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March 19, 2004.

JOHN E. POTTER, Postmaster General of the United States Postal Service, Defendant

The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge


Plaintiff Sandra Sutton (hereafter, "Sutton") filed suit against John Potter, as Postmaster General of the United States Postal Service (hereinafter, the "USPS"), asserting three counts of discrimination and/or retaliation in violation of the Rehabilitation Act, 29 U.S.C. § 791, and the Age Discrimination in Employment Act, 29 U.S.C. § 621. Count I alleges that USPS committed disability discrimination against Sutton by terminating her rather than reasonably accommodating her medical condition of allergic rhinoconjunctivitis. Count II alleges that USPS retaliated against Sutton for complaining about her disability discrimination. Count III, since dropped by Sutton, alleged that USPS also committed age discrimination against her. Sutton and USPS have filed cross-motions for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. Sutton's motion seeks summary judgment only as to Count I, whereas USPS prays for summary judgment on both Counts I and II. Page 2


  Local Rule 56.1 of the United States District Court for the Northern District of Illinois ("Local Rule 56.1") establishes procedures that both moving and opposing parties must follow in filing and responding to a motion for summary judgment. Under Local Rule 56.1, the moving party must submit a statement of material facts with "references to the affidavits, parts of the record, and other supporting materials relied upon." Local Rule 56.1(a)(3). In turn, the opposing party must file "a response to each numbered paragraph in the moving party's statement," and, in the case of disagreement, provide specific references to supporting evidentiary material. Local Rule 56.1(b)(3)(A). If the opposing party does not respond and controvert the moving party's statement of material facts, those facts are deemed to be admitted for the purposes of the motion. Local Rule 56.1(b)(3)(B); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).

  For the most part, USPS adequately responded to Sutton's Local Rule 56.1 statements. However, as to Sutton's paragraphs 408-414 (statements mostly concerning Sutton's requests for transfer into administrative positions in the early 1990s), USPS failed to comply sufficiently with Local Rule 56.1's requirement that it file disagreements with specific references to supporting evidentiary material. Local Rule 56.1(b)(3)(A). Concerning paragraphs 408-413, USPS responds merely by admitting that Sutton "avers" or "testified" as such — never disputing Sutton's testimony with any Page 3 supporting evidentiary material. Therefore, the Court deems paragraphs 408-413 admitted — and considers them true in the factual record detailed below.

  Likewise, in paragraph 414, Sutton stated that "USPS already had her applications on record and her supervisors knew of them as well." USPS responded by denying that Sutton's CFS supervisors knew of the specific positions that she applied for. However, USPS supported its response only with testimony from the affidavit of Margaret Hoffman. This testimony, in context, only partially refutes Sutton's paragraph 414. In it, Hoffman states only that she doesn't remember if she ever knew whether Sutton applied for any other jobs, and conceded that she "may have" told Sutton she was too sick to get those positions. Therefore, this statement is also partially admitted, to the extent that it does not contest that Sutton's supervisors (plural) knew of the positions she applied for, nor does it dispute that Hoffman knew of her applications — disputing only that Hoffman does not remember if she knew.


  The Court compiled the following factual record through thorough study of the parties' briefs, Local Rule 56.1 Statements of Material Facts, and evidentiary materials. Based on all available information, the Court concludes that although the parties might disagree as to small details in the factual record, they do not dispute any material facts. Even in some of these rare Page 4 minor disputes, the Court concluded that the supporting evidence unquestionably supported one party's version of the events beyond the ability of any reasonably jury to find to the contrary.

  In October 1988, USPS hired Sutton to work as a Central Mark Up clerk in the Central Forwarding System ("CFS") Unit at the North Suburban facility in River Grove, Illinois. As early as 1989, Sutton's work in the dusty CFS environment caused her to develop a medical condition known as allergic rhinoconjunctivitis. In 1991, upon a recommendation from Sutton's doctor, the USPS Medical Department ordered that USPS place Sutton in a "temporary light duty assignment" in a "dust free area." On April 2, 1992, the U.S. Department of Labor Office of Workers' Compensation Programs (the "OWCP") accepted Sutton's claim of disability.

  On April 21, 1992, USPS transferred Sutton to the recently-completed facility in Palatine. Because the room housing Palatine's CFS unit was not complete, USPS directed Sutton to work on a different floor handling magazines. Within five hours of arriving at Palatine, Sutton suffered a serious allergic attack as a result of her disability and the conditions on the magazine floor. Sutton went home and never returned to work at Palatine or anywhere else for USPS.

  Throughout 1991, 1992 and 1993, numerous doctors filed medical reports on Sutton's behalf to USPS, frequently requesting her transfer to a dust-free environment. These requests continued after Sutton's unsuccessful transfer to Palatine, and the resulting Page 5 allergic attack. On April 27, 1992, shortly following Sutton's allergic reaction at Palatine, USPS Fitness for Duty Doctor Sarmiento recommended that Sutton "needs to be transferred to an office environment free of dust mites and irritants that may exacerbate her symptoms, ideally out of Central Markup Unit. In December 1992, Sutton's personal physician Dr. Percy May concurred, declaring Sutton "totally disabled" but advising that "she be moved to an area free from dust, dust mites, paper mites, and away from all odors associated with computer and other machine operated apparatus. In December 1993, Dr. May again certified that Sutton should not work "until she is able to work in a dust and mite free environment."

  Beginning in 1989, and accelerating in 1991 and early 1992, Sutton also applied for other positions within USPS, but did not receive any of them. Most of these applications occurred prior to her transfer to Palatine, and the subsequent allergic reaction. The last recorded incident of Sutton applying for a non-CFS job occurred on May 21, 1992, when Sutton applied for six open non-CFS jobs. Following this mass-application, Sutton never again sought work outside of CFS as she believed USPS had her applications on file.

  On April 22, 1993, the day after the incident at Palatine, USPS wrote Dr. May requesting his assistance in finding alternative work for Sutton, and posing a number of specific questions to him concerning what kind of work he would deem appropriate. Page 6 Specifically, USPS asked if Sutton could work as a letter carrier, as a clerk in a small non-mechanical office, or as an employee at either a mechanized or non-mechanized manual distribution center or office environment, and whether she still had restrictions from working near computers. Despite his previous and subsequent opinions that Sutton could work in a dust-free environment, Dr. May responded to this inquiry only by stating that Sutton was "totally disabled for usual work." Dr. May neither responded to USPS' specific job questions, nor did he suggest any type of work that Sutton could do.

  Between 1993 and 1997, neither Sutton nor USPS demonstrated any practical interest in getting Sutton back to work either at her old job or in a new assignment. During this period, Sutton filed no additional job applications or transfer requests, choosing instead to collect disability benefits. USPS, for its part, made sporadic and lackluster efforts toward returning Sutton to employment. The Court documents these efforts, in full, below.

  In March 1994, USPS scheduled Sutton for a work capacity evaluation with an allergist to determine what USPS work she could do. However, when Sutton could not attend this appointment due to an unrelated surgery, USPS never rescheduled it. In June 1995, USPS wrote to OWCP seeking a second medical opinion regarding Sutton's disability. In September 1996, USPS directed Sutton to undergo an evaluation by Dr. Baltazar Espiritu concerning her condition. Dr. Espiritu recommended that USPS assign Sutton to a Page 7 "relatively new building as workplace, complete with adequate ventilation" to "determine whether her symptoms would recur while working as a central mark up clerk," In April 1997, OWCP referred Button to Dr. Margaret Matheis, a rehabilitation counselor, to help facilitate Sutton's reemployment.

  In August 1997, USPS finally issued Sutton a limited-duty job offer to return her to work. USPS offered to send Sutton back to Palatine as an automated mark up clerk, the same position she held previously, but with a clean air machine installed near Sutton's work station. Sutton rejected this job offer, after Dr. May opined that it would inadequately accommodate her condition. In particular, Sutton objected that USPS's proposed clean air machine accommodation was too weak to sufficiently clean the large CFS room. Sutton notes that the actual machine that USPS purchased for her, in May 1998, can handle up to 15,000 cubic feet, whereas the CFS room totals 169,920 square feet. Sutton further objected that USPS offered her only a "limited duty" assignment, a USPS classification designed to accommodate only temporary disabilities. However, Sutton notes that even USPS conceded in a September 27, 1997 that she "needs a permanent job offer at some point," proving that USPS did not believe that the Palatine CFS position amounted to a fully-adequate accommodation.

  Additionally, under USPS regulations, a disabled employee's rejection of a job offer should trigger a "suitability" determination. This entails USPS investigating whether the offered Page 8 job would sufficiently accommodate the disabled employee. A USPS finding that the job is "suitable" would result in the employee losing disability benefits. Here, USPS failed to ever conduct the required ...

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