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Winbush-Jones v. Potter

February 24, 2009

GAIL P. WINBUSH-JONES, PLAINTIFF
v.
JOHN E. POTTER, POSTMASTER, UNITED STATES POSTAL SERVICE, DEFENDANT



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

In this action Plaintiff alleges that her employer, the United States Postal Service ("USPS"), discriminated against her because of her disability, in violation of the Americans with Disabilities Act ("ADA") and New York Executive Law § 296. Now before the Court is Defendant's Motion for Summary Judgment (Docket No. [#11]*fn1 ). For the reasons that follow, the application is granted.

BACKGROUND

Unless otherwise noted, the following are the undisputed facts of this case. Plaintiff Gail Winbush-Jones ("Plaintiff") has been employed by the USPS from 1981 until the Present. Prior to March 1996, Plaintiff worked as a Supervisor of Distribution Operations ("SDO") in Rochester, New York. On March 22, 1996, Plaintiff suffered a neck injury known as "cervical dystonia," as a result of a car accident. Subsequently, Plaintiff was out of work for approximately two years, due to pain . (Plaintiff's Deposition ("Pl. Dep.") [#11-8] at 22). When Plaintiff returned to work, she had the following physical restrictions: lifting not more than five pounds, standing for one hour in an eight-hour workday, walking for thirty minutes in an eight-hour workday, with additional restrictions on bending and reaching. (Id. at 44, 106; Defendant's Appendix, Exhibit B [#11-9] at 2). Plaintiff was able to stand for fifteen to thirty minutes at one time. (Pl. Dep. at 91). Plaintiff had no restriction on her ability to sit.

The USPS placed Plaintiff in a light-duty position, with the title "Attendance Control Supervisor." (Pl. Dep. at 25). Plaintiff states that she "basically" held this same position until she stopped working in 2004, although the duties changed somewhat over time. (Id. at 27). According to Plaintiff, the Attendance Control Supervisor's position was a light-duty accommodation. (Id. at 38). As Attendance Control Supervisor, Plaintiff handled various matters, including tasks related to the Family Medical Leave Act ("FMLA").

Eventually, Plaintiff learned that the Attendance Control Supervisor's position would be moved from Rochester to Buffalo. As it turned out, the transfer of the position to Buffalo never occurred during the period relevant to this lawsuit. (Pl. Dep. at 42, 59). Nevertheless, in anticipation of the position being transferred, Plaintiff and her supervisors took various steps to find a new position into which she could transfer, once the Rochester Attendance Control Supervisor's position ended. Although Plaintiff applied for the Attendance Control Supervisor's position in Buffalo, she told her supervisor, Ms. Benton ("Benton"), that she was interested in obtaining a position in Rochester dealing with FMLA matters. (Id. at 37-38). Plaintiff subsequently applied for a position in Rochester entitled "FMLA Coordinator," however, she was not selected. Apparently, the FMLA Coordinator's position, for which Plaintiff applied, covered the Rochester and Buffalo areas. (Id. at 49). Another woman, Ms. Woelfel, was selected for the FMLA Coordinator's job. (Id. at 49).

Benton subsequently told Plaintiff that the only position that she had available for Plaintiff was as an SDO on the mail-room floor. (Pl. Dep. at 38-39). Plaintiff responded that she could not go back to the type of work that she was doing prior to her accident. (Id. at 40). Thereafter, Benton notified Plaintiff that there was an opening in a position entitled "In-Plant Support Supervisor." (Id. at 41). Benton explained that Plaintiff would have the option of using a Cushman, a type of small motorized vehicle, to perform the position of In-Plant Support Supervisor. (Id. at 71-73) ("She wanted me to use the Cushman . . . in the In-Plant Support position. If I had to use it -- you know, there might be times I might have to use it. If I wasn't able to use it, she said she'd ask somebody else to do it."). Benton told Plaintiff to obtain an authorization from her doctor, indicating that she could perform the In-Plant Supervisor's Job, which she did. (Id. at 54). Subsequently, though, Plaintiff was never placed in the In-Plant Supervisor's position. (Id. at 55). At around this same time, Plaintiff heard discussion that another FMLA position would be created in Rochester. (Id. at 58). Although Plaintiff would have been interested in the position, such a position was never posted. (Id. at 58-59). However, in May 2004, one of Plaintiff's co-workers, Ms. Devoe, was made the FMLA Coordinator for Rochester. (Id. at 59-60, 63).

In March 2003, Plaintiff's supervisors informed her that they were considering her for a position as SDO for the flat-sorter machine. (Pl. Dep. at 64-65). Plaintiff was offered the position, and in that regard, the written offer stated that the job would be consistent with Plaintiff's restrictions:

This notice is to update your modified assignment based on operational needs and current work restriction information. This will afford you an opportunity for continued employment with the US Postal Service with injury residuals related to an accepted work related condition of sprained neck with left torticollis.

This position is in compliance with your work capacity as described by, Charles Jordan MD and your physician, Dr. GM Pansari, which are: No walking greater than 30 minutes, no standing greater than 1 hr, no reaching above the shoulder with the L arm and no lifting over 5 lbs.

The above duties require normal grasping and handling of objects up to 5 pounds, periods of seated work to include computer input, intermittent standing and walking on the workroom floor. You will be authorized the use of an in house motorized transport to limit required walking. (Def. Appendix [#11-20], Exhibit M). Plaintiff, though, declined the offer, stating that it did not meet her physical restrictions. (Pl. Dep. at 67-68). Specifically, Plaintiff's objection to the position concerned the walking and standing requirements:

This job offer is outside of my restrictions . . . because [it] requires more than 1 hour standing and 30 minutes walking in an 8 hour day.

The duties described seem to be the regular duties demanded of a Distribution Operations Supervisor with no modifications. . . . The description of the job responsibilities cannot be performed with my restrictions, without putting my safety at risk for further injury. I have been/and still [am] . . . receiving Botox injections every 3 months for the past few years, and consistently take prescription pain medication and muscle relaxers with the job I have now, which is nowhere near as demanding.

The motorized transport [Cushman vehicle] would aggravate my injury, but must be needed to perform these tasks 8 hours each day. However, I did inquire about it being modified to specifications for my use, (even though my medications cause drowsiness) and was told it could not be modified . . . Therefore, the motorized transport cannot be used to 'limit required walking' [as] stated in this job offer. So the physical requirements of this job are outside of my restrictions. . . . The 'intermittent/continuous standing and walking' is well over my limitations. I cannot accept this job offer. (Winbush-Jones letter, Docket No. 11-21 at p. 2).

In April 2004, Plaintiff's supervisor, Linda Lombardo ("Lombardo"), again offered her the position of SDO flat sorter. In this regard, the job offer description was essentially the same as before, although it included the following statement: "You will be authorized the use of mobility assistive device designed to enable the mobility challenged." (Def. Appendix, Exhibit P). According to Plaintiff, Lombardo told her that if she did not accept the position, she would not have a job once the Rochester Attendance Control Supervisor's position was eliminated. (Pl. Dep. at 69-71 ). Plaintiff initially protested that she could not do the job, however, she accepted the position at Lombardo's urging. (Id. at 71). In that regard, Lombardo explained that Plaintiff could use a smaller motorized scooter to minimize standing and walking, as opposed to the larger Cushman motorized vehicle that had previously been offered to Plaintiff as an accommodation.

On May 19, 2004, while she was still working as the Attendance Control Supervisor, Plaintiff was sent for two-hours of training in the SDO flat-sorter's position. (Pl. Dep. at 82). During the training, Plaintiff initially used the motorized scooter. (Id. at 85). According to Plaintiff, though, she had to park the scooter for safety reasons. (Id.) ("I used the scooter to get to the operations, and I had to park the scooter because it would have been a safety hazard to put it in between the mail and the pallets of mail and the gurneys of mail, so I had to basically put the Cushman off to the side of the operations in order to train in the vicinity of the machines."). Plaintiff experienced pain as a result of the training: "I ended up having pain in my neck and shoulder. . . . What was causing it was too much training involving me moving around too much. You can't sit -- I couldn't sit on a scooter and do these things and check mail, check gurneys, check U-carts, check pallets. Because you have to go through these things, so you have to stand up to do these things." (Id. at 86).

On May 21, 2004, Plaintiff had her second training session for the SDO flat-sorter position. (Id. at 93). Plaintiff states that the second training session was harder than the first, because there was more mail and fewer employees. (Id. at 93-94). Plaintiff again was unable to use the scooter effectively: "[T]here was a lot more mail, a lot more volume. So the place I had to put the scooter was a little further back. I couldn't place the scooter anywhere near the machine, and it was worse this time because there was a lot of pallets and a lot of mail just lying all around the machines, the building, so there was no way I could maneuver the scooter . . . ." (Id. at 95). Plaintiff experienced back pain and headache, and as a result, she "just couldn't function." (Id. at 96). Plaintiff felt that she was not "competent as the other supervisors," and that there was "no way [she could] do it," which caused her to feel anxious and depressed. (Id. at 97). Plaintiff left the sorting floor, went to the nurse's office, and then went home on sick leave.*fn2 Plaintiff subsequently began receiving ...


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