United States District Court, D. Maryland
Connell Dones, Plaintiff, Pro se, Cheltenham, MD.
Patrick R. Donahoe, Defendant: Tarra DeShields Minnis, LEAD
ATTORNEY, Office of the United States Attorney, Baltimore,
K. CHASANOW, United States District Judge.
pending and ready for resolution in this employment
discrimination case is a motion for summary judgment filed by
Defendant Megan J. Brennan, Postmaster General of the United
States (" Defendant" ). (ECF No. 66). Also pending
is a motion for leave to file a surreply filed by Plaintiff
Connell Dones (" Plaintiff" ). (ECF No. 78). The
issues have been fully briefed, and the court now rules, no
hearing being deemed necessary. Local Rule 105.6. For the
following reasons, Defendant's motion for summary
judgment will be granted in part and denied in part.
Plaintiff's motion for leave to file a surreply will be
otherwise noted, the facts outlined here are construed in the
light most favorable to Plaintiff, the nonmoving party.
Additional facts are presented in a prior memorandum opinion.
( See ECF No. 23, at 1-6).
was an employee of the United States Postal Service ("
the USPS" ) from October 1993 to October 5, 2010. Most
recently, Plaintiff worked as a mail processor at the USPS
Southern Maryland Processing and Distribution Center in
Capitol Heights, Maryland. This job required Plaintiff to
" process mail using automated mail processing equipment
or manual methods of sortation and distribution." (ECF
No. 66-5). Plaintiff suffered on-the-job injuries in 2000 and
2006. (ECF No. 66-4, at 4). One of Plaintiff's injuries
stemmed from his use of a " rest-bar," which is a
" stool-like piece of equipment ergonomically designed
to lift the employee forward as he sits or leans on it and it
keeps the employee erect while he or she cases the
mail." (ECF Nos. 66-2, at 9-10; 66-4, at 3).
Plaintiff's injury was chronic cervicalgia, or neck pain.
Plaintiff also suffered from a herniated disk and experienced
related back pain. Because of his injuries, Plaintiff's
doctor noted that Plaintiff " need[ed] a swivel
chair" and should engage in " no twisting of
neck." (ECF No. 66-6). Plaintiff was also unable to
stand continuously for the entire eight hour workday. (ECF
No. 66-8 ¶ 9).
light of his disability, in October 2008, Plaintiff was
offered a " light-duty assignment." ( Id.
). This assignment indicated, in part, that Plaintiff would
not be required to twist his neck. (ECF No. 68-3 ¶ 11).
Plaintiff was also provided a rest bar to lean on. (ECF No.
66-2, at 9-10). Despite the limited nature of his new
assignment and the use of the rest bar, Plaintiff avers that
" it was not possible to avoid twisting [his]
neck." (ECF No. 68-3 ¶ 11). Plaintiff contends
that, while performing his modified job duties, " he
continued to experience injury and pain requiring frequent
leave from work." (ECF No. 68-1 ¶ 7).
noticed that other USPS employees were able to perform their
tasks while sitting in a swivel chair. On multiple occasions,
Plaintiff approached his supervisors to request the use of a
swivel chair. ( Id. ¶ 11). In June 2009,
Plaintiff offered to purchase a swivel chair with his own
money, but his manager did not approve the request. (ECF No.
68-14). This case stems from Plaintiff's September 2010
request. (ECF No. 1 ¶ 14). Plaintiff's managers
continually denied Plaintiff's requests, including the
September 2010 request, to use a swivel chair and told
Plaintiff that he must submit his request to the Department
of Labor. (ECF No. 66-10 ¶ 21). Following the denial of
his September 2010 request, Plaintiff submitted his
retirement application on September 20, 2010, which became
effective on October 5, 2010. (ECF No. 66-9 ¶ 2).
filed a claim of discrimination with the USPS's Equal
Employment Opportunity Office (" EEO" ) on October
15, 2010. Plaintiff claimed discrimination based on race,
color, gender, age, retaliation, and disability when: (1) he
was denied a swivel chair in September 2010; (2) he was given
a letter of warning after asking for leave pursuant to the
Family Medical Leave Act (" FMLA" ); and (3) when
he was forced to retire. (ECF No. 19-13). USPS issued a final
agency decision on October 12, 2012 rejecting his claims. (
Id. ). Plaintiff avers that he received this
decision on October 17, 2012. (ECF No. 12, at 3). On November
16, 2012, Plaintiff filed a pro se complaint in this
court. (ECF No. 1). Plaintiff contends that Defendant's
refusal to provide him a swivel chair and subsequent
constructive termination of his employment constitute
employment discrimination on the basis of sex, age,
disability, and prior protected activity in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, et seq. ; the Age Discrimination in
Employment Act (" ADEA" ), 29 U.S.C. § 621,
et seq. ; and the Rehabilitation Act, 29 U.S.C.
§ 701, et seq. 
December 12, 2013, the undersigned granted in part and denied
in part Defendant's motion to dismiss or, in the
alternative, for summary judgment. (ECF Nos. 23; 24). The
court entered judgment against Plaintiff with regard to his
claims of age discrimination, sex discrimination, and
disability discrimination in the form of wrongful discharge.
(ECF No. 24 ¶ 4). Plaintiff's claims for retaliation
and failure to accommodate under the Rehabilitation Act
remained. ( Id. ¶ 5). The parties then
conducted discovery and attended a settlement conference on
March 26, 2015 before Magistrate Judge Charles B. Day.
15, 2015, Defendant filed the pending motion for summary
judgment. (ECF No. 66). Plaintiff filed a response in
opposition (ECF No. 68), and Defendant replied (ECF No. 72).
On July 21, 2015, Plaintiff filed the pending motion for
leave to file a surreply. (ECF No. 78). Defendant filed a
response in opposition (ECF No. 81), and Plaintiff replied
(ECF No. 82).
II. Motion for ...