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Espinosa v. Potter

September 12, 2008

JOSE ESPINOSA, PLAINTIFF,
v.
JOHN POTTER, POSTMASTER GENERAL, DEFENDANT.



The opinion of the court was delivered by: Wayne R. Andersen District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Jose Espinosa ("Espinosa") brought this suit against defendant John Potter, Postmaster General, alleging that Espinosa was discriminated against on the basis of Espinosa's race, age, and disability, and that Espinosa was subjected to unlawful retaliation. This matter is before the court on Potter's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, that motion is granted.

BACKGROUND

Espinosa, an Hispanic male in his forties, is an employee of defendant United States Post Office ("Postal Service") in Lombard, Illinois. Espinosa filed this action alleging that the Postal Service discriminated against Espinosa on account of his race, age, and disability, and that Espinosa was subjected to unlawful retaliation. John Potter is named as a defendant only in his official capacity as the Postmaster General.

A. Espinosa's Physical Impairments

Espinosa developed a foot condition called plantar fibromatosis in 1997, while he was employed by the Postal Service, and had surgery to correct it in 1998. Dr. Lisa Rechkemmer, Espinosa's doctor, advised the Postal Service that Espinosa should not walk on uneven ground, such as grass, in order to avoid aggravating the condition. Because of this walking restriction, the Lombard postmaster, Richard Wetendorf, assigned Espinosa the position of limited duty carrier. Espinosa is the only limited duty carrier at the Lombard office and receives the same benefits and pay as the other carriers.

In April, 2005, Espinosa received an email message from Cindy Plahuta, Espinosa's Union Steward. In that email message, Plahuta warned Espinosa that, because his doctor had restricted him at work, Espinosa could be disciplined if he was seen walking on grass. Soon after receiving that email, Espinosa contacted Dr. Rechkemmer and asked that she reduce Espinosa's medical restriction. On May 6, 2005, Dr. Rechkemmer wrote a letter to Postmaster Wetendorf which clarified the restrictions placed on Espinosa. Specifically, Dr. Rechkemmer's letter provided that "specific restrictions are in respect to constant walking on uneven surfaces," but that Espinosa could walk "occasionally on uneven surfaces."

In February, 2004, Espinosa was also diagnosed with non-insulin dependent diabetes, which required Espinosa to take pills twice daily and to test his blood once per day.

B. Espinosa's Allegations of Disability Discrimination

Espinosa alleges that various discriminatory actions were taken against him by the Postal Service as a result of his alleged disabilities. Specifically, Espinosa alleges that, as a limited duty carrier, he was given a series of "busy work" assignments, such as throwing out undeliverable third class mail, and was denied the opportunity to work routes as a letter carrier, which Espinosa alleges is his "craft." Espinosa further alleges that the Postal Service also substantially reduced Espinosa's overtime as a result of his limited duty status.

Espinosa further alleges that he was removed from several postal routes due to disability and retaliation discrimination. One such route was Route 15. In March, 2006, the Lombard Post Office put Route 15 up for bid due to the retirement of the incumbent carrier. Since 1993, Postmaster Wetendorf had implemented a plan to provide walking relief to carriers; that is, when a route that involved all walking or all driving came up for bid, it was modified so that each route would eventually consist of part walking and part driving. Thus, when Route 15 came up for bid, the bid contained a disclaimer which advised potential bidders that the route would be modified in accordance with Wetendorf's plan. Espinosa bid on Route 15 but was determined to be ineligible because the walking portion violated his medical restrictions.

C. Espinosa's Allegations of Race Discrimination

Espinosa further alleges that racial slurs and disparate treatment of Hispanics were tolerated at the Lombard Post Office. Espinosa alleges that Jaime Gutierrez, a supervisor, referred to Espinosa as a "wetback" and told him to "swim back to Mexico." Espinosa also alleges that Postmaster Wetendorf yelled at Juan Gonzalez, another Hispanic letter carrier, from across the post office for violating Postal Service policy by loading a U-cart with mail prior to 8:00 a.m., but that Wetendorf did not reprimand a white letter carrier for doing the same thing a few days later.

D. Espinosa's Allegations of Age Discrimination

Espinosa also alleges that he was discriminated against on the basis of his age because his supervisor, Tammy Hollingsworth, allegedly stated to Espinosa that Espinosa could not complete his assignments as quickly as younger employees.

E. Espinosa's EEO Contact and Alleged Subsequent Retaliation

On March 22, 2005, Espinosa contacted an Equal Employment Opportunity ("EEO") counselor and complained of discrimination based on Espinosa's race, age, and disability. Espinosa alleges that, following his EEO complant, the Postal Service's efforts to discipline him escalated. Specifically, Espinosa alleges that, within a month of his complaint, he was subjected to five street supervisions and that, following those supervisions, he was issued a notice of suspension for failure to follow instructions. That notice of suspension was later reduced to a letter of warning. Espinosa received two subsequent notices of suspension for failure to follow instructions. Espinosa also alleges that, following his EEO complaint, the Postal Service proposed his suspension for unsafe driving, proposed another suspension for failing to properly swipe his identification badge as required by Postal Service policy, prohibited Espinosa from doing mounted routes, and repeatedly changed his work hours.

Additionally, on January 27, 2005, a notice of intent to remove Espinosa from the Postal Service was issued after Espinosa was observed by his supervisor driving a postal vehicle while talking on a cell phone, a violation of Postal Service policy. That notice was not sustained in the union grievance process and Espinosa alleges that his proposed removal was in retaliation for his EEO complaint.

On June 20, 2006, Espinosa filed a five-count complaint against the Postal Service alleging unlawful race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-5 et seq., age discrimination in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621, et seq., disability discrimination because of Espinosa's plantar fibromatosis in violation of the Rehabilition Act of 1973, 29 U.S.C. §§ 791 et seq., disability discrimination because of Espinosa's ...


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