United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. TEETER, UNITED STATES DISTRICT JUDGE
Salvatore Giardina, a former United States Postal Service
(“USPS”) employee, brings this employment
discrimination action pro se against Defendant Megan Brennan
in her official capacity as Postmaster General. Doc. 1. Plaintiff
asserts claims for (1) age discrimination under the Age
Discrimination in Employment Act of 1967
(“ADEA”), as amended, 29 U.S.C. §§ 621,
et seq.; and (2) failure to accommodate his
disability pursuant to § 501 of the Rehabilitation Act
of 1973, 29 U.S.C. § 791. Id. Defendant now moves
for dismissal of Plaintiff's age discrimination claim and
for summary judgment on Plaintiff's
failure-to-accommodate claim. Doc. 36.
following reasons, the Court agrees with Defendant and finds
that dismissal and summary judgment are warranted. With
respect to Plaintiff's age discrimination claim, the
Court finds that Plaintiff has failed to exhaust his
administrative remedies and, accordingly, that claim must be
dismissed under Rule 12(b)(6). And, as to Plaintiff's
claim for failure to accommodate his disability, the Court
finds Defendant is entitled to summary judgment because (1)
neither Plaintiff nor USPS identified a vacant position
Plaintiff could perform with his medical restrictions, and
(2) Plaintiff cannot show he was qualified, with or without
reasonable accommodation, to perform a vacant job within the
USPS. The Court's holdings are explained in further
Plaintiff's Response to Defendant's Statement of
initial matter, the Court notes that on July 9, 2019-the same
day she filed her motion to dismiss and for summary
judgment-Defendant mailed Plaintiff a “Notice to Pro Se
Litigant Who Opposes a Motion for Summary Judgment” as
required by District of Kansas Rule 56.1(f). Doc. 38. That
notice advised Plaintiff that he may not oppose summary
judgment by simply relying on the allegations in his
complaint; rather, he must submit evidence to contradict the
material facts asserted by Defendant. Id. at 1. The
notice further cautioned that, if Plaintiff did not timely
respond to Defendant's motion with such evidence, the
Court “may accept [D]efendant's facts as true, in
which event [Plaintiff's] case may be dismissed and
judgment entered in [D]efendant's favor without a
trial.” Id. at 2.
when Plaintiff filed his opposition to Defendant's motion
for summary judgment, he did not include a response to
Defendant's statement of uncontroverted facts as required
by Rule 56 and District of Kansas Rule 56.1(b) (both of which
were included with the Notice to Pro Se Litigant as
required). See Doc. 43. And he cites no evidence to
support his additional facts. Although recognizing that
Plaintiff proceeds pro se, Plaintiff's pro se status
neither excuses him from compliance with procedural rules nor
shields him from the consequences of his noncompliance.
See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994) (noting the Tenth Circuit has “repeatedly
insisted that pro se parties follow the same rules of
procedure that govern other litigants”). This includes
compliance with the District's local rules. Hamilton
v. Dep't of Veterans Affairs, 2016 WL 7326280, at *1
(D. Kan. 2016).
Plaintiff has not properly controverted Defendant's facts
or supported his additional facts, the Court deems
Defendant's statement of facts admitted for purposes of
summary judgment. See D. Kan. R. 56.1(a) (“All
material facts set forth in the statement of the movant will
be deemed admitted for the purpose of summary judgment unless
specifically controverted by the statement of the opposing
party.”); Fed.R.Civ.P. 56(e)(2) (“If a party . .
. fails to properly address another party's assertion of
fact as required by Rule 56(c), the court may . . . consider
the fact undisputed for purposes of the motion.”);
see also Kobel v. Dunkle, 2018 WL 572053, at *2 (D.
Kan. 2018) (deeming defendants' allegations admitted for
purposes of summary judgment where pro se plaintiff
“generally [did] not controvert defendants'
statements in numbered paragraphs”); Hamilton,
2016 WL 7326280, at *2 (holding that “[b]ecause [pro
se] plaintiff has controverted none of defendant's facts,
the court can consider these facts undisputed for purposes of
Plaintiff's Employment With USPS
began working as a mailhandler at a USPS facility in Topeka,
Kansas, in January 1986. Doc. 37 at 2 ¶ 3. While working
at USPS, Plaintiff injured both his right knee (in 1987) and
left knee (in 1996). Id. at 2 ¶ 4. In March
1999, Plaintiff was diagnosed with joint bilateral knee
osteoarthritis; the duration of his condition was indefinite.
Id. USPS accepted Plaintiff's workers'
compensation claim related to his knee injuries and gave him
a modified duty assignment at its Topeka Processing and
Distribution Facility working as a transporter, which
required use of a tow machine (Plaintiff refers to this
machine in his filings as a “mule”). Id.
Computer Line Production Operator Position
January 2013, USPS notified Plaintiff that, due to closure of
the Topeka Processing and Distribution Facility, he would be
involuntarily reassigned to a different facility and needed
to choose a new work assignment. Id. at 3 ¶ 5;
Doc. 37-4 at 8-9. Plaintiff picked the Computer Line
Production Operator position at the National Print Center
(“NPC”) in Topeka. Doc. 37 at 3 ¶ 6; Doc.
37-4 at 8-9. The Computer Line Production Operator position
required repeated and daily lifting, carrying, pushing, and
climbing ladders. Doc. 37 at 3 ¶ 10. The NPC does not
have tow machines. Id. at 3 ¶ 7.
February 28, 2013, Plaintiff reported to work at the NPC and
began training for his new position. Id. at 3 ¶
8. But Plaintiff ultimately determined he could not perform
the essential functions of the position. Id. at 3
¶ 9. For example, Plaintiff had trouble climbing the
ladder and rolling the paper spool to and from the machine.
Id. at 3 ¶ 10. And the morning after his first
day in the position, Plaintiff's legs were “so bad
[he] could hardly walk.” Id. at 3 ¶ 9.
Plaintiff called his doctor but he was unavailable, so Sarah
McKenna gave Plaintiff a week off. Doc. 37-4 at 12.
early March 2013, Plaintiff notified Emerson Daniels (Plant
Manager at the NPC), Cameron Sherve (Plaintiff's
supervisor), and Greg Gonzales (another USPS supervisor) that
he could not perform the essential functions of the Computer
Line Production Operator position. Doc. 37 at 4 ¶ 13.
Plaintiff contends that, during this meeting, Mr. Gonzales
suggested a way of modifying the position to allow Plaintiff
to alternate sitting and standing while performing the work.
Id. at 4 ¶ 14.
the meeting with Plaintiff in early March 2013, Mr. Daniels
asked Plaintiff for documentation to support his medical
limitations. Id. at 4 ¶ 15. Plaintiff gave Mr.
Daniels a copy of his medical restrictions dated December
2012, which stated he could perform “intermediate
lifting of 10-20 lbs.” Id. at 4 ¶ 16. The
restrictions further stated that “[i]n [an] 8 hour day
[Plaintiff] may sit 4 hours and stand 4 hours.”
Id. And Plaintiff “[m]ay work up to 11 hours
per day with restriction of sitting and standing in place if
pain allows.” Id. But, on March 12, 2013,
Plaintiff provided additional documentation from his
physician stating that Plaintiff was currently under his
medical care but “may return to work with no
restrictions on 03/18/2013.” Id. at 4-5 ¶
17. After Mr. Daniels received this conflicting medical
documentation, he contacted USPS's Injury Compensation to
determine the nature of Plaintiff's limitations-however,
no medical information was in Plaintiff's file.
Id. at 5 ¶ 19. USPS officials subsequently
scheduled at least two functional capacity evaluations to
determine if Plaintiff could perform jobs at the NPC;
however, Plaintiff failed to participate. Id. at 5
August 19, 2013, Mr. Daniels sent Plaintiff a certified
letter advising him that he had exhausted his sick, annual,
and FMLA leave, and requesting medical documentation for his
continued incapacitation. Id. at 5-6 ¶ 22. To
determine if Plaintiff could physically perform the Computer
Line Operator position or the Packer Warehouseman position
(another job at the NPC), Mr. Sherve sent the job
requirements to Plaintiff's physician, Dr. Kenneth Teter.
Id. at 6 ¶ 23. On August 27, 2013, Mr. Daniels
received a letter from Dr. Teter stating he had reviewed the
job descriptions and that Plaintiff, “because of his
knee conditions, would not be able to perform these
jobs.” Id. at 6 ¶ 24. Dr. Teter further
stated that “[t]he job descriptions exceed
[Plaintiff's] capabilities” and “[t]his I
know even without a functional capacity evaluation.”
Id. On September 3, 2013, Dr. Teter reiterated
Plaintiff's medical restrictions as those identified in
his December 2012 restrictions. Id. at 6-7 ¶
Mr. Daniels realized Plaintiff could not physically perform
the essential duties of the Computer Line Production Operator
position, Mr. Daniels conducted a search in the local
commuting area for vacant USPS positions within
Plaintiff's medical restrictions. Id. at 7
¶ 27. During that search, Mr. Daniels contacted managers
at seven different postal facilities, but each manager
informed him that no ...