The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Plaintiff brings this employment discrimination action against the Public Printer,*fn1 United States Government Printing Office, and defendant moves to dismiss or, in the alternative for summary judgment. On the basis of defendant's motion, plaintiff's opposition, and the entire record of this case, defendant's motion to dismiss will be denied, and his summary judgment motion will be granted.
Plaintiff was employed as a Police Officer with the Government Printing Office ("GPO"). See Def.'s Mem. of P. & A. in Supp. of Mot. to Dismiss or, in the Alternative, for Summ. J. ("Def.'s Mot."), Troupe Decl. ¶ 2. The physical demands of the position included "extended periods of standing and walking while on post or patrol duty [and] [s]ome traveling between Federal agencies within the Washington Metropolitan area." Troupe Decl., Ex. 1 (September 21, 2004 letter from A.L. Troupe, Chief, Workers' Compensation Branch, GPO), Attach. (Position Description for Agency Position No. 017277) at 5. "On August 25, 2003, [plaintiff] injured his back while on the job . . . and made a claim to the Office of Workers' Compensation Programs ('OWCP') for wage loss for total disability." Id. ¶ 2.
The GPO received a medical report from Charles J. Azzam, M.D., a neurologist retained to evaluate plaintiff for purposes of his workers' compensation claim. Troupe Decl., Ex. 1. Dr. Azzam's report indicated that plaintiff had reached his maximum level of improvement, that he could not return to his usual job, and that he could work an eight-hour day with permanent restrictions. Def.'s Reply in Supp. of Mot. to Dismiss or, in the Alternative, for Summ. J., Supplemental Troupe Decl., Ex. 1 (August 26, 2004 Work Capacity Evaluation). Plaintiff could sit or walk for four hours per day and stand for two hours per day, and it was recommended that he take a 15-minute break every two hours. Id. In addition, plaintiff was to limit twisting, bending, stooping, squatting, kneeling, climbing, pushing, pulling and lifting activities, and was to limit operating a motor vehicle at work. Id. Plaintiff was to avoid pushing, pulling or lifting objects weighing more than 40 pounds. Id. On the belief that plaintiff's then-current position as a Police Officer met these limitations, the GPO offered plaintiff a Police Officer position at the Main GPO Building at an annual salary of $46,300, available as of October 11, 2004. Troupe Decl., Ex. 1.
On October 7, 2004, plaintiff refused the Police Officer position on the ground that his doctor, Gary C. Dennis, M.D., deemed him totally disabled and unable to perform the duties of a GPO Police Officer. Troupe Decl. ¶ 4 & Ex. 2 (Position Acceptance Form and Disability Certificate). On October 13, 2004, OWCP rescinded its prior decision that the Police Officer position was suitable for plaintiff because the physical demands set forth in the position description exceeded the limitations Dr. Azzam imposed. Id. ¶ 5 & Ex. 3 (October 13, 2004 letter from L. Miller, Claims Examiner, Employment Standards Administration, OWCP, United States Department of Labor). It instructed the GPO to make plaintiff "a job offer . . . in accordance with [his] permanent limitations." Id., Ex. 3. To this end, the GPO offered plaintiff the position of Security Clerk at an annual salary of $33,253 plus 10% night differential. Id. ¶ 8 & Ex. 4 (January 10, 2005 letter from A.L. Troupe). With respect to the physical demands of the position, "[t]he work [was] primarily sedentary and the incumbent uses a chair or stands to perform the work." Id., Ex. 4, Attach. (Position Description for Agency Position No. 018740) at 4. A Security Clerk would "be able to move around as needed between a seated or standing position." Id., Ex. 4. The OWCP found the Security Clerk position "suitable in accordance with [plaintiff's] medical limitations provided by Dr. Azzam's report." Id., Ex. 5 (January 11, 2005 letter from L. Miller, OWCP) at 1. The OWCP required him to accept an available position not exceeding his physical limitations, Security Clerk, with the understanding that he would be paid "compensation based on the difference (if any) between the pay of the [Security Clerk] position" and that of the Police Officer position as of the date of his injury. Id. The OWCP advised plaintiff that, if he refused an offer of suitable employment or failed to report for work as scheduled, he would not be entitled to any further compensation for wage loss. Id. at 1-2.
Plaintiff countered that the Security Clerk position amounted to his return to his prior Police Officer position with a new title, at reduced pay, and on a different shift which would "cause stress and will create a family hardship." Troupe Decl., Ex. 6 (February 9, 2005 letter to L. Miller). Noting the inconsistencies between the reports of Drs. Azzam and Dennis, plaintiff "request[ed] a referee examination."*fn2 Id. In addition, plaintiff asserted that the GPO was "not trying to accommodate [his] limitation," but rather was "putting [him] back in the same job [he] performed as a Police Officer and all other Police Officers perform when on light duty." Id.
The OWCP "reject[ed] [plaintiff's] challenge based on 'the weight of medical evidence in [his] file,'" id. ¶ 11 & Ex. 7 (February 17, 2005 letter from L. Miller, OWCP), and plaintiff accepted the Security Clerk position on March 8, 2005. Id., Ex. 8 (Position Acceptance Form).
Meanwhile, on February 2, 2005, plaintiff had sought counseling from the GPO's Equal Employment Opportunity office. Troupe Decl. ¶ 12 . He alleged discrimination on the bases of race, sex and physical handicap due to his returning to work as a Security Clerk, "caus[ing] him to lose his title as Police Officer, receive less pay, any future pay raise, benefits of a Police Officer and change [of] tour of duty to [the third] shift." Id., Ex. 9 (EEO Counseling Report -- Individual Complaint). He asked that he "keep his Police Officer status, retain his pay and stay on first shift." Id.
On April 22, 2005, plaintiff filed a formal complaint of discrimination against the GPO on the bases of handicap, race, and sex under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, see 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, see 29 U.S.C. § 791 et seq. Troupe Decl. ¶ 13 & Ex. 10 (Complaint of Discrimination in Federal Government); see Compl., Attach. (July 10, 2008 EEOC Decision). According to plaintiff, the GPO discriminated against him by refusing to accommodate his physical limitations resulting from a back injury sustained on the job. Troupe Decl., Ex. 10, Attach. (typewritten statement). He noted that the GPO had accommodated "a Female Police Officer who has been on medical restriction for the last eleven years or more, only worked 4 hours a day up until 2004 and now work[s] 6 hours a day is still allowed to keep her position as a Police Officer, and salary yet her job responsibility is the same." Id. at 2. Further, he asserted that the GPO "has always accommodat[ed] the White Officers, who [weren't] able to peform their full Police Duties, due to their medical condition," yet were not removed from their positions, were not assigned to a different shift, and who were not denied full pay. Id. at 3. In contrast, the GPO "place[ed] [plaintiff] on a shift he ask[ed] not to be on due to family hardship but made up bogus reasons to keep the [plaintiff] on the shift, while constantly moving the other officer[s] to accommodate their needs." Id.
An Administrative Judge ("AJ") dismissed plaintiff's complaint on the ground that it was a collateral attack on the OWCP's decision. See Compl., Attach. (July 10, 2008 EEOC Decision) at 1. The GPO affirmed the AJ's decision, and plaintiff appealed to the Equal Employment Opportunity Commission ("EEOC"). Id. With respect to plaintiff's disability-related claim, the EEOC concluded that the AJ "incorrectly dismissed [plaintiff's] claim under the theory of collateral estoppel." Id. at 2. Although the AJ characterized plaintiff's claim "as a collateral attack on the decision made by the [OWCP], id. at 1, plaintiff actually "only request[ed] that the [GPO] provide him a reasonable accommodation in light of his medical condition," id. at 2. However, because the GPO is not subject to the Rehabilitation Act, the EEOC had "no jurisdiction over [plaintiff's] reasonable accommodation claim." Id.
With respect to plaintiff's claims of race and sex discrimination, the EEOC concluded that plaintiff failed to make out a prima facie case of discrimination. Compl., Attach. at 2-3. Plaintiff had a permanent disabling condition unlike the temporary conditions "the other individuals outside his protected classes who received accommodation had." Id. at 3. Furthermore, he presented no evidence "showing that he was treated differently from similarly situated individuals outside of his protected classes." Id. The EEOC concluded that the GPO did not violate Title VII. Id.