THOMPSON, Circuit Judge.
Plaintiff-appellant Marilyn McDonough ("McDonough") appeals the district court's grant of summary judgment in favor of her
McDonough began working for the United States Postal Service ("Postal Service") as a letter carrier at the Haverhill, Massachusetts post office in September of 1980.
Despite her back injury, McDonough was nonetheless able to get up and about. She could walk, sit, and stand for up to one hour continuously or up to four hours intermittently. In fact, she acknowledged that the walking required to deliver the mail was good for her health. She could also lift ten pounds continuously or twenty pounds intermittently, though she was "not nit picky" about how much weight she could lift or even "really thought about" it much. McDonough drove herself to work everyday—approximately forty-five minutes each way. She was able to go up and down the stairs in her two-story house and she did not need help getting herself ready each morning. Her back injury also did not keep her from being able to do typical, everyday housework—she was able to vacuum, do laundry, load the dishwasher, mow, bake, and garden. For exercise, she liked to walk to a nearby lake and go to a local gym a couple of times a week for water walking therapy.
While at work, McDonough had access to a stool so she could rest her knee while sorting through the mail. She was also given a cart to carry her mail, instead of the customary requirement of using a satchel. Additionally, she only had to carry part of her mail load in her cart—the rest was delivered by a co-worker to a locked "relay box" for McDonough to pick up along her route. From what we can tell, all was well between McDonough and her employer until one fateful day in January of 2004.
Because McDonough was receiving worker's compensation, she needed to have regular medical examinations. On July 23, 2003, she was examined by Dr. Leonard Popowitz, a physician retained by the Postal Service. According to Dr. Popowitz's report, McDonough could work "four to five hours a day." In response to this new information, the Haverhill Postmaster, Richard Pace ("Pace"), prepared an "Offer of Modified Assignment (Limited Duty)" proposing that McDonough work up to five hours a day, instead of four. On January 30, 2004, Pace discussed the offer with McDonough. According to McDonough, though he never blocked the door. Pace nevertheless tried to bully her into signing the offer by not allowing her to leave his
Approximately a year later, McDonough contacted the Equal Employment Opportunity Commission ("EEOC") and spoke to an Equal Employment Opportunity ("EEO") counselor to report the incident with Pace and the modified job offer. On July 19, 2005, the EEO counselor sent McDonough a notice giving her the right to file an administrative complaint. She did so, alleging five instances of disability based harassment constituting a hostile work environment. After receiving a seven-day paper suspension
In November of 2005, the EEO investigator notified McDonough that his investigation was complete. He gave her a copy of the report
Thereafter, on December 22, 2008, McDonough filed suit in federal district court against the Postmaster General of the United States, John E. Potter, in his official capacity as the most senior manager of the Postal Service.
The parties agreed to proceed before a magistrate judge. On September 15, 2010, after discovery was completed, the Postmaster General filed a motion for summary judgment. In her opposition to summary judgment, McDonough abandoned all of her claims except for the harassment and retaliation claims under the Rehabilitation Act.
Oral argument was heard on March 30, 2011 and the next day, the judge entered
"We review a district court's grant of summary judgment de novo." Ahern v. Shinseki, 629 F.3d 49, 53 (1st Cir.2010) (citation omitted). In so doing, the record is construed "in the light most favorable to the non-movant and [we] resolv[e] all reasonable inferences in that party's favor." Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir.2008). Nonetheless, "[w]e may ignore conclusory allegations, improbable inferences, and unsupported speculation." Id. (internal quotation marks omitted). "We will affirm only if the record reveals `no genuine issue as to any material fact' and `the movant is entitled to judgment as a matter of law.'" Vineberg v. Bissonnette, 548 F.3d 50, 55 (1st Cir.2008) (quoting Fed.R.Civ.P. 56(c)).
Pursuant to the Rehabilitation Act, "`[n]o otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, . . . be subjected to discrimination under any program or activity . . . conducted by . . . the United States Postal Service.'" Rolland v. Potter, 492 F.3d 45, 47 (1st Cir.2007) (quoting 29 U.S.C. § 794(a)). McDonough argues "that she was subjected to a hostile work environment due to her disability."
In order to succeed on her hostile work environment claim McDonough must show the following: (1) she was disabled as defined under the Rehabilitation Act, (2) she was subjected to uninvited harassment, (3) her employer's conduct was based on her disability, (4) the conduct was so severe or pervasive that it altered the conditions of her work and created an abusive work environment, and (5) the harassment was objectively and subjectively offensive.
"[A]n `individual with a disability' [is defined] as `any person who . . . has a physical or mental impairment which substantially limits one or more of such person's major life activities' or `has a record of such impairment' or `is regarded as having such an impairment.'"
McDonough argues that she actually has an impairment—back and neck pain—that substantially limits five major life activities: working, walking, standing, sitting, and lifting. We think the record before us is devoid of any evidence supporting this contention.
First, McDonough has not pointed us to any evidence to establish that she was substantially limited in the major life activity of working. "Working can be considered a major life activity." Ramos-Echevarría, 659 F.3d at 188. Nonetheless, despite her back and neck pain, McDonough was able to do her job satisfactorily with the accommodations provided by the Postal Service, specifically, a four-hour work day, a stool to rest her knee on while she sorted the mail, and a cart instead of a satchel to help her deliver the mail. See, e.g., Whitlock v. Mac-Gray, Inc., 345 F.3d 44, 46 (1st Cir.2003) (holding that plaintiff could not show that he was disabled because he conceded that he could do his job despite his impairment); see also Mays v. Principi, 301 F.3d 866, 869 (7th Cir.2002) ("The number of Americans restricted by back problems to light work is legion. They are not disabled.").
Likewise, McDonough has failed to produce evidence to show that she was substantially limited in the major life activity of walking. Walking is considered a major life activity. See 29 C.F.R. § 1630.2(i) (2011). However, it is undisputed that McDonough could walk continuously for one hour a day and intermittently for four hours a day. Moreover, McDonough spent two hours a day delivering mail, walking fifteen to twenty minutes non-stop. She also walked up and down the stairs in her home. For exercise, she would walk to a nearby lake and she even went to the gym a couple of times each week to take part in a water walking therapy class. As a matter of law, this evidence does not support McDonough's disability claim. See, e.g., Neal v. Kraft Foods Global, Inc., 379 Fed.Appx. 632, 634 (9th Cir.2010) (holding that evidence that plaintiff could walk only four hours a day was insufficient, as a matter of law, to prove that she was disabled); see also Turner v. The Saloon, Ltd., 595 F.3d 679, 689 (7th Cir.2010) (stating that "walking
Neither has McDonough produced evidence to support her contention that she was substantially limited in her ability to stand.
Likewise, though McDonough claims that she was substantially limited in her ability to sit, the record suggests otherwise.
This brings us to the final major life activity that McDonough claims to be substantially limited in—lifting. Unfortunately for McDonough, this final argument fares no better than the other four. According to her own doctor's restrictions, McDonough could lift ten pounds continuously and twenty pounds intermittently. In addition, she concedes that even with this lifting restriction she "never really thought about" how much she could lift. This court has "specifically addressed the issue of lifting limitations and held that limitations on lifting, without more, are not a substantial limitation on a major life activity." Prescott, 538 F.3d at 44 (citing Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 22 (1st Cir.2002) ("[I]f a restriction on heavy lifting were considered a substantial limitation on a major life activity, then the ranks of the disabled would swell to include infants, the elderly, the weak, and the out-of-shape.")).
In sum, and taking the evidence in the light most favorable to McDonough, she has not proven disability in that she has failed to show that her impairment caused her to be substantially limited in any major life activity.
Alternatively, McDonough claims disability alleging that her employer regarded her as disabled. "The regarded as prong of the [Rehabilitation Act] exists to cover those cases in which myths, fears, and stereotypes affect the employer's treatment of an individual." Ruiz Rivera v. Phizer Pharm., LLC, 521 F.3d 76, 82 (1st Cir.2008) (internal quotation marks
McDonough argues that the Postal Service regarded her as disabled because she received worker's compensation benefits and worked four-hour days.
Pursuant to the Federal Employees Compensation Act ("FECA"), 5 U.S.C. §§ 8101-8193, a federal worker's compensation program is available for employees who suffer from a "disability" stemming from an on-the-job injury. Under FECA, "disability" is defined as "incapacity, because of an employment injury, to earn the wages the employee was receiving at the time of the injury." 20 C.F.R. § 10.5(f). We have acknowledged that this definition of disability—for worker's compensation benefits purposes—is much less exacting than the definition of "disability" under the Rehabilitation Act. See Rolland, 492 F.3d at 47-8. Thus, the fact alone that McDonough was receiving worker's compensation benefits does not prove that her employer regarded her as disabled.
Similarly, McDonough's four-hour work day fails to prove that the Postal Service regarded her as disabled. Instead, it supports the conclusion that the Postal Service found that despite her neck and back impairment, McDonough could do her job with the accommodations provided—reduced work day, a stool to rest her knee while sorting the mail, and a cart to carry her mail, instead of a satchel. In fact, the record indicates that the Postal Service thought McDonough could do more, (i.e., work up to five hours a day), not less, despite her impairment. When all is said and done, the record before us establishes that McDonough was able to do her job; she was merely limited in her ability to do it full-time. Consequently, McDonough has failed to show that the Postal Service regarded her as disabled.
This brings us to the end of our discussion. Because the first step in any claim under the Rehabilitation Act is establishing a disability covered by the Act and McDonough has failed to show that she
For the reasons stated above, we affirm the district court's grant of summary judgment for the defendant.