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Bush v. Donahoe

United States District Court, W.D. Pennsylvania

August 8, 2013

VIVIAN BUSH, Plaintiff,
PATRICK R. DONAHOE, Postmaster General, United States Postal Service, Defendant

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For VIVIAN BUSH, Plaintiff: Joseph J. Chester, Caplan & Chester, Pittsburgh, PA.

For PATRICK R. DONAHOE, Postmaster General, UNITED STATES POSTAL SERVICE, Defendant: Megan E. Farrell, LEAD ATTORNEY, United States Attorney's Office, United States Attorney's Office, Pittsburgh, PA.


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LISA PUPO LENIHAN, Chief United States Magistrate Judge.

Currently before the Court for disposition is Defendant's Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56 and Western District of Pennsylvania Local Rule 56.1 (ECF No. 30). In this employment discrimination case, Plaintiff, Vivian Bush, asserts that her supervisor refused to allow her to return to her job as a Postal Service Supervisor of Customer Service while wearing an open-toed walking cast/boot for approximately five months in 2009. As a result, Bush claims that she suffered a loss in pay and benefits, and has filed claims of retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16, (" Title VII" ), age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (" ADEA" ), and disability discrimination (failure to accommodate) under the Rehabilitation Act of 1973, 29 U.S.C. § § 791 et seq., as amended (" Rehabilitation Act" ). This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and § 1343.

For the reasons set forth below, the Court will grant Defendant's motion for summary judgment in its entirety.


Plaintiff, Vivian Bush (" Bush" ), became a career employee with the United States Postal Service (" Postal Service" ) in 2000. (Def.'s Concise Statement of Material Facts (" CSMF" ) at ¶ 2, ECF No. 24.) In December of 2008 and continuing through June of 2009 (the " relevant time period" ), Bush was a Postal Service Supervisor of Customer Service assigned to the Wilkinsburg Postal facility. ( Id. ) Bush's race is African American and she was 44 years old during the relevant time period. ( Id. at ¶ 1.)

As a supervisor of customer service, Bush worked at a desk which overlooked the various operations on the " work floor" of the Wilkinsburg Postal facility. ( Id. at ¶ 4.) Her job duties also required her to be present on the work floor, as well as to travel by foot or motor vehicle outside of the Wilkinsburg Postal facility. ( Id. ) Bush and other supervisors at the Wilkinsburg Postal facility reported directly to Debra Parker, Acting Manager, during the relevant time period. ( Id. at ¶ 3.)

Sometime in December of 2008, Bush sustained a non-work related sprain to her right ankle/foot. ( Id. at ¶ 6.) On December 31, 2008, Bush's treating podiatrist, William H. Lenz, provided her with an open-toed boot to wear on her right foot for a temporary period of time, including while she was at work. ( Id. at ¶ 5.) While at Dr. Lenz's office, Bush placed a call to her supervisor, Parker, who allegedly told her that she could be at work while wearing

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the open-toed walking boot. ( Id. at ¶ 7.)

In January of 2009, Bush returned to work with the open-toed boot without incident until January 15, 2009. ( Id. at ¶ 8.) On January 15, 2009, Parker told Bush that she could not wear the open-toed boot on the work floor of the Wilkinsburg Postal facility because it was a safety issue. ( Id. at ¶ 9; see also Bush Dep. at 123.) [2] Parker maintains that she only became aware that Bush was present on the work floor with the open-toed boot on January 15, 2009. (Parker Supp. EEO Investigative Aff. dated 2/9/10 (" Parker Supp. EEO Aff." ) at ¶ 3, (Def.'s Ex. I, ECF No. 25-9 at 7); Parker Dep. at 52-53 (Pl.'s 2nd Supp. App., Ex. 8.B, ECF No. 51).) [3] Parker gave the following explanation for sending Bush home on January 15, 2009:

We had recently had a clerk on the floor, Eleanor Kelly, who had been sent home because she had an open toe cast/boot. Someone on the floor saw Ms. Bush with an open toe boot/cast and called Safety. Safety then called me and notified me that Ms. Bush was working on the floor with an open toe foot/cast which was a violation of safety regulations.
We were in a staff meeting and I told her that she could not be on the floor with an open-toe boot. It would not be fair to allow a supervisor to work on the floor with an open toe boot when we had just sent home a clerk for that same thing. Ms. Bush laughed when I told her and she said, " I guess you caught me. I'll be at home on sick leave."

Parker Supp. EEO Aff. at ¶ 3. Bush similarly testified that on January 15, 2009, Parker told her that she got a call from safety indicating that an unidentified postal employee had reported that Bush was on the work floor wearing an open-toed boot, and that this had something to do with another employee, Eleanor Kelly. (Bush Dep. at 50 & 56, Pl.'s App. Vol. I., Ex. 2.A, ECF No. 28 at 29; Parker Dep. at 106-108, 112, ECF No. 51.)

Consequently, Bush left the Wilkinsburg Postal facility on January 15, 2009 and did not return until after she received a return to duty letter from Parker dated April 17, 2009. (Def.'s CSMF ¶ 12.) [4] After receiving the April 17, 2009 letter, Bush reported for work on April 20, 2009. (Def.'s CSMF ¶ 13.) [5] Because Bush was still wearing the open-toed boot on her right foot when she reported to work on April 20, 2009, Parker sent her home and told

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her not to return until she was not wearing the open-toed boot. ( Id. at ¶ 14.) [6] From January 15, 2009 until June 8, 2009, Bush did not provide any medical documentation that restricted her ability to wear a closed-toe shoe while at work. ( Id. at 15.) [7]

On the evening of June 8, 2009, Bush was seen by Postal employee Beverly Streitman, R.N., at the Postal Service Health Unit. Bush presented Nurse Streitman with a prescription note from Dr. Lenz dated May 28, 2009, stating: " Please allow patient to wear walking cast @ work." ( Id. at 16.) Nurse Streitman completed the right side portion of Postal Form 3967 by repeating Dr. Lenz's prescription note regarding the work restrictions. ( Id. at ¶ 17.) Nurse Streitman, knowing that an open-toed cast was not permitted by postal safety regulations (Streitman Dep. at 25, Def.'s Ex. G, ECF No. 25-7 at 10), also noted in Bush's health unit record that she " must be kept in environment free from harm" (Bush's Postal Service Health Unit Records, Def.'s Ex. F, ECF No. 25-6 at 5). Nurse Streitman testified that she did not give Bush permission to return to work upon presentation of the prescription note from Dr. Lenz, but stated that it was up to Bush's supervisor as to whether Bush would be allowed to return to work with the restriction noted by Dr. Lenz. [8] (Streitman Dep. at 35-36, Pl.'s App. Vol. I, Ex. 15.B, ECF No. 28-1 at 59.)

On June 9, 2008, Bush returned to work at the Wilkinsburg Postal facility and resumed her duties as a Supervisor of Customer Service, utilizing the open-toed walking boot in a sedentary position, but changing into a closed-toe shoe while present on the work floor. (Def.'s CSMF ¶ 19; Bush Dep. at 140; Dep. of Mike Cafaro (" Cafaro Dep." ) at 34, Pl.'s App. Vol. 1, Ex. 12.E, ECF No. 28-1 at 57.) Bush discontinued using the open-toed boot/cast approximately one month later. (Def.'s CSMF ¶ 19.) More specifically, Bush stated in her Timeliness Affidavit dated 6/27/09 and filed with the EEOC that her cast was completely removed on 6/19/09. (Pl.'s Timeliness Aff. at 4, Def.'s Ex. C, ECF No. 25-3 at 6.)

Reasonable Accommodation

Bush believes that a " reasonable accommodation" by the Postal Service, while she was temporarily restricted to the use of the walking boot, would have been to just allow her to continue working at the Wilkinsburg Postal facility while wearing the open-toed boot. ( Id. at ¶ 20.) Although Bush never made any request for a reasonable accommodation from the Postal Service other than to continue working in the same capacity at the Wilkinsburg Postal facility while wearing her open-toed boot ( id. at ¶ 21), she claims that her labor representative, Bill Weber, asked management to accommodate her in some other area (Bush Dep. at 123-24). Bush contends that it was her manager's (Parker's)

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responsibility to offer a reasonable accommodation " upon observing difficulty[,]" citing to Postal Service Handbook EL-307, Reasonable Accommodation, An Interactive Process, § § 11 & 21 (October 2008) (" Handbook EL-307" ). [9] (Pl.'s 2nd Am. Resp. Stmt. Mat. Facts at ¶ 21.)

Alleged Comparator

Bush has also alleged that a younger, former employee, Shawnee Young, was allowed to continue working at the Wilkinsburg Postal facility while wearing an open-toed cast. (Def.'s CSMF ¶ 22.) Ms. Young was 33 years old in February and March of 2009. (Pl.'s App. Vol. 1, Ex. 2.C at 000194, ECF No. 28 at 42.) Ms. Young was a transitional employee who suffered an " on the job injury" necessitating " limited duty" for a period of time during which she only answered the telephones " away from the work floor." ( Id. at ¶ 23.) [10] Bush has alleged age discrimination on the basis that her supervisor, Parker, was older than she and also allowed a younger employee (Shawnee Young) to continue working while needing to utilize " crutches and a walking cast of some sort." ( Id. at ¶ 24.) [11] Parker testified, however, that she was not aware of Bush's age. (Def.'s CSMF ¶ 27 (citing Parker Dep. at 59); see also Parker EEO Investigative Affidavit dated 1/25/10 (" Parker EEO Aff." ) at ¶ ¶ 4,19, & 22(B), ECF No. 25-9 at 2 & 5.) [12] At the time of the alleged discriminatory acts, Parker was 53 years old. (Def.'s CSMF ¶ 28.)

Alleged Retaliatory Conduct

Prior to the instant action, Parker was not one of the individuals mentioned in any prior EEO case filed by Bush. ( Id. at 25; Bush Dep. at 37.) [13] Moreover, Parker testified that she was not aware of any of Bush's prior EEO activity, nor did she ever see Bush's employment file. (Def.'s CSMF ¶ 26; see also Parker Dep. at 43, 59; Parker EEO Aff. at ¶ ¶ 5-6, 20, Def.'s Ex. I, ECF No. 25-9 at 2 & 5.) [14]

Bush testified that she reported delay mail attributable to manager Parker between January 8, 2009 and January 12, 2009, but she does not state to whom she reported the delay mail. (Pl.'s 2nd Am. RSMF ¶ 31.) In addition, another supervisor at the Wilkinsburg Postal facility, Christine Carter, testified that she reported delay mail at the Wilkinsburg Postal facility to the OIG [15] and Mike Cafaro while Parker was the acting manager, but Carter did not indicate when she made the report. (Carter Dep. at 11-12, Pl.'s App.

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Vol. 1, Ex. 2.D(3), ECF No. 28-1 at 26; Carter email dated 8/5/10, Pl.'s Supp. App. Vol. 4, Ex. 8.C(3), ECF No. 51 at 10.)

On April 16, 2009, Plaintiff requested pre-complaint EEO counseling. (Pl.'s App. Vol. 1, Ex. 2.C, ECF No. 28 at 35 & 37.) Thereafter, Plaintiff was given an initial interview on May 4, 2009 by EEO Dispute Resolution Specialist Toni Tait. ( Id., ECF No. 28 at 35.) After the interview on May 4, 2009, Tait notified Parker and Cafaro by email that Bush had filed an EEO complaint (age) naming them as the responsible management officials. (Pl.'s Supp. App., Ex. 9E(2)(b), ECF No. 51 at 12-13.) On May 11, 2009, Parker responded via email to Tait's May 4, 2009 email regarding Bush's EEO complaint that two other employees (Eleanor Kelly and Shawnee Young) were allowed to work with inappropriate footwear. ( Id., ECF No. 51 at 15.)

In the meantime, Parker sent a Return to Duty Notice dated April 17, 2009 to Bush informing her that the office records indicated she had not reported to duty since April 4, 2009, [16] and that since she had not obtained permission in advance for the absence, she was to return to work immediately, but if she was unable to do so, to personally contact Parker immediately to discuss the reasons for her inability to return to duty. (Pl.'s App. Vol. I, Ex. 2.C, ECF No. 28 at 38.) Bush was further advised to furnish acceptable documentation to support her absence within five days of receipt of the notice. ( Id. ) In addition, Parker informed Bush that absences of twenty-one (21) calendar days or more due to non-occupational illness/injury must be cleared by the Postal Medical Unit before she would be permitted to return to duty, and that she must call the Medical Unit for instructions prior to reporting back to work. ( Id. ) On April 20, 2009, Bush reported to work unexpectedly, still wearing the open-toed boot and without obtaining clearance from the Postal Medical Unit, and Parker sent her home. Plaintiff did not provide Parker with any medical documentation regarding her absence at that time. ( Id., ECF No. 28 at 40.)

Postal Service Safety Guidelines/Regulations

Defendant's safety regulations preclude employees from wearing open-toed footwear of any kind on the work floor. (Def.'s CSMF ¶ 10.) [17] The Supervisor's Safety Handbook EL-801, issued by the Postal Service in June 2008 (" Handbook EL-801" ), states that " open-toed" . . . shoes . . . must not be worn by Postal Service employees on the job." Handbook EL-801, § 8-8.4 at 55 (Def.'s Ex. J, ECF No. 25-10 at 3.) See also Dep. of Timothy Fox (" Fox Dep." ) at 13-15 (Def.'s Ex. K, ECF No. 25-11). Handbook EL-801 further provides:

The supervisor with jurisdiction over a work location is responsible for determining whether a particular style of shoe is acceptable on the workroom floor. The supervisor must inform employees wearing unacceptable footwear about Postal Service policy on shoes and prohibit employees from wearing such footwear in work areas.

Handbook EL-801, § 8-8.4 at 55. In addition, the Postal Employee's Guide to

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Safety, Handbook EL-814, also issued in June 2008 by the Postal Service (" Handbook EL-814" ), instructs employees not to wear on the work floor, inter alia, " open shoes (including open sides, toes, or heels)" in order to " eliminate slips, trips and falls[.]" Handbook EL-814, § VI, part A.4 at 14-15 (Def.'s Ex. J, ECF No. 25-10 at 8-9). See also Fox Dep. at 13-15. Timothy Fox, Manager of Safety for the Postal Service, also testified that the ban on open-toed shoes in industrial settings, like the work floor of the postal facilities, is also required by OSHA regulations. (Fox Dep. at 15.)

Procedural History

Bush filed a timely EEO formal complaint on May 23, 2009. (Am. Compl. ¶ 7, ECF No. 9.) The Postal Service issued a Notice of Final Action regarding Bush's administrative EEO complaint of discrimination on July 11, 2011 ( id. at ¶ 8; Def.'s Ans. to Am. Compl. ¶ 8, ECF No. 13), and Bush filed this timely civil action on October 7, 2011. Discovery has been completed and Defendant has now moved ...

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