F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 26 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOSEPH VIDACAK, SR.,
Plaintiff-Appellant,
v. No. 02-7158
(D.C. No. 02-CV-120-S)
JACK POTTER, as Postmaster (E.D. Okla.)
General of the United States Postal
Service,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TYMKOVICH , HOLLOWAY , and ANDERSON , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff appeals the district court’s entry of summary judgment in favor of
defendant, the Postmaster General of the United States Postal Service (USPS), on
plaintiff’s disability discrimination claims. Because plaintiff has not shown that
he was an individual with a disability when the events challenged in this appeal
occurred, we affirm.
Plaintiff worked for the USPS from sometime in 1983 until December
1998. In the fall of 1997, plaintiff was diagnosed with inflammatory arthritis,
which caused him to miss work for an extended period of time. When he
returned, he continued to work full time from 5:00 a.m. to 1:30 p.m. as a
timekeeper.
In May 1998, the USPS abolished plaintiff’s timekeeper position and
allocated the duties to other employees, reassigning plaintiff to a night shift
position—boxing and casing mail from 2:00 a.m. until 10:30 a.m. Because he had
difficulty sleeping during the day, plaintiff’s arthritis flared up during the two
night shifts he attempted to complete. On May 27, 1998, plaintiff provided a note
from his doctor stating that he should not work before 5:00 a.m. and that he
should have two consecutive days off. The USPS changed plaintiff’s hours to
5:00 a.m. until 10:30 a.m., which did not permit him to work a full day. Plaintiff
was required to make up the remaining hours through use of his sick leave and
annual leave.
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In June 1998, plaintiff filed an administrative appeal with the Merit
Systems Protection Board. Plaintiff challenged his May 1998 reassignment as
both a placement on enforced leave and a constructive suspension, alleging that
his reassignment constituted discrimination on the basis of a disability. The
Board dismissed his appeal in March 1999 for lack of jurisdiction. See Supp.
App. at 5-15.
Plaintiff also brought a union grievance in June 1998, claiming that the
elimination of his timekeeper position violated the collective bargaining
agreement between USPS and postal workers. The labor arbitrator who
eventually received the grievance ruled that the timekeeper position should not
have been abolished and awarded plaintiff back pay for the hours he would have
worked at the timekeeper position until his date of retirement in 1999. See Aplt’s
App. at 106-07.
In September 1998, the USPS reassigned plaintiff to a position requiring
him to operate a sorting machine from midnight until 8:30 a.m. Because of his
medical restrictions, plaintiff worked only from 5:00 a.m. to 8:30 a.m. and made
up the remaining hours by using his leave. In December 1998, on the advice of
his physician and psychiatrist, plaintiff ceased work. He applied for and received
a disability retirement in February 1999.
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In October 1999, plaintiff filed an Equal Employment Opportunity
complaint, alleging that the USPS’s failure to accommodate him in June 1998
constituted discrimination on the basis of his disability. See Supp. App. at 16-18.
Plaintiff’s EEOC complaint did not raise a retaliation claim. Id. In January 2000,
the EEOC issued plaintiff a right to sue letter. In March 2002, plaintiff brought
this employment discrimination and retaliation action against the USPS pursuant
to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e through
§ 2000e-17, and the Rehabilitation Act of 1973, 29 U.S.C. § 791 and § 794a. He
also sought damages for violation of his civil rights under 42 U.S.C. § 1981 and
§ 1983. In November 2002, the district court granted summary judgment in favor
of defendant on all claims. The court found (1) that plaintiff was not disabled at
the time of his reassignment because he was not substantially limited in his ability
to work and (2) that plaintiff’s retaliation claim failed because his previous
grievance rested on a violation of the collective bargaining agreement rather than
disability discrimination.
On appeal, plaintiff argues only that the evidence raises a factual dispute
regarding whether he had a disability entitling him to accommodation by the
USPS. We review the grant of summary judgment de novo , applying the same
standard as that used by the district court. Woodman v. Runyon , 132 F.3d 1330,
1337 (10th Cir. 1997). Summary judgment is appropriate only if “there is no
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genuine issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c).
As a USPS employee, § 501 of the Rehabilitation Act is the exclusive
remedy for plaintiff’s claim of disability discrimination. See 29 U.S.C. § 791;
Johnson v. United States Postal Serv. , 861 F.2d 1475, 1477 (10th Cir. 1988). A
plaintiff makes out a prima facie case of disability discrimination under the
Rehabilitation Act by showing that (1) he is a disabled person within the meaning
of the Act, (2) he is otherwise qualified for the job, and (3) he was discriminated
against because of his disability. Wells v. Shalala , 228 F.3d 1137, 1144 (10th Cir.
2000); Woodman , 132 F.3d at 1338. Because the Rehabilitation Act incorporates
the standards from the Americans with Disabilities Act of 1990, see 29 U.S.C.
§ 791(g), decisions under both Acts apply interchangeably to our analysis. See
Woodman , 132 F.3d at 1339 n.8.
In his brief, plaintiff argues that he was diagnosed with inflammatory
arthritis in 1997 and that at the time of his 2001 deposition the arthritis
significantly limited his abilities to walk, sleep, eat, dress, bathe, get in and out of
bed, and go to the restroom. See Aplt. Br. at 8. He argues that this evidence
raised a factual dispute regarding whether he was disabled. However, our inquiry
is whether plaintiff had a disability when he asked for accommodation in 1998,
not whether he has since become disabled. Cf. Sutton v. United Air Lines, Inc. ,
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527 U.S. 471, 482-83 (1999) (explaining that a person requesting accommodation
must be substantially limited by a disability at the time of the request; mere
diagnosis is not enough). In 1998, the only medical restrictions plaintiff
communicated to the USPS were that he could not work before 5:00 a.m. and that
he required two consecutive days off.
We conclude the district court did not err in ruling that plaintiff failed to
raise a triable issue regarding whether he was disabled when he asked the USPS
for accommodation in 1998. The major life activity plaintiff identified as
substantially limited was his ability to work. For a plaintiff to show that his
ability to work is substantially limited, he must show that his condition precluded
him from performing a class of jobs or a broad range of jobs. See Sutton , 527
U.S. at 491. “The inability to perform a single, particular job does not constitute
a substantial limitation in the major life activity of working.” 29 C.F.R.
§ 1630.2(j)(3)(i).
Here, plaintiff’s restrictions—that he could not work at night and required
two consecutive days off—did not preclude him from performing most jobs. See
Sutton , 527 U.S. at 492 (“[I]f a host of different types of jobs are available, one is
not precluded from a broad range of jobs.”). Other circuits have reached this
conclusion when considering similar situations. See Colwell v. Suffolk County
Police Dep’t , 158 F.3d 635, 644-45 (2nd Cir. 1998) (holding that police officer
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who was restricted to a regular schedule of indoor daytime shifts was not
substantially limited in the major life activity of working); Kellogg v. Union Pac.
R.R. Co. , 233 F.3d 1083, 1087-88 (8th Cir. 2000) (affirming summary judgment
because employee who could not work more than forty hours per week was not
substantially limited in his ability to work); Baulos v. Roadway Express, Inc. , 139
F.3d 1147, 1151-53 (7th Cir. 1998) (holding that truck drivers whose sleep
disorders precluded them from performing sleeper duty did not possess a
substantial limitation on their ability to work and thus were not disabled).
Because plaintiff’s medical condition did not preclude him from working a
wide range of jobs when he requested USPS accommodation of his inability to
work nights, he was not disabled and therefore was not entitled to such an
accommodation. In light of our conclusion that plaintiff was not disabled, we
need not address the district court’s other bases for granting summary judgment in
favor of the USPS.
The judgment of the district court is AFFIRMED.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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