The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Plaintiff James E. Zeigler is a Vietnam War-era veteran who suffers from service-connected Post Traumatic Stress Disorder ("PTSD") and depression. He was a supervisor at the United States Postal Service ("USPS") for 16 years until he was assaulted by his supervisor in 1998. See Compl. ¶¶ 9-12. Thereafter, he tumbled into a long period of Major Depression and PTSD symptoms. In August and September 2001, his treating psychologist Diane F. Jayson, Ph. D., notified USPS that he was cleared to return to work under certain restrictions. See Compl. ¶¶ 38-43. When asked to comment specifically, his psychologist responded that Mr. Zeigler's current impairment had no significant impact on his major life activities. See Def.'s Mot. to Dismiss or, in the Alternative for Summ. J. ("Def.'s Mem."), Ex. A. USPS determined that Mr. Zeigler was not "disabled" under the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq., and needed no accommodation. See Compl. ¶ 49. The Veteran's Administration ("VA"), however, has found Mr. Zeigler to be a "disabled" veteran. See Compl. ¶ 48; Pl.'s Opp. to Def.'s Mot. to Dismiss, or in the Alternative for Summ. J. and Pl.'s Mot. for Partial Summ. J. ("Pl.'s Opp."), Ex. K. Can one be disabled within the meaning of one statute and not another? The simple answer is "yes" and Mr. Zeigler's psychologist declared him not disabled within the meaning of the Rehabilitation Act. Summary judgment, in part, must be granted to USPS. The claim of discrimination based on disability will be dismissed as well as Mr. Zeigler's claim that USPS failed to accommodate his disability. The entirely separate claim of retaliation based on prior protected activity, however, will not be dismissed.
Mr. Zeigler alleges that he was assaulted by his supervisor in 1998 and that the incident was poorly handled by the USPS. See Compl. ¶¶ 12-16. He suffered from depression and hypertension resulting from work stress. Id. ¶ 18. He took a short period of leave in 1998 to obtain medical treatment and eventually took a long unpaid medical leave starting in February 2000. Id. ¶¶ 19-21. In March of that year, his physician notified the USPS that Mr. Zeigler's "long history and recurrent symptomology" of depression going back to 1995 was consistent with chronic Major Depression, which he described as "chronic, recurrent." See Pl.'s Opp., Ex. A. A July 2000 letter from his psychiatrist notified USPS that his Major Depression was "severe enough to interfere with his social, occupational, and familial functioning" and that he would "benefit from medical disability." Pl.'s Opp., Ex. B.
Despite these letters to the USPS Health Unit, Mr. Zeigler's supervisors terminated him in October 2000 for being Absent Without Leave ("AWOL"). See Compl. ¶ 31. As he appealed his termination, Dr. Jayson notified USPS that Mr. Zeigler also suffered from PTSD, that his symptoms were "quite severe," and that everyday incidents "tend[ed] to trigger post traumatic reactions in him and he is driven to much avoidance behavior that is clearly maladaptive." Id. ¶ 33; Pl.'s Opp., Ex. C. The therapist concurred with the psychiatrist that the multiple disabilities were "severe enough to warrant medical disability." Id. Mr. Zeigler's termination was reversed by USPS Human Resources and its Equal Employment Opportunity ("EEO") Office of Compliance and Appeals on November 13, 2000. See Compl. ¶ 34; Pl.'s Opp., Ex. D. The decision stated that the grounds for removal were "arbitrary and capricious and not within the tolerable limits of reasonableness." Id. The letter also noted that USPS had "clear and conclusive evidence" that Mr. Zeigler "continued to be incapacitated for duty." Id.
After a lengthy period of therapy, Mr. Zeigler was released to return to work by his therapist, with certain restrictions. See Compl. ¶ 38; Pl.'s Opp., Ex. E. The therapist first notified USPS that he could return to work on August 2, 2001; her letter stated that he was "clear[ed] . . . to return to work with a limited duty status." Id. (boldface in original). The requested restrictions included assignment away from the location and persons involved with the assault, time off to attend weekly therapy sessions, a maximum workload of 40 hours/week and four employees to supervise, work in Montgomery County, and assignment in an area of expertise, i.e., Training and Educational Development, HR, Labor Relations, etc. Id. By letter dated August 14, 2001, Postmaster Delores Killette denied this request, which she interpreted as a request for temporary light duty, "because [Mr. Zeigler's] restrictions cannot be accommodated." See Compl. ¶ 39; Pl.'s Opp. Ex. F. The letter suggested that if Mr. Zeigler's condition were permanent and "there is no prognosis of sufficient recovery for [his] return to full duty, [he] may request permanent reassignment, reasonable accommodation or disability retirement, as appropriate." Id.
Mr. Zeigler's therapist tried again on August 30, 2001. In her second letter, she made clear that he was cleared to return to work "in a reasonable accommodation status." Compl. ¶ 40; Pl.'s Opp., Ex. G-1 (boldface in original). The same restrictions were identified. The Reasonable Accommodation Committee at USPS responded on August 27, 2001, asking for completion of a Medical Restrictions Form and for Mr. Zeigler's "physician's assessment of how the impairment impacts major life activities, i.e. caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." See Compl. ¶ 42; Pl.'s Opp., Ex. H.
A September 11, 2001, letter from Mr. Zeigler's therapist again asked for return to work in a "reasonable accommodation status" with all the same restrictions except that the request that he be released for weekly therapy sessions was omitted. See Compl. ¶ 41; Pl.'s Opp., Ex. G-2. (boldface in original). The therapist answered the letter from the Reasonable Accommodation Committee on September 27, 2001. See Pl.'s Opp., Ex. I-1. On the Medical Restrictions Assessment form, the therapist indicated that Mr. Zeigler suffers from PTSD and that it is permanent; that he could only work eight hours a day without overtime; and that other necessary restrictions included:
No exposure to persons causing stressors. Be assigned to a work location where stressors did not occur. Be assigned to work in Montgomery County for at least 1 year. No more than 40 hours 8 AM to 4 PM Mon-Fri for at least 6 months. Work in areas of expertise, as per letter of 9/11/01.
See Compl. ¶ 43, Pl.'s Opp., Ex. I-2 . In her cover letter, the therapist stated that she was a treating clinician and not a physician but she knew of no physical restrictions for Mr. Zeigler. See Pl.'s Opp., Ex. I-1. She continued:
Mr. Zeigler is diagnosed with Posttraumatic Stress Disorder. He also has suffered from a secondary diagnosis of Major Depression. However, he has made much progress in therapy and his depression has lifted to the point that there are virtually no current symptoms. Although some symptoms of Posttraumatic Stress Disorder still persist, they should not currently interfere with his job performance as long as he is assigned to a work location where the past stressors did not occur and as long as there is no exposure to the persons causing the stressors.
Mr. Zeigler's current impairment has no significant impact on his major life activities, such as caring for himself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning or working.
On February 19, 2002, the VA determined that Mr. Zeigler was entitled to a finding of individual unemployability, with an evaluation of 70 percent assigned for serious and specified deficiencies in most areas of life. See Compl. ¶ 48, Pl.'s Opp., Ex. K. The conclusion of the VA was that "[s]everal documents in the file show that the veteran has post traumatic stress and is unable to work because of it." Id. The VA explained that Mr. Zeigler "was found to be service connected for post traumatic stress disorder on the rating decision dated October 30, 2001" and that Mr. Zeigler ...