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John D. anderson v. John E. Potter

November 21, 2011

JOHN D. ANDERSON, PLAINTIFF,
v.
JOHN E. POTTER, POSTMASTER GENERAL OF THE UNITED STATES POSTAL SERVICE, GREAT LAKES AREA OPERATIONS, DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:

MEMORANDUM OPINION AND ORDER

John D. Anderson has sued his employer, the United States Postal Service (USPS). He asserts claims under the Rehabilitation Act and the Americans with Disabilities Act (ADA) for disability discrimination, failure to accommodate, and retaliation and under the Family and Medical Leave Act (FMLA) for interference and retaliation. USPS has moved for summary judgment. For the reasons stated below, the Court grants USPS's motion.

Background

In May 1998, USPS hired Anderson as a part-time mail processing clerk. Anderson had been diagnosed with asthma in 1997. From the time he was hired through the commencement of this suit in 2009, Anderson worked at the USPS facility in Bedford Park, Illinois.

In April 2002, Anderson filed an informal equal employment opportunity (EEO) complaint, alleging that his request for time off under the FMLA was denied in retaliation for participating in a previous discrimination complaint and that he had been discriminated against because of a disability and his gender. In July 2002, Anderson filed another informal EEO complaint in which he alleged that his supervisor retaliated against him for talking to another manager and harassed him and that he had been discriminated against because of a disability.

Anderson states that his asthma symptoms were only noticeable at work. He attributes this to his workplace being damp and full of mold and mildew. In September 2002, Anderson complained to the Occupational Health and Safety Administration (OSHA) about the amount of mold and mildew at his workplace. OSHA notified USPS of the problem and directed USPS to investigate. OSHA did not tell USPS that Anderson had made the complaint. USPS hired a contractor who inspected and tested the facility. USPS then approved a $32,000 renovation to remove the mold and prevent it from coming back.

Anderson left work early on December 3, 2002, claiming that the mold removal process exacerbated his asthma. On December 6, he filed a claim for an occupational illness. On December 23, Dr. Michael B. Foggs, Anderson's allergist, wrote a letter in which he stated that Anderson's asthma was sensitive to mold and that he should not work in any environment where he was exposed to mold, dampness, or noxious and toxic chemicals. The USPS injury compensation department, not the facility where Anderson worked, received the letter. The same day, Dr. Foggs wrote in a separate document that Anderson could return to work when cleanup and renovations were completed. In February 2003, Dr. Foggs wrote again that Anderson was suffering from asthma flare-ups at work and that he was not exposed to any irritants at home or anywhere else he went. USPS granted Anderson's occupational injury claim.

On January 6, 2003, USPS informed Dr. Foggs that it had finished cleaning Anderson's facility of mold and mildew. Dr. Foggs agreed that Anderson could return to work "[i]f the work environment is clean and devoid of mold spores and irritants." Def. Ex. 16. On January 17, however, Dr. Foggs wrote another letter in which he stated that Anderson was still suffering asthma-related problems at work and that merely cleaning the area might not be sufficient. Dr. Foggs also wrote that Anderson was "virtually symptom-free at home and in the Security Office at the workplace," and he requested that Anderson be assigned to work in the security office or a comparable work space. Def. Ex. 19. The same day, Anderson contacted an EEO counselor to complain of disability discrimination. On January 30, he filed an informal complaint stating that he was suffering disability discrimination, had not been accorded his FMLA rights, and had received a notice of removal stating that he would be terminated for absenteeism. USPS and Anderson settled the complaint in March, and Anderson was not terminated.

Anderson filed another informal EEO complaint in April 2003 and followed that with a formal complaint in June 2003. In both complaints, he sought to enforce his FMLA rights. In the informal complaint, he also made claims of disability discrimination and retaliation. Throughout 2002 and 2003, Anderson missed a good deal of work, though the parties dispute how much of that time he missed due to his asthma. In 2003, in addition to the notice of removal discussed above, Anderson received three notices of suspension related to absenteeism.

In December 2003, Dr. Foggs wrote another letter asking that Anderson be removed from any work environment containing "mold spores, dampness, and/or noxious and toxic irritants." Def. Ex. 28. Anderson states that he left work and went to the hospital in December 2003 and January 2004 because he was suffering from asthma attacks. USPS agrees that Anderson went to the hospital in January 2004 but disputes the December visit because the hospital did not produce any records of it in response to a subpoena.

On July 6, 2004, Anderson received another notice of removal. It stated that he would be terminated because he had not reported to work since June 19. On July 21, USPS received a note and a letter from Dr. Foggs stating that Anderson had not been able to work since June 18 and that he had suffered from several life-threatening asthma attacks at work. The day before USPS received Dr. Foggs's letter, Anderson made an informal EEO complaint alleging race and disability discrimination and retaliation. USPS rescinded and expunged the notice of removal on July 23. Anderson made a formal EEO complaint on September 27, 2004 in which he alleged disability, sex, and race discrimination and retaliation.

In May 2005, Anderson wrote a letter requesting accommodations from USPS. He asked to be placed in "the security office [or] any other place well tolerated by me." Def. Ex. 34. On the same day, Dr. Foggs wrote another letter to USPS reiterating the problems that Anderson had had and stating that his life could be at risk if he returned to work. Anderson wrote another letter to senior manager Michael Lee in August 2005, requesting that he be granted an accommodation and assigned to clerical or office work. Later in August, Dr. Elaine Ferguson, a medical officer for USPS, wrote to Dr. Foggs requesting additional details because Anderson had never had an asthma attack at work and requesting that Dr. Foggs describe why Anderson's asthma was life-threatening. She also stated that the mold problem had been solved and that air quality in the building was better than that outside. Dr. Foggs responded that his records indicated that Anderson had had several asthma attacks at work and that he doubted that the air quality was actually sufficiently good in the facility. He did not provide any records.

In September 2005, Anderson received another notice of removal. It stated that he had not returned to work since June 2004 and that USPS found his medical documentation inadequate. Anderson filed a union grievance, which the parties settled by agreeing that Anderson would undergo an examination by a new doctor. Dr. Jacek Pieta examined Anderson and found that he could work in an irritant-free environment. Dr. Ferguson discussed Anderson's condition with Dr. Pieta and concluded that Anderson could work if the air quality was good in his facility. Anderson returned to work in February 2006. He was placed in the manual letters department because he told supervisors that his asthma symptoms were better there. Lee testified that he observed Anderson wearing his mask and working without problems, but Anderson disputes this.

Anderson did not receive any further information regarding his request for an accommodation. Lee testified that he checked to see whether Anderson could be assigned to an office job and that there were no vacant office jobs at the time, though Anderson disputes this. Lee and another manager discussed the request during a phone call with Stephen Grieser, the head of USPS's Reasonable Accommodation Committee. Grieser testified that during the call, he consulted Dr. Ferguson, who was also a member of the committee. Pl. Ex. C. at 95. The parties dispute whether the call occurred in August 2005 or in March 2006 after Anderson had returned to work. During the call, Grieser and the managers decided to provided an "N95"mask to Anderson, because they thought it could filter out anything. During a follow-up call two or three weeks after the initial call, Lee told Grieser ...


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