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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13719
Non-Argument Calendar
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D.C. Docket No. 1:17-cv-00374-MHC
JEROME CURTIS GARRETT,
Plaintiff - Appellant,
versus
POSTMASTER GENERAL UNITED STATES POSTAL SERVICES,
Defendant - Appellee,
WANDA SCOTT, MDO, et al.,
Defendants.
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Appeal from the United States District Court
for the Northern District of Georgia
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(February 14, 2018)
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Before TJOFLAT, JORDAN and NEWSOM, Circuit Judges.
PER CURIAM:
Jerome Curtis Garrett, proceeding pro se, brought this employment
discrimination suit under the Americans with Disabilities Act, 42 U.S.C. § 12131,
and Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. Because Mr.
Garrett sought leave to proceed in forma pauperis, the magistrate judge conducted
the required frivolity screening under 28 U.S.C. § 1915(e)(2) and issued an order
requiring Mr. Garrett to re-plead, noting that the proposed complaint failed to
“contain sufficient factual allegations to state a claim for relief based on disability
discrimination.” D.E. 2 at 5. Mr. Garrett filed an amended complaint, which the
magistrate judge recommended dismissing under 28 U.S.C. § 1915(e)(2)(B)(ii)
because it failed to state a claim. After considering Mr. Garrett’s objections, the
district court adopted the magistrate judge’s report and recommendation and
dismissed the case without prejudice. After careful review, we affirm.
I
We review the dismissal of the complaint for failure to state a claim under
28 U.S.C. § 1915(e)(2)(B)(ii) de novo, taking Mr. Garrett’s allegations in the
complaint as true. See Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).
See also Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997) (noting the
Rule 12(b)(6) standard for failure to state a claim applies to dismissals under
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§ 1915(e)(2)(B)(ii)). Because Mr. Garrett is proceeding pro se, we liberally
construe his complaint but may not “rewrite an otherwise deficient pleading in
order to sustain an action.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1169
(11th Cir. 2014).
II
According to the amended complaint, Mr. Garrett was an excellent mail
handler for the United States Postal Service. He was recognized as Mail Handler
of the Year, never missed a day of work in his 16-year tenure, and was known to
work “around the clock shifts” during the holidays. His stellar service came to an
end tragically on April 19, 2009, when a flat box of mail weighing approximately
70 to 100 pounds fell from a conveyor belt system and struck him in the head. Mr.
Garrett suffered severe injuries, including a broken neck and traumatic brain
injury, and is permanently disabled.
Mr. Garrett’s amended complaint recounts several incidents of allegedly
wrongful conduct committed by the USPS and its employees. It explains that Mr.
Garrett’s supervisors failed to safely secure the area or install safety netting to
prevent his accident and failed to code Mr. Garrett as injured on duty, causing him
to be placed in leave without pay status and lose certain benefits. The amended
complaint alleges that this benefit termination “was not caused by being in a leave
without pay status for 365 days, but was instead cause[d] by management not
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properly documenting Mr. Garrett’s injuries as injured on duty.” D.E. 4 at 11.
According to Mr. Garrett’s filings, these benefits were subsequently reinstated,
including “all sick and annual leave with back pay.” D.E. 8 at 7.
We agree with the district court that these allegations do not state a claim for
disability discrimination. Although Mr. Garrett purports to bring his claim under
the ADA, we construe his claim as one under the Rehabilitation Act because the
ADA does not cover federal employees. See 42 U.S.C. § 12111(5)(B)(i)
(excluding the United States from the definition of “employer”); Sutton v. Lader,
185 F.3d 1203, 1207 n.5 (11th Cir. 1999) (recognizing that the ADA and
Rehabilitation Act share the same standard for liability). 1
To properly plead his claim, Mr. Garrett must show that “(1) he has a
disability; (2) he is otherwise qualified for the position; and (3) he was subjected to
unlawful discrimination as the result of his disability.” Boyle v. City of Pell City,
866 F.3d 1280, 1288 (11th Cir. 2017). See also Ellis v. England, 432 F.3d 1321,
1326 (11th Cir. 2005) (“[U]nder the Rehabilitation Act, a plaintiff must prove that
he suffered an adverse employment action ‘solely by reason of’ his handicap.”)
(quoting 29 § U.S.C. 794(a)). Mr. Garrett’s allegations of wrongful conduct do not
show that the termination of his benefits was by reason of his disability. Instead,
1
Mr. Garrett also indicated on his amended complaint that he was asserting a Title VII claim.
Title VII, however, proscribes discrimination based upon “race, color, religion, sex, or national
origin,” not disability. See 42 U.S.C. § 2000e-2.
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he pleads that his supervisors used an incorrect code which caused him to be put on
leave without pay status. Despite being permitted to amend by the magistrate
judge, Mr. Garrett has failed to plead facts showing that that decision was “solely
by reason of” his disability, as opposed to other reasons. See Ellis, 432 F.3d at
1326.
Likewise, Mr. Garrett’s allegations that the USPS created unsafe work
conditions and failed to properly provide emergency response treatment after the
accident do not provide the required link to show that he was discriminated against
as a result of his disability. First, alleged negligence before Mr. Garrett’s injury
cannot support his case for disability discrimination because such conduct occurred
before he had a disability. See Garrett v. Univ. of Ala. at Birmingham Bd. of
Trustees, 507 F.3d 1306, 1315 (11th Cir. 2007) (plaintiff who could not show she
was disabled at time of alleged demotion did not establish prima facie case of
disability discrimination). Second, his employer’s failure to call EMS to assist
him after the injury was not the type of “adverse employment action” required to
state a discrimination claim. See Davis v. Town of Lake Park, 245 F.3d 1232, 1239
(11th Cir. 2001) (requiring “a serious and material change in the terms, conditions,
or privileges of employment”).
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III
We are sympathetic to Mr. Garrett’s situation, but our sympathies do not
allow us to overlook that—even construed liberally—he has failed to allege facts
to show a causal connection between his disability and the termination of his
benefits. Given this deficiency, the district court correctly concluded that Mr.
Garrett failed to state a disability discrimination claim.
AFFIRMED.
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