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McMillan v. Potter

May 5, 2010

ALICE OUTLAW MCMILLAN, PLAINTIFF,
v.
JOHN E. POTTER, POSTMASTER GENERAL, DEFENDANT.



The opinion of the court was delivered by: Judge James B. Zagel

AMENDED MEMORANDUM OPINION AND ORDER

I. BACKGROUND

In 1985, Plaintiff Alice Outlaw McMillan ("McMillan") began working as a clerk for the United States Postal Service ("USPS"). In keeping with the spirit of her middle name, McMillan claims to have a long history of standing up for her rights and those of other injured employees, referring to herself as a modern-day "Norma Rae."*fn1 Between 1994 and 2004, McMillan filed ten ("Equal Employment Opportunity") EEO complaints against the USPS.

In May 1994, McMillan filed a claim for an on-the-job injury (apparently the onset of carpal tunnel syndrome), which was accepted by the Office of Workers' Compensation ("OWC"). As a result, McMillan was placed in a mail processing clerk position, a limited-duty post with certain restrictions. Those restrictions included not lifting more than one pound, no repetitive motion with both hands, and no stamping, pushing or pulling. During this period, Plaintiff maintains that she periodically worked in the "Nixie" unit in order to rest her hands.*fn2

By October 2002, McMillan claimed that her injury was so severe that she could no longer work. The OWC accepted her work stoppage, and McMillan was placed on temporary disability leave and received disability payments.

In September 2003, McMillan had surgery on her right knee and subsequently underwent physical therapy. In February 2004, USPS, through Injury Compensation Specialist Sheila Spane ("Spane"), offered McMillan placement into a limited-duty clerk position. McMillan's treating physician, Dr. Samuel Chmell, responded to the offer, rejecting it. He explained that McMillan would not be able to return to work until September 1, 2004.

In March 2004, Spane once again offered McMillan a limited-duty clerk position. Dr. Chmell again rejected the offer explaining that McMillan was fully incapacitated for duty. On March 29, 2004, Spane requested that the OWC schedule McMillan for a second opinion examination.

On September 27, 2004, Dr. Chmell wrote McMillan a work statement explaining that she would be unable to work through October 10, 2004, and would be released to work on October 11, 2004, with the following restrictions: no repetitive motion, no cold air blow, no push/pull, no lifting of more than one pound, no "SS" walking. On October 6, McMillan went to the USPS Medical Unit to obtain the necessary clearance to return to work. Personnel at the Medical Unit expressed concern about McMillan's medical release authorization. McMillan then contacted Dr. Chmell who provided, via fax, an updated release. The release reported McMillan's diagnoses as "bilateral knee injuries status post right knee partial menisectomy, consequential injuries to ankles and feet with posterior tibial tendinitis." Dr. Chmell also specified the following restrictions: no excessive walking; no repetitive motion of the upper extremities; no lifting of more than one pound; no cold blowing air; and no pulling or pushing. According to Defendants, this differed from the earlier restrictions in that McMillan could not undertake any excessive walking. Carol Moore, then head of the Injury Compensation Department, advised the Medical Unit that McMillan was to be scheduled by the Department of Labor ("DOL") for a referee examination. Spane notified the Medical Unit that as a result of the "conflicting" medical information submitted by Dr. Chmell,*fn3 McMillan would not be able to return to work until a referee examination had taken place and the results were returned. After the examination, the DOL, through the OWC, could then advise the USPS as to whether McMillan could return to work.

On October 12, Plaintiff spoke with Angela Eaddy ("Eaddy"), her claims examiner at OWC. Eaddy explained that Spane had called her to let her know that the agency did not have any work within the restrictions prescribed by her physician, but she denied directing Spane not to return Plaintiff to work. In January 2005, OWC then sent a letter to McMillan summarizing that she had already been advised by Eaddy that there was no work available at USPS within the restrictions set forth by Dr. Chmell, and that the OWC would schedule a referee examination to determine whether McMillan had any residual injuries and whether she could return to work.

In April 2005, Dr. David Hoffman conducted the referee examination. He concluded that McMillan was not totally disabled, and, that at the time of the examination, she would be able to perform the limited-duty clerk position that had been offered to her in March 2004. In February 2006, McMillan returned to work at the USPS, accepting an assignment as a Manual Unit employee. From October 2004 through February 2006, during her period of unemployment, McMillan received temporary total disability payments totaling approximately $100,000.

On or around July 7, 2003, McMillan contacted Senator Richard Durbin about the Postal Service's improper treatment of her on-the-job injury. On October 20, 2004, Plaintiff sent a letter to Postmaster John Potter complaining of her treatment by Spane and Moore. Also in October 2004, Plaintiff sought EEO counseling, and a formal administrative complaint of discrimination against the USPS followed one month later. In her complaint, McMillan alleged that she had been prevented from returning to work in October 2004 because of a disability and in retaliation for prior EEO activity. The Equal Employment Opportunity Commission ("EEOC") granted the USPS's motion for summary judgment.

In April 2006, McMillan filed suit, challenging the EEOC's rejection of her claims. In her Third Amended Complaint, Plaintiff alleges that in October 2004, the Medical Unit informed her that there was no work available for her within her restrictions. According to McMillan, this was a discriminatory and retaliatory act by Spane, Moore, or their supervisors, one or more of whom McMillan claims made the decision to deny her accommodation. McMillan contends that she was denied "a position for which she was qualified and eligible solely by reason of her disability." She claims that the USPS placed other similarly situated employees in these positions shortly after denying them to McMillan. She also maintains that there were several available positions in the Nixie unit at the time she was denied a position. McMillan brings the following counts against her employer, the United States Postal Service: (1) failure to accommodate; (2) disparate treatment, (3) retaliation. In her response to Defendant's motion for summary judgment, Plaintiff dismissed Count 2.

Plaintiff is seeking lost wages, insurance premiums she paid while out of work, accrual benefits, and compensatory damages for negative health effects suffered as a result of ...


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