The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge
ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO THE TITLE VII AND REHABILITATION CLAIMS; AND AS TO THE FMLA CLAIM RE ANY EVENTS PRIOR TO MAY 5, 2006
Plaintiff Wilfredo A. Golez, proceeding pro se and in forma pauperis, filed a fourth amended complaint against the Defendant John E. Potter, the United States Postmaster General, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16; the Rehabilitation Act of 1973, 29 U.S.C. § 794a; and the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601. Before the Court is Defendant's motion for partial summary judgment filed on February 10, 2011. (Dkt. No. 81.) The motion is submitted on the papers without oral argument, pursuant to Civil Local Rule 7.1(d)(1). After a review of the briefs, supporting documentation, and applicable law, the Court GRANTS Defendant's motion for partial summary judgment as to the Title VII and Rehabilitation Act claims; and as to the FMLA claim regarding any incidents prior to May 5, 2006.
On May 5, 2009, Plaintiff filed a complaint against Defendant Potter. (Dkt. No. 1.) On September 14, 2009, Plaintiff filed a first amended complaint. (Dkt. No. 15.) On December 8, 2009, Defendant filed a motion to dismiss the first amended complaint. (Dkt. No. 22.) Before the motion to dismiss was fully briefed, on February 22, 2010, Plaintiff filed a motion for leave to file a second amended complaint. (Dkt. No. 30.) On February 24, 2010, the Court granted Plaintiff's motion for leave to file a second amended complaint and denied Defendant's motion to dismiss as moot. (Dkt. No. 34.) On February 24, 2010, a second amended complaint was filed. (Dkt. No. 35.) On March 5, 2010, Plaintiff filed a motion for leave of court to file an addendum to the second amended complaint. (Dkt. No. 37.) On March 12, 2010, the Court construed that motion as a motion for leave to file a third amended complaint which was granted. (Dkt. No. 38.) A third amended complaint was filed on March 29, 2010. (Dkt. No. 39.) On April 9, 2010, Defendant filed a motion to dismiss. (Dkt. No. 42.) On April 21, 2010, Plaintiff filed a motion for leave of court to file a fourth amended complaint. (Dkt. No.
44.) On April 23, 2010, the Court denied Plaintiff's request to file a fourth amended complaint and set a briefing schedule on the motion to dismiss. (Dkt. No. 45.) On July 12, 2010, the Court granted Defendant's motion to dismiss and motion to strike and granted in part and denied in part Plaintiff's motion to file a fourth amended complaint. (Dkt. No. 56.) On August 6, 2010, Plaintiff filed a fourth amended complaint. (Dkt. No. 57.) An answer was filed on August 18, 2010. (Dkt. No. 59.) On August 20, 2010, Plaintiff filed a motion for temporary restraining order which was denied on August 23, 2010. (Dkt. No. 62.)
On February 10, 2011, Defendant filed a motion for partial summary judgment, or alternatively, motion to dismiss. (Dkt. No. 81.) On February 22, 2011, Plaintiff filed a motion for leave of court to amend the fourth amended complaint which was denied on February 28, 2011. (Dkt. Nos. 86, 87.) On March 14, 2011, the case was transferred to the undersigned judge. (Dkt. No. 89.) Plaintiff filed an opposition on March 18, 2011 and Defendant filed a reply on March 29, 2011. (Dkt. Nos. 92, 93.)
Plaintiff was employed as a custodian with the United States Postal Service from February 16, 1998 to July 4, 2008 when his employment was terminated. (Fourth Amended Complaint ("FAC") ¶ 6.) Plaintiff's disciplinary issues started in November 2004. (Id. ¶ 10.)
On November 17, 2004, Plaintiff was challenged to a fight by a co-worker. (Id. ¶ 12.) He reported the incident to the supervisor and made arrangements to see his medical provider who provided a note that Plaintiff should rest from November 18-20, 2004. (Id.) On November 23, 2004, he returned to work but "felt sick and was not in control of himself" and requested sick leave. (Id. ¶ 13.) Plaintiff was diagnosed with anxiety/distress disorder and prescribed amitriptyline and given a doctor's note not to go back to work from November 23, 2004 to January 6, 2005. (Id. ¶ 14, 15.) On November 10, 2004, the MLS Supervisor informed Plaintiff that there would be consequences for his absence when he was taking care of his sick mother. (Id. ¶ 10.) On December 22, 2004, Plaintiff, in writing, requested a transfer to the Midway plant to avoid further conflict with the co-worker but it was denied. (Id. ¶ 16.)
Defendant suspended Plaintiff for seven days from April 30 to May 6, 2005 for irregular attendance at work. (Id. ¶ 17.) On July 28, 2005, Plaintiff was suspended for fourteen days for irregular attendance. (Id. ¶ 19.) On September 22, 2005, Plaintiff filed an Equal Employment Opportunity ("EEO") complaint. (Id. ¶ 20.) On February 2, 2006, Defendant reduced his suspension to a "paper suspension with no loss of pay" through a pre-arbitration settlement. (Id. ¶ 21.) On June 25, 2005, Plaintiff was transferred to the Midway plant. (Id. ¶ 18.)
In November 2005, after discussing his attendance issues with his supervisor, he was told that "[i]t was business and if Plaintiff could not be there, Plaintiff might as well not be there." (Id. ¶ 9.) On November 18, 2005, Plaintiff's supervisor disapproved Plaintiff's request for a FMLA leave without pay ("LWOP") "due to lack of manpower." (Id. ¶ 11.)
In May 2006, Plaintiff was treated for hypertension at the UCSD Medical Center. (Id. ¶ 22.) On May 12, 2006, he was treated for anxiety at Sharp Rees-Stealy Medical Group and was told to rest for three days. (Id. ¶ 23.) On May 9, 2006, Plaintiff received a notice of proposed removal. (Id. ¶ 24.) Shortly thereafter, Plaintiff submitted a letter of rebuttal to the "EEO and APWU." (Id. ¶ 25.) Around June 15, 2006, Defendant rescinded the proposed letter of removal. (Id. ¶ 26.)
On August 24, 2006, Plaintiff returned from "sick leave/LWOP" and gave his supervisor a doctor's light duty note, stating the Plaintiff could not lift more than 15 pounds, dated August 21, 2006. ¶ 27.) Plaintiff requested for work within the 15 pound work limitation; however, he was sent home and the request denied. (Id. ¶ 28.) On October 10, 2006, Plaintiff returned to work and received an investigative interview dated October 9, 2007 for not reporting an on-the-job injury. (Id. ¶ 29.) On October 13, 2006, on the orders of the supervisor, Plaintiff was taken by his co-worker to a medical facility because of profuse nose/mouth bleeding. (Id. ¶ 30.) On October 21, 2006, Plaintiff went to Sharp Chula Vista Medical Center Emergency Room for nose/mouth bleeding. (Id. ¶ 31.) On November 13, 2006, Plaintiff went to "Sharp Urgent" to get a note for the previous night's episode as required by the supervisor. (Id. ¶ 32.)
On November 28, 2006, Defendant conducted an investigative interview regarding Plaintiff's continuing unauthorized absences. (Id. ¶ 33.) On November 29, 2006, Plaintiff received a Proposed Removal from employment for his unauthorized absences. (Id. ¶ 34.) On December 4, 2006, Plaintiff submitted a rebuttal to the proposal. (Id. ¶ 35.) On December 28, 2006, Defendant reduced the discipline to a fourteen-day suspension, which was to remain on his record for eighteen months, until June 2008. (Id. ¶ 37.)
In April and May 2008, Plaintiff was late six times. (Id. ¶ 40.) Plaintiff claims he called the supervisor's cell phone to inform him of the delay but the calls were ignored. (Id.) On May 11, 2008, Plaintiff received an emergency call about his mother's health and looked for the supervisor in his office to inform him but he was not there. (Id. ¶ 42, 43.) Plaintiff clocked out to lunch when he left. (Id. ¶¶¶ 54, 55.) On July 3, 2008, Plaintiff was issued a Notice of Decision of Termination by Defendant. ¶ 57.) On July 4, 2008, Plaintiff was escorted out of the Facility. (Id. ¶ 58.)
On June 2, 2008, Plaintiff received a Notice of Proposed Removal for "Failure to Follow Instructions" to notify his workplace of his absences. (Id. ¶ 49.) On June 11, 2008, Plaintiff delivered his attorney's letter to Defendant. (Id. ¶ 53.) On June 20, 2008, Plaintiff rejected a proposal by Defendant of a "Last Chance Employment Agreement" provided that plaintiff withdraw all claims filed.
On September 9, 2008, Plaintiff, the EEO Representative and Defendant had an EEO mediation conference but no agreement was reached. (Id. ¶ 61.) Plaintiff alleges that Defendant discriminated against him based on age, race, national origin and disability. (Id. ¶¶ 69, 82.)
In early September 2008, Plaintiff filed an appeal with the Merit Systems Protection Board ("MSPB")*fn1 challenging his removal. (FAC ¶ 62; D's Notice of Lodgment ("NOL"), Ex. 2, 18:11-17; 26:6-13; Ex. 5.) On October 29, 2008, Plaintiff filed an EEO complaint with Defendant regarding his termination. (D's NOL, Ex. 2, 22:24- 23:16, 26:15-17; Ex. 6.) On November 12, 2008, the EEO complaint was ...