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July 30, 1997

JAMES F. REIDY, Plaintiff,

The opinion of the court was delivered by: SPATT

 SPATT, District Court:

 This employment discrimination action arises from the claims of the plaintiff James Reidy ("Reidy" or the "plaintiff"), that he was unlawfully denied overtime assignments in his job as a postal clerk in violation of the Rehabilitation Act of 1974, 29 U.S.C. § 791 et seq. Presently before the Court is the motion of the defendant, Marvin Runyon, the Postmaster General of the United States (the "Post Office," "Postal Service" or "defendant"), for summary judgment pursuant to Fed. R. Civ. P. 56.

 I. Background

 The plaintiff, James Reidy, has been employed by the Post Office as a manual clerk since 1977. In this capacity, his responsibilities include distribution of the mail, which requires, without limitation, standing, sitting, lifting up to 70 pounds, the distribution of letters, flats and parcels, "sweeping the mail," and transportation of mail. "Sweeping" apparently involves moving mail to different receptacles within the facility so that it may be shipped to other parts of the country.

 Since he began working with the Postal Service, the plaintiff has been a member of the American Postal Workers Union (the "Union"). Originally he was assigned to the postal facility in Smithtown, New York. In 1987, he was transferred to the Mid-Island Processing facility in Melville where he was employed at the time of the alleged discriminatory acts.

 On April 9, 1986, the plaintiff injured his ankle and lower back. The parties dispute whether this injury occurred on the job. On May 12, 1986, Reidy suffered a herniated cervical disk when he fell on the floor while carrying the mail at work. This injury resulted in his being out of work for six months. After the injury, the plaintiff filed a workers' compensation claim and received approximately $ 8,709 in benefits. Reidy maintains that as a result of this injury he is "unable to rotate [his] neck and [is] restricted in lifting heavy objects and in twisting and turning in certain directions." Affidavit of James Reidy, Jan. 14, 1997 P 2.

 Because of his neck injury, the plaintiff was placed on "limited duty." In this capacity, some of his regular work duties were restricted. The parties disagree with respect to the amount of work the plaintiff is able to do. According to the defendant, Reidy was restricted from: (1) carrying heavy objects including heavy or full trays of mail, standard flat cases, or flat buckets containing mail, as well as throwing parcels or "dropping" pouches of mail; (2) sweeping the mail; (3) standing for prolonged periods of time; (4) throwing regular cases of mail; (5) sitting without back support; or (6) moving equipment. Reidy admits that he is not expected to lift "exceptionally heavy trays" of mail or sweep the mail, which requires a certain amount of twisting or bending. However, the plaintiff asserts that contrary to the defendant's contentions, he is able to "throw" full cases of mail, albeit with some difficulty. He also denies requiring extra back support while sitting, and maintains that moving equipment is not part of his duties as a manual clerk.

 According to the Complaint, between November 11, 1991 and April 13, 1993, the plaintiff has been denied work on overtime shifts despite his seniority and his indicated preference for these assignments. During his deposition, Reidy stated that he filed a grievance with the Union on each occasion that he was denied an overtime shift. He further contends that other employees, namely Chicha Cannon and Mary Butterfield, who were also assigned to restricted duties, were similarly denied overtime. The plaintiff's grievances were settled in 1993 and he received between 50 and 60 percent of the overtime pay he sought. The settlement was paid by checks which Reidy admittedly cashed.

 On March 10, 1993, the plaintiff contacted an EEO counselor for the first time regarding his discrimination charges. On February 10, 1995, Reidy commenced this lawsuit alleging that his rights had been violated under the Rehabilitation Act of 1973 and 42 U.S.C. § 1983, claiming that he is entitled to the difference between the compensation he received as a result of the settlement, and the actual amount of overtime compensation he sought. The Section 1983 claim was subsequently discontinued leaving the Rehabilitation Act as the sole cause of action.

 The Post Office moves for summary judgment on several grounds. Initially, the defendant argues that Reidy's claims are barred as a result of the settlement of his union grievances. In the alternative, the Post Office argues that the plaintiff's claims are untimely and that he has failed to exhaust his administrative remedies so that this Court lacks subject matter jurisdiction to hear this case. Further, the defendant contends that summary judgment is appropriate because the plaintiff is unable to establish a prima facie case of employment discrimination. Finally, the Post Office asserts that Reidy's claims are barred because the workers' compensation benefits he received operate as an exclusive remedy precluding any related claims.

 II. Discussion

 A. Summary judgment standard

 A court may grant summary judgment only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact, Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir. 1996), and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The Court must however, resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995); Twin Laboratories, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987).

 According to the Second Circuit "summary judgment is a tool to winnow out from the trial calendar those cases whose facts predestine them to result in a directed verdict." United National Ins. Co. v. The Tunnel, Inc., 988 F.2d 351, 355 (2d Cir. 1993). Once a party moves for summary judgment, in order to avoid the granting of the motion, the non-movant must come forward with specific facts showing that a genuine issue for trial exists. West-Fair Elec. Contractors v. Aetna Cas. & Surety Co., 78 F.3d 61, 63 (2d Cir. 1996); see also Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Fed. R. Civ. P. 56(e)). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby,, 477 U.S. at 249; see Vann v. City of New York, 72 F.3d 1040 (2d Cir. 1995).

 However, mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment. Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996), cert. denied, 137 L. Ed. 2d 1027, 117 S. Ct. 1819 (1997); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). Finally, the Court is charged with the function of "issue finding," not "issue resolution." Gallo v. Prudential Residential Servs., Ltd, Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994).

 B. The Postal Service's motion

 At the outset, the Court notes that claims brought pursuant to the Rehabilitation Act are subject to the same burden shifting analysis as other federal employment discrimination cases. Initially, the claimant must establish a prima facie case of discrimination. Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994), cert. denied, 513 U.S. 1147, 130 L. Ed. 2d 1063, 115 S. Ct. 1095 (1995). The burden then shifts to the employer to articulate a legitimate non-discriminatory reason for the adverse employment decision. Id. If the employer satisfies this threshold requirement, the burden then shifts back to the employee to show that the employer's stated reason is actually a pretext for unlawful discrimination. Id.

 As set forth above, the Post Office moves for summary judgment on four grounds: (1) that the plaintiff's claims are barred by a prior settlement of Reidy's union grievances; (2) that Reidy has failed to exhaust his administrative remedies; (3) that the plaintiff has failed to establish a prima facie case of employment discrimination under the Rehabilitation Act; and (4) that Reidy's claims are barred by the federal workers' compensation statute. The Court will address each of these arguments in turn.

 1. Settlement of the grievances

 Initially, the Post Office argues that the plaintiff's claims are barred as a result of the settlement of his grievances through the Union. In Alexander v. Gardner-Denver Co., 415 U.S. 36, 49, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974), the Supreme Court recognized that an employee's right to file a federal lawsuit under Title VII will not be foreclosed if he "first pursues his grievance to final arbitration under the terms of a collective-bargaining agreement." In reaching this conclusion however, the court recognized that "presumably an employee may waive his cause of action under Title VII as part of a voluntary settlement. . . ." Id. at 52. In making such a determination the trial court must "determine at the outset that the employee's consent to the settlement was voluntary and knowing." Id. at 52 n.15. Waiver of such federal remedial rights will not be lightly inferred. Watkins v. Scott Paper Co., 530 F.2d 1159, 1172 (5th Cir.), cert. denied, 429 U.S. 861, 50 L. Ed. 2d 139, 97 S. Ct. 163 (1976). Once an individual executes a valid settlement agreement, he cannot subsequently seek both the benefit of the agreement and the opportunity to pursue the claim he agreed to settle. Wilmes v. United States Postal Serv., 810 F.2d 130, 132 (7th Cir. 1987), quoting, Kirby v. Dole, 736 F.2d 661, 664 (11th Cir. 1984) Melendez v. Horizon Cellular Tel. Co., 841 F. Supp. 687, 691 (E.D. Pa. 1994).

 The circuits do not appear to be in agreement as to the standard to be applied when determining whether a general release was "knowing and voluntary." Torrez v. Public Serv. Co., 908 F.2d 687, 689 (10th Cir. 1990). The majority of the circuits, including the Second Circuit, consider a totality of the circumstances when assessing a plaintiff's knowledge and voluntariness. Bormann v. AT & T Communications, Inc., 875 F.2d 399, 403 (2d Cir.), cert. denied, 493 U.S. 924, 107 L. Ed. 2d 272, 110 S. Ct. 292 (1989) (applying the Age Discrimination in Employment Act); Beadle v. City of Tampa, 42 F.3d 633, 635 (11th Cir.), cert. denied, 515 U.S. 1152, 132 L. Ed. 2d 846, 115 S. Ct. 2600 (1995); Torrez, 908 F.2d at 689-90; Stroman v. West Coast Grocery Co., 884 F.2d 458, 462 (9th Cir. 1989), cert. denied, 498 U.S. 854, 112 L. Ed. 2d 117, 111 S. Ct. 151 (1990); Cirillo v. Arco Chem. Co., 862 F.2d 448, 451 (3d Cir. 1988); Rogers v. General Elec. Co., 781 F.2d 452, 456 (5th Cir. 1986). Factors considered in this analysis include: (1) the plaintiff's education and business experience; (2) the amount of time the plaintiff has access to the agreement before signing it; (3) the role of the plaintiff in deciding the terms of the agreement; (4) the clarity of the agreement; (5) whether the plaintiff consulted with or was represented by an attorney; and (6) how the consideration given compares with the amount of recovery otherwise sought. Bormann, 875 F.2d at 403. This list is not exclusive. Id.

 Other courts apply ordinary contract principles, focusing on the language of the settlement agreement. See O'Shea v. Commercial Credit Corp., 930 F.2d 358, 362 (4th Cir. 1991), cert. denied, 502 U.S. 859, 116 L. Ed. 2d 139, 112 S. Ct. 177 (1991); Runyan v. National Cash Register Corp., 787 F.2d 1039, 1044 n.10 (6th Cir.), cert. denied, 479 U.S. 850, 93 L. Ed. 2d 114, 107 S. Ct. 178 (1986); Pilon v. University of Minn., 710 F.2d 466 (8th Cir. 1983). However, as the Tenth Circuit recognized in Torrez, although cases such as Runyan and Pilon profess to apply general contract principles, the courts nevertheless considered other outside factors in reaching their conclusions. Torrez, 908 F.2d at 689 n.2, citing, Coventry v. United States Steel Corp., 856 F.2d 514, 522 n.9 (3d Cir. 1988).

 Setting forth these standards however, only begins the analysis. In the arbitration context, the Fifth Circuit has recognized that where a plaintiff; who was represented by counsel, settles his union grievances for an award of back pay, he may not then seek the same award in an employment discrimination lawsuit. See Strozier v. General Motors Corp., 635 F.2d 424, 426 (5th Cir. 1981). According to the Strozier court, the "plaintiff's agreement to and acceptance of the settlement forecloses the present lawsuit with respect to the . . . disciplinary actions, even though the statutory claims [Title VII and 42 U.S.C. § 1981] were not expressly covered. The remedy sought and settled was the precise remedy sought in this lawsuit." Id. In other words, the plaintiff may not later request additional monetary relief simply because he is dissatisfied with his settlement. Id. accord Pitchford v. Kitchens, 873 F. Supp. 167, 172 (E.D. Ark. 1994); (settlement of grievance arbitration precludes subsequent discrimination claim seeking the same remedy); Anderson v. Frank, 755 F. Supp. 187 (E.D. Mich. 1991) (granting summary judgment to Post office where plaintiff-postal worker settled grievance, and where subsequent Title VII action sought similar relief).

 At first blush, this principle appears straightforward. However, in Perez v. State of Maine, 760 F.2d 11 (1st Cir. 1985), the plaintiff, Nazario Perez, filed suit in state court alleging unlawful employment discrimination. The case was settled with an agreement in which Perez expressly discontinued the state court action in "full and final settlement of this matter." Id. at 12 (emphasis in original). He subsequently filed suit in federal court under Title VII, 42 U.S.C. § 2000e et seq. Then Circuit Judge Stephen Breyer, writing for the panel, affirmed the decision of the district court finding the language of the settlement agreement ambiguous, thereby rendering a determination of its meaning was a proper issue for trial. Id. In reaching this conclusion, the First Circuit recognized the holding in Strozier, but found that in the case at bar, the plaintiff "received significantly less from the settlement" than he would have attained with a "complete legal victory." Id. at 12-13.

 With these cases in mind, the Court turns to the terms of the settlement of Reidy's grievances. The disposition of Reidy's grievances is documented by several forms which are each entitled "Pre-Arbitration Agreement." The ...

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