Citations
- 198 F. Supp. 3d 340
Full opinion text
OPINION & ORDER
ANDREW J. PECK, United States Magistrate Judge:
Plaintiff Zoila Atencio brought this action against the United States Postal Service (“USPS”) alleging violations of the Americans with Disabilities Act and the Rehabilitation Act. (See generally Dkt. No. 23: 2d Am. Compl.) On November 19, 2015, Judge Woods dismissed Atencio’s ADA claims and counts three and four of her Second Amended Complaint. (Dkt. No. 34: 11/19/15 Opinion.) Atencio’s two surviving claims allege that USPS violated the Rehabilitation Act when it failed to engage in an interactive process to determine a reasonable accommodation of her disability, and subjected her to retaliatory harassment because she sought an accommodation. (2d Am. Compl. ¶¶ 129-37.) Presently before the Court is USPS’s motion for summary judgment on Atencio’s remaining claims. (Dkt. No. 68: 6/14/16 Mot.) The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 40.) For the reasons set forth below, the motion is GRANTED in part and DENIED in part; USPS is granted summary judgment on Atencio’s reasonable accommodation claim, but the retaliation claim survives for trial.
FACTS
Atencio’s Employment at USPS
In July 2000, Atencio began work for USPS as a letter carrier in Harrison, New York, and in 2001 was transferred to Manhattan and eventually assigned to Grand Central station. (Dkt. No. 70: USPS Rule 56.1 Stmt. ¶¶ 1-2; Dkt. No. 79: Atencio Rule 56.1 Stmt. ¶¶ 1-2.) Atencio applied for the “T-6 carrier” (or “Carrier Technician”) position, “which required her to cover five different routes and deliver the mail on those routes when the letter carrier responsible for the routes was out, sick or on vacation.” (USPS & Atencio Rule 56.1 Stmts. ¶ 2.) Atencio was aware of the particular routes for which she would be responsible when she bid on the position. (USPS & Atencio Rule 56.1 Stmts. ¶2.) The T-6 carrier position “was a higher-level position with a higher level of pay than a mail carrier who was assigned one specific route.” (USPS & Atencio Rule 56.1 Stmts. ¶ 2.)
The T-6 carrier job description provides, in relevant part: “ ‘As principal carrier for a designated group of no less than five letter routes, delivers mail on foot or by vehicle on the routes during the absence of the regularly assigned carrier and provides job instruction to newly assigned carriers.’ ” (USPS & Atencio Rule 56.1 Stmts. ¶ 4; Dkt. No. 71: Tarczynska Aff. Ex. M.) The T-6 carrier “ ‘performs [the] complete and customary duties of a carrier (city or special).”’ (USPS & Atencio Rule 56.1 Stmts. ¶ 4; Tarczynska Aff. Ex. M.) The city carrier job description, he., the role that a T-6 carrier would need to fill on her five assigned routes, provides that the city carrier “ ‘[d]elivers and collects mail’ ” and “ ‘[m]ay be required to carry mail weighing up to 35 pounds in shoulder satchels or other equipment and to load or unload container of mail weighing up to 70 pounds.’” (USPS & Atencio Rule 56.1 Stmts. ¶ 5; Tarczynska Aff. Ex. N at 1; see also Dkt. No. 72: Towns Aff. ¶ 5 (“The position of being a letter carrier, including a T-6 carrier, is a physically demanding position.”).)
As a T-6 carrier, Atencio’s first task each day was to go to the supervisor’s office to obtain her route assignment. (Dkt. No. 76: Atencio Aff. ¶ 32.) Once Atencio knew her route assignment, she would go to the location inside the post office set aside for that particular route, where there was a “case,” he., a ledge where a tray or tub of mail may be placed. (Id.) The case contained various slots labeled with different postal customers or particular delivery points. (Id.) Atencio would gather the mail for her assigned route, sort and bundle the mail by delivery location, box the mail, and place it in tubs. (Atencio Aff. ¶ 33.) Atencio used a mail cart to wheel the mail containers to the post office loading dock; from the loading dock, a driver would take the containers to the relay points. (Id.) A USPS driver would deliver directly to “high volume” customers which “were an exception to the delivery process.” (Aten-cio Aff. ¶ 62.) Atencio would take the remainder of the mail to her route using a mail cart. (Atencio Aff. ¶ 33.) After October 18, 2011, when at a relay point, Atencio would load mail onto her cart tub by tub and take the mail to each customer’s location. (Id.)
In sum, after arriving at her route case, Atencio’s responsibilities were “basically no different than a regular carrier.” (Aten-cio Aff. ¶32.) Specifically, Atencio states: “As a carrier, my basic function is to deliver mail to postal customers, large and small. As a regular carrier or a T-6 carrier, my basic function is to deliver mail from a particular post office to postal customers on a defined route.” (Atencio Aff. ¶ 33.)
Atencio’s Injury
On August 10, 2011, Atencio fell while on the job and was injured. (USPS & Atencio Rule 56.1 Stmts. ¶ 6; Dkt. No. 77: Lira Aff. Ex. 7: Atencio Dep. at 156-57.) Atencio returned to work on October 18, 2011, and submitted a medical note stating that she “could not lift more than 10 pounds and could not lift her left arm above the shoulder.” (USPS & Atencio Rule 56.1 Stmts. ¶ 8.) Atencio was given an “Offer of Modified Assignment (Limited Duty)” that same day. (USPS & Atencio Rule 56.1 Stmts. ¶ 9; Tarczynska Aff. Ex. F: 10/18/11 Offer.) The limited duty offer modified Atencio’s job duties by requiring her to case mail for five hours and deliver mail for three hours. (Tarczynska Aff. Ex. F: 10/18/11 Offer.) USPS claims that Atencio “signed and accepted” the offer; Atencio claims that she was coerced to sign the form because the only alternative accommodation offered by USPS was unpaid leave. (Compare USPS Rule 56.1 Stmt. 119, with Atencio Rule 56.1 Stmt. ¶ 9; Atencio Aff. ¶¶ 7-11; Atencio Dep. at 175-76.)
Atencio submitted a second medical note dated December 22, 2011, which restricted her from lifting more than five pounds. (USPS & Atencio Rule 56.1 Stmts. ¶ 10; Tarczynska Aff. Ex. G: 12/22/11 Letter.) On January 20, 2012, supervisor Steve Buono issued Atencio a “Notice of 7-Day No Time Served Paper Suspension” for an incident on January 4, 2012 when she failed to deliver all of the mail on her route. (USPS & Atencio Rule 56.1 Stmts. ¶ 15; Dkt. No. 65: Buono Aff. ¶ 5 & Ex. A: 1/20/12 Notice; Atencio Dep. at 192-94.) The notice states that Atencio previously was advised that if she needed help delivering mail to a particular floor, she was required to submit a Form 3996 on a daily basis as needed (1/20/12 Notice at 1), which “is the standard form that all mail carriers are required to complete when they are seeking assistance on a route” (Buono Aff. ¶ 6). The notice further states that, on January 4, 2012, Buono repeatedly asked Atencio for a Form 3996 to schedule assistance for her route that day, but she never responded. (1/20/12 Notice at 1.) Atencio later submitted a piece of paper (not a Form 3996) requesting assistance for four floors of a particular building; Buono “instructed another carrier to pivot” from his own route to deliver to the floors. (Id.; Atencio Dep. at 197-98.) Aten-cio nonetheless failed to deliver to four other floors not listed on the paper she submitted, despite never requesting any additional delivery assistance for those floors. (1/20/12 Notice at 1; Atencio Dep. at 197-98.)
Atencio does not recall being specifically advised to submit a Form 3996 as needed prior to January 4, 2012. (Atencio Aff. ¶ 84.) Even after Atencio was so advised, she claims that “management used the requirement as another method to torment” her. (Atencio Aff. ¶ 89.) For example, Atencio asserts that she often was told that she needed to submit the form by 10:30 A.M., even though the assistance she needed would not become apparent until later in the day once all the mail was processed. (Id.) Atencio also claims that she was not permitted to keep a supply of the forms, which were stored on the supervisor’s desk; when she would leave her route case to retrieve the form, often a “supervisor would scream at [her] to return to the route.” (Atencio Aff. ¶ 90.) Atencio would write down the floors for which she needed help on whatever paper was available, but then be “subjected to further abuse and threatened with discipline for failing to use the Form 3996.” (Id.) Atencio admits, however, that she was “generally not denied the requested help,” and “was never actually discipline^] for the late submission of a Form 3996.” (Atencio Aff. ¶ 89; Atencio Dep. at 197.)
Atencio submitted a third medical note dated March 15, 2012 that further restricted her from pushing or pulling in excess of five pounds. (Lira Aff. Ex. 3: 3/15/12 Letter.) As a result, on March 20, 2012, Aten-cio was given a revised limited duty offer that still required her “to case mail for 5 hours and deliver mail for 3 hours,” but restricted her to “lifting not more than 5 pounds (8 hours).” (USPS & Atencio Rule 56.1 Stmts. ¶ 11; Tarczynska Aff. Ex. H: 3/20/12 Offer; Atencio Dep. at 177.) The assignment further warned Atencio “not to exceed these restrictions.” (Tarczynska Aff. Ex. H: 3/20/12 Offer at 2.)
The parties dispute the impact of the March 20, 2012 limited duty offer on Aten-cio’s day-to-day work at USPS: USPS claims that the assignment allowed Aten-cio: (1) to receive assistance from her coworkers in performing her work; (2) to assist regular carriers rather than being personally responsible for a mail route; (3) on some days be tasked with office work without having to do any mail deliveries; and (4) submit written requests (on Form 3996 or regular paper) for assistance with deliveries to certain floors on her route, which USPS granted. (USPS Rule 56.1 Stmt. ¶¶ 12-13; see also Towns Aff. ¶¶ 7-8; Atencio Dep. at 208-09.) Atencio, however, claims that the offer made no mention of her left shoulder limitation or her pushing and pulling limitation, and that in practice the offer did little to accommodate her limitations. (Atencio Aff. ¶¶ 81-82.) According to Atencio, these failings reflect USPS’s unwillingness to engage in an interactive process to determine an effective accommodation. She states that:
At no time since October 18, 2011, has anyone from the postal service ever even attempted to discuss the nature and extent of my limitations, or attempted to elicit from me suggestions as to modifications that might aid me in the performance of my duties as a carrier. There has never been any type of discussion that could have led to the formulation of a plan that could have dealt with my limitations on something more than an ad hoc basis.
(Atencio Aff. ¶ 8.) Atencio claims that her managers “refused or rejected any effort or suggestion” to restructure her job to allow her to perform her duties more effectively. (Atencio Aff. ¶ 5.)
Atencio states that the assistance USPS offered sometimes was delayed or denied entirely, or accompanied by abuse and threats from her supervisors for having made the request. (Atencio Rule 56,1 Stmt. ¶¶ 12-13; see, e.g., Atencio Aff.' ¶¶ 8, 13-14, 41-42, 46, 53, 56-57, 68, 89-91.) In approximately 2002, Atencio began to develop back problems and “not infrequently requested help of one kind or another on an informal basis, and ... generally had few problems obtaining the help [she] requested before August 2011.” (Atencio Aff. ¶ 4.) Atencio’s “difficulties began,” however, after her August 2011 injury and return to work in October 2011. (Atencio Aff. ¶4.) Atencio describes the alleged abuse as follows:
I have mentioned “abuse” and “provocation” .... I had best explain what I mean by the terms. The abuse and provocation most often came up when I requested help, not always, but frequently. When I asked for help, I generally had to ask a supervisor for help. If I asked a carrier (or another co-worker) for help directly, the supervisors would have considered me disrupting the work of the other worker, something which could have gotten me into trouble. As a result, I often had to leave my route case to find a supervisor to request help. My leaving my case alone often elicited the displeasure of a supervisor. When I found a supervisor, and made my request for help, they often became visibly annoyed with me, and would start yelling at me, often coming close to me and invading my personal space while doing so. They would not just yell at me; they would literally scream at me. In other words, they frequently would speak to me in a very loud, very intimidating and very abusive manner. The things they would say to me included: “You’re lazy.” “You’re useless.”. “You’re wasting my time.” “You shouldn’t be here.” “Get back to your route.” “Wait at your route.” “I hear you.” “Don’t come back here.” If I reminded them of my limitations, they would call my claim of limitation “bullshit.” They would say I was “a fake.” If they intended to deny me assistance, they would say,