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Bohen v. Potter

March 23, 2009


The opinion of the court was delivered by: William M. Skretny United States District Judge



In this employment discrimination action, Plaintiff Timothy J. Bohen alleges that Defendant John E. Potter, Postmaster General, United States Postal Service, discriminated against him in violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, et seq., the Age Discrimination and Employment Act of 1967, 29 U.S.C. §§ 621, et seq. ("ADEA"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). (Compl. ¶ 1.)

Presently before this Court is Defendant's Motion for Summary Judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure.*fn1 (Docket No. 12). Plaintiff opposes the motion in part.*fn2 For the reasons stated below, Defendant's motion is granted in part and denied in part.


A. Facts

The following facts are taken from the parties' depositions, declarations, exhibits and respective Local Rule 56.1 statements of facts.*fn3 Plaintiff Timothy Bohen is a Caucasian male, age 57. (Pl.'s Statement, ¶ 1.*fn4 ) Plaintiff was employed by the United States Postal Service for over thirty-five years. (Pl.'s Statement, ¶ 2.) For the last ten years of his employment, Plaintiff held the position of Post Office Operations Manager ("POOM") in Buffalo, New York, a high level management position. (Pl.'s Statement, ¶ 2.) And beginning in July 2003, Plaintiff reported to David Patterson, District Manager. (Pl.'s Statement, ¶ 4; Defendant's Statement, ¶ 53.)

Plaintiff has a number of medical issues. In 1990, Plaintiff was diagnosed with Type 2 Diabetes Mellitus. (Defendant's Statement, ¶ 10.*fn5 ) Plaintiff also had been diagnosed with bilateral background retinopathy, nephropathy, chronic renal failure, neuropathy, bilateral Charcot's arthrotic changes, hypertension, myastenia graves, dyslipidemia, anxiety, depression and anemia. (Defendant's Statement, ¶¶ 10-11.)

In 1999, Plaintiff came under the care of Joseph Gerbasi, M.D., in order to treat Plaintiff's "large diabetic left foot ulcer." (Defendant's Statement, ¶¶ 12-13.) In November 1999, Plaintiff underwent an amputation of his left fifth toe. (Plaintiff's Statement, ¶ 8.) Plaintiff's post-operative course was difficult, but the wound eventually healed, although not completely. (Defendant's Statement, ¶ 13.) In February of 2000, Plaintiff was able to perform his regular functions as a postal worker. (Letter from Dr. Gerbasi to Karen Milazzo, March 10, 2004, Docket No. 15, Ex. G.)

Plaintiff's medical progress continued until January 23, 2003, when he developed "dry gangrene and extensive abscess of the forefoot of his left foot, with severe involvement of the first and second toes." (Defendant's Statement, ¶ 14.) On February 28, 2003, Plaintiff underwent a "modified transmetatarsal amputation of the left foot." (Plaintiff's Statement, ¶ 9.) As a result of the surgery, Dr. Gerbasi determined that Plaintiff was unable to work between February 28 and June 8, 2003. (Defendant's Statement, ¶ 16.)

On June 5, 2003, Plaintiff told Dr. Gerbasi that he wanted to return to work 4 hours a day. (Defendant's Statement, ¶ 17.) Believing that Plaintiff had sufficiently recovered, Dr. Gerbasi permitted his return to work and imposed several restrictions. (Defendant's Statement, ¶ 19.) Dr. Gerbasi listed the restrictions on a disability certificate form that is used by his office and is designed to make employers or educational institutions aware of the medical condition of the patient. (Defendant's Statement, ¶ 18.) The restrictions included limiting Plaintiff's workday to four to five hours in the office, minimal walking, and elevating the foot as much as possible. (Plaintiff's Statement, ¶ 15.) Dr. Gerbasi also prescribed a "shoe" for Plaintiff. (Plaintiff's Statement, ¶ 16.) The shoe is designed for amputees and has a Velcro binding to accommodate dressings. (Plaintiff's Statement, ¶ 16.) Dr. Gerbasi also signed Plaintiff's application for a handicap tag to place in his vehicle. (Plaintiff's Statement, ¶ 22.)

On June 9, 2003, Plaintiff returned to work, reporting to then District Manager, Nick Fabozzi. (Plaintiff's Statement, ¶ 24.) Upon his return, Plaintiff used a handicapped parking space, entered through a different, handicapped-accessible entrance, and wore a blue surgical shoe on his left foot. (Plaintiff's Statement, ¶¶ 21 & 23.)

In July 2003, David Patterson replaced Nick Fabozzi as the District Manger. (Plaintiff's Statement, ¶ 27.) Patterson issued a statement of personal expectations to Plaintiff and the others he managed. (Defendant's Statement, ¶ 54.) The personal expectations statement indicated that anyone, who needed to work less than eight hours per day and directly reports to Patterson, must personally notify Patterson of the need. (Defendant's Statement, ¶ 55.) Sometime in July 2003, Plaintiff met with Patterson and discussed his physical restrictions and his 4-5 hour workday. (Defendant's Statement, ¶ 57; Plaintiff's Statement, ¶ 29.) Patterson indicated that he had no need for a part-time POOM. (Plaintiff's Statement, ¶ 29.) Thereafter, Plaintiff began working full time. (Plaintiff's Statement, ¶ 30; Defendant's Statement, ¶ 58.)

After Plaintiff began working full time, Patterson asked Plaintiff if he had any plans to retire. (Plaintiff's Statement, ¶ 31.) Additionally, Robert Rutkowsky, the Acting Manager of Human Resources, had three conversations with Plaintiff, wherein he advised Plaintiff to bring in a slip from his physician clearing him to work without limitations. (Plaintiff's Statement, ¶ 36.) In response, Plaintiff told Rutkowsky that he did not understand the reason to bring a slip in because he resumed full time work. (Plaintiff's Statement, ¶ 37.) Rutkowsky explained that Patterson continued to ask him about Plaintiff's medical documentation. (Plaintiff's Statement, ¶ 38.)

In August 2003, Plaintiff saw Dr. Gerbasi for a follow up visit. (Plaintiff's Statement, ¶ 40.) Plaintiff told Dr. Gerbasi that he wanted to return to work full time and felt that he could do his job "from the desk, on the phone, the computer." (Bohen Dep. 74:11-14.) Plaintiff told Dr. Gerbasi that Patterson made it clear to him that he needed to get his medical restrictions lifted in order to continue at his position. (Plaintiff's Statement, ¶¶ 42 & 50.) Dr. Gerbasi completed a Disability Certificate that stated Plaintiff had sufficiently recovered to resume a normal workload and that he could return to work as of August 7, 2003, without restrictions. (Defendant's Statement, ¶¶ 25 & 28.) Plaintiff submitted the certificate to the United States Postal Service on August 14, 2003. (Defendant's Statement, ¶ 30.) Plaintiff did not submit any additional medical documentation regarding his ability to work with or without limitations between August 7, 2003 and January 5, 2004. (Defendant's Statement, ¶ 35.)

After submitting the new medical documentation, Plaintiff continued to work full time, without incident and without any performance issues raised by Patterson. (Plaintiff's Statement, ¶ 55.) Plaintiff sought and obtained permission from Patterson excusing him from a national meeting in Florida. (Plaintiff's Statement, ¶ 59.) Plaintiff told Patterson that his physician was concerned about the walking involved, the plane ride, and being away from his physician. (Bohen Aff. ¶ 33, April 26, 2007.)

On December 1, 2003, Plaintiff saw Dr. Gerbasi. (Defendant's Statement, ¶ 37.) Dr. Gerbasi found that the wound on Plaintiff's foot had become worse and placed him on bed rest for 30 days. (Defendant's Statement, ¶ 37.) Plaintiff did not discuss Dr. Gerbasi's bed rest directive with Patterson, and instead requested 30 days annual leave. (Bohen Dep. 82:16-23; 83:18-21.) Plaintiff requested annual leave because he had excess leave time, which would be forfeited if he did not use it by the end of the year. (Plaintiff's Statement, ¶ 62; Defendant's Statement, ¶ 61.) Patterson approved the leave. (Plaintiff's Statement, ¶ 63.) Dr. Gerbasi did not provide a new disability certificate that indicated Plaintiff needed time off from work because of his medical condition. (Defendant's Statement, ¶ 38.) Further, Dr. Gerbasi never indicated to Plaintiff that he could not return to work after resting the foot for thirty days. (Bohen Aff. ¶ 37.)

While Plaintiff was on annual leave, Patterson identified a number of deficiencies in Plaintiff's area of responsibility. (Defendant's Statement, ¶ 63.) After reviewing these deficiencies, Patterson stated that he lost confidence in Plaintiff's ability to perform his duties effectively. (Defendant's Statement, ¶ 63.) As a result, Patterson assigned another Manager to take over Plaintiff's position in order to correct the alleged deficiencies, developed a Performance Improvement Plan to assist Plaintiff, and assigned Plaintiff to a six-month detail position as Postmaster in Springville, New York. (Patterson Aff. ¶ 6, October 19, 2004.)Patterson stated that he intended to return Plaintiff to his position as POOM after the deficiencies had been corrected. (Defendant's Statement, ¶ 67.) Although the Springville Postmaster position was several grades below the POOM position (Plaintiff's Statement, ¶ 74), the Springville detail did not adversely affect Plaintiff's salary or employee benefits. (Defendant's Statement, ¶ 68.)

1. January 5, 2004

On January 5, 2004, Plaintiff met with Patterson. (Defendant's Statement, ¶ 70.)

Patterson provided Plaintiff with a performance evaluation for the 2003 fiscal year that stated Plaintiff "met objectives/expectations." (Defendant's Statement, ¶ 70.) Patterson also presented Plaintiff with the Performance Improvement Plan ("PIP") and told Plaintiff that, because of the seriousness of the deficiencies, Plaintiff was to report to Springville the next day for the six-month detail. (Defendant's Statement, ¶¶ 72 & 75.) Typically, when an employee is to be presented with a PIP, the employee is advised of the deficiencies before the PIP is presented and the employee typically participates in the development of the plan. (Plaintiff's Statement, ¶ 77.)

The meeting between Plaintiff and Patterson did not last long because Patterson was rushing to catch a flight. (Plaintiff's Statement, ¶¶ 79 & 80.) At the meeting, Plaintiff told Patterson that the assignment threatened his health. (Plaintiff's Statement, ¶ 86.) Plaintiff also wrote Patterson a memo wherein he requested a reasonable accommodation from the Springville assignment. (Plaintiff's Statement, ¶ 87.) Plaintiff's memo set forth his chronic diseases and physical condition. Id. However, Plaintiff did not specify the nature of accommodation he was seeking. (Defendant's Statement, ¶¶ 81-83.)

In response, Patterson informed Plaintiff that the most recent document he had on file indicated that Plaintiff's physical health permitted him to resume his job without restrictions. (Defendant's Statement, ¶ 88.) Patterson told Plaintiff to submit medical certification indicating that the assignment was threatening to his health. (Defendant's Statement, ¶ 89.) Plaintiff indicated that he would do so. (Defendant's Statement, ¶ 94.) Patterson further directed Plaintiff to report to Springville the following morning, and inform Sylvia Morris, Manager of Human Resources for the Western District, about any problems he might have with the assignment. (Defendant's Statement, ¶ 95.)

Because Patterson was leaving town, he delegated full authority to Sylvia Morris. (Plaintiff's Statement, ¶ 95.) Patterson instructed Morris that if there were any problems, she could make alternate work arrangements for Plaintiff until his doctor's appointment or reassign Plaintiff to the Blasdell Station, as Station Manager. (Plaintiff's Statement, ¶¶ 96-97.) The Blasdell Station Manager does not perform as much physical work as the Postmaster in Springville. (Plaintiff's Statement, ¶ 100; Defendant's Statement, ¶ 105.)Patterson also told Morris that, should Plaintiff voice concerns, she could address those concerns with the District's Reasonable Accommodation Committee. (Defendant's Statement, ¶ 90.)

2. January 6, 2004

Plaintiff reported to the Springville Post Office at approximately 7:30 a.m. (Defendant's Statement, ¶ 106.) When Plaintiff arrived, he discussed the duties of Postmaster at the Springville Post Office with then-Postmaster, Irene Barone. (Plaintiff's Statement, ¶ 104.) Barone informed Plaintiff that she worked ten hours a day, and spent at least four hours delivering mail, servicing vending machines, transporting mail, and spent the remainder of the day on her feet. (Defendant's Statement, ¶ 108.) Plaintiff informed Barone that the job was too physically demanding for him. (Defendant's Statement, ¶ 109.) Barone agreed and stated that the job was even too physically demanding for her on some days. (Defendant's Statement, ¶ 110.) After spending approximately one and a half hours at the Springville location, Plaintiff went home. (Defendant's Statement, ¶ 112.)

Upon his return home, Plaintiff called Morris to convey his concerns about the assignment. (Defendant's Statement, ¶ 114.) Morris was unavailable and Plaintiff left a message. (Defendant's Statement, ¶ 115.) Plaintiff told his wife that, if Morris called back, she should advise Morris that all communications going forward needed to be in writing. (Plaintiff's Statement, ¶ 108.) When Morris called back, Plaintiff's wife conveyed the message. (Defendant's Statement, ¶ 117.) Morris never spoke with Plaintiff on January 6, 2004, or thereafter. (Defendant's Statement, ¶ 118.)

By letter dated January 6, 2004, Plaintiff wrote Morris advising her that he was unable to perform the Springville detail assignment given his physical limitations. (Defendant's Statement, ¶ 122.) Morris was concerned about not knowing Plaintiff's specific injuries because the last medical documentation on record indicated that Plaintiff had been released to full time duty without restrictions. (Morris Dep. 104:8-17.) Morris believed that nothing short of medical certification would have changed her opinion about whether Plaintiff qualified as a disabled person. (Morris Tr. 108:2-5.) Plaintiff submitted no medical documentation to the United States Postal Service to support his claim that he had severe walking and standing restrictions as of January 6, 2004. (Defendant's Statement, ¶ 127.) On January 6, 2004, Plaintiff requested paperwork for a disability retirement (Defendant's Statement, ¶ 120), and, during Plaintiff's deposition, Plaintiff stated that there was no accommodation that the Postal Service could give him that would allow him to do the job in Springville. (Defendant's Statement, ¶ 126.)

3. January 7, 2004

Plaintiff did not report to work on January 7, 2004. (Defendant's Statement, ¶ 128.) At the end of his scheduled shift, Plaintiff contacted the Attendance Control Officer at the United States Postal Service and advised that he would be absent indefinitely due to stress. (Defendant's Statement, ¶ 130.) Plaintiff did not personally notify Patterson of his absence. (Defendant's Statement, ¶ 131.) As a result, Plaintiff was charged with Absent Without Official Leave ("AWOL"). (Letter from David Patterson to Timothy Bohen, March 9, 2004, Docket No. 15, Ex. JJ.) Patterson also stated in his letter to Plaintiff that, "[t]he last medical record that you have on file indicates that you are able to perform your full duties with no medical restrictions." (Letter from David Patterson, Ex. JJ.)

Morris sent Plaintiff three letters, all dated January 7, 2004. (Plaintiff's Statement, ¶ 117.) None of the letters mentioned the Blasdell position. (Plaintiff's Statement, ¶ 117.) Morris informed Plaintiff that Patterson instructed him to submit medical certification to support any medical limitations. (Letter from Sylvia Morris to Timothy Bohen, January 14, 2004, Docket No. 19, Ex. 14.) Plaintiff never submitted any medical documentation to the United States Postal Service to support his request for a reasonable accommodation. (Defendant's Statement, ¶ 124.)

4. Additional Events

Plaintiff visited Russell Shefrin, Ph.D., his psychologist on January 8, 2004. (Plaintiff's Statement, ¶ 131.) By letter dated January 21, 2004, addressed to Morris, Dr. Shefrin stated that Plaintiff was unable to work because of "intense emotional distress" that commenced on January 6, 2004. (Defendant's Statement, ¶ 134.) Dr. Shefrin wrote additional letters on January 12, January 30, and February 19, 2004, indicating that Plaintiff was psychologically unable to work until May 3, 2004. (Defendant's Statement, ¶¶ 135 & 139.)

On January 10, 2004, Plaintiff applied for injury compensation benefits. (Defendant's Statement, ¶ 136.) Plaintiff indicated that the disease or illness for which he sought compensation benefits was stress, anxiety, and depression, all of which were caused or aggravated by his employment. (Plaintiff's Statement, ¶ 133; Bohen Tr. 123:5-14). Plaintiff stated that the "extreme stress began on January 5, 2004 when Mr. Patterson arbitrarily and capriciously assigned me to [Springville]." (Docket No. 15, Ex. AA). Plaintiff was eventually awarded $187,000.28 in gross workers compensation benefits. (Docket No. 22, Ex. A.)

On January 15, 2004, Plaintiff applied for disability retirement benefits. (Defendant's Statement, ¶ 143.) On his application, Plaintiff indicated that he became disabled as of January 1, 2003. (Defendant's Statement, ¶ 144.) Plaintiff stated that his disability was the result of the amputation of his left foot, his "collapsed right foot" and the ulcer that will not heal. (Docket No. 15, Ex. PP.) Plaintiff's application for disability benefits was approved on April 7, 2004 and became effective on June 2, 2004. (Bohen Aff. ¶ 1, June 24, 2004.)

On January 22, 2004, Plaintiff visited Dr. Gerbasi and brought him a letter stating that "due to other health problems, as well as my left foot amputation and right charcot joint, I can no longer provide my job duties." (Defendant's Statement, ¶ 43.) After Dr. Gerbasi examined Plaintiff, he felt that Plaintiff had not responded to bed rest, and agreed that Plaintiff could no longer perform the duties required of him in his current position. (Defendant's Statement, ¶ 44.) On January 29, 2004, Plaintiff was examined by Bernard Rohrbacher, M.D., an orthopedic surgeon, who believed that Plaintiff was a candidate for total disability because of the physical condition of his feet. (Defendant's Statement, ¶ 45; Docket No. 15, Ex. O.)

On February 25, 2004, Morris wrote Plaintiff informing him that he had still not submitted any medical documentation supporting his request for a reasonable accommodation. (Defendant's Statement, ¶ 141.) However, on March 9, 2004, Deborah Miller, M.D., a USPS contract physician, reviewed the medical documentation in Plaintiff's disability retirement file and concluded that he was totally disabled from his position as both POOM and Postmaster. (Defendant's Statement, ¶ 47.) Further, by letter dated March 10, 2004, Dr. Gerbasi informed the Postal Service that Plaintiff could no longer perform the duties required of him in his present position. (Defendant's Statement, ¶ 46.) Dr. Gerbasi's letter did not ...

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