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Dewell v. Potter

December 21, 2009

JAMES DEWELL, PLAINTIFF,
v.
JOHN E. POTTER, POSTMASTER GENERAL, DEFENDANT.



The opinion of the court was delivered by: Richard Mills, U.S. District Judge

OPINION

Pending before the Court is the Defendant's motion for summary judgment.

I. BACKGROUND

In September 2005, Plaintiff James Dewell was hired by the United States Postal Service ("USPS") as a part-time flexible ("PTF") mail carrier. Although Dewell claims that he performed his job in "a satisfactory manner, or while a trainee, was making satisfactory progress toward competence," the Postal Service terminated Dewell's employment due generally to what it alleged was his poor job performance, including unreported damage to Postal Service property. Dewell claims that, prior to the property damage, he had been told that he was making great progress. At the time, Dewell was still within the 90-day probationary period and was not a permanent employee.

Dewell alleges that his termination on November 17, 2005, was a direct result of unlawful discrimination against him due to his military disability. He claims that he left the United States Marine Corps with the residual ten percent service-connected VA disability relating to a chronic back condition. The Postal Service terminated Dewell for the stated reason that he had failed to report a property damage accident. Specifically, a charging cord was pulled away from a socket when Dewell moved a vehicle. The wall socket was damaged when Dewell drove off. Dewell contends that this was a minor incident and not a true motor vehicle accident. The Postal Service asserts that Dewell failed to make a complete safety check of his truck before beginning his route.

The Postal Service asserts that, although Dewell claims that he was treated differently than a similarly situated employee, there was no similarly situated employee with whom the Postal Service dealt differently. The one other employee who was involved in a vehicle accident shortly after she began with the Postal Service had completed her probationary period and had become a permanent employee at the time that her accident occurred. Moreover, that employee had reported the accident and was disciplined within the limits of the union contract that applied to permanent employees. She was considered a good or even an outstanding employee.

The parties dispute whether the accident was immediately reported. Although the Postal Service asserts that he failed to report the accident as soon as it was immediately required, Dewell alleges that he reported the incident as soon as it was discovered and he could locate a supervisor.

Dewell's complaint indicates that he is asserting claims pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., though the ADA does not apply to federal employers. The Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., which uses the same definitions of disability as the ADA, applies to Dewell's claim that he was unlawfully terminated.

II. FACTS

(A)

At his deposition, Dewell testified that he had pain in the lumbar region, the lower five vertebrae in the spinal column. Dewell was in the Marine Corps and, following a morning run, he sustained a back injury, was treated and put on light duty. Dewell was no longer capable of carrying a rifle or participating in the 3-mile run and weekly hikes with the battalion, as required of all Marines. When walking for any distance of, hypothetically, two miles, Dewell would require a break of one or two minutes to release the pressure from his back. However, Dewell's back did not prevent him from effectively managing a job as a cryptographer. He received a medical discharge. The injury did not affect his sight, hearing or speaking. He has discomfort in his back when trying to fall asleep.

As required of the Postal Service application process, Dewell was required to identify any medical disorders or physical impairments which might interfere in any way with the full performance of duties of the position for which he was applying. Dewell indicated that he had none. In the application process, Dewell acknowledged the "Functional Requirements" of the carrier position. Among these were "heavy lifting up to 70 pounds, heavy carrying 45 pounds and over, straight pulling four plus hours, pushing four plus hours, reaching above shoulder, use of fingers, walking eight plus hours, standing eight plus hours, repeated bending eight plus hours, climbing legs only eight plus hours." Dewell never told the Postal Service that he suffered pain and pressure when he walked for a mile. He does not recall ever informing any of the three supervisors that he had physical difficulties.

Dr. Steven Ginos was Dewell's regular physician. Dr. Ginos affirmed to the Postal Service that Dewell was healthy and able to perform a "postal worker's job," including walking six to seven miles per day carrying 35 pounds and occasionally 70 pounds walking short distances. Dewell did not see Dr. Ginos during his period of employment with the Postal Service. Although Dr. Ginos is aware that Dewell has a 10% disability rating from the Veteran's Administration ("V.A."), he has never reviewed Dewell's records from the V.A. Dr. Ginos received no calls from Dewell regarding back complaints while he was employed with the Postal Service. Dr. Ginos described the nature of Dewell's back problem as "episodic," short-lived severe back spasms that "responded well to treatment, and then he would go about his daily life." The problem was chronic, according to the doctor.

On July 7, 2005, Dr. Ginos received a phone call indicating that Dewell was applying for a postal service job and was requesting a letter stating that he was able to perform a postal worker's job. Dr. Ginos sent a letter to the Postal Service stating that Dewell was capable of walking six to seven miles per day, carrying 35 pounds and occasionally 70 pounds walking short distances. Due to the wording of the letter, he believes that, most likely, he was looking at a description of the requirements the Postal Service set for the job. Having seen letter carriers, Dr. Ginos assumed that the job for which Dewell was applying involved "you walk a certain distance, you come back to your vehicle, you drive to the next location, you get out, you walk around and get back in and drive again."

The difficulty Dewell had with his back did not limit his ability to walk six to seven miles per day, walk up or down stairs, or perform normal daily life activities. If he wished, Dewell could ride a bicycle, play softball, football and tennis. There were no sports which would have been eliminated due to his medical condition. Dewell was capable of pushing a mail cart, reaching above his shoulder. He could climb, he had use of all of his fingers, and he possessed mental-muscular coordination. In fact, Dr. Ginos believed that given Dewell's problems with weight control, having a job that required six or seven miles of walking a day would have been beneficial. Dewell's back might, however, affect his ability to lift from time to time. If Dewell did something to acutely exacerbate his back, he might have muscle spasms and require muscle relaxers and Ibuprofen. When Dewell's back "acted up," he was "pretty much down in bed."

In his sports medicine practice, Dr. Ginos refers patients to physical therapy multiple times a day. However, he never referred Dewell to a physical therapist for his back complaint. Dr. Ginos has referred patients to pain management specialists when physical therapy has been ineffective; however, he never referred Dewell to a pain management specialist. If a patient failed to respond to therapy, Dr. Ginos might then order a CAT scan or an MRI. He never ordered a CAT scan or an MRI on Dewell for his back problems. Dr. Ginos gave Dewell one work excuse and that was in December 2001, for three days.

On May 15, 2007, Dewell came in for a physical and informed the doctor that he was on the Quincy University football team and "was able to withstand the exercise routine at that time." Dr. Ginos saw no reason why Dewell should refrain from football. Dr. Ginos would agree with the conclusions of Dr. Wheeler, who upon examination of Dewell, determined:

Impression: Healthy 28-year old male who is evaluated for a U.S. Postal Service position. History of previous lumbosacral spine stain while serving in the military. He carries a 10 percent disability from the Marines.

Three: Chronic lumbosacral spine strain with occasional infrequent episodes of recurrent symptoms in the same area of the back previously injured.

Four: I find no evidence of disc disease or . . . radiculopathy. I find the patient to be employable in whatever capacity is desired, particularly in reference to this position for which he is being considered by the U.S. Postal Service. . . .

Six: I find no restrictions in his ability to be employed and perform those tasks required as outlined in the duties and responsibilities list, including all functional requirements and environmental factors.

Dr. Ginos defined the term "disability" from a medical point of view, in pertinent part, as "a limitation in what you're able to do. If there is something in your life that you were able to do before the disability that you cannot do after the disability, then you're obviously disabled from that activity." Dr. Ginos did not consider Dewell disabled as per the doctor's definition of the medical term.

(B)

John Beck was the Postmaster of the Quincy, Illinois, Post Office at all times relevant to this action. Beck was responsible for nearly 200 employees and mail processing in 127 cities in three zip codes. As Postmaster, Beck had experience in procedures for hiring, promoting, corrective actions and removals. Although supervisors are in charge of carrier duty assignments and employee evaluations, the supervisors reported directly to Beck and he made final determinations in hiring and firing decisions for the Quincy Post Office. Together with Melissa Allen, Beck interviewed Dewell for a position as a letter carrier.

Beck knew that Dewell had been in the military. Dewell's Certificate of Release or Discharge from Active Duty showed the "Reason for Separation" was "Medical Discharge." The document also indicated that he was "subject to active duty recall and or annual screening." Beck had no further information regarding the reason for discharge. Dewell indicated that he was able to meet the physical requirements for the carrier position. In the regular hiring process, every candidate completes a medical questionnaire which is sent to St. Louis, Missouri. If the personnel office in St. Louis approves hiring, Beck assumed that the candidate met all physical requirements for the position for which he applied. Beck had no reason to doubt Dewell's physical capacity for the carrier job.

During the hiring process, Beck and Allen made it clear to Dewell that there was a 90-day probationary period. They informed Dewell that this 90-day period was an opportunity to determine whether he, as a probationary employee, was suitable for the position of letter carrier. Beck and Allen informed Dewell, as they did all prospective employees, that not everyone passes the probationary period and if, during the first 90 days, Dewell should not perform at a satisfactory level, he would be terminated. Beck and Allen made it clear that such action would not be "personal," but was the result of Postal Service requirements.

Beck was always aware when a probationary employee's 30-day review was approaching and he always conferred with supervisors to check the performance level of any new employee. The three supervisors, Allen, Lynn Atchley and Terry Harrison, were critical of Dewell's performance. However, Beck never removed a probationary employee after just 30 days. He did not believe that 30 days was a sufficient period of time in which to make a final determination regarding an ...


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