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Malone v. Potter

January 15, 2010


The opinion of the court was delivered by: Margaret M. Morrow United States District Judge


This action was tried to a jury on March 3 through 6, 2009. On March 10, 2009, the jury returned a verdict for plaintiff Earnest Malone on his claims for disability discrimination under the Rehabilitation Act and retaliation for protected activity in violation of Title VII. The jury awarded Malone $300,000 in damages for emotional distress. Malone's entitlement to the equitable remedies of back and front pay was tried to the court on July 21, 2009. Having considered the evidence, the arguments of counsel, and the record in this action, the court makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.


A. Summary of Relevant Background Evidence Adduced During Jury Trial

1. Malone's claims for disability discrimination under the Rehabilitation Act and retaliation for protected activity, i.e., filing EEOC complaints, were tried to the jury on March 3 through 6, 2009. As respects his Rehabilitation Act claim, Malone argued that his supervisor, Postmaster Tyrone Williams, failed reasonably to accommodate him and subjected him to adverse employment action on the basis of his disability when he changed his work assignments in 2007. Malone also argued that Postmaster McGee subjected him to adverse employment action on the basis of his disability when he transferred him to the Hub City Post Office in 2005. As respects his retaliation claim, Malone argued that his filing of EEOC complaints was a motivating factor behind these actions.*fn1

2. Malone is 53 years old and has a twelfth grade education.*fn2 He began working at the Compton Post Office as a letter carrier in 1978; that remained his official position through 2007.*fn3 Since 1999, he has filed at least ten employment discrimination claims against the Post Office.*fn4

3. Malone injured his right thumb in 1994, and filed a worker's compensation claim as a result. He subsequently underwent an operation in which his right thumb joint was fused to his hand.*fn5

4. Dr. Joan Wright, a hand surgeon, testified at trial regarding Malone's injuries. Wright first saw Malone on October 4, 1996.*fn6 Malone went to see Wright because he was concerned that a 25% impairment rating he had received on a worker's compensation claim was incorrect.*fn7 The percentage rating represents the degree to which the person is limited and is used to calculate a financial settlement.*fn8 Dr. Wright determined that Malone's rating was 31%.*fn9

5. At the time he first saw Dr. Wright, Malone was experiencing pain in his right hand due to the prior operation. The pain primarily occurred when Malone attempted to pinch.*fn10

Because of this pain, Malone had begun to favor his left hand over his right, and was experiencing pain in the left hand as well.*fn11

6. Over the course of Dr. Wright's treatment, Malone began to develop wrist and shoulder pain as well.*fn12 Dr. Wright attributed the shoulder pain to bursitis, an inflammation of the sac that separates the shoulder bone from the muscle.*fn13

7. Dr. Wright treated Malone's problems with physical therapy, anti-inflammatory medication, and splints.*fn14 She also concluded that he should avoid gripping, pinching, pushing, pulling and lifting over five pounds.*fn15 Dr. Wright selected five pounds as a limit because that was the maximum Malone told her he could lift.*fn16

8. Malone did not see Dr. Wright between May 2001 and January 2004.*fn17 In January 2004, he again visited Dr. Wright. He complained that he had been assigned to the Santa Monica Post Office and that the drive was causing him hand and shoulder pain.*fn18 At that point, Dr. Wright prescribed arm braces for Malone.*fn19

9. In January 2004, Malone also began to see a psychologist, Dr. Barbara Ammon, who testified at trial regarding her opinion of Malone's mental health. Ammon diagnosed Malone with anxiety disorder, NOS, and depressive disorder, NOS, in January 2004.*fn20

"NOS" stands for "not otherwise specified" and indicates that the disorders diagnosed by Dr. Ammon did not fit into any specific categort of disorder; Ammon testified that NOS is a "catch-all, left-over diagnosis."*fn21 Dr. Ammon stated that Malone's feelings of anxiety and depression resulted from a perception that he was mistreated at work.*fn22 When she saw him in January 2004, Dr. Ammon placed Malone on medical leave so that he could "regroup emotionally."*fn23 Malone was out of work on Dr. Ammon's orders until May 2004.*fn24

10. Dr. Ammon testified that Malone's emotional condition was stable between January 2004 and July 2006.*fn25 She placed him on medical leave for five months in 2005, however, after he became upset over a confrontation with a Postmaster Deer.*fn26 At this time, Malone experienced difficulty sleeping, suspiciousness, headaches, and gastrointestinal issues.*fn27

11. Malone returned to work in October 2005. During Malone's time at the Post Office, his supervisors had provided him with various limited duty job assignments to fulfill the Post Office's workers' compensation obligations. When he returned in October 2005, he was assigned to work as lobby director at the Hub City Post Office.*fn28

12. As described by Malone, the duties of a lobby director include greeting customers and assisting them to mail items, such as by helping them find the proper forms.*fn29 Malone was capable of performing the position.*fn30 He testified that he liked the job and enjoyed working with the public.*fn31

13. Dr. Ammon placed Malone on leave again for one month in June 2006, because she believed he had become increasingly "agitated" and "hopeless."*fn32

14. In July 2006, Malone returned to the Compton Post Office and was assigned to work as lobby director there.*fn33

15. In September 2006, Dr. Wright diagnosed Malone with carpal tunnel syndrome.*fn34

16. On July 12, 2007, Malone's supervisor, Postmaster Tyrone Williams told him that he could no longer work as lobby director due to a grievance decision in favor of the postal clerk's union.*fn35 Malone was assigned various duties including express mail delivery and custodial work. While he did not attempt the custodial assignment, he tried to deliver the mail and found he was unable to do it. Malone told Williams about his inability to deliver to mail, and Williams gave Malone a choice between delivering mail and going home.*fn36

Thereafter, Malone continue to receive job assignments consisting of various tasks, including mail delivery.*fn37

17. In July 2007, Dr. Wright placed the following restrictions on Malone: no repetitive or forceful bilateral hand gripping, pushing, pulling, lifting over five pounds, or overhead activities; a ten minute break after 50 minutes; no driving more than 30 minutes at a time; no standing more than 30 minutes without a break; and no manual opening of letters or stapling.*fn38 She testified that she added these restrictions because Malone was "having more problems."*fn39 As respects several of the restrictions, Dr. Wright could not recall specifically why she imposed them other than Malone's own description of his limitations.

18. In September 2007, Dr. Wright imposed a new limitation that Malone not do any street delivery of mail.*fn40 On September 14, 2007, he obtained a note from Dr. Wright to this effect.*fn41

19. Williams asked Malone to deliver mail on September 14, and sent Malone home when he refused. The same thing occurred on September 17 and 18.*fn42

20. On September 19, Malone received a new job assignment that included casing and carrying mail.*fn43 The job offer stated that Malone's restrictions would not be honored.*fn44 Malone became upset and walked out of the Post Office. He did not return to work again.*fn45

21. Dr. Ammon testified that Malone experienced nervousness in 2007 due to the changes in his job assignments and uncertainty as to whether there would be something for him to do when he arrived at the job site.*fn46 Because Malone was being given assignments outside his medical restrictions, Dr. Ammon placed him on leave on September 19, 2007.*fn47

Malone decided to file for disability retirement.*fn48 In December 2007, he applied for unemployment benefits.*fn49

B. Relevant Trial Evidence Regarding Malone's Ability to Work

22. Malone's future ability to work is one of main points of dispute between the parties. Malone contends that as a result of the Post Office's actions, he is mentally unable to work. The Post Office contends that Malone is capable of working. The court first considers the physical limitations on Malone's ability to work.

1. Physical Limitations

23. Dr. Wright testified that she did not believe Malone's physical restrictions prevented him from working in the future.*fn50

24. Dr. Thomas Grogan, an orthopedic surgeon testified as a defense expert regarding Malone's physical limitations. Hand injuries makes up 15% of his practice, and he has performed numerous hand surgeries.*fn51

25. Dr. Grogan examined Malone on September 23, 2008; the examination included x-rays of both hands, Malone's shoulders, and neck.*fn52 Dr. Grogan opined that Malone could lift up to twenty pounds.*fn53 He also concluded that Malone did not suffer from carpal tunnel syndrome,*fn54 and found Malone's shoulders to be in normal condition.*fn55

26. Dr. Grogan concluded that Malone's main problems were the improper positioning of the fusion of his right thumb and degeneration of his left ...

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