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Federico v. Donahoe

United States District Court, Ninth Circuit

August 2, 2013

Lucille A. Federico, Plaintiff,
Patrick R. Donahoe, Postmaster General, Defendant.


G. MURRAY SNOW, District Judge.

Defendant Patrick Donahoe, sued in his official capacity as Postmaster General of the United States, has moved for summary judgment on Plaintiff Lucille Federico's claims. (Doc. 42.) For the reasons discussed below, the Court grants the Motion.


Federico claims that her employer, the U.S. Postal Service, subjected her to disparate treatment, retaliation, a hostile work environment, and failed to accommodate her disability. Federico began working for the Postal Service almost 30 years ago. (Doc. 43 ¶ 1; Doc. 48 at I.) During that time, she has performed a range of work for the Postal Service, and the Postal Service has altered her responsibilities in the past as she has encountered health problems. (Doc. 43 ¶¶ 1-3; Doc. 48 at I.)

In January 2010, Federico began a new assignment in the General Mail Facility in Phoenix, Arizona. (Doc. 43 ¶¶ 4-8; Doc. 46 ¶¶ 13-14, 19-20.) That assignment was based on a December 2009 Offer of Modified Assignment that Federico received following the elimination of her previous job. (Doc. 43 ¶ 4; Doc. 46-4, Ex. 4.) Her duties were mostly of the mail sorting variety, and she worked at her own pace. (Doc. 43 ¶¶ 7-8; Doc. 48 at I.)

Federico had taken her offer of employment to her physician, Dr. Leonard Bodell. (Doc. 43 ¶ 10; Doc. 46 ¶ 15.) He completed a Work Capacity Evaluation form and authored a letter to the Postal Service concluding that her present duties were likely aggravating her wrist and shoulder problems. (Doc. 43-9, Ex. 9 at 3.)

Federico presented the letter to her supervisors. After supervisors reviewed Dr. Bodell's letter on January 25 or 26, 2010, they determined that no work currently existed for Federico to perform and sent her home for the day. (Doc. 43 ¶ 11; Doc. 46 ¶ 21.) Her supervisors did not provide a return date or an alternative job. (Doc. 43-2, Ex. 1 (Federico Dep.) at 47:22-23.) Upon reflection, one of those supervisors, James Brennamen, does not believe that Federico should have been sent home. (Doc. 43-8, Ex. 7 (Brennamen Dep.) at 10:11-25.) Other supervisors shared that opinion.

Two or three days after Federico was sent home, a meeting took place between Federico and Linda Hartshorn, the Postal Service's Human Resources Manager in Phoenix. (Doc. 43 ¶ 12; Doc. 46 ¶ 16.) At the meeting, Hartshorn reviewed Federico's current job duties contained in the December 2009 Offer of Modified Assignment. (Doc. 43 ¶ 14; Doc. 46 ¶ 16.) Federico and her husband, who was in attendance, stated that their concern was the effect the casing of mail had on Federico's medical conditions. (Doc. 43-2, Ex. 1 (Federico Dep.) at 58:14-23.) Hartshorn made a series of marks on the December 2009 offer and accompanying description of job duties that excised references to casing letters and hand sorting various classifications of mail. (Doc. 43-2, Ex. 1 at "Ex. 2.") Hartshorn believed that she had crossed out all references to casing in the Offer. (Doc. 42 ¶ 18; Doc. 48 at I.) Those markings were initialed by Hartshorn and Federico. (Doc. 43 ¶ 16; Doc. 46 ¶ 16.) The Parties dispute the remaining contents of the 90-minute discussion, but there is no evidence that Federico requested any additional modifications to the job offer at that meeting. (Doc. 43-2, Ex. 1 (Federico Dep.) at 65:1-8.)

Federico then took the modified job offer to her physicians to receive their input. (Doc. 42 ¶ 22; Doc. 48 at I.) She met with her shoulder specialist, Dr. Dana Seltzer, on February 5, 2010, and came away from that meeting with the understanding that her limitations would remain the same as they had been. ( Id. ) Federico waited six weeks for the dictation of her appointment with Dr. Seltzer. ( Id. ) Federico was not working for the Postal Service during this time. While she was waiting for the dictation, she received a letter from Kathy Hinojos, a Health and Resource Management Specialist, that advised Federico the modified job was still available. (Doc. 42 ¶ 23; Doc. 48 at I.) Hinojos asked Federico to let her know if she accepted or rejected the job by February 12, 2010. ( Id. ) Federico wrote Hartshorn the next day and expressed her willingness to "continue to work if the postal service can provide work for me that is acceptable with my physicians and is within my limitations/restrictions." (Doc. 43-2, Ex. 1 at "Ex. 8.") Federico then responded to Hinojos's letter by asking for more time to receive and review her physician's dictations before responding to the job offer. ( Id. at "Ex. 9.") She expressed her willingness to accept a new job so long as her doctor approved the restrictions. ( Id. ) Federico wrote another letter to Hinojos in March 2010. (Doc. 42 ¶ 27; Doc. 48 at I.) She informed Hinojos that she was still waiting for her doctor's dictations. ( Id. ) Federico raised an additional issue: she expressed confusion at the duties of the current offer because Hartshorn had crossed out "Hand sorts various classifications of mail in all manual operations, " but had not crossed out a sentence that appeared later in the paragraph: "Hand sort mail into L-shaped case for delivery to substations." ( Id. )

Dr. Seltzer sent a letter to the Postal Service on April 24, 2010. (Doc. 46-8, Ex. 8.) Dr. Seltzer reported "no additional problems" and an "unchanged" diagnosis from previous visits. ( Id. ) The letter also relayed Dr. Seltzer's "belie[f] that Ms. Federico can perform the tasks of a maintenance support clerk as described in the job duties description that I received, though she will have some difficulty even with rare use of her arm at or above shoulder level." ( Id. ) He had "told Ms. Federico that I believe she can perform this job as described." ( Id. )

After receiving the letter, Hinojos followed up with Federico. (Doc. 42 ¶ 29; Doc. 48 at I.) She forwarded Dr. Seltzer's letter and reaffirmed to Federico that the modified job was available. ( Id. ) Federico responded by again citing the discrepancy between certain eliminated and remaining provisions in the offer relating to casing and requested clarification. (Doc. 43-2, Ex. 1 at "Ex. 12.")

At this same time, Federico was seeking compensation from the Department of Labor ("DOL") for the time she was missing. (Doc. 42 ¶ 26; Doc. 48 at I.) While that request was pending, Federico was assigned to a new supervisor, Steve Kvochko. (Doc. 42 ¶ 31; Doc. 48 at I.) Kvochko was in contact with Federico, but Federico stated that she was not reporting to work because she was waiting for a decision on her claim for wage compensation from the DOL. (Doc. 42 ¶ 33; Doc. 48 at I.)

Her claim for compensation was denied by the DOL on July 21, 2010, and Hinojos and Kvochko both contacted Federico and told her that she needed to return to work. (Doc. 42 ¶¶ 34-35; Doc. 48 at I.) Federico, however, informed them that she intended to appeal the denial and would not yet return to work. (Doc. 42 ¶¶ 35-36; Doc. 48 at I.) Once the DOL denied Federico's request for compensation for the time she missed for the first half of 2010, Kvochko kept Federico in a Leave Without Pay (LWOP) status. (Doc. 43-3, Ex. 2 (Kvochko Dep.) at 75:8-24.) After some period of time, Federico had still not stated whether and when she intended to return to work, and Kvochko decided to hold a "Fact-Finding" with her. ( Id. at 76:22-77:7.) A Fact-Finding is often a precursor to formal discipline. (Doc. 43-7, Ex. 6 (Allen Dep.) at 38:5-7.)

Kvochko held the Fact-Finding on September 3, 2010, and informed Federico that she was now designated Absent Without Leave (AWOL). (Doc. 42 ¶ 50; Doc. 48 at I.) An AWOL designation did not carry any specific disciplinary action or penalty; it served only to inform the employee that her absence was considered serious and that she should be reporting to work. (Doc. 42 ¶ 51; Doc. 48 at I.) In addition to, but separate from, the AWOL designation, Federico received a letter of warning for failure to be in regular attendance in February 2011. (Doc. 42 ¶ 53; Doc. 48 at I.) The letter followed another Fact-Finding. (Doc. 43-2, Ex. 1 (Federico Dep.) at 87:4-16.)

Kvochko raised the possibility that Federico might meet with the District Reasonable Accommodation Committee (DRAC) in the hopes that Federico might return to work in some capacity during the pendency of the appeal. (Doc. 42 ¶ 37; Doc. 48 at I.) Federico had reservations about the effectiveness of DRAC, but she was referred anyway. (Doc. 42 ¶¶ 37-39; Doc. 48 at I.) In the words of Human Resources Manager Lerene Wiley, DRAC exists to "consider reasonable accommodation for employees who have disabilities under the ADA." (Doc. 43-5, Ex. 4 (Wiley Dep.) at 7:4-7.)

The DRAC meeting initially was scheduled for October 2010, but was adjourned to allow Federico to submit necessary medical documentation. (Doc. 43-2, Ex. 1 (Federico Dep.) at 97:11-99:1.) The DRAC meeting was eventually rescheduled for March 17, 2011. (Doc. 42 ¶¶ 40-41; Doc. 46 ¶ 17.) During the meeting, the Committee discussed with Federico the pending job offer and Federico's concerns about limitations ...

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