Agee v. Walgreen Company

MOTION for Summary Judgment

S.D. Ill.December 13, 2016

CORE/2023555.0014/130574186.2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS LISA AGEE, ) ) Plaintiff, ) ) Case No. 15-cv-145-SMY-RJD v. ) ) WALGREEN COMPANY, ) ) Defendant. ) WALGREEN COMPANY’S MOTION FOR SUMMARY JUDGMENT COMES NOW Defendant Walgreen Company (“Walgreens”) by and through its undersigned counsel, and hereby files its Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and states the following in support: There is no genuine issue as to the following material facts that establish Walgreens is entitled to summary judgment in its favor as a matter of law on Plaintiff Lisa Agee’s (“Plaintiff”) claims of sexual harassment and sex discrimination (Count I); retaliation (Count II); and disability discrimination (Count III). STATEMENT OF UNCONTROVERTED MATERIAL FACTS 1. Plaintiff filed her Complaint in this action against Walgreens pursuant to Title VII of the Civil Rights Act of 1964 alleging she suffered sexual harassment (Count I); and retaliation for having complained about sexual harassment by being denied overtime opportunities (Count II). [Doc #5]. Plaintiff amended her Complaint by alleging disability discrimination based on a failure to accommodate claim (Count III). (Plaintiff’s First Amended Complaint, “Amended Complaint” [Doc #20], attached hereto for ease of reference as Exhibit A). Case 3:15-cv-00145-SMY-RJD Document 69 Filed 12/13/16 Page 1 of 14 Page ID #518 2 CORE/2023555.0014/130574186.2 2. Plaintiff has been employed at Walgreens’ Distribution Center in Mt. Vernon, Illinois since approximately October 17, 1994. (Deposition Lisa Agee, “Plaintiff Depo.,” attached hereto as Exhibit B, 14:8-11; Amended Complaint, Ex. A, ¶ 6). 3. Plaintiff is currently employed as a Receiving Office Clerk. She has worked in this capacity since April 13, 2015. (Amended Complaint, Ex. A, ¶ 90; Plaintiff Depo., Ex. B, 14:23-15:1; Affidavit of Jaclyn Richter, “Richter Aff.,” attached hereto as Exhibit C, ¶ 7). 4. Plaintiff’s prior position at Walgreens was Maintenance Janitor. (Plaintiff Depo., Ex. B, 14:23-24). She worked in this capacity from approximately August 2, 2008 until March 20, 2013, when Plaintiff went on a leave of absence due to a workplace injury. (Richter Aff., Ex. C, ¶ 8, Exhibits attached thereto C-2 and C-3). 5. On July 19, 2010, Walgreens’ employee Maurya Gill complained to Mary Supplee, Walgreens’ former Human Resources Manager, that David Strunk, Function Manager, had made inappropriate comments to her. (Richter Aff., Ex. C, ¶ 9, Exhibit attached thereto C- 4). 6. Immediately upon receipt of Ms. Gill’s complaint, Ms. Supplee launched an investigation that resulted in interviews with several other employees to whom Mr. Strunk had allegedly been making inappropriate comments, including Arleen Moreno and Kim Counts. (Richter Aff., Ex. C, ¶ 9; Exhibit attached thereto C-4). 7. Ms. Moreno suggested Ms. Supplee speak with Plaintiff, because she believed Mr. Strunk had been making inappropriate comments to her as well. (Richter Aff., Ex. C, ¶ 9, Exhibit attached thereto C-4). Case 3:15-cv-00145-SMY-RJD Document 69 Filed 12/13/16 Page 2 of 14 Page ID #519 3 CORE/2023555.0014/130574186.2 8. Ms. Supplee interviewed Plaintiff on July 19, 2010, and requested a written statement as she had with Ms. Gill and Ms. Moreno. (Richter Aff., Ex. C, ¶ 9; Exhibits attached thereto C-4 and C-5). 9. On July 19, 2010, Ms. Gill and Ms. Moreno also provided written statements. (Richter Aff., Ex. C, ¶ 9; Exhibit attached thereto C-6). 10. At all relevant times, Walgreens had in place its Walgreens Policy Against Harassment And Discrimination – Nonstore, which also incorporates Walgreens’ No-Retaliation Policy; an Open Door Policy and a Confidential Hotline Policy, all of which are introduced at employee orientation, posted throughout the Facility and available on-line. Further, Walgreens Policy Against Harassment And Discrimination – Nonstore, describes procedures for reporting discrimination and harassment. The Open Door Policy encourages employees to report concerns and the Hotline provides employees yet another reporting avenue. (Richter Aff., Ex. C, ¶ 4, Exhibit attached thereto C-1). 11. Plaintiff has been aware of Walgreens’ Walgreens Policy Against Harassment And Discrimination – Nonstore policy. Additionally, Plaintiff watched a sexual harassment training video during her employment at Walgreens, and the policies are posted throughout the Distribution Center. (Plaintiff Depo., Ex. B, 180:9-181:4, 181:14-17, 181:24-185:11, 238:24- 239:8, 239:14-16). 12. Plaintiff, admittedly, never used Walgreens’ harassment policies and complaint procedures and never complained about harassment or discrimination at Walgreens. (Plaintiff Depo., Ex. B, 238:13-23, 259:4-17). 13. When Plaintiff complained about not getting enough overtime, she admittedly never said anything about sexual harassment: Case 3:15-cv-00145-SMY-RJD Document 69 Filed 12/13/16 Page 3 of 14 Page ID #520 4 CORE/2023555.0014/130574186.2 Q. You did not talk to Don Magnus about the sexual harassment, correct? A. No. Q. You never – A. But I did talk to him about the overtime. (Plaintiff Depo., Ex. B, 243:8-12). 14. Walgreens only learned about Plaintiff being subjected to any potentially harassing conduct after Ms. Moreno mentioned it to Ms. Supplee in connection with her investigation. (Plaintiff Depo., Ex. B, 188:23-190:25; Richter Aff., Ex. C, ¶ 9; Exhibit attached thereto C-4). 15. As a result of Ms. Supplee’s investigation findings, on July 19, 2010—the same day as the interviews with Ms. Gill, Ms. Moreno, Ms. Counts and Plaintiff—Ms. Supplee, Don Magnus, Maintenance Manager, and Walter Wegner, Manager of Operations, met with Mr. Strunk to interview him on the allegations. Mr. Strunk was provided an opportunity to provide a written statement. However, Mr. Strunk crumpled the statement he was writing, stated he was not going to put his wife through this and resigned. Walgreens closed its investigation. (Richter Aff., Ex. C, ¶ 9; Exhibit attached thereto C-4). 16. Plaintiff learned about the result of the investigation from Ms. Supplee. (Plaintiff Depo., Ex. B, 237:18-22). 17. After Mr. Strunk’s resignation, Plaintiff never alleges to have been subjected to further incidents of sexual harassment at Walgreens. (Plaintiff Depo., Ex. B, 238:5-12). 18. Notwithstanding the fact Plaintiff never complained about sexual harassment or discrimination, Plaintiff’s retaliation claim (Count II) is based on the theory that she was Case 3:15-cv-00145-SMY-RJD Document 69 Filed 12/13/16 Page 4 of 14 Page ID #521 5 CORE/2023555.0014/130574186.2 retaliated against for complaining about discrimination and harassment by being denied overtime opportunities. (Amended Complaint, Ex. A, ¶¶ 69-72). 19. However, Plaintiff states the tangible employment action to which she claims she was subjected (not being offered overtime opportunities) was based upon retaliation for her being involved in the ultimate termination of Mr. Strunk’s employment. (Plaintiff Depo., Ex. B, 264:1-13). 20. On March 20, 2013, Plaintiff climbed a ladder and fell off the ladder at work, resulting in a concussion, vertebral fracture and a fractured calcaneous. (Amended Complaint, Ex. A, ¶ 76; Plaintiff Depo., Ex. B, 43:7-16; Deposition of Andrea Stonecipher, M.D., “Stonecipher Depo.,” attached hereto as Exhibit D, 95:9-14). Plaintiff also suffered from a traumatic brain injury and post-traumatic stress disorder resulting from the accident. (Stonecipher Depo., Ex. D, 120:25-121:1). 21. Plaintiff was approved for a paid disability leave of absence from March 28, 2013 through June 6, 2013. (Richter Aff., Ex. C, ¶ 10; Exhibit attached thereto C-7). 22. Plaintiff returned to work with temporary restrictions on June 10, 2013. (Richter Aff., Ex. C, ¶ 11). 23. Plaintiff returned to work at full duty on July 22, 2013, but went off work again on August 8, 2013, because of her alleged mental condition. (Richter Aff., Ex. C, ¶ 12). 24. Plaintiff applied for and was approved for paid disability from August 16, 2013 through November 6, 2013. (Richter Aff., Ex. C, ¶ 13; Exhibit attached thereto C-7). 25. When Plaintiff exhausted her paid disability leave, Plaintiff applied and was approved for unpaid disability leave from November 7, 2013 to April 12, 2015. (Richter Aff., Ex. C, ¶ 14; Exhibit attached thereto C-8). Case 3:15-cv-00145-SMY-RJD Document 69 Filed 12/13/16 Page 5 of 14 Page ID #522 6 CORE/2023555.0014/130574186.2 26. Throughout this period of time during which Plaintiff was on a leave of absence, Plaintiff remained employed by Walgreens. (Plaintiff Depo., Ex. B, 99:15-18). 27. As soon as Plaintiff indicated a desire to come back to work, Walgreens' HR team worked diligently to attempt to return Plaintiff to work. (Richter Aff., Ex. C, ¶ 15). 28. All employees must bid for open positions. The bidding process is based on seniority which is determined by an employee’s date of hire. (Richter Aff., Ex. C, ¶ 16) 29. Even if Plaintiff was qualified to perform the essential functions of an open position, because of the seniority system at the Mt. Vernon Distribution Center, Plaintiff needed to bid for the open position and have greater seniority than other employees submitting a bid for the same position. (Richter Aff., Ex. C, ¶ 16) 30. Between April 2014 and April 2015, there were a number of job openings at the Facility. (Richter Aff., Ex. C, ¶ 17; Walgreen Company’s Answers and Objections to Plaintiff’s Third Set of Interrogatories Directed to Defendant, attached hereto as Exhibit E, Interrogatory Number 32) 31. Of all of these openings, Plaintiff’s permanent restrictions only met three openings-the General Office opening which opened on December 31, 2014; the Supply Chain Inventory Control Clerk position that opened on or about February 10, 2015; and the Receiving Office Clerk position that opened on March 26, 2015 and which Plaintiff occupies today. (Richter Aff., Ex. C, ¶ 18, Exhibits attached thereto C-9 and C-10). 32. The test for all three Clerk positions tests data entry accuracy, typing speed and ability, and ability to use Microsoft Excel—all necessary functions of the Clerk positions. (Richter Aff., Ex. C, ¶ 19) Case 3:15-cv-00145-SMY-RJD Document 69 Filed 12/13/16 Page 6 of 14 Page ID #523 7 CORE/2023555.0014/130574186.2 33. None of Walgreens’ other openings between May 7, 2014 and March 26, 2015, fit Plaintiff’s permanent restrictions. First of all, the third shift jobs (10:00 p.m. to 6:00 a.m.) would not meet Plaintiff’s restriction of not working at night. (Richter Aff., Ex. C, ¶ 24) 34. Second, the Split Case Picker and Stocker positions require, among other duties, frequent to constant lifting, overhead reaching, working at high elevations, climbing stairs and constant walking. (Richter Aff., Ex. C, ¶ 25, Exhibit attached thereto C-11). 35. Third, the Receiver Checker position requires often carrying product weighing 11-50 pounds; driving cars, trucks, forklifts and equipment; working around equipment and machinery; and critical to speak with coworkers in close proximity of 2-3 feet in order to safely and properly perform essential job functions. (Richter Aff., Ex. C, ¶ 26, Exhibit attached thereto C-12). 36. Fourth, the Wave Coordinator position requires frequent, effective communication with operators, supervisors, leads and shipping in close proximity of 2-3 feet, as well as lifting totes. (Richter Aff., Ex. C, ¶ 27, Exhibit attached thereto C-9). 37. Fifth, the CP OPS Operator position requires operating complex industrial machinery. (Richter Aff., Ex. C, ¶ 28, Exhibit attached thereto C-9). 38. Sixth, the Full Case Picker, Order Picker and Stocker positions require, among other duties, occasional to constant lifting, working at high elevations and operating industrial equipment. (Richter Aff., Ex. C, ¶ 29, Exhibit attached thereto C-13). 39. Seventh, the Utility position requires operating complex and heavy industrial equipment such a reach truck, order picker, transporter, clamp truck and turret truck. This position can also include assignments such as picking, stocking, loading and unloading trucks, and janitorial duties. (Richter Aff., Ex. C, ¶ 30, Exhibit attached thereto C-9). Case 3:15-cv-00145-SMY-RJD Document 69 Filed 12/13/16 Page 7 of 14 Page ID #524 8 CORE/2023555.0014/130574186.2 40. Eighth, the Shipper Loader job requires frequent to constant carrying of weights up to 50 pounds; critical to speak with coworkers in order to safely and properly perform essential job functions; driving cars, trucks, forklifts and other equipment; and working around equipment and machinery. (Richter Aff., Ex. C, ¶ 31, Exhibit attached thereto C-14). 41. Ninth, the SCS Replenishment Driver operates complex and heavy industrial replenishment equipment. (Richter Aff., Ex. C, ¶ 32, Exhibit attached thereto C-9). 42. Finally, the Tote Lifter and Unloader operate complex and heavy lift equipment. (Richter Aff., Ex. C, ¶ 33, Exhibit attached thereto C-9). 43. On April 11, 2014, Ms. Richter spoke with Plaintiff about her returning to work and available positions. She also requested that Plaintiff provide any restrictions from her health care providers. (Richter Aff., Ex. C, ¶ 34). 44. On April 18, 2014, Ms. Richter returned another telephone call from Plaintiff. Ms. Richter reiterated the same as the conversation Ms. Richter had with Plaintiff on April 11, 2014. (Richter Aff., Ex. C, ¶ 35). 45. On April 22, 2014, Andrea Stonecipher, M.D. sent Ms. Richter a letter containing Plaintiff’s permanent medical restrictions. Specifically, according to Dr. Stonecipher’s letter, from March 2013 through at least May 7, 2014, Plaintiff was permanently restricted from “driving large equipment…and working the night shift.” She also was having “flashbacks and panic attacks when she [was] exposed to ladders, heights, or watching others work at heights,” and, therefore, Plaintiff was restricted from working “in areas of the distribution center where the pick line, trash line, and other machinery is located.” (Stonecipher Depo., Ex. D, 125:15-22; Richter Aff., Ex. C, ¶ 36, Exhibit attached thereto C-15). Case 3:15-cv-00145-SMY-RJD Document 69 Filed 12/13/16 Page 8 of 14 Page ID #525 9 CORE/2023555.0014/130574186.2 46. On April 28, 2014, Christy Kelley, Plaintiff’s treater, sent me Plaintiff’s physical permanent restrictions. (Richter Aff., Ex. C, ¶ 37, Exhibit attached thereto C-16) 47. On June 6, 2014, Plaintiff e-mailed Ms. Richter asking about a clerk position opening that she believed fit her permanent restrictions. On June 9, 2014, Ms. Richter spoke with Plaintiff and let her know she could apply for the position, as it was a promotion. (Richter Aff., Ex. C, ¶ 38, Exhibit attached thereto C-17). 48. On June 27, 2014, Plaintiff failed the clerical test for the SAIL position. (Richter Aff., Ex. C, ¶ 39) 49. On August 28, 2014, Plaintiff sent a letter to Walgreens’ Unpaid Leave Department requesting an extension of unpaid leave. In her letter, Plaintiff states “there were not any jobs that fit the restrictions [Plaintiff’s doctor] had [her] on so [she] wasn’t able to come back. [Plaintiff] tried to take a job that [she] was not at all qualified for and could not pass the computer test. There hasn’t been another job come up yet.” (August 28, 2014 Correspondence from Plaintiff to Walgreens’ Unpaid Leave Department, attached hereto as Exhibit F).1 50. On September 4, 2014, Ms. Richter spoke with Plaintiff and Plaintiff informed her that Plaintiff was requesting an extension of her leave of absence beyond her one year date. (Richter Aff., Ex. C, ¶ 40). 51. Plaintiff’s physicians did not specify what timeframe constituted “night shift” so on September 11, 2014, Ms. Richter requested Plaintiff seek clarification from Dr. Stonecipher and identify the specific hours Plaintiff’s doctor considered the “night shift.” Plaintiff provided updated restrictions. (Richter Aff., Ex. C, ¶ 41, Exhibits attached thereto C-18, C-19 and C-20). 1 Exhibit F (marked as Walgreens’ Exhibit 1 during Plaintiff’s deposition) was authenticated in her deposition. (Plaintiff’s Depo., Ex. B, 123:6-124:8, 126:3-19). Case 3:15-cv-00145-SMY-RJD Document 69 Filed 12/13/16 Page 9 of 14 Page ID #526 10 CORE/2023555.0014/130574186.2 52. Ms. Kelley gave Plaintiff permanent restrictions limiting her ability to stand or walk for more than six hours, prohibiting her from lifting more than twenty pounds, and stating that Plaintiff suffered from panic attacks when subjected to heights. (Richter Aff., Ex. C, ¶ 42, Exhibits attached thereto C-20). Plaintiff’s panic attacks posed a safety risk, because she could potentially injure someone or herself if she was operating machinery or working at heights when she had one. (Stonecipher Depo., Ex. D, 131:4-132:4, 132:10-133:4). 53. On September 25, 2014, Brian Prost, Manager of Operations, and Ms. Richter met with Plaintiff to discuss her permanent restrictions. Mr. Prost and Ms. Richter showed Plaintiff the current open jobs based upon her shift restrictions. The open positions at that time were the Split Case Picker Second Shift and Full Case Picker Second Shift. Her permanent restrictions limited her from being able to perform the essential duties of both positions. (Richter Aff., Ex. C, ¶ 43). 54. During the September 25, 2014 meeting, Plaintiff stated she did not feel she could come back to the Split Case Picker Second Shift position. Plaintiff also stated that she did not believe she could return to the Full Case Picker Second Shift position. (Richter Aff., Ex. C, ¶ 44). 55. On October 2, 2014, Ms. Richter spoke with Plaintiff regarding her permanent restrictions. Plaintiff said her physician was unwilling to change her permanent restrictions. Ms. Richter told Plaintiff that the current openings are Split Case Picker Second Shift and Receiving Office Third Shift. At that time Plaintiff stated that she could not return to the Split Case Picker position with or without a reasonable accommodation. (Richter Aff., Ex. C, ¶ 45) 56. On January 16, 2015, Plaintiff sent a letter to Walgreens’ Unpaid Leave Department requesting an extension of unpaid leave. In her letter, Plaintiff states “there were not Case 3:15-cv-00145-SMY-RJD Document 69 Filed 12/13/16 Page 10 of 14 Page ID #527 11 CORE/2023555.0014/130574186.2 any jobs that fit the restrictions [Plaintiff’s doctor] had [her] on so [she] wasn’t able to come back. [Plaintiff] tried to take a job that [she] was not at all qualified for and could not pass the computer test. There hasn’t been another job come up yet.” (January 16, 2015 Correspondence from Plaintiff to Walgreens’ Unpaid Leave Department, attached hereto as Exhibit G).2 57. On February 23, 2015, Dr. Stonecipher sent a letter to Walgreens stating Plaintiff was still unable to perform the essential functions of the Janitor Maintenance position, set forth on the job description, and that her remaining permanent restrictions (operating complex industrial machinery, working at night, being exposed to ladders and climbing) were permanent. (Richter Aff., Ex. C, ¶ 46, Exhibit attached thereto C-21). 58. From April 2014 to April 2015, Plaintiff could not perform the functions of her job as set forth on her Maintenance Janitor Physical Demand analysis. (Stonecipher Depo., Ex. D, 133:5-136:11; Affidavit of Don Magnus, “Magnus Aff.,” attached hereto as Exhibit H, ¶ 7, Exhibit attached thereto H-1). 59. Plaintiff's treating physician, Dr. Stonecipher opined that Plaintiff’s restrictions prevented her from performing the essential functions of the Maintenance Janitor position. (Stonecipher Depo., Ex. D, 145:18-146:2). 60. The Maintenance Janitor position physical demand analysis provides that the position requires, among other duties, frequently climbing; driving cars, trucks, forklift, slip sheet balers, plastic balers, an industrial floor scrubber, buffer and battery charger; working at heights while changing batteries; working around and operating equipment and complex machinery; and operating foot controls and repetitive foot movements. The position also requires frequently lifting 11-25 pounds of cleaning supplies and parts over a distance of 1 2 Exhibit G (marked as Walgreens’ Exhibit 1 during Plaintiff’s deposition) was authenticated in her deposition. (Plaintiff’s Depo., Ex. B, 123:6-124:8, 126:3-19). Case 3:15-cv-00145-SMY-RJD Document 69 Filed 12/13/16 Page 11 of 14 Page ID #528 12 CORE/2023555.0014/130574186.2 million square feet, occasionally lifting 26-50 pounds, walking and standing constantly, which amounted to more than 66% of an 8 hour day. (Magnus Aff., Ex. H, ¶¶ 7-9, Exhibit attached thereto H-1). 61. Since at least April 2014, one of the Maintenance Janitor position’s essential functions has been changing batteries. The battery changing function is required to support the Facility’s production. The batteries are needed to operate the 140 forklifts Walgreens operates each shift at the Facility. (Magnus Aff., Ex. H, ¶ 10). 62. Changing batteries is a physically demanding task. The batteries weigh as much as 4,000 pounds. In order to change a battery, the Maintenance Janitor must remove the battery retaining plate, which can weigh as much as 50 pounds. Changing batteries also necessitates working at heights, as described in Exhibit B-1. (Magnus Aff., Ex. H, ¶ 11) 63. Maintenance Janitors would be assigned to be a full-time battery changer during their entire shift, which would require spending at least 7 hours a day changing batteries, as needed during production. (Magnus Aff., Ex. H, ¶ 12) 64. Other Maintenance Janitors would be assigned to the battery changer during breaks and would have to spend at least one hour and twenty minutes changing batteries per shift. (Magnus Aff., Ex. H, ¶ 13) 65. All Maintenance Janitors are required to be able to change batteries. (Magnus Aff., Ex. H, ¶ 14) 66. At the Distribution Center, there were three work shifts and a weekend shift employing over eleven hundred individuals. (Magnus Aff., Ex. H, ¶ 4) 67. This schedule allows the Distribution Center to function around-the-clock in order to meet the operational needs of the business. (Magnus Aff., Ex. H, ¶ 5) Case 3:15-cv-00145-SMY-RJD Document 69 Filed 12/13/16 Page 12 of 14 Page ID #529 13 CORE/2023555.0014/130574186.2 68. The Distribution Center ships product five days a week to over 800 stores across the country and receives incoming product seven days a week from its suppliers. (Magnus Aff., Ex. H, ¶ 6) 69. With respect to the General Office Clerk position, Plaintiff tested for the position on January 8, 2015. The clerical test for the General Office position tests data entry accuracy, typing speed and ability, and ability to use Microsoft Excel—all necessary functions of the General Office Clerk position. (Richter Aff., Ex. C, ¶ 20, Exhibit attached thereto C-22). 70. When Plaintiff took the test, Plaintiff failed the test. As a result, Plaintiff could not be reassigned to the position. (Richter Aff., Ex. C, ¶ 21, Exhibit attached thereto C-22). 71. On February 10, 2015, Plaintiff applied for a Supply Chain Inventory Clerk position. Plaintiff failed the clerical test on February 10, 2015. (Richter Aff., Ex. C, ¶ 22, Exhibit attached thereto C-23.) 72. On March 26, 2015, Plaintiff sent a letter to Walgreens’ Unpaid Leave Department requesting an extension of unpaid leave. In her letter, Plaintiff states “there were not any jobs that fit the restrictions [Plaintiff’s doctor] had [her] on so [she] wasn’t able to come back. [Plaintiff] tried to take a job that [she] was not at all qualified for and could not pass the computer test.” (March 26, 2015 Correspondence from Plaintiff to Walgreens’ Unpaid Leave Department, attached hereto as Exhibit I).3 73. Between November 7, 2013 and April 12, 2015, Walgreens approved 15 separate requests from Plaintiff for a leave of absence. (Richter Aff., Ex. C, ¶ 14; Exhibit attached thereto C-8). 3 Exhibit I (marked as Walgreens’ Exhibit 1 during Plaintiff’s deposition) was authenticated in her deposition. (Plaintiff’s Depo., Ex. B, 123:6-124:8, 126:3-19). Case 3:15-cv-00145-SMY-RJD Document 69 Filed 12/13/16 Page 13 of 14 Page ID #530 14 CORE/2023555.0014/130574186.2 74. The next opening that fit her permanent restrictions became available on March 26, 2015—the Receiving Office Clerk position—Plaintiff tested for on April 7, 2015, passed, filled the position April 13, 2015, and currently occupies it today. (Richter Aff., Ex. C, ¶ 23). STINSON LEONARD STREET LLP /s/Johnny Wang Johnny Wang, #6292065 Marc D. Goldstein, #62910MO 7700 Forsyth Blvd., Suite 1100 St. Louis, Missouri 63105 Telephone: 314.863.0800 Facsimile: 314.863.9388 Email: johnny.wang@stinson.com marc.goldstein@stinson.com Attorney(s) for Defendant CERTIFICATE OF SERVICE I certify that a copy of the foregoing was filed electronically with the Clerk and delivered by operation of the CM/ECF system to the counsel of record on December 12, 2016. /s/Johnny Wang Case 3:15-cv-00145-SMY-RJD Document 69 Filed 12/13/16 Page 14 of 14 Page ID #531 Case 3:15-cv-00145-SMY-RJD Document 69-1 Filed 12/13/16 Page 1 of 12 Page ID #532 Case 3:15-cv-00145-SMY-RJD Document 69-1 Filed 12/13/16 Page 2 of 12 Page ID #533 Case 3:15-cv-00145-SMY-RJD Document 69-1 Filed 12/13/16 Page 3 of 12 Page ID #534 Case 3:15-cv-00145-SMY-RJD Document 69-1 Filed 12/13/16 Page 4 of 12 Page ID #535 Case 3:15-cv-00145-SMY-RJD Document 69-1 Filed 12/13/16 Page 5 of 12 Page ID #536 Case 3:15-cv-00145-SMY-RJD Document 69-1 Filed 12/13/16 Page 6 of 12 Page ID #537 Case 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