Desroches v. US Postal Service CV-05-88-PB 09/17/08

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert P. DesRoches

v. Crvrl No. 05-CV-88-PB Opinion No.

John E. Potter, Postmaster General, United States Post Office

MEMORANDUM AND ORDER

_____ Robert P. DesRoches brings this action against John E.

Potter, Postmaster General, alleging that Potter violated the

Rehabilitation Act by not promoting DesRoches to a full-time

clerk position in April 1994. Potter asserts that he is entitled

to summary judgment because DesRoches cannot prove at trial that

he was capable of working as a full-time clerk.

I. FACTUAL BACKGROUND

A. Employment History

DesRoches is a former employee of the U.S. Postal Service

("USPS") and a disabled Veteran who was discharged from the Navy

after suffering a wrist injury. DesRoches began working for the

USPS in November 1977 as a Part-Time Flexible ("PTF") Distribution Clerk. In April 1989, DesRoches was relocated to

the USDS's Nashua, New Hampshire location; his duties there

included working with the public as a window clerk, assisting in

the office, unloading trucks, and distributing parcels to the

appropriate carriers. In October 1991, DesRoches suffered work-

related injuries to his back and heels. (Pl.'s Aff. 5 6.) As a

result, in August 1992, plaintiff's physician, Scott Masterson,

restricted DesRoches to "light duty" that comported with the

following restrictions: (1) no lifting objects exceeding 20 lbs.,

(2) changing positions every twenty to thirty minutes, (3)

gradual increase in daily hours worked from four to eight, and

(4) no repetitive bending or rotating at the waist. (Def.'s Ex.

3 to Pl.'s Dep.)

In compliance with these restrictions, DesRoches worked in a

limited duty position that reguired him to answer telephone

calls, respond to customer inguiries, work "hold" mail (Pl.'s

Aff. 5 9) write short notes, and work with letter mail (Def. Ex.

4 to Pl.'s Dep.). DesRoches was not reguired to lift more than

20 lbs. or engage in any repetitive bending or rotating at the

waist. He also was permitted to sit or stand at will. (Def. Ex.

4 to Pl.'s Dep.)

- 2 - B. Snow Day Sick Leave Request

On November 3, 1993, Dr. Masterson stated in a letter that

DesRoches "should not drive in inclement weather, specifically

icy conditions and snow accumulation." (Def. Ex. 5 to Pl.'s

Dep.) During a medical examination and assessment for the USPS

on November 16, 1993, Dr. Charlotte A. Kaplon opined that Dr.

Masterson's snow day recommendation was "not based on medical

problems but on convenience." (Def. Ex. 6 to Pl.'s Dep.) On

January 4, 1994, pursuant to instructions from Dr. Masterson,

DesRoches requested sick leave so that he would not have to drive

to work (and run the risk of injury) during a snowstorm. (Def.

Ex. 7 to Pl.'s Dep.) His request was denied, but leave without

pay was approved. (Pl.'s Dep. at 39-41.) Shortly thereafter, on

January 5, 1994, DesRoches requested an appointment with an Equal

Employment Opportunity ("EEO") counselor and filed a preliminary

complaint challenging the denial of his request for sick leave.

On April 14, 1994, DesRoches filed a formal EEO complaint.

(Def. Ex. 9 to Pl.'s Dep.) An administrative law judge ("ALJ")

rejected the complaint. (Def. Ex. 10 to Pl.'s Dep.) On April

20, 1995, the USPS issued a final agency decision, adopting the

ALJ's ruling. DesRoches appealed, and the appeal was denied on

November 15, 1996. (Def. Ex. 12 to Pl.'s Dep.) A motion to

- 3 - reconsider was also filed and denied, and the matter was

ultimately closed. (Pl.'s Dep. at 48).

C. The 1994 Workers' Compensation Claim

DesRoches stopped coming to work after January 7, 1994. On

February 14, 1994, he filed a recurrence of disability notice

with the U.S. Department of Labor seeking Workers' Compensation.

DesRoches stated in the notice that he was no longer able to work

as a PTF clerk because "[e]xtreme cold + slippery weather

conditions have increased stress & pain to my lower back area ...

[t]hese injuries are permanent + recurrences are to be expected."

(Def. Ex. 14 to Pl.'s Dep.) On June 6, 1994, the Labor

Department's Office of Workers' Compensation Programs denied

DesRoches' claim. In its report, the Office of Workers'

Compensation Programs wrote that the "medical evidence from Dr.

Masterson does not explain how a lumbosacral strain sustained in

1991 is the cause of [DesRoches'] disability in 1994." (Def. Ex.

15 to Pl.'s Dep.) The memorandum of decision further concluded

that "the evidence fails to demonstrate that the claimed

recurrence of disability on or after January 7, 1994 is causally

related to the [October 1991] injury." (Id.) DesRoches sought

reconsideration but his reguest was denied on August 2, 1995.

(Def. Ex. 16 to Pl.'s Dep.)

- 4 - D. DesRoches' Termination

DesRoches was placed on Leave Without Pay ("LWOP") status

after he failed to return to work. He asserts that this status

was maintained until May 25, 1994, at which point it was

converted to either sick or annual leave. (Pl.'s Mem. in Supp. of

Objection to Mot. for Summ. J. at 4.) On February 14, 1995,

Robert R. Gravel, Absence Control Coordinator for the USPS,

informed DesRoches that USPS records showed that DesRoches had

been out of work for more than a year as a result of a medical

condition. (Def. Ex. 17 to Pl.'s Dep.) Mr. Gravel instructed

DesRoches to contact him by March 1, 1995 with a status update,

and further informed DesRoches that failure to do so would result

in the commencement of involuntary separation proceedings. (Id.)

When DesRoches did not respond by the requested date, Robert

Gauthier, Supervisor Customer Service, sent him another letter

dated March 23, 1995. (Def. Ex. 18 to Pl.'s Dep.) That letter

stated as follows: "[T]his office is in need of information

concerning when you will be returning to work and your physical

restrictions upon return. Mr. Gravel asked that you supply

information concerning your current status to this office by

March 1, 1995. As no information has been received, we can only

assume that you are not able to return to work and that action

- 5 - should be taken to process a separation/disability with regard to

your employment." (Id.) The letter further requested DesRoches

to " [p]lease supply this office with the requested medical

information by April 10, 1995, so that we may properly evaluate

your situation before proceeding." (Id.) On March 29, 1995, Dr.

Masterson wrote a letter detailing DesRoches's injuries. (Pl.'s

Dep. at 55.) The substance of the letter stated that Dr.

Masterson was treating DesRoches for lumbar disk disease and

right lumbosacral radiculopathy, and that a request for a follow-

up MRI of DesRoches's lower spine was not then approved. (Id.)

Dr. Masterson unequivocally stated, "I do not feel that Mr.

DesRoches should return to work at this time." (Def. Ex. 19 to

Pl.'s Dep.) In a letter dated April 19, 1995, the USPS notified

DesRoches of its plan to discharge DesRoches because of his

disability. (Pl.'s Dep. at 55-56.)

In his April 24, 1995 reply, DesRoches stated his

unwillingness to discuss the matter while he had two complaints

pending before the Equal Employment Opportunity Commission

("EEOC").1 (Id.) Mr. William Bothwell, the Nashua Postmaster,

1 The referenced matters are those involving the use of sick leave for a January 4, 1994, snow day and a claim seeking workers' compensation for recurring injuries beginning in February 2004.

- 6 - responded by informing DesRoches that he would be terminated on

June 10, 1995. DesRoches then filed an initial complaint on June

2, 1995, seeking to be " [p]laced on 100% disability and receive

OWCP compensation because of on-the-job injuries in lieu of

disability separation - effective January 7, 1994 and to remain

permanent." (Def. Ex. 23 to Pl.'s Dep.) A formal complaint

followed. In an EEO Investigative Affidavit Privacy Act

Statement, signed November 15, 1995, DesRoches stated: "I have

been under the care of my doctor and I have been unable to work

until OWCP allows me to receive further medical treatment." (Def.

Ex. 25 to Pl.'s Dep.)

On March 7, 1996, the USPS denied DesRoches claim of

discrimination. (Def. Ex. 28 to Pl.'s Dep.) DesRoches appealed

the USPS's decision to the Merit Systems Protection Board on May

1, 1996. The Merit Systems Protection Board denied DesRoches

claim on August 14, 1996 and denied his motion for

reconsideration on December 12, 1996. (Def. Exs. 30 & 31 to Pl.'s

Dep.) DesRoches sought review of this decision before the EEOC,

and on May 13, 1997, the EEOC upheld the Merit Systems Protection

Board's finding of no discrimination. (Def. Ex. 32 to Pl.'s Dep.)

E. The April 2004 FTR Clerk Position

In April 1994, while DesRoches was out of work on LWOP, an

- 7 - Full-Time Regular ("FTR") position became available.

As per the collective bargaining agreement between the

Postal Service Workers Union and the Postal Service, when a

regular FTR position becomes available and no other FTR employee

bids for the job, the most senior gualified PTF employee gets the

job. (Def.'s Mot. for Summ. J. at 8.) When the April 2004 FTR

position became available, DesRoches was the most senior of the

listed PTF employees. The official announcement listed the

gualification standards as follows: "Ability to stand for

prolonged periods and lift moderately heavy weights (70 lbs.)."

(Def. Ex. 36 to Pl.'s Dep.)

The post was ultimately awarded to another person.

DesRoches filed an EEO complaint alleging that he was

discriminated against on or about April 25, 1994. (Def. Ex. 35

to Pl.'s Dep.) On January 25, 1995, he reguested a hearing

before an ALJ. DesRoches v. Potter,

. The ALJ

granted summary judgment in DesRoches' favor, and on September 1,

1995, the USPS rejected the ALJ's findings and conclusions. Id.

at 7. DesRoches appealed to the EEOC, and on May 12, 1998, the

EEOC reversed the USPS' decision. Id. On September 23, 2002,

DesRoches filed a petition with the EEOC complaining that the

USPS had not complied with the EEOC's appellate decision. Id. The EEOC, however, determined that the USPS had fully complied.

Id. DesRoches then challenged the EEOC's compliance decision in

this court. In a June 12, 2006 Order, I dismissed DesRoches'

challenge because his complaint was not cognizable under

applicable law. Id. at 14. DesRoches now seeks de novo review

of his discrimination claim.

II. PROCEDURAL HISTORY

The procedural history in this case is extensive and need

not be fully recounted here. The Complaint initially sought

judicial review of certain EEOC and postal agency decisions; that

Complaint was dismissed. Id. at 14. DesRoches's Amended

Complaint included three causes of action. The first claim,

seeking redress pursuant to the Accardi Doctrine, was dismissed

in an order issued by Magistrate Judge Muirhead on November 28,

2006. DesRoches v. Potter, No. 05 CV 088 (D.N.H. Nov. 28, 2006).

The second claim, stating a cause of action under the

Administrative Procedures Act, was also dismissed after

Magistrate Judge Muirhead granted defendant's motion for

reconsideration. DesRoches v. Potter, No. 05 CV 088 (D.N.H. Jan.

29, 2007). Count three is the only surviving claim, and it seeks

de novo review under the Rehabilitation Act of DesRoches's claim that he was discriminated against in April 2004 when he was not

promoted to an FTR clerk position. Potter now moves for summary

judgment.

III. STANDARD OF REVIEW

Summary judgment is appropriate when "the discovery and

disclosure materials on file, and any affidavits show that there

is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(c) . A party seeking summary judgment must first identify the

absence of a genuine issue of material fact. Celotex Corp. v.

Catrett,

(1986) . The burden then shifts to the

nonmoving party to "produce evidence on which a reasonable finder

of fact, under the appropriate proof burden, could base a verdict

for it; if that party cannot produce such evidence, the motion

must be granted." Ayala-Gerena v. Bristol Myers-Sguibb Co.,

(1st Cir. 1996); see Celotex,

.

IV. ANALYSIS

_____ DesRoches is not entitled to relief under the Rehabilitation

Act unless he can prove at trial that he "was gualified to

perform the essential functions of the job, either with or

- 10 - without a reasonable accommodation." Rios-Jimenez v. Principi,

(1st Cir. 2008). Potter bases his summary

judgment motion on the contention that DesRoches cannot meet this

element of his Rehabilitation Act claim. In addition to holding

DesRoches to his burden of proof on this issue. Potter supports

his motion by pointing to the fact that DesRoches claimed in his

1994 application for workers' compensation that his back injury

prevented him from working as a PTF clerk.

In Cleveland v. Policy Management Systems Corp.,

(1999), the Supreme Court considered how a claim of

disability made in connection with an application for Social

Security Disability Insurance ("SSID") affects a contemporaneous

claim for damages under the Americans with Disabilities Act

("ADA"). The court explained that

[the] pursuit, and receipt, of SSDI benefits does not automatically estop the recipient from pursuing an ADA claim. Nor does the law erect a strong presumption against the recipient's success under the ADA. Nonetheless, an ADA plaintiff cannot simply ignore her SSDI contention that she was too disabled to work. To survive a defendant's motion for summary judgment, she must explain why that SSDI contention is consistent with her ADA claim that she could "perform the essential functions" of her previous job, at least with "reasonable accommodation."

. The legal standards that a court uses in

evaluating a claim under the Rehabilitation Act are the same as

- 11 - the standards it uses when evaluating an ADA claim. Cavero-

Cerezo v. U.S. Dept, of Justice,

, 11 n.l (1st Cir.

2004). Moreover, the Supreme Court's holding in Cleveland

applies to claims of disability that are made during the course

of workers' compensation proceedings. See, e.g., Sullivan v.

Raytheon C o .,

, 47 (1st Cir. 2001); Marinelli v. City

of Erie, P a .,

, 366 n.8 (3d Cir. 2000). Thus,

DesRoches cannot prevail on his Rehabilitation Act claim unless

can reconcile his current contention that he was able to work as

an FTR clerk with his claim in his 1994 workers' compensation

application that he was disabled from working as a limited duty

PTF clerk.

DesRoches claimed in his 1994 application for workers'

compensation that he had aggravated a pre-existing back injury

that left him unable to work at his PTF clerk position even

though the Postal Service had accommodated his back injury in

that position. In his later challenge to the Postal Service's

attempt to terminate him for failing to return to work, DesRoches

similarly asserted that he should be " [p]laced on 100% disability

and receive OWCP [workers'] compensation because of on-the-job

injuries in lieu of disability separation - effective January 7,

1994 and to remain permanent." Even though Potter has challenged

- 12 - DesRoches' current claim that he was qualified to work as an FTR

clerk, DesRoches has done nothing to reconcile his current claim

with his earlier assertions that he was disabled from working as

a PTF clerk. Nor has he offered evidence of any kind in response

to Potter's specific challenge beyond making the conclusory

assertion that he was capable of working as a FTR clerk and

producing an unsworn office note from his doctor that was

generated ten years after the fact and that is contradicted by

the same doctor's own contemporaneous statements. Compare (Def.

Ex. 19 to Pl.'s Dep.) (statement of Dr. Masterson in March 1995

that DesRoches should not return to his light duty work), with

(Pl.'s Aff. 5 22) (statement of Dr. Masterson in July 2004 that

he has always recommended that DesRoches is able to do light duty

work).2 These glaring omissions are fatal DesRoches' Retaliation

Act claim. See Cleveland,

(plaintiff cannot

simply ignore application for benefits wherein she claimed that

she was too disabled to work); Rios-Jimenez,

n.7

2 DesRoches now puts forth evidence of accommodations, such as a chair and a window sign instructing that heavy packages be taken to other windows. DesRoches insists that if these accommodations were made for him, he would have been able to perform the April 1994 FTR position. This assertion, however, overlooks the fact that these accommodations would have made the FTR position's physical demands equal to those of the PTF position, the latter of which DesRoches has failed to show that he was capable of performing.

- 13 - (doctor's unsworn and conclusive statement that plaintiff can

perform job with reasonable accommodation is not sufficient to

defeat summary judgment).

V. CONCLUSION

DesRoches has failed to show that he was capable of working

as an FTR clerk in 1994. Accordingly, Potter's motion for

summary judgment (Doc. No. 41) is granted.

SO ORDERED.

/s/Paul Barbadoro________ Paul Barbadoro United States District Judge

September 17, 2008

cc: Leslie Johnson, Esg. T. David Plourde, Esg.

- 14 -