ADA Decisions Archive: 1992 - 1995, DISABILITIES-DECISIONS 1 ADD ¶1-126, Maria Y. James, Plaintiff v. Marvin T. Runyon, Postmaster General, United States Postal Service, Defendant., (Dec. 07, 1992), (Dec. 7, 1992)

Maria Y. James, Plaintiff v. Marvin T. Runyon, Postmaster General, United States Postal Service, Defendant.

United States District Court for the Eastern District of Pennsylvania. No. 92-2262, December 7, 1992

Rehabilitation Act of 1973

Disability status--Internal condition--Allergies/sensitivities. Mail distribution clerk’s hypersensitivity to insect bites, specifically paper mites, was not “handicap” within meaning of Rehabilitation Act. Although employee’s condition prevented her from working in areas containing paper and dust, condition didn’t limit employee’s ability to care for herself, perform manual tasks, walk, see, hear, speak, or breathe. Moreover, condition didn’t prevent employee from learning or working in any position other than as mail distribution clerk. Consequently, employee’s discriminatory discharge claim under Rehabilitation Act was dismissed as matter of law.

Lanier E. Williams, Philadelphia, Pennsylvania, for Plaintiff.

Charles F. Kappler, Robert L. Sawicki, Maura A. Johnston (U.S. Postal Service), Philadelphia, Pennsylvania, for Defendant.

Joyner, J.: By way of the motion now pending before the Court, the Defendant postmaster general asks that summary judgment be entered in his favor and against the Plaintiff with respect to her complaint which seeks compensatory damages and attorney’s fees as the result of Plaintiff’s allegedly improper termination from her postal service employment. For the reasons enumerated below, the motion is granted and final judgment in no amount is hereby entered in favor of the Defendant.

[Factual Background]

According to the allegations contained in the parties’ pleadings, this action arose on August 7, 1990 when the Defendant gave Maria James notice that her employment was being terminated due to her alleged failure to meet the physical requirements of her job. [1] As of that date, the Plaintiff had been employed by the U.S. Postal Service for nearly four years as a mail distribution clerk and Multi-Position Letter Sorter Machine operator at its facility at 30th and Market Streets in Philadelphia, Pennsylvania. On April 6, 1990, the Plaintiff suffered multiple insect bites to various parts of her body while working at the Philadelphia postal facility, which caused her to seek medical attention at the Postal Service Facility’s medical department. Following an examination by the post office medical officer, Ms. James’ insect bites were found to be occupational in nature and she was referred to V.C. Graves, M.D., a dermatologist for further evaluation and treatment. The Plaintiff first saw Dr. Graves on April 19, 1990; a skin biopsy was taken and Ms. James was diagnosed as suffering from a severe adverse reaction and hypersensitivity to the insect bites and Dr. Graves directed her to refrain from working entirely to enable her condition to settle down. [2] She was eventually permitted to return to light duty work on April 30, 1990 in areas where she would not be exposed to paper and dust.

On June 11, 1990, Ms. James underwent a fitness for duty examination with Dr. Evangelista, the postal service medical officer. After reviewing the biopsy report and a letter from Dr. Graves, Dr. Evangelista concluded that the Plaintiff had a sensitivity to dust and insect bites. Based in large part upon the findings of Drs. Graves and Evangelista, the postal service determined that Ms. James was not physically able to perform the job for which she had been hired and she was therefore issued the Notice of Removal on August 7, 1990.

The Plaintiff, who was at all times relevant to this case a member of the American Postal Workers Union, AFL-CIO and therefore subject to the union’s collective bargaining agreement with the U.S. Postal Service, then applied for disability/worker’s compensation benefits through the Office of Worker’s Compensation Programs. The claim was subsequently accepted by the OWCP as an occupational disease claim and Ms. James was paid wage loss benefits for the period covering July 12, 1990 to May 2, 1992. In addition, Ms. James began pursuing her remedies for administrative relief in August, 1990 by filing a request for EEO counseling. At the conclusion of counseling in December, 1990, she filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that the Postal Service had discriminated against her by terminating her employment on the basis of her physical handicap (hypersensitivity to insect bites). The matter was ultimately heard by Administrative Law Judge Arthur M. Colby on December 23, 1991 and, on December 30, 1991, Judge Colby issued his decision finding no evidence of discrimination on the basis of physical handicap. [3] On March 26, 1992, the Postal Service issued its final decision affirming and adopting Judge Colby’s findings and determination and notifying the Plaintiff of her right to sue. Plain tiff thereafter filed her complaint commencing the instant lawsuit on April 17, 1992 under the Rehabilitation Act of 1973, 29 U.S.C. S701, et. seq. alleging that the Defendant discriminated against her on the basis of her physical handicap in that instead of accommodating her by taking adequate steps to ensure that she could perform her job in a reasonably insect free environment or by transferring her to another job which provided her with reasonably limited exposure to insects, it terminated her employment.

In support of the motion which is now before the Court, the Defendant argues that he is entitled to the entry of judgment in his favor as a matter of law because the Plaintiff simply cannot make out even a prima facie case of handicap discrimination with regard to her removal.

[Summary Judgment]

The principles to be applied in resolving summary judgment motions are firmly established in Fed.R.Civ.P. 56(c), which states, in pertinent part, that “the judgment sought shall be rendered forthwith 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...” It is in this manner that a motion for summary judgment mandates that the courts look beyond the bare allegations of the pleadings to determine if they have sufficient factual support to warrant their consideration at trial. Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287 (D.C. Cir. 1988), cert. denied, 488 U.S. 825, 109 S.Ct. 75, 102 L.Ed.2d 51 (1988). See Also: Aries Realty, Inc. v. AGS Columbia Associates, 751 F. Supp. 444 (S.D. N.Y. 1990).

Generally speaking, the party seeking summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In considering a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party and all reasonable inferences from the facts must be drawn in favor of that party as well. United States v. Kensington Hospital, 760 F.Supp. 1120 (E.D. Pa. 1991); Schillachi v. Flying Dutchman Motorcycle Club, 751 F.Supp. 1169 (E.D. Pa. 1990). Summary judgment may not be granted, though, if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed. Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368 (3rd Cir. 1991); Santiago v. Temple University [54 EPD ¶40,217], 739 F.Supp. 974 (E.D. Pa. 1990).

This does not mean, however, that a non-movant may rest upon the allegations contained in his or her pleadings in defense of a summary judgment motion. See. e.g.: Allen v. Denver Public School Board, [56 EPD ¶40,654] 928 F.2d 978 (10th Cir. 1991). To the contrary, Fed.R.Civ.P. 56(e) reads:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate shall be entered against the adverse party.

Clearly then, in the face of a properly-supported motion, the non-movant must also produce evidence and delineate specific facts demonstrating that there is a genuine issue for trial. See: Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

[Rehabilitation Act of 1973]

In this case, the Defendant is accused of violating Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §794. That section provides, in relevant part:

§794. Nondiscrimination under federal grants and programs; promulgation of rules and regulations

(a) Promulgation of rules and regulations

No otherwise qualified individual with handicaps in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal Financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service....

(b) “Program or activity” defined

For the purpose of this section, the term “program or activity” means all of the operations of--

(1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; ....

In light of the fact that the handicap discrimination laws only protect “qualified handicapped persons”, it is axiomatic that in order to make out a case under section 504 of the Rehabilitation Act, 29 U.S.C. §794, a plaintiff must prove (1) that he or she is a “handicapped individual” under the Act; (2) that she is “otherwise qualified” for the position sought; (3) that she was excluded from the position sought solely by reason of her handicap, and (4) that the program or activity in question receives federal financial assistance or is an activity or program conducted by an Executive agency or the U.S. Postal Service. Strathie v. Department of Transportation [32 EPD ¶33,808], 716 F.2d 227, 230 (3rd Cir. 1983); Santiago v. Temple University, supra, 739 F.Supp. at 979; Perez v. Philadelphia Housing Authority, 677 F. Supp. 357, 359 (E.D. Pa. 1987). The threshold question then, is to determine whether the Plaintiff is a “handicapped individual” as defined by the statute, a question best answered by a case-by-case determination. Forrisi v. Bowen [40 EPD ¶36,307], 794 F.2d 931, 933 (4th Cir. 1986); Jasany v. United States Postal Service [36 EPD ¶35,070], 755 F.2d 1244, 1248 (6th Cir. 1985).

A handicapped person, for purposes of the relevant portions of the Rehabilitation Act means any one “who has a physical or mental impairment which substantially limits one or more of such person’s major life activities, has a record of such an impairment or is regarded as having such an impairment.” 29 C.F.R. §1613.702(a); 29 U.S.C. 5706(8)(B). “Major life activities” are defined in 29 C.F.R. §1613.702(c) as “functions, such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” To have a “record of such an impairment” is to have “a history of or been classified (or misclassified) as having a mental or physical impairment that substantially limits one or more major life activities.” 29 C.F.R. §1613.702(d). Finally, to be “regarded as having such an impairment” means that one “(1) has a physical or mental impairment that does not substantially limit major life activities but is treated by an employer as constituting such a limitation; (2) has a physical or mental impairment that substantially limits major life activities only as a result of the attitude of an employer toward such impairment; (3) or has none of the impairments [defined in §1613.702(b)] but is treated by an employer as having such an impairment.” 29 C.F.R. §1613.702(e).

Also relevant to the inquiry into whether or not a particular plaintiff is handicapped within the meaning of the Act are the number and type of jobs from which the impaired individual is disqualified, the geographical area to which the individual has reasonable access and the individual’s job expectations and training. Forrisi v. Bowen, supra, 794 F.2d at 933, citing Jasany v. United States Postal Service, also supra, at 1249.

Once the plaintiff establishes a prima facie case of handicap discrimination by proving each of the foregoing elements, the burden of producing credible evidence shifts to the employer to show that the challenged criteria are job related and required by business necessity and that reasonable accommodation is not possible. If the plaintiff fails to establish a prima facie case, it is unnecessary to address the question of reasonable accommodation. Id., at 1259-1250; Sisson v. Helms [35 EPD ¶34,918], 751 F.2d 991, 993 (9th Cir. 1985); Daubert v. United States Postal Service [34 EPD ¶34,356], 733 F.2d 1367, 1369-1370 (10th Cir. 1984); Pushkin v. Regents of University of Colorado [26 EPD ¶32,096], 658 F.2d 1372, 1387 (10th Cir. 1981).

Finally, if the employer presents credible evidence that the physical requirements are job related and that reasonable accommodation is not possible or practicable or would place an undue burden on the employer, the burden of proof again shifts back to the plaintiff to present persuasive evidence that other selection criteria without a similar discriminating effect would also serve the employer’s legitimate interests in efficient and trustworthy workmanship and that accommodation may in fact reasonably be made. Sisson v. Helms, supra, at 993; Strathie v. Department of Transportation, supra, at 230. See Also: Prewitt v. United States Postal Service [27 EPD ¶32,251], 662 F.2d 292 (5th Cir. 1981).

In viewing the instant action in the context of all of the above-referenced principles, we first find that the plaintiff has not met her obligation to produce evidence and specific facts such as would tend to show that there is a genuine issue for trial. Although Plaintiff did file a reply to Defendent’s motion, that reply merely asserted that she was unable to formulate a specific response thereto because she had not yet received answers to the Interrogatories and a Request for Production of Documents which she had forwarded to Defendant on October 16, 1992. Obviously, this Court does not find this to be a sufficient response to the pending motion, particularly in light of the fact that a scheduling order was entered in this matter on July 15, 1992 directing the completion of all discovery by November 16, 1992.

[Handicapped Status]

The inadequacy of Ms. James’ response notwithstanding, in viewing the record evidence produced by the Postal Service in the light most favorable to Plaintiff, we remain unable to discern the existence of a genuine issue as to any material fact concerning Plaintiff’s handicapped status and can thus reach no other conclusion but that Defendant is entitled to the entry of judgment in his favor as a matter of law on this issue. To be sure, the nature of Ms. James’ purported handicap is a hypersensitive adverse reaction to insect bites, specifically paper mites. As a result of these reactions, she has been advised to refrain from working in areas containing paper and dust. However, throughout the Plaintiff’s testimony before the Administrative Law Judge, she never stated or indicated that she was at all limited as a result of this condition in caring for herself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning or working in any position other than as a mail distribution clerk with the post office. There is likewise nothing in the record to suggest that the postal service in any way considered or treated the Plaintiff as having a physical or mental impairment which substantially limited one or more of her major life activities. [4]

In addition, according to her own testimony, the Plaintiff has a bachelor’s degree from St. Joseph’s University in Business Administration and has had some additional training in the fields of sales, accounting and purchasing. She is currently employed part-time as a market research interviewer in Philadelphia. (See Exhibit “E” to Defendant’s Summary Judgment Motion pp. 10-11); Plaintiff’s response to Defendant’s Interrogatory No. 9). Based upon all of the foregoing then, this Court concludes that the existing record in this case clearly establishes that Ms. James is not a handicapped person within the meaning of Section 504 of the Rehabilitation Act and thus no liability can be imputed against the Defendant for her removal from her postal service employment. [5] Inasmuch as there is insufficient evidence to make out a prima facie case of handicap discrimination, we see no need to address the question of whether reasonable accommodation of the Plaintiff’s condition was possible or should have been made by the postal service. Defendant’s summary judgment motion is therefore granted by virtue of the attached order.

¹	Plaintiff’s actual termination date, according to the August 7, 1990 notice, was thirty days from the date on which she received her removal notice.
²	Although Plaintiff did return to work on April 25, 1990 at a manual letter case, she quit after some 51/2 hours because her biopsy sutures were irritating her and because the case was dirty and hadn’t been inspected by a safety and health inspector pursuant to her request.
³	Although Plaintiff’s initial EEOC complaint also alleged that she had been improperly terminated on the basis of age and reprisal (for a prior, unrelated EEO complaint) in addition to physical handicap, Ms. James evidently dropped her age and reprisal discrimination claims before the matter was presented to the Administrative Law Judge.
⁴	On the contrary, as the testimony of Una Aytch and Frances Miller, Plaintiff’s former supervisors and Dianne Milkewicz, a post office injury compensation specialist before ALJ Colby clearly indicates, the postal service expressly did not consider or treat Maria James to be a handicapped person. (See: Exhibit “E” to Defendant’s Motion for Summary Judgment, pp. 73-76, 124-126).
⁵	It should be noted that the Court has treated and considered the transcript of the December 23, 1991 hearing before the Administrative Law Judge in the same manner as though it was a deposition.