Moore v. U.S. Postal Service

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TAMARA D. MOORE CIVIL ACTION

VERSUS NO: 18-12270 c/w

19-2281, 19-11420, and

20-2819

LOUIS DEJOY, POSTMASTER SECTION: “KWR”

GENERAL, UNITED STATES

POSTAL SERVICE

ORDER

Before the Court is a Defendant’s Motion for Summary Judgment (Rec. Doc. 55) filed

by the Defendant, Louis DeJoy, Postmaster General of the United States Postal Service (“USPS”),

seeking a dismissal of Plaintiff Tamara D. Moore’s claims in four consolidated lawsuits with

prejudice. Plaintiff, Tamara D. Moore (“Moore”), opposes the motion. (Rec. Doc. 61, 69). The

Postmaster filed a Reply to Moore’s opposition. (Rec. Doc. 82). Moore filed a sur-reply (Rec.

Doc. 88) and defendant opposed to the motion for leave to file the sur- reply (R. Doc. 84).

I. Factual Summary

Tamara Danielle Moore originally filed her complaint pro se alleging violations of the

American With Disability Act Discrimination as a result of a work-related injury sustained while

employed by the USPS at the Gretna, Louisiana Post Office. Rec. Doc. 1., Civ. Act. 18-12270.

According to Moore, a city carrier1 with 14 years of service at the Gretna Post Office, she was

1 The duties of a city carrier include delivers and collects mail on foot or by vehicle under varying road and

weather conditions in a prescribed area; maintains professional and effective public relations with customers and

others, requiring a general familiarity with postal laws, regulations, products, and procedures commonly used, and

with the geography of the area. May be required to carry mail weight up to 35 pounds in shoulder satchels or other

equipment and to load or unload container of mail weighting up to 70 pounds. Rec. Doc. 55-2.

injured on the job in 2014 while delivering mail. Moore injury occurred when a dog came running

behind her causing her to turn around and place her mail bag in front to protect herself. While

doing this, a second dog came running and encircled her. Rec. Doc. 1-3. In trying to flee from

the dogs, she fell backwards and suffered debilitating injuries consisting of thoracic and lumbar

fractures/spinal stenosis/ degenerative disc disease and four herniated discs. Rec. Doc. 1.

A. First Complaint Events

Moore was originally released to full duty work on August 4, 2014 where she was offered

a modified work schedule of 7 a.m. to 11 a.m. Rec. Doc. 1, Exhibit 3. Moore worked limited

duty which consisted of casing her assigned route, Route 5633. Id. She also cased various vacant

routes, pulled down vacant routes, and split routes into separate parts to be delivered by multiple

carries. Id. She also cased mail in the box section and sorted return to sender mail for three years.

Id.

She alleges in her pre-suit report that in May 2017, the former Officer in Charge, Juana

Richardson (“Richardson”) gave her a revised Offer of Modified Assignment in an effort to help

her rehabilitate, that changed her schedule to 10:00 a.m. to 2:00 p.m. Moore did not like the

schedule change and claims that it caused her to work in pain. She complains that the schedule

change was contrary to her treating physicians’ opinion regarding the appropriate schedule and she

also complained that Richardson had no medical training or background to make this decision.

On May 26, 2017, Moore appealed Richardson’s decision to Joseph Porche (“Porche”), the

former Manager of Post Office Operations. Rec. Doc. 1-2. Moore considered the schedule change

as not being a reasonable accommodation. Further she argues that there was no showing that

keeping her at the original schedule would pose an undue hardship on her employer. Id. Moore

further alleged that the Post Office violated the JCAM contract, a contract between the Postal

Service and the National Letter Carriers Association, because they are contractually obligated to

allow her to begin work at the start of her shift. Richardson, according to Moore, refused to restore

her original work schedule. It was furthered noted that Moore did not submit her medication to

Richardson for her to determine whether she had to take it at a specific time. Id. at p. 4. In lieu of

submitting her medication information, Moore submitted three (3) doctors’ notes which indicated

that she needed to be restored to her original work hours because the new schedule affected the

timing of her medication.

Moore also alleges that she was never told that she could contest a revised Offer of

Modified Assignment but was told by Richardson that refusing to sign the offer was the equivalent

of forfeiting the offer. Moore thereafter relented and accepted the job offer albeit under duress. Id.

at p. 5.

Moore specifically alleged that from May 1, 2017 to June 6, 2017 she was forced to work

in a constant state of physical and mental angst due to the unwarranted, unlawful, and non-

contractual change to her schedule. Moore alleges that three years after her initial injury she

experienced a recurrence on June 6, 2017 and that she was medically excused from duty on June

7, 2017. Id. at p. 4. Moore was issued a right to sue letter on August 31, 2018. R. Doc. 1-2, p. 35.

Moore alleges that she is seeking $204, 910.94 for compensatory damages in addition to lost

wages.

On May 26, 2017, Moore wrote to Porche imploring him to intervene, which she claims

he did not. Id. at p. 5. Moore contends that Richardson must have known about the OWCP FECA

process but failed to advise her because of bias and prejudice. Id. Moore claims that the refusal

to restore her previous schedule constitutes disability discrimination because Richardson had the

ability to restore her work schedule at any time but refused to do so. Id. Moore claims that only

her and another disabled employee had their schedule changed, where non-disabled employees

never experienced a changed in work schedule. Id. at p. 6.

According to Moore, Richardson, in an affidavit, conceded awareness of Moore’s disability

but noted the schedule change was due to operational needs. Moore points out that Richardson

indicated that Moore could not lift heavy packages and requested assistance from coworkers to lift

heavy flat buckets of mail on her lap board. Id.

Moore contends the change in schedule did not eliminate the need for her to request

assistance. Id. Additionally, Moore stated that Richardson acknowledged that there was no change

to the schedule of full-time workers because they could perform their job without assistance. Id.

Moore’s grievance was resolved by settlement when Richardson agreed that she would

wait to see if Moore could case her own assignment due to her new restrictions when she returned

to work. Id. at p. 7. Moore complains that rather than restore her original work schedule,

Richardson decided to pay overtime to other works to perform Moore’s work. Id. at p. 8.

As a result of the aforedescribed events, Moore alleged that she seeks to recover

$204,910.942 for compensatory and punitive damages, loss wages because her work hours were

never restored even though she was “medically released” to active duty. She further alleged that

her Postmaster, Dwayne Pressley (“Pressley”) harassed her due to her disability because she was

2 Moore seeks $200,000 in compensatory and punitive damages. She also seeks $4,910.94 which consists of

42.50 hours of administrative pay totaling $1,210.40; 16 hours of missed pay from OWCP a total of $45.68; 4 hours

of Annual leave for a total $113.92 and 73.29 hours of out-of-schedule pay for a total of $3,130.94.

forced to work in violation of federal labor laws. She alleges that the Gretna Postal station has a

discriminatory culture which affected her health when she was forced to labor in pain, extreme

stress, high anxiety, depression, hair loss, sleep deprivation, compulsive overeating resulting in the

elevation of her blood pressure and borderline diabetes causing an enlarged heart.

B. Second Complaint Events

According to the exhibit documents attached to the second complaint, Moore was

released to full duty without restrictions, on January 4, 2018. However, during the investigatory

interview with Pressley, she complained that the physician who released her to full duty was not

her regular attending physician of record. R. Doc. 1-3, p. 12, Civ. Act. 19-02281. According to

Moore, she received notice that the consulting physician released her without restriction to return

to work. Id. at p. 37. Moore filed a grievance letter where she indicated that she visited the

physician to recieve a shot for pain. He then released Moore to full duty without restriction contrary

to her doctor’s reports, MRI, her present physical condition, and without conducting an

examination. Id.

Moore attached as an exhibit to the complaint, a Work Capacity Evaluation for

Musculoskeletal Conditions which she requested from the U.S. Department of Labor dated January

10, 2018. Id. at p.1. The January 10, 2018 work capacity evaluation indicated that Moore could

possibly do sedentary work but also found that she could not perform any activity such as sitting,

walking, standing reaching, reaching above shoulder, twisting, bending operating a motor vehicle

either to or from work. Id.

Moore indicates that on January 9, 2018, she telephoned the Enterprise Resource

Management System (eRMS) to request 160 hours of Office of Worker’s Compensation, the

Louisiana Workers Office (“OWCP-LWOP”) in lieu of her IOD. Id. In response to being released

to full duty, Moore sought a medical note from her attending doctor who, on Wednesday, January

10, 2018, concluded that she was not released to full duty without restrictions.

According to Pressley, despite having been released to full duty, Moore did not report to

work from January 18, 2018 thru January 31, 2018, which prompted an investigation by Pressley.

During the investigation, Moore was presented a series of questions. During the interview, Moore

refused to acknowledge that she understood that by failing to call into the eRMS system her

absence is considered AWOL and that disciplinary action, up to removal from the Postal Service,

could be taken against her. Id. at p. 13. She did not recall receiving documentation from HR about

the Postal Service’s policies regarding unscheduled leave or AWOL and that she needed to provide

documentation after being out for more than three days. Id. She also declined to acknowledge that

being AWOL was a serious charge.

At this time Moore acknowledged that she did not have an approved FMLA case on file

but that she received and EAP in 2016. Id. She further acknowledge that she has been to EAP

several times but indicated that she was not aware that she could get an extension of her original

FMLA because her requests for extension were denied since she did not have enough work hours

per HR in Greensboro, N.C. Id.

Pressley questioned Moore about whether she called the OWCP-LWOP, or the IOD for the

unscheduled leave for the period she had been out of work. Rather than answer, she responded

that she did not know how to answer the question. Id.

At the conclusion of the investigation, Pressley communicated his expectations to Moore

as follows: (1) Moore was to turn all medical documentation into injury compensation; (2) call into

the eRMS systems to request any unscheduled leave; and (3) get a CA-17 form from the office to

be filled out by Postal Management when she has to go to the doctor for her to turn back into injury

compensation to update her file. Id. at p. 15.

On January 18, 2018, Moore received a letter from Pressley indicating she would be

relinquishing her bid assignment because she failed to turn in medical documents indicating that

she would be able to fulfill the requirements of her bid assignment within the next 6 months. Id.

The letter contained the policy for limited duty letter carriers’ ability to bid for a job while on light

or limited duty. Id.

On January 19, 2018 Pressley requested supporting documentation, which Moore

represented she had in her possession for the dates she did not report to work. Pressley also gave

Moore the opportunity to turn in the signed Request for or Notification of Absence- PS Form 3791

(“PS 3971”) which she represented were signed by Richardson & Shirley Clarke (“Clarke”) for

the dates she did not work. Id. at p. 17. Pressley gave her until January 25, 2018 to provide the

documentation and reminded her that the failure to provide the documentation of all of the absences

will render her absent without leave (“AWOL”). Id.

On January 20, 2018, Moore responded to Pressley’s letter of January 18, 2018 and advised

him that because she was awarded her bid assignment on or before May 2013 and did not sustain

her injuries while on duty until May 2014 (reoccurring in June 2017), that according to the Joint

Contract Administration Manual (JCAM) she was entitled to retain her position if the disability

was temporary. Id. at p. 25. She thereafter referenced her January 10, 2018 Work Capacity

Evaluation of Musculoskeletal Conditions, which was hand delivered to Pressley on January 11,

2018, that noted that Moore had not reached maximum medical improvement (MMI).

Moore further advised Pressley that his removal of the bid assignment would violate the

JCAM. Id. She thereafter detailed several instances in which Pressley, despite receiving her

doctor’s Work Capacity Evaluation, proceeded to enter Moore in the system as AWOL beginning

January 12, 2018. Id. at p. 26. She complained that Pressley entered her appearance at the

investigatory interview as hours worked, even though Moore said they were not hours worked, and

that Pressley’s action would result in her being removed from OWCP’s automatic periodic roll and

affect her pay. She also complained that on January 18, 2018 he sent a letter to her home dated

January 18, 2018 advising her that he would relinquish her assignment, which she viewed as acts

of harassment. Id. at p. 26. She concluded her letter by demanding that Pressley cease and desist.

On January 20, 2018, Moore filed a grievance against Pressley regarding the letter advising

her that he would relinquish her bid-for duty assignment. Id. at p. 29. Moore asserted that the

clause she relied upon, which Pressley did not apply to her bid-for route 5633. Id. On the same

day, Moore filed a separate grievance regarding the AWOL charges for January 12, 2018, January

13, 2018, January 16, 2018, and January 17, 2018 due to the January 10, 2018 Work Capacity

Evaluation and MMI determination. Moore therefore argued that there was no rationale or

legitimacy to the entry of the AWOL finding. She also contended that she was not entered as

AWOL until January 12, 2018, four (4) days after her initial call-in and the day after Pressley

received medical notice of her inability to return to work. According to Moore, the AWOL entry

was biased, and an illegitimate act performed by management in retaliation for her inability to

perform her duties. Id. She requested the immediate reversal of the AWOL entries and an end of

the menacing behavior exhibited by management. She also sought to have management officials

responsible for their wrongful attendance charge.

On January 22, 2018, Moore submitted another grievance regarding Pressley’s request for

3971’s signed by Richardson and Clarke. Id. at p. 33. She pointed out that she had a deadline of

January 25, 2018 to get the documentation to Pressley otherwise administrative action would be

taken against her up to her removal from the post office. Id. She asserted that the documentation

supporting her time off was in her employee file otherwise she would not have been getting paid

by the workers compensation office. Id. She reasserted claims that Pressley was aware of her

physician’s determination but ignored it. Id.

She further noted that on January 18, 2018, during a telephone call Pressley inquired why

she was not at work despite her having communicated that she was excused from duty by her

doctor’s documentation. Id. at p. 34. According to Moore, Pressley advised that Moore had a

history of being AWOL, but Moore retorted that the only previous AWOL entry, entered by former

Acting Postmaster Richardson, was false because she had in fact submitted a PS Form 3971 for

May 31, 2017, June 1, 2017 and June 2, 2017. Id.

She reminded Pressley that she had filed and had an active EEO complaint and demanded

a copy of all the PS Form 3971’s since she worked for the Gretna station. Id. In her grievance

Moore also requested the filing of a “Joint Statement on Violence and Behavior in the Workplace”

Complaint which was authorized in places where there is unacceptable level of stress in the work

place, violence, or threats of violence by anyone in the postal service. Id. at p. 36.

On January 31, 2018, Pressley wrote to Moore advising her that the National Association

of Letter Carriers (NALC) President requested her presence at an investigation spearheaded by the

NALC and he clarified that it was not at management’s request. Id. at. 18. On March 17, 2018

Moore was provided with a Notice of Fourteen Day Suspension No Time Off which indicated that

after reviewing her attendance record from January 18, 2018 through January 31, 2018 that she did

not work during that period which resulted in 96.0 hours of AWOL. Id. at p. 20.

In the Notice of Suspension, it was noted that she failed to turn in PS Form 3971’s signed

by Supervisor Clarke and Richardson covering the entire period of her extended absence. Id. at.

20-24. It was further noted that while Moore informed management that she may possibly have a

qualifying FMLA claim, she did not qualify to receive the protection due to the fact she only had

191 work hours but needed a total of 1250 hours to qualify for FMLA. Id.

Pressley noted that she did not report to work, failed to get her absences approved, and that

she ignored his attempts at communicating by mail which were returned as unclaimed. Id.

Pressley noted in the suspension notice that Moore did not have an active claim accepted by the

OWCP office for being out of work, she had been taken of the Periodic Roles via Injury

Compensation, and failed to call into the eRMS system requesting unscheduled leave. Id. He noted

that this suspension did not result in a loss of time or pay but still constituted time-off suspension.

On February 21, 2018, Moore secured an additional attending physician authorization for

her continued absence from work relating to her recent Duty Status Report (CA-17) which was

forward to Lori St. Charles in Injury Compensation. Id. at p. 37.

After receiving the notice of suspension submitted by Pressley and approved by Clarke,

Moore filed a grievance, dated March 19, 2018, regarding Pressley’s contention that she had

unsatisfactory attendance, was AWOL, and failed to follow instructions. Id. She disputed the

contents of Pressley’s letter regarding whether she provided documentation for her inability to

report to work and perform the assigned duties. Id. at p. 39. She disputes his account that she

ignored and returned unclaimed five (5) letters mailed from management to her. Moore also stated

in her grievance that she responded to each letter by direct return reply via Certified letter and also

submitted documented grievances in response to the letters.

Moore further stated that though it was Pressley’s intent to have her forcibly removed from

OWCP’s periodic roll, she remained on the periodic roll and her OWCP claim remained active.

Id. She thereafter requested a withdrawal and removal of the suspension from her personnel

record.

In the second complaint, Moore alleged that on August 31, 2018 she received a Notice of

Right to Sue letter. Further, on December 16, 2018, a final agency decision of the U.S. Postal

Service was issued regarding Moore’s complaint of discrimination regarding the events that

occurred from January 12, 2018 through January 19, 2018 and the March 17, 2018 Suspension

Notice. Id. at p. 50.

In the second suit, Moore named Pressley as a defendant in addition to the Postmaster

General. Rec. Doc. 1, Civ. Act. 19-02281. Moore, pro se, filed the second suit alleging a violation

of the Americans with Disabilities Act, 42 U.S.C. §§12112 to 12117, which included the failure to

accommodate her disability, retaliation, and violation of the contractual provision. Moore alleges

that as to this complaint she seeks $200,000 for compensatory damages because she claim that she

has been continuously harassed by unidentified different management officials since she sustained

her on the job injury on May 5, 2014. Id.

Moore further alleged that the consistent harassment resulted in emotional torment,

constant worry about the loss of her livelihood, hair loss and the elevation of her stress. She also

complains of experiencing anxiety, depression, sleep deprivation and compulsive overeating

affecting her blood pressure and borderline diabetic state. She complained that continuous set of

harassment based on her disability had an adverse effect on her health due to the elevation of her

blood pressure resulting in an enlarged heart and greater risk for heart disease. Moore, however,

has voluntarily abandoned the discrimination claim. It is unclear if Moore has abandoned the

harassment, retaliation, or the alleged breach of contract claims. Rec Doc. 88, p. 1. Nevertheless,

for an understanding of the sequence of events, the second suit events have been included herein.

C. Events leading to Third Complaint

Moore’s third complaint Civ. Action 19-11420, filed by counsel, on June 30, 2019 alleges

a violation of the Rehabilitation Act, 29 U.S.C. §791 and 794 and Title VII. 19-11420, R. Doc. 1.

In this complaint Moore sued Postmaster General Megan J Brennan. Id. Moore alleges that she

received a right to sue letter on May 29, 2019. Moore alleges that while she had pending EEO

complaints, Pressley did not engage in actionable conduct from April 6, 2018 to December 10,

2018, her return to work date. Id. at p. 2. Upon her return on December 10, 2018, Moore alleges

that she was “only given one-two hours of work”. Id.

She alleges that upon returning to work she had new work restrictions which were different

than the one she had while working under Richardson in 2017. Her restriction was that she could

walk for one hour continuously and three hours intermittent walking but no driving. Id. As she

was before, Moore’s work restriction allowed her to work for a maximum of four (4) hours. Id.

According to Moore she described her duties to her physician, and he determined that she

could do one hour of casing, two hours of dismount, and one hour of walking. Id. However, when

she returned to work, during the first four days of work Pressley gave her only one-two hours of

work. Id.

Pressley tendered an Offer of Modified Assignment for two hours of work which Moore

accepted “under protest and duress.” Id. at p. 3. According to Moore, after Pressley received

questions from an investigator, he increased her work hours to four (4) hours. Id. She alleges that

as a result of Pressley’s actions, she lost 2 hours of work from December 10, 2018 to March 8,

2019 and this failure to allow her to work four (4) hours constitutes a failure to accommodate and

retaliation. Id.

D. Events leading to Fourth Complaint

Moore’s Fourth EEO charge was filed on December 22, 2019. 20-02819, R. Doc. 1. Moore

contends that on November 27, 2019, Gretna Postmaster Priscilla Penton (“Penton”) refused to

grant Moore sick or annual leave for her ADA related medical purposes. Id. at p. 4. Moore further

alleged that on December 3, 2019, she arrived at work at 8 a.m. and was informed by her supervisor

that her shift start time was changed to 11 a.m. and that she should come back then. Id. at p. 2.

Moore alleges that she did not return at 11 a.m. because she had a physical therapy appointment

and that Penton marked Moore AWOL.

Additionally, Moore alleges that this delay in start time meant that she could not take her

prescribed pain and mental health medication because the medication made her drowsy and

warned against operating heavy machinery. Id. at p. 3. Moore alleges that she could not take her

medication after her shift because she is a single mother and primary caregiver to her daughter

who suffers from asthma. Id.

Moore also alleges that her work duties were changed from casing her route and delivering

mail to sitting continuously for four (4) hours answering customer complaints. Id. Moore also

alleges that she was not allowed to take medically prescribed 10-minute breaks and was confined

to her desk. Id. On December 6, 2019, Moore alleges that Penton changed her duties to sitting

and standing intermittently. Id. Moore assigns fault to her employer for both her on duty and off-

duty inability to take her medications. Id.

Moore further alleges that on December 16, 2019, Dr. Neil Duplantier, her orthopedic

doctor requested that she return to the 7:45-11:45 a.m. schedule. Id. at p.4. She claims that he

reduced her sitting time to two hours intermittently with no prolonged sitting. Id. According to

Moore when she returned to work on December 20, 2019, she gave her supervisors Dr.

Duplantier’s revised restrictions regarding her proposed schedule change. Moore contends that

Penton denied her request and put her out of the office. Id.

On December 21, 2019, Moore contends she returned to work and her start time remained

11 a.m. which she contends prevented her from taking medication for her back pain and mental

health. Id. Moore contends that Penton continuously ignored her requests for a schedule change

to the early morning hours which prevented her from safely taking her medication. Id. Moore

alleges that the instances which she set forth state a claim for severe and pervasive harassment by

Penton because of her disability, race, and gender. Id. She alleges that her fourth complaint covers

November 14, 2019 to December 20, 2019. Id. Moore received her right to sue letter regarding

this fourth charge of August 19, 2020. Id.

On October 14, 2020, Moore filed her fourth complaint. Rec. Doc. 1, Civ. Act. 20-2819.

She alleges that her fourth complaint covers November 14, 2019 to December 20, 2019. Id. The

final agency decision regarding the charges accepted for investigation occurred on August 18,

2020. Id.

II. Standard of Review

Federal Rule of Civil Procedure (“Rule”) 56(a) provides that summary judgment is

appropriate where “the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material”

if resolving that fact in favor of one party could affect the outcome of the suit. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Poole v. City of Shreveport, 691 F.3d 624, 626-27

(5th Cir. 2012).

Where the moving party bears the burden of proof at trial as the plaintiff, or as a defendant

asserting an affirmative defense, that party must support its motion with “credible evidence . . . that

would entitle it to directed verdict if not controverted at trial.” Celotex Corp. v. Catrett, 477 U.S.

317, 331 (1986). In such a case, the moving party must “establish beyond peradventure all of the

essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn

Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original); see also Access Mediquip L.L.C.

v. UnitedHealthcare Ins. Co., 662 F.3d 376, 378 (5th Cir. 2011). Credible evidence may include

depositions, documents, affidavits, stipulations, admissions, interrogatory answers, or other

materials. Fed. R. Civ. P. 56(c). Moreover, in evaluating a motion for summary judgment by the

party with the underlying burden of proof, the Court considers the substantive evidentiary burden

of proof that would apply at the trial on the merits. Anderson, 477 U.S. at 252.

Once the moving party has made its showing, the burden shifts to the non-moving party to

produce evidence that demonstrates the existence of a genuine issue of fact. Engstrom v. First Nat.

Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322–24). All

justifiable inferences are to be drawn in the non-moving party’s favor. Anderson, 477 U.S. at 255.

However, “[u]nsubstantiated assertions, improbable inferences, and unsupported

speculation are not sufficient to defeat a motion for Summary Judgment.” Brown v. City of

Houston, Tex., 337 F.3d 539, 541 (5th Cir. 2003) (internal citations omitted); see also Eason v.

Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996) (stating that “mere conclusory allegations” are

insufficient to defeat a motion for summary judgment). Although the Court may not evaluate

evidence on a motion for summary judgment, the Court may decide as to the “caliber or quantity”

of evidence as part of its determination of whether sufficient evidence exists for the fact-finder to

find for the non-moving party. Anderson, 477 U.S. at 254.

III. Analysis

Defendant contends that Moore claims in the First and Third Complaints should be

dismissed because: (1) she is not a qualified individual; (2) the accommodations requested were

not reasonable and would impose hardship; and (3) there is no evidence of materially adverse

hardship. Rec. Doc. 55. The defendant further alleges that Moore’s race, sex, and harassment

claims should be dismissed under Title VII. Id.

Plaintiff contends that Moore’s claims of a violation of the Rehabilitation Act are detailed

in the First, Third and Fourth Complaints should be denied because she could perform the essential

functions of the Limited Duty Job properly. The plaintiff acknowledges that she abandons her

second complaint of intentional disability discrimination and concedes that there was no adverse

action. Rec. Doc. 69, p. 2.

Further, Moore acknowledges that while the second complaint contains allegations of

retaliation, the retaliation was not related either to ADA claim or based on an EEO charge, so these

claims were voluntarily abandoned by Moore. Moore does not stake a position regarding her

claims of race, sex, and harassment.

In her sur-reply, Moore also raises the issue of whether or not the change in her duties and

schedule constituted a reassignment. Rec. Doc. 88, p. 2-5. The Court does not reach that issue

here. Nor does the Court touch the issue of whether the duties Moore was assigned to constitute a

reasonable accommodation; those issues are reserved for the jury. Id. at p. 5. Additionally,

the issues of whether USPS suffered undue hardship, which was not adequately briefed, is

also an issue for the jury.

A. Qualified Individual

The Defendant contends that summary judgment is appropriate because Moore could not

perform the job she was hired to do, letter carrier, and therefore she was not a qualified individual.

Therefore, the defendant contends that Moore’s first and third lawsuit should be dismissed.

Moore contends that her job was changed to a limited duty position because she was injured

on the job. As a result, she contends that she could perform the limited duty jobs and that her

employer failed to accommodate her when they changed her work schedule and reduced her hours

to two (2) hours despite the fact that she was authorized to work four (4) hours a day.

The Rehabilitation Act adopts the standards applied under Title I of the Americans with

Disabilities Act of 1990 (“ADA”) to determine whether there has been a violation of the

Rehabilitation Act. 29 U.S.C. § 794(d). The ADA defines “disability” as, inter alia, “a physical or

mental impairment that substantially limits one or more of [a person's] major life activities.” 42

U.S.C. § 12102(1)(A). A person is substantially limited with respect to the activity of working

when that person is significantly restricted in the ability to perform either a class of jobs or a broad

range of jobs in various classes as compared to the average person having comparable training,

skills, and abilities.

The inability to perform a single, particular job does not constitute a substantial limitation

in the major life activity of working. 29 C.F.R. § 1630.2(j)(3)(i); see also Sutton v. United Air

Lines, 527 U.S. 471, 491 (1999) (citing regulations and explaining that the phrase “substantially

limits” means, “at a minimum, that [a person is] unable to work in a broad class of jobs”).

The Rehabilitation Act prohibits discrimination against an otherwise qualified individual

with a disability in programs that receive federal funding. 29 U.S.C. § 794(a); Kapche v. City of

San Antonio, 176 F.3d 840, 844 n. 27 (5th Cir. 1999). The Rehabilitation Act is the exclusive

remedy for federal employees. Id. To establish a claim under the Rehabilitation Act, a plaintiff

must show that she: (1) is an individual with a disability; (2) is otherwise qualified to perform the

job; (3) was employed in a program or activity that receives federal funding; and (4) was

discriminated against solely because of his disability. Hileman v. City of Dallas, 115 F.3d 352, 353

(5th Cir.1997); Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir.1993).

If this prima facie case is made, courts then apply the familiar McDonnell Douglas burden

shifting analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04, (1973). The burden

then shifts to the defendant to produce evidence of a nondiscriminatory reason for the employment

action. Id. If such evidence is proffered, the burden of production then shifts back to the plaintiff

to show that the nondiscriminatory justification was mere pretext. Id.

A qualified individual with a disability is defined as:

An individual with a disability who, with or without reasonable modifications to

rules, policies, or practices, the removal of architectural, communication, or transportation

barriers, or the provision of auxiliary aids and services, meets the essential eligibility

requirements for the receipt of services or the participation in programs or activities

provided by a public entity. 42 U.S.C. §1231 (2)

It is undisputed that Moore performed as a letter carrier up to May 2014. Thereafter she

was assigned a limited duty position upon her return to work in August 2014, after sustaining a

work-related injury, a fact which is ignored by the defendant. Rec. Doc. 55-1. She worked in the

limited duty position until May 2017 when the officer in charge, Richardson, changed her work

schedule from 7:45 a.m.-11:00 a.m. to 10:00 a.m. to 2:00 p.m.

According to Moore, this schedule change remained in place from May 1, 2017 thru June

6, 2017 when she went out on disability again. Rec. Doc. 1-2. Moore complains that the defendant

failed to show that the original schedule was changed due to hardship. Id. Moore claims she

provided Richardson with three doctors notes which indicated that Moore needed to be restored to

her original work hours. Id. These records are not a part of the record and nor does Richardson

mention receiving medical records, nor does she deny having received them, in her declaration.

Rec. Doc. 55-5.

The question before the Court is which job should the Court consider in determining

whether Moore was a “qualified individual; the City Carrier job that she last worked in 2014 or the

limited duty job she worked from 2014-2017.

The USPS provides limited duty assignments to employees who are injured while on duty.

See Jackson v. Brennan, No. H-18-1281, 2019 WL 5694508, at *1 (S.D. Tex. November 13, 2019)

Limited duty assignments “generally consist of tasks that are not being performed by another

employee, but that, at the same time are within the injured employee’s medical restrictions.” Id.

The USPS’s duty to provide limited duty assignments arises from its Employee and Labor

Relations Manual. Id. Limited duty refers to assignments given under the Labor Department

regulations. See Ensley-Gaines v. Runyon, 100 F.3d 1220, 1222 (6th Cir. 1996).

The issue of what position a plaintiff must be otherwise qualified to perform to entitle him

to invoke the protection of the Rehabilitation Act, has been addressed by different courts but not

the Fifth Circuit. Some courts have found that once an employee has been offered and accepted

light duty work the relevant inquiry for determining whether he is otherwise qualified is his ability

to perform essential function of the light or limited duty work and not the position for which he

was originally hired. Karnes v. Runyon, 912 F. Supp. 280, 286 (S.D. Ohio 1995)(where plaintiff

unable to perform her original work “keyer clerk” position, the Court found that her qualification

should be measured against the “post-surgery” job she held at the time of the alleged

discrimination.); see also Taylor v. Garrett, 820 F. Supp. 933 (E.D. Pa. 1993)(the position plaintiff

held at the time of the alleged discrimination is more appropriate for determination of whether she

“can perform the essential functions of the job in question”).

In Garrett, the court found that because the Navy had offered the plaintiff light duty work,

which he had to accept to maintain workers’ compensation eligibility-and the plaintiff thereafter

challenged his separation from light duty work. The court noted that the relevant inquiry was his

qualifications to perform the light duty work in which he was engaged when the alleged

discrimination occurred. Garrett, 820 F. Supp. at 938.

Also, in Florence v. Runyon, the court held that the employee was required to be ‘otherwise

qualified’ for limited duty position, rather than letter carrier position. 990 F. Supp. 485 (S.D. Tx.

1997). The court noted that while the defendant’s position was that the plaintiff should be qualified

for his official position of letter carrier, to hold such a position would allow the postal service to

operate outside the Rehabilitation Act simply due to the formal job title that the employer has

chosen to confer on a handicapped employee. Id. The court also found that such a result

contradicts common sense and also the basic promise set forth in the regulations that the ‘the

Federal Government shall become model employer of handicapped individuals.’” Id.

Given that at the time of the alleged discrimination, Moore was working in a limited or

light duty position, it is that position which she should be otherwise qualified to perform.

The defendant fails to address whether Moore was otherwise qualified to work in the limited duty

position that she held in May 2017 thru June 2017 and December 2018 thru January 2020 which

is a question of material fact. Therefore, the Motion for Summary Judgment seeking a dismissal

of Moore’s rehabilitation claims arising out of the change in schedule in May 2017 thru June 2017

and December 2019 is DENIED.

a. Reasonable Accommodation

The defendant contends that Moore did not identify any reasonable accommodation that

would have permitted her to perform her essential job functions of a City Letter Carrier. Rec. Doc.

55-1. The defendant further contends that it would be an unreasonable accommodation for the

employer to have to exempt the employee from performance of an essential function of the job.

Id. The defendant further contends that Moore’s failure to accommodate claim fails because she

contends that her employer should have given her a light duty assignment. Id.

Moore contends that she had worked a four (4) hour morning shift from December 2018 to

November 2019 when Penton revoked her modified job assignment. Moore contends that she did

not need a reasonable accommodation to perform her modified job assignment. Her new job

assignment according to Moore violated her work restrictions because it required four hours of

continuous sitting. Id. Moore contends that the defendant continued to require her to work in this

assignment in violation of her work restriction despite receiving written notice of her doctor’s

limitations. Id. Moore also contends that her former duties of casing and delivering the back part

of her route was now being handled by City Carrier Assistant Deanna Myles. Rec. Doc. 69, p. 14.

Moore has the initial burden to show: (1) that she is disabled; (2) that she is otherwise

qualified; (3) that her employer knew or should have known of his disability; (4) that she requested

a reasonable accommodation; and (5) that her employer failed to provide an accommodation.

Burdett–Foster v. Blue Cross Blue Shield of Mich., 574 Fed. Appx. 672, 680 (6th Cir.2014) (citing

DiCarlo v. Potter, 358 F.3d 408, 419 (6th Cir.2004)); see also Sapp v. Donohoe, 539 Fed. Appx.

590 (5th Cir. 2013) An individual is “qualified” if, “with or without reasonable accommodation,

[he] can perform the essential functions of the employment position that [he] holds or desires.” 42

U.S.C. § 12111(8).

The first, third, and forth elements are undisputed. Rec. Doc. 55-1. The defendants were

aware of Moore’s longstanding disability, she had requested accommodations through the

submission of her doctor’s restrictions repeatedly, and her supervisors, Penton, Pressley and

Richardson, knew about her limitations but failed to adhere to them. Id.

As detailed previously at the time of the alleged discrimination, Moore was working a

limited modified duty job based upon the restrictions set by her doctor which Richardson, Pressley

and Penton were aware of when changing her duties. Id. Moore contends that those changes were

outside of her restrictions. Id.

The evidence suggest that Richardson may have ignored the fact that Moore was working

in a limited duty job at the time she changed her work schedule and that the her start time was also

a medically necessary component of her limited duty. She like Penton, stated the reason for the

schedule change as being for “staffing and operational needs” but provided no explanation of the

needs that existed at the time the decision was made. Noticeably absent from Richardson’s

declaration is that at the time she decided to change Moore’s schedule she had been working that

earlier shift for three years and there was no evidence that she had difficulty working that shift.

While Pressley states that he did not have work available for Moore within her restrictions,

he also failed to present any evidence of the work that was available or that the available work did

not include casing or other components of the limited duty job. Further, the defendant’s own

submission notes that when Moore returned to work, she was limited to working four hours a day,

and could not lift more than twenty pounds and yet he admittedly limited her to two hours of work.

See Rec. Doc. 55-1, p. 15. Because Pressley considered Moore’s original job and not her limited

duty job, he failed to consider the essential functions of the limited duty job that Moore could have

performed so as to provide a reasonable accommodation.

As to Penton’s decision to change Moore’s schedule she generally says there was a need

for Moore to begin at 11:00 a.m. She however provided no evidence of the need that prompted

the change. Like Richardson and Pressley, Penton only considered the original City Carrier job

duties and not Moore’s limited job duties per their declarations. There are material facts in dispute

regarding whether Richardson, Pressley, and Penton could reasonably accommodate Moore’s four-

hour work restriction with alternating walking, standing, and sitting. The Motion for Summary

Judgment seeking a dismissal of her claim that the defendants failed to reasonably accommodate

her medical restrictions which would have allowed her to work in limited duty job is DENIED.

Further the degree to which Moore asserted a harassment claim against Penton, the

defendants failed to adequately brief it, therefore to the extent this motion seeks a dismissal of such

claim, it is DENIED.

b. Race and Sex Discrimination under Title VII

The defendant contends that Moore’s race and sex-based discrimination claims should fail.

Defendant contends that Moore has not offered any evidence that adverse employment action

alleged was made based on her race or sex. Further, the defendant contends that Moore has failed

to show that a similarly situated individual not in her protected class was treated more favorable

under the same or similar circumstance.

In opposition, Moore explicitly states that the race claim is maintained, but does not

mention her sex claim. Given the ambiguity, the Court will address both the claims of race and

sex discrimination alleged by Moore. Moore alleges that the race and sex discrimination in the

fourth complaint is in connection with her supervisor Priscilla Penton, adjusting her work hours in

contrary to the advice of her physicians. Additionally, Moore alleges that she has established a

prima facie case of discrimination including alleging similarly situated employees, Juan Gabriel

(“Gabriel”) and Natalie Leres (“Leres”), who are not in her protected class, were treated more

favorably. According to Moore, Gabriel and Leres, establish a prima facie case for gender

discrimination.

Under the McDonnell Douglas Corp. v. Green burden-shifting analytical framework

described above, plaintiff first must establish a prima facie case. 411 U.S. 792 (1973). To establish

a prima facie case based on alleged differential treatment on account of race or gender, a plaintiff

must demonstrate that: (1) she belongs to a protected group; (2) she suffered an adverse

employment action; (3) she suffered the adverse action; (4) and that she was treated less favorably

than similarly situated employees. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.

1817, 36 L.Ed.2d 668 (1973); see also Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d

507, 512 (5th Cir. 2001).

The defendant assumes for the sake of the motion that Moore has satisfied the first elements

of the prima facie case for discrimination. R. Doc. 55-1, p. 18. Therefore, the element in question

is the fourth prong which requires a showing that the plaintiff was treated less favorably because

of her status in protected class.

Defendant contends that Moore offered no information as to other employees, not in her

protected class who were treated more favorably. However, in her EEO Investigative Affidavit,

Moore does give information regarding comparator employees. R. Doc. 55-8, p. 16. Regarding

her gender discrimination claim, Moore submits that Gabriel, black male, noncareer, City Carrier

Assistant was injured on duty and restricted to four hours of work, but his work hours and duties

were not changed by Penton.

Regarding her race discrimination claim, Moore states that Leres, a Caucasian limited duty

carrier, is also medically restricted to a four-hour workday however her schedule and work duties

were not changed, as Moore’s were. Id. Therefore, the Court finds that plaintiff has established a

prima facie case of race and gender discrimination.

Once the plaintiff establishes a prima facie case, a presumption of discrimination arises.

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255. The burden then shifts to the

defendant to articulate a legitimate non-discriminatory reason for its employment decision. St.

Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506; McDonnell Douglas, 411 U.S. 802. The employer

may succeed at this stage by proving that it would have taken the same action even had it not considered

the unlawful factor.

The defendant's burden is one of production, not persuasion. In order to meet its burden of

production, the defendant must clearly set forth, through the introduction of admissible evidence,

“the 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) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S.

248, 255 (1981)).

Defendant contends that the burden of establishing a legitimate, non-discriminatory reason

for its actions has been satisfied. Rec. Doc. 55-1, p. 19. Furthermore, defendant contends that as

Moore cannot establish that the reasons for defendant actions were pretext, therefore her race and

gender discrimination claims should be dismissed. Id.

Defendant submitted a declaration by Penton, the supervisor responsible for changing

Moore’s schedule. Penton states that the Moore’s start time was changed because the Post Office

had a need for her at 11 am. R. Doc. 55-9. However, Penton does not explain why there was a need

for Moore at 11 a.m. versus her previous 8 a.m. start time. Penton further makes no

acknowledgment that she was aware that Moore’s start time was based on her need to take

medication at a certain time because the medication made her drowsy and unable to operate heavy

machinery. Penton further states that Moore would return from delivering mail on her route with

parcels not being delivered. However, none of the reasons put forth by Penton allude to undue

hardship by the defendant.

As an aside, Penton additionally alleges that Moore was combative with her supervisors

and uncooperative in doing her assignment of delivering parcels, therefore it was decided to adjust

her work duties to something more conducive to her medical restrictions. But it is unclear how or

why Moore’s uncooperative nature would justify the changing of the schedule as distinct from her

medical limitations.

It is undisputed that Penton was aware of Moore’s limitations and changed her schedule

regardless of restrictions. Furthermore, the reasons given by Penton for the changing of Moore’s

schedule are conclusory rather than explanatory. A determination of whether these reasons are in

fact legitimate and non-discriminatory, would require to the Court to consider the credibility of

Penton’s declaration, which is the job of the trier of fact. See Wallace v. Seton Fam. of Hosps., 777

F. App'x 83, 89–90 (5th Cir. 2019) (holding that a fact issue regarding the proffered

nondiscriminatory reasons for termination precluded summary judgment). Therefore, defendants’

motion for summary of plaintiff race and sex discrimination claims is DENIED.

IV. Conclusion

Accordingly,

IT IS ORDERED that the Defendant's Motion for Summary Judgment is GRANTED.

in part and DENIED in part.

IT IS FURTHERED ORDERED that Plaintiff has abandoned her claims of intentional

disability discrimination and retaliation in her second complaint therefore summary judgment

on those claims is GRANTED.

IT IS FURTHERED ORDERED that summary judgment on Plaintiff's failure to

accommodate claims in her first and third complaint is DENIED.

IT IS FURTHERED ORDERED that summary judgment on Plaintiff's disability

discrimination claims in her first, third, and fourth complaint is DENIED.

IT IS FURTHERED ORDERED that summary judgment on Plaintiffs race and sex

discrimination claims is DENIED.

New Orlea □□ isiana, this 17t day of February 2022.

Pressel \)

KAREN WELLS Cony)

UNITED STATES MAGISTRATE JUDGE

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