Ross v. Potter

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 13 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

CHARLES E. ROSS,

Plaintiff-Appellant,

v. No. 03-1410
(D.C. No. 02-WY-1123-AJ (BNB))
JOHN E. POTTER, Postmaster (D. Colo.)
General of the United States of
America,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before ANDERSON and BALDOCK , Circuit Judges, and MARTEN , ** District
Judge.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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This order and judgment is not binding precedent, except under the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.
**
The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
 Charles E. Ross appeals from the district court’s order granting the

defendant’s motion for summary judgment on his employment discrimination

complaint. In his complaint, Ross alleged discrimination based on disability,

race, sex, and age; retaliation for filing a charge of discrimination; hostile work

environment; and constructive discharge. 1
We affirm.

We review grants of summary judgment de novo to determine
whether any genuine issue of material fact exists, viewing all
evidence and any reasonable inferences that might be drawn
therefrom in the light most favorable to the non-moving party.
However, the nonmovant must establish, at a minimum, an inference
of the existence of each element essential to the case.

Croy v. Cobe Labs., Inc. , 345 F.3d 1199, 1201 (10th Cir. 2003) (citations and

quotation omitted).

The parties are familiar with the facts. We will summarize them briefly

here, in the light most favorable to Ross. Ross, an African-American, worked for

the United States Postal Service as a mail handler and group leader at its Denver

General Mail Facility (GMF). On October 23, 1998, Ross was involved in an

altercation on the workroom floor with an employee in his group, Robert Marks.

1
Although Ross did not identify the statutory basis for his claims, it seems
clear that the disability claim was brought pursuant to the Vocational
Rehabilitation Act of 1973, 29 U.S.C. §§ 791 and 794(a), and the remaining
claims were brought under Title VII of the Civil Rights Acts of 1964, 42 U.S.C.
§§ 2000e-2000e-17, and the Age Discrimination in Employment Act, 29 U.S.C.
§§ 621-634.

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Ross asserts that this altercation exacerbated his post-traumatic stress disorder

(PTSD), caused him to be hospitalized, and made it impossible for him to

continue to work in the vicinity of Marks.

The postal service disciplined both Ross and Marks as a result of the

incident. Ross eventually obtained a reversal of all discipline through a Merit

Systems Protection Board (MSPB) appeal. Although Marks was disciplined, he

maintained his bid position at the GMF. Ross’s psychiatrist subsequently

restricted him from working around Marks. The only medical restriction Ross’s

doctors placed on his ability to do his job was that he could not work around

Marks.

The Postal Service attempted to deal with Ross’s inability to work around

Marks in several ways. It first advised Ross to request a light duty assignment

away from Marks. He did so, on May 25, 1999. Ross worked at the Air Mail

Center, near the Denver International Airport, for three months. This assignment

ended when Ross’s psychiatrist cleared him to return to work without restrictions.

Ross thereafter attempted to return to work in his bid position, on

September 1, 1999. When he arrived at the GMF facility, however, he provided

management with a letter indicating that he felt that Marks was a threat to himself

and to others at the facility. Ross’s supervisor advised him that while he could

place Ross in another unit to separate him from Marks, he could not guarantee

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that Ross would have no contact with Marks in common areas of the facility.

Ross completed a report stating that his workplace was unsafe because of Marks,

and was then escorted out of the facility.

On September 13, 1999, Ross again attempted to return to work at the GMF

facility. He complains that the Postal Service assigned him to work on a loading

dock, forbade him to go onto the workroom floor, where he might encounter

Marks, and restricted his access to some common areas like restrooms and break

rooms. This prevented him from performing his group leader duties. Ross

remained at this position for a few days, then was re-hospitalized for stress.

On January 31, 2000, the Postal Service offered Ross a permanent

rehabilitation job as a modified mail handler at the Priority Mail Center in

Aurora, Colorado. He worked there only a week because his medications left him

unable to drive, he could not walk long distances, and the commute was too

difficult.

On March 21, 2000, Ross applied for disability retirement, which the Postal

Service denied. On September 13, 2000, he applied for regular retirement, which

was granted effective September 30, 2000. This complaint followed.

Ross challenges the entry of summary judgment on his disability, race, age,

and retaliation claims. The district court concluded that Ross had failed to

establish that he had a disability within the meaning of the Rehabilitation Act.

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Nor was he “regarded as disabled.” Moreover, the district court concluded, the

Postal Service made reasonable efforts to accommodate his inability to work

around Marks.

The district court further determined that Ross had failed to establish a

prima facie case of either racial or age discrimination, and that he had abandoned

his claim of reverse sex discrimination. With regard to his retaliation claim, the

district court found that Ross failed to show that the Postal Service’s

non-retaliatory reasons for its actions, that they were attempting to accommodate

Ross’s inability to work around Marks, was a pretext for retaliation against Ross.

Finally, the district court determined that Ross’s constructive discharge claim

failed because he did not establish that conditions in his workplace were such that

a reasonable person would have felt he had no choice but to resign.

On appeal, Ross contends that genuine issues of material fact remain as to

his disability, race, age, retaliation, hostile work environment, and constructive

discharge claims, and that the district court committed legal error in granting

summary judgment. Upon careful consideration of the briefs, the record, and the

applicable law, in light of the applicable standard of review, we discern no

reversible error presented in this case. Accordingly, the case is AFFIRMED, for

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substantially the same reasons stated in the district court’s order granting

summary judgment, filed August 14, 2003.

Entered for the Court

Bobby R. Baldock
Circuit Judge

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