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Marille Gerdes v. Patrick Donahoe

December 13, 2012

MARILLE GERDES, PLAINTIFF,
v.
PATRICK DONAHOE, POSTMASTER GENERAL OF THE UNITED STATES, DEFENDANT



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendant's motion for summary judgment. For the reasons stated below, the motion for summary judgment is granted.

BACKGROUND

Plaintiff Marille Gerdes (Gerdes) alleges that she was employed by the United States Postal Service (USPS), and that in October of 1991, March of 1992, and July of 1992, she submitted physician's notes requesting a light duty accommodation. The physician's notes allegedly indicated that Gerdes had standing and lifting restrictions. Beginning in July 1992, Gerdes allegedly submitted similar physician's notes every thirty days, and in each instance, USPS allegedly granted Gerdes' request for a light duty accommodation.

In May of 1995, Gerdes allegedly began working a "Timekeeping" job, which did not require submission of physician's notes. In March of 2002, the "Timekeeping" position was allegedly abolished, and Gerdes allegedly bid a "generic job." From March 2002 until December 2007, Gerdes allegedly submitted, at least once a year when requested, physician's notes prepared by Dr. Patricia Merwick (Merwick) indicating bending and lifting restrictions and requesting a light duty accommodation. According to Gerdes, the form and substance of the physician's notes was essentially the same for fifteen years, and USPS allegedly accommodated Gerdes' requests for a light duty accommodation in every instance.

In April 2007, when Gerdes was 53 years old, a supervisor named Carol Rutledge (Rutledge) allegedly asked Gerdes her age and retirement plans. On February 22, 2008, Rutledge allegedly sent Gerdes home despite the fact that Gerdes allegedly had work to perform that was similar to the work she had been performing since April of 2002. Before leaving, Gerdes was allegedly instructed by Rutledge to complete a form relating to leave and to transfer certain computer files into a shared file. On February 28, 2008, Gerdes allegedly provided an updated physician's note from Merwick indicating Gerdes could perform the work she had been performing since April of 2002. USPS allegedly refused to allow Gerdes to return to work. Gerdes includes in her complaint a disability discrimination claim brought under the Rehabilitation Act, 29 U.S.C. § 701 et seq., and an age discrimination claim brought under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. USPS now moves for summary judgment on both claims.

LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A "genuine issue" of material fact in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling on a motion for summary judgment, the court must consider the record as a whole, in the light most favorable to the non-moving party, and draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

DISCUSSION

I. Rehabilitation Act Claim

In analyzing a discrimination claim brought under the Rehabilitation Act, the court applies the same standards used in cases brought pursuant to the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12111 et seq. See Peters v. City of Mauston, 311 F.3d 835, 842 (7th Cir. 2002)(citation omitted); see also 29 U.S.C. § 794(d)(stating that "[t]he standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the [ADA] and the provisions of sections 501 through 504, and 510, of the [ADA], as such sections relate to employment"). Under those standards, Gerdes must show as a threshold matter that she is protected under the Rehabilitation Act by showing that she is "a qualified individual with a disability." Peters, 311 F.3d at 842 (stating that "[t]he Rehabilitation Act of 1973 protects a 'qualified individual with a disability' from discrimination solely because of the person's disability")(citing 29 U.S.C. § 794(a)). Once Gerdes has established that she is protected by the Rehabilitation Act, Gerdes must then show that she "has suffered an adverse employment action because of [her] disability." Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004).

A. Whether Gerdes was a Qualified Individual

USPS argues that Gerdes cannot show that she was qualified to perform the essential functions of the job with or without reasonable accommodation. A qualified individual is defined under the ADA and Rehabilitation Act as a person who is "qualified to perform the essential functions of [a] job with or without reasonable accommodation." Id. (citation omitted); see also 42 U.S.C. § 12111(8) (defining a "qualified individual" as someone "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires"). In the instant action, it is undisputed that in June 2002, Gerdes bid and received a position as a mail processing clerk (Clerk). (R SF Par. 5). The written job description for the Clerk position lists various duties and responsibilities relating to the sorting, processing, and distributing mail, and the collective bargaining unit qualification standard states that "[a]pplicants must be physically able to efficiently perform the duties of the position, which require arduous exertion involving prolonged standing, walking, bending, and reaching, and may involve the handling of heavy containers of mail and parcels weighing up to 70 pounds." (SF Ex. B). It is undisputed that Gerdes submitted light duty requests each year shortly after receiving the Clerk position, and that Gerdes' requests indicated that Gerdes had full restrictions in lifting, pulling, reaching, leaning, stooping, kneeling, bending, climbing, and operating a vehicle, and significant partial restrictions for walking and standing. (R SF Par. 11). Such facts indicate that Gerdes could not perform the essential functions of the job.

Gerdes argues that she performed as a Clerk for six years under the same restrictions, which demonstrates that she could perform the essential functions of the job with reasonable accommodation. The Seventh Circuit has indicated that employers are not obligated "to create a new position, which contains a subset of the duties performed by those in an existing position, for individuals with permanent impairments." Kotwica v. Rose Packing Co., Inc., 637 F.3d 744, 750 (7th Cir. 2011)(citing Watson v. Lithonia Lighting, 304 F.3d 749, 752 (7th Cir. 2002)). The Seventh Circuit has also indicated that "the ADA does not require permanent assignment to a temporary light-duty job." DeVito v. Chicago Park Dist., 270 F.3d 532, 534 (7th Cir. 2001). Further, under Seventh Circuit precedent, an employer is not required to "manufacture a job that will enable the disabled worker to work despite his disability," and "redundant staffing is not a reasonable accommodation." Hansen v. Henderson, 233 F.3d 521, 523 (7th Cir. 2000)(citation omitted). As discussed above, it is undisputed that Gerdes had significant physical restrictions in terms of the work she was able to do, and that the various administrative tasks that Gerdes performed for six years in the Clerk position were assigned to her as part of a temporary, light duty placement. (R SF Par. 9, 11). In addition, Gerdes has not pointed to evidence to dispute USPS's contention that the administrative tasks Gerdes performed under her temporary, light duty assignment were previously performed by clerks as part of their own, regular duties. (R SF Par. 14-15). Nor has Gerdes pointed to evidence to dispute USPS's contention that the administrative tasks Gerdes performed were being assigned back to other employees. (R. SF. Par. 18). Although USPS may have accommodated Gerdes' requests ...


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