Smith v. Potter

GARY D. SMITH, Plaintiff,

v.JOHN E. POTTER, Postmaster General United States Postal Service, Defendant.

1:09CV587

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DATED: December 17, 2010

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter comes before the Court for a recommendation on "Defendant's Motion For Summary Judgment" (Docket Entry 16) filed by Defendant John E. Potter ("Potter"), the Postmaster General of the United States Postal Service ("USPS"). For the reasons set forth herein, the Court recommends that "Defendant's Motion For Summary Judgment" (Docket Entry 16) should be granted.

I. FACTUAL BACKGROUND¹

This matter arises out of a pro se Complaint filed by Plaintiff Gary D. Smith ("Smith") on August 5, 2009, which names Potter as the Defendant. (Docket Entry 1.) Smith alleges that he suffered unlawful disability-related employment actions in connection with his employment with the USPS. (See id.) Specifically, Smith claims that his USPS Supervisor James Constable ("Constable") failed to accommodate Smith's disability. (Id., ¶ 1.) Moreover, Smith contends that another USPS Supervisor Ronnie Warren ("Warren") failed to accommodate Smith's disability, and that Warren harassed and threatened Smith. (Id., ¶ 2.) Finally, Smith asserts that a third USPS Supervisor, Amanda Dougherty ("Dougherty"), harassed and threatened him. (Id., ¶ 3.)²

Smith's Initial Injury

Smith began working with the USPS in Gibsonville, North Carolina, in July 1993 (Docket Entry 17-18 (Smith Dep.) at 27:20-25), ³ and he remains currently employed there as a full-time city carrier (id. at 17:20-18:2, 18:23-24).

While playing basketball in early August of 2003, Smith sprained his right foot, and his doctor advised him to stay off it for four to six weeks. (Id. at 41:23-42:12; Docket Entry 19 at 9.)⁴ On September 4, 2003, Smith was walking a postal route, when he "twisted [his] ankle again very badly[,]" but he told a senior USPS clerk that he would finish his route and his foot "ruptured[.]" (Docket Entry 17-18 at 42:2-4.) Smith also injuredhis back (id. at 42:18-19), although the record does not show exactly when that injury occurred.⁵

Smith's doctor restricted his work duties and, in or around September 2003, Smith's supervisor, Teresa Long, placed Smith "on light duty for maybe a week or two maybe, and then after that... put [Smith] on extended sick leave for three months." (Id. at 45:1-3, 45:9-15.)⁶ A Duty Status Report (also identified as "Form CA-17"), dated December 3, 2003, signed by Smith's physician, stated that he could return to work with a fifteen-pound lifting restriction (Docket Entry 17-22 at 2), ⁷ and in January 2004, Smith was working in a limited duty status (Docket Entry 17-21 (Constable Aff.), ¶ 4). A subsequent January 7, 2004, Duty Status Report prohibited Smith from lifting more than fifteen pounds or "Bending/Stooping." (Docket Entry 17-23 at 2.) On January 8, 2004, Long signed an "Offer of Modified Assignment (Limited Duty)" with Smith that provided for a six-hour work-day and office dutiesthat he could perform while sitting. (Docket Entry 17-21, ¶ 6; Docket Entry 17-24 at 2.)

Supervisor Constable

On January 14, 2004, Constable was assigned to the Gibsonville Post Office as the Officer-In-Charge ("OIC") (Acting Postmaster). (Docket Entry 17-21, ¶ 3.) He instructed Smith to meet with his physician and to provide updated medical information. (Id., ¶ 7.) Smith submitted a January 27, 2004 Duty Status Report that stated that he could return to work with a twenty-five-pound lifting restriction. (Docket Entry 17-25 at 2.) Subsequently, a Duty Status Report from February 4, 2004, was provided to Constable which continued the twenty-five-pound lifting restriction and added a walking restriction to one hour per day in fifteen minute increments. (Docket Entry 17-26 at 2-3.)

On February 12, 2004, Constable signed and Smith initialed an "Offer of Modified Assignment (Limited Duty)" creating a position for Smith which, according to Constable, permitted Smith to "perform various office duties while on modified duty assignment." (Docket Entry 17-21, ¶ 10; Docket Entry 17-27.) That agreement provided that Smith's duties included: case mail; pull down mail; deliver mail by walking and riding; observe all safety requirements; other duties as assigned by Postmaster or designee. (Docket Entry 17-27.) The requirements for these duties were described as "stand while casing mail" for up to three hours; "walk in 15 minute increments up to 1 hour per day[;]" lift < 20 lbs, load trays to < 25 lbs, hand off parcels > 25[;]" and "drive postalvehicle." (Id.) Smith later provided a Duty Status Report dated February 16, 2004, which stated that he could return to work with a fifteen-pound lifting restriction. (Docket Entry 17-28 at 2.)

On March 10, 2004, Smith met with Dr. E.L. Hines with respect to "persistent spasm in his back." (Docket Entry 17-29 at 2.) Dr. Hines wrote: "Have told Gary that I cannot find any medical basis for further restricting him at work in any way and that he should return to all his regular duties at work. I have no other suggestions for management." (Id.)⁸

In early April 2004, Smith submitted a Duty Status Report dated March 31, 2004, which provided for a restriction of working "6 hours a day" and "lifting limit 15-20 pounds." (Docket Entry 17-21, ¶ 3; Docket Entry 17-30 at 2.) Constable received the form, but failed to take note of the restriction:

Mr. Smith asked me to make a copy of the CA-17 for him, so without looking at the form, I copied it and filed it. Unfortunately, when I stuck it in the file cabinet, I missed Mr. Smith's folder and placed it between his folder and the next folder. Because of my oversight, I continued to occasionally schedule assignments for Mr. Smith that exceeded his six-hour restriction. Two weeks passed before Mr. Smith indicated to me that I was violating his restrictions. I did not think I was violating his restrictions and asked him what restriction I had violated.

(Docket Entry 17-21, ¶ 13.) According to Smith, "[w]hen Mr. Constable asked how he was violating my restriction, I told him to look at the CA-17 form." (Docket Entry 19 at 2.)⁹

On April 13, 2004, Smith wrote a letter to Shared Services Center, the agency which processes injury compensation claims for the USPS, and complained in relevant part that:

I am writing this letter to inform your office of Mr. James Constable [sic] constant violations on [sic] the doctor's request. Mr. Constable has been less cooperative to the form or my recovery from the injury. Not only has the Officer in Charge has [sic] violated my Ca-17 [sic], which was listed on March 18, 2004, but he has made it clear of my expectation within the office. Mr. James is working me over 6 hours a day, but also noted by given [sic] me a form 1017-B for Unauthorized Over time.... Mr. James is continuing to violate my Limited Duty status and mention [sic] to one of my customer [sic] of his action in Removing me.

(Docket Entry 17-12, ¶ 14; Docket Entry 17-31 at 2.)¹⁰ On April 29, 2004, Smith wrote a letter to the Post Office Operations Manager, Maged Aziz, stating in pertinent part that: I am writing this letter to inform your office of Mr. James Constable [sic] constant violations of my restrictions. I have notified Shared Services of his violations and also brought these incident [sic] to my local steward. Mr. Constable is aware of my limitations and restrictions but chooses to ignore my CA-17. My doctor has brought these restrictions to my current supervisor [sic] attention.... Although Mr. Constable has instructed me to violate my doctor's restrictions, he also instructed me of his disciplinary actions concerning Unauthorized Overtime. (PS Form 1017-B) I do have some good days on my job, but the medications along with my injuries prohibit me to perform within the Full Duty Assignment.

(Docket Entry 17-12, ¶ 15; Docket Entry 17-32 at 2.)

Smith filed an EEO claim which resulted in a May 4, 2004, mediation. (Docket Entry 17-12, ¶ 16.) At this mediation, Smith produced the March 31, 2004, Duty Status Report. (Id.) Constable admitted his "oversight regarding Mr. Smith's work restrictions...." (Id.)

Smith had previously been scheduled to work on a particular route on May 6, 2004. (Id., ¶ 17.) Smith's schedule was not altered, despite the mediation meeting, because, as Constable explained:

I had previously settled grievances with the National Association of Letter Carriers (of which Mr. Smith is a member) that required that I not work a non-overtime desired employee on his day off, that I not borrow qualified carriers from other offices, and that I not use rural carrier associate to do city carrier work. I had only two employees eligible to work that day-Gary Smith and Tim Neese. I had a responsibility to accomplish delivery of the mail using those resources available to me.

(Id.) After Smith was already out at work, Constable's manager emailed instructions to Constable to begin scheduling Smith to work six hours per day. (Id.) Smith complains that Constable did not "go out on the route and find me to make sure that I did not work more than six hours on that day." (Docket Entry 19 at 2.)

According to Constable, from May 7, 2004, until Constable left his position on June 24, 2004, Smith did not work more than six hours on any particular day. (Docket Entry 17-12, ¶ 17.)¹¹ During this period, Constable "held official discussions and pre-disciplinary interviews with Mr. Smith and his Shop Steward regarding Mr. Smith's poor performance, " but Constable only issued a disciplinary action against Smith "when he failed to properly scan an overnight Express Mail piece in late May[.]" (Id., ¶ 19.) On May 20, 2004, Smith filed an EEO Complaint related to Constable's conduct. (Docket Entry 17-1, ¶ 5; Docket Entry 17-2 at 2.) On June 14, 2004, Smith contacted an EEO counselor complaining of discrimination by Constable and...