Coons v. Secretary of U.S. Dept.

• Citation: 383 F.3d 879
• Decision Date: 01 September 2004
• Docket Number: No. 02-15665.,02-15665.
• Parties: Peter W. COONS, Plaintiff-Appellant, v. SECRETARY OF THE U.S. DEPARTMENT OF THE TREASURY, (Internal Revenue Service), Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

383 F.3d 879

Peter W. COONS, Plaintiff-Appellant, v. SECRETARY OF THE U.S. DEPARTMENT OF THE TREASURY, (Internal Revenue Service), Defendant-Appellee.

No. 02-15665.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 6, 2003.

Filed September 1, 2004.

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Mary Dryovage, San Francisco, CA, for the plaintiff-appellant.

Abraham A. Simmons, Assistant United States Attorney, San Francisco, CA, for the defendant-appellee.

Appeal from the United States District Court for the Northern District of California, Charles R. Breyer, District Judge, Presiding. D.C. No. CV-00-04691-CRB.

Before: HUG, B. FLETCHER, and TASHIMA, Circuit Judges.

HUG, Circuit Judge.

Appellant Peter Coons was demoted by his employer, the Internal Revenue Service ("IRS"). He alleges that he was demoted in violation of his rights under the Rehabilitation Act for discrimination because of a disability and for requesting reasonable accommodations relating to his disability. Finally, Coons alleges that the IRS demoted him in retaliation for making disclosures protected by the Whistleblower Protection Act ("WPA"), in violation of the Civil Service Reform Act.

We hold that the district court correctly found that Coons is not disabled within the meaning of the Rehabilitation Act and that he did not make out a prima facie case for retaliation. However, because Coons made disclosures that are protected under the Whistleblower Protection Act, we reverse in part the district court's grant of summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Coons worked for the IRS from 1970 until January 2001. By January 1995, he was a Collection Division Chief and was responsible for a staff of about 400 IRS employees. In early 1997, Coons began making disclosures regarding certain actions taken by IRS officials. He complained to his supervisor, Division Director Robert Ah Nee, of the inappropriate conduct of a former IRS Regional Counsel who was representing a taxpayer in a collections matter. Coons claims that this, and other disclosures, are the reason for the adverse employment actions he suffered in 1998 and 1999.

Also in early 1997, Coons was given access to the Internet. In August of that year, Deborah Gavina, while installing new software on Coons's computer, discovered that Coons used his computer to view non-work related web sites. This eventually resulted in an investigation by the Office of Inspector General into Coons's alleged misuse of his office computer. In February 1998, Coons was detailed to the San Francisco Regional Office pending the outcome of that investigation.

On June 22, 1998, Coons took sick leave, claiming symptoms resulting from the stress of work. In late August 1998, Coons, through his attorney and doctor, claimed that he could return to work, but that he would require reasonable accommodations to be made. Specifically, Coons's doctor explained that Coons suffered "continuing abdominal distress" and various other stress-related ailments. Coons's doctor stated that Coons could return to work if he was not required to take "unplanned extended absences from the home, and excessive travel." The IRS did not meet with Coons to discuss his request for accommodation, but, in early September 1998, it detailed Coons to a position in the Quality Program that would not require extended absences from the home or excessive air travel.

In December 1998, Coons filed a Whistleblower Protection Act complaint with the Office of Special Counsel, stating that his February 1998 detail to the San Francisco Regional Office, allegedly the result of Coons's computer misuse, was actually the result of complaints he had made regarding improprieties at the IRS. That complaint was eventually dismissed by an Administrative Law Judge in August 2000, and the Merit Systems Protection Board upheld the dismissal. Coons was notified of his right to appeal that dismissal to the Federal Circuit Court of Appeals, but he did not do so.

In August 1999, as a result of the investigation of Coons's misuse of government computers, the IRS demoted Coons to the position of Program Analyst and reduced his grade from a GS-15 to a GS-14 — roughly a $14,000 reduction in annual pay. Coons appealed the demotion to the Merit Systems Protection Board and, after hearings in December 1999 and January 2000, the Administrative Judge denied Coons's appeal. A three-member panel of the Merit Systems Protection Board upheld that decision in November 2000.

In December 2000, Coons filed a complaint in district court challenging the Board's findings, alleging Whistleblower Protection Act violations, unlawful discrimination based on disability, unlawful discrimination based on age, and retaliation. The district court dismissed Coons's age discrimination claim and granted summary judgment in favor of the IRS on the whistleblower, retaliation, and disability discrimination claims. Coons appeals the district court's grant of summary judgment.

DISCUSSION

Although appeals of Merit Systems Protection Board decisions generally must be filed in the Federal Circuit Court of Appeals, district courts have jurisdiction to review "mixed" cases, in which an action involves both a Merit Systems Protection Board appeal and a discrimination claim. 5 U.S.C. § 7703(b)(2); see also Sloan v. West, 140 F.3d 1255, 1261 (9th Cir.1998) (explaining section 7703 jurisdiction). This court has jurisdiction to review the district court's final judgment pursuant to 28 U.S.C. § 1291.

I. Rehabilitation Act Claim

This court reviews a district court's grant of summary judgment of a Rehabilitation Act claim de novo. Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1187 (9th. Cir.2001). "Viewing the evidence in the light most favorable to the nonmoving party, and drawing all reasonable inferences in her favor, we must determine whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact." Id.

Our first inquiry is whether Coons is a person with a disability as defined by the Rehabilitation Act. The standards used to determine whether an act of discrimination violated the Rehabilitation Act are the same standards applied under the Americans with Disabilities Act ("ADA"). 29 U.S.C. § 794(d); see also 29 C.F.R. § 1614.203(b); McLean v. Runyon, 222 F.3d 1150, 1153 (9th Cir.2000).

According to the ADA, an individual is disabled if that individual (1) has a physical or mental impairment that substantially limits one or more of the individual's major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. Deppe v. United Airlines, 217 F.3d 1262, 1265 (9th Cir.2000); see also 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g). Therefore, for summary judgment to be appropriate, there must be no genuine issue of material fact regarding whether Coons has an impairment that substantially limits a major life activity, has a record of such an impairment, or is regarded as having such an impairment.

A. Physical or Mental Impairment That Substantially Limits a Major Life Activity

1. Physical or Mental Impairment

An impairment covered under the ADA includes any physiological disorder or condition affecting body systems such as the cardiovascular or digestive systems, and any mental or psychological disorder such as emotional or mental illness. 29 C.F.R. § 1630.2(h).

In a letter to the IRS, Coons's physician, states that Coons suffers from physical and mental impairments, including abdominal distress (affecting his digestive system), palpitations, heart pounding, and chest pain (affecting his cardiovascular system), and depression and panic disorder (emotional or mental illnesses). Therefore, examining the facts in the light most favorable to the non-moving party (accepting that the doctor's statements may be true), there is a genuine issue of material fact regarding whether Coons has such an impairment.

2. Substantially Limited Major Life Activities

A major life activity is a function "such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(I). To be substantially limited in any of these activities, a person must be unable to perform the major life activity or be "significantly restricted as to condition, manner or duration under which [he] can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j); see also Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002); EEOC v. United Parcel Serv., Inc., 306 F.3d 794, 802 (9th Cir.2002).

At the district court summary judgment hearing, Coons identified travel as the only major life activity that was limited by his impairments.¹ There is no authority that describes air travel as a major life activity. There is, however, authority denying a plaintiff ADA relief on grounds that travel is not a major life activity. See Reeves v. Johnson Controls, World Servs., Inc., 140 F.3d 144, 152-53 (2d Cir.1998) (holding that "everyday mobility," defined by plaintiff as, among other things, "going to unfamiliar places that would involve staying overnight," was not a major life activity).

Even if travel were a major life activity, Coons would have to show that he is either unable to travel, or that the condition, manner, or duration under which he can travel is significantly restricted as compared to that of an average person. Coons does not argue that he cannot travel because of his impairments, but only that he cannot travel extensively. Further, he does not present any evidence that the condition, manner, or duration under which he can travel is restricted in any way other than not to travel extensively.²

Because Coons presents no...