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Franklin v. Potter

March 4, 2009

JOSEPH A. FRANKLIN, PLAINTIFF,
v.
JOHN POTTER, POSTMASTER GENERAL, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Joseph A. Franklin is an African-American male employed by the United States Postal Service ("the Postal Service," "USPS," or "the agency"). He claims that his employer discriminated against him on the basis of his race, gender, and disability, retaliated against him for complaining about that discrimination, and subjected him to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 701 et seq.*fn1 Defendant has moved for summary judgment on all of plaintiff's claims. For the reasons set forth below, defendant's motion will be granted.

BACKGROUND

Plaintiff has been employed by the Postal Service as a mail handler in the Curseen-Morris Processing and Distribution Center ("P&DC") in Washington, D.C. since 1992.*fn2 (See Pl.'s Opposing Facts ["Pl.'s Facts"] at 1.) At all times relevant to this matter, plaintiff worked as a Level 4 mail handler. (Id.)

I. PLAINTIFF'S MEDICAL CONDITIONS

Prior to his employment with the Postal Service, plaintiff served in the military, where he developed permanent problems with his knees and was also diagnosed with eosiniphilic gastritis. (Compl. ¶ 13; Def.'s Ex. 1 (excerpts of Pl.'s Dep., Mar. 23, 2006) ["Franklin Dep."*fn3 ] at 41.) Plaintiff's knee problems affect his ability to stand, bend, climb, twist and lift. (Pl.'s Facts at 10.) Plaintiff suffers from episodes of gastritis two to five times a year, during which he experiences significant stomach pain, inability to eat, vomiting, swelling, and general pain and discomfort. (Id. at 9-10; Franklin Dep. at 39.) Plaintiff takes prednisone, a chronic steroid treatment, in order to help alleviate the symptoms of his gastritis. (Franklin Dep. at 70.)

In 2002 or 2003, as a side effect of his prednisone treatment, plaintiff developed a mood disorder that generally increased his stress level and caused mood lability (i.e., mood swings) and irritability. (Pl.'s Facts at 10; Pl.'s Ex. 3 (Aug. 22, 2003 letter from Dr. Jentgen); Franklin Dep. at 74.) Stressful situations exacerbated plaintiff's mood disorder and left him unable "to have any form of connection with [the] person creating the stressful environment" (Pl.'s Ex. 33 (Pl.'s EEO Aff., Aug. 2, 2005) ["2005 Franklin Aff."] at 2), unable to "think clearly," and wanting "to get away from the situation." (Franklin Dep. at 72.) Plaintiff's mood disorder was "triggered mostly on-the-job when someone interact[ed] with [plaintiff] in a way that he perceive[d] to be negative or unreasonable." (Def.'s Ex. 10 (April 3, 2007 Final Agency Decision) ["USPS Decision"] at 16 (citing Franklin Dep.).) Plaintiff takes lithium once a day to treat his mood disorder. (Franklin Dep. at 74.) In 2003, plaintiff's right hand developed tenosynovitis, a tendon condition that affects his ability to lift because of swelling in his hand.*fn4

(Pl.'s Facts at 10.)

II. PLAINTIFF'S WORKPLACE COMPLAINTS

A. January - April 2004: Plaintiff's Time on the Parcel Bundle Sorter

From approximately January through April 2, 2004, plaintiff was assigned to the small parcel bundle sorter ("SPBS") under the direct supervision of Denise Berry, supervisor of Distribution Operations. (Franklin Dep. at 9-12; Pl.'s Ex. 7 (Apr. 2, 2004 medical unit report); Def.'s Ex. 2 (excerpts of Denise Berry Dep., Feb. 10, 2006) ["Berry Dep."] at 10-12.) From plaintiff's perspective, his working relationship with Berry quickly soured and became rife with what he perceived as "harassment." (See Pl.'s Ex. 21 (plaintiff's undated informal complaint) at 1.) Plaintiff complained that Berry was prone to "[y]elling, rolling eyes, [and] walking away when [plaintiff] approach[ed] her with problems," that she spoke "[v]ery disrespectful[ly]" to him, and that she criticized him for using the men's restroom "too frequently," "[n]ot moving fast enough while performing duties or returning from breaks," and "[n]ot being able to operate equipment." (Id. at 1-2.)

Plaintiff also accused Berry of improperly denying him leave under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq.*fn5 (Id. at 1.) On January 6, 2004, defendant received two FMLA certifications from plaintiff's medical provider, Kaiser Permanente ("Kaiser"), regarding plaintiff's gastritis and mood disorder. (See Pl.'s Exs. 4, 5.) The gastritis certification indicated that plaintiff had no related workplace limitations, but that he could suffer up to eight episodes each year that could each require up to two days off from work. (Pl.'s Ex. 4 at 1-2.) The mood disorder certification indicated that plaintiff was "unable to work" during periods when his condition was exacerbated, which could occur up to twice a month and require up to one week off from work per episode. (Pl.'s Ex. 5 at 1-2.) On January 12, 2004, Terrence Jordan, the P&DC's FMLA coordinator, wrote to plaintiff acknowledging his certifications and approving his request for FMLA leave. (Pl.'s Ex. 6 (Jan. 12, 2004 letter from Terrence Jordan to plaintiff).) However, Jordan also told plaintiff that he would need to obtain recertification by the end of the year; that when calling in sick, he must identify the cause of his illness, because "[f]ailure to do so[] may result in disapproval of the FMLA request and denial of FMLA protection for the absence"; and that he must "bring documentation stating [his] fitness to return to duty upon [his] return from absences attributed to [his mood disorder]." (Id.)

On January 17, 2004, plaintiff was absent from work. (See Pl.'s Ex. 48 (Feb. 2, 2004 pre-disciplinary interview notes).) When plaintiff returned to work, he gave a co-worker the paperwork necessary for him to receive FMLA protection for his absence so that the co-worker could submit the paperwork to Jordan. (Id.) However, Jordan never received plaintiff's paperwork. (Id.) As a result, on February 2, 2004, Berry noted that plaintiff's FMLA absence was "disapproved," conducted a pre-disciplinary interview with plaintiff, and issued him a "Letter of Warning" for his failure to "maintain acceptable attendance." (Id.)

In March 2004, plaintiff received a bid assignment to the Mechanized Opening Unit ("Robotics"), to begin in early April. (Franklin Dep. at 11; Pl.'s Ex. 7.) On April 2, 2004, plaintiff reported to the medical unit saying that "he has been constantly harassed by his supervisor," presumably meaning Berry, while working on the parcel bundle sorter. (Pl.'s Ex. 7.) Because plaintiff was going to begin his new assignment in Robotics under a different supervisor the next day, the medical officer decided to send plaintiff home as "medically unfit" for the day but "fit tomorrow to return without a medical exam" by an outside doctor. (Id.)

B. April - November 2004: Plaintiff's Time in the Robotics Unit

Plaintiff began work in Robotics on April 3, 2004. (See Pl.'s Ex. 7.) Plaintiff's supervisor in this new assignment was Michael Fair. (Franklin Dep. at 11-12.) Although a mail handler's formal job description encompasses a wide variety of responsibilities (see Pl.'s Ex. 46 (position description for Level 4 mail handler)), plaintiff's "only duties" in Robotics consisted of loading and unloading flat trays and letter trays onto a conveyor belt. (Franklin Dep. at 23.) Plaintiff also "had some issues" with Fair (Pl.'s Ex. 21 at 5), but his only encounters with Berry until October 2004 were limited to what he described as "rolling eyes" and "dirty looks," which no longer bothered him because he "didn't work directly with her now." (Id. at 4.)

1. Plaintiff's Light Duty Submissions of June and July 2004

Within the Postal Service's administrative structure, "light duty" status refers to a "less strenuous" work assignment "available to those employees whose limitations are not due to occupational injury or illness," Peebles v. Potter, 354 F.3d 761, 764 n.3 (8th Cir. 2004), but rather to "injure[ies] outside of their job duties." Hancock v. Potter, 531 F.3d 474, 477 (7th Cir. 2008). "[T]he Postal Service decides who is eligible for light duty, subject to its collective bargaining obligations . . . ." Guarino v. Potter, 102 F. App'x 865, 868 (5th Cir. 2004). Light duty assignments are made available to mail handlers (such as plaintiff) pursuant to agreements between their union and USPS, with the understanding that light duty "is not unlimited and will be consistent" with the needs of the Postal Service. (Pl.'s Ex. 43 at 2 (Item M); see also Def.'s Ex. 9.) A mail handler who is "recuperating" from an illness or injury may seek temporary light duty by submitting a "written request" to the head of his postal installation, along with a "medical statement" from his physician. (Def.'s Ex. 9 at 53 (Section 13.2(A)).)

On June 18 and 21, 2004, a USPS medical official granted plaintiff clearance to return to a light duty assignment. (Pl.'s Exs. 8, 9.) Plaintiff submitted these clearances to supervisor Fair and FMLA coordinator Jordan in an effort to obtain light duty "in reference to [his] left knee." (2005 Franklin Aff. at 3.) On July 21, 2004, the health unit also received plaintiff's Duty Status Report, signed by his physician and detailing specific medical limitations related to his knee condition. (Pl.'s Ex. 65 (July 1, 2004 Duty Status Report) at 1.) Defendant received that same physician's FMLA certification of plaintiff's knee condition on September 9, 2004. (See id. at 4.)

Plaintiff requested Equal Employment Opportunity ("EEO") counseling on August 9, 2004, in part to complain that supervisor Fair did not grant plaintiff light duty in response to his submissions of disability documentation. (See Pl.'s Ex. 24 (Jan. 13, 2005 EEO letter from Claudia Pleasant to plaintiff) at 1.) Fair explained to the EEO counselor that although plaintiff "made a statement" citing his light duty request, he did not "go through the medical unit for authorization." (Id.) Regarding plaintiff's disability claims, Fair indicated that he only knew that plaintiff "kept calling in on FMLA [leave] every few days" and that those leave requests were being handled by FMLA coordinator Jordan. (Id.)

2. The Incidents of October/November 2004*fn6

Berry replaced Fair as supervisor of Robotics sometime around October 21, 2004. (Pl.'s Facts at 2.) On October 26, 2004, plaintiff's Veterans Affairs physician Dr. Jentgen authored a letter to plaintiff's employer requesting assistance in limiting plaintiff's workplace stress. (Pl.'s Ex. 10.) The letter noted plaintiff's gastritis, steroid treatment, mood disorder, lithium treatment, susceptibility to workplace stress, and his claim of "new stress[,] related to potential[l]y having to work with [a] co-worker whom he has had prior conflicts and difficulties with." (Id.)

On October 27, 2004, plaintiff arrived for work and learned that Berry would be his new supervisor. (Pl.'s Ex. 20 (plaintiff's Oct. 27, 2004 Voluntary Statement to U.S. Postal Police) at 1.) Plaintiff reminded floor manager Carolyn Talley of his past problems with Berry, warned Talley that "we have a situation here," asked her to find him a union shop steward to speak with "[b]ecause just the thought of working with [Berry] made [him] ill" and requested re-assignment to another area under another supervisor. (Id.) Plaintiff also appears to have given Dr. Jentgen's letter to Talley around this time. (See Pl.'s Ex. 55 (Talley EEO Aff., Aug. 1, 2005) at 2; Pl.'s Ex. 10 (stamped received on Oct. 27, 2004).)

Feeling unwell with a headache and stomach pain, plaintiff then reported to the nurse's office. (Pl.'s Ex. 20 at 1-2.) After waiting unsuccessfully for a shop steward to arrive, plaintiff went to Talley's office to ask if she had "gotten a shop steward for" him. (Id. at 2.) While plaintiff was there, Berry stopped by and told plaintiff to return to his assigned position or she would have him "taken [] off the clock." (Id. at 3.) Plaintiff summoned the Postal Police because he felt that "if this lady continues to conduct herself in that manner then [there] would or could be [an] even bigger problem." (Id.) Berry left the room while plaintiff began to write a statement for the Postal Police. (Id.) Berry then returned to Talley's office to insist that plaintiff return to work, which plaintiff characterized in his Postal Police statement as "harassing" him by "standing in the doorway in her stern voices saying what [plaintiff] better do," repeating her remarks "over and over, [and] over." (Id. at 4; see also Berry Dep. at 22.) Following this encounter, plaintiff's gastritis worsened and he visited the hospital. (Pl.'s Ex. 22 (plaintiff's Nov. 1, 2004 informal complaint); Pl.'s Ex. 11 (Nov. 9, 2004 letter from Dr. Yonouszai).) Plaintiff took sick leave beginning on October 28, 2004. (Pl.'s Ex. 11.) He wrote an informal discrimination complaint regarding these events on November 1, 2004. (Pl.'s Ex. 22.)

On November 9, 2004, Veterans Affairs physician, Dr. Yonouszai, evaluated plaintiff and wrote a letter to plaintiff's employer, offering his opinion that "no medical/psychiatric reasons [] would preclude [plaintiff] from returning to the workplace at this time." (Pl.'s Ex. 11.) Dr. Yonouszai's letter referenced plaintiff's gastritis, expressed the understanding that plaintiff had left work on October 28 because of "an altercation with a co-worker," and suggested that "attempts to limit or prevent close contact with this worker may be beneficial to Mr. Franklin's successful return to work." (Id.)

Plaintiff returned from sick leave on November 10, 2004, with a doctor's letter (presumably from Dr. Yonouszai), which the Postal Service received on or before November 18, 2004. (Pl.'s Ex. 63 (plaintiff's Nov. 17, 2004 informal complaint) at 1; see Pl.'s Ex. 11 (date stamp).) Plaintiff had no further encounters with Berry until November 17, 2004. (Pl.'s Ex. 63 at 1.) On November 17, plaintiff arrived at the P&DC and began to load mail onto conveyor belts by "unsleeving," or unbundling, outgoing mail that had already sorted, bundled, and processed for distribution. (Id.; Pl.'s Facts at 4; Berry Dep. at 87.) Berry, who was in that area, observed what plaintiff was doing and "yell[ed]" at him (Pl.'s Facts at 4), because she thought that a mail handler of plaintiff's experience should have known not to unsleeve outgoing mail, as this would cause mail to become lost en route to its destination. (Berry Dep. at 87-90.) Plaintiff "ignored her," and when Berry approached him and instructed him to report to manager Talley's office, he "ignored her again." (Pl.'s Ex. 63 at 1.) According to Berry, plaintiff "just stood there" and "stared at [her] blankly," and she was concerned by his "awkward look" because she "didn't want to have a scene in the operation." (Berry Dep. at 90-91.)

Berry then left and sent shop steward Monique Watson to instruct plaintiff to report to the manager's office. (Berry Dep. 91; Pl.'s Ex. 63 at 1.) Plaintiff did not comply, telling Watson that she should know that plaintiff and Berry could not "be in the same room because of [Berry's] demeanor." (Pl.'s Ex. 63 at 1.) After Watson left, acting plant manager Melvin Tucker approached plaintiff and "requested [plaintiff's] presen[ce] in the Manager's Office." (Id.) Plaintiff agreed to meet with Tucker, Talley, and Watson outside of Berry's presence. (Id. at 1-2.) During that meeting, plaintiff recounted his issues with Berry, and Watson indicated that plaintiff's issues with Berry had "become a health and safety issue for all involved." (Id. at 2.) Tucker and Talley decided to separate plaintiff from Berry's immediate supervision and transfer him to the West Dock under a different supervisor -- Andrew Kingsberry. (Id. at 3; Franklin Dep. at 15-16; Def.'s Ex. 4 (excerpts of Carolyn Talley Dep., Feb. 10, 2006) ["Talley Dep."] at 31.) Plaintiff did not object to the transfer. (Franklin Dep. at 15.) However, he wrote an informal discrimination complaint shortly thereafter, recounting the day's events. (Pl.'s Ex. 63.)

Although Berry was not present at the November 17, 2004 meeting, Tucker later informed her that he did not want plaintiff to continue working around Berry. (Berry Dep. at 91-92.) Tucker told Berry that he was concerned about the correspondence from plaintiff's physicians that had referenced plaintiff's mood swings and a workplace "altercation" between him and an unnamed co-worker. (Id. at 92; see also Talley Dep. at 30; USPS Decision at 11.)

C. November 2004 - January 2006: Plaintiff's Time on the West Dock

Plaintiff was transferred to the West Dock shortly after November 17. While there, he undertook "housekeeping" duties that consisted of straightening flat trays and letter trays, stacking trays in piles, and putting trays in containers to be shipped to other locations. (Franklin Dep. at 16-17.)

In early December 2004, plant manager Darryl Martin learned that plaintiff had been transferred to the West Dock. (Berry Dep. at 95.) When Martin learned the reasons for the reassignment and read the letters from plaintiff's physicians, he told Berry to initiate the process for plaintiff to report for a "fitness-for-duty" examination ("FFD exam"). (Id. at 96.) The FFD exam is a "medical assessment" whose purpose "is to ascertain whether or not the employee is medically capable of meeting the requirements of his or her job." (Def.'s Ex. 5 (USPS Management Instruction) at 1.) Martin told Berry that even though she was no longer plaintiff's direct supervisor in his new West Dock position, Berry remained plaintiff's administrative supervisor as manager of the "tour" in which he worked; accordingly, they needed to determine whether plaintiff was able to keep working there in light of Berry's ongoing overall supervision. (Berry Dep. at 96; see also Talley Dep. at 23 (citing plaintiff's "mood swings" and "actions" as reasons for exam).)

On December 8, 2004, Berry filed a formal request for plaintiff's FFD exam, which Martin endorsed in his capacity as "Facility Manager." (Pl.'s Ex. 12.) Berry based her request on the letters from plaintiff's physicians and on Berry's own perception of how Franklin looked during the unsleeving incident. (Berry Dep. at 43.) The request stated that plaintiff had submitted medical documentation that states he has a mental problem. The possibility that his emotional problems could put people who must interact with him at risk must be resolved. It poses a potential danger for employees with whom Mr. Franklin must interact. I believe that if we must accommodate him, it should be through DRAC [District Reasonable Accommodation Committee]. Otherwise, he can resign or request disability retirement if he is medically or emotionally incapable of meeting the requirements of his job by being able to safely interact with his fellow employees that he must come in contact with. I did not observe any unusual behavior. However, his physician has stated that he has emotional problems that could put people at risk. He left work on 4/2/04 because of an incident. He is regularly absent from duty on FMLA [leave] but because he has several FMLA qualified conditions, he uses the conditions for which he does not have to bring documentation. I suspect that many of the absences are due to the emotional problems for which he must submit documentation and may be required to be cleared by the medical unit before being allowed to return to duty. (Pl.'s Ex. 12 (citations omitted).)

On December 14, 2004, plaintiff submitted an informal discrimination complaint regarding Berry's supervision in early 2004. (Pl.'s Facts at 13; Pl.'s Ex. 23 (plaintiff's Dec. 14, 2004 informal complaint).) Plaintiff began his letter by stating his name and that he was "in fear of losing [his] job, losing [his] life, or causing harm to other employees," and closed it by explaining that he had been brought "to the point of no return." (Pl.'s Ex. 23.) Plaintiff also requested EEO counseling on December 23, 2004. (See Pl.'s Ex. 24 at 1.)

On January 13, 2005, plaintiff received an EEO letter notifying him of management's response to his prior counseling requests. (Pl.'s Ex. 24.) That same day, he was mailed notice of his right to file a formal EEO complaint. (Pl.'s Ex. 26.) On February 8, 2005, plaintiff wrote an informal complaint about how Berry appeared to be improperly empowered to approve or disapprove his FMLA leave requests. (Pl.'s Ex. 25.) In that letter, plaintiff also expressed his belief that despite being transferred to the West Dock "[as a] result of [Berry's] behavior," Berry continued to "interfere[] with him," citing as evidence the fact that he had "lost wages" and may have also had his leave time affected. (Id. at 1-2.) On February 17, 2005, plaintiff filed a formal EEO complaint regarding his leave requests, but that case was closed on March 3, 2005. (See Pl.'s Ex. 42 (USPS complaint listings, citing Case No. 1K-201-0062-04).)

In February 2005, Angela Liles-Nelson replaced Kingsberry as West Dock supervisor. (Franklin Dep. at 16-17; Pl.'s Ex. 56 (Liles-Nelson EEO Aff., June 5, 2005) at 1.) On February 24, 2005, Liles-Nelson informed plaintiff that Berry had instructed him to report to the medical unit for a FFD exam. (Pl.'s Ex. 27 (plaintiff's Feb. 24, 2005 informal complaint); Pl.'s Facts at 8.) Plaintiff reported for his exam, but he subsequently wrote an informal discrimination complaint. (Pl.'s Ex. 27.) On March 10, 2005, plaintiff was again instructed to report for a physical FFD exam on March 18, 2005 and a psychiatric FFD exam on March 24, 2005. (Pl.'s Ex. 13.) Plaintiff reported for his March 18 physical FFD exam. (Pl.'s Ex. 14 (Mar. 18, 2005 physical FFD assessment).) The doctor conducting that exam did not issue any restrictions on plaintiff's ability to lift, but did restrict plaintiff from kneeling, bending, and stooping, and from climbing or standing at certain inclinations, and suggested these accommodations would allow plaintiff "to perform the essential functions of [his] position effectively and safely." (Id. at 6.) Plaintiff did not, however, report for his March 24 psychiatric FFD exam, but did attend the rescheduled exam on April 13, 2005. (Pl.'s Ex. 15 (Apr. 6, 2005 letter from Berry to plaintiff); Pl.'s Ex. 16 (Apr. 21, 2005 psychiatric FFD assessment).) The doctor conducting that exam concluded that plaintiff was "medically fit" to return to work:

Currently, he does not present a threat to himself or others, and is not likely in the future to act out in a violent manner. Although it is difficult to predict violence with certainty, Mr. Franklin does not have a history of acting violently and although emotionally labile and possibly irritable at times, it does not appear that he has been dangerous or violent by history. (Pl.'s Ex. 16 at 2.)

On March 29, 2005, plaintiff contacted the EEO office to complain about what he claimed were Talley's denials of his light duty requests since June 2004. (See Pl.'s Ex. 30 (June 9, 2005 EEO inquiry report).) On April 6, 2005, plaintiff returned to work from time off "due to knee [and] wrist problems." (Pl.'s Ex. 28 (plaintiff's Apr. 6, 2005 informal complaint) at 1.) Kaiser, plaintiff's medical provider, issued a form indicating that he had been released for "regular work." (USPS Decision at 12 (quoting form dated Apr. 4, 2005).) Supervisor Waverlye Vaughan, who oversaw the flat sorter mail operation, requested additional mail handlers to help fill in for absent employees on her operation. (Def.'s Ex. 8 (Vaughan EEO Aff., Aug. 21, 2005) ["Vaughan Aff."] at 3.) The job required lifting mail trays and placing them in a container at the end of the flat sorter belt. (Id. at 5.) West Dock supervisor Liles-Nelson sent plaintiff and another employee over to Vaughan's operation; when plaintiff arrived at approximately 9:45 a.m., he told Vaughan that his medical restrictions prevented him from working there, singling out a slight swelling in his left wrist. (Id. at 3; Pl.'s Ex. 28 at 1; Pl.'s Ex. 29 (plaintiff's Apr. 8, 2005 informal complaint).) However, as of that date, plaintiff had "not even received restrictions for [his] left wrist." (Pl.'s Ex. 28 at 2.) Vaughan inquired of Liles-Nelson as to whether plaintiff could work on her operation; Liles-Nelson indicated that Berry had approved sending plaintiff to Vaughan, and that Liles-Nelson and Berry knew of no relevant medical limitations. (Vaughan Aff. at 3, 5-6.) Nonetheless, Vaughan decided to "make it easy" on plaintiff by instructing the other workers to half-fill the trays and letting plaintiff sit while the trays were filled. (Id. at 3; Pl.'s Ex. 28 at 1; Pl.'s Ex. 29 (plaintiff's Apr. 8, 2005 informal complaint) at 1.) Within an hour, plaintiff's wrist had become noticeably swollen, and his left knee had also swollen slightly. (Pl.'s Ex. 28 at 1-2.) He visited the medical unit, where he was told that he needed to complete an "accident form" and CA-1 form to be signed by his supervisor because he had suffered a workplace injury due to "repetiti[ve] lifting." (Id. at 2; Pl.'s Ex. 29 at 2.) Plaintiff did not fill out a CA-1 form at the time. (Pl.'s Ex. 29 at 2.) Before leaving work for the remainder of the day, he told Liles-Nelson that he would complete a CA-1 form when he returned to work. (Pl.'s Ex. 28 at 2.) Plaintiff also wrote an informal discrimination complaint. (Id.) On April 8, 2005, plaintiff returned to work with "bothersome but [] tolerable" injuries and wrote another informal discrimination complaint. (Pl.'s Ex. 29 at 2.) On April 16, 2005, plaintiff submitted a worker's compensation claim to the Department of Labor regarding his wrist injury. (See Pl.'s Ex. 40 (plaintiff's Mar. 15, 2006 informal complaint) at 1.)

On June 9, 2005, plaintiff filed a formal EEO complaint, alleging discrimination (including a claim for hostile work environment harassment) on the basis of sex, disability, and retaliation. (See generally Pl.'s Ex. 31 (Case No. 1K-201-0028-05).) The complaint cited his fitness-for-duty exams; the April 6, 2005 flat sorter incident; denials of his light duty requests; denials of his FMLA leave; Berry's general treatment of him; and his prior EEO counseling requests. (Id.) On June 21, 2005, the Postal Service dismissed plaintiff's harassment claim because the facts alleged did not constitute a hostile work environment. (USPS Decision at 1.)

On July 12, 2005, plaintiff wrote an informal complaint in which he stated that Berry's "animosity" towards him was "overwhelming" him. (Pl.'s Ex. 32.) He cited Berry's "mental abuse" and complained that Berry had requested that he go for a psychiatric FFD exam. (Id.) Plaintiff believed that Berry was only able to make such a request because she had improperly reviewed his confidential medical files. (Id.) However, the letter stated that plaintiff had no direct knowledge that Berry had undertaken such an improper review, and that he was "very confused" about why Berry could have issued such a request if she was not "suppose[d] to have any contact" with him. (Id.)

On December 15, 2005, Talley approved a light duty assignment for plaintiff, effective from that day through January 14, 2006. (Def.'s Ex. 11.) On December 20, 2005, plaintiff received medical treatment from Kaiser for his knee, and received a "Verification of Treatment" ("VOT") note confirming that he could return to work on December 21, 2005, with knee-related work limitations of "no lifting and two hours of standing a day." (Pl.'s Ex. 50 (note stamped received by USPS on Dec. 23, 2005).) Plaintiff does not appear to have returned to work on December 22, 2005, because on January 4, 2006, supervisor Fair conducted a pre-disciplinary interview with plaintiff for "failure to be regular in attendance" since December 22. (Pl.'s Ex. 49 (Jan. 4, 2006 pre-disciplinary interview notes).) Plaintiff indicated that his absence was excused because he had been on FMLA leave throughout 2005. (See id.)

On January 13, 2006, Talley offered plaintiff another light duty assignment, to begin on January 14 in the Robotics unit. (Pl.'s Ex. 17 at 1.) This offer was based on plaintiff's July 1, 2004 Duty Status Report, which only specified knee-related limitations on lifting more than ten pounds and on pushing or pulling. (Id.; Pl.'s Ex. 40 at 1.) Plaintiff accepted the offer but informed Talley that his limitations now excluded all lifting and gave her Kaiser's December 2005 VOT note. (See Pl.'s Ex. 40 at 1; Pl.'s Ex. 35 (plaintiff's Jan. 19, 2006 informal complaint) at 3-4.) Talley told him that his light duty assignment was "contingent" upon him submitting a formal medical update. (Pl.'s Ex. 17at 2.) Plaintiff explained that it would take Kaiser at least ten days, if not more, to process his official documentation. (Pl.'s Ex. 35 at 4; Pl.'s Ex. 40 at 1.)

On January 14, 2006, instead of reporting to Robotics, plaintiff began his workday on the West Dock. (See Pl.'s Ex. 35 at 1; see also Franklin Dep. at 17.) Soon after, Berry approached him with another manager and instructed plaintiff to report to Robotics, consistent with Talley's letter of January 13. (Pl.'s Ex. 35 at 1-2.) That day, plaintiff complained to FMLA coordinator Jordan about Berry's instructions and submitted a voluntary statement to the Postal Police. (Pl.'s Exs. 34, 35.) On January 19, 2006, plaintiff wrote an informal complaint about the incident. (Pl.'s Ex. 35.) On January 31, 2006, plaintiff contacted the EEO office to complain of retaliation for filing his June 2005 formal discrimination complaint. (See Pl.'s Ex. 37 (Case No. 1K-201-0015-06).)

D. February - March 2006: Events Leading to Plaintiff's Departure

On February 9, 2006, Talley had not yet received plaintiff's updated medical documentation and wrote to plaintiff noting that he would therefore "return to full duty" at his original Robotics bid assignment when his light duty assignment there expired on February 12, 2006. (Pl.'s Ex. 17 at 2.) On February 12, plaintiff "bec[a]m[e] ill" and took sick leave. (Pl.'s Ex. 40 at 1.) On February 21, 2006, plaintiff met with an EEO counselor for his initial interview regarding his retaliation claims. (See Pl.'s Ex. 37.)

On March 2, 2006, Berry wrote to plaintiff notifying him that he had been absent from the job on 96 hours of unscheduled leave since February 12, and that he had five days to provide appropriate sick leave or other necessary documentation; otherwise, his status would revert to absent without leave (AWOL). (Pl.'s Ex. 18.) Plaintiff returned to work on March 8, 2006. (Pl.'s Ex. 40 at 1.) He presented his sick leave documentation to Berry. (Id.) Consistent with Talley's instruction about returning plaintiff to full duty in Robotics if he did not provide updated medical information, Berry informed plaintiff that his new duties in Robotics consisted of "lifting flat and letter[] trays." (Id.) Plaintiff informed Berry and Talley that he believed that this assignment exceeded his work limitations and gave them a formal request for temporary light duty and two Duty Status Reports, one of which related to his pre-existing knee condition and the other to his workplace wrist injury of April 6, 2005. (Id.; see also Pl.'s Ex. 17 at 4-6 (reports and request).)

After plaintiff informed Talley that he had filed a claim for his wrist injury with the Department of Labor in April 2005, Talley consulted with the Compensation office. (Pl.'s Ex. 40 at 1.) After reviewing the Postal Service's paperwork regarding plaintiff's injury claim, Talley saw that it was missing Form CA-17. That form is used by the Department of Labor's Office of Workers' Compensation Programs ("OWCP") "to assess whether an employee who has suffered a work-related injury can be accommodated with limited duties that do not interfere with the employee's medical restrictions."*fn7 Smith v. U.S. Postal Serv., 36 F. App'x 440, 444 (Fed. Cir. 2002). (Id.) Without the CA-17 form, the P&DC's medical staff was "not sure" about what to do regarding plaintiff's claimed limitations. (Pl.'s Ex. 40 at 1.) Talley informed plaintiff that she was "not going to have ...


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