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April 26, 2004.

DAVID TROBIA, Plaintiff,
WILLIAM J. HENDERSON, Postmaster, United States Postal Service, Defendant

The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District



Plaintiff, David Trobia ("plaintiff or "Trobia"), a long-time employee of the United States Postal Service ("USPS") brings this action under § 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("the Act"), claiming that the USPS discriminated against him on account of a medical disability and retaliated against him for complaining about such treatment. The case was bifurcated and tried to the Court for a week, from November 3 to November 10, 2003, solely on issues of liability. The Court heard approximately eighteen witnesses, received numerous documents and several videos bearing on issues in the case. The parties also submitted post-trial memoranda. This decision constitutes my Findings of Fact and Conclusions of Law. Fed.R.Civ.P. 52(a). FACTUAL BACKGROUND AND PLAINTIFF'S CLAIMS

  Plaintiff has been employed by the USPS in various capacities since 1974, and as a clerk since 1983. Plaintiff has had a lengthy list of medical problems over the years which necessitated extensive absences from his employment with the USPS. In 1988, because of a non-work related injury, Trobia had a laminectomy. In 1991, he had another surgery to correct a disc protrusion and was unable to work for several months until he returned in June 1991. Thereafter, Trobia continued to have problems and was restricted to light duty at the USPS from 1991 through May 13, 1992, when he suffered a reoccurrence of his back problems. Eventually, on August 25, 1993, Trobia had surgery which involved a posterior lateral spine fusion. Trobia did not return to work from that procedure for almost a year, until July 25, 1994, when he returned part-time. He did not return to full-time employment until September 1994. This medical history is not disputed and plaintiff makes no claims concerning disability discrimination for any of these matters.

  From July 1994 to January 12, 1996, Trobia worked at the Jefferson Road Distribution Center in Rochester, New York as a clerk in what the parties refer to as the Box Section. This job was a limited duty position that was created by the USPS to fit within his post-surgical medical restrictions. It is clear, and I so find, that Trobia worked without complaint in that limited duty position, and he was happy there. Trobia's removal from that position is the precipitating event that is at the heart of this lawsuit.

  In the Fall of 1995, the USPS had begun discussions with union representatives and management about creating several limited duty positions on each shift to assist disabled employees. During these meetings, Trobia's name was mentioned and the USPS determined generally that Trobia would be moved to a new position out of the Box Section sometime in the near future. On January 12, 1996, however, Trobia was abruptly removed from the Box Section because he had an altercation with other Box Section employees. This was not the first incident involving disagreements between the Box Section employees and Trobia. Several employees had complained in the past to Trobia's supervisors about conflicts they had with Trobia and about his attitude on the job. The altercation on January 12 brought the matter to a head and Trobia was removed from the Box Section at that time. Trobia's removal came sooner than the USPS had originally anticipated and it was placed in the position of finding a new limited duty position for plaintiff at that time.

  Plaintiff repeatedly asked that the USPS to return him to his position in the Box Section. The USPS denied those requests. Trobia claims that the USPS's failure to return him to the Box Section constituted a failure to "accommodate" his disability and, therefore, in Trobia's view, violated the Act. Further, Trobia claims that the USPS violated the Act by transferring him to a new job where he worked on a "handicapped case" pitching mail because it did not fit within his medical restrictions. Plaintiff worked in this position from January 1996 until June 1997. Plaintiff alleges that when he informed the USPS that the new position exacerbated his back condition and provided supporting medical proof, the USPS failed to provide him reasonable accommodation and retaliated against him by refusing to offer him a new position for more than a year.

  Plaintiff seeks relief against the USPS under the Act based on the failure to accommodate and for retaliation. As such, plaintiff has the burden to show that: (1) his employer is subject to the Act; (2) he was "disabled" within the meaning of the Act; (3) he was qualified to perform essential functions of the job, with or without a reasonable accommodation; and (4) his employer had notice of the plaintiff's disability and failed to provide a reasonable accommodation. Stone v. City of Mt. Vernon, 118 F.3d 92, 96-97 (2d Cir. 1997); Bonner v. New York State Elec. & Gas Corp., 195 F. Supp.2d 429, 434 (W.D.N.Y. 2002). In order to establish a claim of retaliation, Trobia must show that: (1) he engaged in an activity protected by the Act; (2) the USPS was aware of this activity; (3) the USPS took adverse employment action against him; and (4) a causal connection exists between the alleged adverse action and the protected activity. See Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir. 2001).

  There is no question in this case that the USPS is subject to the Act. There are, however, legitimate issues as to the other elements of plaintiff's claims. The trial focused principally on issues concerning whether the USPS adequately "accommodated" Trobia consistent with the Act and governing regulations, and whether the USPS retaliated against plaintiff for requesting an accommodation or complaining of discrimination.

  After hearing the evidence at trial, I find that plaintiff carried his burden of proving that he was "disabled" as that term is defined under the Act. I find, though, that plaintiff was not qualified to perform the essential functions of the Box Section job to which he sought a transfer. I also find that the USPS reasonably accommodated plaintiff in his employment by allowing him to work on the handicapped case and did not otherwise retaliate against him.


 I. The Rehabilitation Act

  The Act protects individuals with disabilities from discrimination in employment solely because of the disability, and provides: No otherwise qualified individual with a disability . . . 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 receiving Federal financial assistance. . . .

 29 U.S.C. § 794(a). An employer discriminates under the Act by, inter alia, not making a "reasonable accommodation to the known physical or mental limitations" of an otherwise qualified disabled employee, unless the employer can show that the accommodation would impose "an undue hardship" on the operation of its program. 45 C.F.R. § 84.12(a).

  The standards used to determine whether an employer has violated the Rehabilitation Act are identical to those applied under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12111 et seq. See 29 U.S.C. § 794(d) (1992 amendment that applied the standards of the ADA to complaints of discrimination to the Rehabilitation Act); Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999) (the Rehabilitation Act and the ADA impose "identical" requirements).*fn1

 II. Definition of "Disability" Under The Act

  The first element plaintiff must prove is that he is disabled within the meaning of the Act. The Act defines an "individual with a disability" as a person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such impairment, or (iii) is regarded by his employer as having such an impairment. 29 U.S.C. § 705(20)(B). Here, plaintiff is relying on the first definition of disability.

  In Bragdon v. Abbott, 524 U.S. 624, 631 (1998), the United States Supreme Court established a three-part test for determining whether an impairment meets the definition of a "disability" under both the ADA and the Rehabilitation Act. First, a court must determine whether plaintiff has a physical impairment. Next, the court must identify the "life activity" involved and determine whether it constitutes a "major life activity" as defined by the Act. Id. at 637. Third, the court must determine "whether the impairment substantially limited the major life activity." Id. at 639.

  In this case, I do not believe that the USPS disputes the fact that Trobia has a physical impairment related to his back.*fn2 Whether the USPS concedes that or not, I find as fact, based on the record evidence, that Trobia does suffer from such an impairment. The important question, though, is whether this impairment affects a major life activity, and if so, whether the effect is "substantial".

  The Rehabilitation Act does not define major life activity with great specificity but lists general functions such as "caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working" as examples of major life activities. See 45 C.F.R. § 84.3(j)(2)(ii). The list promulgated there is illustrative and not exhaustive. Bragdon, 524 U.S. at 639. Only significant impairments enjoy the protection of the Act and the ADA. As the Second Circuit noted:

  we have emphasized that `[t]he need to identify a major life activity that is affected by the plaintiff's impairment plays an important role in ensuring that only significant impairments will enjoy the protection of the ADA' (citations omitted). Colwell v. Suffolk Co. Police Dep't, 158 F.3d 635, 642 (2d Cir. 1998). With this in mind, the Second Circuit has identified other major life activities as sitting, standing, lifting, and reaching. See Ryan v. Grae & Rybicki, 135 F.3d 867, 870 (2d Cir. 1998) (quoting U.S. Equal Employment Opportunity Commission, Americans with Disabilities Act Handbook I-27 (1992)); Colwell, 158 F.3d at 642; see also 29 C.F.R.Pt. 1630 App. Section 1630.2(i) (identifying sitting, standing, lifting, and reaching as major life activities).

  In both the amended complaint (Dkt. # 10, ¶ 21) and plaintiff's pretrial statement (Dkt. #38) it is suggested that plaintiff's impairment affected his ability to walk, sit and stand for prolonged periods.*fn3 Plaintiff also testified at trial about how his back impairment substantially affected his ability to do these things. (Tr. 15-19).*fn4 I find as a fact that plaintiff has identified the ability to walk, sit and stand as the major life activities that his impairment affects. I further find as a conclusion of law that all are major life activities within the meaning of the Act. See Colwell, 158 F.3d at 643; Ryan, 135 F.3d at 870.

  The final requirement of Bragdon, and perhaps the most important, is whether the impairment substantially limits a major life activity. Clearly, every impairment affects a major life activity to some degree, but the statute is implicated only if the impairment substantially limits such activity. Because the Rehabilitation Act regulations provide no guidance, courts look to the EEOC' s regulations ...

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