McDonough v. Donahoe

United States Court of Appeals
For the First Circuit

No. 11-1477

MARILYN MCDONOUGH,

Plaintiff, Appellant,

v.

PATRICK R. DONAHOE, POSTMASTER GENERAL,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Leo T. Sorokin, Magistrate Judge]

Before

Boudin, Howard, and Thompson,
Circuit Judges.

Mitchell J. Notis for appellant.
Christine J. Wichers, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

March 14, 2012
 THOMPSON, Circuit Judge. Plaintiff-appellant Marilyn

McDonough ("McDonough") appeals the district court's grant of

summary judgment in favor of her employer on her disability based

hostile work environment claim under the Rehabilitation Act, 29

U.S.C. § 794(a). Discerning no error, we affirm the judgement of

the district court.

I. BACKGROUND

McDonough began working for the United States Postal

Service ("Postal Service") as a letter carrier at the Haverhill,

Massachusetts post office in September of 1980.1 In 1987, she

tripped over a basket of magazines while at work and injured her

back, thereafter causing her to suffer from "chronic orthopedic

problems in her neck and back," as well as "related symptoms."2

After this accident, she filed for worker's compensation. Her

claim was allowed and she began to work four hours a day instead of

eight -- two hours sorting mail and two hours delivering mail.

Though her hours changed from time to time, she typically worked 8

am to noon with the Postal Service paying her worker's compensation

benefits to make up for the remaining four hours of the work day.

1
At the time the parties filed their briefs to this court,
over the summer of 2011, McDonough was still employed by the Postal
Service.
2
During her deposition, McDonough stated that the fall and
"twisting" that resulted from her tripping over the magazines
caused the injury to her back; however, she could not say what
caused the injury to her neck or when she first started to have
neck pain.

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 Despite her back injury, McDonough was nonetheless able

to get up and about. She could walk, sit, and stand for up to one

hour continuously or up to four hours intermittently. In fact, she

acknowledged that the walking required to deliver the mail was good

for her health. She could also lift ten pounds continuously or

twenty pounds intermittently, though she was "not nit picky" about

how much weight she could lift or even "really thought about" it

much. McDonough drove herself to work everyday -- approximately

forty-five minutes each way. She was able to go up and down the

stairs in her two-story house and she did not need help getting

herself ready each morning. Her back injury also did not keep her

from being able to do typical, everyday housework -- she was able

to vacuum, do laundry, load the dishwasher, mow, bake, and garden.

For exercise, she liked to walk to a nearby lake and go to a local

gym a couple of times a week for water walking therapy.

While at work, McDonough had access to a stool so she

could rest her knee while sorting through the mail. She was also

given a cart to carry her mail, instead of the customary

requirement of using a satchel. Additionally, she only had to

carry part of her mail load in her cart -- the rest was delivered

by a co-worker to a locked "relay box" for McDonough to pick up

along her route. From what we can tell, all was well between

McDonough and her employer until one fateful day in January of

2004.

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 Because McDonough was receiving worker's compensation,

she needed to have regular medical examinations. On July 23, 2003,

she was examined by Dr. Leonard Popowitz, a physician retained by

the Postal Service. According to Dr. Popowitz's report, McDonough

could work "four to five hours a day." In response to this new

information, the Haverhill Postmaster, Richard Pace ("Pace"),

prepared an "Offer of Modified Assignment (Limited Duty)" proposing

that McDonough work up to five hours a day, instead of four. On

January 30, 2004, Pace discussed the offer with McDonough.

According to McDonough, though he never blocked the door, Pace

nevertheless tried to bully her into signing the offer by not

allowing her to leave his office until she signed. McDonough never

did sign the offer and continued to work four hour days.

Approximately a year later, McDonough contacted the Equal

Employment Opportunity Commission ("EEOC") and spoke to an Equal

Employment Opportunity ("EEO") counselor to report the incident

with Pace and the modified job offer. On July 19, 2005, the EEO

counselor sent McDonough a notice giving her the right to file an

administrative complaint. She did so, alleging five instances of

disability based harassment constituting a hostile work

environment. After receiving a seven-day paper suspension3 in

3
The paper suspension was a form of progressive discipline,
but it did not result in the loss of work or pay to McDonough.
Although the suspension brought her one step closer to termination,
under the terms of the collective bargaining agreement disciplinary
notices are removed from the employee's file after two years, as

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August of 2005 for exhibiting unacceptable conduct, McDonough

amended her complaint to add this event. All six incidents were

investigated by the EEOC.

In November of 2005, the EEO investigator notified

McDonough that his investigation was complete. He gave her a copy

of the report4 and informed her that she had the right to request

a hearing before an Administrative Law Judge ("ALJ"), which she

did. Before the hearing, McDonough moved to amend her complaint in

order to add two additional incidents. Over the Postal Service's

objection, the ALJ allowed the motion. After discovery was

complete, the Postal Service filed a pre-hearing motion for summary

judgment, and the ALJ granted the motion on August 3, 2006. Five

days later the Postal Service issued a final agency decision

adopting the ALJ's decision. McDonough appealed to the EEOC's

Office of Federal Operations ("OFO"), which affirmed. She sought

reconsideration but the OFO denied her request.

Thereafter, on December 22, 2008, McDonough filed suit in

federal district court against the Postmaster General of the United

States, John E. Potter, in his official capacity as the most senior

manager of the Postal Service.5 In her complaint, McDonough

long as there has been no further disciplinary action.
4
We are unable to discern from the record before us the EEO
investigator's actual findings.
5
By letter dated May 23, 2011, counsel for the defendant
notified the Clerk of the Court that John Potter had retired and

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alleged five claims: (1) hostile work environment harassment based

on her disability in violation of the Rehabilitation Act, 29 U.S.C.

§ 794(a); (2) retaliation in violation of the Rehabilitation Act;

(3) failure to accommodate a disability in violation of the

Rehabilitation Act; (4) hostile work environment harassment based

on gender in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-16; and (5) retaliation in violation of

Title VII.6

The parties agreed to proceed before a magistrate judge.

On September 15, 2010, after discovery was completed, the

Postmaster General filed a motion for summary judgment. In her

opposition to summary judgment, McDonough abandoned all of her

claims except for the harassment and retaliation claims under the

Rehabilitation Act.

Oral argument was heard on March 30, 2011 and the next

day, the judge entered summary judgment for the Postmaster General

on all claims. This appeal followed.7

that his replacement was Patrick R. Donahoe. By order of the
court, on May 25, 2011, Patrick R. Donahoe was substituted for John
Potter pursuant to Federal Rule of Appellate Procedure 43(c)(2).
6
All five claims alleged were based on events that occurred
between 2004 and 2005.
7
McDonough only appeals the district court's entry of summary
judgment for the defendant in regard to her harassment claim.

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II. Discussion

1. Standard of Review

"We review a district court's grant of summary judgment

de novo." Ahern v. Shinseki, 629 F.3d 49, 53 (1st Cir. 2010)

(citation omitted). In so doing, the record is construed "in the

light most favorable to the non-movant and [we] resolv[e] all

reasonable inferences in that party's favor." Prescott v. Higgins,

538 F.3d 32, 39 (1st Cir. 2008). Nonetheless, "[w]e may ignore

conclusory allegations, improbable inferences, and unsupported

speculation." Id. (internal quotation marks omitted). "We will

affirm only if the record reveals 'no genuine issue as to any

material fact' and 'the movant is entitled to judgment as a matter

of law.'" Vineberg v. Bissonnette, 548 F.3d 50, 55 (1st Cir. 2008)

(quoting Fed. R. Civ. P. 56(c)).

2. Hostile Work Environment Claim under the Rehabilitation Act

Pursuant to the Rehabilitation Act, "'[n]o otherwise

qualified individual with a disability in the United States, as

defined in section 705(20) of this title, shall, solely by reason

of her or his disability, . . . be subjected to discrimination

under any program or activity . . . conducted by . . . the United

States Postal Service.'" Rolland v. Potter, 492 F.3d 45, 47 (1st

Cir. 2007) (quoting 29 U.S.C. § 794(a)). McDonough argues "that

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she was subjected to a hostile work environment due to her

disability."8

In order to succeed on her hostile work environment claim

McDonough must show the following: (1) she was disabled as defined

under the Rehabilitation Act, (2) she was subjected to uninvited

harassment, (3) her employer's conduct was based on her disability,

(4) the conduct was so severe or pervasive that it altered the

conditions of her work and created an abusive work environment, and

(5) the harassment was objectively and subjectively offensive.9

See Prescott, 538 F.3d at 42; see also Ríos-Jiménez v. Principi,

520 F.3d 31, 43 (1st Cir. 2008). Based on the record before us, we

find that McDonough has failed to clear the first hurdle.

"[A]n 'individual with a disability' [is defined] as 'any

person who . . . has a physical or mental impairment which

substantially limits one or more of such person's major life

activities' or 'has a record of such impairment' or 'is regarded as

8
McDonough rests her hostile work environment claim on eight
different events that occurred between 2004 and 2005. Because
those eight events have no bearing on the final outcome, we need
not discuss the specifics.
9
In Quiles-Quiles v. Henderson, 439 F.3d 1 (1st Cir. 2006),
we noted that this court had not yet decided whether disability
harassment was a "viable theory of recovery" but nonetheless
assumed that it was. Id. at 5 n.1. To date, this court still has
not directly addressed the issue. For purposes of this opinion, we
follow Quiles-Quiles and assume without deciding that disability
harassment is a viable theory of recovery.

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having such an impairment.'"10 Rolland, 492 F.3d at 47 (quoting 29

U.S.C. § 705(20)(B)). To qualify as "disabled" under the

Rehabilitation Act's first disability definition, "[w]e apply a

three-part analysis." Ramos-Echevarría v. Pichis, Inc., 659 F.3d

182, 187-188 (1st Cir. 2011). First, the plaintiff must establish

that she suffers from an impairment. Next, the plaintiff must show

that the impairment affects a major life activity, and third, that

the impairment substantially limits the major life activity11. Id.;

see also Rolland, 492 F.3d at 48 (same). The "phrases

'substantially limits' and 'major life activities' must be strictly

interpreted 'to create a demanding standard for qualifying as

disabled.'" Rolland, 492 F.3d at 47 (quoting Toyota Motor Mfg.

Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002)) (emphasis in

original). In order to qualify, "an individual must have a

permanent or long term impairment that prevents or severely

restricts the individual from doing activities that are of central

importance to most people's daily lives." Id. at 47-48 (internal

10
McDonough also alleges that the Postal Service regarded her
as having such an impairment. We discuss this claim later. See
discussion infra, pp. 13-15. She does not, however, argue that she
has a record of such an impairment.
11
In Ramos-Echevarría, the plaintiff brought suit under the
Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12165,
not the Rehabilitation Act. 659 F.3d at 185. However, the phrase
"individual with a disability" is defined similarly in both
statutes and the Supreme Court has held that the phrase should be
given the same construction under both statutes. See Toyota Motor
Mfg. Ky., Inc. v. Williams, 534 U.S. 184, 193-94 (2002).

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quotation marks omitted). The determination of disability is made

on a case-by-case basis. Id. at 48.

McDonough argues that she actually has an impairment --

back and neck pain -- that substantially limits five major life

activities: working, walking, standing, sitting, and lifting. We

think the record before us is devoid of any evidence supporting

this contention.

First, McDonough has not pointed us to any evidence to

establish that she was substantially limited in the major life

activity of working. "Working can be considered a major life

activity." Ramos-Echevarría, 659 F.3d at 188. Nonetheless,

despite her back and neck pain, McDonough was able to do her job

satisfactorily with the accommodations provided by the Postal

Service, specifically, a four-hour work day, a stool to rest her

knee on while she sorted the mail, and a cart instead of a satchel

to help her deliver the mail. See, e.g., Whitlock v. Mac-Gray,

Inc., 345 F.3d 44, 46 (1st Cir. 2003) (holding that plaintiff could

not show that he was disabled because he conceded that he could do

his job despite his impairment); see also Mays v. Principi, 301

F.3d 866, 869 (7th Cir. 2002) ("The number of Americans restricted

by back problems to light work is legion. They are not

disabled.").

Likewise, McDonough has failed to produce evidence to

show that she was substantially limited in the major life activity

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of walking. Walking is considered a major life activity. See 29

C.F.R. § 1630.2(i) (2011). However, it is undisputed that

McDonough could walk continuously for one hour a day and

intermittently for four hours a day. Moreover, McDonough spent two

hours a day delivering mail, walking fifteen to twenty minutes non-

stop. She also walked up and down the stairs in her home. For

exercise, she would walk to a nearby lake and she even went to the

gym a couple of times each week to take part in a water walking

therapy class. As a matter of law, this evidence does not support

McDonough's disability claim. See, e.g., Neal v. Kraft Foods

Global, Inc., 379 F. App'x 632, 634 (9th Cir. 2010) (holding that

evidence that plaintiff could walk only four hours a day was

insufficient, as a matter of law, to prove that she was disabled);

see also Turner v. The Saloon, Ltd., 595 F.3d 679, 689 (7th Cir.

2010) (stating that "walking with difficulty is not a significant

restriction on walking").

Neither has McDonough produced evidence to support her

contention that she was substantially limited in her ability to

stand.12 It is undisputed that she could stand for one hour a day

12
We have not had occasion to decide whether standing is a
major life activity. We have, however, at least hinted that it
should be considered as such. See, e.g., Gillen v. Fallon
Ambulance Service, Inc., 283 F.3d 11, 21 (1st Cir. 2002) (stating
that EEOC's definition of "major life activites" was not "all-
encompassing" and that the EEOC "emphasized that point by adding
sitting, standing, reaching, and lifting to the roster of likely
major like activities") (citation omitted). For purposes of this
opinion, we assume without deciding that standing is a major life

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and intermittently for four hours a day. She was also able to

perform all of the following activities, each of which involves

standing: vacuuming, doing laundry, putting dishes in the

dishwasher, mowing, baking, and gardening. Consequently, we cannot

agree with McDonough's claim that she was substantially limited in

her ability to stand and therefore, disabled. See, e.g., Neal, 379

F. App'x at 634 (holding that plaintiff's inability to stand more

than two hours was insufficient, as a matter of law, to prove that

she was disabled); see also Dupre v. Charter Behavioral Health Sys.

of Lafayette Inc., 242 F.3d 610, 614 (5th Cir. 2001) (holding that

plaintiff's inability to stand for more than one hour did not

render her disabled).

Likewise, though McDonough claims that she was

substantially limited in her ability to sit, the record suggests

otherwise.13 Indeed, McDonough sat in her car for one and a half

hours every weekday, driving forty-five minutes each way to and

from work. She was also able to crochet and garden -- activities

which undoubtedly require some form of sitting. Accordingly, the

record does not support McDonough's claim that she was

substantially limited in her ability to sit.

activity.
13
We assume for purposes of this opinion that sitting
constitutes a major life activity. See supra note 12.

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 This brings us to the final major life activity that

McDonough claims to be substantially limited in -- lifting.

Unfortunately for McDonough, this final argument fares no better

than the other four. According to her own doctor's restrictions,

McDonough could lift ten pounds continuously and twenty pounds

intermittently. In addition, she concedes that even with this

lifting restriction she "never really thought about" how much she

could lift. This court has "specifically addressed the issue of

lifting limitations and held that limitations on lifting, without

more, are not a substantial limitation on a major life activity."

Prescott, 538 F.3d at 44 (citing Gillen v. Fallon Ambulance Serv.,

Inc., 283 F.3d 11, 22 (1st Cir. 2002) ("[I]f a restriction on heavy

lifting were considered a substantial limitation on a major life

activity, then the ranks of the disabled would swell to include

infants, the elderly, the weak, and the out-of-shape.")).

In sum, and taking the evidence in the light most

favorable to McDonough, she has not proven disability in that she

has failed to show that her impairment caused her to be

substantially limited in any major life activity.

Alternatively, McDonough claims disability alleging that

her employer regarded her as disabled. "The regarded as prong of

the [Rehabilitation Act] exists to cover those cases in which

myths, fears, and stereotypes affect the employer's treatment of an

individual." Ruiz Rivera v. Phizer Pharm., LLC, 521 F.3d 76, 82

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(1st Cir. 2008) (internal quotation marks omitted). "A plaintiff

claiming that [s]he is 'regarded' as disabled cannot merely show

that h[er] employer perceived h[er] as somehow disabled; rather,

[s]he must prove that the employer regarded h[er] as disabled

within the meaning of the [Rehabilitation Act]." Bailey v.

Georgia-Pacific Corp., 306 F.3d 1162, 1169 (1st Cir. 2002). In

other words, McDonough must show that the Postal Service thought

her neck and back impairment substantially limited one or more of

her major life activities. See 29 U.S.C. § 705 (20)(B). Moreover,

"[w]hen 'working' is the major life activity at issue, a plaintiff

must demonstrate not only that the employer thought that [s]he was

impaired in [her] ability to do the job that [s]he held, but also

that the employer regarded [her] as substantially impaired in

either a class of jobs or a broad range of jobs in various classes

as compared with the average person having comparable training,

skills, and abilities." Ruiz Rivera, 521 F.3d at 83 (internal

quotation marks omitted).

McDonough argues that the Postal Service regarded her as

disabled because she received worker's compensation benefits and

worked four-hour days.14 We disagree.

14
She also claims that the Postal Service regarded her as
disabled because "her work [was] structured around her lifting
limitations" and because "a number of the incidents of harassment
. . . relate to [her] medical condition." McDonough fails to
reference any legal authority whatsoever to support these claims.
Instead, she merely offers conclusory, undeveloped arguments.
Consequently, we find these arguments waived. See P.R. Tel. Co.,

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 Pursuant to the Federal Employees Compensation Act

("FECA"), 5 U.S.C. §§ 8101-8193, a federal worker's compensation

program is available for employees who suffer from a "disability"

stemming from an on-the-job injury. Under FECA, "disability" is

defined as "incapacity, because of an employment injury, to earn

the wages the employee was receiving at the time of the injury."

20 C.F.R. § 10.5(f). We have acknowledged that this definition of

disability -- for worker's compensation benefits purposes -- is

much less exacting than the definition of "disability" under the

Rehabilitation Act. See Rolland, 492 F.3d at 47-8. Thus, the

fact alone that McDonough was receiving worker's compensation

benefits does not prove that her employer regarded her as disabled.

Similarly, McDonough's four-hour work day fails to prove

that the Postal Service regarded her as disabled. Instead, it

supports the conclusion that the Postal Service found that despite

her neck and back impairment, McDonough could do her job with the

accommodations provided -- reduced work day, a stool to rest her

knee while sorting the mail, and a cart to carry her mail, instead

of a satchel. In fact, the record indicates that the Postal

Service thought McDonough could do more, (i.e., work up to five

Inc. v. SprintCom, Inc., 662 F.3d 74, 99-100 (1st Cir. 2011)
(finding argument waived on appeal because party "made no attempt
at developed argumentation") (citation omitted); see also Brown v.
Trs. of Boston Univ., 891 F.2d 337, 352 (1st Cir. 1989) (issues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived).

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hours a day), not less, despite her impairment. When all is said

and done, the record before us establishes that McDonough was able

to do her job; she was merely limited in her ability to do it full-

time. Consequently, McDonough has failed to show that the Postal

Service regarded her as disabled.

This brings us to the end of our discussion. Because

the first step in any claim under the Rehabilitation Act is

establishing a disability covered by the Act and McDonough has

failed to show that she was disabled, her hostile work environment

claim must fail. See Tardie v. Rehab. Hosp. of R.I., 168 F.3d 538,

542 (1st Cir. 1999) ("In any claim under the Rehabilitation Act,

the plaintiff must first establish that she has a disability

covered by the Act."). There was no error.

III. CONCLUSION

For the reasons stated above, we affirm the district

court's grant of summary judgment for the defendant.

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