McDonough v. Donahoe

• Decision Date: 14 March 2012
• Docket Number: No. 11–1477.,11–1477.
• Citation: 673 F.3d 41,44 NDLR P 209,25 A.D. Cases 1697
• Parties: Marilyn McDONOUGH, Plaintiff, Appellant, v. Patrick R. DONAHOE, Postmaster General, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

25 A.D. Cases 1697
44 NDLR P 209
673 F.3d 41

Marilyn McDONOUGH, Plaintiff, Appellant,
v.
Patrick R. DONAHOE, Postmaster General, Defendant, Appellee.

No. 11–1477.

United States Court of Appeals, First Circuit.

Heard Oct. 6, 2011.Decided March 14, 2012.

[673 F.3d 43]

Mitchell J. Notis, for appellant.

Christine J. Wichers, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before BOUDIN, HOWARD, and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

Plaintiff-appellant Marilyn McDonough (“McDonough”) appeals the district court's grant of summary judgment in favor of her

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employer on her disability based hostile work environment claim under the Rehabilitation Act, 29 U.S.C. § 794(a). Discerning no error, we affirm the judgement of the district court.

I. BACKGROUND

McDonough began working for the United States Postal Service (“Postal Service”) as a letter carrier at the Haverhill, Massachusetts post office in September of 1980.¹ In 1987, she tripped over a basket of magazines while at work and injured her back, thereafter causing her to suffer from “chronic orthopedic problems in her neck and back,” as well as “related symptoms.” ² After this accident, she filed for worker's compensation. Her claim was allowed and she began to work four hours a day instead of eight—two hours sorting mail and two hours delivering mail. Though her hours changed from time to time, she typically worked 8 am to noon with the Postal Service paying her worker's compensation benefits to make up for the remaining four hours of the work day.

Despite her back injury, McDonough was nonetheless able to get up and about. She could walk, sit, and stand for up to one hour continuously or up to four hours intermittently. In fact, she acknowledged that the walking required to deliver the mail was good for her health. She could also lift ten pounds continuously or twenty pounds intermittently, though she was “not nit picky” about how much weight she could lift or even “really thought about” it much. McDonough drove herself to work everyday—approximately forty-five minutes each way. She was able to go up and down the stairs in her two-story house and she did not need help getting herself ready each morning. Her back injury also did not keep her from being able to do typical, everyday housework—she was able to vacuum, do laundry, load the dishwasher, mow, bake, and garden. For exercise, she liked to walk to a nearby lake and go to a local gym a couple of times a week for water walking therapy.

While at work, McDonough had access to a stool so she could rest her knee while sorting through the mail. She was also given a cart to carry her mail, instead of the customary requirement of using a satchel. Additionally, she only had to carry part of her mail load in her cart—the rest was delivered by a co-worker to a locked “relay box” for McDonough to pick up along her route. From what we can tell, all was well between McDonough and her employer until one fateful day in January of 2004.

Because McDonough was receiving worker's compensation, she needed to have regular medical examinations. On July 23, 2003, she was examined by Dr. Leonard Popowitz, a physician retained by the Postal Service. According to Dr. Popowitz's report, McDonough could work “four to five hours a day.” In response to this new information, the Haverhill Postmaster, Richard Pace (“Pace”), prepared an “Offer of Modified Assignment (Limited Duty)” proposing that McDonough work up to five hours a day, instead of four. On January 30, 2004, Pace discussed the offer with McDonough. According to McDonough, though he never blocked the door, Pace nevertheless tried to bully her into signing the offer by not allowing her to leave his

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office until she signed. McDonough never did sign the offer and continued to work four hour days.

Approximately a year later, McDonough contacted the Equal Employment Opportunity Commission (“EEOC”) and spoke to an Equal Employment Opportunity (“EEO”) counselor to report the incident with Pace and the modified job offer. On July 19, 2005, the EEO counselor sent McDonough a notice giving her the right to file an administrative complaint. She did so, alleging five instances of disability based harassment constituting a hostile work environment. After receiving a seven-day paper suspension ³ in August of 2005 for exhibiting unacceptable conduct, McDonough amended her complaint to add this event. All six incidents were investigated by the EEOC.

In November of 2005, the EEO investigator notified McDonough that his investigation was complete. He gave her a copy of the report ⁴ and informed her that she had the right to request a hearing before an Administrative Law Judge (“ALJ”), which she did. Before the hearing, McDonough moved to amend her complaint in order to add two additional incidents. Over the Postal Service's objection, the ALJ allowed the motion. After discovery was complete, the Postal Service filed a pre-hearing motion for summary judgment, and the ALJ granted the motion on August 3, 2006. Five days later the Postal Service issued a final agency decision adopting the ALJ's decision. McDonough appealed to the EEOC's Office of Federal Operations (“OFO”), which affirmed. She sought reconsideration but the OFO denied her request.

Thereafter, on December 22, 2008, McDonough filed suit in federal district court against the Postmaster General of the United States, John E. Potter, in his official capacity as the most senior manager of the Postal Service. ⁵ In her complaint, McDonough alleged five claims: (1) hostile work environment harassment based on her disability in violation of the Rehabilitation Act, 29 U.S.C. § 794(a); (2) retaliation in violation of the Rehabilitation Act; (3) failure to accommodate a disability in violation of the Rehabilitation Act; (4) hostile work environment harassment based on gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–16; and (5) retaliation in violation of Title VII.⁶

The parties agreed to proceed before a magistrate judge. On September 15, 2010, after discovery was completed, the Postmaster General filed a motion for summary judgment. In her opposition to summary judgment, McDonough abandoned all of her claims except for the harassment and retaliation claims under the Rehabilitation Act.

Oral argument was heard on March 30, 2011 and the next day, the judge entered

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summary judgment for the Postmaster General on all claims. This appeal followed.⁷

II. DISCUSSION1. Standard of Review

“We review a district court's grant of summary judgment de novo.” Ahern v. Shinseki, 629 F.3d 49, 53 (1st Cir.2010) (citation omitted). In so doing, the record is construed “in the light most favorable to the non-movant and [we] resolv[e] all reasonable inferences in that party's favor.” Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir.2008). Nonetheless, “[w]e may ignore conclusory allegations, improbable inferences, and unsupported speculation.” Id. (internal quotation marks omitted). “We will affirm only if the record reveals ‘no genuine issue as to any material fact’ and ‘the movant is entitled to judgment as a matter of law.’ ” Vineberg v. Bissonnette, 548 F.3d 50, 55 (1st Cir.2008) (quoting Fed.R.Civ.P. 56(c)).

2. Hostile Work Environment Claim under the Rehabilitation Act

Pursuant to the Rehabilitation Act, “ ‘[n]o otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, 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.’ ” Rolland v. Potter, 492 F.3d 45, 47 (1st Cir.2007) (quoting 29 U.S.C. § 794(a)). McDonough argues “that she was subjected to a hostile work environment due to her disability.” ⁸

In order to succeed on her hostile work environment claim McDonough must show the following: (1) she was disabled as defined under the Rehabilitation Act, (2) she was subjected to uninvited harassment, (3) her employer's conduct was based on her disability, (4) the conduct was so severe or pervasive that it altered the conditions of her work and created an abusive work environment, and (5) the harassment was objectively and subjectively offensive.⁹ See Prescott, 538 F.3d at 42; see also Ríos–Jiménez v. Principi, 520 F.3d 31, 43 (1st Cir.2008). Based on the record before us, we find that McDonough has failed to clear the first hurdle.

“[A]n ‘individual with a disability’ [is defined] as ‘any person who ... has a physical or mental impairment which substantially limits one or more of such person's major life activities' or ‘has a record of such impairment’ or ‘is regarded as having such an impairment.’ ” ¹⁰ Rolland, 492 F.3d at 47 (quoting 29 U.S.C. § 705(20)(B)). To qualify as “disabled” under the Rehabilitation Act's first disability definition, “[w]e apply a three-part

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analysis.” Ramos–Echevarría v. Pichis, Inc., 659 F.3d 182, 187–188 (1st Cir.2011). First, the plaintiff must establish that she suffers from an impairment. Next, the plaintiff must show that the impairment affects a major life activity,...