The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Plaintiff Maria Porch ("Plaintiff") is suing Defendant John E. Potter, Postmaster General of the United States ("Defendant"), for disability discrimination and retaliation in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (the "ADA") and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. Plaintiff alleges one count of discrimination under each Act and one count of retaliation under each Act for a total of four counts in her First Amended Complaint (the "Complaint"). Before this Court now is Defendant's Motion for Summary Judgment made pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, Defendant's motion is GRANTED.
I. UNDISPUTED FACTUAL BACKGROUND
At all times relevant, Plaintiff was a United States Postal Service ("USPS") mail processing clerk. She began working for the USPS in 1984. In 2005, at the time of the events giving rise to her discharge, Plaintiff held a limited duty position at the "Nixie table." Plaintiff's Nixie assignment involved sitting at a table and repairing pieces of torn mail at her own pace. This limited duty was extremely light work and did not require lifting any item weighing more than five pounds. Plaintiff worked on the Nixie table because she suffered an on-the-job injury in 2002. On January 27, 2005, Plaintiff claimed she suffered another on-the-job injury.
According to Plaintiff, while using the toilet and pulling on the toilet paper, a plastic toilet-paper-dispenser cover popped open and struck her on the right side of her head and shoulder. Plaintiff's supervisor inspected the dispenser and found the dispenser to be intact. A USPS physician examined Plaintiff, noted that she complained of a headache and numbness in her ear, but found no bruising or swelling on the head or shoulder and concluded that the headache was unrelated to the toilet paper dispenser incident.
For most of the following month, however, Plaintiff did not come to work. She submitted documents from a Dr. Saloman claiming that she was "totally incapacitated" as a result of the toilet paper dispenser injury and depression. She also filed a workers compensation claim asserting that she was entitled to be paid for the time she was not working. Plaintiff supported her claim with notes from her doctor stating that she was "totally incapacitated" due to her injury. During the period of time Plaintiff was not reporting to work because of her injury, surveillance conducted by the Postal Inspection Service ("PIS") showed her driving, shopping and spending four hours at a beauty salon. The PIS also discovered that Plaintiff attended classes at Devry University during the time period she claimed she was unable to work.
On March 7, 2005, Manager of Distribution Operations Anthony Teemer ("Teemer") placed Plaintiff on emergency suspension based on what he believed to have been worker's compensation fraud. On March 18, 2005, the PIS issued its formal report in which it concluded Plaintiff was performing activities inconsistent with her claimed medical restrictions. The report detailed Plaintiff's claim that she was totally unable to work from January 28, 2005 through February 16, 2005, and also February 18 and 19, 2005, due to her alleged injury from the toilet paper dispenser. On April 6, 2005, Teemer issued Plaintiff a notice that she would be removed from the USPS because of her fraudulent behavior in claiming compensation for being unable to work when she was found engaging in activities that indicate she could perform her duties at the USPS. Plaintiff responded by filing a union grievance to challenge her suspension as well as her termination. The USPS settled the grievance related to the emergency suspension on February 1, 2006, and agreed to rescind the suspension notice and compensate Plaintiff for wages lost from March 9, 2005, to May 14, 2005, the effective date of her termination. Prior to an arbitration hearing, the USPS unilaterally reduced Plaintiff's punishment from termination to a long term suspension to last from May 14, 2005, to February 12, 2006. However, Plaintiff persisted with her grievance and on February 27, 2006, an arbitrator found that Teemer had "just cause" for the decision to remove Porch based on her engagement in activities that were inconsistent with being "totally disabled" due to her alleged injuries to her head and shoulder on January 27, 2005.
Meanwhile, in May 2005, Plaintiff notified the Equal Employment Opportunity Commission ("EEOC") that her removal was caused by race, disability and retaliation for prior EEOC activity. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") and on October 17, 2006, an ALJ granted summary judgment for the USPS. The ALJ found that Plaintiff failed to present any evidence to rebut or to cast doubt on Teemer's rationale for his decisions. The ALJ wrote "[f]rom Teemer's point of view, Plaintiff requested Continuation Of Pay for an alleged on-the-job injury on January 27, 2005, that prevented her from sitting at a table and repairing torn pieces of mail at her own pace. Yet, during the time that she was absent from work with pay, Plaintiff was observed performing activities that demonstrated that she could have performed her limited duty. Based on these facts, the Agency is entitled to summary judgment." (Decision of ALJ at 18-19.)
At her deposition Plaintiff testified that her mental condition today is substantially the same as in 2005. When asked how depression has limited her, Plaintiff testified that she is limited in her ability to enjoy life and socialize and that she sometimes just wants to stay in the house and do nothing and cry. When asked at deposition what alleged EEOC activity she claims prompted the USPS's retaliation, Plaintiff testified "I don't remember the years but I have filed several EEOs and grievances."
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists only if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the burden of establishing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this burden, the non-movant must set forth specific facts (a "scintilla of evidence" is insufficient) demonstrating that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 252; see also Celotex, 477 U.S. at 324. When reviewing a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. See Schuster v. Lucent Tech., Inc., 327 F.3d 569, 573 (7th Cir. 2003). This standard of review is applied to employment discrimination cases with "added rigor." Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993).
Plaintiff is a federal employee and as such, her remedies for discrimination lie under the Rehabilitation Act, not the ADA. Mannie v. Potter, 394 F.3d 977, 982 (7th Cir. 2005); see also 42 U.S.C. § 12111(5)(B). Therefore, Counts I and III, alleging retaliation and discrimination under the ADA respectively, ...