Leroy Pinckney v. John E. Potter, (11th Cir. 2006)

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[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 28, 2006

THOMAS K. KAHN

N o . 05-14487

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket No. 03-00295-CV-T-17EAJ

L E R O Y PINCKNEY,

Plaintiff-Appellant,

versus

JOHN E. POTTER, Postmaster General,

United States Postal Service,

Defendant-Appellee.

A p p e al from the United States District Court

fo r the Middle District of Florida

(J u n e 28, 2006)

B efo re ANDERSON, BIRCH and HULL, Circuit Judges.

P E R CURIAM:

P lain tiff Leroy Pinckney appeals the entry of summary judgment in favor of

J o h n Potter, the Postmaster General of the United States Postal Service ("the Postal S erv ice"), on Pinckney's claims of violations of the Rehabilitation Act, 29U.S.C.

§ 701, et seq. Pinckney alleged that the Postal Service unlawfully refused to hire h im because it regarded him as disabled. After review, we reverse.

I. FACTS P in ck n ey, a veteran of the United States Army, was honorably discharged in 1 9 9 0 after he tore a ligament in his knee.1 At the time Pinckney was discharged, th e Department of Veterans Affairs ("VA") assessed that Pinckney was twenty p e r ce n t disabled, meaning that his injuries limited his future earnings by an estim ated twenty percent. Ten percent of this rating was assessed on account of P in c k n e y's knee injury, while the remaining ten percent related to a back injury P in c k n e y sustained in 1980. Because he was injured during active military service, P in ck n ey receives disability payments correlated to the twenty percent impairment r a tin g .

A. D en ia l of Employment B etw een 1990 and 1995, Pinckney worked in the private sector without in cid en t, including as a tractor-trailer operator. In 1995, Pinckney applied to the P o s ta l Service in Tampa, Florida for the position of Mail Handler. Pinckney p a s se d the required postal examination with a high score, and the Postal Service p la ce d him on its job register. Pinckney subsequently passed a drug screening, an in terv iew , and a strength and stamina test.

In October 1995, the Postal Service tentatively selected Pinckney for em p lo ym en t, pending a suitability determination. Due to a Postal Service hiring f re ez e, Pinckney's application was delayed until early 1996, when the Postal S erv ice began hiring again. At that time, the Postal Service asked Pinckney to o b tain medical clearance before he was placed in the Mail Handler position.2 O n April 12, 1996, Pinckney submitted to the Postal Service a letter from D r . Steven Scott at the James A. Haley Veterans' Hospital. Scott's two-sentence le tte r stated summarily that Pinckney was able to perform all functional r eq u ir em e n ts of the Mail Handler position as listed by the Postal Service. Laura H en ley, a Human Resources Specialist for the Postal Service, received Pinckney's su b m issio n and determined that it was insufficient to establish Pinckney's fu n ctio n al capacity. Henley instructed Pinckney that he needed to submit ad d itio n al information, including an independent doctor's evaluation of his f u n c tio n a l capacity from a non-VA doctor.

A f te r receiving Pinckney's reply, on May 7, 1996, Pinckney visited Dr. C a rlo s Lopez at the Tampa Orthopaedic and Sports Medical Center for a preem p lo ym en t evaluation. Dr. Lopez examined Pinckney and reviewed Pinckney's x - r ay s and other medical records. Based on this examination and review, Dr.

L o p e z recommended to the Postal Service that Pinckney "could perform the postal jo b requirements" of the Mail Handler position, including lifting "more than 70 p o u n d s ."3 Dr. Lopez also concluded that Pinckney had good coordination, was h ealin g well, and could "work in any atmosphere" and for "any hours." D r. Lopez remarked, however, that while Pinckney could meet all the fu n ctio n al requirements "well at this time," Pinckney "has a greater than a 50% ch an ce of having severe back problems in the near future and requiring [back] su rg ery." Dr. Lopez also noted that "[Pinckney's] knee might hold well, but also th e chances of osteoarthritis and requiring surgery are greater on him. Obviously h eav y work like lifting, standing, changing positions may be an aggravating f a c to r ." H en ley forwarded Pinckney's medical submissions to Dr. Felix Vicente, a P o stal Service medical officer. Dr. Vicente reviewed Pinckney's submissions and co m p leted a Postal Service form entitled "Medical Examination & Assessment."4 D r. Vicente noted Pinckney's knee and back injuries, and he quoted Dr. Lopez's s ta te m e n ts that Pinckney "has a greater than 50% change of having severe back p ro b lem s in the near future and requiring surgery" and that "heavy work like lif tin g , standing, [and] changing positions may be an aggravating factor." Dr.

V ic en te assessed that Pinckney had a moderate risk of incurring job-related injury o r illness within the next six months.

U p o n reading Dr. Vicente's medical opinion, Henley concluded that P in ck n ey would be unable to perform the duties of the Mail Handler position. In a letter dated May 29, 1996, Henley informed Pinckney that he had "been found m ed ically unsuitable for the position of PTR Mail Handler" and that his "name h a [ d ] been removed from the active register of eligibles." Henley's letter ex p lain ed that "[p]ostal employment in this position or any entry position" would en d an g er Pinckney's health, stating that: A review of your medical records and evaluation by our Medical O fficer indicates that performance of the duties required of a Mail H an d ler would be at significant risk of causing severe back problems th at would require surgery for stabilization. Under these conditions, P o s ta l employment in this position or any entry position would place yo u r personal health and safety in jeopardy. D e fs ' Exh. 9 (emphasis added).

O n June 12, 1996, Pinckney asked the Postal Service to reconsider its d ecisio n . Pinckney asserted that he could perform all the duties of the Mail H a n d le r position and submitted a more detailed letter from his VA physician, Dr.

S c o tt. Dr. Scott attested that he had treated Pinckney for three years and had o b serv ed and examined him frequently. Dr. Scott's letter explained that during his ev alu atio n , Pinckney was able to complete a series of physical tests without d ifficu lty, including lifting weights up to seventy pounds and pushing them for fifteen minutes. Dr. Scott concluded that "based on my observation, and the test th a t were [sic] performed, Mr. Pinckney can perform all of the functional req u irem en ts of the job." Dr. Scott made no reference to any risks posed by P in ck n ey performing the Mail Handler position or any future surgery he was likely to require.

O n June 14, 1996, Henley denied Pinckney's request for reconsideration in a fin al letter. Henley noted that Pinckney's medical records showed that in 1994, P in ck n ey had asked the VA for increased disability benefits, something "unlikely o n e would attempt . . . if there was no deterioration or increase in the symptoms." Henley also explained that Dr. Lopez's opinion carried more weight than Dr.

S co tt's because Dr. Lopez was an orthopedist. Henley reiterated her conclusion th at "performance of entry level duties would aggravate your condition." B. S u b seq u en t Hiring F o llo w in g the Postal Service's final rejection of Pinckney's application, P in ck n ey continued his employment as a tractor-trailer operator for a private firm.

Roughly four years later, in September 2000, Pinckney reapplied for employment w ith the Postal Service, this time as a part-time tractor-trailer operator. The Postal S erv ice again requested that Pinckney provide medical information concerning his k n ee and back conditions.

P in c k n e y visited an orthopedist, who examined Pinckney and evaluated P in ck n ey's medical records. The orthopedist concluded that Pinckney's condition w as stable and that there was no reason he could not perform the duties of the p o s itio n . Shortly thereafter, the Postal Service hired Pinckney as a tractor-trailer o p erato r, a position Pinckney has held without incident since that time.

C. P r o c ed u r a l History I n March 1997 ­ approximately nine months after Pinckney received H en ley's final rejection letter ­ Pinckney contacted an Equal Employment O c cu p a tio n Commission ("EEOC") representative to complain that the Postal S erv ice had discriminated against him. After Pinckney's complaint was initially d ism issed as untimely, Pinckney appealed to the EEOC. The EEOC reversed the d ism issal and remanded Pinckney's complaint to the agency on August 3, 2000.

The EEOC issued a final denial of Pinckney's claim on December 3, 2002.

O n February 20, 2003, Pinckney timely filed this civil suit against John P o tter, the Postmaster General of the U.S. Postal Service, in the Middle District of F lo rid a. Pinckney's complaint sought damages and fees pursuant to Section 505 of th e Rehabilitation Act of 1973, see 29U.S.C. § 794a, for discrimination on the b asis of physical handicap. Pinckney contended that the Postal Service wrongly r eg a r d e d him as disabled and rejected his Mail Handler job application on that u n law fu l basis.

T h e Postal Service moved for summary judgment, and on June 16, 2005, the d istrict court granted that motion. Pinckney timely appealed.

II. DISCUSSION C laim s under the Rehabilitation Act are analyzed under the standards ap p licab le to the Americans with Disabilities Act and as set forth in McDonnell D o u g las Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). See 29U.S.C. § 7 9 4 ( d ) ; see also Holbrook v. City of Alpharetta, 112 F.3d 1522, 1529 (11th Cir. 1 9 9 7 ).5 Under this standard, in order to succeed on his Rehabilitation Act claim, P in c k n e y must first assert a prima facie case of disability discrimination. More sp ecifically, Pinckney must show that "(1) he has a disability; (2) he is otherwise q u a lif ie d for the position; and (3) he was subjected to unlawful discrimination as th e result of his disability." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) ( cita tio n omitted).

A. D is a b ilit y A s noted, as the first prong of a prima facie case, a plaintiff must establish th at he has a disability. Id. "Being regarded as" disabled fits under the R eh ab ilitatio n Act's definition of "disabled." Cash v. Smith, 231 F.3d 1301, 1305 ( 1 1 th Cir. 2000) (citing 42U.S.C. § 12102(2) and 34 C.F.R. § 104.3(j)(1)). Here, P in c k n e y argues that even though he is not actually disabled, he is disabled under th e law because the Postal Service erroneously regarded him as disabled and d iscrim in ated against him because of that erroneously perceived disability.

Where a plaintiff alleges that the defendant regarded him as disabled, he m u st prove more than that the defendant perceived him to be impaired by his m ed ical condition. Specifically, to satisfy this first prong, Pinckney must in tro d u ce evidence that the Postal Service regarded him to be so impaired or d is ab le d that he was substantially limited in his ability to perform a major life activ ity. See Toyota Motor Mfg, Ky., Inc. v. Williams, 534 U.S. 184, 194-95, 122 S .C t. 681, 690 (2002).

In this case, the sole "major life activity" at issue is working. 29 C.F.R. § 1 6 3 0 .2 ( i) . "To be substantially limited in the major life activity of working, an in d iv id u al must be precluded from more than one type of job, even if the job fo re clo se d is the individual's job of choice." Cash, 231 F.3d at 1306. A person's in a b ility to perform a single, particular job does not constitute a substantial lim ita tio n in the major life activity of working. 29 C.F.R. § 1630.2(j)(3)(i); see also Hilburn v. Murata Elec. N. Am., Inc., 181 F.3d 1220, 1227 (11th Cir. 1999).

Rather, "[w]hen the major life activity under consideration is that of working, the statu to ry phrase `substantially limits' requires, at a minimum, that plaintiffs allege th ey are unable to work in a broad class of jobs." Sutton v. United Air Lines, Inc., 5 2 7 U.S. 471 , 491, 119 S.Ct. 2139, 2151 (1999).

T h u s , Pinckney is "disabled" under the Rehabiltation Act if the Postal S erv ice regarded him as substantially limited in his ability to work in a broad class o f jobs. Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1327 n.2 (11th Cir. 1 9 9 8 ). The Postal Service insists that Pinckney has produced no evidence that it r eg a r d e d him as unable to perform a broad class of jobs. The Postal Service c o n te n d s that the evidence presented by Pinckney shows only that the Postal S erv ice regarded Pinckney as unable to perform the specific duties of the 1996 M ail Handler position. In particular, the Postal Service emphasizes that Henley's M a y 29, 1996 letter denied Pinckney's job application on the narrow grounds that "p e r fo r m a n c e of the duties required of a Mail Handler" would place Pinckney "at sig n ifican t risk" of sustaining a severe back injury requiring surgery.

Contrary to the Postal Service's characterization of the evidence, the very le tte r which it quotes can also be read to suggest that the Postal Service viewed P in c k n e y as incapable of performing a much wider range of jobs than merely that o f Mail Handler. Henley's May 29, 1996 letter went on to state that in the Postal S e rv ic e's view, Pinckney's back and knee conditions meant that "[p]ostal em p lo ym en t in [the Mail Handler] position or any entry position would place your p erso n al health and safety in jeopardy." (Emphasis added). Henley reiterated this p o in t in her June 14, 1996 letter to Pinckney, and again in her deposition, when she stated that "[i]t was my understanding . . . that working in this or any of our entrylev el positions" would be prohibited by Pinckney's condition. Henley Dep. at 35 (em p h asis added).

Henley's May 29, 1996 letter and her testimony also suggest that the Postal S e rv ic e maintained a single list of eligible job applicants that is not job-specific. If so , the fact that the Postal Service removed Pinckney's name from its "list of e lig ib le s" tends to support Pinckney's contention that the Postal Service viewed h im as unable to perform the entire range of jobs offered by the Postal Service.

Indeed, Pinckney himself testified that in 1995 and 1996, he actually applied for th r e e or four positions at the Tampa Post Office, but the Postal Service never d e f in itiv e ly reviewed his other applications after he was denied the Mail Handler p o s itio n .6 V ie w in g this evidence in the light most favorable to Pinckney, Pinckney has p resen ted a question of material fact as to whether the Postal Service in 1996 re g ar d ed him as "disabled." In particular, construing the evidence in Pinckney's fav o r, Pinckney has presented a question of material fact as to whether, in 1996, th e Postal Service considered him unable to perform all entry-level positions at the P o stal Service and therefore considered him unable to perform a "broad class of jo b s." Sutton, 527 U.S. at 491, 119 S.Ct. at 2151. The record does not limit the r an g e of entry level positions which the Postal Service apparently believed P in c k n e y unable to perform, nor does it preclude the possibility that the Postal S e rv ic e rejected Pinckney's applications for positions other than Mail Handler b ecau se it regarded him as unable to perform a wider range of duties than the f u n c tio n a l requirements of the Mail Handler position. For that matter, the parties h a v e not defined the functional requirements of the Mail Handler position itself, m ak in g it impossible to determine whether they are requirements applicable to a "b ro ad class of jobs." Accordingly, factual disputes remain as to whether the P o stal Service regarded Pinckney as unable to perform a broad range of jobs and th erefo re regarded Pinckney as disabled.7 B. Q u a lified Individual T h e Postal Service proposes that even if questions of material fact exist as to w h eth er it regarded Pinckney as disabled, we should affirm summary judgment on th e alternative grounds that Pinckney failed to show that he was "otherwise q u a lif ie d for the position." See Ellis, 432 F.3d at 1326. Again, based on the record a t this juncture, we conclude that questions of material fact preclude summary ju d g m en t on these grounds.

A "qualified individual" is an individual who can perform, with or without r ea so n a b le accommodation, the essential functions of the employment position that th e individual held or desires. 42U.S.C. § 12111(8); Davis v. Fla. Power & Light, C o ., 205 F.3d 1301, 1305 (11th Cir. 2000). Thus, if Pinckney is unable to perform (ev en with accommodation) an essential function of the Mail Handler position, he is not a "qualified individual" covered under the Rehabilitation Act, and he has failed to state a prima facie case. Id.8 A n individual is also not a "qualified individual" if, by performing the duties o f a given position, he would pose a "direct threat" to himself. The ADA defines a "d irect threat" as "a significant risk to the health or safety of others that cannot be elim in ated by reasonable accommodation." 42U.S.C. § 12111(3). Regulations h a v e extended the definition of "direct threat" to include threats to the worker h im self. See 29 C.F.R. § 1630.2(r); Chevron U.S.A., Inc. V. Echazabal, 536 U.S.

7 3 , 87, 122 S. Ct. 2045, 2053 (2002) (upholding 29 C.F.R. § 1630.2(r)).

The Postal Service contends that Pinckney would have represented a direct th reat to his own health and safety were he to work in the position of Mail Handler.

The Postal Service points to Dr. Lopez's statement that Pinckney had "a greater th an 50% chance of having severe back problems in the near future and requiring su rg ery" and that "heavy work like lifting, standing, [and] changing positions" m ig h t aggravate his knee. The Postal Service also cites the fact that the VA had fo u n d Pinckney's injuries to impair his earning capacity by 20%.

H o w ev er, there is also medical evidence in the record that Pinckney could p erfo rm the job without representing a direct threat to himself. Both Dr. Lopez and D r. Scott opined that Pinckney was able to perform the functional requirements of th e Mail Handler position, including lifting over seventy pounds. Although Dr.

L o p ez suggested that the job might aggravate Pinckney's knee condition, he did n o t explicitly classify this as a "significant risk" to Pinckney's health or safety, nor d id he suggest that Pinckney should be denied the job. More importantly, Dr. Scott ex p lain ed that he had personally observed Pinckney lifting weights up to seventy p o u n d s and pushing them for fifteen minutes without difficulty, and Dr. Scott m a d e no reference to any potential risks posed by the Mail Handler position. In ad d itio n , the record includes no evidence at all as to whether reasonable a cc o m m o d a tio n s to the Mail Handler position could have alleviated any risks, or at least any substantial risks, posed to Pinckney by working as a Mail Handler.

Viewed in the light most favorable to Pinckney, factual questions remain as to w h eth er he was "a qualified individual" for the Mail Handler position.

III. CONCLUSION In conclusion, we reverse and vacate the district court's order, dated June 16, 2 0 0 5 , granting summary judgment in favor of the Postal Service, and we remand th is case to the district court for further proceedings consistent with this opinion.

V A C A T E D AND REMANDED.

1 Pinckney's torn ligament was successfully repaired surgically.

2 The Postal Service made this request because VA records informed the Postal Service of Pinckney's twenty percent disability status.

3 The district court's summary judgment order states that the duties of the Mail Handler position "include picking up and carrying seventy pound boxes." Although both parties do not dispute this seventy pound lifting requirement, no evidence in the record identifies the complete list of functional requirements of the Mail Handler position.

4 Dr. Vicente's assessment is not in the record before this Court, although apparently it was an exhibit to Henley's deposition. Nonetheless, it does not appear that there is any dispute about the contents of Dr. Vicente's report.

5 We review the district court's grant of summary judgment de novo, viewing all evidence in the light most favorable to Pinckney. Merritt v. Dillard Paper Co., 120 F.3d 1181, 1184 (11th Cir. 1997); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986).

6 The positions mentioned by Pinckney are Mail Handler, Mail Processor, Cleaner/Custodian, and Tractor-Trailer operator. Pinckney Dep. at 58-59.

7 We find unconvincing the district court's reliance on the fact that the Postal Service hired Pinckney as a tractor-trailer operator in 2000. That the Postal Service did not regard Pinckney as disabled in 2000 says nothing about whether different decision-makers at the Postal Service regarded Pinckney as disabled at the time it rejected his application in 1996. This is especially so given that Henley's May 29, 1996 rejection letter referred to Pinckney's incapacity to perform the duties either of the Mail Handler position or of "any entry position."

8 "Essential functions" are defined as the fundamental duties of a job that a disabled employee actually is required to perform. 29 C.F.R. § 1630.2(n)(2)(i).

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