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Ismail v. Potter

October 18, 2006

YOUSEF ISMAIL, PLAINTIFF,
v.
JOHN E. POTTER, POSTMASTER GENERAL OF THE UNITED STATES POSTAL SERVICE, DEFENDANT.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge

MEMORANDUM OPINION

This matter comes before this Court on a motion for summary judgment filed by Defendant John E. Potter, Postmaster General of the United States Postal Service ("Postal Service"). For the following reasons, we grant summary judgment on all claims in favor of the Postal Service.

PRELIMINARY MATTER

Ismail filed a motion to strike portions of the Postal Service's Reply, arguing that the Postal Service added additional facts to its reply to Ismail's Rule 56.1 statement and included lengthy argument, both in violation of the requirements of Local Rule 56.1. The Postal Service filed a single document, in which it 1) replied to Ismail's responses to the Postal Service's Rule 56.1(a) statement and 2) responded to Ismail's Rule 56.1(b) statement. The Postal Service's replies to Ismail's responses to the Postal Service's Rule 56.1 statement are not authorized by Rule 56.1 and accordingly were disregarded by this court. See White v. Sundstrand Corp., No. 98 C 50070, 2000 WL 713739 at *2 (N.D. Ill., May 23, 2000). However, there is nothing improper about the Postal Service's citations to new exhibits or additional facts in its response to Ismail's additional statement of material facts. Rule 56.1 requires that denials be supported by the record, and it would be illogical to limit the Postal Service's denials to only those facts it had previously cited in its Rule 56.1 statement. L.R. 56.1(a); 56.1(b)(3)(B). This is not a case, as Ismail claims, of the Postal Service submitting an entire supplemental statement of facts. See e.g. White, 2000 WL 713739 at *2. Finally, this Court has reviewed Ismail's claims concerning paragraphs in the Postal Service's Response which Ismail has determined should be stricken and has determined that only two of the Postal Service's responses may arguably contain a few lines of additional argument. That said, this Court is not about to begin a practice of line-editing Rule 56.1 statements to excise particular sentences in de minimus cases of violations of Rule 56.1. Accordingly, Ismail's Motion to Strike is denied.

BACKGROUND

The following facts are gleaned from the parties' Rule 56.1 statements. Statements of fact not properly before us or unsupported by the record have been disregarded. See Brasic v. Heinemann's Inc., 121 F.3d 281 (7th Cir. 1997).

Plaintiff Yousef Ismail ("Ismail") was born in Israel, raised in Jordan, came to the United States in 1992 and became a citizen in 1996. Ismail began working at the Carpentersville Post Office in August 2001 as a city letter carrier. During the time Ismail was employed at the Carpentersville Post Office, Dennis Leisz was his direct supervisor, and Ralph Kaiser was Postmaster.

In January 2003, while delivering mail, Ismail was injured after an altercation with a dog. Between January and March 2003, Ismail was off work and then performed some limited duty assignments. Although the parties dispute whether or not the Postal Service asked Ismail's physician, Dr. Wen, to alter his work restrictions, it is not disputed that on March 13, 2003, Dr. Wen permitted Ismail to go back to work with the restriction that he could carry no more than five pounds.

On March 14, 2003, Postmaster Kaiser was performing street supervision of Ismail, although Kaiser had never before observed Ismail. He observed Ismail delivering mail slowly and confronted him. What happened next is a matter of dispute. For the purposes of this motion, we will accept Ismail's version as true. Ismail alleges that Kaiser threatened to write Ismail up three times, fire him, and send him back to his country. Kaiser then issued Ismail a letter of warning, on March 17, 2003, regarding his slow delivery pace. Ismail admitted that he did not deliver the route on time but contends that his slowness was due to his injury. Ismail filed grievances against Kaiser concerning the letter of warning, alleged improper contact with Dr. Wen and unprofessional conduct during the March 14, 2003, confrontation. The letter of warning was rescinded, and the remaining grievances were resolved. After the March 2003 incident, Dr. Wen placed Ismail on more restrictive limitations, which included a restriction on lifting more than five pounds and on walking outside.

Starting in May 2003, Ismail was assigned cleaning duties by Kaiser on at least one day. There is considerable dispute as to these cleaning duties, including (1) whether Ismail was assigned cleaning duties after he informed the Postal Service that Dr. Wen changed his restrictions to prohibit any cleaning duties; (2) how many times Ismail was assigned cleaning duties; (3) whether Kaiser observed as Ismail cleaned toilets and urinals; (4) and when Kaiser stopped asking Ismail to perform cleaning duties. The parties do agree, however, that the cleaning assignments ceased at the end of May or beginning of June, 2003. At most, then, Ismail was assigned cleaning duties for a little more than a month. Ismail testified that he felt humiliated by the cleaning assignments and the cleaning hurt his back.

Ismail claims that Lyndda Smith, Ricky Miller, Ray Adam, Raymond O'Claire, Tom Hart, and Theresa Tripkovich were all Caucasian, similarly situated employees, who were treated better than he was when they were injured in that they were not required to clean bathrooms. However, Ismail admitted that Miller, Adam, and O'Claire were all able to perform their regularly assigned duties while they were injured. As to Smith, Ismail admitted in his EEO affidavit that Smith could walk the street and case mail - two activities which Ismail's restrictions prevented him from doing. As to Hart, Ismail admitted in his deposition that Hart was completely unable to walk and that he was not sure what Hart's medical restrictions entailed. As to Tripkovich, Ismail admitted that she is a rural mail carrier, that she drives, rather than walks, her mail delivery route, and that he was not sure what her medical restrictions were. Further, Ismail provided no evidence to counter Kaiser's attestation that Tripkovich, a Caucasian woman, was also assigned to clean lavatories while on limited duty.

On June 13, 2003, Ismail requested emergency leave from June 14 to June 29, 2003, to visit his ill mother in Jordan. The Postal Service granted his request. Ismail did not tell his supervisors that he did not have a reservation that would guarantee his return to work on the 29th. When he discovered that he was unable to fly out on the 29th from Jordan, he failed to call his supervisors, claiming that he was unable to use any telephones in Jordan to make a long distance call and could not purchase a telephone card. Ismail did not return to work until July 7, 2003. Ismail requested emergency leave upon his return to the post office in July 2003, for the period of June 30, 2003 to July 5, 2003. Ismail's request was denied, and he filed a grievance concerning that denial.

On August 6, 2003, Ismail was suspended, without loss of pay or time, for 14 days based on his absence without leave in early July 2003. Although the protocol is to issue disciplinary action within two weeks from the time of an incident, Dennis Liesz issued the suspension in August, with the concurrence of Postmaster Kaiser and review by the Postal Service's Labor Relations Office. Ismail filed a grievance concerning the suspension, which was later reduced to a letter of warning.

On August 7, 2003, Ismail contacted an EEO counselor to complain that he was a victim of race and disability discrimination. In the EEOC proceedings, Ismail identified his race as "Israeli." In his EEO affidavit, Ismail stated that he believed he was assigned cleaning duties based upon ...


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