Kendall v. Donahoe

913 F.Supp.2d 186

Beth KENDALL, Plaintiff,

v.Patrick R. DONAHOE, Postmaster General, United States Postal Service, Defendant.

Civil Action No. 2:10–cv–1209.

United States District Court, W.D. Pennsylvania.

Dec. 21, 2012.

Joel S. Sansone, Scanlon & Sansone, Jonathan M. Gesk, Wayman, Irvin & McAuley, Pittsburgh, PA, for Plaintiff.

Paul D. Kovac, United States Attorney's Office, Pittsburgh, PA, Defendant.

OPINION

MARK R. HORNAK, District Judge.

This tale began on February 16, 2007, when Beth Kendall, a former part-time postal worker, filed a workers' compensation claim for an injury she allegedly sustained while shoveling snow outside the Pulaski, Pennsylvania United States Post Office. Ms. Kendall believes that it should end with a jury trial in federal court, claiming that her discharge was in unlawful retaliation for her engaging prior protected activity under the Rehabilitation Act, 29 U.S.C. 701 et seq. Currently before the Court is Defendant United States Postal Service's (“USPS”) Motion for Summary Judgment, ECF No. 134.¹ The parties have extensively briefed this Motion, and the Court's deliberations have been materially aided by the oral argument presented by all counsel. For the reasons that follow, Defendant's Motion is granted.

I. BACKGROUND

While the parties contest many matters related to Ms. Kendall's employment, the relevant material facts of this case are straightforward and undisputed. Ms. Kendall was hired by the USPS in 2003 and took on the position of a part-time flexible Sales & Service Distribution Associate (SSDA) at the Pulaski, Pennsylvania Post Office, Def.'s Stmt. Mat. Facts ¶ 1, ECF No. 136. On February 14, 2007, Ms. Kendall allegedly suffered a back injury while shoveling snow outside the front door of that Post Office. Def.'s Supp. Stmt. Mat Facts ¶ 189, ECF No. 151. She filed a federal Workers' Compensation Claim on February 16, 2007 for that injury. App'x Def.'s Suppl. Br. Supp. S.J. Ex. 69, ECF No. 152.

On December 31, 2007, Ms. Kendall filed an EEOC Charge of Discrimination against the USPS, alleging that the USPS had taken a number of actions against her in “retaliation/discrimination/harassment for the filing of my OWCP claim for my on the job injury while shoveling snow at the Pulaski office on 12–14–07.” App'x Def.'s Mot. S.J. Ex. 8 at 6, ECF No. 137; see id. at pp. 4, 6–8 of 11. The “OWCP claim” was her workers' compensation claim. On that EEOC Charge form, Ms. Kendall did not check any of the pre-printed boxes for “Type of Discrimination,” which were Race, Color, Religion, National Origin, Sex, Age, Retaliation, and Disability, but she instead hand-wrote “See attached documentation.” Id. at p. 3 of 11. Prior to submitting that Charge, Ms. Kendall filled out two “Information for Pre–Complaint Counseling” forms, in which she also wrote that she felt she was being “retaliated/harassed for the filing of my worker's comp claim,” ECF No. 152 Ex. 70, Ex. 71. In none of her EEOC forms did Ms. Kendall indicate any other basis for which she perceived that she received discriminatory treatment at the hands of her employer, the USPS, nor did she detail any ongoing physical or mental impairment. At that point, Ms. Kendall had never had any prior activity with the EEOC. See id. Ex. 70 at Block E; Ex. 71 at Block E; Ex. 78 at p. 1 of 39.

On January 11, 2008, the EEOC allowed Ms. Kendall to proceed on a claim for “discrimination based on Retaliation (for prior EEO activity).” Partial Acceptance/Partial Dismissal of Formal EEO Complaint, id. Ex. 75 at 2. That report noted that while on its face the Charge only claimed retaliation for the filing of a workers' compensation claim, the investigator was under the impression that the “complaint also indicates retaliation for EEO activity,” which would need to be clarified “during the course of the investigation.” Id. at 1 n. 1. In her subsequent filings regarding that investigation, on February 21, 2008, Ms. Kendall again informed the EEOC that she did not in fact have any EEO activity prior to her initial 2007 contact related to her workers' compensation claim. Id. Ex. 78, p. 1 of 39.

On March 3, 2009, the EEOC ordered the USPS to submit answers to Ms. Kendall's discovery requests in the Charge investigation. Because the USPS never submitted those answers or responded to a follow-up show cause order, EEOC Administrative Judge Elliott Porter sanctioned the USPS by awarding Ms. Kendall a “Default Judgment” on her Charge on May 12, 2009. ECF No. 137 Ex. 10. Although Ms. Kendall thus prevailed on that basis, the merits of her claims against the USPS were never reached. See id. On September 22, 2009 Judge Porter issued a ruling as to the damages the USPS would have to pay Ms. Kendall, Pl.'s App'x Br. Opp. Mot. Ex. R, ECF No. 140, which the USPS accepted in its “Notice of Final Action” on December 4, 2009, id. Ex. T.

In the meantime, Ms. Kendall's tempestuous employment relationship with the USPS continued until December 11, 2009, when she was removed from her position because the USPS charged that she had improperly opened mail addressed to the “Postmaster” and had then stolen mail addressed to the “Postmaster” on November 28, 2009.² On October 2, 2009, Ms. Kendall had also initiated the process of filing a second EEOC Charge by filing Pre–Complaint grievances with the EEOC, alleging that she was the victim of harassment in retaliation for her 2007 EEOC activity. Pl.'s Counter–Stmt. Mat. Facts ¶ P–10–11, ECF No. 138. After her termination, Ms. Kendall filed a second EEOC Charge on February 28, 2010, alleging harassment and discharge “in retaliation for my prior EEO activity,” citing only her 2007 EEOC case. ECF No. 137 Ex. 9. at p. 8 of 140, Q# 4. After receiving a right to sue letter from the EEOC for the second (February 28, 2010) charge, Ms. Kendall filed suit in this Court on September 14, 2010, alleging that the USPS terminated her in unlawful retaliation for her prior “protected activity,” in violation of Title VII, 42 U.S.C. § 2000e–2(m), and the Rehabilitation Act, 29 U.S.C. 701 et seq. Am. Compl. ¶¶ 3, 8, 10, ECF No. 12.³ Plaintiff asserts as the protected activity for which she was terminated both the 2007 EEOC Case (“2007 EEOC Case”) and her October 2009 activity surrounding the second EEOC Charge (“2009 EEOC Case”). See Pl.'s Counter–Stmt. Mat. Facts ¶ 18, ECF No. 138.

Defendant now moves for summary judgment, asserting among other things that Ms. Kendall's charges must fail as a matter of law because she did not engage in statutorily “protected activity.” Plaintiff, in response, concedes that she does not have a valid Title VII retaliation claim because her claims did not originate with alleged discrimination on the basis of race, color, gender, national origin, or religion. But she asserts that her Rehabilitation Act retaliation claim is still valid, because “the initial discrimination arose out of her physical and mental disability, which is a protected class under the Rehabilitation Act” as evidenced by “Defendant's extensive discovery of Plaintiff's physical and mental health records, and the extensive testimony regarding Plaintiff's various leaves of absence and whether she supplied the proper documentation regarding those requested leaves.” Pl.'s Reply Def.'s Suppl. Br. Supp. Mot. S.J. at 3, ECF No. 154. Therefore, all that remains in this case is a single count alleging retaliatory termination in violation of the Rehabilitation Act. The question presented to the Court is whether Ms. Kendall engaged in the requisite “protected activity” under the Rehabilitation Act necessary to assert a claim of retaliation.

II. DISCUSSION

A. Standard of Review

Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “In considering a motion for summary judgment, a court must draw all reasonable inferences from the underlying facts in the light most favorable to the non-moving party.” Emerson Radio Corp. v. Orion Sales, Inc., 253 F.3d 159, 162 (3d Cir.2001).

B. Retaliation under the Rehabilitation Act

The Rehabilitation Act, 29 U.S.C. § 701 et seq. requires a federal employer or an employer who receives federal funding to comply with the standards set forth in the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq.Shiring v. Runyon, 90 F.3d 827, 830–31 (3d Cir.1996). Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, incorporates by reference the substantive standards of the ADA, 42 U.S.C. §§ 12201–04, 12210. First, the ADA prohibits an employer from discriminating against “a qualified individual on the basis of disability,” 42 U.S.C. § 12112, a prohibition that includes failing to reasonably accommodate such individuals. Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 191 (3d Cir.2009).⁴

Second, § 503(a) of the ADA prohibits retaliatory discrimination:

No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.

42 U.S.C. § 12203(a) (emphasis added). Third, Third Circuit has also held that it is unlawful to retaliate against an employee for making a good faith request for an accommodation, even if that employee is not “disabled” under the ADA. Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191 (3d Cir.2003).⁵ “Because the anti-retaliation provisions of the ADA and ADEA are nearly identical, as is the anti-retaliation provision of Title VII, we have held that precedent interpreting any one of these statutes is equally relevant to interpretation of the others.” Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir.2002). Like Title VII, the ADA's anti-retaliation provision consists of an “opposition clause” and a “participation clause.” See ...