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Massari v. Potter

February 9, 2006

KEVIN J. MASSARI, PLAINTIFF,
v.
JOHN H. POTTER, POSTMASTER, UNITED STATES POSTAL SERVICE, DEFENDANT.



The opinion of the court was delivered by: Judge Edward W. Nottingham

ORDER AND MEMORANDUM OF DECISION

This is an employment discrimination case. Plaintiff Kevin Massari alleges that his former employer, the United States Postal Service ("USPS") - here embodied by Defendant Postmaster General John Potter - discriminated against him and retaliated against him for protected activity based upon his sex and physical and mental disabilities, all in violation of the Rehabilitation Act of 1973, 29 U.S.C.A. § 791 et seq. (2005); the Americans with Disabilities Act ("ADA"), 42 U.S.C.A. §§ 12101, 12203 (2005); and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.A. § 2000e et seq. (2005), as amended by the Civil Rights Act of 1991, 42 U.S.C.A. § 1981a (2005). This matter is before the court on: (1) Defendant's "Motion for Summary Judgment and Supporting Brief," filed July 6, 2005; and (2) Plaintiff's "Motion to Strike Certain of Defendant's Exhibits Attached to Motion for Summary Judgment," filed July 22, 2005. Jurisdiction is based on 28 U.S.C. § 1331.

FACTS

1. Factual Background

Plaintiff is a former employee of the USPS in Colorado Springs, Colorado. (Compl. ¶ 3 [filed Nov. 5, 2004] [hereinafter "Compl."].) On July 8, 2000, Plaintiff was involved in a serious car accident and sustained a closed head injury. (Compl. ¶ 21.) From July 2000 through October 2000, Plaintiff worked as a window clerk at the downtown post office in Colorado Springs, Colorado. (Mot. for Summ. J. and Supp. Br., Undisputed Material Facts ¶ 1, Ex. A--1 at 19, 21 [Dep. of Kevin Massari] [filed July 6, 2005] [hereinafter "Def.'s Br."]; admitted at Pl.'s Resp. to Def.'s Mot. for Summ. J., Resp. to Statement of Undisputed Material Facts ¶ 1 [filed Aug. 4, 2005] [hereinafter, "Pl.'s Resp."].)

a. The October 10, 2000 Incident

On or about October 10, 2000, Plaintiff assisted a female customer who was shipping an express package. (Def.'s Br., Undisputed Material Facts ¶ 1, Ex. A--1 at 22 [Dep. of Kevin Massari]; admitted in relevant part at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 1.) Plaintiff acquired the customer's personal information during the transaction, and subsequently went to the customer's residence. (Id.) In November 2000, Defendant brought disciplinary action against Plaintiff arising out of the incident with the female customer.*fn1 (Id., Undisputed Material Facts ¶ 2, Ex. A--1 at 23 [Dep. of Kevin Massari], Ex. A--3 [Notice of Disciplinary Action]; admitted in relevant part at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 2.) In December 2000, Plaintiff bid for a position operating a small parcel bundle sorter machine. (Def.'s Br., Undisputed Material Facts ¶ 3, Ex. A--1 at 26--28 [Dep. of Kevin Massari]; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 3.) Defendant accepted Plaintiff's bid, and Plaintiff worked in the position from January 2001 through November 2001. (Id.)

b. Plaintiff's Light Duty Assignment and Accommodation Requests

In November 2001, Plaintiff requested a light-duty assignment, due to back pain and other physical problems Plaintiff suffered as a result of the July 8, 2000 car accident. (Def.'s Br., Undisputed Material Facts ¶ 4, Ex. A--1 at 28, 33--34 [Dep. of Kevin Massari]; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 4.) Plaintiff's physician advised Defendant that Plaintiff's physical restrictions included no prolonged standing and no lifting more than five pounds. (Id.) Defendant approved Plaintiff's request and assigned Plaintiff to a light-duty position boxing mail on "tour two" scheduled shift hours, from 7:00 a.m. to 3:30 p.m.*fn2 (Id.)

On February 7, 2002, Plaintiff's psychologist, Dr. Edwin Shockney, and Plaintiff's psychiatrist, Dr. Mary Zesiewicz, collectively sent a letter to Defendant's medical unit, stating that Plaintiff was their patient and requesting consideration of their recommendations that Plaintiff: (1) be placed at a work station with minimal interaction with the public or co-workers, (2) remain on a day shift to ease sleep disorder concerns,*fn3 and (3) be given liberal restroom breaks because Plaintiff's medication necessitated frequent restroom usage. (Id., Undisputed Material Facts ¶ 5, Ex. A--4 [2/7/2002 Letter]; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 5.) On March 4, 2002, Drs. Shockney and Zesiewicz sent a letter to Defendant's medical unit, stating that Plaintiff had been diagnosed with bipolar disorder, post traumatic stress disorder, and obsessive compulsive personality disorder and expressing confidence that Plaintiff's performance would improve with modifications and accommodations to Plaintiff's work and home environments. (Id., Undisputed Material Facts ¶ 6, Ex. A--5 [3/4/2002 Letter]; admitted in relevant part at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 6.) The letter did not specify what modifications or accommodations would be required, and did not refer back to the February 7, 2002 letter. (Id., Ex. A--5 [3/4/2002 Letter].) On April 2, 2002, Dr. Shockney sent Defendant's medical unit a letter indicating that Plaintiff's restrictions and limitations were permanent and Plaintiff would not progress or improve beyond his then-current state. (Id., Undisputed Material Facts ¶ 7, Ex. A--6 [4/2/2002 Letter]; admitted in relevant part at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 7.)

On or about April 2, 2002, Colorado Springs plant manager Garry Gilmore received a letter stating that Defendant's associate area medical director had reviewed Plaintiff's medical documentation and had imposed the following permanent restrictions on Plaintiff's employment:

(1) placement at a work station with minimal interaction with the public or co-workers, (2) assignment to day shift hours, and (3) provision of liberal bathroom breaks, approximating one per hour. (Pl.'s Resp., Resp. to Statement of Undisputed Material Facts, Ex. 7 [4/8/2002 Letter]; admitted in relevant part at Reply to Pl.'s Resp. to Def.'s Mot. for Summ. J., Reply Concerning Undisputed Facts ¶ 8 [filed Aug. 19, 2005 [hereinafter "Def.'s Reply"].) The letter also stated that in the event that Gilmore could not accommodate Plaintiff's restrictions, Gilmore should nominate Plaintiff to Defendant's Reasonable Accommodation Committee. (Id., Resp. to Statement of Undisputed Material Facts, Ex. 7 [4/8/2002 Letter].)

Defendant maintains that on April 15, 2002, Gilmore nominated Plaintiff for consideration by Defendant's Reasonable Accommodation Committee because Gilmore could not accommodate Plaintiff's restrictions, due to a lack of available jobs during the "tour two" scheduled shift hours allowing Plaintiff to work by himself. (Def.'s Br., Undisputed Material Facts ¶ 8, Ex. A--7 at 36, Ex. 3 [Dep. of Char Ehrenshaft].) Plaintiff admits that Gilmore nominated Plaintiff for said consideration, but denies that no jobs were available during "tour two" scheduled shift hours, and asserts that Plaintiff's restrictions did not require him to work alone. (Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 8, Ex. 7 [4/8/2002 Letter].)

On or about May 6, 2002, Plaintiff received notice that a meeting with the Reasonable Accommodation Committee was scheduled for May 15, 2002. (Def.'s Br., Undisputed Material Facts ¶ 9; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 9.) On May 14, 2002, Plaintiff requested that the Reasonable Accommodation Committee meeting be cancelled because he was considering applying for disability retirement. (Id., Undisputed Material Facts ¶ 12, Ex. A--7 at Ex. 3 [Dep. of Char Ehrenshaft]; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 12.) Plaintiff's case was closed until submission of further correspondence regarding Plaintiff's intent. (Id.)

On July 31, 2002, Plaintiff and Dr. Shockney appeared for a hearing before the Reasonable Accommodation Committee. (Id., Undisputed Material Facts ¶ 14, Ex. A--7 at 27--30 [Dep. of Char Ehrenshaft]; admitted in relevant part at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 14.) The Reasonable Accommodation Committee found that Plaintiff's limitations were not covered by the Rehabilitation Act. (Id., Undisputed Material Facts ¶ 15, Ex. A--7 at 27--30, Ex. 3 [Dep. of Char Ehrenshaft]; admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 15.)

On or about August 15, 2002, Plaintiff's physician, Dr. Timothy Hall, requested that Plaintiff's light-duty assignment be extended for three months due to Plaintiff's physical limitations.*fn4 (Id., Undisputed Material Facts ¶ 16, Ex. A--10 [8/15/2002 Note].) On August 28, 2002, Gilmore notified Plaintiff that Plaintiff's request for a light-duty assignment had been approved, and Plaintiff was assigned to "tour three" scheduled shift hours, from 5:00 p.m. until 1:30 a.m. (Id., Undisputed Material Facts ¶ 17, Ex. A--1 at 34--35 [Dep. of Kevin Massari], Ex. A--11 [8/28/2002 Letter]; deemed admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 16.) Defendant asserts that it assigned Plaintiff to work on "tour three" scheduled shift hours because of a lack of work meeting Plaintiff's restrictions during "tour two" scheduled shift hours. (Id., Undisputed Material Facts ¶ 17, Ex. A--1 at 34--35 [Dep. of Kevin Massari], Ex. A--7 at 27--30, Ex. A--11 [8/28/2002 Letter].) Plaintiff asserts that manual mail-sorting work meeting Plaintiff's restrictions was available during "tour two" scheduled shift hours. (Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 16, Statement of Additional Disputed Facts ¶ 8.)

Defendant asserts that Plaintiff and two other employees filed grievances because of the shift change.*fn5 (Def.'s Br., Undisputed Material Facts ¶ 18, Ex. A--2 at 50--52 [Dep. of Garry Gilmore], Ex. A--12 [3/13/2003 Letter]; deemed admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 17.) Defendant asserts that the grievances were settled. (Id., Undisputed Material Facts ¶ 18.) Plaintiff admits that his union settled his grievance, but maintains that he "did not sign off on the settlement because the settlement did not move [him] back to [t]our [two]."*fn6 (Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 17, Ex. 1 ¶ 10 [Aff. of Kevin Massari].)

Defendant alleges that on August 30, 2002, Dr. Shockney wrote a letter in which he opined the accommodation on "tour three" scheduled shift hours was appropriate for Plaintiff.*fn7 (Def.'s Br., Undisputed Material Facts ¶ 19, Ex. A--1 at 59 [Dep. of Kevin Massari].) Plaintiff alleges Dr. Shockney's letter states that the "tour three" scheduled shift hours were not appropriate for Plaintiff. (Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 18, Ex. 18 ¶ 8 [Aff. of Edwin Shockney, Ph.D.].)

c. The May 9, 2002 Incident

On or about May 9, 2002, one of Plaintiff's female co-workers reported that Plaintiff had subjected her to unsolicited and unwanted sexual harassment. (Def.'s Br., Undisputed Material Facts ¶ 10, Ex. A--2 at 20, 41 [Dep. of Garry Gilmore].) On May 11, 2002, Defendant put Plaintiff on "emergency placement" without pay, pending an investigation into the sexual harassment allegations. (Id., Undisputed Material Facts ¶ 10, Ex. A--1 at 44--46 [Dep. of Kevin Massari], Ex. A--2 at 20, 41--48 [Dep. of Garry Gilmore], Ex. A--9 [Emergency Procedure]; deemed admitted at Compl. ¶ 30.) Plaintiff filed a formal grievance regarding the emergency placement, which ultimately resulted in a settlement agreement accompanied by disciplinary action.*fn8 (Id., Undisputed Material Facts ¶ 10 Ex. A--1 at 44--46 [Dep. of Kevin Massari], Ex. A--2 at 20, 41--48 [Dep. of Garry Gilmore], Ex. A--9 [Emergency Procedure]; admitted in relevant part at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 10.)

d. The January 8, 2003 Incident

On January 8, 2003, Plaintiff and co-worker John Sandoval were involved in an altercation marked by shouting and profanity. (Id., Undisputed Material Facts ¶ 20, Ex. A--1 at 35--38 [Dep. of Kevin Massari]; deemed admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 19.) After learning of the incident, Plaintiff's supervisors put Plaintiff on emergency placement without pay. (Id., Undisputed Material Facts ¶ 20, Ex. A--1 at 38 [Dep. of Kevin Massari].) On February 3, 2003, Plaintiff was issued a notice of removal, which proposed to terminate Plaintiff's employment after thirty days. (Id., Undisputed Material Facts ¶ 21, Ex. A--13 [Notice of Removal]; deemed admitted in relevant part at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 20.)

In February 2003, prior to termination of his employment, Plaintiff applied for disability retirement. (Id., Undisputed Material Facts ¶ 22; deemed admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 21.) On or about September 3, 2003, the United States Office of Personnel Management notified Defendant that it had approved Plaintiff's application.

(Id., Undisputed Material Facts ¶ 23, Ex. A--14 [8/3/2003 OPM Notice]; deemed admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 22.)

On or about March 18, 2003, Plaintiff submitted a health benefits election form indicating that he wished to cancel his enrollment in the federal employee health benefits program. (Id., Undisputed Material Facts ¶ 24, Ex. A--8 at 4 [EEO Investigative Aff. of Charmaine Ehrenshaft]; deemed admitted at Pl.'s Resp., Resp. to Statement of Undisputed Material Facts ¶ 23.) Ehrenshaft explained to Plaintiff that benefits could be cancelled only at certain times of the year. (Id.) On April 5, 2003, Plaintiff's benefits were cancelled. (Id.)

2. Procedural History

Plaintiff asserts that he filed complaints with the Equal Employment Opportunity Commission ("EEOC"): (1) on September 20, 2002, alleging discrimination based upon sex and disability and retaliation based upon prior EEOC activity; (2) on October 23, 2002, alleging disability discrimination and retaliation for prior EEOC activity in the Reasonable Accommodation Committee's finding that Plaintiff was not covered under the Rehabilitation Act; (3) on March 23, 2003, alleging race and disability discrimination and retaliation for prior EEOC activity in being placed on emergency placement on January 8, 2003; and (4) on April 5, 2003, alleging disability discrimination and retaliation in being given a notice of removal terminating Plaintiff's employment on February 24, 2003. (Compl. ¶¶ 5, 6, 8, 9.) On December 23, 2002, Plaintiff's first and second complaints were consolidated. (Compl. ¶ 7.) On February 24, 2003, Plaintiff requested a hearing before the EEOC. (Compl. ¶ 12.) On July 31, 2003, Plaintiff's third and fourth complaints were consolidated with the first two complaints. (Compl. ¶ 10.) On September 2, 2003, Plaintiff amended his complaint to add a claim for continuing retaliation against him by Char Ehrenshaft in failing to cancel Plaintiff's health insurance benefits. (Id. ¶ 11.) On February 24, 2003, Plaintiff requested a hearing before the EEOC. (Id. ¶ 12.) On July 16, 2004, Plaintiff withdrew his request for a hearing in order to file his complaint in this court. (Id. ¶ 13.) Plaintiff exhausted his administrative remedies by filing his complaint subsequent to the passing of one hundred and eighty days since his last amendment and three hundred and sixty days since the filing of the original EEOC complaint.*fn9 29 C.F.R. §§ 1614.106(e)(2), 1614.407(b) (2005).

On November 5, 2004, Plaintiff filed a complaint in this court. (Compl.) Plaintiff argues that Defendant discriminated and retaliated against him based on his sex and disability and violated Title VII, the ADA, and the Rehabilitation Act by: (1) failing to find Plaintiff disabled or to accommodate his disabilities under the Rehabilitation Act; (2) putting Plaintiff on emergency placement on January 8, 2003; (3) issuing Plaintiff a notice of removal on February 3, 2003; and (4) delaying cancellation of Plaintiff's healthcare benefits.*fn10 (Compl. ¶¶ 5--52.) On January 10, 2005, Defendant filed an Answer. (Answer [filed Jan. 10, 2005].)

On July 6, 2005, Defendant filed a motion for summary judgment. (Def.'s Br.) Defendant argues that Plaintiff: (1) cannot maintain his claims for discrimination under Title VII, the ADA, or the Rehabilitation Act, because Plaintiff cannot establish the requisite prima facie cases; and (2) cannot maintain his claims for retaliation under Title VII, the Rehabilitation Act, or the ADA, because he cannot demonstrate that Defendant's legitimate, nondiscriminatory reasons for the adverse employment actions were pretextual. (Id. at 9--18.) On August 8, 2005, Plaintiff filed a response to Defendant's motion for summary judgment. (Pl.'s Resp.) On August 19, 2005, Defendant filed a reply in support of its motion for summary judgment. (Def.'s Reply.) This matter is fully briefed.

On July 22, 2005, Plaintiff filed a motion to strike certain of Defendant's exhibits to its motion for summary judgment. (Pl.'s Mot. to Strike Certain of Def.'s Exs. Attached to Mot. for Summ. J. [filed July 22, 2005] [hereinafter "Pl.'s Mot."].) Plaintiff argues that this court should strike two of Defendant's exhibits: (1) an unsigned, undated declaration, for failure to comport with local rules; and (2) a reference to settlement agreement terms that Plaintiff alleges are sealed under the settlement agreement. (Id. at 1--3.) On August 19, 2005, Defendant filed a response to Plaintiff's motion to strike, justifying its exhibits and asserting that Plaintiff failed to follow this court's procedures. (Def.'s Resp. to Pl.'s Mot. to Strike Certain of Def.'s Exs. Attached to Mot. for Summ. J. at 1--3 [filed Aug 18, 2005] [hereinafter "Def.'s Resp."].) Plaintiff did not file a reply to Defendant's response.

ANALYSIS

1. Standard of Review

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248--50 (1986); Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works, 36 F.3d at 1518 (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324; see Fed. R. Civ. P. 56(e). A fact in dispute is "material" if it might affect the outcome of the suit under the governing law; the dispute is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997) (citing Anderson, 477 U.S. at 248). The court may consider only admissible evidence when ruling on a summary judgment motion. See World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998) (citing Concrete Works, 36 F.3d at 1517).

2. Evaluation of Claims

a. Preliminary Matters

Before turning to the substantive issues in this case, I address three preliminary matters. First, I address Plaintiff's motion to strike two of Defendant's exhibits. The other matters relate to the threshold requirement of adverse employment ...


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