices in the city to assist MOD with its passport work. (Id. at ¶¶ 3-4.)

On March 23, 2007, Plaintiff's Olney Station supervisor, Station Manager Alexander C. Disante, received a request from his Area Manager, Eric Coleman, to select two injured employees to send to MOD. (Decl. of A.C. Disante at ¶ 4.) Disante offered the position to Plaintiff and another injured employee, Karen Strawbridge, because (1) there was not enough work at Olney Station to provide Plaintiff and Strawbridge with eight hours of work each day; (2) the passport work at MOD would provide them with eight hours of work each day within their restrictions; and (3) they were the two most junior employees at Olney Station. (Id. at ¶ 5.) Plaintiff accepted the position "under protest." (Doc. No. 16, Ex. K ("Offer of Modified Assignment (Limited Duty)" dated 3/23/07.)

On March 26, 2007, Plaintiff was transferred to MOD. (Decl. of A.C. Disante at ¶ 4.) By April 2007, there were many injured employees who had been transferred to MOD in addition to Plaintiff. (Decl. of R. Bethune at ¶ 3; see also Decl. of J. Breslin at ¶ 21.) The passport work consisted mainly of sitting, scanning express priority mail and passport mail, and assisting customers with filling out passport applications. (Doc. no. 16, Ex. G at ¶ 6 (Decl. of E. Coleman).) Plaintiff performed the passport duties at MOD well ...


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