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Giardina v. Brennan

United States District Court, D. Kansas

October 23, 2019

MEGAN J. BRENNAN, Defendant.



         Plaintiff Salvatore Giardina, a former United States Postal Service (“USPS”) employee, brings this employment discrimination action pro se[1] against Defendant Megan Brennan in her official capacity as Postmaster General.[2] 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.[3] 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.

         For the 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 detail below.

         I. BACKGROUND[4]

         A. Plaintiff's Response to Defendant's Statement of Facts

         As an 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.

         Nonetheless, 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).

         Because 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 summary judgment”).[5]

         B. Plaintiff's Employment With USPS

         Plaintiff 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.

         1. Computer Line Production Operator Position

         In 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.

         On 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.

         In 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.

         2. Interactive Process

         After 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 ¶¶ 20-21.

         On 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 ¶ 26.

         Once 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 ΒΆ 27. During that search, Mr. Daniels contacted managers at seven different postal facilities, but each manager informed him that no ...

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