Wishkin v. Potter

Decision Date07 February 2007
Docket NumberNo. 05-4743.,05-4743.
Citation476 F.3d 180
PartiesRichard M. WISHKIN, Appellant v. John E. POTTER, Postmaster General.
CourtU.S. Court of Appeals — Third Circuit

Joyce Ullman (Argued), Philadelphia, PA, for Appellant.

Richard M. Bernstein (Argued), Office of United States Attorney, Philadelphia, PA, for Appellee.

Before SLOVITER, CHAGARES, and GREENBERG, Circuit Judges.

SLOVITER, Circuit Judge.

The issue before us is whether the District Court properly applied the McDonnell Douglas paradigm in granting summary judgment for the defendant/appellee United States Postal Service ("USPS") in the claim brought by plaintiff/appellant Richard Wishkin ("Wishkin") under the Rehabilitation Act of 1973.


Wishkin is a fifty-eight year old mentally disabled man who was hired by the USPS in 1969 under a federal program aimed at employing adults with disabilities. After a three-year trial period, Wishkin became a permanent employee as a mail handler. The only incident on Wishkin's otherwise clean record was a suspension in 1991 for absenteeism, but when it was determined that his absenteeism was caused by a work-related hernia injury that occurred in 1983, he was reinstated with back pay. As a result of that injury, Wishkin is limited to pushing, pulling, or lifting no more than 20 pounds.

In 1998, there was talk in the Post Office that the "bag room," the unit in which Wishkin was employed, might close. Wishkin was concerned that he would then face unemployment. To protect himself from this possibility, on March 3, 1998, Wishkin requested his urologist, Dr. Harvey Yorker, to write a letter recommending that he be considered for permanent disability, ostensibly because of his health problems and limitations. It is undisputed that Dr. Yorker wrote the letter reluctantly, and both Joseph A. Madison, Wishkin's disability counselor, and Dr. Yorker tried to convince Wishkin to wait to deliver the letter to his supervisor until he received official confirmation that the bag room was closing. Despite their warnings, Wishkin delivered the letter to his supervisor, Mary Green, soon after he received it.

On April 22, 1998, Green scheduled a "fitness for duty" examination at the medical office of the Post Office for Wishkin. She also scheduled such an examination for several other employees who worked in the bag room and were similarly disabled. On the fitness for duty examination request form, Green cited Wiskhin's "constant and reoccurring kidney problems, knee problems, chronic pulmonary disease, very slow movements, easy fatigue, and frequent absences," as reasons for the examination. App. at 104a. There is no independent support on the record that these symptoms had intensified during Wishkin's tenure. Dr. Evangelista, the USPS's physician, examined Wishkin as requested from approximately 8:50 A.M. until 11:20 A.M. and then released him to work with documentation that he was "fit for duty" with the same physical restrictions necessitated by Wishkin's past injury. Wishkin then submitted his fitness for duty form to Green.

Wishkin alleges that upon receiving the fitness for duty documentation, Green became angry, telephoned the medical unit, and ordered Wishkin to return to the medical unit for another fitness for duty examination that afternoon. Wishkin arrived at the medical office at 1:10 P.M. and, without seeing a physician, left at 1:15 P.M. with a form declaring him "not fit for duty." App. at 203. The USPS asserts that Dr. Evangelista was unaware of Dr. Yorker's letter when he determined Wishkin to be "fit," and that with new knowledge of the letter and therefore new knowledge of Wishkin's ailments, Dr. Evangelista changed Wishkin's status from "fit" to "unfit," with a recommendation for permanent disability retirement. App. at 119a.

At approximately 3:00 P.M. that afternoon, Green accompanied Wishkin to the Labor Relations office to begin paperwork for disability retirement. Wishkin refused to fill out the papers and stated that he did not wish to retire. Green then instructed Wishkin not to return to work and told him that he was "off the clock."

The Labor Relations representative summoned Wishkin's Union Chief Shop Steward, Gerald Redd. Redd assured Wishkin that under the collective bargaining agreement he could not be forced to sign retirement papers against his will. According to Wishkin, Green then scheduled an appointment for Wishkin to see Kim Shockley, a human resources representative, so that Shockley would inform him what his disability retirement benefits projection might be. On April 29, 1998, Wishkin and Madison, his disability counselor, met with Shockley who presented him with paperwork necessary to file for permanent disability. Wishkin again refused to sign any paperwork related to disability retirement.

After Dr. Evangelista had declared Wishkin unfit for duty, Wishkin was not permitted to return to work at the Post Office. He did not receive disability retirement benefits because he refused to file the necessary paperwork. On May 5, 1998, at Wishkin's behest, Dr. Yorker submitted another letter to USPS regarding Wishkin's condition, but it was limited in its scope and it failed to address all of his medical conditions or his ability to work at the Post Office. After USPS Human Resources Manager Harvey White received the second letter from Dr. Yorker and phone calls from Madison on Wishkin's behalf, White wrote to Wishkin advising that before he could return for duty his physicians must address all of his medical conditions and his status regarding each. On July 27, 1998, Dr. Stanley Essl, Wishkin's family physician, submitted a letter to USPS on Wishkin's behalf, stating that Wishkin is currently "able to return to the same light duty work he has done for many years in the past." App. at 141a.

On March 9, 1999, Wishkin received notification that the health benefits he had been receiving from USPS since he stopped working were to be terminated effective May 7, 1999. On April 13, 1999, Dr. Essl submitted another letter to USPS stating, in more detail than in his previous letter, that Wishkin is able to return to work, with the same physical limitations that were previously required.

Wishkin reported back to work on April 14, 1999 and resumed his responsibilities as a mail handler, working in the bag room until it closed in late 2000. He was then transferred to another department sorting magazines and bulk mail. A cardiac condition forced Wishkin to retire in 2003.

Wishkin filed suit against John E. Potter, Postmaster General of the United States, on August 1, 2003 under Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq., and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., alleging that he was the victim of disability discrimination. Wishkin seeks monetary relief, including back pay, costs, restoration of pension benefits, compensatory and punitive damages, and attorney's fees.

At the close of discovery, USPS moved for summary judgment, which the District Court granted. Wishkin has filed a timely appeal to this court, limited to the allegation of disability discrimination under the Rehabilitation Act.


In granting summary judgment to the defendant, the District Court held that there was insufficient evidence to create a genuine issue of material fact as to whether USPS intentionally discriminated against Wishkin. Under the relevant federal rule, a court may grant summary judgment only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When considering whether there exist genuine issues of material fact, the court is required to examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party's favor. Stewart v. Rutgers, The State Univ., 120 F.3d 426, 431 (3d Cir.1997) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Issues such as intent and credibility are rarely suitable for summary judgment. As the Supreme Court noted in Pullman-Standard v. Swint, 456 U.S. 273, 290, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982), even before Title VII plaintiffs were entitled to a jury determination, discriminatory intent means actual motive, and is a finding of fact to be determined by the factfinder.

A decision on summary judgment requires analysis of both the applicable law and the facts placed on record. The Rehabilitation Act expressly makes the standards set forth in the 1990 Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., applicable to federal employers and to employers receiving federal funding. See 29 U.S.C. § 791(g). As we stated in Shiring v. Runyon, 90 F.3d 827, 830-31 (3d Cir. 1996), the Rehabilitation Act "forbids employers from discriminating against persons with disabilities in matters of hiring, placement, or advancement." To establish a prima facie case of discrimination under the Rehabilitation Act, a plaintiff must initially show, "(1) that he or she has a disability; (2) that he or she is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that he or she was nonetheless terminated or otherwise prevented from performing the job." Id. at 831. The existence of a prima facie case of employment discrimination is a question of law that must be decided by the court but the prima facie test remains flexible and must be tailored to fit the specific context in which it is applied. Sarullo v. United States Postal Serv., 352 F.3d 789, 797-98 (3d Cir.2003) (per curiam).

We have stated that "the ADA, ADEA and Title VII all serve the same...

To continue reading

Request your trial
998 cases
  • Carmelo v. Mickletz (In re Mickletz)
    • United States
    • U.S. Bankruptcy Court — Eastern District of Pennsylvania
    • 28 Enero 2016
    ...is the Debtor's state of mind. "Issues such as intent and credibility are rarely suitable for summary judgment." Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir.2007). However,[w]hile a person's motivation or intent is generally considered to be a question of fact which is not ordinarily subje......
  • McCambridge v. Burwell
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 22 Diciembre 2016
    ...most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party's favor." Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). The court must decide "not whether . . . the evidence unmistakably favors one side or the other but whether a fair-minded......
  • Bryant v. Wilkes-Barre Hosp., Co., CIVIL ACTION NO. 3:14-CV-1062
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • 10 Febrero 2015
    ...in which it is applied." (citing Geraci v. Moody-Tottrup, Int'l, Inc., 82 F.3d 578, 581 (3d Cir.1996))); see also Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir.2007) (the prima facie test must be "tailored to fit the specific context in which it is applied" (quoting Sarullo, 352 F.3d at 797-......
  • Morro v. DGMB Casino LLC, Civil No. 13–cv–5530 (JBS/JS).
    • United States
    • U.S. District Court — District of New Jersey
    • 30 Junio 2015
    ...inferences in that party's favor. Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) ; Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir.2007).A factual dispute is material when it "might affect the outcome of the suit under the governing law," and genuine when "the evi......
  • Request a trial to view additional results
2 books & journal articles
  • Permitting After-Acquired Evidence of Employee Qualifications Perpetuating a McKennon Distinction Without a Difference.
    • United States
    • Suffolk University Law Review Vol. 55 No. 1, January 2022
    • 1 Enero 2022
    ...Sec'y of Veterans Affs., 520 F.3d 31, 40 (1st Cir. 2008) (evaluating Rehabilitation Act claim using McDonnell Douglas); Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007) (applying McDonnell Douglas to Rehabilitation Act claim); Reynolds v. Brock, 815 F.2d 571, 574 (9th Cir. 1987) (requiri......
  • Disability discrimination
    • United States
    • James Publishing Practical Law Books Federal Employment Jury Instructions - Volume I
    • 30 Abril 2014
    ...the Rehabilitation Act are in all important respects identical to those governing a claim under the ADA. See, e.g., Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007) (noting that the standard for discrimination is the same under the ADA, Title VII and the Rehabilitation Act); Bragdon v. A......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT