United States District Court, W.D. New York
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
DECISION AND ORDER
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.
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
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
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
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 implementing the ADA to determine whether an activity
is substantially limited. See Colwell, 158 F.3d at 643.
Those regulations define "substantially limits" as "(i) [u]nable to
perform a major life activity that the average person in the general
population can perform; or (ii) [s]ignificantly restricted as to the
condition, manner or duration under which an individual can perform a
particular major life activity as compared to the condition, manner, or
duration under which the average person in the general population can
perform that same major life activity." 29 C.F.R. § 1630.2(j)(1). The
regulations also instruct that courts should consider certain factors
regarding the impairment to determine whether it is substantially
limiting, including its nature and severity, its duration or expected
duration, and its permanent or long term impact. Id at §
1630(j)(2); Colwell, 158 F.3d at 643; Ryan, 135 F.3d at
As discussed below, I find that the evidence demonstrates that
plaintiff had an impairment that significantly restricted the condition,
manner or duration under which he could sit, stand, and walk as compared
to the average person in the general population.
29 C.F.R. § 1630.2(j)(1)(ii).
Medical Evidence of Plaintiff's Disability
Much of the trial testimony centered on plaintiff's medical condition,
the reports of his physicians, and the USPS's response to those matters.
Dr. Sewell Miller and Dr. Thomas Rodenhouse performed a spinal fusion on
Trobia on August 25, 1993. Plaintiff's back condition caused by the
spinal fusion is the basis for plaintiff's claim of disability under the
Miller was Trobia's principal treating physician until Miller retired
June 1996, at which point Dr. Rodenhouse was responsible for plaintiff's
care. Dr. Miller testified that a spinal fusion requires six to twelve
months for recovery. (Tr. 366). Dr. Miller's testimony and his
contemporaneous reports depict a patient who recovered quite well from the spinal
fusion, with few restrictions. About six months after the surgery, Miller
wrote to the USPS on January 15, 1994. (Ex. 484). Dr. Miller described
Trobia's condition as "progressing well" and opined that Trobia should be
able to return to work in July, 1994 "based on his back's stability and
rate of healing." He gave Trobia permission to do leg strengthening and
upper extremity exercises. He stated that Trobia would never be allowed
to do any "significant heavy lifting" but that he should be able to carry
out most routine activities. Five months later, Dr. Miller wrote to the
USPS again, by letter dated July 8, 1994. (Ex. 485). In that letter, he
described Trobia has "coming along nicely," and noted that he was walking
around "with virtually no back or leg pain." He also noted that Trobia
had "good flexion/extension at the waist."
Trobia returned to work part-time on July 25, 1994, to a limited light
duty position in the Box Section. He had a 10 lbs. lifting restriction
with intermittent sitting, walking, bending, squatting, climbing,
kneeling, and standing required. On September 20, 1994, Dr. Miller wrote
to USPS and authorized Trobia to return to work full-time. (Ex. 406). Dr.
Miller noted that Trobia may have some "aches and pains," but that he
should do well at work. He described Trobia as having "a moderate
permanent partial disability."
About four months later, on January 26, 1995, Dr. Miller wrote to the
USPS and advised that Trobia "has recovered nicely." He still had "some
aches and pains," but they were not as severe as they had been. He
described Trobia has having learned to work with his condition and was
"functioning well." He also noted that Trobia was able to play golf and
he indicated he would see Trobia for follow-up in about a year. (Ex. 13). It was only when plaintiff was removed from his position in the Box
Section in January 1996, that plaintiff complained to Dr. Miller and
officials at USPS that he had difficulties in his employment. In
connection with Trobia's removal from the Box Section, Cathleen Taylor, a
Human Resource Specialist, wrote to Dr. Miller and requested his comments
on the suitability of Trobia's new job as a modified distribution clerk.
Dr. Miller responded a few days later, in a one-page letter dated
January 15, 1996. (Ex. 409). Several things are notable about this
letter. The letter notes that Miller had not seen Trobia for over a year.
He noted that Trobia had been working steadily. He also noted that based
on x-rays, the fusion procedure looked good and that Trobia was "having
minimal problems with the back." Id. Miller further stated that
he "tend[ed] to agree" with plaintiff that he may have "problems" in the
new job, as it was described by plaintiff. He thought that plaintiff
should stay in his current position in the Box Section. Id.
After the USPS received Miller's letter, Miller was advised that the
prior job in the Box Section was no longer available and Taylor asked
Miller what modifications would make the new job offer appropriate.
(Ex. 412). Trobia was advised by letter of the same requirement. (Ex.
411). In response, Dr. Miller submitted a two-paragraph letter on
February 7, 1996, and this time included a work restriction evaluation
which limited plaintiff to sitting for a maximum of five to ten minutes,
to standing for zero to ten minutes, and to walking for no more than
twenty minutes. (Ex. 413). Dr. Miller did not speak specifically to the
new job, but indicated that Trobia must be able to change positions, move
around, and not be required to sit for a prolonged period. He indicated
that Trobia could walk as long as he can change positions frequently, but
cannot stand very long. Id. In April, 1996, Miller again wrote to the USPS and claimed that Trobia
suffers if he has to lean forward and pitch mail. (Ex. 417). Miller again
stated that intermittent sitting, walking and standing were indicated and
that plaintiff was restricted to lifting 10-20 pounds. At this time,
Miller also restricted plaintiff to working four hours a day in light of
plaintiff's recurrent back problems. (Ex. 417).
Dr. Rodenhouse gave plaintiff these same restrictions in a November
1996 work restriction evaluation, including intermittent sitting,
walking, and standing, and a four-hour work day. (Ex. 424). Further, in
March 1997, Dr. Rodenhouse informed the USPS that plaintiff could no
longer pitch mail at all because he had begun to experience new problems
in his cervical spine with radiation of pain down both arms. (Ex. 429).
Dr. Rodenhouse also noted that plaintiff still needed to be able to
change positions frequently because he was "significantly restricted" in
his ability to sit, stand, and walk. Id.
At trial, plaintiff testified that, at all times relevant to his
claims, he had great difficulty standing in one place for five, ten, or
fifteen minutes at a time without experience pain, and that after
one-half hour of walking, he needed to sit down. (Tr. 15-16). He further
testified that he has "trouble with prolonged sitting . . . [and] just
being sedentary starts to affect [his] back and [he] start[s] to become
really uncomfortable" and has to stand. (Tr. 16).
Plaintiff's testimony about the effects that his back impairment had on
his ability to sit, stand, and walk is corroborated by the medical
evidence that the USPS received from Drs. Miller and Rodenhouse in 1996
and 1997. (Exs.413; 417; 424; 428). Further, Dr. Robert Knapp, a
neurologist who conducted an independent medical evaluation of plaintiff
in December 1996 at the request of the USPS, found that plaintiff had
many restrictions, including an inability to sit for more than ten minutes, at which time he needed to ambulate for five or ten
minutes and then sit again. (Ex. 428).
Conflicting evidence was presented at trial that plaintiff's
impairments did not always significantly affect these major life
activities. Further, it is clear that representatives of the USPS did not
believe that Trobia's maladies were of such a nature that they came
within the purview of the Act. (Tr. 690-691). The USPS was aware that
plaintiff was performing activities outside the work place that seemed
inconsistent with the claimed work restrictions. For example, John
Heberle, Manager of Distribution Operations at the Jefferson Road
Distribution Center, reported that on April 20, 1996, he personally
observed Trobia sit through an entire two-hour movie without once getting
up. That same night, he observed Trobia sitting at dinner for over an
hour. (Ex. 53). USPS was suspicious enough of plaintiff that they
conducted surveillance of plaintiff at a later time and those tapes of
plaintiff's activities were received in evidence. Those tapes showed
plaintiff engaging in various physical activities, including playing
Moreover, in a physical activities questionnaire that plaintiff
completed on September 11, 2001, Trobia lists many activities that he was
able to perform in certain circumstances. (Ex. 440). Concerning golf,
Trobia admitted playing golf "a couple of times a week." Id.
Despite this conflicting evidence, I find that plaintiff has presented
sufficient evidence that he was disabled within the meaning of the Act.
It is clear that plaintiff's physicians, as well as an independent
medical examiner, consistently were of the opinion that plaintiff's
abilities to sit, stand, and walk were significantly restricted. I find
as a matter of law that, when compared to the average person in the
general population, the condition, manner and duration under which
plaintiff could sit, stand, and walk were significantly restricted.
29 C.F.R. § 1630.2(j)(1)(ii). As a result, plaintiff has met his
burden of proving that he was disabled within the meaning of the Act.
See E.E.O.C. v. Walden, No. 98 Civ. 2270, 2002 WL 31011859, *17 (S.D.N.Y.
Sept. 9, 2002) (plaintiff who was unable to sit longer than forty-five
minutes was "substantially limited" in the major life activity of sitting
and was considered disabled under ADA); Meling v. St. Francis
Coll., 3 F. Supp.2d 267, 273-74 (E.D.N.Y.1998) (plaintiff who could
not sit or stand more than ten to fifteen minutes was "substantially
limited" in the major life activities of sitting and standing and
disabled under ADA).
III. "Qualified" Person With A Disability Under The Act
To prevail on his Rehabilitation Act claim, plaintiff next must show
that he was qualified to perform the essential functions of the job, with
or without a reasonable accommodation. 45 C.F.R. § 84.3(k)(1);
see also Jackan v. New York State Dep't of Labor, 205 F.3d 562,
566-67 (2d Cir. 2000); Borkowski v. Valley Cent. Sch. Dist.,
63 F.3d 131, 137 (2d Cir. 1995). Plaintiff must show either that he "can
meet the requirements of the job without assistance, or that an
accommodation exists that permits [him] to perform the job's essential
functions." Borkowski, 63 F.3d at 138.
I find that plaintiff did not meet this burden with respect to the Box
Section position. Trobia's duties in the Box Section included waiting on
customers; sitting at a desk doing paperwork related to insured mail;
renting post office boxes; and distributing or "sticking" mail in the
cases containing customer post boxes. (Tr. 155-56).
I find as a fact that Trobia was not performing all of the essential
functions of the position during his stay in the Box Section. Plaintiff's
manager, John Heberle, testified that Trobia did not perform all the
functions of the Box Section. He consistently did only "light" work,
could not lift mail bags in excess of twenty pounds. In addition, he did
not stick mail in the post office boxes, all of which were requirements
of the job. (Tr. 535). Other employees, Alice Bivens and Carolyn Bailey, who worked in the Box
Section with Trobia, as well as a supervisor, John Sodeman, all confirmed
that Trobia did not perform all of the functions required. Trobia
principally waited on customers at the window, while other employees
rotated various responsibilities in the Box Section, including "sticking"
mail. Plaintiff was not part of that rotation. He only did paperwork and
served customers. (Tr. 328, 598, 620-23).
The fact that the USPS allowed plaintiff to work in the Box Section
from 1994 until January 1996 without performing certain functions (like
"sticking" mail in rotation with the other clerks) does not mean that
these functions were not essential functions of the job within the
meaning of the Act. See Phelps v. Optima Health, Inc.,
251 F.3d 21, 26 (1st Cir. 2001) ("evidence that accommodations were made
so that an employee could avoid a particular task merely shows the
job could be restructured, not that [the function] was
non-essential. . . . To find otherwise would unacceptably punish
employers from doing more than the [Act] requires, and might
discourage such an undertaking on the part of employers.")(internal
quotations and citations omitted); see also Basith v. Cook County,
241 F.3d 919, 930 (7th Cir. 2001) ("The fact that restructuring is
feasible, in itself, is not persuasive evidence one way or the other
that a function is essential to a job."). I find that the functions
plaintiff was not performing in the Box Section were essential
Trobia also claims, though, that the USPS violated the Act by requiring
him to work on the handicapped case and for not placing him in another
position that was consistent with his medical restrictions. Although
there was little proof at trial on this point, I will assume, without
deciding, that there were other positions at the USPS of which plaintiff
could perform the essential functions.*fn5 Therefore, I must decide whether the USPS's actions of failing to
find a position for plaintiff other than the handicapped case violated
the Act based on an alleged failure to accommodate.
IV. Reasonable Accommodation and Retaliation
Trobia's failure to accommodate and retaliation claims essentially are
based on two things: (1) the USPS removing plaintiff from the Box
Section; and (2) the USPS transferring him to the handicapped case, where
he worked from January 1996 through June 1997.
Concerning "accommodation", the burden is on the USPS to show that the
accommodation it offered plaintiff was "reasonable." Jackan, 205
F.3d at 567. The regulations provide at 45 C.F.R. § 84.12(b) that a
"reasonable" accommodation may include: "(1) Making facilities used by
employees readily accessible to and usable by handicapped persons, and
(2) Job restructuring, part-time or modified work schedules, acquisition
or modification of equipment or devices, the provision of readers or
interpreters, and other similar actions." Whether a particular
accommodation is "reasonable" must be judged in the context of the
particular circumstances in any given case and is a fact-specific
inquiry. Borkowski, 63 F.3d at 138.
After considering all the evidence and weighing the credibility of the
witnesses, I find that none of the actions by the USPS violated the Act
by failing to accommodate or by retaliating for engaging in protected
activity. The USPS has met its burden of demonstrating that the
accommodations it provided plaintiff were reasonable within the meaning
of the Act. The accommodations may not have been to plaintiff's liking,
but they were not inconsistent with his needs and limitations as directed
by his physicians. Furthermore, I find that plaintiff failed to establish
that the USPS engaged in retaliation. 1. Plaintiff's Removal From The Box Section
As discussed above, I find that plaintiff cannot prevail under the Act
based on his removal from the Box Section or the USPS's failure to return
him there because he has not shown that he could perform all of that
job's essential functions. (See part III., supra).
Nevertheless, even assuming that he could perform the essential functions
of that job, I find as a fact that Trobia's removal from the Box Section
was not motivated by discrimination on account of a disability or in
retaliation, and did not constitute a failure to accommodate under the
Act. There were legitimate operational reasons why plaintiff was removed
from the Box Section, and they were not related to plaintiff's
disability. The USPS was not obligated to return plaintiff to the Box
Several witnesses testified about the events surrounding Trobia's
removal from the Box Section on January 12, 1996. The immediate event
that caused Trobia's removal was an altercation between Trobia and other
employees in the Box Section. Both Alice Bivens and Carolyn Bailey
testified about an incident on January 12, where plaintiff had criticized
another employee. (Tr. 600-01, 626). This was not the first incident
with Trobia. Bivens and Bailey had previously complained to a supervisor
(Nancy Premo) about Trobia. Bailey testified that Trobia's attitude was
bad enough that Box Section employees had met with John Heberle, the
Operations Manager at the facility. (Tr. 599, 625-26).
On January 12, 1996, Thomas Johnson, a Supervisor, was approached by
Alice Bivens who was very upset about what had just occurred in the Box
Section, and she told Johnson that "they had to get Trobia out of the Box
Section." (Tr. 606-07). Sodeman, who was also aware of the problems with
Trobia, accompanied Johnson and together they met with Heberle and
recommended that Trobia be removed from the Box Section because of the altercation
among the employees. (Tr. 626-28, 509-510). Trobia was removed
immediately on that day and never returned.
Heberle testified that there were several reasons for Trobia's removal,
in addition to the altercation with his coworkers. Both Heberle and a
Labor Relations Specialist at USPS, Frank L. Liberti, testified that
union representatives and management had met in the Fall of 1995 and
discussed creating several limited duty positions to assist employees,
like Trobia, who were recovering from illnesses and injury. (Tr. 495-500,
503, 678, 681). Trobia's name was mentioned in those meetings, and it was
generally determined that Trobia eventually would be moved to a new
The altercation on January 12 required that the USPS address the issue
sooner than had been planned and Trobia was removed immediately. Heberle
testified though that this move had been discussed with the union, and
mentioned to Trobia, before the January 12 incident. When the altercation
occurred among the employees, Heberle testified that Trobia was the
logical choice for transfer. In Heberle's view, Trobia was not performing
the essential functions of the Box Section position, and he had no "bid
rights" or protection under the union contract because of his limited
At trial, Trobia himself conceded that there had been personnel
problems in the Box Section. He admitted that he had criticized Bivens
and others for making mistakes pitching mail, and he objected to their
listening to a particular radio station. (Tr. 187-92). He conceded that
on the day he was transferred, Sodeman told him that he had been removed
because there were problems with co-workers and, in any event, the USPS had already made a decision
to move plaintiff from that position. (Tr. 172-73).
I find as fact that the removal of Trobia from the Box Section on
January 12, 1996, was not motivated by any discriminatory reason, but for
legitimate operational reasons. Based on the evidence before me and my
assessment of the credibility of the witnesses, I find as fact that there
were conflicts among the employees in the Box Section and management's
decision to alleviate those problems by removing Trobia was not caused by
Trobia's alleged disability or in retaliation for any protected activity.
The conflicts among the employees was ample reason for USPS to move
Trobia repeatedly sought to return to the Box Section, a position that
he obviously preferred. I find that plaintiff's complaints in this
lawsuit are motivated in large part by his desire to return to the Box
Section, a position he viewed as quite favorable. Trobia claims that
USPS's refusal to return him to the Box Section violated the Act. I
disagree. Neither the facts developed at trial nor the law supports
First of all, no employee has the "right" to insist that he work in a
particular job and there is no requirement under the Act that USPS must
place plaintiff in the job of his choice. Although an employer may
consider an employee's preferred accommodation, the Act "does not require
the employer to provide every accommodation the disabled employee may
request, so long as the accommodation provided is reasonable. "Fink
v. New York City Dep't of Personnel, 53 F.3d 565, 567 (2d Cir.
1995). In this regard, "`[t]hat [the employer] could have provided a
different set of reasonable accommodations or more accommodations does
not establish that the accommodations provided were unreasonable or that
. . . additional accommodations were necessary.'" Misek-Falkoff v. Int'l Bus. Machs. Corp., 854 F. Supp. 215, 228
(S.D.N.Y.1994), aff'd, 60 F.3d 811 (2d Cir. 1995) (citing
Wynne v. Tufts Univ. Sch. of Med, 1992 WL 46077 (D. Mass.),
aff'd, 976 F.2d 791 (1st Cir. 1992)).
Second, the fact that Trobia worked in the Box Section for a period of
time, although unable to perform all the essential functions of that job
did not create any vested rights to continue to do so. The USPS should
not be punished from being more generous to plaintiff by allowing him to
remain in a job that he was unable to perform. See Fink v. New York
City Dep't of Personnel, 855 F. Supp. 68, 72 (S.D.N.Y.1994),
aff'd, 53 F.3d 565 (2d Cir. 1995) ("There is no provision
requiring the employer to take account of the disabled individual's
preferences in choosing the means of accommodation."); Querry v.
Messar, 14 F. Supp.2d 437, 445 (S.D.N.Y. 1998) ("An employer need
only offer a `reasonable accommodation'; it need not provide the employee
with the accommodation of her choice."); see also Phelps, 251
F.3d at 26; Basith, 241 F.3d at 930. Therefore, the USPS did not
violate the Act by removing plaintiff from and failing to return him to
the Box Section.
2. The Modified Distribution Job Offer and The Handicapped Case
Following his removal from the Box Section, the USPS presented
plaintiff with a permanent job offer for a limited duty position on a
"modified distribution case." (Ex. 410). This job offer was crafted by
the USPS based on the medical information it then had from plaintiff
about his restrictions. The position required "simple grasping ability"
and normal handling of objects of up to fifteen pounds in weight. "The
work is basically standing with alternate periods of sitting while
performing sedentary activities." (Ex. 410). The work would have required
that Trobia use what is known as a "standard rest bar" which is a device
similar to a stool that he could have leaned against while distributing
mail. (Ex. 481). Plaintiff claims that the USPS failed to accommodate his disability
after removing him from the Box Section by offering him this job in its
place because it did not fit within his medical restrictions. I disagree.
The evidence shows that the USPS asked plaintiff's treating physician,
Dr. Miller, for a suitability determination regarding the modified
distribution case job. (Ex. 408). I find that, based on the information
the USPS had about the work that plaintiff performed in the Box Section,
as well as the medical information in his file at the time the offer was
made, the modified distribution case job offer was a reasonable offer of
accommodation. Trobia actually accepted the offer on January 18, 1996,
but conditioned it on his doctor's approval.
In response to the USPS's request regarding this position, Dr. Miller
indicated that the prior position in the Box Section was preferred over
this position, although there is little in Dr. Miller's correspondence,
or in his testimony at trial, to support such a conclusion. In fact, it
is clear from Dr. Miller's January 15, 1996 letter, and from Dr. Miller's
testimony at trial, that Miller was primarily regurgitating Trobia's
concerns about the proposed job, not his own medical opinion. Miller also
mischaracterized the nature of the modified distribution case job in his
correspondence to the USPS, something that he conceded at trial. (Tr.
373). I credit testimony of Frank Liberti that Trobia's proposed job at
the modified distribution case did not involve what Miller claimed it
did. The job did not involve moving packages; it did not involve leaning
out; it only would have involved placing letters and magazine size papers
(flats) in postal boxes. (Tr. 687-88).
Based on my review of the evidence, and based on my assessment of the
credibility of the witnesses, I believe that plaintiff wanted to be
placed in the Box Section because he viewed that as a better job, and
that he balked at working in the offered job one designed for
limited duty. Although both Miller and Trobia urged that he be returned
to his former position in the Box Section, Miller's correspondence was not clear as to why plaintiff could not
perform the job at the modified distribution case. The requests were made
to advance Trobia's personal preference for the Box Section. At no time
did plaintiff or his physician suggest any modification to or
accommodation for the job as offered, other than a blanket request that
he go back to the Box Section. That accommodation was not available and
would not have been reasonable anyway. (Tr. 686-87).
Although the USPS offered plaintiff a job on the modified distribution
case, it is undisputed that plaintiff never actually worked in that
position. Instead, plaintiff told his supervisor that, based on his
previous experience, he could not use the standard rest bar because it
would have aggravated his back. That same day, the USPS immediately
accommodated plaintiff and offered him a different job altogether. (Tr.
The new job offer was for work on a "handicapped" distribution case.
Work on this mail distribution case was specifically designed and
reserved for employees recovering from injuries. The job consisted of
plaintiff siting in a chair with arms (as opposed to leaning back on a
standard rest bar) and placing mail into a case that was positioned
differently than the case involved on the "modified" distribution case.
Unlike the first job offered to him, the handicapped case involved
placing mail into boxes that had been altered so that the employee need
not stoop or reach up high to perform the distribution, but basically
sorted mail at eye level. (Ex. 122-24). As designed, this was hardly an
onerous job. Plaintiff did not balk at being placed at the handicapped
case in January 1996, and he remained there until June 1997.
Plaintiff argues the handicapped case job was not a "reasonable"
accommodation because it did not fit with his medical restrictions and
made that condition worse. I disagree. I find that the USPS's placement
of Trobia in the handicapped case job during this time period did not
violate the Act and was not a failure to accommodate his disability. I also
find as fact that the handicapped case position fit within plaintiff's
medical restrictions, including the February and April work restriction
evaluations of Drs. Miller and Rodenhouse. (Exs. 417; 424). Moreover,
contrary to what plaintiff asserts, the USPS did not ignore Trobia's
protestations when he began experiencing difficulty in this position.
In this position at the handicapped case, plaintiff was allowed to sit,
stand, and walk around the facility for periods of time consistent with
his medical restrictions. Plaintiff decided on his own when to sit,
stand, and walk based on his tolerance and pain level. (Tr. 199). With
the exception of certain reasonable restrictions as to where plaintiff
could walk at the facility during the workday, the USPS did not restrict
plaintiff in any manner, concerning his need to take breaks and change
positions. Trobia conceded on cross examination that, at the handicapped
case, he worked at his own pace and there were no minimum production
standards that he had to meet. (Tr. 199). Plaintiff's managers also
testified that no production standards were required. Heberle and Liberti
testified that when plaintiff complained about working on the handicapped
case, little was asked of plaintiff and no requirements were placed on
him while the USPS worked with plaintiff and his doctors to find a
suitable position for him. (Tr. 539; 692-93).
In April 1996, plaintiff complained that this new job was exacerbating
his back condition. He again requested that he be returned to the Box
Section. I find that most of plaintiff's objections related to his
persistent request to return to the Box Section. Plaintiff asserted that
if he were to remain on the handicapped case, he would need to work only
four hours a day. The USPS reasonably accommodated plaintiff by reducing
his work to four hours a day. Plaintiff's managers continued to give plaintiff free rein to change his physical
position, move about and work at his own pace.
Plaintiff continued to work on the handicapped case for four hours a
day throughout the fall of 1996. Eventually, the USPS sent him for an
independent medical examination with Dr. Knapp. (Ex. 70). Dr. Knapp's
report did not preclude plaintiff from working in the handicapped case,
but restricted plaintiff, as did Dr. Miller, in several respects. He
limited weight lifting to 15-20 pounds and limited plaintiff's sitting to
10 minutes at a time with breaks of 5-10 minutes to stand and ambulate.
Working overhead (i.e., with arms raised) was limited to two hours a day.
There is no evidence in the record that the handicapped case job was
inconsistent with these restrictions. I credit the testimony of Liberti,
who stated that the handicapped case job was consistent with the
restrictions that plaintiff's doctors imposed in 1996. (Tr. 692). Dr.
Rodenhouse also testified that plaintiff could tolerate sorting mail for
periods of time so long as he could alternate positions and could work at
his own pace. (Tr. 657-58).
In the Spring of 1997, once the USPS received medical evidence from
plaintiff's physicians that the handicapped case job had begun to create
strain on plaintiff's cervical spine, the USPS immediately began to make
changes to the position. Liberti testified that he told plaintiff not to
pitch mail while the USPS began to devise another job for plaintiff. (Tr.
693-94). At or about this time, the plaintiff was sent to another job for
five weeks where he verified polling questionnaires for the USPS and did
not pitch mail. (Tr. 202). Plaintiff made no complaints about that job.
In June 1997, after obtaining a suitability determination from Dr.
Rodenhouse, the USPS offered plaintiff a different position in "Revenue
Protection" which did not involve any distribution of mail. Plaintiff
accepted that job and testified that he was capable of performing it.
(Tr. 207-08). Because plaintiff had surgery on his knee that summer, he was out
of work and did not actually start in Revenue Protection for several
months until September 1997. Plaintiff worked in that job until January
2001, when he was out of work again for approximately ten months
recuperating from surgery to remove the "hardware" that had been inserted
during the spinal fusion operation in 1993. Plaintiff was cleared to work
after that surgery and received another job "checking zip codes" which
involved no mail distribution. (Tr. 702). Plaintiff could perform that
job, has not complained about it, and he continues in that position
In light of this evidence, and the evidence at trial, I find that the
USPS has sustained its burden of proof that the accommodations offered to
plaintiff were reasonable within the meaning of the Act. As such,
plaintiff's claim must fail. Gronne v. Apple Bank for Sav., No.
98-CV-6091, 2000 WL 298914, *6 (E.D.N.Y. Feb. 14, 2000), aff'd,
1 Fed. Appx. 64, 2001 WL 30647 (2d Cir. 2001) (employer's accommodations
of restructuring plaintiff's duties in accordance with her restrictions
were "reasonable" under ADA as a matter of law); McLean-Nur v. Dept.
of Tramp., City of New York, No. 98 Civ. 819, 2000 WL 297176, *7
(S.D.N.Y. Mar. 21, 2000) (same); see also Querry, 14 F. Supp.2d
at 445 (employer satisfied its obligations under the Act to reasonably
accommodate plaintiff by offering her light duty assignments).
I also find that plaintiff failed to prove that the USPS retaliated
against him. Claims for retaliation under the Rehabilitation Act are
analyzed under the same burden-shifting framework established for Title
VII cases. Weixel v. Bd. of Educ. of the City of New York,
287 F.3d 138, 148 (2d Cir. 2002). Here, there is no evidence that the USPS
took any adverse employment action against him based on his prosecuting a
claim with the EEOC. Further, the USPS has offered nondiscriminatory
reasons for the actions it took and plaintiff has failed to show that
these reasons were a pretext for disability discrimination. Further, as the
factfinder, I see no credible evidence of retaliatory animus by the USPS
based on Trobia's EEOC claim or the filing of this lawsuit.
Finally, I find no evidence that the USPS somehow failed to engage in
the so-called interactive process with plaintiff.*fn7 As is evident from
the volume of exhibits filed by both sides in this case, and the amount
of written correspondence between plaintiff, his physicians, independent
physicians, the USPS, and other governmental agencies, the parties always
remained in constant communication with each other regarding plaintiff's
restrictions, the requirement of medical documentation, and plaintiff's
ability to perform certain jobs. Although there was evidence that, in
some instances, the USPS did not move as quickly as might be preferred
with respect to plaintiff's requests, and that there were delays that
occurred in the administrative process, I do not find that the USPS's
actions were "unreasonable" or amounted to a failure to accommodate
plaintiff's disability under the ADA.
The process of finding a disabled employee a suitable placement is not
an easy or predictable task. Even plaintiff's physician, Dr. Rodenhouse,
testified at trial that plaintiff's ability to perform any given job was
a "trial and error" determination and depended on his ability to sit,
stand, and move around as needed. (Tr. 657-58). Although plaintiff feels
that the USPS should have done things differently, or should have given
him his job of choice, I find that the USPS acted in accordance with the letter, purpose, and spirit of the Act and did
not engage in discrimination based on plaintiff's various
For the foregoing reasons, I find in favor of defendant, William J.
Henderson, Postmaster, United States Postal Service, on all of
plaintiff's claims that the defendant violated the Rehabilitation Act.
Plaintiff has failed to prove his claims by a preponderance of the
evidence. Final Judgment shall be entered in favor of defendant and the
complaint is dismissed with prejudice.
IT IS SO ORDERED.