United States District Court, D. Maryland
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Connell Dones, Plaintiff, Pro se, Cheltenham, MD.
For Patrick R. Donahoe, Defendant: Tarra DeShields Minnis, LEAD ATTORNEY, Office of the United States Attorney, Baltimore, MD.
DEBORAH K. CHASANOW, United States District Judge.
Presently pending and ready for review in this employment discrimination case are two motions. Plaintiff Connell Dones filed a motion to proceed in forma pauperis to be able to seek reconsideration of this court's denial of appointment of counsel. (ECF No. 9). Second, Defendant Patrick R. Donahoe, Postmaster General of the United States, filed a renewed motion to dismiss or, alternatively, for summary judgment. (ECF No. 19). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Plaintiff's motion will be granted. Defendant's motion will be granted in part and denied in part.
Unless otherwise noted, the facts outlined here are construed in the light most favorable to Plaintiff, the nonmoving party.
Plaintiff is a male who was sixty (60) years old during the relevant time period. He was an employee of the United States Postal Service (" USPS" ) from October 1993 to October 5, 2010. This case centers
around Defendant's refusal to accommodate Plaintiff's disability by providing a swivel chair which led to Plaintiff's retirement from USPS.
Plaintiff was a mail processor at USPS's Southern Maryland Processing and Distribution Center in Capitol Heights, Maryland. The mail processor job involves working in front of two banks of sorting bins positioned at a right angle to each other. Plaintiff suffered an on-the-job injury in 2000, which was reaggravated in 2006. (ECF No. 1 ¶ 7). Plaintiff's specific injury was Cervicalgia, or neck pain. At some point after the 2000 injury, Plaintiff applied for, and was granted, workers' compensation pursuant to the Federal Employees' Compensation Act (" FECA" ), which is administered by the Office of Workers' Compensation Programs (" OWCP" ) within DOL. OWCP terminated Plaintiff's claim for medical and wage loss benefits effective December 10, 2007 after it determined that Plaintiff's most recent medical records established that his Cervicalgia had ceased or was no longer injury-related. (ECF No. 22-10). Plaintiff apparently attempted to file a recurrence claim on March 31, 2009, but a May 29, 2009 letter from DOL indicates that it was not in receipt of this claim. (ECF No. 22-11). On October 8, 2008, Defendant offered - and Plaintiff accepted - a modified assignment which stated that his assignments would require no lifting of more than twenty-five (25) pounds, no twisting of the neck, and bending and stooping for an average of four to six hours per day. (ECF No. 22-8).
Plaintiff's immediate supervisors were Mr. Tyrone Thibodeaux and Mr. Bryan Owens. According to Plaintiff, they insisted that he work while sitting on a stool with a rest bar. (ECF No. 22-2 ¶ 7, affidavit of Connell Dones). A stationary stool did not ameliorate neck twisting, as Plaintiff's work required him to deposit mail in bins set at ninety-degree angles from each other. ( See ECF No. 22-9).
Plaintiff has repeatedly requested from his management leave to use a swivel chair. The requests were almost universally denied. This case stems from Plaintiff's September 2010 request. (ECF No. 1 ¶ 14). Plaintiff had previously requested the use of a swivel chair in August and October 2009, the latter request resulting in an EEO complaint. ( Id. ¶ 15). At the time of the September 2010 request for accommodation, Plaintiff had two pending EEO complaints against USPS management, including Messers. Thibodeaux and Owens. (ECF No. 22-1, at 3).
On June 1, 2010, Dr. Thu Nguyen completed United States Department of Labor, Office of Workers' Compensation Programs (" OWCP" ) Form CA-17, " Duty Status Report." Dr. Nguyen listed Plaintiff's diagnosis due to injury as Cervicalgia, or neck pain. The report states that Plaintiff's work should require no twisting of the neck and that he needs a swivel chair. (ECF No. 22-3).
Mr. Thibodeaux submitted an affidavit in this case. He states that on one or two occasions Plaintiff requested use of a swivel chair. Mr. Thibodeaux " informed Plaintiff that he must request that his physician write a prescription for the swivel chair, and submit the prescription to his case worker at the Department of Labor for approval." (ECF No. 19-14). He states that he never received any medical documentation from Plaintiff's physician or a DOL approval. According to Mr. Thibodeaux, all other postal employees with swivel chairs who worked in Plaintiff's area had the use of those chairs approved by DOL.
According to Plaintiff, Mr. Thibodeaux consistently referred Plaintiff to DOL, stating its approval was necessary. (ECF
No. 22-2 ¶ ¶ 12-13). Plaintiff argues, however, that DOL was not a viable option as it had already terminated his claim effective December 10, 2007. Plaintiff contends that, in any event, DOL is not the sole authority for granting disability accommodation requests within USPS. Plaintiff alleges that other employees received accommodations without being required to submit their requests to DOL. Plaintiff was unable to learn the full names of these individuals because of privacy issues. (ECF No. 22-1 ¶ 18).
Plaintiff also produced prior physician treatment records indicating the same prescription, namely the necessity of a swivel chair at work. These doctor's notes are dated February 12, 2008, March 18, 2008, and May 28, 2009. (ECF Nos. 22-4 to 22-6). Plaintiff alleges that these prescriptions were substantially similar to the prescriptions submitted by other postal employees who were granted use of swivel chairs. Plaintiff attaches the doctor's notes given to three postal employees. (ECF No. 22-7). By contrast, Plaintiff's requests for a swivel chair were consistently denied with one exception. In 2007 or 2008, Ms. Margaret Boston approved Plaintiff's request. She did not forward the request to DOL, saying it was not necessary because it was a request for an accommodation. Mr. ...