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Faconti v. Henderson

August 29, 2006

FRANK P. FACONTI, PRO SE, PLAINTIFF,
v.
WILLIAM J. HENDERSON, POSTMASTER GENERAL OF THE UNITED STATES POSTAL SERVICE, DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

MEMORANDUM &ORDER

Before the court is defendant's motion for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c), on plaintiff's third federal complaint alleging that the United States Postal Service ("USPS") discriminated against plaintiff on account of his disability in failing to reassign, rehire, or provide plaintiff with reasonable accommodations. Defendant contends that plaintiff is precluded, under the doctrine of res judicata, from filing this action because this action "arises out of the same nucleus of operative facts as" two previous actions brought by plaintiff, which were ultimately dismissed. See Def.'s Mem. at 2. For the following reasons, defendant's motion is granted.

I. Background

The relevant facts were adequately summarized in Magistrate Judge Robert M. Levy's prior Memorandum and Order dated July 25, 2002 ("MJ Levy 7/25/02 M&O")*fn1 and will be discussed below only to the extent necessary.

Plaintiff served as a computer specialist for the USPS at the Brooklyn General Mail Facility ("BGMF") from 1970 until his disability retirement in January 1994. (MJ Levy 7/25/02 M&O at 2.) In March 1992, plaintiff sustained severe back injuries in a non-job related automobile accident (the "Accident"). (Id. at 2.) Plaintiff returned to work, but took some intermittent leave time. (Id.) On August 14, 1992, because of his back pain, plaintiff took an extended sick leave, but never returned to work. (Id. at 2-3.)

On January 19, 1993, plaintiff applied for disability retirement under the Civil Service Retirement Act ("CSRA"), which was ultimately granted. (Id. at 3.) In November 1993, plaintiff also submitted an application for Social Security benefits. (Id. at 6.) Although the Social Security Administration ("SSA") denied plaintiff disability benefits, plaintiff was declared "disabled," within the meaning of Title XVI of the Social Security Act and granted Medicare benefits. (Id. at 6; Pl.'s Mem. of Law ("MOL") at 8.)

In support of his applications for disability retirement and social security benefits, plaintiff submitted various medical reports, including a report and sworn statement from his treating neurologist, Dr. Leonard Pace. (See MJ Levy 7/25/02 M&O at 3-4.) Dr. Pace indicated that it was physically too stressful for plaintiff to commute to work or perform his job related duties. (Id.; Def.'s MOL at 3.) In support of his applications, plaintiff also stated, under oath, that he had difficulty driving any distance or standing for more than 10-15 minutes without significant pain. (See MJ Levy 7/25/02 M&O at 4, 6.) The daily commute made it "impossible for him to perform, attend or conduct the activities of [his] job." (See Id. at 4.)

Plaintiff made similar statements in his state personal injury case, stemming from the same Accident. Specifically, plaintiff testified that he was unable "to sit, stand, walk, or drive for even short periods of time" and was therefore incapacitated from working. (Id. at 7.) Moreover, as stated in his application for Social Security benefits, Dr. Pace asserted, in the state court action, that because of plaintiff's injuries, "it is not recommended that he continue in his present line of work, even at a restricted level." (Id.) Plaintiff's vocational rehabilitation specialist, David B. Stein, Ph.D., submitted that "[plaintiff] is not gainfully employable, since he can no longer sustain work performance in any job, even at the sedentary level" and that "[plaintiff] does not retain the functional physical capacity to perform and sustain work, either in his usual occupation or in alternative jobs." (Id.) Ultimately, the state court action was settled.

While plaintiff's disability retirement application and state court action were pending, plaintiff provided USPS with a note from Dr. Pace indicating that plaintiff's condition was unchanged and he "continue[d] to be disabled and [could not] perform in a postal service work environment." (Id.) In June 1993, the USPS offered plaintiff the position of Distribution Operations Supervisor at the Brooklyn Processing and Distribution Center, but plaintiff declined the offer indicating that he was physically unable to perform the duties of that position. The USPS then reassigned plaintiff to the Mail Flow Controller position, but plaintiff indicated, again, that he was physically unable to perform these job functions and did not report to this job. (Id. at 7-8.)

II. Procedural History

A. EEOC Proceeding

In May 1997, a hearing was held before Administrative Judge David E. Licht of the Equal Employment Opportunity Commission ("EEOC") on the issue of whether the USPS discrminated against plaintiff in late March 1993 when he was not allowed to return to work because he previously filed for disability retirement. (Pl.'s MOL Ex. 3 at 140.) Judge Licht found that plaintiff was a person with a disability . . . [and] qualified . . . in that, with or without reasonable accommodation [plaintiff] could perform the essential functions of the position if accommodated by any of the proposals presented to the [USPS], including but not limited to use of a Fexi-Place work via modem or even to a local station near [plaintiff's] home. (Pl.'s MOL Ex. 3 at 149.) Judge Licht further found that the "[USPS] did not attempt to present the necessary reasonable accommodation sought by the [plaintiff] to allow him to continue or resume work." (Pl.'s MOL Ex. 3 at 149.) Finally, Judge Licht concluded that although plaintiff was granted disability retirement in January 1994, plaintiff "was not afforded the opportunity of working with reasonable accommodation in accordance with his restrictions; nor did the [USPS] meet its absolute and continuing duty to accommodate." (Pl.'s MOL Ex. 3 at 151.)

B. Faconti I and II.

Between January 1998 and April 2001, plaintiff filed 3 federal complaints alleging that the USPS discriminated against him based on his disability in failing to rehire, reassign or reasonably accommodate plaintiff. In January 1998, plaintiff filed his first action (docket number 98-cv-0275) in this Court ("Faconti I"), against the USPS Postmaster General alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII") and ยง 501 of the Rehabilitation Act of 1973 (the "Rehabilitation Act") for failing to rehire plaintiff or reasonably accommodate plaintiff. (Def.'s MOL Ex. 3.) Specifically, plaintiff alleges that, in March 1993, USPS discriminated against plaintiff for filing an application for disability retirement, when USPS selected a less qualified candidate over plaintiff for the Operations Support Specialist ("OSS") position. (See Pl.'s Faconti I Compl. at 2-4). In February 2001, plaintiff filed a second action (docket number 01-cv-1034) in this Court ("Faconti II"), against the USPS Postmaster General, alleging the same ...


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