                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

____________________________________
                                          )
KEITH B. WILLIAMS,                        )
                                          )
               Plaintiff,                 )
                                          )
               v.                         )         Civil Action No. 08-1654 (RWR)
                                          )
ROBERT C. TAPELLA, Public Printer,        )
United States Government Printing Office, )
                                          )
               Defendant.                 )
____________________________________)


                                 MEMORANDUM OPINION

       Plaintiff brings this employment discrimination action against the Public Printer,1 United

States Government Printing Office, and defendant moves to dismiss or, in the alternative for

summary judgment. On the basis of defendant’s motion, plaintiff’s opposition, and the entire

record of this case, defendant’s motion to dismiss will be denied, and his summary judgment

motion will be granted.

                                      I. BACKGROUND

       Plaintiff was employed as a Police Officer with the Government Printing Office (“GPO”).

See Def.’s Mem. of P. & A. in Supp. of Mot. to Dismiss or, in the Alternative, for Summ. J.

(“Def.’s Mot.”), Troupe Decl. ¶ 2. The physical demands of the position included “extended

periods of standing and walking while on post or patrol duty [and] [s]ome traveling between

Federal agencies within the Washington Metropolitan area.” Troupe Decl., Ex. 1 (September 21,

2004 letter from A.L. Troupe, Chief, Workers’ Compensation Branch, GPO), Attach. (Position

Description for Agency Position No. 017277) at 5. “On August 25, 2003, [plaintiff] injured his



       1
              The current Public Printer is substituted as the party defendant under Fed. R. Civ.
P. 25(d).
back while on the job . . . and made a claim to the Office of Workers’ Compensation Programs

(‘OWCP’) for wage loss for total disability.” Id. ¶ 2.

       The GPO received a medical report from Charles J. Azzam, M.D., a neurologist retained

to evaluate plaintiff for purposes of his workers’ compensation claim. Troupe Decl., Ex. 1. Dr.

Azzam’s report indicated that plaintiff had reached his maximum level of improvement, that he

could not return to his usual job, and that he could work an eight-hour day with permanent

restrictions. Def.’s Reply in Supp. of Mot. to Dismiss or, in the Alternative, for Summ. J.,

Supplemental Troupe Decl., Ex. 1 (August 26, 2004 Work Capacity Evaluation). Plaintiff could

sit or walk for four hours per day and stand for two hours per day, and it was recommended that

he take a 15-minute break every two hours. Id. In addition, plaintiff was to limit twisting,

bending, stooping, squatting, kneeling, climbing, pushing, pulling and lifting activities, and was

to limit operating a motor vehicle at work. Id. Plaintiff was to avoid pushing, pulling or lifting

objects weighing more than 40 pounds. Id. On the belief that plaintiff’s then-current position as

a Police Officer met these limitations, the GPO offered plaintiff a Police Officer position at the

Main GPO Building at an annual salary of $46,300, available as of October 11, 2004. Troupe

Decl., Ex. 1.

       On October 7, 2004, plaintiff refused the Police Officer position on the ground that his

doctor, Gary C. Dennis, M.D., deemed him totally disabled and unable to perform the duties of a

GPO Police Officer. Troupe Decl. ¶ 4 & Ex. 2 (Position Acceptance Form and Disability

Certificate). On October 13, 2004, OWCP rescinded its prior decision that the Police Officer

position was suitable for plaintiff because the physical demands set forth in the position

description exceeded the limitations Dr. Azzam imposed. Id. ¶ 5 & Ex. 3 (October 13, 2004

letter from L. Miller, Claims Examiner, Employment Standards Administration, OWCP, United

States Department of Labor). It instructed the GPO to make plaintiff “a job offer . . . in


                                                 2
accordance with [his] permanent limitations.” Id., Ex. 3. To this end, the GPO offered plaintiff

the position of Security Clerk at an annual salary of $33,253 plus 10% night differential. Id. ¶ 8

& Ex. 4 (January 10, 2005 letter from A.L. Troupe). With respect to the physical demands of the

position, “[t]he work [was] primarily sedentary and the incumbent uses a chair or stands to

perform the work.” Id., Ex. 4, Attach. (Position Description for Agency Position No. 018740) at

4. A Security Clerk would “be able to move around as needed between a seated or standing

position.” Id., Ex. 4. The OWCP found the Security Clerk position “suitable in accordance with

[plaintiff’s] medical limitations provided by Dr. Azzam’s report.” Id., Ex. 5 (January 11, 2005

letter from L. Miller, OWCP) at 1. The OWCP required him to accept an available position not

exceeding his physical limitations, Security Clerk, with the understanding that he would be paid

“compensation based on the difference (if any) between the pay of the [Security Clerk] position”

and that of the Police Officer position as of the date of his injury. Id. The OWCP advised

plaintiff that, if he refused an offer of suitable employment or failed to report for work as

scheduled, he would not be entitled to any further compensation for wage loss. Id. at 1-2.

       Plaintiff countered that the Security Clerk position amounted to his return to his prior

Police Officer position with a new title, at reduced pay, and on a different shift which would

“cause[] stress and will create a family hardship.” Troupe Decl., Ex. 6 (February 9, 2005 letter to

L. Miller). Noting the inconsistencies between the reports of Drs. Azzam and Dennis, plaintiff

“request[ed] a referee examination.”2 Id. In addition, plaintiff asserted that the GPO was “not

trying to accommodate [his] limitation,” but rather was “putting [him] back in the same job [he]

performed as a Police Officer and all other Police Officers perform when on light duty.” Id.



       2
              “If a conflict exists between the medical opinion of the employee’s physician and
the medical opinion of either a second opinion physician or an OWCP medical adviser or
consultant, OWCP shall appoint a third physician to make an examination []. This is called a
referee examination.” 20 C.F.R. § 10.321(b).

                                                  3
The OWCP “reject[ed] [plaintiff’s] challenge based on ‘the weight of medical evidence in [his]

file,’” id. ¶ 11 & Ex. 7 (February 17, 2005 letter from L. Miller, OWCP), and plaintiff accepted

the Security Clerk position on March 8, 2005. Id., Ex. 8 (Position Acceptance Form).

        Meanwhile, on February 2, 2005, plaintiff had sought counseling from the GPO’s Equal

Employment Opportunity office. Troupe Decl. ¶ 12 . He alleged discrimination on the bases of

race, sex and physical handicap due to his returning to work as a Security Clerk, “caus[ing] him

to lose his title as Police Officer, receive less pay, any future pay raise, benefits of a Police

Officer and change [of] tour of duty to [the third] shift.” Id., Ex. 9 (EEO Counseling Report –

Individual Complaint). He asked that he “keep his Police Officer status, retain his pay and stay

on first shift.” Id.

        On April 22, 2005, plaintiff filed a formal complaint of discrimination against the GPO

on the bases of handicap, race, and sex under Title VII of the Civil Rights Act of 1964 (“Title

VII”), as amended, see 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of

1973 (“Rehabilitation Act”), as amended, see 29 U.S.C. § 791 et seq. Troupe Decl. ¶ 13 & Ex.

10 (Complaint of Discrimination in Federal Government); see Compl., Attach. (July 10, 2008

EEOC Decision). According to plaintiff, the GPO discriminated against him by refusing to

accommodate his physical limitations resulting from a back injury sustained on the job. Troupe

Decl., Ex. 10, Attach. (typewritten statement). He noted that the GPO had accommodated “a

Female Police Officer who has been on medical restriction for the last eleven years or more, only

worked 4 hours a day up until 2004 and now work[s] 6 hours a day is still allowed to keep her

position as a Police Officer, and salary yet her job responsibility is the same.” Id. at 2. Further,

he asserted that the GPO “has always accommodat[ed] the White Officers, who [weren’t] able to

peform their full Police Duties, due to their medical condition,” yet were not removed from their

positions, were not assigned to a different shift, and who were not denied full pay. Id. at 3. In


                                                   4
contrast, the GPO “place[ed] [plaintiff] on a shift he ask[ed] not to be on due to family hardship

but made up bogus reasons to keep the [plaintiff] on the shift, while constantly moving the other

officer[s] to accommodate their needs.” Id.

       An Administrative Judge (“AJ”) dismissed plaintiff’s complaint on the ground that it was

a collateral attack on the OWCP’s decision. See Compl., Attach. (July 10, 2008 EEOC Decision)

at 1. The GPO affirmed the AJ’s decision, and plaintiff appealed to the Equal Employment

Opportunity Commission (“EEOC”). Id. With respect to plaintiff’s disability-related claim, the

EEOC concluded that the AJ “incorrectly dismissed [plaintiff’s] claim under the theory of

collateral estoppel.” Id. at 2. Although the AJ characterized plaintiff’s claim “as a collateral

attack on the decision made by the [OWCP], id. at 1, plaintiff actually “only request[ed] that the

[GPO] provide him a reasonable accommodation in light of his medical condition,” id. at 2.

However, because the GPO is not subject to the Rehabilitation Act, the EEOC had “no

jurisdiction over [plaintiff’s] reasonable accommodation claim.” Id.

       With respect to plaintiff’s claims of race and sex discrimination, the EEOC concluded

that plaintiff failed to make out a prima facie case of discrimination. Compl., Attach. at 2-3.

Plaintiff had a permanent disabling condition unlike the temporary conditions “the other

individuals outside his protected classes who received accommodation had.” Id. at 3.

Furthermore, he presented no evidence “showing that he was treated differently from similarly

situated individuals outside of his protected classes.” Id. The EEOC concluded that the GPO did

not violate Title VII. Id.

                                        II. DISCUSSION

                                 A. Summary Judgment Standard

       Summary judgment is granted to the movant if it has shown, when the facts are viewed in

the light most favorable to the non-movant, that there are no genuine issues of material fact in


                                                 5
dispute and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett,

477 U.S. 317 (1986); Fed. R. Civ. P. 56(c). A material fact is one “that might affect the outcome

of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

When evaluating a summary judgment motion, “[c]redibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of

a judge.” Id. at 255; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

        The party opposing a motion for summary judgment “may not rest upon the mere

allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a

genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see also Jackson v.

Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996).

“If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be

granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50 (internal citations omitted).

“Mere allegations or denials of the adverse party’s pleading are not enough to prevent the

issuance of summary judgment.” Williams v. Callaghan, 938 F. Supp. 46, 49 (D.D.C. 1996).

The adverse party must do more than simply “show that there is some metaphysical doubt as to

the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). Instead, while the movant bears the initial responsibility of identifying those portions of

the record that demonstrate the absence of a genuine issue of material fact, the burden shifts to

the non-movant to “come forward with ‘specific facts showing that there is a genuine issue for

trial.’” Id. at 587 (citing Fed. R. Civ. P. 56(e)) (emphasis in original). Importantly, “[w]hile

summary judgment must be approached with special caution in discrimination cases, a plaintiff is

not relieved of [his] obligation to support [his] allegations by affidavits or other competent

evidence showing that there is a genuine issue for trial.” Morgan v. Fed. Home Loan Mortgage




                                                   6
Corp., 172 F. Supp. 2d 98, 104 (D.D.C. 2001) (citation omitted), aff’d, 328 F.3d 647 (D.C. Cir.),

cert. denied, 540 U.S. 881 (2003).

                  B. Plaintiff Does Not Collaterally Attack the OWCP Decision

       The Federal Employees’ Compensation Act (“FECA”), 5 U.S.C. § 8101 et seq., provides

that the decision of the Secretary of Labor or her designee “in allowing or denying a payment” of

federal workers’ compensation benefits is “(1) final and conclusive for all purposes and with

respect to all questions of law and fact; and (2) not subject to review by another official of the

United States or by a court by mandamus or otherwise.” 5 U.S.C. § 8128(b). The GPO

characterizes plaintiff’s claims as a challenge to its compliance with OWCP’s directive to offer

plaintiff a position in accordance with his physical limitations. Def.’s Mot. at 9. According to

the GPO, the complaint must be dismissed because it makes “an impermissible collateral attack

on OWCP’s decision making authority” under the FECA. See id. at 9-11.

       The Court construes the allegations of plaintiff’s pro se complaint liberally. See Haines

v. Kerner, 404 U.S. 519, 520 (1972). Plaintiff does not dispute that his injury “disqualifie[s]

[him from] perform[ing] the full function of [the Police Officer] position without some

limitation.” Compl. at 1. Rather, he alleges that he sought and the GPO refused to accommodate

his limitations by offering him light duty work as a Police Officer or otherwise by modifying the

Police Officer position to meet his needs. See id.; see also Pl.’s Opp’n to Def.’s Mot. to Dismiss,

[or] in the Alternative, for Summ. J. (“Pl.’s Opp’n”) at 1-2 (page numbers designated by the

Court). Insofar as plaintiff’s claims center on the GPO’s alleged refusal to accommodate his

physical limitations, the claims have no effect on the Secretary of Labor’s determination of

factual and legal issues pertaining to plaintiff’s FECA claim or eligibility for worker’s

compensation benefits. The FECA does not bar plaintiff’s discrimination claims. See Miller v.

Bolger, 802 F.2d 660, 666 (3d Cir. 1986) (“We reject the Postmaster General’s argument that


                                                  7
allowing [plaintiff] to pursue Title VII remedies will usurp the Secretary of Labor’s power under

5 U.S.C. § 8128(b) to make final and unreviewable determinations of FECA benefits.”); DeFord

v. Sec’y of Labor, 700 F.2d 281, 290 (6th Cir. 1983) (“Neither the language of the statute itself

nor the policy foundations underlying workmen’s compensation acts support a conclusion that

intentional discrimination is to be viewed as causing an ‘injury’ subject to FECA coverage.”);

Morris v. Roche, 182 F. Supp. 2d 1260, 1273-74 (W.D. Ga. 2002) (citing cases) (“The greater

weight of authority, however, holds that recovery of FECA benefits does not bar a subsequent

claim for discrimination.”); Johnson v. Sullivan, 764 F. Supp. 1053, 1063 (D. Md. 1991) (“This

Court is aware of no law that precludes a FECA beneficiary from recovering for discrimination

under Title VII or the Rehabilitation Act.”); see also Meester v. Runyan, 149 F.3d 855, 857 (8th

Cir. 1998), cert. denied sub nom. Meester v. Henderson, 526 U.S. 1144 (1999) (recognizing that,

although “a frustrated FECA claimant cannot secure judicial review of a FECA compensation

decision by claiming that the Rehabilitation Act entitles her to accommodation in performing an

alternative position approved by the Department of Labor when the claim is predicated upon the

same illness or injury that gave rise to the Department of Labor’s initial decision,” FECA does

not bar all discrimination claims).

       The FECA does not bar plaintiff’s discrimination claims. However, to the extent that

plaintiff brings this accommodation claim under the Rehabilitation Act, it must fail. “It is

undisputed that the Rehabilitation Act, by its own terms, does not apply to the GPO,” and its

employees have no rights under the Rehabilitation Act. Collins v. James, 171 Fed. Appx. 859

(D.C. Cir. 2005) (per curiam), cert. denied, 547 U.S. 1098 (2006).

                            C. Plaintiff Fails to State a Title VII Claim

       Generally, it is “an unlawful employment practice for an employer . . . to fail or refuse to

hire or to discharge any individual, or otherwise to discriminate against any individual with


                                                 8
respect to his compensation, terms, conditions, or privileges of employment, because of [his]

race, color, religion, [or] sex[.]” 42 U.S.C. § 2000e-2(a)(1). Based on this language, there are

“two elements for an employment discrimination case: (i) the plaintiff suffered an adverse

employment action (ii) because of [his] race, color, religion, sex, or national origin.”

Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008); see Baloch v.

Kempthorne, 550 F. 3d 1191, 1196 (D.C. Cir. 2008) (“Under Title VII . . . and the Rehabilitation

Act, the two essential elements of a discrimination claim are that (i) the plaintiff suffered an

adverse employment action (ii) because of the plaintiff’s race, . . ., sex, . . . or disability.”).

        “The D.C. Circuit defines adverse employment action as ‘a significant change in

employment status, such as hiring, firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing significant change in benefits.’” Aliotta v. Bair,

576 F. Supp. 2d 113, 120 (D.D.C. 2008) (quoting Taylor v. Small, 350 F.3d 1286, 1293 (D.C.

Cir. 2003)). “[C]ourts have consistently focused on ultimate employment decisions such as

hiring, granting leave, promoting and compensating” employees in this context, Dobbs v. Roche,

329 F. Supp. 2d 33, 42 (D.D.C. 2004), and adverse employment actions do not include “‘[p]urely

subjective injuries,’ such as dissatisfaction with reassignment, public humiliation, or loss of

reputation.” Nichols v. Truscott, 424 F. Supp. 2d 124, 136 (D.D.C. 2006) (quoting Holcomb v.

Powell, 433 F.3d 889, 902 (D.C. Cir. 2006)).

       1. Plaintiff Does Not Establish that He Was Qualified for a Police Officer Position

        The familiar burden-shifting analysis under McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973), requires that plaintiff make out a prima facie case of discrimination: (1) he belongs

to a protected class, (2) he was qualified for a position for which the employer sought applicants,

(3) he was rejected despite his qualifications, and (4) the position remained open and the

employer continued to seek applicants with his qualifications. Id. at 802. Defendant argues that,


                                                    9
because “[p]laintiff cannot establish that he was qualified for the position he claims to have been

denied or that, in light of his own rejection of the job offer,” he suffered no adverse employment

action. Def.’s Mot. at 12.

        More than one year after plaintiff sustained his on-the-job injury, during which he

received worker’s compensation benefits, the GPO offered plaintiff a Police Officer position, that

is, “the same position he held at the time of his injury.” Troupe Decl. ¶ 3. Plaintiff refused the

position on the ground that he was totally disabled and, therefore, he could not perform the

duties of the job. The OWCP concurred, noting “that the physical demands outlined in the Police

[Position Description] exceed[ed] the permanent limitations that Dr. Azzam has imposed as of

August 26, 2004.” Id., Ex. 3.

        Plaintiff counters that, even though he held a Security Clerk position, he performed Police

Officer duties between March and June 2005. Pl.’s Opp’n at 4. He states that he was “place[d]

. . . back in the same department, working along side [his] fellow Officers and assigned to some

[of] the same duties as a Police Officer.” Id. at 3. Plaintiff also remarks that others referred to

him by title, Pfc., suggesting his status as a Police Officer.3 See id. at 4; see also id., Ex. 7

(March 18, 2005 e-mail from R.C. Monroe), Ex. 9 (March 4, 2005 time and attendance records

listing plaintiff as “PFC”). In his view, the GPO “should not be allowed to cite jurisdiction

authority mainly using the Department of Labor, for their actions to not be challenge[d] or cited

on the appointment of a job offer.” Id. at 4. Without citing authority for this proposition,

plaintiff asserts that the GPO could have and should have modified the Police Officer position in

order to accommodate his physical limitations. Id. at 3.


        3
                The Court presumes that the title “Pfc.” means Policeman First Class. See Def.’s
Mot., Troupe Decl., Ex. 1, Attach. at 1. Defendant states that, upon plaintiff’s return to work in
March 2005, the GPO’s paperwork “initially mistakenly referred to [plaintiff] as a Police Officer
(his pre-injury position),” an “error [which] was ultimately corrected.” Def.’s Reply,
Supplemental Troupe Decl. ¶ 4.

                                                   10
        Plaintiff did not request a modification at the time the GPO offered him a Police Officer

position in 2004, however. Rather, he refused to be considered for the Police Officer position

because he claimed to be totally disabled. Moreover, assuming that plaintiff had been assigned

some Police Officer duties, such assignments do not rebut defendant’s showing that he was not

physically capable of performing all of a Police Officer’s duties. It cannot be said that defendant

either refused to offer plaintiff a Police Officer position or that its so-called refusal to hire

plaintiff as a Police Officer violates Title VII.

        This case presents no circumstances suggesting that the GPO’s action was motivated by

plaintiff’s race, sex, or disability, or that its action resulted in a significant change in plaintiff’s

employment status. Here, plaintiff finds himself in the lower paid and less physically demanding

position of Security Clerk due to his injuries, his own acknowledgment that he cannot perform

the physical functions of a Police Officer, and, particularly, the OWCP’s determination that

plaintiff is able to work under the conditions set forth in Dr. Azzam’s report. It is through the

worker’s compensation proceedings that plaintiff’s functional capacity was determined, and the

OWCP’s findings as to plaintiff’s physical limitations and suitability of a particular position

remain unchallenged.

        Plaintiff has not shown he is qualified for the position of GPO Police Officer and,

accordingly, that he has suffered an adverse employment action. See, e.g., McManus v. Williams,

519 F. Supp. 2d 1, 6 (D.D.C. 2007) (concluding that plaintiff suffered no adverse employment

action where she was not terminated and she was awarded workers’ compensation benefits for

the time period relevant to the complaint); Nails v. England, 311 F. Supp. 2d 116, 122-23

(D.D.C. 2004) (concluding that plaintiff failed to make out a prima facie case of discrimination

based on failure to promote where plaintiff was not qualified for the promotion position).




                                                    11
        2. Plaintiff Does Not Rebut Defendant’s Legitimate, Non-Discriminatory Reason
                 for Its Decision to Rescind the Offer of a Police Officer Position

        Defendants argue that, even if plaintiff had made out a prima facie case of discrimination,

he fails to show that the GPO discriminated against him on the bases of his race, sex, or disability

in violation of Title VII. See Def.’s Mot. at 13-14. In determining whether an employer has

violated Title VII, the District of Columbia Circuit instructs:

                In a Title VII disparate-treatment suit where an employee has suffered
                an adverse employment action and an employer has asserted a
                legitimate, non-discriminatory reason for the decision, the district
                court need not – and should not – decide whether the plaintiff actually
                made out a prima facie case under McDonnell Douglas. Rather, in
                considering an employer’s motion for summary judgment . . ., the
                district court must resolve one central question: Has the employee
                produced sufficient evidence for a reasonable jury to find that the
                employer’s asserted non-discriminatory reason was not the actual
                reason and that the employer intentionally discriminated against the
                employee on the basis of race, color, . . . [or] sex[?]”

Brady v. Office of the Sergeant at Arms, 520 F.3d at 494 (emphasis in original) (citations

omitted).

        The GPO asserts its reliance on the OWCP’s determination in the worker’s compensation

matter as to the suitability of a position to plaintiff’s partially disabled condition:4

                GPO did not make the decision that [plaintiff] could not return to his
                prior position as a Police Officer. The decision was made by the
                United States Department of Labor, through OWCP, which makes
                final decisions on all workers’ compensation cases. GPO followed
                the directives and suitability determinations of OWCP in offering job
                positions to [plaintiff] following his injury. GPO is required to
                follow the directives and suitability determinations of OWCP and [the
                declarant] is not aware of any instance in which GPO has failed to
                comply with the directives and suitability determinations of the
                OWCP.


        4
                A partially disabled employee is one “who cannot return to the position held at the
time of injury (or earn equivalent wages) due to the work-related injury, but who is not totally
disabled for all gainful employment.” 20 C.F.R. § 10.402. “[A] partially disabled employee who
refuses to seek suitable work, or refuses to or neglects to work after suitable work is offered to or
arranged for him or her, is not entitled to compensation.” 20 C.F.R. § 10.517(a).

                                                   12
Troupe Decl. ¶ 14. The OWCP determined that plaintiff is “disabled for the job [he] held on the

date of the injury,” yet he is “capable of working.” Supplemental Troupe Decl., Ex 2 (March 24,

2006 letter from L. Miller). Further, it determined that the Security Clerk position “fairly and

reasonably represents [his] wage-earning capacity[,]” and in light of plaintiff’s “demonstrated . . .

ability to perform the duties of this job . . ., this position is considered suitable for [his] partially

disabled condition.” Id.

        Plaintiff “is . . . not questioning what the [OWCP] finds suitable or unsuitable,” Pl.’s

Opp’n at 3, and he does not argue that he is incapable of performing the duties of a Security

Clerk. Rather, he asserts that the GPO’s reliance on the OWCP is misplaced because the OWCP

“never informed the [GPO] [that] the [Police Officer] job offered . . . couldn’t be modified to

accommodat[e] the Plaintiff[’s] limitations.” Id. at 2. Plaintiff, then, insists that he is entitled to

a modified Police Officer position so that he could maintain his title, pay, benefits and

retirement, and work a preferred shift, notwithstanding his physical limitations. See id. at 4.

        OWCP determinations of law and fact regarding compensation for federal disability

status are not reviewable. 5 U.S.C. § 8128(b). As long as the OWCP deemed plaintiff

permanently partially disabled, and deemed the Security Clerk position suitable in light of

plaintiff’s limitations, the GPO cannot be held liable under Title VII because the OWCP

rescinded its decision that the Police Officer position was a suitable position for plaintiff. See

Woods v. Runyan, No. 94-6520, 1995 U.S. App. LEXIS 24630, at *3 (6th Cir. Aug. 17, 1995)

(“[B]ecause 5 U.S.C. § 8128(b)(1) makes the OWCP determinations conclusive ‘with respect to

all questions of law and fact,’ and because the OWCP found the job offer made to Woods valid,

Woods cannot collaterally attack the validity of the job offer in federal court.”), cert. denied, 516

U.S. 1060 (1996); see also Desmond v. Gober, No. 00-6261, 2006 WL 2096064, at *6-7 (D.N.J.

July 27, 2006) (concluding that plaintiff failed to make out a prima facie case under the


                                                    13
Rehabilitation Act because, even with reasonable accommodations, an OWCP-appointed

psychiatrist determined plaintiff would be unable not only to perform his pre-injury job as

cemetery caretaker but also to perform any occupation).

                                      III. CONCLUSION

       Plaintiff neither suffered an adverse employment action because of his race, sex or

physical disability, nor rebutted the GPO’s legitimate non-discriminatory reasons for refusing to

hire him as a Police Officer. Accordingly, the Court grants defendant’s motion for summary

judgment. An Order accompanies this Memorandum Opinion.

       Signed this 30th day of September, 2009.

                                                                /s/
                                                     RICHARD W. ROBERTS
                                                     United States District Judge




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