Opinion
CAUSE NO. 1:01-CV-406
May 12, 2003
MEMORANDUM OF DECISION AND ORDER
I. INTRODUCTION
The Plaintiff, James W. Craig ("Plaintiff"), brings this action against the Defendant John E. Potter, Postmaster General of the United States Postal Service ("USPS"), alleging violations of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. Specifically, the Plaintiff, who suffers from multiple sclerosis ("MS"), claims that USPS discriminated against him when they failed to accommodate his disability by making him a postmaster at any one of five post offices.
Before the Court are the parties' cross-motions for summary judgment. USPS filed its motion for summary judgment on September 6, 2002, and the Plaintiff timely filed his motion for summary judgment on November 8, 2002. However, the Plaintiffs January 10, 2003, reply brief on his cross-motion suggested that the Court disregard the affidavit of Sally Leath ("Leath") pursuant to Fed.R.Civ.P. 37(c). Subsequently, a hearing was held on this suggestion, and on January 27, 2003, the Court denied it, but allowed the Plaintiff to depose Leath, and ordered supplemental cross briefs and supplemental cross responses regarding whether the Plaintiff met USPS's prerequisites for the postmaster postions. Those briefs have been submitted and this matter is ripe for ruling.
Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
The evidence consists of the depositions of the Plaintiff ("Pl. Dep. at __"), Gene Mills ("Mills Dep. at ___") and Leath ("Leath Dep. at __"); the affidavits of Ralph Harrison ("Harrison Aff ¶ __"), Dawn Partridge ("Partridge Aff ¶ ___"), Gary Soultz ("Soultz Aff ¶ __"), Nancy Knicely ("Knicely Aff ¶ __"), John Pochard ("Pochard Aff. ¶ __"), Clarence Colby ("Colby Aff. __"), Christine Melick ("Melick Aff. ¶ ___"), and Leath ("Leath Aff. at __"); and various documents.
For the following reasons, USPS's motion for summary judgment will be GRANTED, and the Plaintiffs cross-motion for summary judgment will be DENIED.
II. THE FACTUAL AND PROCEDURAL BACKGROUND
The following recitation of facts is presented in a light most favorable to the Plaintiff.
The Plaintiff worked for USPS as a bargaining unit (i.e., unionized) letter carrier from 1971 until January 1992, when he was diagnosed with MS, and was no longer able to perform the essential functions of that job with or without reasonable accommodations. (Pl. Dep. at 7-8; Harrison Aff. ¶ 5.) In order to accommodate his disability, the Plaintiffs supervisor "detailed" him from the South Whitley post office to the small post office in Petroleum, Indiana, to serve as its temporary "officer-in-charge" and sole employee. (Pl. Dep. at 11-12; Harrison Aff ¶ 5.)
The Plaintiff was a member of the a full-time craft bargaining unit, and as such, his position, salary (on the "PS" pay schedule, the Plaintiff was a "PS-05"), and benefits were covered by a Collective Bargaining Agreement ("CBA") between USPS and the National Association of Letter Carriers, AFL-CIO, as provided in Handbook EL-901. (Leath Aff., Leath Aff. Attach. 6-8; Pl.'s Dep. at 13, 26.)
officer-in-charge, the Plaintiff essentially was the de facto postmaster. (Harrison Aff. ¶ 5.) However, because a postmaster is a non-bargaining unit position, apparently the only way a bargaining unit employee can fill that role without going through the competitive bidding process is by being temporarily assigned as the officer-in-charge. (Leath Aff.)
Petroleum is an extremely low-volume post office that services, at most, 30 people a day, and has average daily sales of less than $50.00. ( See Pl.'s Dep. at 54; Partridge Aff, Ex. F at 3.) Although a postmaster position (or by extension, an officer-in-charge) is not classified as a light duty job, apparently the Plaintiffs supervisor believed, correctly it turned out, that the Plaintiff could do the work, at least as it was performed in Petroleum. (Harrison Aff. ¶ 6; Partridge Aff. ¶ 10.) Indeed, all the Plaintiff did each day was sell stamps and certified letters, and process some mail. (Pl.'s Dep. at 12.) Despite these rather minimal duties, USPS further accommodated his MS by requiring only a six-hour workday, and allowed him to lay down to rest during lunch if needed. (Harrison Aff ¶ 6; Pl.'s Dep. at 53-54.) Nevertheless, as the officer-in-charge, the Plaintiff retained his permanent classification as a bargaining unit letter carrier, receiving the same annual salary ($37,900.00) and benefits (including mileage to and from his home) as required by the CBA. (Mills Dep. at 7-8; Partridge Aff. ¶ 4; Harrison Aff ¶ 5, 7; Pl.'s Dep. at 13-14.)
Both the grade classification for a given post office and its postmaster's salary are tied to workload evaluations (in Postal Service parlance, a "PS Form 150"), which the postmaster or the officer-in-charge completes every three years and prior to posting a postmaster vacancy, or when a postmaster believes his post office's workload has changed. (Knicely Aff. ¶ 2-3.) Apparently, from the time the Plaintiff became the officer-in-charge in 1992, until 1998, the Petroleum post office was rated at a grade "EAS-11." (Pl.'s Dep. at 19.)
"EAS" also refers to the pay schedule for non-bargaining unit employees in "Executive Administrative Services." (Leath Dep. at 15.)
However, in the fall of 1998, the Plaintiffs supervisor, Gary Soultz ("Soultz"), determined that Petroleum needed a permanent postmaster, so he decided to officially offer the Petroleum postmaster position to the Plaintiff. (Soultz Aff. ¶ 5.) Nevertheless, before offering the position to the Plaintiff, another PS Form 150 had to be completed, which the Plaintiff did on October 1, 1998. However, that evaluation indicated that the Petroleum post office should be downgraded to next lower level, an "EPM-55." (Knicely Aff. ¶ 5; Soultz Aff. ¶ 6.)
prior to this time, USPS considered closing the Petroleum post office altogether, and thus kept the Plaintiff detailed as its temporary officer-in-charge. (Soultz Aff. ¶ 5.) However, legislation passed in 1997 or 1998 mandated that small post offices be kept open, creating the need for a permanent postmaster in Petroleum. ( Id.)
The Plaintiff declined Soultz's offer because taking the postmaster position at the EPM-55 level would result in a significant annual pay cut (approximately $13,000) and a loss of mileage compensation. (Soultz Aff. ¶ 7; Pl.'s Dep. at 20, 26-27.) Nevertheless, the Plaintiff indicated that he would accept the position if he could retain his carrier pay and mileage compensation. (Soultz Aff. ¶ 5). Evidently, this was not an option because on October 13, 1998, Soultz posted a public vacancy announcement for the Petroleum postmaster position. (Soultz Aff. ¶ 8). At about the same time, USPS posted three other vacant postmaster positions for the Liberty Center, Yoder, and Zanesville post offices, all at higher grades and pay rates than Petroleum (i.e., Liberty Center was EAS-11, and both Yoder and Zanesville were EAS-13). (Knicely Aff. ¶ 7).
After his conversation with Soultz, the Plaintiff applied for the Liberty Center, Yoder, and Zanesville positions. (Knicely Aff ¶ 8). Among his competition for these positions were two other postal employees, who also applied for the Petroleum position. (Knicely Aff. ¶ 6, 12).
Between April 19-21, 1999, USPS informed the Plaintiff that he was not selected for any of the postmaster positions for which he applied. (Knicely Aff. ¶ 11). In fact, the Plaintiff was not even considered for these positions because he failed to complete his applications correctly. (Knicely Aff. ¶ 10; Pl. Dep. at 32-35). The two other individuals who applied were ultimately selected for the Zanesville and Yoder postmaster positions, leaving the Petroleum position still unfilled. (Knicely Aff. ¶ 12).
Apparently neither Soultz nor Gene Mills ("Mills"), USPS's labor relations specialist for the area, had anything to do with the hiring selection for any location. (Soultz Aff. ¶ 9).
The Plaintiff does not to contend that he actually submitted complete applications (i.e., PS Form 991), rather he argues that this is simply irrelevant. (See Pl.'s Resp. Br. at 4 n. 3.) of course, the fact that the Plaintiff totally failed to address the third requirement of the application, calling on him to address how he plans and schedules his work is undeniable. ( See Knicely Aff., Exs. I-K.) Moreover, the Plaintiff does not challenge the Affidavit testimony of a USPS Human Resource Specialist that all requirements must be met and that an incomplete application may (and apparently did here) lead to a determination that the candidate is unqualified. (Knicely Aff. ¶ 9-10.)
In June 1999, the Plaintiff submitted another application for a vacant postmaster position in Uniondale, Indiana, at a grade EAS-11. (Knicely Aff., ¶ 13; Pl.'s Dep. at 35). This time, the Plaintiff completed his application correctly, and was considered for the position. (Knicely Aff. ¶ 13). A three-person committee reviewed the applications, ranked each applicant according to certain selection criteria, and recommended that the three highest-scoring individuals be interviewed. (Cochard Aff. ¶ 2).
Apparently, the committee did not know the Plaintiff, or of his disability. (Cochard Aff., ¶ 2).
Before a decision was made regarding the Uniondale position, the Plaintiffs new acting supervisor, Dawn Partridge ("Partridge"), on June 16, 1999, again offered the Petroleum postmaster position to the Plaintiff, and gave him ten days to decide. (Partridge Aff. ¶ 7; Pl.'s Dep. at 35-36). On June 23, 1999, plaintiff wrote a letter to Partridge, officially declining the Petroleum position, withdrawing his application for the Uniondale position, and requesting a new permanent light duty position to accommodate his disability. (Partridge Aff. ¶ 8; Pl.'s Dep. at 36). Because the Plaintiff sought a light duty position, Partridge asked him to provide a Light Duty Certificate from his doctor showing his restrictions, so she could search for a vacant position meeting those restrictions. (Partridge Aff., ¶ 9).
After the Plaintiff submitted this certification, on July 22, 1999, Partridge determined that USPS had no available light duty carrier or clerical positions that would accommodate his restrictions. (Partridge Aff. ¶ 10-11). Nevertheless, she again offered him the Petroleum postmaster position as a permanent accommodation, and gave him ten days to accept her offer of accommodation. (Partridge Aff. ¶ 12).
Technically, postmaster positions are not considered "light duty," but because the Plaintiff was in effect performing those duties in Petroleum, Partridge apparently considered that position to be light duty. (Partridge Aff. ¶ 10 Ex. C at 2.)
The Plaintiff apparently decided not to accept the offer because on July 28, 1999, he contacted USPS's EEO counselor, alleging disability discrimination with respect to the denial of his permanent light duty request as a reasonable accommodation, and alleging a discrimination date of June 26, 1999. (Def's Ex. 1; Pl.'s Dep. at 42).
On September 24, 1999, the Plaintiff and his attorney met with USPS officials and a union representative to discuss his continued employment with USPS in light of his refusal to accept the Petroleum postmaster position and his inability to perform any vacant light duty assignments. (Partridge Aff. ¶ 12). Once again, Partridge offered the Petroleum position to the Plaintiff as an accommodation, but he again refused the offer. (Partridge Aff. ¶ 12-13).
Then, on October 5, 1999, the Plaintiff participated in disability retirement counseling, and stated that disability retirement was not an option. (Partridge Aff. ¶ 14.) The following day, Partridge offered him the Petroleum postmaster position for the final time, and told him that if he refused, the position would be posted, requiring him to apply for it to be considered. (Partridge Aff. ¶ 14 Ex. E.)
Apparently the Plaintiff refused this final offer because on October 18, 1999, he went on extended sick leave, and Partridge detailed another employee to serve as Petroleum's officer-in-charge. (Partridge Aff. ¶ 15.) However, when the new officer-in-charge reviewed Petroleum's financials, she discovered a $567.21 shortage, and Partridge had its books audited. (Partridge Aff. ¶ 16-17.) The Plaintiff evidently knew about this, and perhaps the possibility of an even greater shortage, because just before leaving, he wrote a personal check for $1,859.34, and later wrote a check to cover the $567.21 shortage discovered by the new officer-in-charge. ( Id.; Partridge Aff., Ex. E.)
Because Partridge wanted to post the vacancy for the Petroleum postmaster, she had the new officer-in-charge complete another PS Form 150, but this time, it indicated that the post office should be upgraded to the EAS-11 level. (Partridge Aff. ¶ 18.) On January 4, 2000, USPS posted the Petroleum vacancy at that level. (Partridge Aff. ¶ 19.)
Although the Plaintiff never saw the advertisement, a postmaster at another location told him that the Petroleum position had been listed at the EAS-11 level, (Meliek Aff. ¶ 2; Pl.'s Dep at 47), but he never applied for the position. (Partridge Aff. ¶ 21.)
On March 27, 2000, three days before USPS filled the Petroleum position, the Plaintiff amended his original EEO complaint to add a claim for the discriminatory failure to notify him that the Petroleum position had been reposted at the EAS-11 level. (Def.'s Ex. 3.)
The Plaintiff eventually exhausted his sick leave and was granted disability retirement on May 30, 2001. (Partridge Aff. ¶ 22.) He then filed this lawsuit on November 5, 2001.
USPS originally claimed that the Plaintiff cannot make out a disparate treatment claim of discrimination for not being hired as the postmaster in Liberty Center, Yoder, Zanesville, Uniondale, or Petroleum (at the EAS-11 level).
However, in his response and cross-motion, the Plaintiff clarified that he is not bringing any disparate treatment claim, only a claim that he was entitled, as of right, to any of those postmaster positions as a reasonable accommodation to his disability.
In their supplemental briefing, the parties focus on whether the Plaintiff is "qualified" for those postmaster positions and whether those positions were at the same grade or level as his letter carrier position.
III. SUMMARY JUDGMENT STANDARD
Summary judgment is proper "if 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). However, Rule 56(c) is not a requirement that the moving party negate his opponent's claim. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986). A scintilla of evidence in support of the non-moving part's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 2512; In Re Matter of Wildman, 859 F.2d 553, 557 (7th Cir. 1988); Klein v. Ryan, 847 F.2d 368, 374 (7th Cir. 1988); Valentine v. Joliet Township High School District No. 204, 802 F.2d 981, 986 (7th Cir. 1986). No genuine issue for trial exists "where the record as a whole could not lead a rational trier of fact to find for the nonmoving party." Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322 (7th Cir. 1992) (quoting Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986)).
Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir. 1988); Guenin v. Sendra Corp., 700 F. Supp. 973, 974 (N.D. Ind. 1988); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960 (1983). In ruling on a summary judgment motion the court accepts as true the non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 477 U.S. at 249-251, 106 S.Ct. at 2511. However, "[i]t is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained" and in such cases summary judgment is appropriate. Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983).
Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id. 477 U.S. at 248, 106 S.Ct. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir. 1988). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512.
In any event, in employment discrimination matters, the standard on summary judgment is applied with "added rigor." Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993). As the Seventh Circuit reiterated in Robinson v. PPG Industries, Inc., 23 F.3d 1159, 1169 (7th Cir. 1994), citing the standard set out in Sarsha:
Summary judgment is appropriate only when the materials before the court demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues. Accordingly, we will affirm the decision of the district court only if, had the record before that court been the record of a complete trial, the defendant would have been entitled to a directed verdict. [citations omitted].
The anachronistic term "Directed verdict" is no longer used; rather, it has been more accurately retitled "Judgment as a Matter of Law." See Fed.R.Civ.P. 50(a). A defendant is entitled to such a judgment if "there is no legally sufficient evidentiary basis for a reasonable jury to find for" the plaintiff. Id.
However, the 7th Circuit has since clarified its use of the phrase added rigor, stating that the "original use of this phrase indicates that it was merely included to stress the fact that employment discrimination cases typically involve questions of intent and credibility, issues not appropriate for this court to decide on a review of a grant of summary judgment." Alexander v. Wisconsin Dept. of Health and Family Servs. 263 F.3d 673, 681 (7th Cir. 2001).
IV. DISCUSSION
A. The Defendant's Motion for Summary Judgment
USPS contends that to the extent that the Plaintiff raises any independent disparate treatment claims regarding the failure to hire him as the postmaster in Liberty Center, Yoder, Zanesville, Uniondale or Petroleum (at the EAS-11 level), those claims are either time-barred or insufficient to survive summary judgment. The Plaintiff apparently concedes the point since he argues only that he was entitled to be placed in any of those positions as reasonable accommodations, not as independent disparate treatment claims. Accordingly, we will grant USPS's motion for summary judgment with respect to any disparate treatment claim the Plaintiff may be raising.
1. The legal standard
The Rehabilitation Act provides that no "qualified individual with a disability . . . shall, solely by reason of his . . . disability, be . . . subjected to discrimination . . . by the United States Postal Service." 29 U.S.C. § 794(a). The standards used to determine whether a violation of this section has occurred are those used to interpret the Americans with Disabilities Act ("ADA"). 29 U.S.C. § 794(d); Peters v. City of Marston, 311 F.3d 835, 842 (7th Cir. 2002); Ozlowski v. Henderson, 237 F.3d 837, 839-40 (7th Cir. 2001); Gile v. United Airlines, Inc., 95 F.3d 492, 497 (7th Cir. 1996). "Discrimination" includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of business." 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1614.203 (c)(1); US Airways, Inc. v. Barnett, 535 U.S. 391, 122 S.Ct. 1516, 1520 (2002)
In failure to accommodate claims, unlike disparate treatment claims, the McDonnell Douglas burden-shifting approach is not necessary or appropriate. See Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572 (7th Cir. 2001) (ADA); Weigel v. Target Stores, 122 F.3d 461, 464 (7th Cir. 1997) (ADA); also Green v. National Steel Corp., 197 F.3d 894, 897-98 (7th Cir. 1999) (failure to accommodate claims are "separate and distinct" from disparate treatment claims). "Instead, the plaintiff, in addition to showing that [he] is a qualified individual with a disability, must show that the employer was aware of [his] disability and still failed to reasonably accommodate it." See Hoffman, 256 F.3d at 572 (citing Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999)); Heimann v. Roadway Express, Inc., 228 F. Supp.2d 886, 897 (N.D. Ill. 2002).
Reassignment to a vacant position is one form of accommodation under the ADA, see 42 U.S.C. § 12111(9)(B); Barnett, 122 S.Ct. at 1520; Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 782 (7th Cir. 2002) (ADA), and was specifically required, with some exceptions, by the controlling regulation implementing the Rehabilitation Act at the time of the conduct alleged:
(g) Reassignment. When a nonprobationary employee becomes unable to perform the essential functions of his or her position even with reasonable accommodation due to a handicap, an agency shall offer to reassign the individual to a funded vacant position located in the same commuting area and serviced by the same appointing authority, and at the same grade or level, the essential functions of which the individual would be able to perform with reasonable accommodation if necessary unless the agency can demonstrate that the reassignment would impose an undue hardship on the operation of its program. In the absence of a position at the same grade or level, an offer of reassignment to a vacant position at the highest available grade or level below the employee's grade or level shall be required[.]29 C.F.R. § 1614.203 (g) (1998) (emphasis added). However, an applicant for a vacant position "must be qualified for, and be able to perform the essential functions of, the position sought with or without reasonable accommodation." 29 C.F.R. pt. 1630. app.; see also Ozlowski, 237 F.3d at 840; Woodman v. Runyon, 132 F.3d 1330, 1340 (10th Cir. 1997) (Rehabilitation Act requires employee to be qualified for the position to which he seeks reassignment). The Plaintiff bears the burden of showing that a vacant position exists for which he is qualified. Ozlowski, 237 F.3d at 840; Rehling v. City of Chicago, 207 F.3d 1009, 1015 (7th Cir. 2000); McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159, 1165 (7th Cir. 1997); Shiring v. Runyon, 90 F.3d 827, 832 (3d Cir. 1996).
On May 21, 2002, this regulation was amended, making a governmental agency's responsibilities under the Rehabilitation Act identical to those of private employers under the ADA. See 29 C.F.R. § 1614.203 (b) (May 21, 2002). Under this amendment, all that is now required is that the disabled employee be given an opportunity to compete for a vacant position in a non-discriminatory fashion. See EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024 (7th Cir. 2000).
The parties do not dispute that the Plaintiff is disabled or that USPS knew of his disability. Rather, at issue here is whether the Plaintiff was qualified for any offer of reassignment, and whether a reassignment to a postmaster position was required under 29 C.F.R. § 1614.203 (g).
We question the apparent assumption that the Plaintiff is disabled. After all, while the Plaintiff cannot lift or carry more than 20 pounds, (see Partridge Aff., Ex. B), the Seventh Circuit has questioned whether the inability to lift more than 10 pounds is a disability. Mays v. Principi, 301 F.3d 866, 869 (7th Cir. 2002). Moreover, despite his MS, the Plaintiff is still capable of performing light work, and "[t]he number of Americans restricted . . . to light work is legion. They are not disabled." Id. These doubts also extend to whether the Plaintiff can make out a "regarded as" disabled case. See, e.g., Mack v. Great Dane Trailers, 308 F.3d 776, 783 (7th Cir. 2002) (applying the Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002) standard for disability to "regarded as" claims). However, since neither side press the point, we will not address it further.
We will address the postmaster positions to which the Plaintiff claims entitlement seriatim.
2. The Liberty Center, Yoder, Zanesville postmaster positions, April 1999
The Plaintiffs keystone argument is that 29 C.F.R. § 1614.203 (g) placed USPS under the absolute duty to reassign him to a postmaster position as an accommodation of his disability and they should have assigned him to be the postmaster in Liberty Center, Yoder, or Zanesville. However, as we shall see, the Plaintiff was not qualified for these positions, and none of them fell within the purview of § 1614.203(g), because they were not of "the same grade or level" as his letter carrier job.
(a) The Plaintiff was not qualified
To be entitled to a reassignment, even under § 1614.203(g), the Plaintiff must show that there was a vacant position for which he was qualified. Ozlowski, 237 F.3d at 840 (Rehabilitation Act); Shiring, 90 F.3d at 832 (regarding reassignment under § 1614.203(g)). Stated another way, the Court must consider "whether reassignment is possible in determining whether an individual seeking relief under the Rehabilitation Act is an otherwise qualified individual." Shiring, 90 F.3d at 832. The Plaintiff bears the burden of demonstrating that he is "an otherwise qualified individual." Id. (citing Buckingham v. United States, 998 F.2d 735, 739-40 (9th Cir. 1993); Ozlowski, 237 F.3d at 840.
To be "qualified," the employee must (1) satisfy the prerequisites for the alternative position sought; and (2) be able to perform the essential functions of that position with or without reasonable accommodations. See Peters, 311 F.3d at 842; Ozlowski, 837 F.3d at 840 (citing Dalton v. Suburu-Isuzu Automotive, Inc., 141 F.3d 667, 678 (7th Cir. 1998)); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996). We will analyze each requirement in turn.
(i) The Plaintiff does not satisfy the prerequisites for the positions
Because an employer's prerequisites are frequently found in its policies, it is not required "to reassign a disabled employee to a position when such a transfer would violate a legitimate, non-discriminatory policy of the employer." Humiston-Keeling, Inc., 227 F.3d at 1028 (quoting Dalton, 141 F.3d at 679); E.E.O.C. v. Sara Lee Corp., 237 F.3d 349, 353-54 (4th Cir. 2001).
Here, USPS's prerequisites, spelled out in its "EAS Selection Policy," require a postmaster position to be filled competitively and to go to the person who "best meets" the needs of the position. (Leath Aff. at 2, 5, Attach. 5, EAS Selection Policies at 2, 6; Leath Dep. at 16, 20, 37.) Nevertheless, the EAS Selection Policy also provides that the postmaster position can be filled non-competitively, at management's discretion, only by non-bargaining unit employees seeking lateral reassignment or change to a lower level. ( Id.) Bargaining unit employees, however, are not eligible to be selected for non-bargaining unit positions non-competitively. (Leath Aff. at 3.)
EAS Selection Policy covers the hiring policies for non-bargaining unit employees, i.e., all "manager, supervisor, administrative, clerical, and postmaster positions," (Leath Aff., Attach. 5 at 3; Leath Dep. at 16), who are explicitly precluded from bargaining unit membership by virtue of 39 U.S.C. § 1202.
The Plaintiff does not contend that he was the best person for the job, with or without a disability. Instead, the Plaintiff claims that the EAS Selection Policy does not contain job prerequisites at all, because to serve as a postmaster it is not "necessary" to be the best person for the job. (Pl.'s Supp. Resp. Br. at 11-12) (quoting Webster's New Collegiate Dictionary definition of "prerequisite"). Rather, the Plaintiff claims, without citation, "prerequisites" refer to the essential tasks of a position. ( Id. at 13.) However, this argument conflates the separate prongs of the rule that "`reassign[ment] to a vacant position' requires the employer to consider a reassignment to any position for which the employee satisfies the employer's legitimate, nondiscriminatory prerequisites, and for which the employee is capable of performing the alternative job's essential functions, with or without reasonable accommodations." DePaoli v. Abbott Laboratories, 140 F.3d 668, 675 (7th Cir. 1998) (emphasis added); see also Peters, 311 F.3d at 842; Dalton, 141 F.3d at 678. Moreover, case law clearly indicates that the term "prerequisite" refers to requirements other than the essential tasks of a position. For example, in Hendricks-Robinson v. Excel Corp., the Seventh Circuit held that "an employer [is allowed] to consider legitimate nondiscriminatory prerequisites to jobs, such as the requirement of prior experience or the limitation of a position to temporary use only." 154 F.3d at 685, 694 (7th Cir. 1998); see also DePaoli, 140 F.3d at 675; Dalton, 141 F.3d at 679 (collecting cases recognizing various legitimate non-discriminatory prerequisites like not hiring over-qualified or under-qualified individuals, preferring full time to part time employees, up and out policies, or non-demotion policies).
The Plaintiff next argues that while the Seventh Circuit has found an employer's policy of hiring the best applicant to be legitimate and non-discriminatory, see Humiston-Keeling, 227 F.3d at 1028; Williams v. United Ins. Co. of America, 253 F.3d 280, 282 (7th Cir. 2001), as applied here, USPS's EAS Selection Policy is illegitimate. (See Pl.'s Supp. Resp. at 7-14.)
The Plaintiff concedes that USPS's EAS Selection Policy is not discriminatory. ( See Pl.'s Supp. Resp. at 12).
Although somewhat difficult to decipher, the thrust of the Plaintiffs argument is that the EAS Selection Policy lacks legitimacy because USPS imposed it without "negotiat[ion] between labor and management," and thus amounts to an attempt to "trump" § 1614.203(g) by unilateral fiat. (See Pl.'s Supp. Br. at 8-9) (citing Eckles v. Cons. Rail Corp., 94 F.3d 1041 (7th Cir. 1996) for the proposition that collectively bargained seniority rules can trump reasonable accommodation provision of the ADA). However, it is hardly surprising that USPS regulates the hiring of non-bargaining unit employees through a hiring policy rather than a collective bargaining agreement, as the Plaintiff would like, particularly since non-bargaining unit employees do not and by law cannot belong to a union or craft. See 39 U.S.C. § 1202(precluding certain postal service employees from bargaining unit representation).
Moreover, virtually all courts to consider the issue have held that an employer is entitled to implement employment policies unilaterally, and may refuse to reassign an employee if doing so would violate them. See Barnett, 535 U.S. at 404-05. 122 S.Ct. 1524-25 (ADA's reassignment provision does not trump employer's unilaterally imposed seniority rules); Dalton, 141 F.3d at 678 ("Nothing in the ADA requires an employer to abandon its legitimate, nondiscriminatory company policies defining job qualifications, prerequisites, and entitlements to intra-company transfers."); Sara Lee Corp., 237 F.3d at 353-54 (Virtually all circuits that have considered the issue have held that the . . . reasonable accommodation standard does not require an employer to abandon a legitimate and non-discriminatory company policy.); Cravens v. Blue Cross and Blue Shield of Kansas City, 214 F.3d 1011, 1020 (8th Cir. 2000); Burns v. Coca-Cola Enterprises, Inc., 222 F.3d 247, 257 (6th Cir. 2000); Aka v. Washington Hospital Center, 156 F.3d 1284, 1305 (D.C. Cir. 1998) (en banc); Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1225 (11th Cir. 1997) (per curiam) ("We are aware of no case under either the ADA or the Rehabilitation Act where an employer has been required to transfer an employee to another position where the employer (independent of concerns about disability) has a business policy against the pertinent kind of transfer."); Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995). Accordingly, the simple fact that USPS imposed its EAS Selection Policy unilaterally does not render it illegitimate.
Nevertheless, the Plaintiff appears to argne that because USPS provides for some exceptions to its EAS Selection Policy, it should have made a further exception for him. Specifically, the Plaintiff contends he was entitled to such special consideration because USPS allows non-bargaining unit employees to be transferred non-competitively, and while he "began his postal career as a bargaining unit employee. . . . he had been working for years in what was a nonbargaining unit position. That is, serving as [officer-in-charge] and hence doing the work of a postmaster." (Pl.'s Supp. Resp. at 8.)
However, this argument overlooks the rather obvious point that the Plaintiff was, in fact, a bargaining unit employee temporarily assigned to serve as Petroleum's officer-in-charge. (Leath Dep. at 19-20, 28.) His position, pay, and benefits, including mileage compensation, were all controlled by the CBA, and did not mystically transform simply by virtue of the work he performed in Petroleum. In fact, the Plaintiff apparently continued accruing seniority within his letter carrier craft even while serving as Petroleum's officer-in-charge, even though postmasters are not entitled to seniority rights at all. ( Id. at 20-22.) Thus, the Plaintiff cannot squeeze himself within the exceptions to the competitive placement policy, and USPS was not required to make a further exception to its EAS Selection Policy just because the Plaintiff performed essentially the same work as a postmaster. After all, the Rehabilitation Act and the ADA "speak in terms of accommodations, not exceptions." Sara Lee Corp., 237 F.3d at 353.
Even if the Plaintiff were a non-bargaining unit employee, he would not be guaranteed a transfer under the EAS Selection Policy. After all, the exception allowing for non-competitive placement of non-bargaining unit employees is a matter entrusted to the manager's discretion. (Leath Aff. at 2, 5, Attach. 5, EAS Selection Policies at 2, 6; Leath Dep. at 16, 20, 37.)
Moreover, our review of the EAS Selection Policy reveals its legitimacy. Indeed, the EAS Selection Policy "creat[es], and fulfill[s], employee expectations of fair, uniform treatment" with regard to the hiring and lateral transfer of non-bargaining unit employees. Barnett, 535 U.S. at 404, 122 S.Ct. at 1524 (discussing legitimacy of seniority systems). Just as seniority rights under the CBA ensure consistent and uniform treatment of bargaining unit employees, the EAS Selection Policy creates objective standards for the selection of non-bargaining unit employees that meet USPS's current and future needs. (See Leath Aff., Ex. 5 EAS Selection Policies at 1.) Further, the fact that the selection policy contains several exceptions allowing for the noncompetitive transfer of non-bargaining unit employees does not make the policy illegitimate, rather it provides non-bargaining unit employees, who lack seniority rights, with the benefit of being able to change locations and career paths if desired. ( Id. at 2.)
Thus, having determined that USPS's prerequisites for postmaster positions are legitimate and nondiscriminatory, we must decide whether the Plaintiff satisfied them. Here, the uncontradicted evidence reveals that the Plaintiff was not the best person for the Liberty Center, Yoder, or Zanesville postmaster positions. In fact, it appears he was not even considered, or at least did not get any of the positions, because he failed to complete his applications. (Knicely Aff. ¶ 9-10). Thus, to the extent that submitting a complete application is a legitimate prerequisite, the Plaintiff has not shown that he was "qualified."
(ii) The essential functions of the position
Moreover, the Plaintiff has not demonstrated that he could perform the essential functions of the postmaster positions at any of these three post offices. See Ozlowski, 237 F.3d at 840; Shiring, 90 F.3d at 832. Although the Plaintiff argues that the mere fact that he was officer-in-charge of Petroleum is sufficient to show that he can perform the work at these other post offices, they were apparently all of a higher volume than what he was handling at Petroleum. See 29 C.F.R. § 1614.203 (g). Moreover, the uncontroverted evidence reveals that postmaster positions, aside from Petroleum, are not considered light duty jobs, yet the Plaintiff was limited to just that type of work. ( See Partridge Aff. ¶ 10 Ex. C.) Thus, the Plaintiff has not presented any evidence showing that he could perform essential functions of a postmaster in Liberty Center, Yoder, and Zanesville.
Accordingly, the Plaintiff has not met his burden of showing that he was qualified for the postmaster position in Liberty Center, Yoder, or Zanesville.
(b) The positions are not at the same grade or level
Additionally, the Plaintiff has not shown that the postmaster positions in Liberty Center, Yoder, and Zanesville are "at the same grade or level" as his letter carrier position. See 29 C.F.R. § 1614.203 (g).
Here, all three postmaster positions were at different levels of pay than the Plaintiffs mail carrier position. See McLean v. Runyon, 222 F.3d 1150, 1154 (9th Cir. 2000) (citing Shiring, 90 F.3d at 832). In that regard, we are to consider the "objective differences" between the two positions, such as the pay and the benefits, as well as the relevant factor of status. Id. at 1155.
Applying those considerations here, the positions are different indeed so different that the Plaintiff applied for the Liberty Center, Yoder, and Zanesville positions, but not the one at Petroleum. The stated pay was different, (Knicely Aff. ¶ 8 Exs. D, E, F, G), the benefits were at least different, and the status was significantly different. The Plaintiff would now be in a nonbargaining unit position, his pay would be set by a different salary schedule, he would be exempt from coverage by the Fair Labor Standards Act, would not longer be governed by the CBA, and would not be bound by his seniority. (Leath Aff., Attachs. 1, 6, 11, 12, 13.)
Of course, the Plaintiff seemingly argues that he should have received these positions without them being offered to anyone else. However, USPS is not required to promote the Plaintiff to a higher level to accommodate his disability (at least Zanesville and Yoder were EAS-13 positions with considerably higher salaries and Liberty Center was an EAS-11, again higher than Petroleum). See Shiring, 90 F.3d at 832.
Accordingly, because the Plaintiff is not qualified for the Liberty Center, Yoder, and Zanesville postmaster positions, and because they are not at the same grade or level as his letter carrier position, USPS is entitled to summary judgment as to these positions.
3. The Uniondale postmaster position, June 1999
The Plaintiff also contends that he was entitled to be reassigned to the Uniondale postmaster position. Factually speaking, the only distinction between this claim and his Liberty Center, Yoder, and Zanesville claims is that he successfully applied for the job. However, once again, because he was not qualified for the position and because it was not of the same grade or level, this claim fails.
(a) The Plaintiff was not qualified
Although the Plaintiff successfully applied for the Uniondale postmaster position, he has failed to show that he was the best qualified applicant, a legitimate prerequisite, by demonstrating that he "best meets" the needs of the position. See Humiston-Keeling, 227 F.3d at 1028; Dalton, 141 F.3d at 679; Williams, 253 F.3d at 282. Indeed, as discussed supra, the Plaintiff does not even contend that he was the best person for the job. In fact, while the Plaintiff successfully applied for the position, he withdrew his application prior to any decision being reached.
Moreover, the Plaintiff has again failed to demonstrate that he can meet the essential functions of the postmaster position at Uniondale. See Ozlowski, 237 F.3d at 840; Shiring, 90 F.3d at 832. Like Liberty Center, Yoder, and Zanesville, the Uniondale post office handled a higher volume of work than Petroleum, and the Plaintiff has presented no evidence that the Uniondale postmaster position entailed the equivalent of light duty work, apparently the only type of work he can perform.
Therefore, the Plaintiff has not shown that he is qualified for the Uniondale postmaster position.
(b) The Uniondale position is not at the same grade or level
Once again the Plaintiff has failed to show that the postmaster position in Uniondale is at the "same grade or level," 29 C.F.R. § 1614.203 (g), as per our earlier discussion, supra.
3. Petroleum postmaster at the EAS-11 level, 2000
Finally, the Plaintiff argues that he should have been offered the Petroleum position in 2000, after it was upgraded to the EAS-11 level, despite the fact that he had turned it down approximately four times before.
Of course, he did not receive the position because he did not apply, but the Plaintiff claims that USPS should have offered it to him without his having to apply by operation of 29 C.F.R. § 1614.203 (g).
Here, the Plaintiff fails to show he is "qualified" because he failed to apply, a legitimate prerequisite, and he has made no attempt to show that he was the person who "best meets" the needs of the position. Ozlowski, 237 F.3d at 840; Shiring, 90 F.3d at 832. of course, this might have been particularly difficult by the time the position was opened at the EAS-11 level, given the Plaintiffs apparent mis-handling of postal funds. (Partridge Aff. ¶ 16-17.)
Moreover, as discussed supra, the EAS-11 Petroleum postmaster position was not at the same grade or level as his letter carrier job because the Plaintiff would be moving to a salaried, non-bargaining unit position, from a bargaining unit position. 29 C.F.R. § 1614.203 (g).
Accordingly, because the Plaintiff was not qualified for the Petroleum postmaster position in 2000, and because it of the same grade or level, USPS is entitled to summary judgment on this claim.
B. The Plaintiffs Motion for Summary Judgment
Because we conclude that USPS's motion for summary judgment must be granted in full, the Plaintiffs motion for summary judgment, which is the mirror image of the Defendant's motion, will be denied.
CONCLUSION
For the foregoing reasons, USPS's motion for summary judgment is GRANTED, and the Plaintiffs cross-motion for summary judgment is DENIED. The Clerk is directed to enter judgment in favor of the Defendant and against the Plaintiff.