UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1323
SAFIA COBEY,
Plaintiff - Appellant,
v.
PETE GEREN, Secretary of the Army,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:08-cv-00406-LO-JFA)
Argued: January 27, 2011 Decided: April 19, 2011
Before GREGORY and AGEE, Circuit Judges, and Irene C. BERGER,
United States District Judge for the Southern District of West
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Donna Renee Williams Rucker, GEBHARDT & ASSOCIATES, LLP,
Washington, D.C., for Appellant. Monika L. Moore, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Frazer Walton, Jr., LAW OFFICE OF FRAZER WALTON, JR.,
Washington, D.C., for Appellant. Neil H. MacBride, United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Safia Cobey appeals the district court’s order granting
summary judgment in favor of Pete Geren in this employment
discrimination action brought under the Rehabilitation Act of
1973. 29 U.S.C. § 701. Cobey asserts that she is an individual
with a disability under the Act and that Geren, her employer,
failed to accommodate her disability.
I.
Summary judgment is appropriate under Federal Rule of Civil
Procedure 56(c) if no genuine issue of material fact exists and
the movant is entitled to judgment as a matter of law. Anderson
v. Liberty Lobby, 477 U.S. 242, 247 (1986). This Court reviews
the district court’s grant of summary judgment de novo.
Monumental Paving & Excavating Manufacturer’s Ass’n Ins. Co.,
176 F.3d 794, 797 (4th Cir. 1999). A genuine issue of material
fact exists when there is a factual dispute that might affect
the outcome of the case and a reasonable factfinder could find
in favor of the nonmoving party. Anderson, 477 U.S. at 248.
Inasmuch as the evidence contained in the record is insufficient
to create a genuine issue of material fact, we affirm the
district court’s judgment.
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II.
Cobey was employed as a fabric worker in the Directorate of
Public Works and Logistics, Services Division, Central Issue
Facility (CIF) at Fort Myer, Virginia. As a fabric worker, her
duties included performing alterations and repairs on military
uniforms. The physical demands of this position included
standing at work tables, stooping, bending, kneeling and sitting
for long periods to sew.
On March 14, 2006, she suffered what she describes as an
“on-the-job injury” and went to the emergency room. She returned
to work on March 16, 2006, and presented a note from her
treating physician, Dr. Cho, to her immediate supervisor, Ms.
Hernandez. The note is hand-written and difficult to read. It
appears to list some limitations and it states, “Length of
limitations: 3 weeks, till reevaluated by me or other
physician.” Cobey was placed on “light duty status” within four
(4) days to a week of her return to work.
On March 22, 2006, she had an appointment regarding her
back pain with Dr. Ramler, of Family Practice Woodbridge Clinic.
Her records indicate that she was “released w/o limitations.” On
April 5, 2006, Cobey was involved in a car accident and injured
her back. She saw Dr. Doroski, a chiropractor, for that injury.
Dr. Doroski’s records indicate that Cobey reported that she did
not have any symptoms of her previous work injury before the car
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accident occurred and that her prognosis for recovery was
favorable. When she returned to work on April 19, 2006, she
presented a medical form to Ms. Hernandez detailing her
limitations. This form stated that Cobey’s “Duration of Total
Disability” was from April 6, 2006, to April 18, 2006. There is
some dispute in the record as to whether Dr. Doroski intended
April 18, 2006, to be the actual ending date for the Plaintiff’s
limitations. However, a plain reading of the form indicates
that the limitations were temporary in nature. Cobey asserts
that Ms. Hernandez refused to accommodate her limitations.
On April 21, 2006, Cobey called an ambulance from her job
site and was transported to the hospital. She did not return to
work after this day. One month later she began treatment for her
back injury with an orthopedist. She filed a formal EEO
complaint with the Department of the Army and was denied relief.
She appealed this denial by filing her federal complaint.
III.
Under the Act, an “individual with a disability,” or
handicap, is defined as one who (i) has a physical or mental
impairment which substantially limits one or more of such
person's major life activities; (ii) has a record of such an
impairment; or (iii) is regarded as having such an impairment.
29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102(2)(A); see Pollard v.
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High’s of Baltimore, Inc., 281 F.3d 462, 467. In determining
whether an impairment substantially limits a major life
activity, the court may consider the “nature and severity of the
impairment,” the “duration or expected duration of the
impairment,” and the “permanent or long term impact” of the
impairment. 29 C.F.R. § 1630.2(j)(2); see Pollard, 281 F.3d at
467-68 (“An impairment simply cannot be a substantial limitation
on a major life activity if it is expected to improve in a
relatively short period of time.”)
The district court found that the record demonstrates that
Cobey’s injuries were temporary and that her employer had no
reason to believe she suffered from a permanent disability. The
district court further found that the restrictions noted by Dr.
Doroski did not rise to the level of substantial limitation.
IV.
Cobey contends that she meets both (i) and (iii) of the
Act’s definition of a person with a disability because she has
established that she has a substantially limiting impairment and
because her supervisors were aware that her condition limited
her life activities such as standing for a long time, lifting
anything above her shoulders and bending at the waist. The
evidence in this case demonstrates that Cobey did have some
limitations to these normal life activities as a result of her
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on the job injury and accident, but there is nothing in the
record to suggest that her limitations were other than short-
term. The records from her doctors give positive prognoses for
recovery, release her from care or note her improvement. When
Dr. Doroski treated her for the car accident, he noted that her
symptoms from her previous work injury had disappeared, and
indicated the temporary nature of her current injury. Six weeks
after her accident Dr. Doroski reported that she ranked her pain
as one out of ten, with ten being unbearable pain. Thus, the
record shows that Cobey did not have an impairment with a
permanent or long-term impact.
Additionally, Cobey has not established that her
supervisors perceived her as having such an impairment. The
doctors’ notes presented to her supervisor contained end dates
for her limitations. Despite her employer’s stated efforts to
give Cobey light work, they had no reason to believe she had a
substantially limiting impairment of a permanent or long-term
nature.
V.
There is no genuine issue of material fact as to whether
Cobey meets the Act’s definition of disability. None of her
medical records, including the few relied on by her employer,
establish that her injuries were more than temporary. Because
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there is no disability under the Act, Cobey has not met the
threshold requirement for bringing her claim. Accordingly, we
affirm the district court’s order granting summary judgment in
favor of Geren.
AFFIRMED
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