Jeseritz v. Potter, 01-1490.

• Decision Date: 04 March 2002
• Docket Number: No. 01-1490.,01-1490.
• Citation: 282 F.3d 542
• Parties: Roger JESERITZ, Appellant, v. John E. POTTER,<SMALL><SUP>1</SUP></SMALL> in his official capacity as Postmaster General of the United States, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

282 F.3d 542

Roger JESERITZ, Appellant, v. John E. POTTER,¹ in his official capacity as Postmaster General of the United States, Appellee.

No. 01-1490.

United States Court of Appeals, Eighth Circuit.

Submitted: October 19, 2001.

Filed: March 4, 2002.

John E. Mack, argued, New London, MN, for appellant.

Friedrich Anson Paul Siekert, argued, Minneapolis, MN (Barbara H. Frazier, on the brief), for appellee.

Before McMILLIAN, BEAM, and MURPHY, Circuit Judges.

McMILLIAN, Circuit Judge.

Roger Jeseritz appeals from a final judgment entered in the district court² granting summary judgment favor of the United States Postal Service (USPS) on his employment discrimination claims under the Rehabilitation Act, 29 U.S.C. § 794. For reversal, Jeseritz argues the district court erred in holding that he failed to produce sufficient evidence to support his discharge and harassment claims and that he failed to exhaust administrative remedies as to his accommodation and retaliation claims. We affirm.

BACKGROUND

Jeseritz began working as a distribution clerk for the USPS in 1985 at the Willmar, Minnesota, post office. The job required use of his hands and wrists, but accommodated his hearing impairment. In 1989, Jeseritz took several days off for pain and numbness in his right wrist and filed a claim for lost wages with the Office of Workers' Compensation Programs (OWCP). The OWCP accepted the claim due to work-related tendinitis of the right wrist. In May 1990, Jeseritz reported problems with both wrists and saw Dr. Thomas Jetzer. After consultation with the doctor, the USPS placed Jeseritz on a limited duty assignment with restrictions on hand-sorting tasks. In October 1992, Jeseritz complained of increased problems and saw Dr. Dennis Peterson, who recommended a ninety-day leave. The USPS granted the leave and during that time consulted with Jeseritz, his doctors, and the OWCP to develop further work restrictions. In 1993, Jeseritz accepted a job offer with further restrictions, but continued to complain of problems. In January 1994 he applied to the OWCP for a workers' compensation award and took a leave from September 1994 until June 1995.

In December 1994, the OWCP granted Jeseritz's claim, finding that he had 56% permanent partial disability of his right arm and 53% permanent partial disability of his left arm. Jeseritz received a lump sum payment of $49,430 and was to receive monthly checks of $2317 until August 1999. In May 1995, Drs. Jetzer and Peterson met with postal officials to develop job duties to accommodate Jeseritz's impairments. Based on the doctors' recommendations, the USPS offered Jeseritz a new job. He accepted the offer and returned to work.

In early 1996, after the USPS received information that Jeseritz was involved in off-duty physical activities that conflicted with his job restrictions, it began an investigation. Among other things, in the summer of 1996 investigators videotaped Jeseritz pitching and batting in numerous softball games and operating a sod-cutting machine on a softball field. Pursuant to the USPS's request, Dr. Jetzer viewed an edited videotape. In a September 1996 letter, Dr. Jetzer, who was a team physician for a professional baseball team, questioned the validity of Jeseritz's past complaints, noting his softball activities were beyond his claimed work capabilities. The doctor was especially troubled that Jeseritz had been operating "a very high force vibrating tool that cuts sod," noting that vibrating tools significantly aggravate wrist problems. Dr. Peterson also viewed the videotape and found it "disconcerting" that Jeseritz was engaging in activities that were inconsistent with his work restrictions. During a November 1996 interview, Jeseritz told inspectors that he played softball only occasionally and with his doctors' approval. However, when told of the investigation and the videotape, Jeseritz admitted that he had played about twenty softball games in the summer of 1996 and did not respond when informed that Dr. Peterson was unaware that he was playing softball.

In April 1997, the USPS issued a notice of proposed removal based on misconduct. The notice stated that Jeseritz had misrepresented his medical condition and failed to maintain work restrictions outside the job, in violation of the USPS rules of conduct. The notice explained that engaging in activities outside medical restrictions could "aggravate [his] condition and unnecessarily increase the cost of [his] disability," noting that Jeseritz had received over $99,800 in workers' compensation payments and was scheduled to continue to receive monthly payments until August 1999.³ Appellee App. at 83. Jeseritz opposed the notice of proposed removal, but the USPS found his explanations unpersuasive and in May 1997 terminated him.

Jeseritz then filed a union grievance, alleging there was no contractual just cause for the removal. In January 1999, an arbitrator found that while Jeseritz had not intentionally misrepresented his condition, because he had engaged in off-duty activities that were beyond his medical restrictions, the USPS had just cause for discipline. However, the arbitrator found that removal was too harsh a penalty and ordered that Jeseritz be reinstated after a sixty-day suspension without pay. Jeseritz returned to the post office, where he is apparently still employed.

Jeseritz also filed an Equal Employment Opportunity (EEO) complaint, alleging a discriminatory discharge and harassment. The claim was denied and Jeseritz appealed to the Merit Systems Protection Board (MSPB), which upheld the denial. Jeseritz then filed the instant complaint in the district court, alleging harassment, accommodation, discharge, and retaliation claims under the Rehabilitation Act. The district court rejected the claims. As to the discharge claim, the court held that the USPS had a non-discriminatory reason for the notice of removal and that Jeseritz had offered no evidence to suggest that the reason was pretextual or that disability played any role in the decision. As to the harassment claim, the district court held that alleged incidents were not so severe or pervasive as to create a hostile work environment. As to the accommodation and retaliation claims, the district court held that Jeseritz offered no evidence in support of the claims. This appeal followed.

Jurisdiction in the district court was proper under 28 U.S.C. § 1331. Jurisdiction in this court is proper under 28 U.S.C. § 1291.

DISCUSSION

We review the district court's grant of summary judgment de novo. After viewing the evidence and all reasonable inferences therefrom in the light most favorable to Jeseritz, we will affirm only if "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In order to establish a genuine issue of material fact, Jeseritz, as the non-moving party, could not "simply rest upon the pleadings." Mathews v. Trilogy Communications, Inc., 143 F.3d 1160, 1164 (8th Cir.1998) (Mathews). Nor could he rely on conclusory statements in his affidavit. See Miller v. Citizens Sec Group, Inc., 116 F.3d 343, 347 (8th Cir.1997) (Miller). Rather, he had to "point to evidence in the record sufficient to raise a genuine issue for trial." Mathews, 143 F.3d at 1164.

As relevant here, the Rehabilitation Act, 29 U.S.C. § 794(a), provides that "[n]o 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 [USPS]." (Emphasis added.) As to his discharge claim, Jeseritz had to offer evidence that he was disabled, otherwise qualified, and was discharged solely because of his disability. See Demming v. Housing & Redev. Auth., 66 F.3d 950, 954 (8th Cir.1995). The USPS does not dispute that Jeseritz is disabled, but argues that he is not otherwise qualified. For purposes of this opinion, we will assume that he is both disabled and otherwise qualified.

We now turn to Jeseritz's argument that he presented evidence to show that the USPS's reasons for the discharge were a pretext for discrimination. See Sherman v. Runyon, 235 F.3d 406, 409 (8th Cir.2000) (Sherman) (holding burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1993) applicable to Rehabilitation Act discrimination claims). In his appellate brief, Jeseritz does not dispute that, as the arbitrator found, the USPS had a right to discipline him based on his off-duty outside activities.⁴ As the USPS argues, although Jeseritz may have "believe[d] that his termination was a sanction disproportionate to the conduct that precipitated it, the degree of discipline was a matter committed to [the USPS's] discretion." Roberts v. Unidynamics Corp., 126 F.3d 1088, 1094 (8th Cir.1997), cert. denied, 523 U.S. 1106, 118 S.Ct. 1676, 140 L.Ed.2d 814 (1998) (Roberts); see also Winkle v. Southwestern Bell Tel. Co., 195 F.3d 418, 420 n. 3 (8th Cir.1999) (holding plaintiff who did not contest misconduct given as reason for termination decision could not show pretext).

Contrary to Jeseritz's argument, this court is not bound by the arbitrator's finding that removal was too harsh a penalty for his misconduct. In rejecting a similar argument, this court has explained, "[i]n an arbitration under the `just cause' provision, ... the employer needs to show not only that it had a nondiscriminatory reason, but also that it was a good reason, not reached in bad faith." Taylor v. Southwestern Bell Tel. Co., 251 F.3d 735, 743 n. 1 (8th Cir.2001). Moreover, "an arbitrator's inquiry could extend beyond that of a court or jury in a discrimination action, to include such a question as whether the employee's punishment was disproportionate." Id. Thus, Jeseritz's reliance on labor relations cases is misplaced.

In contrast, here, so long as the USPS's removal...