UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RACHEL T. OSBORNE, :
:
Plaintiff, :
:
v. : Civil Action No. 08-1979 (JR)
:
DAVID EISNER, CEO, CORPORATION :
FOR NATIONAL AND COMMUNITY :
SERVICE, et al., :
:
Defendants. :
MEMORANDUM
Plaintiff Rachel Osborne alleges that her former
employer, the Corporation for National and Community Service (the
“Agency”), discriminated against her based on a disability, in
violation of the Rehabilitation Act, 29 U.S.C. §§ 701 et seq.,
and that it provided insufficient notice of her termination, in
violation of 42 U.S.C. § 2000e-16. David Eisner, CEO of the
Agency, moves for summary judgment. For the reasons that follow,
the motion will be granted.
Background
The Agency hired Osborne as a purchasing agent in 2005.
Compl. ¶ 9; Resp. 1. On October 16, 2006, she left a voice
message for her supervisor stating that she had been injured in
an automobile accent and would be unable to work. See Ex. F to
Mot. She ceased attending work thereafter. She also began
regularly mailing the Agency “Status Forms” and “Orthopedic
Evaluations” from her physician. See Ex. K to Mot. The “Status
Forms” simply stated that she should not be working, and the
“Orthopedic Evaluations” provided a brief description of her
condition. See id. In all, she mailed the Agency six “Status
Forms” and six “Orthopedic Evaluations” by the end of January.
See id. Over the same time period, the Agency mailed her three
letters, each listing reasons why the documents she had been
submitting were insufficient to show a need for continued medical
leave. See Exs. A-C to Mot.
Osborne abruptly returned to work on February 5, 2007.
Compl. ¶¶ 14-15. She also sent the Agency a letter requesting
until February 20 to submit supplemental medical documentation.
See Ex. D. to Mot. On February 15, Osborne slipped and fell on a
sidewalk and ceased attending work once more. Compl. ¶ 16;
Ex. E. to Mot. Soon after her fall, she again began submitting
regular “Status Forms” and “Orthopedic Evaluations” to the
Agency, similar to those she had submitted previously. See
Ex. K. There is no evidence she submitted any other
documentation of her injuries stemming from either the car
accident or the slip-and-fall.
On March 13, 2007, the Agency sent Osborne two more
letters. One stated that the medical documentation remained
insufficient, and the second proposed that she be suspended for
five days because of her absence. See Exs. E-F to Mot. After
she submitted yet another “Status Note” on March 23, the Agency
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sent her another letter on March 30, again stating that the
doctor’s notes were insufficient and threatening that her
continued absence could lead to her termination. See Ex. G to
Mot. On April 12, the Agency imposed the proposed five-day
suspension. See Ex. H. to Mot. On May 1, the Agency sent a
“Notice of Proposed Removal” to Osborne, stating its intent to
terminate her employment. See Ex. I. to Mot. The proposed
termination was approved on May 22, and the Agency ended her
employment effective June 4. See Ex. J to Mot.
Analysis
I. Rehabilitation Act
Under the Rehabilitation Act, federal agencies are
prohibited from discriminating against qualified individuals
based on disabilities. See 29 U.S.C. § 794(a); Breen v. DOT, 282
F.3d 839, 841 (D.C. Cir. 2002). The standards to determine
whether a federal agency has violated the Rehabilitation Act are
the same as those applied to private employers under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12111, et
seq. See 29 U.S.C. § 794(d); 29 C.F.R. § 1614.203(b). Under the
ADA, a plaintiff seeking to recover for discriminatory
termination must show (1) that she was disabled, (2) that she was
qualified as an employee, and (3) that she suffered an adverse
employment action (here termination) because of her disability.
See Breen, 282 F.3d at 841; Mogenhan v. Chertoff, 577 F. Supp. 2d
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210, 218 (D.D.C. 2008). The Agency contends that Osborne cannot
meet any of these criteria. Because I agree that Osborne cannot
show she is disabled within the statutory definition, I need not
reach the other elements.
A person is disabled under the statute if she has a
“physical or mental impairment that substantially limits one or
more [of her] major life activities.”1 42 U.S.C. § 12102; see
also 29 U.S.C. § 705(20)(B). The impairment must “prevent[] or
severely restrict[]” the individual’s ability to perform the
major life activity at issue and must have a long-term impact.
Toyota, 534 U.S. at 198. To determine whether a plaintiff is
substantially limited in a major life activity, courts must
consider “(I) [t]he nature and severity of the impairment;
(ii) [t]he duration or expected duration of the impairment; and
(iii) [t]he permanent or long term impact, or the expected
permanent or long term impact of or resulting from the
impairment.” Rand v. Geithner, 609 F. Supp. 2d 97, 103 (D.D.C.
2009) (quoting 29 C.F.R. § 1630.2(j)(2)). When working is the
major life activity allegedly impaired, “[t]he term substantially
limits means significantly restricted in the ability to perform
1
The ADA Amendments Act of 2008, Pub. L. No. 110-325,
overturned the Supreme Court’s interpretation of the term
“disability” as expounded in Toyota Mfg., Ky., Inc. v. Williams,
534 U.S. 184 (2002) and Sutton v. United Air Lines, Inc., 527
U.S. 471 (1999). However, the Act became effective on January
2009, and it does not apply retroactively here. See Lytes v.
D.C. Water & Sewer Auth., 572 F.3d 936, 939-42 (D.C. Cir. 2009).
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either a class of jobs or a broad range of jobs in various
classes as compared to the average person having comparable
training, skills and abilities.” 29 C.F.R. § 1630.2(j)(3)(I).
To establish a disability, “[m]erely submitting a
medical diagnosis of an impairment is insufficient to establish
disability status.” Thompson v. Rice, 422 F. Supp. 2d 158, 170
(D.D.C. 2006) (citing Toyota, 534 U.S. at 198). Instead,
plaintiffs must offer “evidence that the extent of the
limitation . . . is substantial” within the meaning of the
statute. Toyota, 334 U.S. at 198.
Osborne has not submitted any documentation of her
alleged disability to the Court beyond that attached to the
Agency’s motion, and the Agency in turn has submitted only the
numerous “Status Forms” and “Orthopedic Evaluations” that Osborne
mailed to them, as well as a Montgomery County Department of
Social Services medical report form. See Ex. K. This
documentation is insufficient to establish a disability as
defined in the ADA. The “Status Forms” merely state ipse dixit
that she should not be working. See Ex. K. The various
“Orthopedic Evaluations” state that she suffered “[c]ervical,
thoracic, and lumbar sprains” and later “[c]ervical and lumbar
strain[s] with tremor” from her car accident and a
“[l]umbrosacral sprain with coccyx contusion and possible occult
fracture” from her slip and fall. Id. The “Orthopedic
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Evaluations” also state that Osborne suffered spasms and pain in
her neck and back. Id. However, none of these documents explain
the duration or severity of her impairment, nor do they describe
how the injuries might impact her ability to work or perform any
other major life functions.
The Montgomery County medical report, submitted on
April 12, 2007, offers a bit more detail.2 See Ex. K. It
mentions that Osborne could not lift more than ten pounds and
that she suffered “moderate” impairment in “activities of daily
living.” Id. It also states that her doctor estimated she was
unable to work from February 15 through June 15, 2007. Id. The
report, however, does not seem to address the period prior to the
slip-and-fall. It also does not explain how her injuries relate
to her ability to work. For instance, there is nothing to link
her inability to lift heavy weights to her job. In fact, while
the form contains three tables designed to show how injuries
affect a person’s ability to work, two of the tables are not
filled in but are instead simply marked “off work.”3 Id.
In sum, Obsborne has not offered a sufficient response
to the Agency’s many requests or its motion. Therefore, she
cannot prove she was disabled within the meaning of the
2
There is no evidence that Osborne ever submitted this form
to the Agency during her employment.
3
On the third table, related to hand functioning, Osborne’s
doctor indicated that she had normal functionality. Id.
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Rehabilitation Act, and summary judgment will be granted against
her claim.
II. Due Process – Notice
The Merit Systems Protection Board (“MSPB”) affirmed
the Agency’s decision to dismiss Osborne. See Ex. L to Mot.
Osborne challenges its ruling that she received sufficient notice
during the termination process. See Resp. 14; see Stone v. FDIC,
179 F.3d 1368, 1375-76 (Fed. Cir. 1999) (stating that a federal
employee’s due process rights include notice of allegations
against her, an explanation of the employer’s evidence, and an
opportunity to respond). Normally, appeal of a MSPB decision
must be filed in the Federal Circuit, but where such an appeal is
mixed with a discrimination claim, it is properly reviewed here.
See Barnes v. Small, 840 F.2d 972, 978-79 (D.C. Cir. 1988). I
must review the administrative record deferentially and may set
aside the MSPB’s determination only if it is “arbitrary or
capricious, obtained without compliance with lawful procedures,
unsupported by substantial evidence or otherwise not in
accordance with law.” Id. at 979 (quoting 5 U.S.C. § 7703(c)).
Osborne’s contention is meritless. As the MSPB found
and as is undisputed, the Agency mailed notice of her proposed
and actual termination to the Laurel, Maryland address she had
provided it for employment-related correspondence. See Ex. L at
23-27. Osborne admits in her response that she received mail at
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the same address a few months prior to her termination. See
Resp. 2-3. The administrative record supports the MSPB’s
decision that Osborne never directed the Agency to send its
correspondence to a different address. See Ex. L. at 26.
Therefore, the notice was sufficient and her due process rights
were not violated.
Conclusion
For the reasons set forth above, summary judgment will
be granted. An appropriate order accompanies this memorandum.
JAMES ROBERTSON
United States District Judge
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