The opinion of the court was delivered by: Judge Joy Flowers Conti
This case concerns discrimination and retaliation claims brought by plaintiff Olaf Venter ("plaintiff" or "Venter"), a former employee of the United States Postal Service ("USPS"), who alleges that he was terminated because of his age and disability, and in retaliation for statutorily-protected activities. Pending before the court is a motion for summary judgment filed by the Postmaster General of the United States ("Postmaster General") and the USPS (collectively referred to as "defendants"), as well as a motion filed by defendants to strike an affidavit submitted by plaintiff in opposition to the motion for summary judgment. For the reasons that follow, the motion for summary judgment will be granted in its entirety, and the motion to strike will be denied on the ground that it is moot.
Venter was born on January 16, 1943. (Joint Statement of Material Facts (Docket No. 45) ¶ 2.) After three years of military service, Venter spent a year working for Bell Telephone Company. (Id.) He worked as a self-employed tractor trailer driver from 1971 through 1995. (Id.) In October 1995, he started to work as a driver for a mail contractor. (Id.) Venter was hired as a full-time USPS employee in 1997. (Id. ¶ 3.)
Between 2000 and 2007, Venter suffered from tendonitis, carpal tunnel syndrome, a shoulder and bicep tear, a bulging disc injury, and a depressive disorder. (Id. ¶¶ 4-5.) Because of his injuries, Venter was placed on limited duty. (Id. ¶ 5.) He sometimes disagreed with the precise manner in which the USPS opted to accommodate his impairments. (Id. ¶¶ 6-11.)
In February 2004, Venter filed an administrative Equal Employment Opportunity ("EEO") complaint in connection with his work assignments, contending that Nathan Askew ("Askew") and Fred Reynolds ("Reynolds"), both of whom were supervisors, discriminated against him because of his age and disability. (Id. ¶ 35.) An administrative judge, without conducting a hearing, issued a decision finding that no discrimination had occurred. (Id.) Venter initiated a second EEO complaint in August 2004, alleging that Leonard Baranowski ("Baranowski"), the manager of vehicle services, had denied two of his requests for advanced sick leave in retaliation for the filing of his earlier EEO complaint. (Id. ¶ 36.) A different administrative judge, without conducting a hearing, issued a decision finding that no retaliation had occurred. (Id.) Venter filed a third EEO complaint in April 2005, claiming that Baranowski had introduced errors into his pay and leave records in retaliation for his previous filings. (Id. ¶ 37.) He withdrew his request for a hearing in March 2006, and the agency rendered a decision finding that no retaliation had occurred. (Id.)
On January 18, 2007, Baranowski offered Venter a new limited duty assignment requiring him to work from 3:00 p.m. through 11:00 p.m. as a clerk in the transportation office two days per week, and to work from 6:00 p.m. through 2:30 a.m. in the mail processing unit during the remaining days of the week. (Id. ¶ 6.) Venter signed a form dated January 22, 2007, indicating that he was accepting the assignment "under protest." (Id. ¶ 8.) Unhappy with his new assignment, Venter asked Greg Hoburg ("Hoburg"), his union steward, to initiate the grievance procedure. (Id. ¶ 9.) Although Hoburg indicated that the filing of a grievance was not warranted, Venter persisted in his efforts to have one filed. (Id. ¶ 10.) In February 2007, Venter filed his fourth EEO complaint, alleging discrimination based on his age, disability and national origin, as well as retaliation for his earlier EEO filings. (Id. ¶ 38.)
Venter approached Hoburg about filing a grievance on March 7, 2007. (Id. ¶ 11.) Hoburg informed Venter that he did not wish to discuss the matter further, but Venter continued to insist that a grievance be filed. (Id.) Hoburg sought the intervention of Transportation Operations Supervisor Thomas P. Dziubinski ("Dziubinski"), who took Venter to a smoking area and told him that his behavior was inappropriate. (Id. ¶ 12.) Hoburg left his work station after the conclusion of his shift. (Defs.' App. of Exs. in Supp. of Summ. J. (Docket No. 28), Ex. E at 74; Ex. H.)
Venter's encounter with Hoburg left him distraught. Shortly after the verbal confrontation, Venter went to the Occupational Health Office, where he was treated by USPS nurses Kimberly Sample ("Sample") and Beverly Streitman ("Streitman"). (Joint Statement of Material Facts ¶¶ 16, 19; Defs.' App. of Exs. in Supp. of Summ. J., Ex. A at 85.) Venter stated that he wanted to "punch" or "kill" Hoburg. (Joint Statement of Material Facts ¶¶ 16, 19.) Sample, who had never dealt with Venter before, contacted Motor Vehicle Service ("MVS") Supervisor Ed Hosack ("Hosack") to report Venter's statements about Hoburg. (Id. ¶¶ 18, 20.) She also contacted Distribution Operations Manager Ken Pawlowski ("Pawlowski") about the matter. (Id. ¶ 20.) Because of Venter's mental state, Sample believed it appropriate for him to leave the premises and go home. (Id. ¶ 19.) At Sample's direction, Venter went to Hosack's office, where he again expressed a desire to "kill" Hoburg. (Id. ¶ 21.) Hosack permitted Venter to go home. (Id.)
The USPS maintains a "zero tolerance" policy prohibiting employees from making "any actual, implied or veiled threat, made seriously or in jest." (Id. ¶ 13.) Threats made by employees are evaluated on a "Priority Risk Scale." (Defs.' App. of Exs. in Supp. of Summ. J. (Docket No. 28), Ex. N.) Threats deemed to convey an "Extreme Risk" of violence are categorized as priority 1 threats, while statements involving "No Risk" of violence are categorized as priority 4 "threats." (Id.) Priority 2 threats are those indicating the presence of a "High Risk" of violence, and priority 3 threats are those indicating the presence of a "Low or Moderate Risk" of violence. (Id.)
On March 9, 2007, a threat assessment meeting concerning Venter's threats against Hoburg was conducted. (Id.) The assessment team determined that Venter's statements constituted priority 2 threats. (Id.; Joint Statement of Material Facts ¶ 23.) Postal police officers visited Venter at his home. (Joint Statement of Material Facts ¶ 25.) Venter indicated that he had no intention of harming Hoburg. (Id.) In a letter dated March 9, 2007, Baranowski informed Venter that he was being placed on "off-duty (without pay) status effective March 7, 2007 at approximately 9:58 pm." (Defs.' App. of Exs. in Supp. of Summ. J., Ex. L.) The stated reason for this action was a concern that Venter's return to the workplace could have been "injurious" to Venter or to others. (Id.) On March 14, 2007, the Postal Inspection Service issued an investigative memorandum concerning Venter's statements about Hoburg. (Defs.' App. of Exs. in Supp. of Summ. J., Ex. H.)
After reviewing the investigative memorandum, MVS management officials initiated disciplinary proceedings against Venter. (Joint Statement of Material Facts ¶ 27.) On March 28, 2007, a predisciplinary interview was conducted. (Defs.' App. of Exs. in Supp. of Summ. J., Ex. R.) During the interview, Venter admitted that he had expressed a desire to "kill" Hoburg. (Id.) He indicated, however, that he never intended to actually harm Hoburg, and that he had made that clear to Hosack. (Id.) On April 3, 2007, Dziubinski completed a form recommending that Venter's employment with the USPS be terminated. (Defs.' App. of Exs. in Supp. of Summ. J., Ex. S.) Baranowski concurred in this recommendation. (Id.) Dziubinski issued a "Notice of Proposed Removal" to Venter on April 6, 2007. (Defs.' App. of Exs. in Supp. of Summ. J., Ex. T.) Transportation Manager William Kustarz ("Kustarz") met with Venter and his counsel on April 23, 2007, in order to discuss the matter. (Defs.' App. of Exs. in Supp. of Summ. J., Ex. U.) In a "Letter of Decision - Removal" dated May 8, 2007, Kustarz informed Venter that his employment with the USPS was being terminated as of the close of business on May 16, 2007. (Id.)
Venter appealed his discharge to the Merit Systems Protection Board ("MSPB"). (Joint Statement of Material Facts at ¶ 31.) A hearing in connection with this appeal was conducted on September 11, 2007. (Id.) On October 10, 2007, an administrative judge issued a decision affirming the USPS' decision removing Venter. (Defs.' App. of Exs. in Supp. of Summ. J., Ex. V.) In that decision, the administrative judge rejected Venter's affirmative defenses of age discrimination, disability discrimination and retaliation. (Id.) Venter subsequently filed a petition for review with the MSPB, seeking review of the administrative judge's decision. (Joint Statement of Material Facts at ¶ 32.) On May 7, 2008, the MSPB denied the petition for review. (Defs.' App. of Exs. in Supp. of Summ. J., Ex. W.)
On June 9, 2008, Venter commenced this action pursuant to 5 U.S.C. § 7703(b)(2), alleging violations of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq., the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. §§ 701 et seq., and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq. On July 27, 2009, defendants filed a motion for summary judgment. (Docket No. 25.) On September 3, 2009, Venter filed a brief in opposition and supporting appendix in opposition to the motion for summary judgment. (Docket Nos. 32 & 33.) On October 5, 2009, defendants filed a motion to strike an affidavit contained in Venter's appendix. (Docket No. 36.) The pending motion for summary judgment and motion to strike are the subjects of this memorandum opinion.
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all reasonable inferences in favor of the nonmoving party, "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated only if there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In determining whether a dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable trier of fact could return a verdict for the nonmoving party. Id. at 249.
A. The Legal Bases for Venter's Claims
Venter brings discrimination and retaliation claims under the ADEA, the Rehabilitation Act and the ADA. (Compl. (Doc. No. 1) ¶¶ 39-44.) The federal-sector provision of the ADEA, which is codified at 29 U.S.C. § 633a(a), provides that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . in the United States Postal Service . . . shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a). In order to establish a violation of the ADEA, Venter must show that his age was a "but-for" cause of his discharge.*fn1 Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2350 (2009). In Gomez-Perez v. Potter, 128 S.Ct. 1931, 1935-43 (2008), the United States Supreme Court held that § 633a(a) prohibits a covered federal employer from retaliating against an employee who files an administrative complaint alleging age discrimination. The ADEA establishes a private right of action for individuals aggrieved under the federal-sector provision. 29 U.S.C. § 633a(c).
Title I of the ADA prohibits certain forms of discrimination against disabled individuals in the employment setting. 42 U.S.C. §§ 12111-17. Under title I, the term "employer" does not include "the United States" or "a corporation wholly owned by the government of the United States." 42 U.S.C. § 12111(5)(B)(i). The USPS is "an independent establishment of the executive branch of the Government of the United States." 39 U.S.C. § 201. As such, it is not directly subject to the ADA's prohibitions. Hendrickson v. Potter, 327 F.3d 444, 447 (5th Cir. 2003). Therefore, Venter cannot assert claims against defendants directly under the ADA.
Section 504 of the Rehabilitation Act, which is codified at 29 U.S.C. § 794, provides that "[n]o 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."*fn2 29 U.S.C. § 794(a). Title I of the ADA went into effect on July 26, 1992. Pub. L. No. 101-336, § 108, 104 Stat. 327, 337 (1990). Shortly thereafter, on October 29, 1992, Congress added 29 U.S.C. § 794(d) to the Rehabilitation Act. Pub. L. No. 102-569, § 506, 106 Stat. 4344, 4428 (1992). Section 794(d) provides:
(d) Standards used in determining violation of section
The standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201 to 12204 and 12210), as such sections relate to employment.
29 U.S.C. § 794(d). In light of this statutory language, the provisions of the ADA, although not directly implicated in this case, control the disposition of Venter's claims under the Rehabilitation Act. See Shiring v. Runyon, 90 F.3d 827, 831-32 (3d Cir. 1996). Violations of § 794 are actionable under 29 U.S.C. § 794a(a)(2).*fn3 Spence v. Straw, 54 F.3d 196, 199-200 (3d Cir. 1995).
Venter was informed of his discharge on May 8, 2007. (Defs.' App. of Exs. in Supp. of Summ. J., Ex. U.) At that time,*fn4 title I's antidiscrimination provision provided:
SEC. 102. DISCRIMINATION.
(a) GENERAL RULE.--No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
Pub. L. No. 101-336, § 102(a), 104 Stat. 327, 331-32 (1990) (previously codified at 42 U.S.C. § 12112(a)).*fn5 The ADA also contains provisions prohibiting certain forms of retaliation, interference, coercion and intimidation. Those provisions provide:
§ 12203. Prohibition against retaliation ...