Richard v. U.S. Postal Service CV-00-436-B 08/21/02
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Roger R. Richard
v. Civil N o . 00-436-B Opinion N o . 2002 DNH 157 United States Postal Service et al.
MEMORANDUM AND ORDER
Roger Richard brings this action against the United States
Postal Service (“USPS”) and the following individuals in their
official capacities: John E . Potter, Postmaster General; Joseph
Collins, Postmaster of the Manchester, New Hampshire, Post
Office; Patricia Deschaines, former Station Manager at the
Manchester Post Office’s South Station; Katherine Dircks
(formerly Holopitza), Station Manager at South Station; and Hugh
Eugene Mann, a supervisor at South Station.1 Richard claims that
1 It appears that the only proper defendant in this case is Potter, the Postmaster General. See 42 U.S.C. § 2000e-16(c); Soto v . U.S. Postal Service, 905 F.2d 537, 539 (1st Cir. 1990) (“In cases brought against the Postal Service, the Postmaster General is the only properly named defendant. A district court should dismiss claims brought against all other defendants, including the U.S. Postal Service and the local postmaster.”); Meyer v . Runyon, 869 F. Supp. 7 0 , 76 (D. Mass. 1994) (explaining that under Title VII and Rehabilitation Act, which incorporates remedies and procedures of Title VII, head of an agency is the the defendants engaged in unlawful employment discrimination
based upon his disability and gender, and also retaliated against
him after he formally complained. Specifically, he alleges
discrimination in violation of the Rehabilitation Act, 29 U.S.C.
§§ 701 et seq. (Count I ) ; retaliation (after filing an internal
complaint) in violation of the Rehabilitation Act (Count I I ) ;
retaliation (after filing a complaint in this court) in violation
of the Rehabilitation Act (Count I I I ) ; discrimination in
violation of Title VII of the Civil Rights Act, 42 U.S.C. §§
2000e et seq. (Count I V ) ; and retaliation in violation of Title
VII of the Civil Rights Act (Count V ) . Currently before me is
the defendants’ motion for summary judgment.
I. BACKGROUND2
While serving in the United States Army, Roger Richard
underwent surgery on his left shoulder to correct a chronic
only proper defendant). Therefore, I intend to dismiss Richard’s claims against all other defendants. Any objection should be filed with an accompanying memorandum within 10 days of this order. 2 I construe the evidence in the light most favorable to Richard, the non-moving party, and draw all reasonable inferences in his favor. See Navarro v . Pfizer Corp., 261 F.3d 9 0 , 94 (1st Cir. 2001) (explaining the operation of Fed. R. Civ. P. 56) (citation omitted).
-2- dislocation problem. The surgery caused ulnar nerve damage in
his left shoulder, arm and hand. As a result, Richard has a
limited range of motion in his left arm and experiences pain when
he moves it beyond its limits. He cannot raise his arm over his
head, and thus has difficulty getting dressed; he cannot bathe
some parts of his body without assistance; and he cannot do
household work that requires reaching, pushing or pulling with
his left arm. Richard has never been able to pick up his
children and cannot engage in recreational sports that require
the full use of both arms.
Richard completed his service with the army in May 1985.
Upon discharge, the Veterans Administration gave him an
impairment rating of 30% due to his ulnar nerve damage. Richard
subsequently applied for and accepted a position as a city letter
carrier with the USPS, which afforded him hiring preference as a
disabled veteran. Like all new carriers, Richard began as a
part-time employee who filled in on an as-needed basis. He
eventually obtained a full-time position with a right to bid for
a permanent route, among other benefits. Assignment of permanent
routes in the USPS depends upon seniority. Richard worked on
various routes in Manchester between 1985 and 1995. By 1995 he
-3- had obtained enough seniority to bid successfully on Route 305, a
“park and loop” route that required Richard to drive to one
location, park his vehicle and deliver mail on foot to homes or
businesses in a loop around the area where he had parked, then
drive to a different location and repeat the process.3
Prior to 1995, Richard manually sorted all his mail before
embarking on his route for the day through a process known as
“casing.” Casing involves placing standard sized envelopes
(“letters”) into a desk fitted with shelves and slots and then
repeating the process with circulars, magazines and other items
larger than a business or personal letter (“flats”). Richard was
able to avoid extensive use of his left arm both when casing and
delivering the mail. He carried letters in his left hand and
flats in a bag on his right shoulder. At each address, he
reached first into his bag to pull out the flats and then removed
the letters from his left hand with his right hand. He then
placed the mail in boxes or slots with his right hand.
In 1995, the Manchester Post Office adopted an automated
3 The USPS also has “mounted” routes, where the carrier stays in a vehicle and drives from mailbox to mailbox, and “curbline/dismount” routes, where the carrier drives to an address, exits his vehicle to deliver the mail and then drives to the next address.
-4- system for mail sorting known as “Delivery Point Sequencing”
(“DPS”). 4 While this system eliminated the need for carriers to
case most letters, they still needed to hand sort flats and
“residual” letters that the automated system was unable to sort.
After introducing DPS, the USPS mandated that carriers carry two
bundles of letters in one hand - DPS (automatically sorted)
letters and residual (manually sorted) letters. After DPS was
implemented, Richard had to twist his left hand to determine
whether letters from one or both bundles needed to be delivered
to each address on his route. He also had to engage in more
leaning and reaching to prepare mail for delivery. The increased
strain on Richard’s left shoulder, arm and hand caused him to
complain to his supervisor about the DPS system.
Richard produced a medical report and note from the
Manchester Veterans Administration hospital (“VA”) dated
September 1 3 , 1995 that confirmed his disability and suggested
that he be allowed to case his DPS mail as an accommodation. In
response, the Post Office required Richard to undergo a “fitness
for duty” medical examination by a physician it selected. The
4 DPS is a nationwide system, introduced as a cost saving cause it reduced the amount of time carriers must spend measure because in the office sorting mail.
-5- physician, D r . John Barlley, completed a report, finding Richard
medically qualified to perform his job, but recommending that
Richard’s job functions be “modified as needed to minimize
discomfort.” Postmaster Collins responded by advising D r .
Barlley that the USPS could not accommodate Richard by allowing
him to case his DPS mail. This prompted Dr. Barlley to issue a
second report in which he found that Richard was not medically
qualified to perform the essential functions of his job.
In late September or early October, Richard was removed from
Route 305 and was temporarily assigned to Route 177, a business
route in Manchester that did not have any DPS mail. At the same
time, Richard was told to file a “CA-2" form, indicating a work-
related injury, to insure that he would not lose his job.
In November 1995, Richard bid successfully on Route 4 1 7 , a
“curbline/dismount” route consisting of residences and many large
apartment buildings. Although the route required Richard to
deliver DPS mail, his deliveries to the apartment buildings did
not require him to carry two bundles of letters in one hand.
Nevertheless, Richard was unable to complete his route in eight
hours because neither the manually sorted nor the DPS mail for
the apartment buildings was sorted into the proper mailbox
-6- sequence. In an effort to allow Richard to complete the route in
less time, his supervisor, Gene Mann, granted Richard’s request
in early 1997 to case all mail, including DPS mail. Both Mann
and Richard were pleased with the increased efficiency that
casing allowed.
Postmaster Collins observed Richard casing DPS mail for his
route on February 2 0 , 1998, and ordered him to stop. Shortly
thereafter, Richard discovered that a female co-worker with a
disability similar to Richard’s had been permitted to case her
DPS mail as an accommodation to her disability. This discovery
prompted Richard to file a gender and disability complaint with
the Post Office EEO Counselor on March 1 2 , 1998. After Richard
initiated his internal complaint, the USPS withdrew permission
for the female co-worker to case mail.
On April 1 0 , 1998, Richard was called into a meeting with
union and management, where Mann criticized Richard’s job
performance by stating that he was too slow with Route 4 1 7 , and
that he had left his case 17-20 times in one day. When asked to
be more specific, however, Mann could cite only four examples of
Richard leaving his case, two of which were for a bathroom break
and a trip to the water fountain. Station Manager Patricia
-7- Deschaines also criticized Richard for reading his paycheck while
“on the clock” and instructed him to obtain medical documentation
for his disability.
On May 1 4 , Richard filed a formal, written complaint of
gender and disability discrimination with the EEO. A few days
later, Postmaster Collins and Deschaines reassigned Richard from
Route 417 to light-duty office work and ordered him to submit to
an independent medical exam with Dr. James Forbes, an orthopaedic
surgeon. Richard’s office work often did not fill his entire
day; throughout June and July, he asked permission to deliver a
backlog of packages, but his requests were always denied.
Richard felt singled out when he was asked to work “mark-ups” in
the front office where management could watch him, a practice he
has not seen before or since. Richard sometimes found himself
receiving conflicting orders from different supervisors, such
that obeying one would cause him to disobey the other, resulting
in management complaints and occasions where he was angrily
reprimanded. Once, Mann yelled at Richard for work done by
someone else.
On June 1 2 , Mann approached Richard from behind and
forcefully elbowed him in the upper left arm. Richard turned
-8- around to face Mann, who then handed Richard his paycheck.
Although not physically injured, Richard suffered stress from the
incident itself and as a result of workplace jokes that arose
afterward. At the VA, Richard was diagnosed with having an
“anxiety/stress reaction.”
In June 1998, Richard bid on Route 201, a “curbline/
dismount” route that did not require him to carry two bundles of
letters in one hand. Although he was the senior bidder, Richard
was denied the route because the USPS determined that he was not
“fit for duty.” When Richard complained, management explained
that the route contained a “park and loop” section that could not
be appropriately altered to accommodate his disability. Richard
later learned that a female colleague with a disability that was
also aggravated by the DPS delivery system was assigned a route
with a “park and loop” section and that the Post Office had
accommodated her by simply excising that portion of her route and
assigning it to someone else.
Dr. Forbes examined Richard on June 23 and found him to be
fit for duty, although he suggested that accommodation be made
for his problem with the DPS delivery system. When Richard
returned from a vacation on July 1 3 , the new station manager,
-9- Katherine Dircks, told Richard that D r . Forbes’ report did not
support a return to regular duty and that he should arrange for
another medical examination at his own cost. Richard thus
continued doing light duty office work. The following day,
Richard was warned about using the phone for personal use.
Shortly thereafter, he received written warnings for personal
telephone use and conversing with co-workers, despite the fact
that these activities were commonplace among all workers.
Richard was constantly watched and monitored by both Mann and
Dircks, with Mann following Richard so closely on one occasion
that Richard found it physically intimidating.
In August 1998, Richard received a temporary assignment
delivering mail on Route 1028, a “mounted” route out of West
Station in Manchester. For the next year, Richard continued
working temporary route assignments from West Station. Although
Richard encountered no difficulties with his supervisors at West
Station, he filed a second EEO complaint for retaliation in
September 1998.
After a grievance arbitration on October 2 2 , 1999, the Post
Office reinstated Richard to Route 417. Once again working out
of South Station, Richard felt that Dircks watched him constantly
-10- to make sure he did not case DPS mail. She accused him of doing
so his first morning on the route, although he had not yet
touched the mail, and once followed him on his route, stopping
him to inspect his vehicle and to make sure that he had not cased
the DPS mail in his truck. Around the holidays, Dircks denied
that Richard had won a gift certificate from an office drawing,
when in fact he had.5 Richard felt that his work environment was
so hostile that he requested a return to work at West Station.
The union helped him arrange an agreement with management whereby
he was able to do s o . On January 2 5 , 2000, Richard filed another
EEO complaint alleging retaliation.
On September 1 2 , 2000, Richard initiated this lawsuit. One
week later, on September 1 9 , 2000, Postmaster Collins changed
Richard’s start time from 8:00 a.m. to 9:00 a.m., a less
desirable time because customers received their mail later, and
Richard’s deliveries could not be completed before dark during
the winter. No other carriers had their schedules changed at
that time. Richard requested his start time of 8:00 a.m. be
reinstated, but management did not do so until April 2001. The
USPS provided no explanation for either time change other than
5 The union investigated, and Richard was awarded the gift certificate later that day.
-11- “operational needs.”
In December 2000, a supervisor at West Station, Michael
Taurinsky, noticed Richard favoring one arm. When Richard
explained his disability, Taurinsky checked Richard’s medical
files and found nothing about his condition. Thereafter, he
ordered Richard to submit medical documentation, which Richard
did in January 2001. At some point during this process,
Taurinsky said to Richard, “You disabled people are useless to
us.”
About a week after Richard submitted medical documentation
to Taurinsky, West Station manager Brian Thomas told Richard that
he had heard about Richard filing a lawsuit. At the same time,
he ordered Richard to undergo a “fitness for duty” examination
with D r . Manning. In a report dated January 2 1 , 2001, Dr.
Manning found that Richard was “medically qualified to perform
the essential functions of the position without accommodation.”
Richard initiated a third retaliation complaint on March 1 9 ,
2001.
II. STANDARD OF REVIEW
Summary judgment is appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
-12- 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). A genuine issue is one “that properly can be resolved
only by a finder of fact because [it] may reasonably be resolved
in favor of either party.” Anderson v . Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). A material fact is one that affects the
outcome of the suit. See id. at 248.
In ruling on a motion for summary judgment, the court must
construe the evidence in the light most favorable to the non-
movant. See Navarro, 261 F.3d at 94 (citation omitted). The
party moving for summary judgment, however, “bears the initial
responsibility of informing the district court of the basis for
its motion, and identifying those portions of [the record] which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v . Catrett, 477 U.S. 317, 323
(1986). Once the moving party has properly supported its motion,
the burden shifts to the nonmoving party to “produce evidence on
which a reasonable finder of fact, under the appropriate proof
burden, could base a verdict for i t ; if that party cannot produce
such evidence, the motion must be granted.” Ayala-Gerena v .
-13- Bristol Myers-Squibb Co., 95 F.3d 8 6 , 94 (1st Cir. 1996) (citing
Celotex, 477 U.S. at 323; Anderson, 477 U.S. at 2 4 9 ) . While
courts must exercise restraint in granting summary judgment where
the nonmoving party must prove “elusive concepts such as motive
or intent. . . summary judgment may be appropriate if the
nonmoving party rests merely upon conclusory allegations,
improbable inferences, and unsupported speculation.” Smith v .
Stratus Computer, Inc., 40 F.3d 1 1 , 13 (1st Cir. 1994) (citation
and internal quotation marks omitted). I apply this standard in
resolving the motion for summary judgment.
III. DISCUSSION
A. Discrimination Based Upon Disability
To file an actionable claim of discrimination based upon
disability under the Rehabilitation Act, a person must be a
“qualified individual with a disability.” 29 U.S.C. § 794(a).
The Rehabilitation Act adopts the definition of disability found
in the Americans with Disabilities Act (“ADA”), under which a
medical diagnosis of an impairment does not automatically qualify
an individual as disabled. See Toyota Motor Mfg., Kentucky, Inc.
v . Williams, 122 S . C t . 6 8 1 , 690, 691 (2002). Instead,
-14- “[c]laimants also need to demonstrate that the impairment limits
a major life activity,” and that the limitation is substantial.
Id. at 690. Richard argues that his ulnar nerve damage limits
his major life activities of performing manual tasks and working.
The evidence, however, does not support either claim.
Richard has not shown that his impairment limits the major
life activity of working because he has alleged only that he is
precluded from working as an electrician (his job with the United
States Army) and as a city letter carrier with the USPS. These
allegations are insufficient because, as the Supreme Court
recently held, a claimant is “required to show an inability to
work in a ‘broad range of jobs,’ rather than a specific job.”
Toyota, 122 S . C t . at 693.
Richard also fails to demonstrate that his impairment limits
the major life activity of completing manual tasks. Richard’s
capabilities and limitations are very similar to those of the
claimant in Toyota, where the Court found that the claimant’s
carpal tunnel syndrome, which “caused her to avoid sweeping, to
quit dancing, to occasionally seek help dressing, and to reduce
how often she plays with her children, gardens, and drives long
distances,” did not “establish a manual-task disability as a
-15- matter of law.” 122 S . C t . at 694. Richard has failed to
distinguish his case from that of the claimant in Toyota. See
id. Thus, Richard is not disabled within the meaning of the ADA
and Rehabilitation Act.
Richard argues in the alternative that he is disabled
because he has been regarded as such by the USPS. The ADA’s
definition of disability includes “being regarded as having such
an impairment.” 42 U.S.C. § 12102(2)(C). An individual can
invoke this provision if: “(1) a covered entity mistakenly
believes that a person has a physical impairment that
substantially limits one or more major life activities, or (2) a
covered entity mistakenly believes that an actual, nonlimiting
impairment substantially limits one or more major life
activities.” Sutton v . United Air Lines, Inc., 527 U.S. 471, 489
(1999). Richard argues that the USPS regarded him as disabled
because it afforded him hiring preference as a disabled veteran
and acknowledged his Veterans Administration disability rating.
Richard’s argument fails because, as the Court in Sutton
makes clear, the inability to perform a single job cannot
constitute a substantial impairment. 527 U.S. at 491. Because
the USPS regarded Richard’s impairment as only precluding him
-16- from performing “park and loop” routes and recognized that he
could still perform other types of routes and office work, it
could not, by definition, have regarded Richard as having a
substantially limiting impairment. Id.
Because Richard does not fall within the class of
individuals with a disability protected by the Rehabilitation
Act, defendants are entitled to summary judgment on Count I of
Richard’s complaint.
B. Discrimination Based Upon Gender
Title VII of the Civil Rights Act of 1964 prohibits
employers from discriminating against an individual with respect
to his employment on the basis of his sex. 42 U.S.C. § 2000e-
2(a)(1); White v . N.H. Dep’t of Corr., 221 F.3d 254, 259 (1st
Cir. 2000). In a disparate treatment case, absent direct proof
of deliberate discrimination, a plaintiff “must make out a prima
facie case of discrimination, the employer must then come forward
with some non-discriminatory justification, and the plaintiff
finally is given the opportunity to convince the trier of fact
that the justification was pretextual and that the real reason
was discriminatory.” Molloy v . Blanchard, 115 F.3d 8 6 , 91 (1st
Cir. 1997) (quoting Cuello-Suarez v . Puerto Rico Elec. Power
-17- Auth., 988 F.2d 275, 278 (1st Cir. 1993)).
Richard’s Title VII gender discrimination claim arises from
three alleged incidents of disparate treatment. The first two
incidents occurred in 1995 and 1998 when Richard’s supervisors
prohibited him from casing his mail as an accommodation to his
disability, but permitted female co-workers with similar
disabilities to case their mail. The third incident occurred in
1998 when Richard was denied a “curbline/dismount” route
containing a “park and loop” section because of his disability,
but a female co-worker with a similar disability was permitted to
excise a “park and loop” section from her route as an
accommodation for her disability.
Defendants respond to Richard’s allegations by contending in
each case that they had non-discriminatory reasons for their
actions. In the first case, defendants contend that the female
co-worker was permitted to case her mail only temporarily and
that Richard’s circumstances are different because he required a
permanent accommodation. In the second case, defendants assert
that the female co-worker was mistakenly given permission to case
her mail and that her supervisors corrected their mistake after
Richard brought the matter to their attention. In the third
-18- case, defendants assert that the female co-worker was granted a
temporary alteration of her route pursuant to the union contract,
whereas Richard has been seeking a permanent alteration to his
route.
Richard has not demonstrated that defendants’ non-
discriminatory reasons for their actions are pretextual. Nor has
he produced any evidence suggesting that Richard was denied the
accommodations sought because of his sex. Accordingly,
defendants are entitled to summary judgment on Richard’s sex
discrimination claim even if I assume for purposes of analysis
that he has pleaded a prima facie case of discrimination.
C. Retaliation Claims
Counts I I , III and V of Richard’s complaint allege that the
USPS unlawfully retaliated against him after he engaged in
protected activity, in violation of the Rehabilitation Act, see
29 U.S.C. § 794(a), and Title VII of the Civil Rights Act, see 42
U.S.C. § 2000e-3(a). 6 Absent direct evidence of retaliatory
motive, Richard “must demonstrate circumstantial evidence of
6 Richard’s retaliation claims are analyzed despite the failure of his discrimination claims because when Richard filed his complaints, he reasonably believed he was protesting unlawful employment practices. See Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 8 4 8 , 855 (1st Cir. 1998).
-19- discrimination or retaliation via the three-part burden-shifting
scheme outlined in McDonnell Douglas v . Green, 411 U.S. 792
(1973).” Sherman v . Runyon, 235 F.3d 406, 409 (8th Cir. 2000);
see also White, 221 F.3d at 264. Under this burden-shifting
scheme, Richard can establish a prima facie case if he shows by a
preponderance of the evidence that: (1) he engaged in conduct
protected by Title VII or the Rehabilitation Act; (2) he suffered
an adverse employment action; and (3) the adverse action is
causally connected to the protected activity. White v . N.H.
Dep’t of Corr., 221 F.3d at 262 (quoting Hernandez-Torres v .
Intercontinental Trading, Inc., 158 F.3d 4 3 , 47 (1st Cir. 1998)).
If Richard establishes his prima facie case, the burden of
production shifts to the defendants, who must respond by
articulating a legitimate, nondiscriminatory reason for the
adverse employment action. See King v . Town of Hanover, 116 F.3d
965, 968 (1st Cir. 1997). If the defendants meet their burden of
production, the presumption of retaliation falls away and Richard
must prove that the defendants’ explanation is actually a pretext
concealing a retaliatory motivation. See id.
1. Prima Facie Case
Defendants do not dispute Richard’s claim that he engaged in
-20- protected activities when he filed his internal complaints and
commenced this action. See Sherman, 235 F.3d at 409-10 (formal
or informal complaint concerning or opposing an employer’s act
may be protected under the Rehabilitation Act if employee
reasonably believes such act violates statute); White, 221 F.3d
at 262 (internal and EEOC complaints constitute protected
activity under Title V I I ) . Nor can they credibly argue that
Richard did not suffer adverse employment actions. It is well
understood that “[a]dverse employment actions include ‘demotions,
disadvantageous transfers or assignments, refusals to promote,
unwarranted negative job evaluations, and toleration of
harassment by other employees.’” White, 221 F.3d at 262. In
this case, Richard has alleged that as a result of his
complaints: (1) management transferred him from Route 417 to
office work a few days after he filed his second internal
complaint; (2) management changed his route’s start time from 8
a.m. to 9 a.m. one week after he commenced this action; and (3)
he was subject to a retaliation-based hostile work environment
consisting of a pattern of harassing conduct that included
numerous requests for medical documentation, constant monitoring
by management, an assault by his supervisor, and unwarranted
-21- reprimands for behavior engaged in by all employees. Richard’s
transfer, change in start time, and the pattern of harassment he
allegedly was forced to endure each qualify as adverse employment
actions.
To complete a prima facie case, Richard must demonstrate a
causal connection between his complaints and the subsequent
adverse employment actions. A causal connection can be
established by demonstrating a close temporal proximity between
protected activity and an adverse employment action, see Hodgens
v . Gen. Dynamics Corp., 144 F.3d 151, 168 (1st Cir. 1998), or
through other factors including the sequence of events leading to
the adverse action, departures from normal procedure, and any
contemporaneous statements made by decisionmakers, id. at 168-69.
The plaintiff’s burden on this issue is “quite easy to meet.”
Id. at 165 (quoting Villanueva v . Wellesley College, 930 F.2d
124, 127 (1st Cir. 1991)).
Applying all these factors and drawing every reasonable
inference in Richard’s favor, a causal connection can be drawn
between Richard’s complaints and the claimed adverse employment
actions. Richard’s removal from Route 417 and reassignment to
office work occurred only days after he filed his second internal
-22- complaint. Similarly, the September 2000 change in Richard’s
start time occurred exactly one week after he initiated this
lawsuit. Finally, many of the incidents underlying Richard’s
hostile work environment argument occurred shortly after one of
his complaints, or were accompanied by a remark that suggested a
retaliatory motive. For example, Richard’s first internal
complaint of disability and gender discrimination, raised on
March 1 2 , 1998, was followed less than a month later by a meeting
in which management criticized Richard for actions that did not
normally warrant reprimand (such as talking with co-workers) and
ordered more medical documentation. A few days after Richard
filed a second internal complaint (on May 1 4 , 1998), he was
removed from his route and assigned to office work, during the
course of which management watched him closely. Approximately
two months after that, Richard received a letter reprimanding him
for chatting with other employees. Finally, in January 2001, a
manager at West Station approached Richard, stated that he had
heard about Richard’s lawsuit, and ordered Richard to undergo a
“fitness for duty” exam. Given the close temporal proximity
between Richard’s complaints and the subsequent adverse
employment actions, and the fact that Richard’s supervisor
-23- ordered a “fitness for duty” exam in response to his filing this
suit, he has established a prima facie case of retaliation. See
Hodgens, 144 F.3d at 168-69.
2. Defendants’ Response
The defendants offer some legitimate, nondiscriminatory
reasons for the adverse employment actions. Concerning Richard’s
transfer from Route 417 to office work, defendants suggest that
they made a mistake due to confusion about whether Route 417
required Richard to carry two bundles of mail in one hand. In
fact, Route 417 did not require this method, but management
mistakenly thought otherwise. In response to Richard’s
allegation that he was subjected to a hostile work environment,
defendants offer two explanations. First, they state that the
reason for the multiple demands to submit medical documentation
and undergo “fitness for duty” exams was to discern whether
Richard was capable of performing his job duties. Second, they
explain that management monitored Richard closely and reprimanded
him both orally and in a letter for talking with other employees
while on the job because Richard chatted with co-workers far too
frequently. Defendants have offered no explanation, however, for
the disadvantageous change in Richard’s start time in September
-24- 2000.
3. Pretext
Richard relies substantially upon the temporal proximity
between his protected activities and adverse employment actions
to suggest that the defendants’ proffered legitimate,
nondiscriminatory reasons are actually a pretext for unlawful
discrimination. While temporal proximity standing alone normally
is not enough to overcome a plaintiff’s burden at this stage of
the analysis, in Richard’s case the defendants’ explanations are
weak. They state only that Richard’s transfer from Route 417 to
office work was a mistake, and offer no explanation for the
September 2000 change in start time. Furthermore, the defendants
either deny Richard’s allegations of a hostile work environment,
or blame him for misbehaving at work. Given the close temporal
proximity between events, the totality of the circumstances
underlying Richard’s hostile work environment claim, the poor and
incomplete explanations provided by the defendants, and the
existence of genuine disputes concerning facts material to the
issue, a reasonable jury could conclude that the defendants
retaliated against Richard after he filed his gender and
disability discrimination complaints. Therefore, summary
-25- judgment is not appropriate for Counts I I , III and V.
IV. CONCLUSION
Defendants’ motion for summary judgment (doc. n o . 24) is
granted in part (Counts I and IV) and denied in part (Counts I I ,
III and V ) .
SO ORDERED.
Paul Barbadoro Chief Judge
August 2 1 , 2002
cc: Jean-Claude Sakellarios, Esq. T . David Plourde, Esq.
-26-