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Campbell v. Brennan

United States District Court, N.D. California

June 13, 2017

ELMER E CAMPBELL, Plaintiff,
v.
MEGAN J. BRENNAN, Defendant.

          ORDER RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT RE: DKT. NO. 60

          E SCOTT CORLEY United States Magistrate Judge.

         In this employment discrimination suit against Defendant the United States Postal Service (“USPS”), pro se Plaintiff Elmer Campbell alleges claims for retaliation and discrimination under the Rehabilitation Act and Title VII of the Civil Rights Act (“Title VII”). Defendant's motion for summary judgment is now pending before the Court. (Dkt. No. 60.) Plaintiff failed to timely file an opposition to the motion for summary judgment despite having been granted an extension of time to do so. (Dkt. No. 62.) After carefully considering the evidence and relevant legal authority, the Court GRANTS Defendant's motion for summary judgment for the reasons set forth below.

         BACKGROUND

         A. Plaintiff's Allegations[1]

         Plaintiff is African-American and a Marine Corps veteran who suffered service-related injuries resulting in the amputation of his right leg, Post Traumatic Stress Disorder (“PTSD”), and a back condition which was aggravated by his left leg condition. (SAC ¶¶ 3, 5.)

         In 1982, Plaintiff began working as a USPS Mail Handler. (Id. ¶ 5.) Two years later, he sustained an on-the-job injury and received workers' compensation through the Office of Workers' Compensation Program (“OWCP”). (Id. ¶ 7.) As a result, Plaintiff began performing “limited duty” work. (Id.) After two years of limited duty work, the OWCP determined that Plaintiff had fully recovered from his work-related injury, and ended his limited duty status. (Id.) However, Plaintiff's treating physician determined that Plaintiff continued to suffer from his pre-existing service-related injuries, which precluded Plaintiff from returning to full duty at USPS. (Id.) Thus, Plaintiff continued to perform in a temporary light duty capacity within his medical restrictions. (Id.)

         Plaintiff alleges that commencing in 2009 USPS refused to provide him light duty work as a reasonable accommodation for his pre-existing disabilities and that this refusal led to his “constructive termination.” (Id. ¶¶ 8, 10.) The following year, Plaintiff, a designated senior bidder, placed a bid on a Mail Handler position but USPS awarded the position to a non-disabled employee with less seniority. (Id.at ¶ 10.) Plaintiff filed grievances with his Union regarding his constructive termination and the denial of the bid position. (Id.) Plaintiff also filed a claim with the Merit Systems Protection Board (“Merit Board”) against USPS, alleging discrimination and failure to provide accommodations in violation of the ADA. (Id. ¶ 11.) Thereafter, USPS placed Plaintiff on leave without pay status for approximately three years while rejecting Plaintiff's requests to work with reasonable accommodations. (Id. ¶ 12.) As a result, USPS forced Plaintiff to involuntarily retire in 2012. (Id.)

         B. Summary Judgment Evidence

         In support of its motion for summary judgment, Defendant submitted several sworn declarations, documents, and a transcript of Plaintiff's deposition taken for this case, as well as a transcript of the Equal Employment Opportunity Commission (“EEOC”) hearing on the complaint underlying this action. (Dkt. Nos. 60-2 - 60-15.) Plaintiff has not submitted any opposing evidence, although Defendant filed the full transcript of Plaintiff's sworn deposition and EEOC testimony. (Dkt. No. 60-6.) Plaintiff's fifth amended complaint cannot be considered an affidavit because it is not sworn under penalty of perjury.[2] (Dkt. No. 50.) See Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985) (holding that an unverified first amended complaint is insufficient to counter a summary judgment motion supported by affidavits); cf. Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (verified complaint may be used as an opposing affidavit under Rule 56 to extent it alleges facts that fall within plaintiff's personal knowledge).

         Plaintiff began working for the Post Office in 1982 as a mail handler at the Richmond, California bulk mail center. (Dkt. No. 60-6, Campbell Depo. at 47:5-6, 50:2-3, 50:19-22.) In 1985, he suffered a job-related injury which aggravated his service connected (amputation) injury and he was given a limited duty assignment. (Id. at 47:10-15, 53:8-14.) Limited duty work is for employees who are injured on the job and provides work which accommodates the employee's recovery period. (Dkt. No. 60-7, EEOC testimony of Gary Thompson, 85:25-86:3.)

         Plaintiff performed limited duty work for a few years and then the OWCP determined that his work related injury was sufficiently healed so he was given temporary light duty work instead. (Dkt. No. 60-6, Campbell Depo. at 54:15-5.) Light duty work is for employees who have an off-the-job injury, or an on-the-job injury which has been cleared by OWCP, but need accommodations within their work environment. (Dkt. No. 60-7, EEOC testimony of Gary Thompson, at 86:4-20.) Plaintiff performed light duty work on a full-time basis from 1989 to 2009. (Dkt. No. 60-6, Campbell Depo. at 57:1-3, 59:10-11.) During this time, he did a variety of jobs: forklift, tow tractor, tagging the mail, “anything that [he] could find.” (Id. at 57:8-14.)

         Beginning in November 2008, Plaintiff worked on the LIM belt doing “rewrap” for loose mail without addresses. (Id. at 69:25-70:13, 83:5-7.) His medical limitation at that time was no prolonged standing and no lifting over 25 pounds. (Id. at 83:8-14; Dkt. No. 60-15.) The light duty assignment corresponding to this medical limitation stated that its duration was November 22, 2008 to December 30, 2008 and that “[p]rior to the end of the approved period of light duty, if you still need light duty, you must submit a new written request with current medical restrictions in support of that re-newed request or you will be returned to full duty the day after the currently approved light duty expires.” (Dkt. No. 60-15.)

         In mid-2009, Plaintiff was asked to provide medical documentation supporting his need for light duty status. (Dkt. No. 60-6, Campbell Depo. at 91:12-92:9.) Plaintiff resubmitted the same family medical leave documents that he submitted at the beginning of each year. (Id.) Management rejected these documents and instead sought documentation from a physician attesting to why Plaintiff could not perform the essential functions of his position. (Dkt. No. 607, Thompson EEOC testimony at 115:10-20.) In particular, in August 2009, Plaintiff was issued a letter of warning regarding his failure to submit the medical documentation. (Dkt. No. 60-8, Thompson Decl. at ¶ 6.) Plaintiff filed a grievance because he had submitted the same type of documents verifying his medical condition in 2009 as he did every year. (Dkt. No. 60-6, Campbell Depo. at 89:1-15, 119:2-12; Dkt. No. 60-14.) The grievance was rejected because “all employees in light or limited duty assignments are required to periodically update their duty limitation.” (Dkt. No. 60-14 at 3.) The rejection letter states: “[w]hile it has been established that the grievant is missing part of his leg from his military service, it is not established that his condition will permanently prevent him from performing other than in the light duty assignment he encumbers” and he has not requested “a permanent light duty assignment.” (Dkt. No. 60-14 at 3.)

         A month later, Gary Thompson, Manager of Distribution Operations at Plaintiff's mail center directed that Plaintiff be sent home because there was not enough work for him. (Dkt. No. 60-8, Thompson Decl. at ¶ 4.) Mr. Thompson made this decision because there had been a “drastic reduction in volume and revenues” such that Plaintiff's work-which was part of a bid job for another mail handler-had to be returned to a full-time regular employee to meet the 8-hours of work guaranteed to full-time employees under the collective bargaining agreement. (Id.) Before the EEOC, Mr. Thompson testified that the volume fell by 38 percent during this time. (Dkt. No. 60-7 at 91:17.) In addition, Mr. Thompson determined that Plaintiff was not able to perform the essential functions of the job. (Dkt. No. 60-7, Thompson EEOC testimony at 96:21-98:7; 120:16-25.) At least one other employee, a Filipino man with multiple sclerosis who also had light duty work was sent home at the same time as Plaintiff. (Id. at 124:1-25.)

         A few months later, in early 2010, Plaintiff bid on a container loader position. (Id. at 103:12-21.) Plaintiff won the bid for the position, but they gave it to another employee because Plaintiff had not provided medical documentation saying he could perform the essential functions of the position. (Dkt. No. 60-6, Campbell Depo. at 105:18-106:20.) According to Plaintiff, they gave the bid to someone else before he had the opportunity to provide this medical documentation. (Id. at 106:21-22.) However, Plaintiff's supervisor, Mr. Thompson, testified that the post office requires medical documentation to be submitted at the time of bidding per the collective bargaining agreement. (Dkt. No. 60-8, Thompson Decl. at ¶ 5; Dkt. No. 60-8 at 5 (memorandum of understanding re: light duty bidding).) Arleen Kukua, an operations support specialist, who is responsible for assigning bids testified before the EEOC that employees must have updated medical restrictions on file at the time a bid is made. (Dkt. No. 60-7 at 152:10-20.)

         In April 2010, Plaintiff was issued a seven day suspension for his continued failure to provide medical documentation as instructed in his August 2009 Letter of Warning. (Dkt. No. 60-8, Thompson Decl. at ¶ 6.)

         In January 2013, the post office settled Plaintiff's union grievance and paid him his back pay and all corresponding benefits from November 12, 2009 through March 2, 2012. (Dkt. No. 24-2 at ¶ 4.)

         C. Procedural History

         Plaintiff filed two EEOC complaints in 2010 alleging discrimination, retaliation, and failure to accommodate, and received a right to sue on April 30, ...


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