Cheatham v. Postal Service (U.S)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION - CINCINNATI

DEARIE CHEATHAM, : Case No. 1:18-cv-295

Plaintiff, Judge Matthew W. McFarland

v

MEGAN BRENNAN, Postmaster General,

United States Postal Service,

Defendant.

ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. 26)

This case is before the Court on the motion for summary judgment filed by

Defendant Megan Brennan, Postmaster General, United States Postal Service (USPS).

(Doc. 26.) Plaintiff has filed a response in opposition (Doc. 39), to which USPS has filed

a reply (Doc. 44), making this matter ripe for review.

FACTS

For more than 20 years, Plaintiff Dearie Cheatham was employed by USPS as a

clerk at the Coryville Post Office. (Doc. 39-1.) In 2006, Plaintiff injured her foot in the

course of her employment. In 2012, she requested and received FMLA leave to have

surgery on her foot. The last time Plaintiff physically worked at the Coryville location

was February 9, 2012. In October 2014, Plaintiff was offered —and accepted — modified,

light-duty work at the USPS’ Dayton Call Center, where she worked from December

2014 until November 2015 when she again requested and received FMLA leave related

to her foot. (Id.) Because Plaintiff scheduled her surgery before receiving approval

from the Department of Labor (DOL), she was not being compensated beginning in

February 2016. (Doc. 36-17.) She did, however, begin receiving Social Security

Disability payments in May 2016, as well as pay from the Office of Worker’s

Compensation Programs from May 2, 2016—June 24, 2016 and July 15, 2016—July 30,

2016. (Doc. 36-22; Doc. 26-5 at p. 9, 28.)

Plaintiff was released to work by her physician on February 15, 2016, with the

following restrictions: “[m]aximum of four hours of work daily, sit down ONLY

through the entire shift, and patient has to wear a cam boot . . . can lift no more than 10

pounds when sitting only (not standing) when standing she should not be lifting, she

should not be pushing or carrying anything because she should not be on her feet

during her shift, she should be sit down duty only. She can pull only when sitting down

as much as needed. She should not be squatting or kneeling, she should not be standing

at all during her shift and she should be doing as minimum walking throughout her

shift. While patient is at work she has to have her boot on at all times.” (Id.)

Accordingly, Plaintiff spoke with Cliff Logan, the Manager of Health and

Resource Management, about returning to work. (Doc. 39-1.) But unfortunately, there

was no work available that fit her modifications. She was unable to return to the

Dayton Call Center due to a previous settlement, and the manager of the Coryville Post

Office, Jim Price, testified that there was no sedentary work available. (Doc. 26-4 at

76:17-18.) Regardless, on March 12, 2016, Logan sent a request for work search email,

the first step in providing reasonable accommodations. (Doc. 36-6.) After Plaintiff's

DOL request was approved on April 6, 2016, Logan sent another request for work email

on April 28. (Doc. 38-1.) Additionally, Evon Annette Clark, an HRM Specialist with

USPS, sent another request to various managers on April 15, 2016. (Doc. 36-15.) On

July 20, 2016, USPS certified that a search for reasonable accommodation had been

made, but that “[r]eassignment is not possible. There are no vacant positions at this

agency, at the same grade or pay level and tenure within the same commuting area, for

which the employee meets minimum qualifications standards.” (Doc. 36-16.)

USPS resumed its search for work no later than April 12, 2017, when Clark sent

another email to Price requesting an additional work search. (Doc. 36-19.) At this

point, Price became frustrated and emailed upper management, including Logan, and

stated that Plaintiff “has not been at Coryville in years. She has not turned in

documentation to [] Corryville . . .She has been receiving Social Security disability for a

while ... We need to get her off the rolls. We need to get her out of Corryville[‘]s stats

and numbers.” (Doc. 36-22.) Price admitted that he did not conduct the April 2017

search because he believed it was a fellow employee's responsibility. (Doc. 29 at 69:22-

70:18.) Regardless, on June 12, 2017, Clark sent Logan another email requesting a work

search. (Doc. 39-1 at 9 § 61-63.) And on July 21, 2017, Logan sent yet another email with

the same request to various managers. (Doc. 36-21.)

On August 1, 2017, Plaintiff requested a Reasonable Accommodation meeting.

(Doc. 1 at § 19). USPS responded three weeks later and scheduled a meeting with the

District Reasonable Accommodation Committee (“DRAC”), which occurred on

September 19, 2017. (Doc. 39-1 at § 45.) During the meeting, the committee requested

additional medical information, which Plaintiff provided on October 9, 2017. (Id. at 7

45-46.) On November 7, a second DRAC meeting was held. (Doc. 1 at [ 24.) Two days

later, Logan sent another work search email to various managers. (Doc. 36-7.)

On November 20, 2017, USPS offered Plaintiff modified light-duty work that fit

within her accommodations. (Doc. 1 at § 26.) However, on November 28, Plaintiff's

counsel notified USPS that Plaintiff was declining the offer and would instead retire.

(Doc. 26-5 at p. 44.) In April 2018, Plaintiff filed the present lawsuit.

LAW

Courts must grant summary judgment if the record “reveals that there is no

genuine issue as to any material fact and the moving party is entitled to a judgment as a

matter of law.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014) (citing Fed.

R. Civ. P. 56(c)). Once the movant has met its initial burden of showing that no genuine

issue of material fact remains, the nonmoving party must present “specific facts

showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). To do so, they must present “significant probative evidence. . . on

which a reasonable jury could return a verdict” in their favor. Chappell v. City of

Cleveland, 585 F.3d 901, 913 (6th Cir. 2009). The court “must view the facts and any

inferences that can be drawn from those facts . . . in the light most favorable to the

nonmoving party.” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir.

2007). This requirement, however, does not mean that the court must find a factual

dispute where record evidence contradicts wholly unsupported allegations. “The ‘mere

possibility’ of a factual dispute is not enough.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582

(6th Cir. 1992) (citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)).

ANALYSIS

USPS moves for summary judgment on all of Plaintiff's claims. In her response

in opposition, Plaintiff abandoned some of the claims she originally brought. The

following claims remain: Count One for race discrimination in violation of Title VII of

the Civil Rights Act of 1964; Count Two for violation of the Rehabilitation Act, 29 U.S.C.

§ 791 et seq.; Count Three for violation of Family Medical Leave Act (FMLA), 29 U.S.C. §

2601 et seq.; and Count Five for retaliation under the FMLA, Title VIL, and the

Rehabilitation Act. (Doc. 1.) The disposition of each of these claims is discussed below.

I. Failure to Accommodate and Failure to Engage in the Interactive Process

Plaintiff alleges that “Defendant violated the Rehabilitation Act by failing to

provide reasonable accommodation in a timely manner and by unreasonably delaying

the process.” (Doc. 39.) Although the Sixth Circuit has expressly held that courts must

apply the direct evidence test to resolve failure to accommodate claims under the ADA,

it has not ruled on whether this rule applies to failure to accommodate claims under the

Rehabilitation Act. See Fisher v. Nissan North America, Inc., 951 F.3d 409, 417 (6th Cir.

2020) (“Our court, sitting en banc, has explained that though the two statutes [ADA and

RA] have many similarities, they are not identical.”). However, under either test,

Plaintiff bears the initial burden of establishing that an employer failed to accommodate

a known disability.1 And here, it is undisputed that on November 20, 2017, USPS

1 See Brumley v. United Parcel Serv., Inc., 909 F.3d 834, 839 (6th Cir. 2018) (“Under the ‘direct-evidence

framework,’ once an ADA plaintiff establishes that an employer failed to accommodate a known

disability . . .”); Gaines v. Runyon, 107 F.3d 1171, 1175 (6th Cir. 1997) (The elements of a prima facie failure-

offered her modified light-duty work. But Plaintiff, through counsel, declined and

informed USPS that she would instead be retiring. As such, she cannot establish a

failure to accommodate claim when Defendant, in fact, provided her with an

accommodation. See, e.g., Gardner v. W. Kentucky Univ., No. 1:11-CV-79-DJH-LLK, 2015

WL 5299451, at *2 (W.D. Ky. Sept. 9, 2015), aff'd (July 5, 2016) (“any delay in providing

the requested accommodations is irrelevant because Gardner admits that she ultimately

received those accommodations.”) (citing Gerton v. Verizon S. Inc., 145 F. App'x 159, 169

(6th Cir. 2005)) (grant of summary judgment was appropriate when defendant

“reasonably accommodated [plaintiff], even though the accommodation was not at the

exact time of her request”).

A separate claim, however, still remains - failure to engage in the interactive

process. “Once an employee requests an accommodation, the employer has a duty to

engage in an interactive process.” Fisher v. Nissan N. Am., Inc., 951 F.3d 409, 421 (6th

Cir. 2020) (citations omitted). “From that point, both parties have a duty to participate

in good faith.” Id. (internal quotation omitted). “If the interactive process was triggered

but not successfully resolved, courts should attempt to isolate the cause of the

breakdown and then assign responsibility.” Id. (internal quotation omitted). “Examples

of how a party may fail to engage in the process in good faith include causing

unnecessary delays or obstructing the process, as well as failing to adequately

to-accommodate claim are: (1) Plaintiff is disabled; (2) Plaintiff is otherwise qualified for the position,

with or without reasonable accommodation; (3) Defendant knew or had reason to know about Plaintiff's

disability; (4) Plaintiff requested an accommodation; and (5) Defendant failed to provide the

accommodation).

communicate or provide information during the process.” Brumley, 909 F.3d at 840.

Plaintiff's failure to engage in the interactive process claim fails for various

independent reasons. First, even if Plaintiff could raise a material dispute as to whether

USPS engaged in the interactive process in good faith, USPS is entitled to summary

judgment because Plaintiff has failed to demonstrate a vacant, funded position that was

available at the time of her request. This flaw is dispositive. The Sixth Circuit has

expressly held that “if, after a full opportunity for discovery, the summary judgment

record is insufficient to establish the existence of an appropriate position into which the

plaintiff could have been transferred, summary judgment must be granted in favor of

the defendant — even if it also appears that the defendant failed to engage in good faith

in the interactive process.” Willard v. Potter, 264 F. App'x 485, 488 (6th Cir. 2008)

(quoting Donahue v. Consolidated Rail Corp., 224 F.3d 226, 234 (3d Cir. 2000)). This is

because “[i]mplicit in the plaintiff's duty to demonstrate that the employer failed to

provide the necessary accommodation . . . the plaintiff must [also] identify a vacant,

funded position for which she was qualified, with or without accommodation, that

existed at the time of her request for reassignment.” Id. at 487. Plaintiff has failed to do

so. The evidence demonstrates why: there were simply no vacant positions available.

The only argument Plaintiff presents to the contrary is that the November 2017 offer

proves that USPS could have placed her in that position earlier. But the fact that a

position became available in November 2017 has no bearing on whether or not a

position was available in March 2016, especially when the record demonstrates that

there were none. Because she has failed to identify a vacant position that she was

qualified for, Plaintiff's claim fails, regardless of whether USPS engaged in the

interactive process in good faith or not. See id. at 487-88. See also, e.g., Boyte v. Wilkie,

2019 WL 609652, at *3 (M.D. Tenn. Feb. 13, 2019).

Second, USPS did engage in the interactive process in good faith. It is

undisputed that over the span of almost two years, Clifford Logan and Evon Clark were

in regular contact with managers inquiring about available work that might fit

Plaintiff's accommodations. Yet no such work existed. Plaintiff could not return to the

Dayton Call Center due to a previous settlement and there was no other sedentary work

available. In July 2016, USPS certified that a search had been conducted but that there

simply were not any vacant positions that met Plaintiff's accommodations. And the law

does not require USPS to create a new position in order to fit Plaintiff's

accommodations. See Hoskins v. Oakland Cnty. Sheriff's Dep't, 227 F.3d 719, 730 (6th Cir.

2000) (citing Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir. 1998)); see also, e.g.,

Boyte v. Wilkie, 2019 WL 609652, at *3 (M.D. Tenn. Feb. 13, 2019). Nevertheless, USPS,

including Clifford Logan and Evon Clark, continued to search for work. And when a

position that fit Plaintiff's accommodations finally became available, USPS offered it to

her. Although the interactive process took longer than Plaintiff wanted, “an employee

cannot base a disability discrimination claim upon an employer's delay in providing a

requested accommodation where the delay is due to internal processing or to events

outside the employer's control.” Gerton, 145 Fed.Appx. at 168.

Third, it is the employee’s burden to “ produce evidence demonstrating that any

delay in her request for accommodation was unreasonable.” Id. at 169. To do so,

Plaintiff relies almost exclusively on the assertion that USPS never actually conducted

any searches, but the only evidence that supports this allegation is that Jim Price

admitted that he did not conduct a search following the April 2017 work search request.

Price stated that it was his belief that doing so was a co-worker’s responsibility. Apart

from Price’s statements regarding the April 2017 work search request, Plaintiff fails to

cite any evidence that suggests the searches were not conducted. The evidence, as

described above, actually attests otherwise.

Fourth, if anyone is to blame for the breakdown of the interactive process, it is

Plaintiff. Namely, on November 20, 2017, USPS offered Plaintiff modified work that fit

her accommodations, but Plaintiff turned down the position and instead decided to

retire. Here, when an employee resigns before completing negotiations over their

accommodation, an employer cannot be found liable for disability discrimination. See

Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805, 814 (6th Cir. 2020) (citing Kleiber v.

Honda of America Mfg., Inc., 420 F.Supp.2d 809 (S.D. Ohio 2006)); see also, e.g., Gleed v. AT

& T Mobility Servs., LLC, 613 F. App'x 535, 539 (6th Cir. 2015); McDaniel v. Wilkie, No.

17CV91, 2019 WL 626547, at *5 (N.D. Ohio Feb. 14, 2019), aff'd, No. 19-3304, 2020 WL

1066007 (6th Cir. Jan. 31, 2020) (“When a plaintiff does not participate in this shared

‘interactive process’ in good faith, and resigns while the process is ongoing, an

employer cannot be found liable of disability discrimination.”).

Moreover, the Sixth Circuit recently held that “an employee's failure to provide

requested medical documentation supporting an accommodation precludes a failure to

accommodate claim.” Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805, 812-13 (6th Cir.

2020). There is evidence here (albeit disputed evidence) that Plaintiff failed, on

numerous occasions, to provide USPS with the requisite documentation. From the

outset, Plaintiff scheduled her surgery before receiving approval from the DOL. This

was the reason why she was on leave without pay (LWOP) status in the first place. And

as of June 29, 2016, USPS did not have any updated medical files besides her physician’s

February 15, 2016 release to work with restrictions. (Doc. 36-17.) Although the Court

will refrain from adjudicating this matter based solely on this evidence, it it does not

assist Plaintiff's efforts to save her claim from summary judgment.

In sum, Plaintiff’s failure to accommodate claim fails because USPS, in fact,

accommodated Plaintiff's request. Although it took a long time for a position to become

available, when one did, USPS offered it to her—but she turned it down. By doing so,

Plaintiff is ultimately responsible for the breakdown of the interactive process.

II. Discrimination Based on Race and Disability

The familiar McDonnell-Douglas framework applies to Plaintiff's remaining

claims.2 Under this three-step analysis, the plaintiff must first show a prima facie case

of discrimination. If the plaintiff can do so, then the defendant must articulate a

nondiscriminatory reason for its action. If the defendant does, then the plaintiff must

“prove that the given reason is pretext for retaliation.” E.E.O.C. v. Ford Motor Co., 782

F.3d 753, 767 (6th Cir. 2015). The ultimate burden of persuasion, however, remains at

2 See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (establishing the analytical framework

for discrimination claims under Title VII); see also Blume v. Potter, 289 F. App'x 99, 103 (6th Cir. 2008)

(Rehabilitation Act); Stokes v. Detroit Pub. Sch., 807 F. App'x 493, 499 (6th Cir. 2020) (Title VII); LaBelle v.

Cleveland Cliffs, Inc., 784 F. App'x 437, 443 (6th Cir. 2019) (FMLA); Dixon v. Gonzales, 481 F.3d 324, 333 (6th

Cir.2007) (retaliation).

10

all times with the plaintiff. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993);

Browning v. Dep’t of the Army, 436 F.3d 692, 695 (6th Cir. 2006).

To establish a prima facie case of disability discrimination under the

Rehabilitation Act, Plaintiff must show that: (1) she is disabled, (2) she was otherwise

qualified for the job, with or without reasonable accommodation, (3) she suffered an

adverse employment action, (4) her employer knew or had reason to know of her

disability, and (5) she was treated differently than similarly situated non-protected

employees. See Jones v. Potter, 488 F.3d 397, 404 (6th Cir. 2007). Moreover, “the

Rehabilitation Act requires that individuals show that the employer's actions were

taken ‘solely by reason of her or his disability.’” Bent-Crumbley v. Brennan, 799 F. App'x

342, 345 (6th Cir. 2020) (quoting 29 U.S.C. § 794(a)).

Although the Court has concerns that Plaintiff can sufficiently establish a prima

facie case, her disability discrimination claim fails regardless. USPS has a legitimate,

nondiscriminatory reason for each of its actions, which Plaintiff cannot rebut by

demonstrating pretext. Plaintiff contends that USPS’ delay in offering her

accommodation constitutes as a material adverse employment action. However, if it

does, the Rehabilitation Act has a heightened causation standard that only bars

discrimination that occurs “solely by reason of” one’s disability. See Kaminsky v. Wilkie,

2020 WL 3893521, at *7 (N.D. Ohio July 10, 2020) (citing Lewis v. Humboldt Acquisition

Corp., 681 F.3d 312, 315 (6th Cir. 2012)). Here, the delay was not caused “solely by

reason of” Plaintiff's disability. The delay was caused by the fact that there were no

available jobs that fit within Plaintiff's work restrictions. The restrictions required

11

Plaintiff to work only four hours a day, perform only sedentary work, lift no more than

ten pounds, always wear a boot, always sit, and only walk at an absolute minimum. In

this case, no such work existed except at the Dayton Call Center, where Plaintiff could

not return due to the previous settlement she had reached. Not having any vacant

positions available within Plaintiff's restrictions is a legitimate and nondiscriminatory

reason for not providing Plaintiff with the work she requested. See Figgins v. Advance

Am. Cash Advance Centers Of MI, Inc., 476 F. Supp. 2d 675, 691 (E.D. Mich. 2007).

Since USPS has provided a legitimate and nondiscriminatory reason for its

actions, it is entitled to summary judgment unless Plaintiff can rebut their explanation

by demonstrating pretext. See Bartlett v. Gates, 421 Fed. Appx. 485, 488 (6th Cir. 2010).

Pretext is generally established by showing that the stated reason for the employer's

decision is “false” or “unworthy of credence.” Reeves v. Sanderson Plumbing Prod. Inc.,

530 U.S. 133, 135, 143 (2000); see also Chen v. Dow Chemical Co., 580 F.3d 394, 400 n. 4 (6th

Cir. 2009) (“At the summary judgment stage, the issue is whether the plaintiff has

produced evidence from which a jury could reasonably doubt the employer's

explanation.”). Plaintiffs usually demonstrate pretext by showing that an employer's

stated reason for an adverse employment action either: (1) has no basis in fact, (2) did

not actually motivate the defendant's challenged conduct, or (3) was insufficient to

warrant the challenged conduct. See Bartlett, 421 Fed. Appx. at 490-91.

In this case, Plaintiff fails to do so. The only evidence Plaintiff argues is

demonstrative of pretext is that (1) Price made excuses for not conducting the April

2017 search and (2), contrary to Defendant's assertion, her medical information was in

12

order. Here, even if Price failed to conduct the April 2017 search, and Plaintiff's medical

information was in order, no reasonable juror could find that Defendant's legitimate

nondiscriminatory reason was pretext. In July 2016, USPS affirmatively certified that

searches were conducted, but that there were no positions available that fit within

Plaintiff's accommodations. As such, Plaintiff has failed to demonstrate a vacant

position for which she was qualified, likely for the same reason that USPS has proffered,

namely, that none existed at that time. Regardless, Logan and Clark continued to

search. They sent frequent search requests to several different managers, both before

and after the April 2017 search request to Price. Most importantly, these searches

eventually culminated in a job offer, which Plaintiff turned down.

Moreover, when asked if anyone at USPS ever said that she was denied a

reasonable accommodation because of her disability, Plaintiff testified, “No.” (Doc. 27

at 69:5-8.) When Plaintiff was asked if anyone at USPS ever said or made any

derogatory comments about her disability, she responded, “No.” (Id. at 68:10-13.)

Based on these facts, no reasonable juror could find that Plaintiff was discriminated

against because of her disability, especially when her employer offered her a position

that fit within her accommodations, but she turned it down and instead decided to sue.

III. Race Discrimination Under Title VII

Similarly, to establish a prima facie case of race discrimination, a plaintiff must

show that: (1) they are a member of a protected class, (2) they were qualified for the job,

(3) they suffered an adverse employment action, and (4) they were replaced by, or

treated less favorably than, a person outside the protected class. Wheat v. Fifth Third

13

Bank, 785 F.3d 230, 237 (6th Cir. 2015). To eventually succeed on the claim, plaintiff

must show that race was a motivating factor in the defendant's challenged employment

decision. See Comcast Corp. v. Nat'l Ass'n of African Am.-Owned Media, 140 S, Ct. 1009,

1017 (2020).

Here, Plaintiff's claim for discrimination based on race fails for similar reasons as

discussed above. The only evidence Plaintiff suggests is demonstrative of pretext is the

existence of a comparator, Becky Schneider. According to Plaintiff, Becky Schneider is

white and disabled. Yet, when she requested reasonable accommodations, USPS

provided them to her. But a comparable employee is required to be “similarly situated

in all relevant respects.” Wright v. Murray Guard, Inc., 455 F.3d 702, 710 (6th Cir. 2006).

Here, Ms. Schneider and Plaintiff are not similarly situated. While Plaintiff's disability

required that she do only sedentary work, Ms. Schneider’s restrictions had nothing to

do with sedentary work and allowed her to walk around during work. (Doc. 26-4 at

91:5-12.) This distinction is crucial because the reason for USPS’ delay in

accommodating Plaintiff was that there simply were no vacant sedentary jobs. When

one became available, USPS offered it to her, just as they did Ms. Schneider. But unlike

Ms. Schneider, Plaintiff declined the offer. In this case, Ms. Schneider and Plaintiff were

clearly not similarly situated.

Apart from Ms. Schneider, Plaintiff fails to cite any evidence that would suggest

that her race played any part in USPS’ decision-making. Plaintiff testified that no one

ever made any racist comments to her, nor did anyone ever say anything that would

indicate USPS’ actions occurred because of her race. (Doc. 26-2 at 64:8-65:2.) When

14

asked how her coworkers were, Plaintiff responded “Loved them. I didn’t have a

problem with co-workers, managers, supervisors. Respect. I respected them, they

respected me.” (Id. at 44:9-11.) Accordingly, USPS is also entitled to summary

judgment on Count One.

IV. Retaliation

Plaintiff also brings a retaliation claim under the Rehabilitation Act, Title VII, and

the FMLA. This claim is analyzed using the same McDonnell-Douglas burden-shifting

framework discussed above. See Ford Motor, 782 F.3d at 767. To establish a prima facie

case of retaliation, Plaintiff must show that (1) she engaged in protected activity under

the applicable act, (2) USPS knew she availed herself of that right, (3) she suffered an

adverse employment action, and (4) there was a causal connection between the

protected activity and the adverse employment action. See Marshall v. The Rawlings Co.

LLC, 854 F.3d 368, 381 (6th Cir. 2017) (FMLA); Gribcheck v. Runyon, 245 F.3d 547, 550 (6th

Cir. 2001) (Rehabilitation Act); Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.

2000) (Title VII).

Plaintiff alleges that she was retaliated against for (1) requesting a reasonable

accommodation under the Rehabilitation Act, (2) taking time off under the FMLA, and

(3) filing the EEO complaint in this case, a protected activity under Title VII. (Doc. 1 at

44.) According to Plaintiff, USPS retaliated by refusing to offer her a reasonable

accommodation and keeping her on LWOP status when she attempted to return to

work. (Id.) This allegation is completely discredited by the fact that USPS offered

Plaintiff a reasonable accommodation on November 20, 2017 —a full two months after

15

Plaintiff filed her EEO complaint. If Plaintiff had accepted the offer, she would have

been taken off LWOP status, but she turned the offer down, retired, and sued.

Moreover, the reason that Plaintiff was on LWOP status in the first place was because

she scheduled her surgery before receiving DOL approval. In her response in

opposition, Plaintiff cites no evidence in support of this claim. Accordingly, even if the

delay in Plaintiff's accommodation constitutes an adverse employment action, there is

simply no causal connection between the delay and any of Plaintiff's alleged protected

activities. This is because: (1) it was Plaintiff's fault that she was on LWOP status in the

first place, and (2) when offered a reasonable accommodation that would have taken

her off LWOP status, Plaintiff declined.

CONCLUSION

For the reasons articulated above, Defendant USPS’ motion for summary

judgment (Doc. 26) is GRANTED.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

JUDGE MATTHEW W. McFARLAND

16