The opinion of the court was delivered by: Charles P. Kocoras United States District Judge
CHARLES P. KOCORAS, District Judge
This matter comes before the court on the motion of John Potter, Postmaster General, United States Postal Service ("Potter") for summary judgment. For the following reasons, the motion is denied.
Plaintiff Carmen McClinton El ("McClinton El") seeks relief on account of disability discrimination and retaliation under the Rehabilitation Act ("Act"). 29 U.S.C. § 794. He initially filed suit on September 29, 2006, after the Equal Employment Opportunity Commission ("EEOC") issued its final decision arising out of a complaint filed against the United States Postal Service in June 2004 (No. 06 C 5329). McClinton El subsequently filed suit on December 11, 2006, after receiving notice of the EEOC's right-to-sue letter from a charge of discrimination he lodged against the same defendant in 2001 (No. 06 C 6839). We consolidated the two cases due to relatedness and presently address both. The following is a recitation of undisputed or otherwise admitted portions of Potter's 56.1 statement of material facts and McClinton El's statement of additional facts.
McClinton El began working at the Postal Service's Auburn Park facility as a letter carrier on August 20, 1994. When he first began employment, he had no medical disorders or physical impairments that interfered with his performance. He worked at Auburn Park until August 16, 2004, but remained on the payroll as an employee until the Office of Personnel Management approved his application for disability retirement in December 2005.
During his career as a carrier for the Postal Service, McClinton El developed a mental disability that caused major depression, anxiety, and neck pain. It specifically affected the following body functions: (1) decreased concentration during migraine headaches; (2) limited movement due to the need to sit and rest; (3) reduced concentration that affected his employment; and (4) sleep complication. At various times from 2002 until he left his job in 2005, McClinton El received counseling, group therapy, and medications to treat depression and anxiety-including a one-month hospital program in November 2002. He attended more than fifty sessions with psychologist Dr. Darrell Snyder, was hospitalized on an outpatient basis at least four times, and took medication prescribed by his doctors. McClinton El's treating physicians documented and informed his supervisors of his progress and occasionally restricted him from work. Despite medical intervention, McClinton El's condition did not improve; in November 2005, he was deemed permanently disabled.
In March 1998, McClinton El participated in a march at the Auburn Park facility to protest the installation of Paula McHenry*fn1 as manager of that facility. Inspired by perceived unfairness, McClinton El marched in opposition to her authority. Two weeks following the protest, McHenry suspended him for seven days, allegedly for participating in the protest. He subsequently filed a charge with the EEOC and the case settled in his favor.
On May 29, 2001, McClinton El reported to supervisor Annette Frazier that his vehicle was unsafe and requested a receipt. Frazier disputed the vehicle's condition and refused to give him a receipt; she stuck her tongue out at him, used a loud voice, and made gestures. One month later, McClinton El claims that he called McHenry to report an injury he sustained in the workplace. She questioned the validity of his injury and threatened to investigate him. On October 30, he contends that Frazier called him a "faggot." During a meeting on November 30, one of his supervisors commented about his inadequate hygiene.
In December 2001, McClinton El's manager and supervisors placed him on emergency suspension*fn2 , and later issued (January 2002) a notice of removal because he allegedly made physical and verbal threats toward his supervisors. However, both the emergency suspension and notice of removal were rescinded in February 2002 after the Postal Service's dispute resolution team determined the supervisors issued the sanctions without just cause.
At various times between 2002 and 2004, McClinton El's supervisors reported that he was unable to properly maintain his personal hygiene. Furthermore, depression interfered with his appetite and Dr. Snyder indicated that his physical appearance consequently suffered. In addition, McClinton El had severe sleep complications; at times, he could only sleep three or four hours a night. In the aggregate, the effects of depression affected his overall concentration, persistence, and pace-related abilities.
In sum, during 2001 to 2004, Potter disciplined McClinton El on numerous occasions. He received three notices of removal, each of which could have terminated his employment. The notices were later overturned. In addition, he received three corrective action citations in one month for delivering mail too slowly-at least two of these suspensions were overturned.
McClinton El perceives that Potter's discriminatory action occurred on account of his mental disability and in retaliation for engaging in a protected activity. In support, he identifies Tyrone Green, a letter carrier who held a similar job description. Green did not suffer from a disability or file with the EEOC. He testifies that Green would often arrive back to the station later than he would, yet never received suspension for pace-related activity.
At the close of all discovery, Potter filed the following motion for summary judgment. McClinton El ...