Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tommie Ewing v. Patrick R. Donahoe

June 26, 2012

TOMMIE EWING, PLAINTIFF,
v.
PATRICK R. DONAHOE, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, DEFENDANT.



FINDINGS & RECOMMENDATIONS

On May 10, 2012, the court held a hearing on defendant Patrick Donahoe's motion for summary judgment. Plaintiff appeared in pro per. Lynn Trinka Ernce appeared on behalf of defendant. Upon consideration of the motion on file in this action, discussion with plaintiff and counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

FACTUAL AND PROCEDURAL BACKGROUND

A. The Application and Interview

On May 4, 2005, plaintiff completed an entrance examination to determine his eligibility for employment with the United States Postal Service ("USPS"). See Ewing Dep. at 34; Def.'s Mot. for Summ. J., Ex A (Ex. 3 to Pl.'s Dep.). On July 13, 2005, the USPS sent plaintiff a letter stating that he was eligible for employment based on the results of the examination and noting his placement on the USPS register for the position of Custodian / Laborer Custodial. Def.'s Mot. for Summ. J., Ex A (Ex. 3 to Pl.'s Dep.).

On August 10, 2005, a call-in notice was mailed to plaintiff notifying him that his name had been reached from the register and inviting him to interview at the West Sacramento Administration Building on August 22, 2005 for the position of Laborer Custodial. Def.'s Mot. for Summ. J., Ex. A (Ex. 5 to Pl.'s Dep.). Plaintiff was asked to bring with him to the interview a record of his military service and certain forms that he was directed to complete prior to his arrival, including an Application for Employment. Id. The call-in notice expressly stated "This notice is not an offer of employment. Do not resign from your present position at this time." Id.

On August 19, 2005, plaintiff completed and signed an Application for Employment at the West Sacramento USPS office. Ewing Dep. at 43; Def.'s Mot. for Summ. J., Ex. A (Ex. 4 to Pl.'s Dep.). On the application, plaintiff claimed a veteran preference for a "Compensable Disability (30% or more)." Id. at 3. He also answered a number of questions on the application, including Question E-7A, which asked whether the applicant had ever been convicted of a crime or was under charges for any offenses against the law; plaintiff checked "No" in response to this question. Id. at 4. Plaintiff also indicated he was unemployed and that he had been"medically released" from his then-most recent employer. Id. at 2.

In addition to his Application for Employment, plaintiff signed a number of other documents on August 19, 2005, including a document meant to reflect his understanding of Question E-7A on the Application for Employment. Def.'s Mot. for Summ. J., Ex. A (Ex. 7 to Pl.'s Dep.). This document stated "If you falsify your application, you may be dismissed. It may also bar you from working in the Federal Service. It will mar your employment record." Id.

In addition, plaintiff signed a document entitled "Important Notice to Postal Applicants," which directed the plaintiff to complete the Application for Employment accurately and to include all convictions. Def.'s Mot. for Summ. J., Ex. A (Ex. 8 to Pl.'s Dep.). It also indicated that "[i]f it is later determined that elements of any employment documents have been answered falsely, you are subject to removal from the Postal Service." Id.

Next, plaintiff signed a "Pre-Employment Screening -- Authorization and Release" form, which authorized the USPS to obtain information necessary to determine plaintiff's fitness and suitability for employment in the USPS. Def.'s Mot. for Summ. J., Ex. A (Ex. 9 to Pl.'s Dep.).

Finally, plaintiff filled out an Employee's Withholding Allowance Certificate and a W4 Form. Def.'s Mot. for Summ. J., Ex. A (Ex. 11 of Pl's Dep.).

On August 22, 2005, plaintiff interviewed with Larry Schlosser. Ewing Dep. at 63; Def.'s Mot. for Summ. J., Ex. A (Ex. 15 of Pl.'s Dep.). Schlosser's interview notes reflect that plaintiff was deemed qualified for the position, and that Schlosser recommended plaintiff for the position. Def.'s Mot. for Summ. J., Ex. A (Ex. 15 of Pl.'s Dep.). The notes also display plaintiff's initials next to "No" in response to the following question: "Have you ever been convicted of an offense against the law? You must include plea bargains, no contests, misdemeanors and felonies." Id.; Ewing Dep. at 63-64.

B. The Medical Assessment

Following the August 22, 2005 interview, plaintiff received documents directing him to appear on August 30, 2005 at the USPS Administration Building in West Sacramento for a medical assessment and to bring with him a completed medical questionnaire. Ewing Dep. at 39-40; see Def.'s Mot. for Summ. J., Ex. A (Ex. 5 of Pl.'s Dep.). The document scheduling plaintiff's appointments provided: "As part of the requirements for employment with the United States Postal Service, you are required to pass a drug screen and have a medical assessment." Def.'s Mot. for Summ. J., Ex. A (Ex. 15 at 3 of Pl's Dep.). On the form scheduling plaintiff to submit a specimen for urinalysis drug testing, plaintiff is identified as "Applicant." Id.

On an Essential Functions checklist dated August 23, 2005 and signed by plaintiff on August 29, 2005, plaintiff certified that he did not have medical disorder or physical impairment that could interfere in any way with the full performance of the duties of the position for which he was applying. Def.'s Mot. for Summ. J., Ex. A (Ex. 17 of Pl.'s Dep.). On the top of this checklist, plaintiff was identified as "Applicant[]." Id. The form also noted "Position Offered: Custodian." Id.

On the medical history questionnaire, the following was written on the first page, which plaintiff signed on August 30, 2005: "THE POSITION I HAVE BEEN OFFERED IS: Custodian." Ewing Dep. at 39-40; Def.'s Mot. for Summ. J., Ex. A (Ex. 20 of Pl.'s Dep.).

At the August 30, 2005 medical assessment, Aqua Jenkins, R.N., conducted a medical interview of plaintiff based on his responses on the medical questionnaire. See Ewing Dep. at 79; Def.'s Mot. for Summ. J., Ex. A (Ex. 26 of Pl.'s Dep.). During this interview, plaintiff informed Nurse Jenkins of his mental health history, including counseling for Atypical Psychosis. See Def.'s Mot. for Summ. J., Ex. A (Ex. 26 of Pl.'s Dep.).

After the medical interview, Nurse Jenkins sent plaintiff a "New Hire Physical Appointment Letter" dated September 6, 2005. Def.'s Mot. for Summ. J., Ex. A (Ex. 25 of Pl.'s Dep.). Per this letter, plaintiff was directed to appear on September 9, 2005 at the Dameron Occupational Health Services office in Stockton, California for a physical examination to complete his medical assessment. Id. The letter also stated that, following the physical examination, plaintiff would be notified regarding the status of his job application. Id.

On September 9, 2005, plaintiff was examined by Corky J. Hull, M.D., M.P.H. Def.'s Mot. for Summ. J., Ex. A (Ex. 26 of Pl.'s Dep.). Per Dr. Hull's notes, plaintiff suffered a knee injury in 1991 during a basketball game while he was in the Army. Id. at 1, 3. Although plaintiff received physical therapy for that injury, he continued to complain of chronic slight pain, which became worse with prolonged sitting. Id. at 3. Dr. Hull's notes also reflect that plaintiff was reluctant to answer questions regarding his mental health history, though plaintiff did state that he was seen by a psychiatrist from 2001 through 2001 for "atypical psychosis." Id. Based on this examination, Dr. Hull recommended modified job functions and further stated that, in his medical opinion, plaintiff was at an increased risk of injuring his left knee within the next six months. Id. at 3-4.

C. Plaintiff Found Unsuitable

On September 27, 2005, Brandi Jentgen, Manager of Personnel Services for the USPS, sent plaintiff a letter informing him that the USPS determined he was medically unsuitable for the Custodian position. Def.'s Mot. for Summ. J., Ex. A (Ex. 27 of Pl.'s Dep.). Jentgen wrote that, based on a review of plaintiff's medical records and evaluation by the USPS's medical staff, plaintiff's medical condition was incompatible with the functions of the job. Id.

D. The First EEO Complaint

On October 14, 2005, plaintiff filed an equal employment opportunity ("EEO") complaint alleging disability discrimination. FAC at 4, ¶ 15.

On November 2, 2005, plaintiff and Jentgen participated in a mediation and entered into a settlement agreement. Ewing Dep. at 96-99; Def.'s Mot. for Summ. J., Ex. A (Ex. 29 of Pl.'s Dep.). The settlement agreement provided that it "constitute[d] a full and final settlement of all issues arising out of the subject matter of [plaintiff's] EEO complaint numbers and by signing this agreement the [plaintiff] withdr[ew] any and all pending EEO complaints and appeals relative to the subject matter of these complaints." Id.

By the terms of this settlement agreement, plaintiff agreed to be examined by his own doctor, who would review plaintiff's medical condition and provide the USPS with a medical report. Def.'s Mot. for Summ. J., Ex. A (Ex. 29 of Pl.'s Dep.). Plaintiff also sought reasonable accommodation. Id. In return, Jentgen agreed to consider plaintiff for a position if it was determined that plaintiff was capable of performing the specific job duties. Id.

With respect to his request for reasonable accommodation, plaintiff was asked to submit the following information: (1) a diagnosis of plaintiff's medical condition; (2) a statement of his medical requirements and/or restrictions; (3) his physician's assessment as to the duration of his restrictions; and (4) his physician's assessment of how the impairment impacts him. Def.'s Mot. for Summ. J., Ex. A (Ex. 30 of Pl.'s Dep.).

In accordance with the terms of the settlement agreement, plaintiff was examined at the Veterans Administration ("VA") Hospital by a doctor of his choosing on December 14, 2005. Ewing Dep. at 106; Def.'s Mot. for Summ. J., Ex. A (Ex. 33 of Pl.'s Dep.). The doctor's notes indicate that plaintiff had chronic left knee pain for fifteen years, and that he had probable schizophrenia. Def.'s Mot. for Summ. J., Ex. A (Ex. 33 at 1 of Pl.'s ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.