Opinion
Civil No. 99-1439 RHK/JMM
February 9, 2001
John E. Mack, Mack Daby, New London, Minnesota, for Plaintiff.
Friedrich A. S. Siekert, Assistant United States Attorney, Minneapolis, Minnesota, and Barbara H. Frazier, United States Postal Service, St. Louis, Missouri, for Defendant.
MEMORANDUM OPINION AND ORDER
Introduction
Roger Jeseritz ("Jeseritz") brought this lawsuit against the Postmaster General of the United States Postal Service ("USPS"), William Henderson ("Henderson"), in his official capacity. In June 1985, Jeseritz was hired as a postal clerk in the Willmar, Minnesota, post office. In May 1997, Jeseritz was discharged for misconduct, specifically for engaging in outside activities that contradicted work restrictions that had been placed on him due to an on-the-job injury. Jeseritz appealed his discharge through the American Postal Workers Union, and was reinstated as a result of an arbitration award finding that the termination was not commensurate with Jeseritz's misconduct. The arbitrator determined that a suspension would have been the appropriate level of discipline. Jeseritz now claims that the USPS discriminated against him because of his disabilities, created and maintained a hostile work environment, failed to make reasonable accommodations, and retaliated against him for his complaints of discrimination, in violation of the Rehabilitation Act, 29 U.S.C. § 794(a). Currently before the Court is Henderson's Motion for Summary Judgment. For the reasons set forth below, the Court will grant the motion.
Background
Jeseritz began working for the Willmar, Minnesota, post office on June 22, 1985, as a distribution clerk. (Siekert Decl., Dep. Ex. 1 (Application for Employment).) As part of his application, Jeseritz underwent a fitness for duty medical examination. (Id., Dep. Ex. 3 (Certificate of Medical Examination).) The medical examination certificate identified Jeseritz as having a hearing impairment. (Id.) The certificate also indicated that he was suitable, medically, for the appointment. (Id.) Jeseritz was subsequently given a career appointment with the Postal Service. (Answer of Henderson ~ 5.) As a distribution clerk, Jeseritz's duties included sorting, distributing, casing, and routing mail by hand.
Four years after his appointment, on June 20, 1989, Jeseritz filed a worker's compensation claim for pain and numbness in his right wrist. (Siekert Decl., Ex. 4A (CA-2 Form, Claim for Worker's Compensation).) According to his claim, Jeseritz went to see Dr. Ray Brace at the Willmar Medical Center, who informed him that he had acute tendinitis in his right wrist. (Id.) Dr. Brace determined that the tendinitis was job related. (Id.) Jeseritz took four days off of work to allow his wrist to heal. (Id.) When he returned to work, in order to minimize the stress on his right wrist, Jeseritz began alternating between his left arm and right arm while sorting the mail. (Jeseritz Aff. at 2.) On September 21, 1989, the Department of Labor accepted Jeseritz's worker's compensation claim for tendinitis of the right wrist. (Siekert Decl, Dep. Ex. 4B)
Tendinitis is an inflamation of the tendon in the elbow, shoulder, or knee. Webster's Third New International Dictionary, 2355 (1986).
In May 1990, Jeseritz again reported problems with his wrist. Dr. Thomas Jetzer, a USPS contract physician, recommended that Jeseritz be placed on a limited duty assignment for 90 days. (Siekert Decl., Dep. Ex. 5A (Limited Duty Assignment).) The assignment limited Jesseritz's sorting to 5 hours per day, but he could work 8 hours per day performing varying job assignments. (Id.) Jeseritz accepted the limited duty assignment. (Id.) On May 22, 1990, Jeseritz filed a Notice of Recurrence of Disability and Claim for Continuation Pay/Compensation, which was also accepted by the Department of Labor. (Id., Dep. Ex. 5A.) On August 20, 1990, and again on November 19, 1990, Jeseritz's limited duty assignment was extended for an additional 90 days. (Id., Dep. Ex. 5B, 5C (Limited Duty Assignments).) Jeseritz accepted both extensions to the duty assignments, and on February 11, 1991, the limited duty assignment was made permanent. (Id.; Jeseritz Aff. at 2.) Jeseritz continued to work 5 hours a day sorting until February 1992, when he was diagnosed with forearm overuse syndrome. (Id.) As a result of this new diagnosis, his assignment was changed from 5 hours of sorting a day to 2-3 hours of sorting, and a 2 hour break. (Id.)
In 1992, Jeseritz began to experience pain in his left wrist, which was later diagnosed as tendinitis. (Jeseritz Aff. at 2.) In October 1992, Jeseritz saw Dr. Peterson for treatment of the tendinitis in his wrists. Dr. Peterson ordered physical therapy and recommended that Jeseritz be off work and on disability pay for 90 days to allow both wrists to heal. Jeseritz was off work from December 1992, until March 24, 1993. (Id. at 4.) On December 14, 1992, Dr. Jetzer referred Jeseritz to a hand specialist, Dr. Satterberg, who determined that Jeseritz had bilateral muscle hypertrophy. (Id.) Prior to returning to work, a Functional Capacity Examination ("FCE") was performed on Jeseritz, the results of which were used to determine Jeseritz's work restrictions. On March 23, 1993, based on the FCE, a Limited Duty/Modified Job Offer was made to Jeseritz. (Siekert Decl., Dep. Ex. 6.) The offer was for 8 hours of — hour "casing" letters and — hour of light housekeeping. (Id.) The offer also stated: "Roger is requested to bring to the attention of management any duties that are going to further contribute to the injury at hand." (Id.) Jeseritz accepted the offer and returned to work the next day. (Id.)
On May 18, 1994, at the request of Dr. Peterson, another FCE was performed on Jeseritz. (Id.) In August 1994, the USPS made another job offer to Jeseritz that comported with the new restrictions in the FCE. (Jeseritz Dep. at 105.) Jeseritz refused to accept the new offer, however, because the new position required the operation of automated equipment, and Jeseritz was concerned the noise of the equipment could worsen his hearing impairment. (Jeseritz Aff. at 5.) Although the USPS told Jeseritz that the automatic equipment had an acceptable decibel level, Jeseritz wanted the equipment tested to ensure that it was not above a safe decibel level for his hearing impairment. (Id.) The USPS did not test the equipment. (Id.) At a meeting on September 30, 1994, the USPS determined that it should take Jeseritz "off the clock" until a suitable position could be found for him. (Jeseritz Dep. at 106.) Jeseritz was "off the clock" from October 1994 until June 1995. (Id.) During this time he received worker's compensation. (Id.)
On January 31, 1994, Jeseritz filed a claim for a scheduled award for permanent disability. Based on the 1994 FCE, Dr. Peterson wrote an opinion letter detailing the extent of Jeseritz's injuries for Jeseritz's claim for permanent partial disability. (Jeseritz Aff. at 4; Def.'s Mem. in Supp. of Mot. for Summ. J. at 4 ("Def.'s Supp. Mem.").) On December 1, 1994, Jeseritz was granted the scheduled award for his disabilities. (Siekert Decl., Dep. Ex. 23.) Jeseritz's initial award was for a lump sum of $49,430.00, and monthly payments from February 16, 1993, to October 15, 1994, of $2,317.00. This award was based on Dr. Peterson's finding of a 56% permanent partial loss of use in Jeseritz's right arm and a 53% permanent partial loss of use in his left arm. (Id.) The award was later reduced, based on additional examinations of Jeseritz, to reflect only a 20% impairment of the left and right arm. (Id.)
During the almost nine months that Jeseritz was not working, the USPS, Dr. Jetzer, and Dr. Peterson collaborated to develop a job offer that would fit Jeseritz's medical restrictions. (Jeseritz Dep. at 121; Siekert Decl., Dep. Ex. 7 (Job Offer under Federal Rehab. Guidelines).) According to the offer, "all duties have been approved by both Dr. Peterson and Dr. Jetzer." (Id.) On June 7, 1995, Jeseritz signed the new job offer and began working 8 hour days on June 10, 1995. (Id.) Even in the new job position, Jeseritz continued to complain of problems with his wrists. (Jeseritz Dep. at 137.) The USPS had an occupational therapist from the Rice Hospital in Willmar, Mary Nesset, perform a job review of Jeseritz's position. (Id. at 138.) Ms. Nesset spent 4 hours with Jeseritz while he performed his job. (Id.) The USPS also had Debra Griffith, Senior Ergonomist, from Clayton Environmental Consultants, perform another job site evaluation of Jeseritz. (Id.) Ms. Griffith recommended that (1) Jeseritz should be supervised closely and that his work restrictions should be enforced, (2) Jeseritz's braces should be redesigned, (3) the photocopier he used should be redesigned, (4) a tool should be fabricated for opening bags, and (5) he should use a bent handle knife for staging mail. (Ireland Decl., Ex. A. at 31 (Ergonomic Evaluation).)
There is nothing in the record indicating what Ms. Nesset's evaluation of Jeseritz revealed.
After Jeseritz complained about the copy machine, the USPS bought a new copy machine so that Jeseritz would not have to manually copy the USPS newsletters. (Jeseritz Dep. at 132.) The new copy machine, however, eliminated one of the assigned duties that Dr. Peterson and Dr. Jetzer had approved, which normally took Jeseritz two to three days to complete. (Id. at 133.)
In 1996, as a result of Jeseritz's complaints of pain, even in the new position, the USPS considered having Jeseritz "work the phones" at the post office. (Id. at 139.) Because Jeseritz had a hearing impairment, however, the USPS sent him to an ear specialist to determine whether he would even be able to work the phones. (Id.) The USPS also considered ordering special phone equipment that would assist Jeseritz. (Id. at 140.) Dr. Papparella, the ear specialist, determined that Jeseritz could not work the phones because of his hearing loss. (Id. at 140-42.) Jeseritz continued to work in the limited duty position until he was discharged in May 1997.
The USPS wrote the ear specialist and requested "specific recommendations as to what type of phone equipment would be necessary to accommodate Mr. Jeseritz. If you have a source from where this specialized equipment can be purchased, please provide this Office with a name/names of vendors. The USPS is making every attempt to keep Mr. Jeseritz gainfully employed." (Ireland Decl., Ex. A. at 31 (Letter from Sherry Constans, Injury Compensation, dated March 19, 1996).)
I. The Investigation
In early 1996, Sherry Constans ("Constans"), the Injury Compensation Manager for the USPS Northland District, received information that Jeseritz was involved in physical activities outside of the office that were in conflict with the physical restrictions in his limited duty assignment. (Ireland Decl., Ex. A (Investigative Mem., dated Feb. 18, 1997).) Based on this information, Constans ordered an investigation into Jeseritz's worker's compensation claim from the injury to his wrists. (Id.) An investigation began during the summer of 1996 by Terrence P. Ireland ("Ireland"), Postal Inspector. (Id.) As part of Ireland's investigation, a videotape was produced representing Jeseritz's activities during the investigation. (Id.) The following dates and activities were recorded by Ireland:
July 18, 1996 playing softball
July 22, 1996 playing and umpiring softball
July 24, 1996 playing softball
July 31, 1996 playing softball
Aug. 12, 1996 playing softball
Aug. 22, 1996 cutting and removing sod at softball field.
(Id.) Ireland sent the Jeseritz videotape to Dr. Jetzer, and on September 18, 1996, Dr. Jetzer wrote the following to Constans:
I remember [Jeseritz] very clearly, he has always stated that he has continued pain and that he can do very little with his hands. He complains that any type of forceful or repetitive use of his hands causes him discomfort to the point where he cannot work. . . . While I have questioned the level of his problems, he has made ample complaints such that restrictions have been upheld in deference to his complaints by the post office.
(Id., Ex. A at 16 (Letter from Dr. Jetzer).) Dr. Jetzer concluded his letter by stating that [b]ased on [the review of the videotape] and my clear recollection of his clinical presentation and complaints of dysfunction, I really would have to discount any of his complaints of pain in the past as being non-legitimate. It appears to me that his demonstrated sports and field maintenance activities clear[ly] demonstrate that he has no evidence of dysfunction or pain. (Id.)
Dr. Jetzer stated in his letter that he did not rely solely on the short Jeseritz videotape provided by Constans; he also reviewed the longer versions of the tape. (Ireland Decl. Ex. A. at 27.)
On November 11, 1996, Ireland and another inspector, J. P. Callinan ("Callinan"), interviewed Jeseritz concerning the above activities. (Id.) Jeseritz admitted in the interview to playing softball about one hour per week and that he had assisted Chuck Diederich in sod cutting at the baseball field. (Id.) According to Ireland, the videotape shows that Jeseritz cut most of the sod himself, and played softball more than one hour per week. (Id.)
On November 12, 1996, Ireland and Callinan interviewed Dr. Peterson and showed him the Jeseritz videotape. (Id.) After the interview, Dr. Peterson wrote It is somewhat disconcerting to see that Mr. Jeseritz is inconsistent with his restrictions during recreation activities and off work hours yet maintains those restrictions while at work. Certainly persistence of this type of activity could be a reason why he has had persistent discomfort which has not responded to work restrictions.
(Ireland Decl., Ex. A at 19 (Letter from Dr. Peterson, dated December 19, 1996).) On February 18, 1997, Ireland forwarded his completed investigative file on Jeseritz to Donald A. Rasmussen ("Rasmussen"), Acting Postmaster in Willmar, Minnesota. (Ireland Decl. ~ 4.) On March 14, 1997, Jeseritz was called into Rasmussen's office. (Jeseritz Dep. at 163.) Rasmussen requested documentation from Jeseritz on his work restrictions, and on whether Jeseritz had spoken to a doctor about playing softball. (Id.) Rasmussen informed Jeseritz that there had been allegations of misconduct, and that he would need the documentation in order to make a decision regarding the misconduct. (Id. at 166.) Jeseritz responded to Rasmussen's request for documentation by furnishing him with a nine-year-old document from Dr. Jetzer which stated that Jeseritz told Dr. Jetzer that he played softball. (Id. at 167-68.) Jeseritz did not provide any additional documentation that proved his doctors were aware of his softball activities.
On April 28, 1997, Rasmussen sent Jeseritz a Notice of Proposed Removal. (Siekert Decl., Dep. Ex. 8 (Notice).) The letter began by detailing the amount of Jeseritz's worker's compensation claims totaling about $99,000.00, and his medical benefits totaling about $6,896.00, which were paid out by the USPS due to injuries to his wrists. (Id.) Rasmussen, after detailing what was on the Jeseritz videotape, wrote
When questioned about any softball activity you might have participated in, you stated you watched and occasionally coached softball, but you had hardly played at all the past year. . . .
You stated that both you and Chuck Diederich cut some sod, but you did not have to do much because there were several people there who did most of the work. The Inspection Service video conflicts with your statement regarding the sod cutting activities. The video, in fact, shows that you did all of the sod cutting and most of the sod removal yourself. . . .
These are serious offenses in violation of postal service rules and regulations. Performing activities outside of your medical restriction can aggravate your condition and unnecessarily increase the cost of your disability.
(Id.) Rasmussen gave Jeseritz 30 days to respond to the Notice of Proposed Removal. (Id.) Jeseritz responded with an "Answer to Notice of Proposed Removal" on May 7, 1997. (Id., Dep. Ex. 10.) Jeseritz denied "each and every allegation of Misconduct." (Id.) Jeseritz provided a letter from Dr. Thomas Satterberg dated April 11, 1997, which stated that he had examined Jeseritz and was of the opinion that outside activities, such as playing softball or driving a car, would not be the cause of Jeseritz's injuries, and may even be beneficial. (Id.) Dr. Satterberg's letter did not mention sod cutting. (Id.)
On May 19, 1997, Alan Richter, Manager of Post Office Operations, issued Jeseritz a Letter of Decision — Removal. (Siekert Decl., Dep. Ex. 9.) Richter stated that he reviewed Jeseritz's answer, and found that the majority of documents provided did not address the issue of whether Jeseritz misrepresented his injuries. (Id.) Instead, Richter explained that the documentation provided by Jeseritz related to whether he had a job-related medical injury, which was not in question at the time. (Id.) Richter wrote
In your letter to me, you have not denied that your sod cutting activities were clearly outside of your medical restrictions. Failure to fully disclose your activities and follow your workplace restrictions outside of the workplace is a serious matter which may certainly have led to an aggravation of your condition and increased medical costs to the Postal Service. . . .
(Id.) Jeseritz's removal became effective on May 31, 1997. (Id.)
II. Procedural Background
On May 9, 1997, prior to Jeseritz's removal, he filed for Precomplaint Counseling with the Equal Employment Opportunity ("EEO") Office. (Jeseritz Aff. Ex. Q (EEO Complaint File).) In his complaint, Jeseritz stated that he had been discriminated against based on his hearing impairment and carpal tunnel disabilities. (Id.) Jeseritz did not allege retaliation. (Id.) Jeseritz stated in his complaint that the officials responsible for the discrimination were the Postal Inspectors, Terrence P. Ireland and John P. Callinan, and the Managers of Postal Operations, Donald Rasmussen and Dick Hartfield. (Id.) Informal counseling proved ineffective, and on June 9, 1997, after his discharge, Jeseritz filed a formal complaint of discrimination with the EEO Office. (Siekert Decl., Dep. Ex. 12.) Jeseritz also filed a formal grievance through the American Postal Workers Union, which was referred to arbitration. (Jeseritz Aff. Ex. D (Arbitrator's Opinion).) On February 20, 1998, and July 9, 1998, the arbitrator held formal hearings to determine (1) whether Jeseritz's removal was for "just cause," and (2) if not, what the remedy should be. The arbitrator held, on January 19, 1999, that Jeseritz acted outside his medical restrictions by engaging in softball and sod cutting, but that it could not be concluded that he was lying about his medical condition. (Id. at 52.) Therefore, the arbitrator determined that the USPS had just cause to administer some form of discipline but that removal was an inappropriate penalty for Jeseritz's "apparent lapse of common sense and good judgment." (Id. at 60.)
The arbitrator found that the months since Jeseritz's termination would constitute time served for the proper discipline of suspension. (Id.) The arbitrator, however, left it up to the parties to determine whether Jeseritz would receive any back-pay for the months he was not working. (Id.) The parties could not agree, and the case went back to another arbitrator who determined that Jeseritz would receive back-pay for the time he was off work, approximately two years, except for a period of 60 days, which would constitute his discipline for "failing to abide by his medical restrictions." (Siekert Decl., Dep. Ex. 22, at 7 (July 27, 1999, Clarification of Award Opinion).) Jeseritz was subsequently reinstated on May 22, 1999. (Id. at 8.)
In the interim, Jeseritz was pursuing his EEO complaint of discrimination. On July 30, 1998, the USPS issued a final agency decision finding no discrimination. (Siekert Decl., Ex. 21.) On August 28, 1998, Jeseritz appealed the agency's decision to the Merit Systems Protection Board ("MSPB"). The MSPB dismissed Jeseritz's appeal without prejudice to be refiled after Jeseritz received the arbitrator's decision on his grievance. (Id. at 1.) Jeseritz refiled his appeal to the MSPB on February 11, 1999. (Id.) On May 24-25, 1999, the administrative judge held hearings on Jeseritz's discrimination claim. (Id.) On September 3, 1999, the judge held that Jeseritz had failed to prove unlawful discrimination by the USPS. (Id.) Pursuant to 42 U.S.C. § 2000e-16, Jeseritz filed this suit on September 21, 1999.
Analysis
I. Summary Judgment Standard
Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court views evidence and the inferences which may be reasonably drawn from it in the light most favorable to the nonmoving party. Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996); see also Adkinson v. G.D. Searle Co., 971 F.2d 132, 134 (8th Cir. 1992). The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enterprise Bank, 92 F.3d at 747; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party must demonstrate the existence of specific facts that create a genuine issue for trial; mere allegations or denials are not enough. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). Summary judgment is to be granted only where the evidence is such that no reasonable jury could return a verdict for the nonmoving party. See Liberty Lobby, 477 U.S. at 250.
The court does not weigh facts or evaluate the credibility of affidavits and other evidence on a motion for summary judgment. The nonmovant, however, cannot avoid summary judgment in favor of the movant merely by pointing to some alleged factual dispute between the parties. Instead, any fact alleged to be in dispute must be "outcome determinative under prevailing law," that is, it must be material to an essential element of the specific theory of recovery at issue. See Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992). Essentially, the court performs the threshold inquiry of determining whether there is need for a trial. Liberty Lobby, 477 U.S. at 250.
II. Rehabilitation Act
The Rehabilitation Act, 29 U.S.C. § 794(a) and (d) states No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
* * * *
The standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act. . . .
Rehabilitation Act discrimination cases are analyzed under the burden-shifting method of proof first described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). That three-step process requires that the plaintiff establish a prima facie case of disability discrimination. McDonnell Douglas, 411 U.S. at 802. The defendant must then respond by offering a legitimate, nondiscriminatory reason for its adverse employment action. Once the defendant articulates such a reason, the burden is on the plaintiff to show that the defendant's stated reason is merely a pretext for its discrimination. Id. at 804-05.
A. Disability Discrimination
A prima facie case of disability discrimination requires Jeseritz to prove that he (1) was an individual with a disability; (2) was otherwise qualified; (3) worked for the United States Post Office; and (4) was adversely treated "solely" because of his disability. Demming v. Hous. and Redevelopment Auth., 66 F.3d 950, 954 (8th Cir. 1995). Henderson argues that Jeseritz cannot establish a prima facie case because he was not "otherwise qualified," and he was not terminated "solely" because of his disability. (Def.'s Supp. Mem. at 14.)
Henderson would like the Court to phrase the question as whether Jeseritz was suspended solely because of his disability. The suspension, however, was a post-termination remedy ordered by an arbitrator, not the USPS, and the Court looks to the actions actually taken by the USPS to determine whether there is evidence of discrimination.
Henderson asserts that Jeseritz cannot be considered "otherwise qualified" because he could not perform his job as a distribution clerk, even with the accommodations made by the USPS. (Id. at 13.) There is no evidence before the Court, however, that suggests that Jeseritz was not adequately performing his accommodated duties when he was terminated. In fact, today, Jeseritz is still performing this same job. Therefore, the only issue before the Court, with respect to Jeseritz's prima facie case of disability discrimination, is whether Jeseritz has come forth with sufficient evidence to show that he was terminated "solely" because of his disability.
Henderson argues that Jeseritz cannot prove he was terminated "solely" because of his disability because Jeseritz admitted that his sod cutting activities were outside his work restrictions, which could have aggravated his disability. (Jeseritz Dep. at 329.) Jeseritz concedes that "[i]t is possible that the Postal Service could have justified a suspension because of my off-duty activities." (Id.) Jeseritz contends, however, that because the USPS issued a termination instead of a suspension, there is sufficient evidence that the termination was "solely" because of his disability. According to Jeseritz, had the post office really been concerned that he could aggravate his disability — by playing softball and cutting sod — it would have told him to cease these activities instead of surreptitiously filming him. In essence, Jeseritz is requesting that the Court find that the USPS should have warned Jeseritz that he was under investigation for fraud, so that he could have reformed his actions. The USPS received a tip that Jeseritz was performing activities outside of the workplace that were inconsistent with his medical restrictions. It then followed up on the tip with an investigation and found that Jeseritz was not adhering to his medical restrictions outside of work. Contrary to what Jeseritz is arguing, Jeseritz was not terminated for "faking his injuries," as there is substantial evidence before the Court that the USPS discharged Jeseritz because he was performing activities "which may certainly have led to an aggravation of [his] condition and increased medical costs to the Postal Service." (Siekert Decl., Dep. Ex. 8 (Notice).) Jeseritz does not dispute that his outside activities would have justified a lower level of discipline. (Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ. J. at 11-12 ("Pl.'s Opp'n Mem.").) Whether the action taken by the USPS when it terminated Jeseritz was too harsh of a disciplinary action was determined by the arbitrator; the proper degree of discipline an employer imposes on an employee, however, is not for this Court to decide. "Federal courts do not sit as a super-personnel department that reexamines an entity's business decisions. . . . Rather, our inquiry is limited to whether the employer gave an honest explanation of its behavior." Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 973 (8th Cir. 1994) (quoting Elrod v. Sears, Roebuck Co., 939 F.2d 1466, 1470 (11th Cir. 1991)). "No matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, the [ADA] does not interfere." Mechnig v. Sears, Roebuck Co., 864 F.2d 1359, 1365 (7th Cir. 1988) (citations omitted). Jeseritz concedes that the USPS had a legitimate reason to discipline him based on his outside activities, and there is no additional evidence that suggests Jeseritz's disability even played a role in the discharge, let alone that his disability was the "sole" reason. The Court concludes, therefore, that Jeseritz has not made out a prima facie case of disability discrimination.
B. Hostile Work Environment
A claim for a hostile work environment is proper under the Rehabilitation Act. Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723 (8th Cir. 1999) (assuming the existence of a cause of action for hostile work environment under the Rehabilitation Act); Wallin v. Minn. Dep't of Corr., 153 F.3d 681, 688 (8th Cir. 1998) (assuming existence of claim for purposes of summary judgment); Hiller v. Runyon, 95 F. Supp.2d 1016, 1022-24 (S.D.Iowa 2000) (holding that a hostile work environment claim is properly within the framework of the Rehabilitation Act). A prima facie case for hostile work environment based on a disability requires a showing that: (1) the plaintiff is a qualified individual with a disability; (2) he was subject to unwelcome harassment; (3) the harassment was based on his disability or a request for an accommodation; (4) the harassment was sufficiently severe or pervasive to alter the conditions of his employment and to create an abusive working environment; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action. Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir. 1998).
Henderson contends that Jeseritz has not met his prima facie case because (1) he is not "otherwise qualified," and (2) the harassment was not sufficiently severe or pervasive to alter the conditions of Jeseritz's employment and create an abusive working environment. (Def.'s Supp. Mem. at 18.) The Court addressed the issue of whether Jeseritz was "otherwise qualified" above; therefore, the Court must determine whether the harassment Jeseritz claims he suffered was sufficiently severe or pervasive to constitute a hostile work environment.
Jeseritz points to a number of incidents to support his claim of hostile work environment. Jeseritz claims that he began experiencing harassment because of his medical condition towards the middle of 1996. The following incidents are described by Jeseritz in his affidavit as support for his hostile work environment claims:
There are additional assertions in Jeseritz's Memorandum in Opposition to Defendant's Motion for Summary Judgment; however, there is no support for these assertions. The Memorandum was initially filed with the Court without any reference to the record. The Court gave Jeseritz 3 days to supply the necessary citations. This was not done. Instead, Jeseritz provided citations to an affidavit previously filed with the Court. To the extent the Memorandum contains assertions that have no citation to the record, and are not contained in the Jeseritz affidavit, the Court declines to search the record for their support. See Miller v. Citizens Sec. Group, Inc. et. al., 116 F.3d 343, 346 n. 4 (8th Cir. 1997).
• Constans wrote to Dr. Peterson saying that Jeseritz had misrepresented his job duties to Dr. Amadio.
• A substitute postmaster, Randy Forsman, told Jeseritz that he could not help him with disability matter because Jeseritz was under investigation.
• Another substitute postmaster, Steve Norby, approached Jeseritz and asked him "What do you have in your ear?" and, after being told it was a hearing aid, Norby said "You've got bad wrists and now you've got bad ears? What's next?"
• A supervisor at the Willmar Post Office, Mike Ryan, said "Get out of my office or I will call the police," when Jeseritz told him that crossing off bars was making his hand go numb.
• In the fall of 1996, six posters were placed near Jeseritz's office which advertised a reward for information leading to the arrest and conviction of any postal employee defrauding the worker's compensation program. On the top of one such poster someone wrote the name "Roger."
Jesertiz also asserts that the investigation by Ireland constituted harassment. Because Jeseritz was unaware that he was being investigated, the investigation could not have been harassing.
(Jeseritz Aff. at 6-8.)
In Faragher v. City of Boca Raton, the Supreme Court held that for harassment to be actionable, it must be "so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment." 524 U.S. 775, 788 (1998) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (alteration in original)). Because the discrimination laws are not a "general civility code, offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Id. at 788 (quotations omitted). Accordingly, "the ordinary tribulations of the workplace, such as the sporadic use of abusive language . . . and occasional teasing are not actionable." Id. (quotations omitted). The Court finds that the above incidents were not so severe or pervasive as to alter the conditions of Jeseritz's employment and create an abusive working environment. The letter Constans wrote to Dr. Peterson was not to harass Jeseritz. Constans is the injury compensation specialist at the USPS and, as part of her duties, wrote the letter to Dr. Peterson to clarify Jeseritz's job duties. Further, there is no evidence that Jeseritz knew of the letter prior to his termination. It is also unclear as to how Randy Forsman's statement — that he could not help Jeseritz because he was under investigation — amounts to harassment. Nor is it clear how Mike Ryan's statement — "get out of my officer or I'll call the police" — could be interpreted as harassment. At the administrative hearing Jeseritz testified that he was "pestering" Mike Ryan and Ryan responded with the above statement. (Siekert Decl., Ex. 21 (Opinion of the Administrative Judge).) Ryan may have overreacted to Jeseritz's "pestering" but it does not rise to the level of harassment — and certainly not severe or pervasive harassment. With respect to the remaining incidents, the Court concurs with the administrative judge's opinion, finding that these incidents were isolated in nature. Steve Norby's comment about Jeseritz's hearing and wrist disabilities, and the reward poster with Jeseritz's name written across it, were offensive and harassing. The writing on the poster, however, was not attributed to any supervisor at the USPS, and when it was reported to Jeseritz's supervisor, Don Rasmussen, it was taken down immediately. (Siekert Decl., Ex. 21 at 6.) Jeseritz contends that he told Ron Ruchti, another supervisor, to remove the poster but it remained on the wall for another two weeks. Taking Jeseritz's allegations as true, the Court finds that the offensive comment by Steve Norby, and the delay in removing the poster, were not so severe or pervasive as to alter the conditions of Jeseritz's employment and create an abusive working environment. The Court, therefore, determines that Jeseritz has not established a prima facie case of hostile work environment.
See Chandler v. Roudebush, 425 U.S. 840, 863 n. 39 (1976) (finding that although the district court conducts de novo review, prior administrative findings made with regard to the discrimination claim may be admitted as evidence).
C. Failure to Accommodate
Jeseritz claims that he was discriminated against by the USPS because it would not make reasonable accommodations to accommodate his disability. An employer may be liable for disability discrimination by "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer]." 42 U.S.C. § 12112(b)(5)(A). To prevail on a claim for failure to reasonably accommodate, Jeseritz must establish: (1) he has a disability; (2) he is qualified to perform the essential job functions, with or without reasonable accommodations; and (3) the USPS failed to make a needed or requested reasonable accommodation. Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253-55 (1981); Owens v. Ruyon, 614 F. Supp. 614, 618 (W.D.Mo. 1994). Henderson asserts that this claim is lacking in two respects: (1) Jeseritz failed to exhaust his administrative remedies; and (2) there is no evidence that the USPS failed to accommodate Jeseritz. The Court agrees that there is no evidence that the USPS failed to accommodate Jeseritz; in fact, the Court finds the opposite to be true. The USPS offered Jeseritz a Limited Duty/Modified Job Offer in March 1993. (Siekert Decl., Dep. Ex. 6.) In August 1994, the USPS made another job offer to accommodate Jeseritz. (Jeseritz Dep. at 105.) On June 7, 1995, Jeseritz signed yet another job offer to accommodate his disabilities, which had been approved by two of his doctors, Dr. Jetzer and Dr. Peterson, and by the USPS. (Jeseritz Dep. at 121; Siekert Aff., Dep. Ex. 7 (Job Offer under Federal Rehab. Guidelines).) The USPS also offered two different types of jobs to Jeseritz — one working the phones and another working automated machines — which, unfortunately, Jeseritz could not accept because of his hearing. The record is devoid of any evidence that the USPS failed to offer Jeseritz a reasonable accommodation for his disability. The Court, therefore, concludes that Jeseritz has failed to establish a prima facie case of failure to accommodate.
Because the Court concludes that Jeseritz failed to establish a prima facie case of failure to accommodate, it need not address the issue of exhaustion raised by Henderson.
D. Retaliation
A prima facie case of retaliatory discharge is established when the plaintiff shows that: (1) he engaged in statutorily protected activities; (2) he suffered an adverse employment action; and (3) the adverse employment action occurred because he engaged in statutorily protected activities. Coffman v. Tracker Marine, L.P., 141 F.3d 1241, 1244 (8th Cir. 1998); Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir. 1997). The burden then shifts to the defendant to provide a nondiscriminatory reason for the action. Reich v. Hoy Shoe Co., 32 F.3d 361, 365 (8th Cir. 1994). Upon this showing, the burden shifts back to plaintiff to demonstrate that the proffered reason is pretextual. Id. Henderson contends that Jeseritz failed to exhaust his administrative remedies and cannot establish a prima facie case of retaliation because there is no evidence that he engaged in protected activity. (Def.'s Supp. Mem. at 28-9.) Jeseritz responds that he "regularly submitted claims that he was not being accommodated, that he was being harassed, [and] that his medical complaints were being stalled and ignored." (Pl.'s Opp'n Mem. at 34.) Jeseritz does not provide any evidence that indicates his medical complaints were being stalled and ignored. Likewise, there is no evidence that he ever submitted a claim for accommodation that was not accommodated; as discussed above, there is sufficient evidence that the opposite is true. The only other protected activity that Jeseritz points to in his affidavit is that in the middle of 1996 he pleaded his case to David Minge, his Congressman at the time, about his problems at the post office. (Jeseritz Dep. at 541-46.) In order for an activity to be protected, however, there must be an allegation of discrimination. Ghane v. West, 148 F.3d 979, 982 (8th Cir. 1998). Jeseritz makes no assertion that he complained of discrimination to Congressman Minge. Moreover, it is not clear to the Court what Jeseritz's complaints to Congressman Minge entailed. Based on the Jeseritz affidavit and the Jeseritz deposition, the Court finds that Jeseritz failed to point to any protected activity that could form the basis of a retaliation claim.
Jeseritz does not contend that his May 1997 EEO Precomplaint constituted protected activity.
It is not clear how Jeseritz's claim that he was being harassed is protected activity. Jeseritz does not provide any evidence that would indicate he filed EEO complaints prior to his Notice of Removal that suggested he was being harassed.
The Court, again, points out the lack of citations to the record in both the Jeseritz affidavit and the opposition memorandum. Although the Jeseritz affidavit provides some citations, most of the citations only reference the Jeseritz deposition. The Court has searched the extensive record for evidence that Jeseritz complained of disability discrimination to Congressman Minge, but has found none. Beyond the initial search of the record, the Court declines to conduct an independent investigation of the record in search of support for Jeseritz's assertions.
Conclusion
Accordingly, for the foregoing reasons, and based upon all of the files, records and proceedings herein, IT IS ORDERED that the Defendant's Motion for Summary Judgment (Doc. No. 27) is GRANTED, and the Complaint is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.