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Nathaniel O. Smith v. Patrick R. Donahoe

September 7, 2012

NATHANIEL O. SMITH, PLAINTIFF,
v.
PATRICK R. DONAHOE, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, DEFENDANT.



The opinion of the court was delivered by: Judge Feinerman

MEMORANDUM OPINION AND ORDER

Nathaniel O. Smith brought this lawsuit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against his employer, Patrick R. Donahoe, Postmaster General of the United States Postal Service ("USPS"). The complaint alleges that USPS placed Smith on a reduced work schedule as of September 15, 2010, and sent him home for the day on October 26, 2010, in retaliation for his prior Equal Employment Opportunity ("EEO") complaints. USPS has moved for summary judgment. The motion is granted.

Background

The facts are stated as favorably to Smith as the record and Local Rule 56.1 allow. Smith began working as a letter carrier at the United States Post Office in Maywood, Illinois, in 1984. Doc. 21 at ¶ 1. In November 1986, Smith suffered a work-related back injury. Id. at ¶ 2. Effective March 9, 2002, Smith was reassigned to a custodial laborer position at the Maywood facility. Id. at ¶ 3. The duties of the custodial laborer position included picking up trash, landscaping, clearing sidewalks of snow and ice, loading and unloading supplies and equipment, and operating sanders and waxers. Ibid. From 2003 to 2008, Smith filed seven EEO complaints; none of the USPS employees named in those complaints were involved in the allegedly retaliatory conduct at issue in this suit. Doc. 22 at ¶ 2.

In November 2008, Smith submitted a form from his physician (called a "CA-17") listing his medical restrictions. Doc. 21 at ¶ 4. The form listed the following restrictions: walking and standing limited to two hours per day; no kneeling, bending, stooping, pushing, pulling, or twisting; no operating machinery; and no exposure to chemicals, fumes, dust, or noise. Ibid.; Doc. 19-3 at 2.

USPS engaged in a National Reassessment Process ("NRP") in 2009. Doc. 21 at ¶ 5. The NRP's purposes were to assess the work limitations of injured USPS employees, to determine the availability of work within those limitations, and to reassess each employee's current position and offer him a position in which he could perform necessary work as opposed to "make work" tasks. Ibid. If an employee's medical restrictions allowed him to perform some necessary work but not a full day's worth, he would be assigned to work a partial day. Ibid. If there was no available necessary work at the employee's location, USPS would attempt to find such work at a facility within a fifty mile radius of that location. Ibid. And if no available necessary work was found, the employee would be given a "complete day no-work letter," would be sent home, and would be permitted to apply for compensation. Ibid.

Sherman Jones became Postmaster of the Maywood facility in September 2009. Id. at ¶ 6. Smith retained his duties as a full-time custodial laborer at the facility until September 11, 2009, when his schedule was reduced from eight hours per day to two hours per day. Doc. 28 at ¶ 1. Jones made the decision based on the medical restrictions set forth in Smith's then-current CA-17 form and with input from Sherman Carter and Shirelle Williams, who were members of the NRP team at the Maywood facility. Doc. 21 at ¶ 8. Smith filed an EEO complaint in November 2009 regarding the reduction in his work schedule; the complaint named Carter, Gilbert Lopez, Tammy Vucsko, and Lisa Ward-Frazier, but not Jones or Williams, as the persons responsible for the reduction. Doc. 28 at ¶ 2; Doc. 28-1.

In January 2010, Smith gave Jones an updated CA-17 form that increased his walking and standing limit from two hours to four hours per day. Doc. 22 at ¶ 6. In April 2010, Jones asked Smith for another copy of the updated CA-17 form. Id. at ¶ 7. When Jones and Wright later made another request for the updated CA-17 form, Smith refused, and on September 15, 2010, his schedule again was reduced to two hours per day. Id. at ¶ 9. (This factual assertion is made by Smith; the assertion's premise, which Smith's brief also reflects, Doc. 23 at 2, is that Smith's daily work schedule was increased from two hours to four hours at some point after January 2010, only to be reduced back to two hours on September 15, 2010.) Wright was the Customer Service Supervisor at the Maywood facility and the liaison between the NRP and Maywood employees; his responsibilities included obtaining medical documentation from injured employees, sending the documentation to the NRP team, and completing the paperwork related to employment actions resulting from the NRP process. Doc. 21 at ¶ 9.

On October 12, 2010, Smith provided Wright with an updated CA-17 form; the form stated, among other things, that Smith could walk and stand for up to four hours per day. Id. at ¶ 10; Doc. 19-4 at 2-4. On October 14, 2010, Wright prepared an NRP "Limited Duty Priority for Assignment" worksheet for Smith, which Jones signed twelve days later. Doc. 21 at ¶ 11. On October 26, 2010, at the instance of Jones and Carter, Smith was given a "complete day no-work" letter and was sent home for that day. Id. at ¶ 12.

At some point thereafter, Smith timely filed an EEO complaint alleging that he was placed on a reduced work schedule as of September 15, 2010, and that he was sent home for the day on October 26, 2010, in retaliation for his prior EEO complaints. Doc. 1-1 at 3. Smith did not claim in that EEO complaint, and does not claim in the complaint that initiated this lawsuit, that his September 2009 placement on a reduced work schedule resulted from unlawful retaliation. Ibid.; Doc. 1 at ¶ 7. USPS rejected his retaliation claim in a comprehensive final agency decision and gave Smith the right to bring a civil action to press that claim. Doc. 1-1 at 2-28. This lawsuit followed. Doc. 1. Before proceeding to the merits, it is necessary to address two issues raised by the parties' Local Rule 56.1 submissions.

First, in its Local Rule 56.1(a)(3) statement, USPS asserts that Jones, Wright, Carter, and Williams-the individuals responsible for the allegedly retaliatory conduct-were unaware of Smith's pre-2010 EEO activity and had not been named in any of Smith's pre-2010 EEO complaints. Doc. 19 at ¶ 13. Smith's Local Rule 56.1(b)(3)(B) response disputes that assertion only as to Carter, who in fact was named in the November 2009 EEO complaint. Doc. 21 at ¶ 13; see also Doc. 22 at ¶¶ 12-13. By not disputing USPS's assertion as to Jones, Wright, and Williams, Smith has admitted that they were unaware of Smith's pre-2010 EEO activity. See N.D. Ill. L.R. 56.1(b)(3)(C) ("All material facts set forth in the statement required of the moving party will be deemed admitted unless controverted by the statement of the opposing party."); Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 689 (7th Cir. 2000) ("An answer that does not deny the allegations in the numbered paragraph with citations to supporting evidence in the record constitutes an admission.") (internal quotation marks omitted); Nicholson v. Allstate Ins. Co., 2012 WL 182216, at *5-6 (N.D. Ill. Jan. 23, 2012).

Contradicting the admission in his Local Rule 56.1(b)(3)(B) response, Smith asserts in his Local Rule 56.1(b)(3)(C) statement of additional facts that Jones, Williams, and Wright were aware of Smith's 2009 EEO complaint. Doc. 22 at ¶ 3. For support, Smith points to affidavits that Jones, Williams, and Wright tendered in connection with the administrative investigation following the 2010 EEO complaint; according to Smith, those affidavits "indicate that [Jones, Williams, and Wright] each received information from Smith for which Smith denied ever talking to them about his 2009 EEO case." Ibid. After carefully reviewing the three affidavits, the court finds nothing to support Smith's assertion that Jones, Williams, and Wright were aware of Smith's 2009 EEO complaint. Doc. 19-3 at 11-30. Because Smith's Local Rule 56.1(b)(3)(C) statement does not provide evidentiary support for that assertion, the assertion will be disregarded, eliminating the need to decide whether Smith can create a genuine issue of fact by contradicting an admission in his Local Rule 56.1(b)(3)(B) response with an assertion in his Local Rule 56.1(b)(3)(C) statement.

The second issue raised by the Local Rule 56.1 papers concerns similarly situated employees. Smith identified one such employee, Yali Simmons; according to Smith, Simmons suffered a permanent job injury and was relocated out of the Maywood location without any reduction in hours. Doc. 21 at ΒΆ 14. Smith has provided no evidence regarding Simmons' ...


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