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Dones v. Brennan

United States District Court, D. Maryland

November 23, 2015

CONNELL DONES
v.
MEGAN J. BRENNAN, Postmaster General, United States Postal Service [1]

          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.

         MEMORANDUM OPINION

         DEBORAH K. CHASANOW, United States District Judge.

         Presently 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 denied.

         I. Background

         A. Factual Background

         Unless 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).

         Plaintiff 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).

         In 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).

         Plaintiff 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).

         B. Procedural History

         Plaintiff 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. [2]

         On 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.

         On May 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 ...


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