Opinion
CAUSE NO. 98C7239
December 12, 2000
MEMORANDUM AND OPINION
I. INTRODUCTION
Plaintiff Mary Horrell, a former federal postal worker, brings this action against William H. Henderson in his capacity as Postmaster General of the United States Postal Service. Horrell alleges that the defendant discriminated against her on the basis of her gender and disability, thereby violating the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, a seq. In response, the defendant argues that the record presents no issue of material fact regarding these claims and, therefore, requests summary judgment. The parties have fully briefed the issues and this case is now ripe for ruling. For the reasons stated herein, the defendant's Motion for Summary Judgment is GRANTED.
II. BACKGROUND
Mary Horrell began working as a substitute rural route carrier ("RRC") at the Warrenville, Illinois Post Office in 1982, and was promoted to full-time RRC in 1986. During this period, Horrell did not experience discrimination based on her gender or any disability. Mrs. Horrell's problems began on December 21, 1987, when she slipped on some ice while delivering the mail. As a result of this slip Horrell injured her back, experiencing pain from the shoulders to the tailbone. This injury caused her to miss work until March of 1988, when she returned to full duty without medical restrictions. After her return, Horrell periodically experienced numbness in her right arm and had an intermittent tendency to drop items that she might be carrying. Then, while delivering mail on March 23, 1989, Horrell's right arm began to shake uncontrollably and she experienced a shortness of breath. Subsequent to this event, Horrell experienced a wide range of problems with her right side, making it difficult to lift items using her right arm. It is this injury that Horrell contends "disabled" her.
Horrell characterizes the 1989 episode of uncontrollable arm-shaking as a recurrence of the initial 1987 back injury. Based upon this theory, Horrell filed a claim for workers' compensation benefits under the Federal Employees Compensation Act ("FECA claim"). On July 24, 1989, the office of the Workers Compensation Program ("OWCP") disallowed this claim because it found the evidence did not establish a causal relationship between her two injuries. Horrell appealed this decision.
During the period of her appeal, Horrell repeatedly asked the Officer in Charge ("OIC") of the Warrenville Post Office to allow her to return to work at less than full capacity. On August 7, 1989, the OIC denied Horrell's first request stating that, because her FECA claim had been denied, her options were limited to returning to full duty, taking disability retirement, or resigning. The OIC subsequently denied Horrell's requests to return to work in a light or limited capacity on five separate occasions from September 15, 1989 through November 30, 1989. In addition to repeating the limited options available to Horrell, the OIC informed Horrell that no light or limited capacity positions were available at the Warrenville facility.
The OWCP denied Horrell FECA claim appeal on January 18, 1990, but she requested a reconsideration of this decision. While the appeal of her appeal was pending, Horrell again sought limited or light duty assignment at the Warrenville Post Office. In response, the OIC restated that no such positions were available.
On March 2, 1990, the Warrenville Postmaster made a special request to the North Aurora Postmaster and obtained permission to offer Horrell a temporary limited duty job considerate of her medical restrictions. Horrell accepted this job, pending the outcome of her second appeal. During this period, Horrell engaged in physical therapy and rehabilitative exercise for her back and shoulder injuries. These efforts improved her condition to the point where she regained substantial strength and range of motion by late 1990.
The OWCP denied Horrell's request for reconsideration of her initial appeal on March 28, 1991. Horrell requested yet a third appeal.
On May 3, 1991, the Superintendent of Postal Operations at Warrenville terminated Horrell's limited duty status at the North Aurora facility. This termination was based on the OWCP's denial of Horrell's most recent appeal and the National Rural Letter Carriers Association's labor agreement with the Postal Service that proscribed light duty for RRC's. The action placed Horrell in a leave without pay status. The Superintendent then issued Horrell a notice of removal ("NOR") on May 18, 1991 based on her physical inability to perform the duties of an RRC. Pursuant to a grievance that Horrell filed with her union, this NOR was held in abeyance pending the final adjudication of her FECA claim appeal.
Horrell submitted a written request to return to work on August 26, 1993. Her request included medical limitations established in a pre-placement physical examination. This noted the medical need for a right-side-drive vehicle and a four-inch platform to stand on while sorting mail. On September 17, 1993, the Manager of Post Office Operations denied Horrell's request. The stated reasons for this denial were that Horrell's FECA claim had not yet been fully adjudicated and the normal duties of an RRC were outside the scope of her medical restrictions. Horrell subsequently requested EEO counseling on June 30, 1994 to discuss the possibility of filing a disability discrimination claim against the Postal Service.
On January 17, 1995. the Department of Labor resolved Horrell's FECA claim by extending her workers' compensation benefits from March 23, 1989 to December 31, 1991. This settlement formally acknowledged that Horrell's injury in December of 1987 was work-related, and further concluded that the resulting impairment was, or should have been, resolved by December 31, 1991. Thus, the decision indicated that any health problems subsequent to 1991 were unrelated to her 1987 back injury or the recurrence of that injury in 1989. Because this decision effectively ended her FECA claim, Horrell requested a return to work as a RRC on February 7, 1995. Although it is not clear from the record what the final disposition of this request was, one may assume that it did not go well, as Horrell eventually filed a formal EEO complaint alleging disability discrimination on March 26, 1995.
III. SUMMARY JUDGMENT STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment shall be granted "if 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Bragg v. Navistar Int'l Transp. Corp., 164 F.3d 373, 376 (7th Cir. 1998). The initial burden is on the moving party to demonstrate the absence of a genuine issue of material fact such that judgment as a mater of law should be granted in the movant's favor. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Larimer v. Dayton Hudson Corp., 137 F.3d 497, 500 (7th Cir. 1998). A question of material fact is one that will be outcome determinative of an issue in the case and is decided by the substantive law that controls the case. Anderson, 477 U.S. at 248. Once the moving party has met the initial burden, the opposing party must "set forth specific facts showing that there is a genuine [material] issue for trial." Id. It is crucial that, in so doing, the nonmoving party not rest on its pleadings, Weicherding v. Riegel, 160 F.3d 1139, 1142 (7th Cir. 1998), and proffer more than bare conclusory allegations in its affidavits. Smith v. Shawnee Libraiy Sys., 60 F.3d 317, 320 (7th Cir. 1995).
When deciding a motion for summary judgment, this Court must consider the evidence in the light most favorable to the nonmoving party and resolve all inferences in the nonmoving party's favor. Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 511 (7th Cir. 1996). In employment discrimination cases, the summary judgment standard is applied with added rigor. Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993). However, "neither the mere existence of some factual dispute between the parties, nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment." Lewis v. Simmons Airlines, Inc., 16 F. Supp.2d 978, 981 (C.D. Ill. 1998). This Court considers the defendant's motion in light of the above standard.
IV. ANALYSIS A. The Plaintiffs Rehabilitation Act Claims
The plaintiff argues that the defendant discriminated against her because she is disabled. As a former federal employee, the plaintiff is protected from disability discrimination by the Rehabilitation Act of 1973. 29 U.S.C. § 701, et seq. The Rehabilitation Act is considered the substantive equivalent to the Americans with Disabilities Act ("ADA") and the case law under each is equally applicable to the other. Pacourek v. Inland Steel Co., 916 F. Supp. 797, 803 (N.D. Ill. 1996). Further, the Rehabilitation Act incorporates procedural requirements found in Title VII of the Civil Rights Act of 1964 and is interpreted consistent with that act. See 42 U.S.C. § 749a(a)(1); DeLuca v. Winer Indus., 53 F.3d 793, 797 (7th Cir. 1995).
1. A question of material fact remains regarding the plaintiffs administrative remedies
The defendant's first claim is that the plaintiffs Rehabilitation Act charges are untimely and, therefore, should be dismissed. Specifically, the defendant argues that, because Horrell did not contact an EEO counselor until June 30, 1994, all alleged discriminatory conduct prior to May 16, 1994 is time barred. If true, this time bar would excise the bulk of the plaintiffs claim. In response, the plaintiff contends that her supervisors at the Warrenville Post Office told her that it was improper to file an EEO claim while her FECA claim was pending. As such, the plaintiff suggests that the tardiness of her Rehabilitation Act claims should be excused because she was prevented by "circumstances beyond her control" from contacting the EEO counselor. See 29 C.F.R. § 1614.105 (a)(2).
Under the Rehabilitation Act's procedural provisions, federal employees must notify an EEO counselor of any discriminatory conduct within 45 days of its occurrence. 29 C.F.R. § 1614.105 (a)(1). This requirement is interpreted as a statute of limitations and not as a jurisdictional prerequisite. Johnson v. Runyon, 47 F.3d 911, 917 (7th Cir. 1995). However, the regulation does allow for an extension of the 45 day time limit if the plaintiff shows that "despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits." 29 C.F.R. § 1614.105 (a)(2). Although the burden is on the plaintiff to demonstrate that an exception is warranted, the analysis "must be governed by the principle that the Rehabilitation Act is a remedial legislation that must be construed liberally to effectuate its purposes." See Johnson, 47 F.3d at 917 (noting that the 45 day statute of limitations must be construed liberally to be considered reasonable).
Here, the plaintiff was under the impression that filing an EEO claim was not allowed pending the outcome of her FECA claim appeal. More specifically, Horrell "implied" to her supervisor a desire to file a discrimination charge with an EEO counselor and "interpreted" the response to indicate that such a course of action was proscribed. Pl.'s Dep. at 153-55. Whether this interpretation was reasonable, such that the plaintiff was prevented from seeking EEO counseling, presents a genuine issue of material fact. Accordingly, the defendant's Motion for Summary Judgment on the basis of plaintiff's claims being time barred is DENIED.
For the reasons set out below, this denial of summary judgment based on the time bar issue is moot as this Court grants the defendant's Motion for Summary Judgment on other grounds.
2. The plaintiff is not disabled under the Rehabilitation Act
The defendant argues that the plaintiff is not disabled or regarded as disabled as those terms are defined in the Rehabilitation Act ("the Act"). The plaintiff responds by restating her initial argument that she is disabled and, therefore, deserves consideration under the Act.In an employment discrimination claim such as this, the plaintiff bears the burden of establishing the existence of her disability. Weiler v. Household Fin. Corp., 101 F.3d 519, 524 (7th Cir. 1996). The plaintiff may accomplish this task either directly or indirectly. DeLuca, 53 F.3d at 797. Under the direct method, the plaintiff must introduce sufficient evidence to raise a genuine issue of material fact that the defendant's actions were discriminatory. Here, the plaintiff has not offered any direct evidence of discrimination. As a result, the plaintiff must rely upon the indirect burden-shifting method outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).
The McDonnell Douglas burden-shifting method requires that the plaintiff first make out a prima facie case of discrimination. To establish a prima facie case under the Rehabilitation Act, the plaintiff must show that: 1) she is disabled within the meaning of the Act; 2) she is otherwise qualified for the position held; 3) she has been excluded from the position solely because of her disability; and 4) the defendant is a recipient of federal funds. Knapp v. Northwestern Univ., 101 F.3d 473, 478 (7th Cir. 1996). Once the plaintiff establishes all four elements, the burden shifts to the defendant, who must then articulate a legitimate, non-discriminatory, reason for the allegedly discriminatory action. DeLuca, 53 F.3d at 797. If the defendant meets this burden, the plaintiff must then prove that the non-discriminatory reason provided is merely a pretext for the discrimination. Id.
Horrell must first establish that she is disabled as defined by the Act. The Rehabilitation Act defines the term "disabled" to include any person who 1) has a physical impairment which substantially limits one or more major life activities; 2) has a record of such impairment; or, 3) is regarded as having such an impairment. See 29 U.S.C. § 706 (8)(B). Horrell's argument falls into the first category.
Major life activities are defined as "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1613.702 (d). In the context of the major life activity of working, a "substantially limiting" impairment is one that renders an individual unable to perform a broad class of tasks, rather than a specific job. See Sanchez v. Henderson, 188 F.3d 740, 744 (7th Cir. 1999), cert. denied, 120 S.Ct. 1201 (2000); Skorup v. Modern Door Corp., 153 F.3d 512, 515 (7th Cir. 1998) (stating that "it is nearly axiomatic in this Circuit that it is not enough [to prove a disability] for plaintiff to show that [her] impairment prevented [her] from performing one narrow job for one employer"). It is important to consider that "not every physical or mental impairment `counts' for [Rehabilitation Act] purposes, because most disabilities from which people suffer . . . do not have a substantial enough effect on their major life activities." Dalton v. Subaru-Izuzu Auto Inc., 141 F.3d 667, 675 (7th Cir. 1998). Here, Horrell is unable to demonstrate that her injury satisfies this threshold definitional requirement.
The plaintiffs own testimony establishes that her impairment does not substantially limit her ability to work. Horrell allegedly became disabled when she aggravated a prior back injury in 1989. As a result of this re-injury, Horrell was unable perform a variety of manual tasks including handling goods, lifting her young child, and vacuuming. Pl.'s Dep. at 136-38. Indeed, for a period following the injury, Horrell had difficulty signing her name. Pl.'s Dep. at 137-38. However, Horrell's condition improved significantly with physical therapy and, eventually, "it got better in 1990." Pl.'s Dep. at 140. At present, the only limitation that Horrell experiences is an inability to perform "any overhead function[s]." Pl.'s Dep. at 139. This limitation does not present a substantial limitation of the major life activity of working, as required by the Act.
To determine whether an injury is substantially limiting, the critical issue is the extent to which the impairment restricts a major life activity. Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir. 1995). In particular, the impairment must be severe. Id. In the context of work, the impairment must be severe enough to restrict the individual's ability to perform an entire class of jobs. DePaoli v. Abbott Lab., 140 F.3d 668, 672 (7th Cir. 1998).
Horrell does not argue that her back injury precludes her from performing the duties of a Postal Service employee generally. If she did, this contention would likely prove too much, and Horrell "might well founder on the qualifications requirement [of the Act]." Sanchez, 88 F.3d at 745 n. 2 (quoting Duncan v. Wisconsin Dept. of Health and Family Servs., 166 F.3d 930, 934 (7th Cir. 1999)). Instead, the plaintiffs testimony indicates that she was both able and willing to perform other tasks at the Postal Service. Pl.'s Dep. at 89-96. Therefore, Horrell was not substantially limited in the major life activity of working. See Sanchez, 88 F.3d at 745 (noting plaintiffs inability to resume the sole job of letter carrying is not a substantial impairment).
The plaintiff's deposition, and the record as a whole, further establishes that the defendant did not regard the defendant as disabled.
Horrell's recent work history provides additional support for this conclusion. Subsequent to leaving the Postal Service, Horrell found employment at a job that required extensive physical activity. For example, she routinely climbed onto rail cars, walked up to 10 miles a day, and carried a 2 pound computer in her hand. Pl.'s Dep. at 125-32. This Court may properly consider whether the plaintiff has enjoyed other employment in determining whether an impairment substantially limits the major life activity of working. Byrne v. Board of Educ., 979 F.2d 560, 565 (7th Cir. 1992). The nature of Horrell's recent employment indicates that her impairment was episodic and has generated only minor limitations on her ability to work. See Hamm v. Runyon, 51 F.3d 721, 725 (7th Cir. 1995) (episodic impairments do not rise to the level of disability); Johnson v. Brown, No. 93-C3489, 1998 U.S. Dist. LEXIS 3612, at *20 (N.D. Ill. March 19, 1998) (noting that the Rehabilitation Act does not cover temporary injuries). Because Horrell is not disabled or regarded as disabled under the Act, she has failed to meet her burden of establishing a prima facie case of disability discrimination. Accordingly, the defendant's Motion for Summary Judgment on this issue is GRANTED.
3. The plaintiff was not discriminated against based on any disability
The defendant contends that, even if Horrell is found to be disabled, he did not discriminate against her on the basis of this disability. The plaintiff counter-argues that her deposition, and that of her co-worker, establishes that the defendant discriminated against her due to her disability. Since this Court has already found that the plaintiff is not disabled, the defendant's Motion for Summary Judgment on this issue is moot and, therefore, DENIED.
B. Plaintiffs Title VII Claims
The plaintiff next alleges that the defendant discriminated against her on the basis of her gender, a violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000, et. seq. In response, the defendant notes that Horrell failed to include gender discrimination in her EEO complaint. Due to this procedural deficiency, the defendant requests that the plaintiffs Title VII claim be dismissed
As a general rule, "a Title VII plaintiff cannot bring claims in a lawsuit that were not included in her EEOC charge." Cheek v. Western S. LWe Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). This rule, while not jurisdictional, is a condition precedent with which Title VII plaintiffs must comply. See id. Nonetheless, a claim not included in the EEOC complaint may be incorporated into an action if: 1) "there is a reasonable relationship between the allegations in the charge and the claims in the complaint"; and 2) "the claim in the complaint can reasonably be expected to grow out of an EEOC investigation of the allegations in the charge." Id. (citing Jenkins v. Blue Cross. Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976)). Two claims are not reasonably related unless there is a factual relationship between them. Cheek, 31 F.3d at 501.
Horrell's gender discrimination claim, absent from her EEO complaint, is not reasonably related to her disability discrimination claim. The plaintiffs alleged disability is entirely distinct from her gender; men and women alike experience back pain. No factual nexus exists between the two allegedly discriminatory practices. Further, there is no indication in the record that the plaintiff intended the EEO counselor to investigate a claim of gender discrimination. See id. at 502 (noting that allegations not included in an EEO complaint may be considered if the charging party intended the agency to investigate the allegations). Indeed, nowhere in the plaintiffs deposition does she indicate, or even imply, that she was the subject of gender discrimination. This Court agrees with the defendant that the plaintiffs gender discrimination claim seems to be included in her complaint as little more than a wistful afterthought. Therefore, the defendant's Motion for Summary Judgment in regard to the plaintiffs Title VII gender discrimination claim is GRANTED.
V. CONCLUSION
Horrell has failed to present any evidence that would establish she is disabled as required by the Rehabilitation Act. She instead claims only a short-lived back injury that improved greatly within a year, and currently presents her with but a single disadvantage: she has some difficulty reaching over her head to lift items. This impairment, while unfortunate, does not rise to the level of a disability. Her gender discrimination claim, in addition to being procedurally deficient, is without foundation given the record before this Court. As a consequence, the defendant's Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.