United States District Court, N.D. California
ORDER RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
RE: DKT. NO. 60
SCOTT CORLEY United States Magistrate Judge.
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.
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,
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.)
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.
Summary Judgment Evidence
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. (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).
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
filed two EEOC complaints in 2010 alleging discrimination,
retaliation, and failure to accommodate, and received a right
to sue on April 30, ...