Opinion
Civil Action No. 99-3064, Section "J"(2).
November 29, 2000.
ORDER AND REASONS
Plaintiff, Jose H. Brown, filed this action against his former employer, William J. Henderson, Postmaster General of the United States Postal Service, alleging employment discrimination based on his disability and gender, and retaliation for protected activity under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, and the Rehabilitation Act, 29 U.S.C. § 791 et seq. He also claims that he should have been awarded worker's compensation because of his disability. He seeks worker's compensation benefits, reinstatement to the Postal Service in a modified job, disability retirement if job placement is not possible, and compensatory and punitive damages. Amended Complaint, Record Doc. No. 15.
Plaintiff filed his complaint and amended complaint pro se, without citing any statutes. His charge before the Equal Employment Opportunity Commission ("EEOC") asserted disability and gender discrimination and retaliation. Record Doc. No. 1, attachments to complaint. Construing plaintiff's pro se complaint liberally, he has stated causes of action under Title VII and the Rehabilitation Act.
This matter was referred to the undersigned Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636 (c) upon the written consent of all parties. Record Doc. No. 13.
I. PROCEDURAL BACKGROUND
Henderson has moved to dismiss Brown's complaint for failure to state a claim upon which relief may be granted and/or for summary judgment. His motion is supported by affidavits, deposition and administrative hearing transcripts, plaintiff's answers to interrogatories and other exhibits. Record Doc. No. 20. Plaintiff filed a timely opposition memorandum, unsupported by any evidence. Record Doc. No. 27.
Henderson argues that partial dismissal of certain claims is appropriate under Fed.R.Civ.P. 12(b)(6) because Brown makes only vague, unspecified allegations of mishandling of his worker's compensation claims, whistleblower activity and other claims for which he failed to exhaust his administrative remedies. Defendant contends that he is entitled to summary judgment on plaintiff's Title VII claims because the Postal Service articulated legitimate, nondiscriminatory and nonretaliatory reasons for its actions, which plaintiff has no evidence to rebut. Finally, Henderson argues that plaintiff cannot establish that he is a "qualified individual with a disability" as defined by the Rehabilitation Act and, even if he could, the Postal Service offered him reasonable accommodation for his disability.
Defendant contends that he is entitled to summary judgment on some of plaintiff's vague claims of discrimination and retaliation, which may be barred by res judicata arising out of Brown's prior civil action in this Court. See Jose H. Brown v. William J. Henderson, C.A. No. 94-3449"N"(2). I do not address this argument because I find that all of plaintiff's discrimination and retaliation claims should be dismissed for other reasons.
Plaintiff argues, without citing to or providing the Court with any evidence, that defendant's actions were discriminatory and amounted to wrongful termination of his employment based on his disability. He contends that Henderson ignored most of the medical evidence in the record when he assigned plaintiff to work at a modified job, which Brown claims he could not perform within his medical restrictions. He does not argue in his opposition memorandum, as he alleged in his complaint, that gender discrimination occurred. Brown asserts that defendant's actions violated "several federal whistleblower statutes," which he does not specify, and he does not explain how any such statutes are implicated by the facts of this case. He maintains that the facts demonstrate a prima facie case of disability discrimination, including that he is a qualified individual with a disability. He argues that he was never offered any accommodation for his disability and that he would have performed the job to which he was assigned if some accommodations had been made. He does not specify what those accommodations might have been.
If his motion to dismiss and/or for summary judgment is not granted, defendant has moved to strike plaintiff's witnesses and exhibits for his failure to comply with the Court's scheduling order by failing timely to provide expert reports and witness and exhibit lists. Record Doc. No. 21. Brown opposes the motion. Record Doc. No. 26.
Having considered the amended complaint, the record, the memoranda of the parties, the affidavits and exhibits, and the applicable law, and for the following reasons, IT IS ORDERED that defendant's motion to dismiss plaintiff's worker's compensation benefits claim, whistle blowing claim and Americans with Disabilities Act claim is GRANTED. IT IS FURTHER ORDERED that defendant's motion for summary judgment on plaintiff's Title VII and Rehabilitation Act claims is GRANTED. IT IS FURTHER ORDERED that defendant's motion to strike witnesses and exhibits is DISMISSED AS MOOT.
II. FACTUAL BACKGROUND
Because plaintiff has failed to present any evidence, the facts established by defendant's evidence are undisputed.
Brown was employed by the Postal Service from 1979 until August 5, 1996. From 1979 until 1994, his permanent position was as a letter sorter machine ("LSM") operator. Defendant's Attachment I, Brown deposition at 10-11. Although he no longer performed the duties of an LSM operator after 1991, that remained his job title. Id.
In 1984, Brown injured his right thumb on the job and in late 1991 he re-injured it. On October 7, 1992, the United States Department of Labor determined that he had a permanent disability of 11% loss of use of his right thumb and awarded him compensation. Defendant's Attachment C, Investigative File, Exh. 5, p. 81. Plaintiff is right-handed.
Defendant has provided the entire investigative file of plaintiff's complaint before the EEOC.
After the re-injury to his right thumb, Brown worked in a variety of jobs until May 1994. Defendant's Attachment D, Trans. Vol. I, pp. 47-49; Defendant's Attachment I, Brown deposition at 11-16, 21-23, 31. He testified that he could no longer perform the essential functions of the LSM job, even with modification of the job duties. Id. at 70-71.
Plaintiff was examined by orthopedist Robert G. Chuinard, M.D. on June 4, 1992. Id. at 163; Defendant's Attachment F, administrative hearing Exh. CE1, letter from Dr. Chuinard dated July 28, 1992. Dr. Chuinard found that Brown's right hand and arm were normal with full range of motion. However, he found that plaintiff had "a 10% disability to the metacarpal phalangeal joint of the right thumb. I would not recommend any further surgical or physical therapy treatment at this time." Id. at p. 2.
Brown was examined by orthopedist Richard L. Meyer, M.D. on December 4, 1992. Dr. Meyer noted the possibiity of degenerative arthritis at the "MCP" joint of the right thumb. He agreed with the reports of prior physicians that plaintiff's permanent disability in the right thumb is 10-12%. Dr. Meyer permanently restricted Brown from lifting more than 30 pounds with his right hand. "In addition, he should not do any crawling or climbing with the right hand involved and any repetitive work, particularly with opposition of the thumb to his remaining digits, should be avoided." Defendant's Attachment C, Investigative File, Exh. 10, at pp. 89-90.
Brown continued to work on limited duty status. In August 1993, his supervisor asked that he undergo a fitness-for-duty examination. Defendant's Attachment C, Investigative File, Exh. 7, p. 83. That examination was performed by Douglas A. Swift, M.D. on September 23, 1993. Dr. Swift recommended "permanent restriction from repetitive use of the right hand particularly with the thumb in opposition. I would also limit the patient's use of the right hand in any forceful grasping maneuvers such as frequent lifting. I would place a maximum lifting capacity of the patient at 30 lbs." Defendant's Attachment C, Investigative File, Exh. 9, pp. 86-87.
After receiving Dr. Swift's evaluation, a Senior Injury Compensation Specialist with the Postal Service asked the agency to offer plaintiff a permanent modified position in light of his medical restrictions. Defendant's Attachment C, Investigative File, Exh. 11, p. 92. The Postal Service responded on October 21, 1993 that it could offer Brown the position of weigh master, which required inputting information into a computer by push button, placing weight slips into the computer to record weights, placing weight slips into or onto containers and manually writing one line of information an average of 12 times per hour. The job duties required the "[u]se of hands/fingers, left or right; not right thumb," except when writing. Defendant's Attachment C, Investigative File, Exh. 12, p. 93.
The Postal Service provided this job description and the reports of Drs. Meyer and Swift to Dr. Chuinard for his assessment whether the job was within plaintiff's medical restrictions. Dr. Chuinard found that Brown "is able to perform the duties described in the modified position description." Defendant's Attachment C, Investigative File, Exhs. 13 14, pp. 94, 98. In his current expert report, Dr. Chuinard confirms that his opinion remains the same and that "plaintiff's 10% disability rating and his ability to perform the modified job requirements were entirely reasonable." Defendant's Attachment H, affidavit and expert report of Dr. Chuinard. Robert J. Martin, manager of distribution operations for the Postal Service, explained that this job involved "key punching on a scale" and "could be performed with either the left or right hand with no need to use the thumb." Defendant's Attachment C, Investigative File, Affidavit D, p. 66. The agency offered the job to Brown, but he refused it on December 3, 1993. Defendant's Attachment C, Investigative File, Exh. 14, p. 96.
On February 24, 1994 the Department of Labor, Office of Worker's Compensation Programs, found that the modified position was within plaintiff's work capabilities. Defendant's Attachment C, Investigative File, Exh. 16, p. 101. The Office of Worker's Compensation denied plaintiff's claim for continued compensation benefits because he had refused a job offer that, based on the medical evidence of record (consisting of Dr. Chuinard's approval of the job description), accommodated his permanent medical restrictions. Defendant's Attachment C, Investigative File, Exh. 17, pp. 102-05.
Brown began performing the weigh master job on May 31, 1994, after the Postal Service told him it would no longer tolerate his resistance to performing the assignment. Defendant's Attachment C, Investigative File, Exh. 19, p. 111. The next day, he filed a Notice of Recurrence of Disability and Claim for Continuation Pay/Compensation, in which he claimed that punching information into the weight scale with his right hand and fingers violated the restrictions placed on him by his physicians. Defendant's Attachment C, Investigative File, Exh. 18, p. 107. In response to plaintiff's notice, Johnnie Matthews, Jr., the supervisor of distribution operations, stated that plaintiff could perform his duties "by depressing a soft key pad with the middle finger of his right hand" and by writing on a clipboard. Id. at 108.
Plaintiff performed the job for less than two weeks and visited the Postal Service nurse eight times during that period, complaining of pain in his right hand. Defendant's Attachment F, administrative hearing Exh. CE1, authorizations for medical attention, pp. 2-9. He no longer performed the job after June 11, 1994. Defendant's Attachment I, Brown deposition at pp. 72-73.
Brown testified that he had injured his left hand and undergone surgery on it in 1989 and that this injury precluded him from using his left hand to perform the weigh master job. Id. at 36-39. However, he was never assigned any medical disability in that hand by any physician. Id. at 37.
On June 14, 1994, plaintiff was examined by Dr. Meyer, who recommended "no repetitive use of the right hand and [Brown] should try to avoid use of the right thumb as much as possible. Repetitive use of the right hand also includes excessive demands placed upon the hand, with writing as well." Defendant's Attachment C, Investigative File, Exh. 21, p. 113-14. Dr. Meyer did not review the weigh master job description to determine whether its requirements were within plaintiff's medical capabilities. Defendant's Attachment I, Brown deposition at 75.
On October 19, 1994, Melvin Handy, manager of distribution operations, told Brown that he must go home if he could not perform his job. The weigh master job remained available to Brown. No other jobs were available for him. Defendant's Attachment E, transcript of administrative hearing, Vol. II, testimony of Handy, at pp. 105-06, 118.
Plaintiff testified that he could not perform the essential duties of the weigh master job, no matter what accommodation was offered to him. Defendant's Attachment I, Brown deposition at 70-71.
III. ANALYSIS
A. Standard of Review for Motion to Dismiss
When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must take the well-pleaded factual allegations of the complaint as true and resolve any ambiguities regarding the sufficiency of the claim in plaintiff's favor. Conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss. The complaint should not be dismissed unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Heitschmidt v. City of Houston, 161 F.3d 834, 835 (5th Cir. 1998); Jefferson v. Lead Indus. Ass'n. Inc., 106 F.3d 1245, 1250 (5th Cir. 1997) (citing Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284-85 (5th Cir. 1993)).
B. Standard of Review for Summary Judgment
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but it is not required to negate elements of the nonmoving party's case. Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (citing Celotex Corp., 477 U.S. at 322-23; quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. Anderson, 477 U.S. at 248.
To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must come forward with evidence to support the essential elements of its claim. National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994) (citing Celotex Corp., 477 U.S. at 321-23). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex Corp., 477 U.S. at 323.
"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." Edwards, 148 F.3d at 432; accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). "We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." Id. (emphasis in original). "Moreover, the nonmoving party's burden is not affected by the type of case; summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Id. (quotation omitted) (emphasis in original).
C. Defendant's Motion to Dismiss Is Granted
Brown brought only two charges before the EEOC: (1) that his placement in 1994 in a job outside his medical restrictions was based on disability and gender discrimination, and (2) that his placement into leave without pay status on October 19, 1994 was in retaliation for prior EEO activity and based on disability and gender discrimination. Record Doc. No. 1, right to sue letter and EEOC charge attached to plaintiff's complaint. These same claims are asserted in his amended complaint.
The amended complaint also alleges that Brown should have received worker's compensation benefits. However, he testified that he did not pursue his worker's compensation claim through administrative channels, although he was aware of the administrative appeal requirements prescribed by the Federal Employees Compensation Act. 5 U.S.C. § 8101 et seq.; Defendant's Attachment I, Brown deposition at 83-86, 142-43; Defendant's Attachment C, Investigative File, Exh. 17, p. 106 (notice of administrative appeal rights).
More importantly, this Court has no jurisdiction to hear Brown's attempted appeal of the agency's worker's compensation decisions. "For injuries within its coverage, [the Federal Employees Compensation Act]'s remedy is exclusive of any other remedy. . . ." White v. United States, 143 F.3d 232, 234 (5th Cir. 1998) (citing 5 U.S.C. § 8116(c)). The Federal Employees Compensation Act specifically "vests with the Secretary of Labor the power to `administer, and decide all questions arising under [the Act],' 5 U.S.C. § 8145, and the Secretary's action in allowing or denying an award under [the Act] is final and conclusive and not subject to review by a court of law." White, 143 F.3d at 234 (citing 5 U.S.C. § 8128(b)). Thus, plaintiff has no cause of action in this Court to appeal the agency's denial of worker's compensation benefits.
Further, although Brown vaguely mentions alleged violations of federal whistle blower statutes in his opposition memorandum, he presents no factual allegations of whistle blowing activity in any of his pleadings and he has offered the Court no legal basis for any claim of such violation. Various federal statutes contain whistle blowing provisions designed to protect employees who report violations of federal law by their employers from retaliation. However, my research has located no statute that provides a right of action for a Postal Service employee against the Postal Service for whistle blowing activity. In addition, even if such a right of action existed, plaintiff has presented no factual allegations that he engaged in the type of reporting that such statutes are designed to protect. Therefore, it appears beyond a doubt that Brown can prove no set of facts in support of this claim that would entitle him to relief.
See, e.g., Lambert v. Ackerley, 180 F.3d 997, 1006-07 (9th Cir. 1999) (citing whistle blower provisions of Fair Labor Standards Act; Federal Mine Health and Safety Act; Surface Transportation Assistance Act; Energy Reorganization Act; Clean Water Act); Herman v. Department of Justice, 193 F.3d 1375, 1377 (Fed. Cir. 2000) (citing Whistleblower Protection Act, 5 U.S.C. § 2302(b)); Osage Tribal Council v. United States Dep't of Labor, 187 F.3d 1174, 1181 (10th Cir. 1999) (citing Safe Drinking Water Act); Vessell v. DPS Assocs. of Charleston, Inc., 148 F.3d 407, 411 (4th Cir. 1998) (citing False Claims Act). The Whistleblower Protection Act covers federal civil service employees but does not apply to Postal Service employees. 5 U.S.C. § 2302 (a)(2)(C); Cyr v. Merit Sys. Protection Bd., No. 00-3217, 2000 WL 1480605, at *1 (Fed. Cir. 2000) (citing Booker v. Merit Sys. Protection Bd., 982 F.2d 517, 519 (Fed. Cir. 1992)).
Accordingly, the only claims that have been administratively exhausted, that were asserted in the complaint as amended and that may properly be litigated in this action are Brown's claims of gender and disability discrimination and retaliation. Plaintiff has not moved to amend his complaint to assert any other claims. To the extent that he attempts to assert other claims in his complaint as amended, interrogatory answers, deposition testimony and/or opposition memorandum, defendant's motion to dismiss for failure to state a claim is granted and those claims are dismissed.
Henderson also moves to dismiss Brown's claim under the Americans with Disabilities Act ("ADA"), if plaintiff has asserted such a claim. Brown, who is now represented by counsel, concedes at page 20 of his opposition memorandum that he cannot assert a cause of action against the federal government under the ADA. See 42 U.S.C. § 12111(5)(B) ("The term `employer' [for ADA purposes] does not include . . . the United States. . . ."). Brown's sole remedy against his former federal employer for disability discrimination arises under the Rehabilitation Act. 29 U.S.C. § 791, 794; Prewitt v. United States Postal Serv., 662 F.2d 292, 304 (5th Cir. 1981). Therefore, defendant's motion to dismiss is granted as to any ADA claim that plaintiff may have asserted, and that claim is dismissed.
D. Defendant's Motion for Summary Judgment Is Granted
For purposes of his summary judgment motion only, defendant does not dispute that Brown could establish a prima facie case of retaliation and gender discrimination under Title VII. However, Henderson argues that plaintiff cannot identify a genuine issue of material fact that the Postal Service's legitimate reasons for its actions were false and that gender discrimination and retaliation were the true reasons. As for plaintiff's claim of disability discrimination, defendant argues that Brown cannot establish a genuine issue of material fact that he is a qualified individual with a disability as defined by the Rehabilitation Act and that, even if he were such a qualified individual, the Postal Service offered him reasonable accommodation for his disability.
Because defendant has demonstrated an absence of evidence necessary to prove these elements of Brown's claims and plaintiff has failed to carry his burden of presenting evidence that provides a genuine issue for trial, summary judgment is appropriate.
1. Gender Discrimination and Retaliation Claims
The familiar Title VII burden-shifting analysis applies to Brown's claims of gender discrimination and retaliation. Plaintiff has the initial burden of proving a prima facie case of discrimination or retaliation by a preponderance of the evidence. McDonnell Doug1as Corp. v. Green, 411 U.S. 792, 802 (1973); accord Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2106 (2000).
Brown can satisfy this burden with circumstantial evidence of discrimination by showing that "(i) he belongs to a . . . minority; (ii) he applied and was qualified for a job the employer was trying to fill; (iii) though qualified, he was rejected; and (iv) thereafter the employer continued to seek applicants with complainant's qualifications."McDonnell Douglas Corp., 411 U.S. at 802; accord Haynes v. Pennzoil Co., 207 F.3d 296, 300 (5th Cir. 2000).
Brown, a male, is not a member of a minority; thus, his gender discrimination claim is one of "reverse discrimination" against him as a member of a "protected group." See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 426 (5th Cir. 2000) (plaintiff may assert reverse discrimination claim by showing he is a member of a "protected group" rather than a minority). Some courts have held that a reverse discrimination plaintiff must establish background circumstances that support an inference that the employer is "`one of those unusual employers who discriminate against the majority.'" Silva v. Goodwill Indus. of N.M., Inc., 210 F.3d 390, 2000 WL 358437, at *1 (10th Cir. Apr. 7, 2000) (unpubl. opin. avail. on Westlaw) (quoting Notari v. Denver Water Dep't, 971 F.2d 585, 588-89 (10th Cir. 1992)); see Ulrich v. Exxon Co., 824 F. Supp. 677, 683 (S.D. Tex. 1993) (citing cases). Other courts, including the Fifth Circuit, apply the traditional McDonnell Douglas test in reverse discrimination cases without alluding to an alternative, heightened test. See e.g., Young v. City of Houston, 906 F.2d 177, 180 (5th Cir. 1990). I have not applied any heightened pleading standard in the instant case.
Brown may make out a prima facie retaliation claim by showing that "(1) the employee engaged in activity protected by Title VII, (2) the employer took adverse employment action against the employee, and (3) a causal connection exists between that protected activity and the adverse employment action. The ultimate determination is whether, `but for' the protected conduct, the employer would not have engaged in the adverse employment action." Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 372 (5th Cir. 1998).
If a prima facie case is present, a presumption of discrimination or retaliation arises and
the burden then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection. . . . [S]hould the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a mere pretext for discrimination.Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (quotation and citation omitted); accord Reeves, 120 S.Ct. at 2106;Nichols v. Lewis Grocer, 138 F.3d 563, 566 (5th Cir. 1998). This standard also governs a claim of retaliation. Whatley v. Metropolitan Atlanta Rapid Transit Auth., 632 F.2d 1325, 1327-28 (5th Cir. 1980).
If defendant articulates a legitimate reason for his actions, the presumption of discrimination or retaliation disappears and plaintiff "has the opportunity to prove that [defendant's] articulated reason was a pretext for discrimination" or retaliation. Deffenbaugh-Williams v. Wal-Mart, 156 F.3d 581, 587 (5th Cir. 1998), reh'g en banc granted, 169 F.3d 215 (5th Cir.), panel opin. reinstated in relevant part, 182 F.3d 333, 333 (5th Cir. 1999). The "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated [or retaliated] against the plaintiff remains at all times with the plaintiff." St. Mary's Honor Ctr., 509 U.S. at 507 (quotation omitted); accord Reeves, 120 S.Ct. at 2106. He may carry his ultimate burden either directly by "persuading the court that a discriminatory [or retaliatory] reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Smith, 891 F.2d at 1179; accord Reeves, 120 S.Ct. at 2106.
Defendant's burden is one of production, not persuasion. Henderson must merely set forth, through admissible evidence, "reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action."St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (emphasis in original). Thus, the employer need only articulate a legitimate, nondiscriminatory reason for its actions, regardless of that reason's ultimate persuasiveness. Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993).
In the instant case, the Postal Service has articulated legitimate, nondiscriminatory and nonretaliatory reasons for its actions. It offered the weigh master job to plaintiff specifically to accommodate his 11% disability of his right thumb, after it received medical opinions regarding his physical limitations and received approval of the modified job duties from Dr. Chuinard, an orthopedist who had previously examined Brown.
Brown argues that defendant should also have consulted the other doctors who had treated or examined him, who allegedly would have opined that his disability affected his entire right hand and prevented him from performing the weigh master job duties. However, plaintiff produced no evidence or expert reports to support this allegation. He points to Dr. Meyer's June 14, 1994 recommendation of "no repetitive use of the righthand" to support his contention. (Emphasis added). Unlike Dr. Chuinard, however, Dr. Meyer did not review the weigh master job description to determine whether its requirements were within plaintiff's medical capabilities.
Brown also contends that defendant should have taken into account the injury and surgery to his left hand in 1989. However, it is undisputed that plaintiff was never assessed with any disability in his left hand.
Moreover, it is irrelevant whether the Postal Service's decision may have been based on incorrect facts, so long as its decision was not motivated by discriminatory or retaliatory animus. Scales v. Slater, 181 F.3d 703, 711 (5th Cir. 1999). "The fact that the employers' [sic] reasonable belief [in its reason for adverse employment action] eventually proves to be incorrect . . . would not change the conclusion that the [action] had been non-discriminatory." Moore v. Eli Lilly Co., 990 F.2d 812, 816 (5th Cir. 1993). "Even if evidence suggests that a decision was wrong, we will not substitute our judgment . . . for the employer's business judgment." Scott v. University of Miss., 148 F.3d 493, 509-10 (5th Cir. 1998) (citing Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1508 (5th Cir. 1988) (antidiscrimination laws "`cannot protect . . . workers from erroneous or even arbitrary personnel decisions, but only from decisions which are unlawfully motivated'")).
After plaintiff rejected the modified job offer, his contention that its duties were beyond his medical restrictions was independently reviewed by the United States Department of Labor, which found that the position was within his capabilities. Defendant's subsequent insistence that Brown perform the job was thus based on legitimate, nondiscriminatory and nonretaliatory reasons. To avoid summary judgment, plaintiff must show that Henderson's reasons were false and that discrimination or retaliation was his actual reason.
"An employer's reason cannot be shown to be a `pretext for discrimination' unless the plaintiff introduces some evidence, whether circumstantial or direct, that permits the jury to believe that the reason was false and that illegal discrimination was the actual reason."Nichols, 138 F.3d at 566 (citations omitted) (emphasis in original).
Brown fails to meet this evidentiary burden. He has produced no evidence from which a reasonable factfinder could draw an inference that defendant's proffered reasons were a pretext for gender discrimination or retaliation. There is nothing in the evidentiary record to persuade the Court that a discriminatory or retaliatory reason more likely motivated the Postal Service when it offered him the weigh master position and insisted that he perform it or that its explanations are unworthy of credence.
"Where the plaintiff has offered no evidence to rebut the employer's facially benign explanations, no inference of discrimination can be drawn." Scott, 148 F.3d at 507 (quotation omitted), abrogated on other grounds by Kimel v. Florida Bd. of Regents, 120 S.Ct. 631 (2000); see also Bodenheimer, 5 F.3d at 958 (plaintiff must tender factual evidence from which factfinder could reasonably conclude that defendant's reasons were pretext for discrimination); Moore, 990 F.2d at 817 n. 24 (plaintiff failed to prove pretext; listing other cases in which plaintiffs failed to meet their burden; "the most prevalent flaw in the losing plaintiffs' evidence is the absence of proof of nexus between the firing (or failure to promote) and the allegedly discriminatory acts of the employer").
Brown's mere subjective belief that he has been the subject of gender discrimination or retaliation, unsupported by any specific factual evidence, cannot be the basis of judicial relief and is insufficient to rebut the employer's evidence of legitimate reasons for its actions.Vance v. Union Planters Corp., 209 F.3d 438, 444 (5th Cir. 2000);Lawrence v. University of Tex., 163 F.3d 309, 313 (5th Cir. 1999); Ross v. University of Tex., 139 F.3d 521, 526 (5th Cir. 1998); Nichols, 138 F.3d at 566.
Because Brown has presented no evidence to support his subjective belief that he was the victim of discrimination or retaliation in defendant's employment decisions, defendant is entitled to summary judgment on these claims.
2. Rehabilitation Act Claim
Brown indisputably has a permanent 11% disability in his right thumb. "To qualify for relief under the Rehabilitation Act, a plaintiff must prove that (1) he is an `individual with a disability'; (2) who is `otherwise qualified'; (3) who worked for a `program or activity receiving Federal financial assistance'; and (4) that he was discriminated against `solely by reason of her or his disability.'"Hileman v. City of Dallas, 115 F.3d 352, 353 (5th Cir. 1997) (citing 29 U.S.C. § 794(a)). Plaintiff's case fails on the second prong because he has not shown that he is "otherwise qualified" and on the fourth prong because he has presented no evidence that creates a genuine fact issue that he was discriminated against solely on the basis of his disability.
"The definition of a qualified handicapped individual also includes a personal safety requirement — an otherwise qualified handicapped individual is defined as one who `can perform the essential functions of the position in question without endangering the health and safety of the individual or others.'" Chandler v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir. 1993).
The Rehabilitation Act was amended in 1992 to eliminate the words "handicap" and "handicapped" and replace them with "disability" and "disabled." American Airlines, Inc. v. Herman, 176 F.3d 283, 285 n. 1 (5th Cir. 1999).
[A]n individual is not qualified for a job if there is a genuine substantial risk that he or she could be injured or could injure others, and the employer cannot modify the job to eliminate that risk. Therefore, to determine whether an individual is otherwise qualified for a given job, we must conduct a two part inquiry. First, we must determine whether the individual could perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue. Second, if (but only if) we conclude that the individual is not able to perform the essential functions of the job, we must determine whether any reasonable accommodation by the employer would enable him to perform those functions. As with establishing the existence of a handicap, the burden lies with the plaintiff to show that he is otherwise qualified.Id. at 1393-94 (quotation and citations omitted).
As to the first prong of the Chandler test, Brown testified that he could not perform the essential functions of the weigh master position without endangering his health. Defendant's Attachment I, Brown deposition at 70-73. By his own admission, therefore, he is not "otherwise qualified" for the job, absent employer accommodation.
Because plaintiff is not otherwise qualified for the weigh master position in the absence of any employer accommodation, the Court "must answer the second question of the analysis — whether any reasonable accommodation by [the Postal Service] would have enabled [him] to perform the essential functions of that position. For if reasonable accommodation will not eliminate a significant safety risk, a handicapped person is not otherwise qualified." Chandler, 2 F.3d at 1395.
"[A]n employer, including a federal employer, is not required to accommodate a handicapped individual by eliminating one of the essential functions of the job. In other words, an accommodation that eliminates an essential function of the job is not reasonable." Hall v. United States Postal Serv., 857 F.2d 1073, 1078 (6th Cir. 1988) (emphasis in original); accord Tuck v. HCA Health Servs. of Tenn., Inc., 7 F.3d 465, 472 (6th Cir. 1993); Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 140 (2d Cir. 1995); Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995); Bradley v. University of Tex. M.D. Anderson Cancer Ctr., 3 F.3d 922, 925 (5th Cir. 1993).
The weigh master job was offered to plaintiff as an accommodation because he could not perform the LSM operator's job. The evidence, including the weigh master job description; the contemporaneous medical records; supervisor Matthews's response to plaintiff's notice of recurrence of disability; Martin's affidavit; the February 24, 1994 determination by the Department of Labor, Office of Worker's Compensation Programs; and Dr. Chuinard's expert report, establishes that the Postal Service believed that it was offering Brown a reasonable accommodation within his medical restrictions when it offered him the weigh master job.
Nonetheless, Brown testified that he could not perform the weigh master job, no matter what accommodation was offered to him. Defendant's Attachment I, Brown deposition at 70-71. He asserts that the combination of repetitive pushing of buttons and handwriting precluded use of his right hand without pain and risk of re-injury, and that he could not use his left hand because of prior surgery on that hand. He has presented no evidence that any type of reasonable modification of the job was possible without eliminating any of its essential functions. When the record is devoid of any evidence from plaintiff that reasonable accommodation was possible, much less that it would eliminate any safety risk inherent in the job, "this evidentiary void is fatal to [plaintiff's] claims, given [his] burden of establishing that reasonable accommodation is possible so that [he] would be otherwise qualified for" his position if he were so accommodated. Chandler, 2 F.3d at 1395. "The absence of evidence that reasonable accommodation could be made precludes the possibility that . . . plaintiff was `otherwise qualified.'" Id.
Moreover, "[when] reasonable accommodation cannot be made for the job he had, his employer has no duty to reassign [plaintiff] to any particular job, although it could not deny him alternative employment opportunities reasonably available under the employer's existing policies." Bradley, 3 F.3d at 925. Brown "does not allege that he sought any other specific position in the [Postal Service] after his reassignment and does not demonstrate the availability of other positions." Id. To the contrary, manager of distribution operations Handy testified without contradiction that no other positions were available within plaintiff's medical restrictions. Defendant's Attachment E, Handy testimony, transcript of administrative hearing, Vol. II, at pp. 105, 118.
Finally, plaintiff has produced no competent summary judgment evidence to establish that defendant's actions were motivated by discriminatory animus based on Brown's disability. As the evidence described above shows, defendant has articulated legitimate, nondiscriminatory reasons for its actions, which plaintiff has failed to rebut.
Because plaintiff is not a "qualified individual with a disability" as defined by the Rehabilitation Act and because he has produced no evidence to establish that he was subject to discrimination based solely on his disability, defendant is entitled to summary judgment on Brown's discrimination claim under the Rehabilitation Act.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that defendant's motion to dismiss is GRANTED and that plaintiff's worker's compensation benefits claim, whistle blowing claim and Americans with Disabilities Act claim are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that defendant's motion for summary judgment is GRANTED and that plaintiff's claims of gender and disability discrimination and retaliation are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that defendant's motion to strike plaintiff's witnesses and exhibits is DISMISSED AS MOOT.