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McDonough v. Brennen

United States District Court, D. Massachusetts

November 2, 2018



          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiff Marilyn McDonough (“McDonough”) brings claims against Megan Brennan, the Postmaster General of the United States Postal Service (“USPS”), and USPS (collectively, “Defendants”) for disability discrimination, failure to accommodate and retaliation. D. 1. The Defendants now move to dismiss for lack of subject matter jurisdiction and for summary judgment. D. 48. For the following reasons, the Court ALLOWS the motion, D. 48.

         II. Standard of Review

         In evaluating a motion to dismiss for lack of subject matter jurisdiction, the Court will take the “[complaint's] allegations of jurisdiction . . . as true unless denied or controverted by the movant.” Torres-Negron v. J &N Records, LLC, 504 F.3d 151, 163 n.8 (1st Cir. 2007) (citation omitted). If the movant's factual basis for challenging jurisdiction relates to the merits of the claim, “the trial court should grant the motion to dismiss ‘only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.'” Id. at 163 (quoting Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1558 (9th Cir. 1987)). “[I]f the facts relevant to the jurisdictional inquiry are not intertwined with the merits of the plaintiff's claim, ‘the trial court may . . . weigh the evidence and satisfy itself as to the existence of its power to hear the case.'” Id. (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)).

         The Court will grant summary judgment “only when the record reflects no genuine issues as to any material fact and indicates that the moving party is entitled to judgment as a matter of law.” Morelli v. Webster, 552 F.3d 12, 18 (1st Cir. 2009). A genuine dispute of material fact exists where the evidence with respect to that fact “is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant “bears the burden of demonstrating the absence of a genuine dispute of material fact and that it is entitled to judgment as a matter of law.” Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000). The Court must “view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion.” Scott v. Harris, 550 U.S. 372, 378 (2007) (citation omitted).

         III. Factual Background

         The following facts are undisputed unless otherwise noted.[1] McDonough has been a substitute letter carrier at the Haverhill, Massachusetts Post Office since 1980. D. 50 ¶ 1. In 1987, McDonough fell at work and injured her back. D. 50 ¶ 2. Since then, McDonough has only worked four hours each workday and has received wage-loss benefits from the Department of Labor's Office of Workers Compensation Program (“OWCP”). D. 50 ¶ 2. In 2008, McDonough filed an employment discrimination claim against USPS, alleging disability discrimination, failure to accommodate a disability and retaliation. D. 50 ¶ 5. The putative disability in that suit was described as “chronic orthopedic problems related to her neck and back.” D. 50 ¶ 5. The district court granted summary judgment to USPS on the ground that the putative disability did not qualify as a disability and that decision was affirmed by the First Circuit. McDonough v. Potter, No. 08-cv-12122-LTS, 2011 WL 13175459 (D. Mass. Mar. 31, 2011), aff'd, McDonough v. Donahoe, 673 F.3d 41 (1st Cir. 2012); D. 50 ¶ 6. In that case, the district court analyzed the issue of whether McDonough was disabled under the law as it existed prior to the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”), because the court found that the ADAAA did not apply retroactively to claims arising from events occurring before January 1, 2009, the effective date of the ADAAA. McDonough, 2011 WL 13175459 at *1 n.4.

         In 2010, McDonough filed another claim related to the same putative disability. D. 50 ¶¶ 8-9. The district court held, in adjudicating USPS's motion for summary judgment, that “[t]he only change in McDonough's condition [since the prior case] . . . is that in July 2007, her orthopedist judged her capable of lifting, pushing or pulling just 10 pounds, although in 2004-2005, the same orthopedist had found her capable of lifting twenty pounds and pulling and pushing without restriction, ” and that this change was “not of sufficient import to affect the conclusion reached in the prior case.” McDonough v. Donohoe, 10-cv-11094-LTS, 2012 WL 4468486, at *8 (D. Mass. Sept. 25, 2012). In this subsequent case, McDonough also asserted claims related to a putative disability of anxiety, but the district court concluded that her anxiety did not qualify as a disability. Id. at *9. The district court in that case also did not apply the new standards laid out in the ADAAA, again because it determined that those new standards did not apply retroactively. Id. at *8 n.7. The First Circuit affirmed the district court's opinion. McDonough v. Donohoe, No. 12-2453 (1st Cir. Aug. 26, 2013).

         On October 3, 2012, the District Reasonable Accommodation Committee (“DRAC”) held a meeting regarding McDonough. D. 53-7 at 25. The minutes to that meeting indicate that at that time, McDonough was working two hours a day “casing mail” (that is, sorting mail) and “on standby” for two hours a day but felt that she was capable of delivering mail. D. 53-7 at 25. The minutes note that McDonough “cannot get her truck license because the test takes 2 hours and [McDonough] cannot drive for 2 hours.” D. 53-7 at 25. McDonough was interested in delivering Route 28, which could be delivered on foot from the office and was also interested in Route 13, although Route 13 “is a residential route going uphill with lots of stairs and may be beyond her restrictions.” D. 53-7 at 26. The minutes conclude by stating that McDonough “would be afforded the opportunity to deliver on Route 28, ” but only “after updated medical documentation has been supplied.” D. 53-7 at 27. The minutes also state that McDonough would “have to be observed on route [28] so that she does not exceed her restrictions” and that “[w]atching cannot be misunderstood as harassment by [McDonough].” D. 53-7 at 27.

         McDonough, in her affidavit to the EEOC, stated that she worked Route 28 until 2014, at which point she suffered an on-the-job injury inside the post office to her rotator cuff. D. 53-7 at 34. She states that she was “fully cleared” to return to work in March 2015, but that during her time away, Route 28 had been assigned to a different carrier. D. 53-7 at 34-35.

         McDonough took an absence of work following shoulder surgery in 2014 and returned to work in May 2015. D. 50 ¶ 12. On May 12, 2015, the Postmaster of the Haverhill Post Office, Donna Legro, held a meeting with McDonough regarding the route that McDonough would take upon her return. D. 50 ¶ 13. McDonough indicated that she preferred to deliver Route 28, but Legro stated that Route 28 was not within the work restrictions related to the 1987 accident, which restrict walking from more than two hours continuously. D. 50 ¶ 14. Legro expected McDonough to deliver Route 13. D. 50 ¶ 14. McDonough accepted the assignment, but indicated that she was doing so “under duress.” D. 50 ¶ 16. On May 13, 2015, McDonough delivered Route 13, accompanied by her immediate supervisor, Keith Miller, who was there to ensure that the route did not violate any of McDonough's work restrictions. D. 50 ¶ 17. The same happened on May 14, 2015. D. 50 ¶ 18. On both days, Miller timed the amount of time that McDonough spent climbing stairs and he recorded that she spent 11 minutes and 43 seconds climbing stairs on May 13 and that she spent 9 minutes and 53 seconds climbing stairs on May 14. D. 50 ¶¶ 17-18.

         McDonough, in her affidavit to the EEOC, contends that Route 13 “consists of mostly stairs” and includes much more than eleven minutes of stair climbing. D. 53-7 at 36. She states that she felt “tremendous pain in [her] right knee” “[w]ithin the first half hour of carrying Route 13, ” and “began to cry from the pain.” D. 53-7 at 36. She alleges that Miller yelled at her to continue working or that he would send her home. D. 53-7 at 36. She states that, on May 14, she wore a knee brace, delivered Route 13 again, and, despite the knee brace, felt “increasing pain and was vocal about it” to Miller. D. 53-7 at 37.

         On May 15, 2015, McDonough reported to work and requested that Legro provide her with a cart to load her truck with mail because she could not bend over. D. 50 ¶ 19. Legro replied that McDonough's work restrictions did not indicate that she was unable to bend over. D. 50 ¶ 19. Legro attests that McDonough replied that the “restrictions did not matter” because Legro was “harming [her] anyway” and that McDonough pointed to her right knee, which was in a knee brace, while making this statement. D. 50-2 ¶ 8. Legro avers that she then asked what had happened to McDonough's knee and whether McDonough would be able to deliver the route and that McDonough replied that she would “deliver this route if [she had] to crawl.” D. 50-2 ¶ 8. Legro then states that she instructed McDonough not to deliver the route, allegedly out of concern that McDonough might injure herself, and to punch “standby time, ” (i.e., compensable time that requires the employee to be present at the Post Office but does not require any work). D. 50-2 ¶ 9. McDonough, in her affidavit to the EEOC, agreed that she requested a cart and that Legro replied that McDonough's work restrictions did not reference bending, but contends that after that, Legro “suddenly began to yell ‘you say that I'm harming ...

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