United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 19, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
Summary Calendar
No. 04-40190
FERNANDO CALDERON
Plaintiff - Appellant
v.
JOHN E POTTER, Postmaster General; WILLIAM J HENDERSON,
Postmaster General
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
No. C-02-CV-512
Before KING, Chief Judge, and WIENER and GARZA, Circuit Judges.
PER CURIAM:*
Fernando Calderon filed this suit for disability
discrimination and retaliation against the Postmaster General
after his employer, the United States Postal Service, refused for
a period of time to permit him to return to work as a letter
carrier because of injuries to his arms. Calderon now alleges
that the district court erred when it granted summary judgment
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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for the defendant on his disability discrimination and
retaliation claims. For the following reasons, we AFFIRM the
judgment of the district court.
I. Factual And Procedural Background
Fernando Calderon has worked for the United States Postal
Service (“USPS”) for over twenty-five years, most of the time as
a letter carrier. In June 1998, Calderon’s physician, Dr.
Charles Breckenridge, diagnosed him as suffering from repetitive
motion injuries to his shoulders and elbows, specifically
bilateral elbow lateral epicondylitis and impingement syndrome
with early arthritis and tendinitis. Accordingly, in May 1999,
Calderon had the first of four surgeries for these injuries.
Prior to surgery, he filed a Notice of Occupational Disease with
the USPS to receive workers’ compensation coverage for his
injuries. Following each surgery, he took leave from work for
several weeks to recover.
After Calderon’s first surgery, he returned to his job with
the USPS as a letter carrier. Subsequently, the USPS accepted
his occupational disease claim. However, on July 20, 2000, Dr.
Robert Jones, a physician working for the USPS, examined Calderon
and found that he was unfit to work as a letter carrier as a
result of his shoulder and elbow condition. Accordingly,
Calderon was reassigned to non-carrier duties.
On January 9, 2001, Postmaster Cathy Polderman convened a
meeting where she told Calderon that she would not accept a
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medical release from his doctor saying that he could return to
work as a letter carrier. She then told Calderon that he could:
(1) accept a voluntary assignment to a clerk position; (2) be
involuntarily assigned to a clerk position; or (3) take medical
disability retirement. On February 5, 2001, Calderon contacted
an EEO counselor about this January 9, 2001 meeting. On March
27, 2001, after having two more surgeries, Calderon filed an EEO
Complaint, challenging the USPS’s refusal to let him return to
work as a letter carrier.
On August 1, 2001, after Calderon’s final surgery, Dr.
Breckenridge released Calderon to full duty without restrictions.
The USPS did not, however, return Calderon to his previous
position as a letter carrier. Instead, on August 16, 2001,
Postmaster Polderman wrote to Dr. Jones, the physician who had
previously evaluated Calderon for the USPS, and requested that he
provide a medical opinion as to whether Calderon could return to
his position as a letter carrier. On August 21, 2001, Dr. Jones
replied to Postmaster Polderman by letter, repeating that
Calderon was still not fit for duty as a letter carrier. Dr.
Jones further stated that “there are no restrictions that I know
of that will allow the subject to perform the duties of City
Carrier or any other job available at the Post Office.” Dr.
Jones noted in his letter that his conclusion that Calderon was
not fit for duty was based upon the evaluation of Calderon that
he conducted on July 20, 2000, nearly a year earlier.
3
On September 12, 2001, an EEO investigator sent Postmaster
Polderman a series of questions regarding Calderon’s EEO
complaint. Subsequently, on November 8, 2001, Postmaster
Polderman convened a meeting to discuss Calderon’s work status.
At that meeting, she told Calderon that the following jobs were
available to him for reassignment: (1) clerk in Ingleside; (2)
mailhandler in Corpus Christi; (3) custodian in Corpus Christi;
(4) mail processor in Corpus Christi; and (5) window clerk in
Corpus Christi. Calderon refused to be voluntarily reassigned to
any of these positions, contending that his doctor had cleared
him to return to his position as a letter carrier.
On January 23, 2002, Calderon received a letter from David
Cotham, a USPS manager, stating:
On November 8, 2001, a work status meeting was held
during which we discussed job opportunities within your
work restrictions. During the meeting, you refused
reassignment as a window or distribution clerk.
Considering your medical restrictions, I would agree
that those duties would not be within your permanent
medical restrictions.
In reviewing available job assignments, Personnel
records indicate that there is available a custodian
position in the Plant on Tour 1, from 11:00 p.m. to
7:30 a.m., Wednesday and Thursday off. The duties of
this custodial position are within your permanent
medical restrictions. There are no other funded,
vacant positions within your medical restrictions.
Therefore, this is to advise you that this custodial
position is being offered to you as a permanent
reassignment.
Please let me know by February 1, 2002 if you accept or
reject this job offer. Your failure to accept said
offer will result in your separation from the Postal
Service.
4
On January 31, 2002, Calderon rejected the custodial position.
In response, on February 28, 2002, the USPS sent Calderon a
Notice of Proposed Enforced Leave that involuntarily placed him
on leave with pay.
On April 1, 2002, while Calderon was still on enforced
leave, Postmaster Polderman sent a letter to him instructing him
to report to Dr. Jones for a fitness-for-duty exam.
Subsequently, he was told instead to report to Dr. Theodore
Parsons, which he did on April 12, 2002. After the exam, Dr.
Parsons cleared Calderon to return to work as a letter carrier.
On May 11, 2002, Calderon returned to his position as a letter
carrier. In total, Calderon was on enforced leave from February
28, 2002 until May 10, 2002.
On November 22, 2002, Calderon filed this lawsuit against
the Postmaster General, alleging two claims under the
Rehabilitation Act, 29 U.S.C. §§ 701-796: (1) unlawful disability
discrimination by the USPS as a result of its refusal to permit
him to return to his position as a letter carrier for a period of
time after his surgeries; and (2) unlawful retaliation by the
USPS for placing him on enforced leave and reassigning him to
non-letter-carrier duties because he filed an EEO complaint. The
defendant subsequently filed a motion for summary judgment, and
Calderon filed a motion for partial summary judgment. On January
13, 2004, the district court granted the defendant’s motion for
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summary judgment and denied Calderon’s motion. Calderon
subsequently filed the present appeal.
II. Standard of Review
This court reviews a district court’s grant of summary
judgment de novo, applying the same standard as the district
court. See Fierros v. Tex. Dep’t. of Health, 274 F.3d 187, 190
(5th Cir. 2001). According to the Supreme Court, “summary
judgment is proper ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.’” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (quoting FED. R. CIV. P. 56(C)). The party moving for
summary judgment “must merely demonstrate an absence of
evidentiary support in the record for the non-movant’s case.”
Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir.
2000). Conversely, the nonmoving party must come forward with
“specific facts showing that there is a genuine issue for trial.”
FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986) (holding that no issue for trial exists unless
there is sufficient evidence for a jury to return a verdict for
the nonmoving party). When a district court reviews the support
for a nonmovant’s case, the “evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in [its]
favor.” Anderson, 477 U.S. at 255.
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III. Discussion
Calderon raises two issues on appeal. First, he maintains
that the district court erred in granting summary judgment on his
disability discrimination claim. Second, he asserts that the
district court erred when it granted summary judgment on his
retaliation claim. We examine each claim in turn.
1. Disability Discrimination
Calderon first claims that the district court incorrectly
granted summary judgment in favor of the defendant on his
disability discrimination claim under the Rehabilitation Act when
it found that the USPS did not regard Calderon as being disabled.
According to Calderon, the evidence shows that the USPS--in
particular, Postmaster Polderman--regarded him as being disabled.
Accordingly, he contends that he should be allowed to proceed
with his disability discrimination claim.
While Calderon does not claim to have been disabled, he
contends that the USPS regarded him as having an impairment that
prevented him from performing the major life activity of
performing manual tasks. In support of this contention, he
invites the court’s attention to Dr. Jones’s August 21, 2001
letter to the USPS, in which Dr. Jones stated that “there are no
restrictions that I know of that will allow the subject to
perform the duties of City Carrier or any other job available at
the Post Office.” Additionally, he notes that Postmaster
Polderman signed an EEO Investigative Affidavit on November 26,
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2001, in which she was asked: “Were you aware the Complainant had
a physical impairment? If so, how and when did you become
aware?” Postmaster Polderman responded that “I was aware that
Mr. Calderon had several surgeries from Dave Cotham and Mr.
Calderon’s records.” Finally, he notes that in David Cotham’s
January 23, 2002 letter to him, Cotham stated that working as a
distribution or window clerk would not be within Calderon’s
“permanent medical restrictions.” Based on this evidence,
Calderon claims that, contrary to the findings of the district
court, the USPS regarded him as being substantially limited in
the major life activity of performing manual tasks. Thus, he
contends that he should be allowed to pursue his disability
discrimination claim against the USPS.
Under the Rehabilitation Act, an individual claiming
discrimination must show that he: (1) is an “individual with a
disability;” (2) was “otherwise qualified” for the job in
question; (3) worked for a “program or activity receiving Federal
financial assistance”; and (4) was discriminated against “solely
by reason of her or his disability.” Hileman v. City of Dallas,
115 F.3d 352, 353 (5th Cir. 1997) (quoting 29 U.S.C. § 794(a)).
The standards used for determining whether the Rehabilitation Act
has been violated in an employment discrimination suit are the
same as the standards for determining if the Americans with
Disabilities Act (“ADA”) has been violated in an employment
discrimination suit. 29 U.S.C. § 791(g) (2000). Under the ADA,
8
an individual has a “disability” if he: (A) has a physical or
mental impairment that substantially limits one or more of his
major life activities; (B) has a record of such an impairment; or
(C) has been regarded as having such an impairment. 42 U.S.C.
§ 12102(2) (2000); Rogers v. Int’l Marine Terminals, Inc. 87
F.3d. 755, 758 (5th Cir. 1996). Since Calderon does not assert
that he was disabled or had a record of a disability but merely
claims that the USPS regarded him as such, this court need only
consider whether the USPS considered him to be substantially
limited in the performance of one or more major life activities
(i.e., the court need only consider the third way of establishing
a “disability” under the ADA). See 42 U.S.C. § 12102(2).
According to EEOC regulations, “major life activities” are
things such as “caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and
working.” McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 280
(5th Cir. 2000) (quoting 29 C.F.R. § 1630.2). A person is
regarded as being significantly restricted in a major life
activity when he (1) has an impairment that is not substantially
limiting but which his employer considers to be substantially
limiting; (2) has an impairment which is substantially limiting
only because of others’ attitudes; or (3) has no impairment but
is perceived by his employer as having a substantially limiting
impairment. Bridges v. City of Bossier, 92 F.3d 329, 332 (citing
Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727-28 n.19 (5th
9
Cir. 1995)).
Calderon’s disability discrimination claim fails because he
has put forward no evidence showing that the USPS regarded him as
being substantially limited in performing manual tasks. In Toyota
Motor Manufacturing, Kentucky, Inc. v. Williams, the Supreme Court
held that “to be substantially limited in performing manual tasks,
an individual must have an impairment that prevents or severely
restricts the individual from doing activities that are of central
importance to most people’s daily lives.” 534 U.S. 184, 198
(2002). The Court further stated that “[w]hen addressing the
major life activity of performing manual tasks, the central
inquiry must be whether the claimant is unable to perform the
variety of tasks central to most people’s daily lives, not whether
the claimant is unable to perform the tasks associated with her
specific job.” Id. at 200-01. Calderon has offered no evidence
whatsoever that the USPS regarded him as being unable to perform
manual tasks of central importance to daily life. To the
contrary, the summary judgment evidence shows that while Calederon
was recovering from his surgeries, the USPS repeatedly offered him
jobs that involved performing manual tasks. For instance, at the
November 8, 2001 meeting convened by Postmaster Polderman, the
USPS told Calderon that five jobs (mail processor, clerk,
custodian, mail handler, and window clerk)--all of which would
have required him to perform manual tasks--were available to him
for reassignment. Similarly, in his letter of January 23, 2002,
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David Cotham told Calderon that he would be placed on leave if he
did not accept a custodial job, a position that would have
required him to perform manual tasks. Likewise, as the district
court correctly pointed out, between August 3, 2001 and February
28, 2002, the USPS allowed Calderon to work in a non-letter-
carrier position that required him to perform manual tasks.
While Calderon attempts to show that the USPS regarded him as
being substantially limited by pointing to Dr. Jones’s letter of
August 21, 2001 (in which Dr. Jones stated that Calderon was
unable to safely perform the duties of any job available at the
Post Office), this attempt fails. Without more, the existence of
this letter does not suffice to raise an issue of material fact as
to whether the USPS regarded Calderon as being substantially
limited in the performance of a major life activity, since both
before and after the letter was sent the USPS offered Calderon
alternative jobs that would have required him to perform manual
tasks. Similarly, David Cotham’s January 23, 2002 letter to
Calderon does not create an issue of material fact as to whether
the USPS regarded him as disabled. In this letter, Gotham stated
that working as a distribution or window clerk would not be within
Calderon’s permanent medical restrictions. However, he then
offered Calderon a job as a custodian--a position that would have
required him to perform manual tasks--in this same letter.
Additionally, the USPS had offered Calderon numerous other jobs
that would have required him to perform manual tasks before this
11
letter was written, all of which he rejected. Accordingly, the
USPS’s consistent attempts to offer Calderon jobs entailing manual
tasks belies Calderon’s claim that it regarded him as being
substantially limited with respect to the major life activity of
performing manual tasks. Thus, no material issues of fact exist,
Calderon has failed to show that the USPS regarded him as being
substantially impaired with respect to a major life activity, and
the district court correctly granted summary judgment in favor of
the defendant on Calderon’s disability discrimination claim under
the Rehabilitation Act.
2. Retaliation
Calderon next contends that the district court erred by
granting summary judgment in favor of the defendant on his
retaliation claim under the Rehabilitation Act. According to
Calderon, the USPS unlawfully retaliated against him by placing
him on enforced leave because he filed an EEO complaint in March
of 2001. Likewise, he claims that the USPS reassigned him from
his position as a letter carrier to other less-desirable positions
in retaliation for filing his EEO complaint.
To establish a prima facie case of retaliation under the
Rehabilitation Act, a plaintiff must show that: (1) he engaged in
a protected activity (e.g., the filing of an EEO complaint); (2)
his employer took an adverse employment action against him; and
(3) a causal connection existed between the adverse employment
12
action and the protected activity. Shannon v. Henderson, No. 01-
10346, slip op. at 8-9 (5th Cir. Sep. 25, 2001); Treglia v. Town
of Manlius, 313 F.3d 713, 719 (2nd Cir. 2002); Gribcheck v.
Runyon, 245 F.3d 547, 550 (6th Cir. 2001), cert. denied, Gribcheck
v. Potter, 534 U.S. 896 (2001).1 Once a plaintiff has established
a prima facie case of retaliation, the burden shifts to the
defendant to show that it had a legitimate nondiscriminatory
reason for taking the adverse employment action. Gee v. Principi,
289 F.3d 342, 345 (5th Cir. 2002). If the defendant provides a
legitimate nondiscriminatory reason for the employment action, the
burden shifts back to the plaintiff to show that the adverse
action would not have occurred “but for” the protected activity.
See Long v. Eastfield Coll., 88 F.3d 300, 308 (5th Cir. 1996).
Even if Calderon has established a prima facie case of
unlawful retaliation, the USPS has articulated a legitimate
1
In Shannon, the court noted that this circuit has never
explicitly held that the framework for analyzing retaliation
claims brought under the Rehabilitation Act is the same as that
for analyzing retaliation claims under Title VII of the Civil
Rights of Act of 1964 and the ADA. Shannon v. Henderson, No. 01-
10346, slip op. at 8 (5th Cir. Sep. 25, 2001). The court then
stated that both the language of the Rehabilitation Act and the
findings of other circuits indicate that the same framework for
analyzing Title VII and ADA retaliation claims should be applied
to retaliation claims brought under the Rehabilitation Act. Id.
at 8-9 (citing 29 U.S.C. § 794(d); Gribchek, 245 F.3d at 550;
Hooven-Lewis v. Caldera, 249 F.3d 259, 272 (4th Cir. 2001)).
Accordingly, the court in Shannon applied the standards for
analyzing retaliation claims brought under the ADA and Title VII
to the plaintiff’s retaliation claim brought under the
Rehabilitation Act. For the reasons articulated by the Shannon
court, we will use the same approach when analyzing Calderon’s
retaliation claim under the Rehabilitation Act.
13
nondiscriminatory reason for placing him on enforced leave: it
felt he could no longer perform the duties of a letter carrier
and, although it had repeatedly tried to reassign him, he refused
every job offered to him. Calderon, on the other hand, has not
rebutted this claim by showing that he would not have been placed
on enforced leave or reassigned “but for” the fact that he filed
an EEO complaint. The summary judgment evidence supports the
USPS’s justification for reassigning Calderon and placing him on
enforced leave. First, it shows that the USPS first reassigned
Calderon from his letter carrier duties in November of 2000, well
before he filed his EEO complaint in March of 2001. It further
shows that the USPS told Calderon that he could not return to his
position as a letter carrier--and offered him at least five
alternate jobs instead--before he filed his EEO complaint.
Moreover, the summary judgment evidence (including David Cotham’s
January 23, 2002 letter to Calderon) shows that the USPS placed
Calderon on enforced leave only after he (1) repeatedly refused to
accept every job offered to him by the USPS and (2) was warned
that failure to accept the USPS’s latest job offer would result in
his separation from the USPS.
In response to the USPS’s alleged nondiscriminatory reason
for placing Calderon on enforced leave, Calderon has put forward
no evidence whatsoever showing that his placement on leave, which
occurred nearly a year after he filed his EEO complaint, was in
any way related to the filing of his EEO complaint. Accordingly,
14
he has not shown that a fact question exists as to whether he
would not have been placed on leave “but for” the filing of his
EEO complaint. Similarly, Calderon has offered no evidence
showing that the USPS reassigned him from his letter carrier
position--an event that occurred before he filed his EEO
complaint--in retaliation for filing his EEO complaint. Finally,
he has put forward no evidence that the USPS’s purpose in telling
him that he could either become a custodian or be separated from
the USPS was to retaliate against him for his EEO complaint. The
USPS, on the other hand, has provided a legitimate
nondiscriminatory reason for its decision to give him this choice
(i.e., it gave him this choice because he had rejected every other
job offer made by the USPS). Furthermore, the decision to give
Calderon this choice was wholly consistent with the reassignments
that began before Calderon ever filed his EEO complaint.
Accordingly, no material questions of fact exist, Calderon’s
retaliation claim under the Rehabilitation Act fails, and the
district court correctly granted summary judgment on this claim in
favor of the defendant.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
decision granting summary judgment in favor of the defendant.
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