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September 6, 2001


The opinion of the court was delivered by: Seybert, District Judge.


Robert S. Amendola ("plaintiff") commenced this action against his employer William Henderson, Postmaster General of United States Postal Service (the "Postal Service" or "defendant") under the Rehabilitation Act of 1973 (the "Rehabilitation Act" or the "Act"), as amended, 29 U.S.C. § 701 et seq., alleging unlawful employment discrimination and retaliation. Specifically, plaintiff claims he requested, and was denied, a "reasonable accommodation" for the period commencing on April 9, 1993 through his post-operative recovery from "foot surgery." Second Amended Verified Complaint ("Am. Compl.") ¶¶ 17-18. In particular, plaintiff claims the Postal Service denied his request to elevate his foot while performing his job duties. Am. Compl. ¶ 17. Additionally, plaintiff claims the Postal Service further violated the Act by retaliating against him for pursuing a prior complaint of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Am. Compl. ¶ 34.

Pending before the Court is defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. In support of the motion, Defendant argues: (1) plaintiff has failed to establish a prima facie claim for disability discrimination under the Rehabilitation Act; (2) plaintiff cannot establish the essential elements of a retaliation claim; (3) even if plaintiff could establish a prima facie claim of either discrimination or retaliation, plaintiff cannot refute legitimate, nonpretextual reasons for the challenged action; (4) plaintiff's claims of discrimination prior to March 23, 1993, are untimely and should be dismissed; and finally (5) plaintiff cannot pursue either claim because he successfully pursued the Postal Workers' Union Grievance Procedures and has been duly compensated for the damages he claims in this action.*fn1

For the reasons stated below, defendant's motion for summary judgment is granted.


On June 13, 1997, plaintiff filed the present action naming as defendants, Marvin T. Runyon,*fn2 Postmaster General of the United States ("Postmaster General") and two postal service employees, William Balkin and Ernest Hupfer. Thereafter, plaintiff filed an Amended Verified Complaint on March 26, 1998. Subsequently, on July 7, 1998, plaintiff filed a Second Amended Verified Complaint correcting procedural defects and naming the Postmaster General as the sole defendant.


The following statement of facts is primarily provided by the parties' respective Local Civil Rule 56.1 Statements and exhibits attached thereto.

I Plaintiffs History with the Postal Service

Plaintiff began working at the United States Postal Service in 1987. Defendant's Local Civil Rule 56.1 Statement ("Def. 56.1") ¶ 2; Matthews Decl., Ex. 1 (Deposition of Robert S. Amendola ("Pl Dep.")) at 54-55. Plaintiff filled out an employment application on January 30, 1987 and began working as a part-time flexible distribution clerk on February 28, 1987. Id. According to the "Medical Examination and Assessment Form" attached to plaintiffs employment application, there are certain functional requirements for his position as a distribution clerk, including inter alia: repeated bending; climbing (legs only and with the use of both arms and legs); and the ability for rapid mental and muscular coordination simultaneously. Def. 56.1 ¶ 3; Matthews Decl., Ex. 2B (Application for Employment); Pl. Dep. at 102-05. This form was filled out by plaintiff and a Postal Service Doctor who conducted a medical examination and assessment of plaintiff in connection with plaintiffs employment application. Def. 56.1, ¶ 4; Pl. Dep. at 10102. During the examination, plaintiff denied having any restrictions of his functional abilities. Id. However, plaintiff did mention that he had corrective surgery on his toes in 1972 while serving in the United States Air Force in Japan. Matthews Decl., Ex. 2B (Medical Examination and Assessment Form); Def. 56.1, ¶ 5; Pl. Dep. at 101. Plaintiff further indicated that the 1972 surgery "corrected" the problem. Id. At the commencement of plaintiff's employment, his toes did not interfere with any of the required functional abilities necessary to perform his job as a distribution clerk. Def. 56.1, ¶ 6; Pl. Dep. at 101.

Relatively soon after plaintiff began working for the defendant, he suffered a hip injury. It is disputed whether this injury was the result of an arthritic hip condition, Def. 56.1 ¶ 7, or just a workrelated hip injury causing plaintiff discomfort while he worked. Pl. 56.1 ¶ 7; see also Pl. Dep. at 107-08. On September 18, 1987, plaintiff was seen by Postal Service physician Yvonnecris S. Veal, M.D., for the hip problem, at which time he requested to be placed on "light duty" status. Def. 56.1 ¶ 8; Pl. 56.1 ¶ 8; Pl. Dep. at 111-13. Upon concluding a physical examination of plaintiff, Dr. Veal placed plaintiff on restricted duty, as opposed to full duty, which fell within the definition of "light duty"*fn3 as opposed to "limited duty"*fn4 under the pertinent Postal Service Regulations. Def. 56.1 ¶¶ 9-10; Pl. 56.1 ¶¶ 9-10; see also Veal Decl. ¶ 10-11. As a result, plaintiff was limited to sedentary duties, with very little walking or standing, no lifting over 10 pounds, and plaintiff was expected to use a cane for ambulation. Def. 56.1 ¶ 10. Plaintiff subsequently became a full-time employee in 1988. Def. 56.1 ¶ 11; Pl. 56.1 ¶ 11.

Following the hip injury, plaintiff was examined periodically by Postal Service physicians between September 1987 and June 1991. Def. 56.1 ¶ 12. On June 17, 1991, plaintiff was examined by Dr. Veal who observed that plaintiff was in "very good condition" and walking without a limp. Def. 56.1 ¶ 13. As a result, Dr. Veal altered plaintiffs "Fit For Light Duty" status to allow lifting up to 30 pounds, and limited standing until the Postal Service received a "Fit For Duty" release from plaintiff's primary medical doctor. Def. 56.1 ¶ 14; Veal Decl. ¶ 15. On June 24, 1991, defendant received such a letter from Dr. Martin L. Racanelli, plaintiffs treating physician. Def. 56.1 ¶ 15; see also Matthews Decl., Ex. 2E (Letter by Dr. Racanelli, dated June 24, 1991). On July 8, 1991, Dr. Veal allowed plaintiff to return to full duty and notified Defendant that plaintiff was "Fit For Duty." Def. 56.1, ¶ 16; Matthews Decl., Ex. 2E at p. 1. Plaintiff remained on "Fit For Duty" status until he suffered a job-related injury to his wrist and knee while working on May 29, 1995. Def. 56.1 ¶ 17. Following the wrist and knee injury, plaintiff was placed on "Limited Duty" status. Id. Plaintiff never visited the Postal Service medical department for complaints regarding his toes and does not recall whether he received any treatment for his toes between the time of his 1973*fn5 surgery and 1993 surgery. Def. 56.1 ¶ 18-19; Pl. 56.1 ¶ 18-19.

II Plaintiff's April 7, 1993 Surgery and Post Operative Recovery

In or about the third week of March, 1993, plaintiff notified his supervisor, Ernest Hupfer ("Hupfer"), that he was going to have surgery on his right foot and then later on his left foot. Def. 56.1 ¶ 22. On March 23, 1993, plaintiff notified Hupfer that his scheduled surgery was for Wednesday, April, 17, 1993, and that he would return to work as soon as possible (as long as he could stay off of his right leg), but that he may be out for as long as a week. Def. 56.1 ¶ 23; Matthews Decl., Ex. 2G (Plaintiff's EEO Investigative Affidavit, dated March 14, 1994, ("Pl. EEO Aff.")). Hupfer responded by reminding plaintiff to get documentation of the surgery and documentation that he could return to work. Id.

Thereafter, plaintiff filled out two Form 3971s,*fn6 and requested the following: (1) annual leave vacation from March 27, 1993, through April, 4, 1993, and (2) leave without pay on Monday, April 5, 1993. Def. 56.1 ¶ 24. Plaintiff did not return to work until Wednesday April, 7, 1993. Def. 56.1 ¶¶ 25-27; see also Matthews Decl., Ex. 3. Subsequently, plaintiff requested .4 hours of leave on April, 7, 1993, so that he could leave early for his 2:00 p.m. toe surgery. Def. 56.1 ¶ 27; Pl. 56.1 ¶ 27.

On April 7, 1993, plaintiff's podiatrist performed surgery on two or three toes of plaintiff's right foot. Def. 56.1 ¶ 28; Pl. Dep. at 254-55. The surgery lasted a little over an hour, and consisted of inserting pins into plaintiffs toes, which extended approximately 3/4 inches beyond the tips of the toes. Def. 56.1 ¶ 28; Pl. Dep. at 227. The tips of the pins were corked to prevent injury to plaintiff while walking. Id. Following the surgery, plaintiff was given an anti-inflammatory medication to be taken seven to fourteen days following the surgery. Def. 56.1, ¶ 29; Pl. Dep. at 21920. Plaintiff determined he could perform his duties as a distribution clerk so long as he could elevate his foot. Def. 56.1 ¶ 30; Pl. Dep. at 233. On the day of the surgery, plaintiffs doctor advised him not to return to work until he was able to "work comfortably." Def. 56.1 ¶ 32; Pl. Dep. at 233. On April 8, 1993, at 3:50 a.m., plaintiff telephoned Hupfer and "notified him that [he] was in pain and that [his] right foot was swollen from the operation [he] had on the afternoon on 4-7-93 at 2:00 p.m." Def. 56.1 ¶ 33; Pl. Dep. at 297; Pl. EEO Aff. at 4. Plaintiff also notified Hupfer that his surgeon recommended he remain out of work for at least one week. Def. 56.1 ¶ 33; Pl. EEO Aff. at 4.

Plaintiff returned to work on April, 9, 1993. Def. 56.1 ¶ 34; Pl. EEO Aff. at 5-6. On that day, plaintiff provided Hupfer with a "Disability Certificate", dated April 7, 1993, issued by Comprehensive Foot Specialists, P.C., which read: "Surgery performed 4/7/93 . . . [Patient] unable to stand for long period of time, no more than 1/2 hour at a time." Def. 56.1 ¶ 36; Matthews Decl., Ex. 2I (Disability Certificate dated Apr. 7, 1993); Pl. Dep. at 325-26. While defendant claims the Disability Certificate made "no mention of plaintiff needing to elevate his foot," (Def. 56.1 ¶ 36), plaintif claims there was a handwritten note attached to the Disability Certificate advising that Plaintiff was to elevate his foot Pl. 56.1 ¶ 36; Pl. Dep. at 339. No such note has been provided to the Court.

During his first day back to work following his toe surgery, plaintiff informed Hupfer that he "was in pain, [his] foot was swollen larger and [he] had taken a second pain killer in 2 1/2 hours time." Def. 56.1 ¶ 37; Pl. EEO Aff. at 5. According to plaintiff, "it was obvious to [himself] and employees next to [him] that [he] should not be at work." Id. Plaintiff asked Hupfer if he could "do nixie mail stamping or anything . . . with [his] leg elevated." Def. 56.1 ¶ 37; Pl. EEO Aff. at 6. Hupfer responded that "if [he] was unable to sit and throw mail, [he] should go home on sick time." Id.

On April 10, 1993, plaintiff telephoned Hupfer and informed him that he was "still in pain, but would be able to come to work if [he] could elevate [his] right leg at work." Def. 56.1 ¶ 38; Pl. EEO Aff. at 6. Hupfer advised plaintiff to stay home and to bring in additional documentation to support sedentary duties or the extent of the duties he could perform. Id. During their conversation, plaintiff claims Hupfer refused to discuss accommodations for plaintiffs foot. Pl. 56.1 ¶ 38; Pl. EEO Aff. at 7.

Plaintiff returned to work on April 12, 1993, and explained to Hupfer that his doctor informed him that "he had returned to work too early, and acted against [the doctor's] advice, which was causing the increased pain, throbbing, and swelling. The doctor was also concerned with the large amount of draining going on." Def. 56.1 ¶ 40; Pl. EEO Aff. at 8. After working about four hours, plaintiffs foot became swollen and he was in pain again, so he asked Hupfer if he could elevate his leg for "20 minutes or so to relieve the pain and swelling." Def. 56.1 ¶ 41; Pl. EEO Aff. at 8. Hupfer denied plaintiffs request allegedly because of safety and operational concerns. Def. 56.1 ¶ 42; see also Matthews Decl., Ex. 5 (Hupfer EEO Investigative Affidavit dated May 2, 1994, ("Hupfer EEO Aff.")) at 3-5. According to plaintiff, upon denying Plaintiffs request to elevate his leg, Hupfer did not indicate that any operational or safety concerns compelled him to deny plaintiffs request. Pl. 56.1 ¶ 42; PL. EEO Aff. at 9. Hupfer additionally informed plaintiff to go home "if he could not work and to use sick time." Def. 56.1 ¶ 43; Pl. EEO Aff. at 8. See also Matthews Decl., Ex. 4 (Deposition of Ernest Hupfer ("Hupfer Dep.")) at 28.

That afternoon, plaintiff went to his follow-up medical appointment and was told he "should not have returned to work so soon, and should remain home [un]til Wednesday, and only if [plaintiff] was up to it could [he] return earlier and, if so, on limited duty in a seated position only." Def. 56.1, ¶ 44; Pl. Dep. at 336.

Plaintiff did not work on Tuesday, April 13, 1993, because it was his day off. Def. 56.1, ¶ 45. Plaintiff did not work on Wednesday, April 14, 1993. Def. 56.1, ¶ 46; Pl. Dep. at 338. Plaintiff alleges his absence was due to an accident he had at home. Pl. 56.1, ¶ 46. Finally, on April 15, 1993, plaintiff returned to work and gave Hupfer another Disability Certificate, dated, April 12, 1993, issued by Comprehensive Foot Specialists, P.C. and signed by Richard Boccio, M.D., D.P.M., which read, "Mr. Amendola must be in a seated position at work until further notice. This is due to foot surgery." Def.'s 56.1, ¶ 47; Matthews Decl., Ex. 2I. Plaintiff alleges there was a handwritten note attached to the Disability Certificate stating Plaintiff must elevate his foot. Pl. 56.1, ¶ 47; Pl. Dep. at 339-40. However, no such note has been provided to the Court.

Thereafter, Hupfer requested that plaintiff provide additional medical information regarding "the nature of the illness or injury, a prognosis and diagnosis and date of return to duty," because the Disability Certificate, dated April 12, 1993, did not provide sufficient information regarding plaintiff's condition. Def. 56.1 ¶ 48; Hupfer EEO Aff. at 6-7; Hupfer Dep. at 62. By April 15, 1993, plaintiffs leg was no longer swollen and he informed Hupfer he could throw mail. Def. 56.1 ¶ 49. While defendant alleges plaintiff "sat in an office all day and was given a few work assignments," id., plaintiff alleges he "was assigned to the `VOMA' room and ordered to sit and not do any work," and that "[d]uring eight hours of April 15, 1993, no work was assigned Plaintiff despite Plaintiff's ability to work." Pl. 56.1 ¶ 49; Pl. EEO Aff. at 12.

Plaintiff returned to work the following day, April 16, 1993, and presented a third doctor's note to Hupfer. Def. 56.1, ¶ 51. The note, issued by Comprehensive Foot Specialists, P.C., and dated April 15, 1993, stated:

Our patient Mr. Amendola had surgery done on 4/7/93. The surgery was a hammered toe 2nd digit right foot. Because of post operative pain & swelling patient must remain off foot for the post operative period. Patient is able to resume ...

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