Filed: Sep. 04, 2013
Latest Update: Mar. 28, 2017
Summary: Case: 13-10876 Date Filed: 09/04/2013 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-10876 Non-Argument Calendar _ D.C. Docket No. 2:11-cv-01756-AKK SHIRLEY HUNTER, Plaintiff - Appellant, versus UNITED STATES POSTAL SERVICE, Defendant - Appellee. _ Appeal from the United States District Court for the Northern District of Alabama _ (September 4, 2013) Before MARCUS, MARTIN and KRAVITCH, Circuit Judges. PER CURIAM: Shirley Hunter, proceeding p
Summary: Case: 13-10876 Date Filed: 09/04/2013 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-10876 Non-Argument Calendar _ D.C. Docket No. 2:11-cv-01756-AKK SHIRLEY HUNTER, Plaintiff - Appellant, versus UNITED STATES POSTAL SERVICE, Defendant - Appellee. _ Appeal from the United States District Court for the Northern District of Alabama _ (September 4, 2013) Before MARCUS, MARTIN and KRAVITCH, Circuit Judges. PER CURIAM: Shirley Hunter, proceeding pr..
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Case: 13-10876 Date Filed: 09/04/2013 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10876
Non-Argument Calendar
________________________
D.C. Docket No. 2:11-cv-01756-AKK
SHIRLEY HUNTER,
Plaintiff - Appellant,
versus
UNITED STATES POSTAL SERVICE,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(September 4, 2013)
Before MARCUS, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Shirley Hunter, proceeding pro se, appeals the district court’s grant of
summary judgment in favor of her former employer, the United States Postal
Case: 13-10876 Date Filed: 09/04/2013 Page: 2 of 8
Service (“USPS”), on her removal and discharge claims under the Rehabilitation
Act, 29 U.S.C. § 794.1 After careful review, we affirm.
I.
In July 2001, Hunter was badly injured in a car accident while delivering
mail on her USPS route in Leeds, Alabama. She suffered a fractured hip and
pelvis, lacerations, and head trauma, and was unable to return to work for some
time. As a result, she received worker’s compensation benefits under the Federal
Employees Compensation Act (“FECA”), 5 U.S.C. §§ 8101-8152, from the
Department of Labor’s Office of Workers’ Compensation Programs (“OWCP”).
FECA compensates partially disabled employees so long as the disability persists,
unless the employee refuses to work after the employer offers a suitable position.
See id. § 8106(a), (c). By December 2001, Hunter had recovered enough to return
to the USPS in a part-time clerk position, supervised by Laura Newby, the Leeds
Postmaster. Her workers’ compensation was reduced accordingly.
In June 2002, Hunter’s physical therapist evaluated her and determined she
was “capable of sustaining light demand level work up to an eight hour day.” This
included lifting up to 20 pounds, frequent sitting, standing, kneeling, climbing
steps, and walking, as well as occasional stooping, repetitive squatting, and
1
The district court also granted summary judgment in favor of the USPS on Hunter’s claim
under the Americans with Disabilities Act (“ADA”). Hunter has expressly abandoned that claim
on appeal.
2
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repetitive trunk rotation. Accordingly, the therapist recommended Hunter return to
work with accommodations for the restrictions he identified. In August, Hunter’s
physician agreed with these findings and concluded that Hunter could return to
work full-time so long as the USPS accounted for her limitations.
In October 2002, Newby extended Hunter a “Limited Duty Job Offer” for a
clerk position working eight hours per day, which Hunter accepted. Meanwhile, a
USPS injury compensation manager worked with Newby to make accommodations
to bring Hunter’s original mail-carrier position within her restrictions. The two
decided such accommodations were practicable and, in June 2003, the USPS
extended Hunter a “Permanent Job Accommodation,” which would return her to
her mail-carrier position but would include accommodations. Hunter refused the
offer, and the OWCP ultimately deemed that offer – as well as a subsequent one
that Hunter also rejected – inadequate because it failed to describe in sufficient
detail the accommodations planned. At that point, the USPS placed Hunter on
administrative leave. Then, in February 2004, Linda Hollis, another USPS
employee who had served as a part-time clerk, was selected to serve as a
permanent clerk. In June 2005, the USPS again offered Hunter permanent
modified employment in her original mail-carrier position. This time, the OWCP
reviewed the offer and deemed it suitable under FECA. Hunter, however, refused
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the offer once again. Because Hunter refused the offer, OWCP held a hearing and
then terminated her FECA benefits. See 5 U.S.C. § 8106(c).
In October 2005, the USPS sent Hunter a notice to report to work. When
Hunter did not report, the USPS sent her a notification of removal from
employment dated December 15, 2005. Hunter contacted the Equal Employment
Opportunity Commission (“EEOC”) on March 17, 2007. Her termination from the
USPS became final on April 12, 2007. Four days later, Hunter submitted a formal
EEO complaint, arguing she was discriminated against based on physical disability
when she was “issued a Notice of Removal for Failure to Maintain a Regular Work
Schedule.” The EEOC issued Hunter a right-to-sue letter on this claim.
Hunter then filed her complaint in the district court, alleging the USPS
discriminated against her in violation of the Rehabilitation Act by (1) “remov[ing]
her from her accommodated position due to her disability” and “award[ing the
position] to a non-disabled comparator,” Linda Hollis; and (2) terminating her due
to her disability. The district court rendered summary judgment on these claims in
favor of the USPS. This is Hunter’s appeal.
II.
We review de novo the district court’s grant of summary judgment.
Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010). Summary
judgment is proper “if the movant shows that there is no genuine dispute as to any
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material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “We draw all factual inferences in a light most favorable to the non-
moving party.” Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008).
“The [Rehabilitation] Act prohibits federal agencies from discriminating in
employment against otherwise qualified individuals with a disability.” Id. at 1344
(internal quotation marks omitted). “The remedies, procedures, and rights of Title
VII are available to plaintiffs filing complaints under the Rehabilitation Act.” Id.
“To establish a prima facie case of discrimination under the [Rehabilitation]
Act, an individual must show that (1) [s]he has a disability; (2) [s]he is otherwise
qualified for the position; and (3) [s]he was subjected to unlawful discrimination as
the result of [her] disability.” Sutton v. Lader, 185 F.3d 1203, 1207 (11th Cir.
1999). Under the Rehabilitation Act, as under Title VII, “federal employees are
required to initiate administrative review of any alleged discriminatory or
retaliatory conduct with the appropriate agency within 45 days of the alleged
discriminatory act,” or, “[w]hen the discriminatory act results in a personnel
action, . . . ‘within 45 days of the effective date of the action.’” Shiver, 549 F.3d at
1344 (quoting 29 C.F.R. § 1614.105(a)(1)). When a plaintiff fails to initiate EEO
contact within this period, her claim is generally barred for failure to exhaust
remedies. Id. And although we apply equitable tolling rules to the deadlines, we
toll them only sparingly, such as when a plaintiff has actively pursued remedies but
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filed a defective timely pleading or when she was induced or tricked by her
employer’s misconduct into allowing the deadline to pass. Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 96 (1990).
III.
Here, the Rehabilitation Act’s administrative exhaustion requirement bars
Hunter’s claim that she was removed from her clerk position and replaced by
Linda Hollis, a non-disabled employee. Hollis took over as a full-time clerk in
February 2004, more than three years before Hunter initiated EEOC contact. And
equitable tolling of the Act’s 45-day time period for contact is not warranted in this
case. There is no evidence in the record that the USPS induced or tricked Hunter
into allowing the deadline to pass or that she otherwise tried to initiate contact. See
Irwin, 498 U.S. at 96. Instead, Hunter relies on the fact that the USPS “sent her
home” when she rejected its June 2003 offer and contends she should not be held
responsible for learning what transpired at the post office while she was away.
Without more, this is insufficient to permit us to toll the 45-day period. See id.
Accordingly, Hunter’s claim that she was removed from her clerk position and
replaced by a non-disabled comparator in violation of the Rehabilitation Act is
barred from review.
Hunter’s other claim — that the USPS terminated her because of her
disability in violation of the Rehabilitation Act — is the only one she exhausted.
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In rendering summary judgment in favor of the USPS, the district court concluded
that Hunter failed to establish a prima facie case of discrimination under the Act
because she could not show she was disabled. We agree.
A person is disabled within the meaning of the Rehabilitation Act if “a
physical or mental impairment . . . substantially limits one or more of the major life
activities” of that person. Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000). 2
Hunter bears the burden of “offering evidence that the extent of the limitation”
caused by the impairment is substantial. Greenberg v. BellSouth Telecomms., Inc.,
498 F.3d 1258, 1264 (11th Cir. 2007) (internal quotation marks omitted). She
contends, with no evidentiary support, that she has substantial impairments in
sleeping, manual tasks, and her general quality of life, including her ability to
garden and care for her grandchildren. These amorphous, unsupported assertions,
however, are exactly the kind we have dismissed as insufficient in similar cases.
See id. (affirming summary judgment when plaintiff put forth no evidence to
support his assertions of disability); see also Rossbach v. City of Miami,
371 F.3d
1354, 1358 (11th Cir. 2004) (holding plaintiffs who claimed their ability to walk,
sit, stand, and sleep was “moderately below average” were not disabled). For this
2
The standard for determining whether a person is disabled under the Rehabilitation Act is the
same as under the ADA. 29 U.S.C. § 791(g). Congress amended that standard in 2008, but all
of the relevant conduct in this case occurred prior to the amendments. We accordingly use the
standards in place before those amendments’ passage.
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reason, the district court correctly rendered summary judgment in favor of the
USPS on Hunter’s claim that she was unlawfully terminated for her disability.
AFFIRMED.
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