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Gentile v. Potter

September 6, 2007

ANTHONY GENTILE, PLAINTIFF,
v.
JOHN E. POTTER, POSTMASTER GENERAL, DEFENDANT.



The opinion of the court was delivered by: Glasser, United States Senior District Judge

MEMORANDUM AND ORDER

INTRODUCTION

Anthony J. Gentile ("Gentile" or "Plaintiff") brought an action against John E. Potter ("Potter" or "Defendant"), the Postmaster General, under Title VII of the Civil Rights Act of 1974, 42 U.S.C. §2000e-16, and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., § 791 et seq., alleging disability discrimination and retaliation for pursuing protected activity.*fn1 Defendant now moves for summary judgment against Gentile pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons explained below, this Court grants Defendant's motion for summary judgment.

BACKGROUND*fn2

A. Gentile's Impairment

Gentile was hired by the United States Postal Service ("USPS") on January 19, 1983, as a multi-position letter sorting machine/ manual clerk paid at the postal pay scale level of PS 6. See Gentile Aff. ¶¶ 5-6. In October 1987, Gentile suffered a work-related injury that left him with a permanent impairment to his right wrist. Id. ¶ 15. According to medical documentation, after his injury, Gentile continued to suffer from a "partial permanent disability to his right wrist and right upper extremity and according to A.M.A. Guidelines, [Gentile] has a loss of use equaling 15% of his right upper extremity." Declaration of AUSA Catherine M. Mirabile in Support of Defendant's Motion for Summary Judgment ("Mirabile Decl."), dated March 19, 2007, Ex. F at D 0839. Gentile self-reports that he is unable to key the letter sorting machine (a process which requires the employee to manually enter mail sorting information on a keyboard), sweep mail (a process by which an employee is required to clear mail out of overstuffed mail receptacles), lift objects over fifty pounds, and load ledges with mail. See Mirabile Decl., Ex. KK at D 0784, Ex. D at 83:18-21. Despite these limitations, Gentile can lift mail up to 10 lbs. Id., Ex. KK at D 0784. In 1994 and 1998, Gentile underwent surgery to ameliorate his condition. See Defendant's Local Civil Rule 56.1 Statement of Undisputed Facts ("Def. 56.1 Statement"), dated March 19, 2007, ¶¶ 38-39. After his injury in 1987, the USPS placed Gentile on limited duty through 1998.

Gentile was required to update his medical file periodically to support a claim for injury compensation that he filed in connection with the work-related injury as well as to show that he required special accommodation from the USPS. See Gentile Aff., Ex. K at D 0529. Following the 1998 surgery, Gentile's treating physician and surgeon, Dr. Shlomo Piontkowski, saw Gentile approximately once every month, and on October 19, 1998, prepared a narrative to describe Gentile's post-operative improvement. See Mirabile Decl., Ex. F at D 0838. While Dr. Piontkowski noted that Gentile still experienced pain and discomfort which prevented him from participating in"more vigorous activities," he also explained that Gentile had self-reported that he was "not having much trouble with his particular job . . . [which was] sedentary in nature." Id.

A year later, on January 5, 1999, Dr. Piontkowski described Gentile's limitations as follows: "Partial Permanent Disability. No Loading Ledges, No Keying, No Lifting over 50 lbs Maximum Intermittently if Possible." Id., Ex. F at D 0266. Dr. Piontkowski also noted that Gentile should not lift, pull, or push items over ten pounds. See id. Dr. Piontkowski cleared Gentile to work "8 hours . . . , 40 hours per week, Overtime is possible depending on Employee's status." Id. After seeking medical attention for a further strain to his right wrist, Dr. Piontkowski listed the same general limitations and also remarked that Gentile had "reached maximum improvement." Id. at D 0841.*fn3

B. The Rehab Job Offer

In January 1999, the USPS offered, and Gentile accepted, a Rehab clerking position pursuant to the federal employee compensation program. See id., Ex. G at D 0851. The job description provided that Gentile would "be assigned to the [Queens Processing & Distribution Center] operations [on] all floors, working eight (8) hours per day within [his] medical limitations. [Gentile's] main duties will include distribution of mails (letter size and flats) operation 150/30, 170/175 and all other clerical duties as needed." Id. at D 0851. Gentile's assignments were subject to the following limitations: "No use of right wrist, no use of right elbow, no keying, no loading ledges, no sweeping, maximum lifting 50 pounds, maximum pulling/ pushing 10 pounds." Id. at D 0851. Pursuant to this offer, USPS management had the right to assign Gentile to work on any floor of the postal facility so long as the duties complied with Gentile's physical limitations.Id. In August 1999, Gentile received an award from the Office of Workers' Compensation Programs for back pay relating to his injury. See id., Ex. F at D 0844.

C. Protected Activity

Gentile has alleged multiple counts of discrimination, dating from 1992 to the present, as well as retaliation for filing grievances and EEO complaints. The following is a summary of the EEO complaints filed by Plaintiff.

i. 1996 Complaints

In 1996, Gentile sought EEO counseling and filed six EEOC complaints, alleging a hostile work environment, discrimination and retaliation for filing a grievance and a worker's compensation claim. See id., Ex. Z; Gentile Aff., Ex. P. Gentile claimed, inter alia, that he was: (1) segregated to the second floor apart from his regular work unit; (2) denied seniority privileges for certain work assignments; and (3) improperly removed and suspended. See Gentile Aff., Ex. P. In April 1996, Gentile also filed several hazard reports alleging dangerous conditions in the workplace. See Mirabile Decl., Ex. Q.

On June 27, 1996, Gentile and the USPS entered into an EEO settlement agreement (the "Settlement Agreement") concerning Gentile's complaint that he was improperly removed from his position at the USPS. See id., Ex. S at D 1123. In exchange for a modification of the removal to a time served suspension, Gentile agreed to withdraw all outstanding EEO complaints and grievances. See id.

ii. 2002 Complaints

On January 24, 2002, Gentile initiated EEO counseling, alleging race, age, and disability discrimination, as well as retaliation for filing the 1996 EEO cases. See id., Ex. AA. Specifically, Gentile complained that he was: (1) placed on Absence Without Leave ("AWOL") status for Labor Day 2001, Thanksgiving Day 2001, Christmas Day 2001, and New Year's Day 2002; (2) denied overtime from December 1992 through 2002; (3) removed from the 110 dispatch platform in 1999 and placed in an allegedly hazardous work area; (4) reclassified as an unassigned regular for two to three weeks in 2000; (5) harassed from the time of his injury in 1987 until 2002; and (6) wrongfully terminated in 1996 and wrongfully suspended in 1997. See id.; see also Mirabile Decl., Ex. D at 209:11-21. The complaint also realleged all claims filed in the 1996 EEO complaints. See id. On March 27, 2002, Gentile filed his official complaint (the "2002 Complaint"). See id., Ex. CC.

Gentile also filed a grievance on October 25, 2002, because his work code was changed from Rehab clerk to short-paid Nixie clerk on his work status form. See id., Ex. V.

iii. 2003 Complaints

On September 2, 2003, Gentile sought EEO counseling, again claiming discrimination and retaliation for filing his prior EEO complaints. See id., Ex. FF. The Pre-Complaint Counseling form states that Gentile believed he was discriminated and retaliated against when: (1) his supervisor denied his second and third choice vacation picks, including his September 2002 holiday pick; (2) he was notified on July 22, 2003, to report back to his original assignment; and (3) his supervisor changed his break time on July 25, 2003. See id. Gentile filed the formal complaint on October 30, 2003 (the "2003 Complaint"). See id., Ex. HH.

On December 15, 2003, Gentile filed an addendum to the 2003 Complaint, alleging retaliation for filing the Complaint based on his supervisor designating him AWOL after he failed to work overtime on his night off before Thanksgiving. See id., Ex. II at D 0734. On December 16, 2003, Gentile filed a second addendum, complaining that he suffered retaliation when the USPS misplaced his time card for two days, forcing him to enter his time electronically on a computer, and that later these electronic entries were somehow erased. See id., Ex. II at D 0737-38. On that same day, Gentile filed another addendum, attesting that his supervisor, acting through one of his subordinates, instructed Gentile not to speak to his co-workers while he worked in order to "bully, harass, retaliate, and discriminate against [Gentile] for having filed EEO complaints." Id., Ex. II at D 0740. Gentile filed several other addenda in which he repeated his earlier allegations.

iv. EEOC Investigation

On March 1, 2004, the EEOC consolidated the 2002 and 2003 EEO complaints for investigation, and dismissed most of the allegations as either untimely or failing to state a claim. See id. The only three allegations accepted for further investigation were the charges of AWOL, the change of Plaintiff's work location on July 22, 2003, and the change of Plaintiff's break time on July 25, 2003. See id., Exs. DD, JJ.

On March 2, 2005, the EEOC issued its final decision dismissing the AWOL complaint and notified Gentile of his right to sue. See id., Ex. NN. This action was commenced on April 22, 2005. See id., Ex. A.*fn4

DISCUSSION

A. Standard of ...


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