The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
The following factual background is taken from the parties' Statements of Fact. See Western District of New York Local Rule of Civil Procedure 56.1. The facts are not in dispute except as identified below.
David R. Schratz ("Plaintiff") has a congenital dislocated hip. He was hired as a mail handler with the United States Postal Service in 1982. To obtain that position, Plaintiff completed paperwork for his job application, including a Certificate of Medical Examination. The Certificate included the following language, described by the form as a "brief job description of what position requires employee to do":
The duties consist of loading and unloading trucks, emptying mail sacks and general laborer work to include: dumping mails, setting up and taking down bag racks and sacking equipment. The applicant will be required to lift sacks of mail weighing up to 80 pounds. (U.S. Postal Service EEO Investigation Report, No. 1B-145-0024-02 ("EEO Report"), Docket No. 29-6, at 23 (labeled as Exhibit 3B).)*fn1 Also in that form, was a question, "DO YOU HAVE ANY MEDICAL DISORDER OR PHYSICAL IMPAIRMENT WHICH WOULD INTERFERE IN ANY WAY WITH THE FULL PERFORMANCE OF THE DUTIES OF THE POSITION FOR WHICH YOU ARE APPLYING?" (Id.). Plaintiff checked the box next to "No." (Id.)
In 1984, Plaintiff "bid"*fn2 onto a Tour 3*fn3 position on the south dock of the Rochester Processing and Distribution Center ("Distribution Center") and held that position for approximately sixteen years. However, by 2000, Plaintiff said he was pulled from his normal bid on South Dock and "forced to do jobs I did 20 years ago. That was creating havoc on me physically. So I had to get a note telling me-from the doctor telling me to sit."
(Schratz Dep., at 47.) Plaintiff stated at his deposition that he was pulled off his job on the South Dock daily for two years, but could not recall the exact date it started. (Id., at 48.)
Plaintiff claims that he wrote numerous grievances and that they "were directly the result of Plaintiff being pulled off of his bid, being forced to walk, and not being allowed to sit, all of which were outside his medical restrictions, of which the defendant was amply aware." (Pl.'s Response to Def.'s Statement of Facts, at 3.) He cites to his deposition testimony, page 50, lines 9-12, which are as follows:
A. You know, I wrote grievances on it for so many years that I know it was for at least probably a year and a half, two years anyhow. I'd be writing grievances every day. (Schratz Dep. at 50:9-12.) He also cites to "Vol. II, Ex. C," which consists of a letter from Lori Bauman, CRD, Senior Vocational Rehab Counselor, State Education Department, to Helen D. Matthews, Manager, Employee Relations, U.S. Postal Service (Oct. 7, 1982) ("Bauman Letter"). In that letter, Bauman wrote:
This letter is intended to serve as certification that David Schratz has been known to the Office of Vocational Rehabilitation, has had the benefit of evaluation and training services through this agency, and for purposes of employment can therefore be considered in the minority category of handicapped. (Bauman Letter, Docket No. 33-3, at 25.) Bauman went on to state that their records were incomplete, but from the limited information on their computer, [i]t would appear that he would be quite capable of handling most any area of work available in a post office or delivery setting. He would probably do best in an environment where he can have a reasonable mix of standing, walking, and sitting. In addition, there has been no known limit on the amount of bending or lifting, so this would not be a factor. (Bauman Letter, Docket No. 33-3, at 25.) At some time, not specified by Defendant, Plaintiff advised his supervisors that he needed to be able to sit during the work day, but states he was advised that "Mail handlers cannot sit." (Schratz Dep. at 56-57.) On July 21, 2000, Plaintiff filed an Information for Precomplaint Counseling. (Exhibit D, Docket No. 29-8, at 2.) In that filing, Plaintiff claimed that the Postal Service had denied him a reasonable accommodation for his disability. The dispute was referred to the U.S. Postal Service EEO, and was resolved through mediation with an agreement dated September 14, 2000, stating that, "David Schratz shall approach his immediate supervisor and request permission to sit for five (5) minutes as needed." (Settlement Agreement Form, Docket No. 29-8, at 6.) Plaintiff contends, however, that when he asked to sit, he was written up every time. As a result, he states that he stopped asking and suffered intense pain in his hips, hands, back and shoulders. (Pl.'s Response to Def.'s Statement of Facts, Docket No. 33-6, at 5.) Though no proof has been submitted that Plaintiff grieved the issue of being written up for asking to sit, Plaintiff states in his affidavit that he went to mediation to resolve the dispute. (Schratz Aff. ¶¶ 34-35.)
Plaintiff has provided the affidavit of Robert Ippolito, a fellow Postal Service employee. In his affidavit, Ippolito relates the following:
7. In or about 2000, however, Schratz was placed under the "watchful eye" of three particular supervisors; Manager of Distribution Operations ("MDO") Alton Coleman, Supervisor Distribution Operations ("SDO") Plina Wilson, and SDO Reginald Allen. At or about this time, Reginald Allen had been newly appointed to a supervisory position.
8. Management, including Reginald Allen, would assign all the other Mail Handlers on the shift to a job function and then pull Schratz off of his bid operation, leaving him with no choice of a function.
9. Management, including Reginald Allen, would then assign Schratz to "make work" jobs, for example, hanging empty mail sacks on racks for an operation to be worked hours later, when normally an employee from another craft would hang these sacks; making Schratz separate empty equipment by size and type that would normally be sent to a facility in Pittsburgh, Pennsylvania to be done; and sending him as an extra person to the 110 belt.
10. As a result of Schratz performing "make work" duties, he was no longer in his normal work area, and lost the ability to intermittently rest, as he had done so for the prior 14-15 years as a result of his medical condition.
11. Schratz was also removed from his normal break and lunch area, which added considerable additional walking, which would aggravate his medical condition.
12. Because of his having to perform make work duties in various different places, Schratz began to bring a stool in his new work areas, in an effort to accommodate his medical condition, as documented when he was hired. (Ippolito Aff. ¶¶ 7-12, Docket No. 33-5, at 4.)
On March 21, 2001, Plaintiff was given a letter of warning for failing to follow instructions to stay for overtime work. The letter was signed by Wanda Ferguson-Smith,
(A) Supervisor Distribution Opns. Tour III, Rochester, NY, who wrote that Plaintiff violated section 666.51 of the Employees and Labor Relations Manual by the following conduct:
Specifically, on March 5, 2001, at approximately 1930,*fn4 I attempted to solicit overtime from you as requested by Tour I. You stated that no, you could not, due to the storm that was coming. I advised you that your excuse was not acceptable and that you Would be staying for overtime. You ended your tour at 2297 [sic], disregarding my instructions regarding staying for overtime. When questioned concerning this Incident, you stated that you did not like the question of being asked why you left without permission. (Letter of Warning (Mar. 12, 2001), Docket No. 29-9, at 2.) The following week, Plaintiff received a seven-day suspension, again for failing to follow instructions. The suspension states in particular that, [y]ou are charged with failure to follow instructions.
You are in violation of Section 666.51, of the Employee and Labor Relations Manual, which states, "Employees must obey the instructions of their supervisors. If an employee has reason to question the propriety of a supervisor's order, the individual will nevertheless carry out the order and immediately file a protest in writing to the official in charge of the installation, or appeal through official channels."
Specifically, on March 20, 2001, you were instructed to report to the 010 operation. These instructions were given to you at approximately 2:35 p.m.
You did not report to the 010 operation until approximately 2:50 p.m. When questioned concerning this, you stated that you had to change out of your winter clothing. I note that on the date of this incident the temperature was 57 degrees and sunny. As an experienced postal employee, you are well aware of your responsibility in reporting promptly for duty. I also note that throughout the rest of the evening on March 20, 2001, you experienced incidents with other supervisors in which you were late returning from breaks. I will not tolerate this type of behavior from you. When questioned concerning this incident, you stated that you went to lock up your jacket. (Letter of Suspension (Mar. 27, 2001), Docket No. 29-10, at 2.) Plaintiff formally complained, and the issue ...