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. ¶
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
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
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.
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
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 ...