The opinion of the court was delivered by: Goldberg, J.
Plaintiff, Leo A. Filipovits, initiated this action under the Rehabilitation Act, 29 U.S.C. § 701 et seq., alleging that his employer, Defendant, United States Postal Service, discriminated against him on the basis of his disability. Defendant filed a motion to dismiss Plaintiff's second amended complaint, or in the alternative, a motion for summary judgment, on July 2, 2012. For the reasons stated below, we will grant Defendant's motion for summary judgment.
I.FACTUAL AND PROCEDURAL BACKGROUND
According to the second amended complaint, Plaintiff's employment with Defendant began in 1987, when he was hired as a rural carrier. In October of 1993, Plaintiff was involved in a work-related motor vehicle accident, injuring his back, chest and foot. As a result of these injuries, Plaintiff received workmen's compensation from October 1993 through October 2001. (2d Am. Compl., Doc. No. 18, ¶¶ 4, 6, 9.) Plaintiff held the title of a rural carrier from October 2001 through January 19, 2007, but claims he only performed clerk work during that time period. (Id. at ¶ 12.)
Plaintiff was assigned to a permanent modified clerk position on January 20, 2007. (Id. at Ex. B.) On April 23, 2007, Plaintiff's physician, Dr. Marzena Bieniek, opined that Plaintiff's post-traumatic low back pain and psoriatic arthritis resulting from the accident were progressive and chronic. Dr. Bieniek recommended that Plaintiff work an eight hour day in a sedentary capacity and that he not lift anything in excess of ten pounds. (Id. at Ex. C.) However, on August 29, 2008, Plaintiff was notified that he would be involuntarily reassigned to a different, unnamed position on the tentative date of November 23, 2008. (Def.'s Mot., Ex. B.) Plaintiff received a notification of personnel action on February 28, 2009, which purported to involuntarily reassign him to the position of full-time city carrier. (2d Am. Compl., Ex. D.) However, this reassignment was not effectuated until April 24, 2009, when the assigned position of city letter carrier was modified in an attempt to comply with Plaintiff's medical restrictions. (See Doc. No. 24, Ex. B; Filipovits Decl., Doc. No. 24, ¶ 11.)
Prior to his reassignment, in January of 2009, Dr. Edward Schwartz, Plaintiff's podiatrist, informed Plaintiff that he would need surgery on his left foot. (2d Am. Compl. ¶ 16.) The surgery took place on June 4, 2009. Due to complications, a further surgery was performed on July 8, 2009. Following the surgeries, Plaintiff was again approved for workmen's compensation. (Id. at ¶¶ 22-24.)
Plaintiff returned to the modified carrier position in July of 2010, but was "limited in his ability to walk, stand, or exit a postal vehicle because of [the] injuries Plaintiff sustained from the 1993 vehicle accident." (Id. at ¶ 28.) "Thereafter," Plaintiff requested that Defendant accommodate his disability by allowing him to "return to the same or similar clerk work that Plaintiff had done since October of 2001." (Id. at ¶ 29.) Plaintiff claims that clerk work was available, as other employees received light duty in the Lehigh Valley Distribution facility. (Id. at ¶ 18.) Plaintiff has failed to indicate how Defendant responded to his request.
Plaintiff worked for Defendant until October of 2010, when, following a hearing before the Department of Labor, a determination was made that Plaintiff was eligible for disability. Plaintiff alleges that the decision to grant him disability was in an effort "to force him out and get him to retire." (Id. at ¶¶ 32, 34-36, 39, Ex. H.)
B. Procedural History*fn1
Plaintiff first initiated contact with an Equal Employment Opportunity ("EEO") counselor for pre-complaint counseling on August 14, 2008. He filed a form supplying information for counseling on August 23, 2008, a few days prior to being notified of the involuntary reassignment, stating that he was concerned about the security of his position due to the recent loss of six clerk positions in his office. (Def.'s Mot., Ex. A.) On October 10, 2008, Plaintiff received a Notice of Right to File from the EEO counselor, stating that he had "[fifteen] days from the date of receipt of th[e] letter to file a timely formal complaint." He was also notified that failure to file within the fifteen day time limit could result in dismissal of his complaint. (Id. at Ex. D.) Plaintiff filed an EEO Complaint on August 5, 2009. (Id. at Ex. E.)
On August 24, 2009, the EEO dismissed Plaintiff's complaint as untimely. (Id. at Ex. G.) Plaintiff appealed this decision, arguing that he was "unable to maintain the appropriate level of diligence" due to his health conditions. On March 2, 2010, Plaintiff received notice that the EEOC affirmed the agency decision. The decision stated that Plaintiff's health issues did not excuse the nearly ten month delay, given that "complainant was working at the agency eight hours a day" in the month following his receipt of the notice of right to file a complaint. The decision also noted that Plaintiff had the right to file a civil action within ninety days of its receipt. (Id. at Ex. H.)
The present action was initiated through a praecipe for a writ of summons*fn2 in the Court of Common Pleas of Lehigh County, Pennsylvania on May 26, 2010. (2d Am. Compl. ¶ 40.) This action was removed to the United States District Court for the Eastern District of Pennsylvania on May 24, 2011, and Plaintiff filed his first amended complaint on October 3, 2011. Defendant subsequently filed a motion to dismiss the amended complaint, or alternatively, for summary judgment. On May 18, 2012, this Court granted in part and denied in part Defendant's motion, and provided Plaintiff with leave to amend.*fn3 (Doc. No. 17.) Plaintiff filed his second amended complaint on June 15, 2012.
Defendant's motion to dismiss the second amended complaint, or
alternatively, for summary judgment was filed on July 2, 2012.
Therein, Defendant argues that Plaintiff has failed to state a claim
for which relief can be granted, and also that Plaintiff's claim must
be dismissed for failure to exhaust administrative remedies. On April
3, 2013, this Court notified the parties that it may convert
Defendant's motion into a motion for summary judgment, and invited the
parties to submit further briefing or documentation relevant to the
issue of ...