354 F.3d 761 (8th Cir. 2004), 03-1466, Peebles v. Potter

Docket Nº:03-1466
Citation:354 F.3d 761
Party Name:Peebles v. Potter
Case Date:January 08, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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354 F.3d 761 (8th Cir. 2004)

Kelvin D. PEEBLES, Appellant,

v.

John E. POTTER, 1 Postmaster General, United States Postal Service, Appellee.

No. 03-1466.

United States Court of Appeals, Eighth Circuit

January 8, 2004

Submitted: Sept. 11, 2003.

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[Copyrighted Material Omitted]

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Kathi L. Chestnut, argued, St. Louis, Missouri, for appellant.

Stephen J. Boardman, argued, Washington, D.C. (Raymond W. Gruender, Jane Rund, and Eric J. Scharf, on the brief), for appellee.

Before MORRIS SHEPPARD ARNOLD, BEAM, and BYE, Circuit Judges.

BEAM, Circuit Judge.

Kelvin Peebles appeals from the district court's 2 adverse grant of summary judgment on his claims arising under the Rehabilitation Act of 1973 (the Act), 29 U.S.C. §§ 701 et seq. (as amended). We affirm.

I. BACKGROUND

We recite the facts, as we must at this juncture, in the light most favorable to the non-moving party, Peebles. Coleman ex rel. Coleman v. Parkman, 349 F.3d 534, 536 (8th Cir. 2003). Peebles worked for the University City Branch of the United States Postal Service in St. Louis, Missouri,

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as a letter carrier. In October 1993, he fell while carrying mail and suffered groin and back injuries that inhibited his ability to carry out his duties. Peebles filed for compensation benefits with the Office of Workers' Compensation Programs (OWCP) and continued to work in a "limited duty" capacity. The OWCP denied Peebles' claim for benefits in June 1995, concluding Peebles' continuing injuries were non-occupational. That same month, he sought a "light-duty" assignment with the Postal Service. 3 Peebles spoke with Pamela Northcross, the appropriate supervisor, about his light-duty request. Northcross reviewed his physician-imposed work restrictions and concluded that no available work would accommodate the limitations. Northcross then placed Peebles on "leave without pay" status and told him that he would need to have his restrictions lessened before the Postal Service could accommodate his requirements.

For the next two months, Peebles renewed his requests for light-duty assignments and received no response. Peebles then filed a grievance with the union. The union agreed with the Postal Service, concluding Peebles' could not be accommodated given his restrictions. It accordingly closed the case in January 1996.

In June 1997, Peebles obtained a different physician who diagnosed him with sacroiliitis and/or spinal enthesopathy. After rehabilitation, that physician gave Peebles a new set of less-restrictive work prohibitions.

In October 1997, armed with his revised work restrictions, Peebles met with Ferman Harris, who was then the supervisor in charge of the University City Branch. Harris told Peebles that under Postal Service regulations he could not be considered for a light-duty assignment until he provided documentation verifying that his physician-imposed restrictions had persisted during the time he had been absent from duty--June 1995 to October 1997. Peebles never complied with the Postal Service's substantiation rule.

In November 1997, Peebles contacted an EEO counselor to discuss his situation. In January 1998, Peebles filed a formal EEO complaint alleging disability discrimination based on the Postal Service's failure to accommodate his disability with a light-duty assignment in October 1997. Peebles filed this suit in May 1999 and exhausted all applicable administrative remedies.

In December 1999, the Postal Service terminated Peebles' employment. It cited Postal Service regulations allowing for "separation" in the event an employee is in leave without pay status for more than one year and there is no cause to expect the employee's return.

Peebles filed his claim under the Rehabilitation Act, claiming the Postal Service's refusal to place him in a light-duty position in October 1997 constituted a failure to reasonably accommodate his disability. Peebles argued the Postal Service's failure to engage in an interactive process, whereby the employer and the employee determine what reasonable accommodations can be made, was sufficient to withstand the Postal Service's motion for summary judgment. Peebles also claimed his termination in December 1999 was retaliatory.

The district court granted summary judgment to the Postal Service on both

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counts. It found the Postal Service had no obligation to accommodate Peebles in October 1997 because he failed to comply with section 513.362 of the Employee and Labor Relations Manual, which states: "[f]or absences in excess of 3 days, employees are required to submit documentation or other acceptable evidence of incapacity for work." As to the retaliation claim, the district court found Peebles had presented no evidence of pretext in response to the Postal Service's articulated reasons for discharging him in 1999. Peebles timely appealed.

Peebles claims the district court erred in requiring that he show compliance with, or the non-applicability of, the substantiation rule, because such a showing is beyond the prima-facie-case requirements for a reasonable accommodation claim. Peebles also asserts he produced sufficient evidence to avoid summary judgment on the retaliation claim.

Jurisdiction was proper in the lower court pursuant to 28 U.S.C. § 1331, and it is proper here pursuant to 28 U.S.C. § 1291.

II. DISCUSSION

" 'We review a grant of summary judgment de novo, affirming the decision of the district court only if no genuine issue of material fact exists, entitling the moving party to judgment as a matter of law. In considering whether summary judgment was appropriate, we view all evidence in the light most favorable to the nonmoving party, drawing all justifiable inferences in his favor.' " Ballard v. Rubin, 284 F.3d 957, 960 (8th Cir. 2002) (quoting Lowery v. Hazelwood Sch. Dist., 244 F.3d 654, 657 (8th Cir. 2001)) (citation omitted). We may affirm the judgment of the district court on any ground the record supports. Habib v. NationsBank, 279 F.3d 563, 566 (8th Cir. 2001).

A. Reasonable Accommodation

The Rehabilitation Act provides, "No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, ... be subjected to discrimination ... under any program or activity conducted by ... the United States Postal Service." 29 U.S.C. § 794(a). To make out a claim under the language of the Rehabilitation Act against the Postal Service, Peebles needs to show he was "disabled," was "otherwise qualified," and was the victim of "discrimination" "solely" because of his disability. Peebles' disability status is not in dispute.

Unlike the Americans with Disabilities Act of 1990(ADA), the definition of "discrimination" is not codified in the Rehabilitation Act. See 42 U.S.C. § 12112(b) (defining discrimination). However, section 794(d) of the Rehabilitation Act, added in 1992, adopts the standards applied under the ADA to determine whether a violation of the former has occurred. The Postal Service regulations, promulgated under the authority of section 794(a), follow this lead. See 39 C.F.R. § 255.5 (2003) (Postal Service regulation stating EEOC regulations contained in 29 C.F.R. part 1614 apply to employment with the Postal Service); 29 C.F.R. § 1614.203 (2003) (EEOC regulation adopting standards contained in regulations promulgated under the ADA at 29 C.F.R. part 1630); 29 C.F.R. §§ 1630.4-1630.13 (2003) (defining "discrimination" by describing various acts).

Under the Act, the ADA, and the Postal Service and EEOC regulations, numerous kinds of discrimination emerge. Two means of discrimination are relevant to this case: disparate treatment (i.e., intentional discrimination) and the failure to make reasonable accommodations. Depending on which kind of discrimination is at issue, different burden-shifting analyses

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are applied. See Fenney v. Dakota, Minnesota & E. R.R. Co., 327 F.3d 707, 711-13 (8th Cir. 2003) (stating the same with regard to such claims under the ADA). 4 The allocation of the burdens of production and persuasion between the plaintiff and the defendant, in turn, affects the analysis of a summary judgment motion made by the defendant.

In disparate treatment cases, a similarly situated disabled individual is treated differently because of his disability than less- or non-disabled individuals. The key element is...

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