Veldran v. DeJoy ( 2021 )

19-4010-cv
Veldran v. DeJoy
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 13th day of January, two thousand twenty-one.
PRESENT: GUIDO CALABRESI,
REENA RAGGI,
DENNY CHIN,
Circuit Judges.
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JONATHAN M. VELDRAN,
Plaintiff-Appellant,
-v- 19-4010-cv
LOUIS DEJOY, POSTMASTER GENERAL,
Defendant-Appellee. 1
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1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Postmaster
General Louis Dejoy is automatically substituted for former Postmaster General Megan
J. Brennan as defendant-appellee in this case. The Clerk of Court is respectfully
directed to amend this caption.
FOR PETITIONER: Jonathan M. Veldran, pro se, Queens, NY.
FOR RESPONDENT: Varuni Nelson, Rachel G. Balaban, Matthew
Modafferi, Assistant United States Attorneys,
for Seth DuCharme, United States Attorney for the
Eastern District of New York, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Kuntz, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Jonathan Veldran, proceeding pro se, appeals from a
judgment of the district court entered October 1, 2019, in favor of defendant-appellee
Postmaster General of the United States (the "Postal Service"). Veldran, a former
employee of the Postal Service, brought this action alleging that he was denied a
reasonable accommodation and terminated from his employment in violation of the
Americans with Disabilities Act (the "ADA") and state law. In a decision and order
entered September 30, 2019, the district court construed Veldran's ADA claims as claims
brought under the Rehabilitation Act, and granted the Postal Service's motion for
summary judgment. Veldran appeals. We assume the parties' familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
"We review a grant of summary judgment de novo, construing the
evidence in the light most favorable to the nonmoving party and drawing all reasonable
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inferences in his favor." Biondo v. Kaledia Health, 935 F.3d 68, 73 (2d Cir. 2019) (internal
quotation marks omitted). "Summary judgment is proper only when, construing the
evidence in the light most favorable to the non-movant, 'there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.'"
Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).
As a threshold matter, as the Postal Service is a federal agency subject to
disability discrimination claims under the Rehabilitation Act but not the ADA or state
law, the district court correctly construed Veldran's claims as having been brought
under the Rehabilitation Act. See Rivera v. Heyman, 157 F.3d 101, 103 (2d Cir. 1998) ("[A]
federal employee . . . has no remedy for employment discrimination under the ADA.
His sole claim for discrimination on the basis of disability is under the Rehabilitation
Act, if anywhere." (citation omitted)).
Discrimination claims under the Rehabilitation Act are determined using
the standards set forth in the ADA. See 29 U.S.C. §§ 791(f), 794(d).
To establish a prima facie case of discrimination under the ADA, a plaintiff
must show by a preponderance of the evidence that: (1) his employer is
subject to the ADA; (2) he was disabled within the meaning of the ADA;
(3) he was otherwise qualified to perform the essential functions of his job,
with or without reasonable accommodation; and (4) he suffered adverse
employment action because of his disability . . . [or] his employer refused
to make a reasonable accommodation.
Woolf v. Strada, 949 F.3d 89, 93 (2d Cir. 2020).
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A person has a "disability" under the ADA (or Rehabilitation Act) if he
has: (a) "a physical or mental impairment that substantially limits one or more [of his]
major life activities," (b) "a record of such an impairment," or (c) is "regarded as having
such an impairment." 42 U.S.C. § 12102(1); 29 U.S.C. § 705(9)(B) (emphasis added).
Major life activities include "caring for one's self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working." 45 C.F.R. § 84.3(j)(2)(ii).
"An impairment need not prevent, or significantly or severely restrict, the individual
from performing a major life activity in order to be considered substantially limiting";
however, "not every impairment will constitute a disability." 29 C.F.R. § 1630.2 (j)(ii).
Only where an employer knew, or reasonably should have known, that
the employee has a disability within the meaning of the ADA does the employer have a
duty to "engage in an interactive process with the[] employee[] and in that way work
together to assess whether an employee's disability can be reasonably accommodated."
Costabile v. N.Y.C. Health & Hosps. Corp., 951 F.3d 77, 81 (2d Cir. 2020) (internal quotation
marks omitted). We may affirm summary judgment only if we conclude that on the
record presented, considered in the light most favorable to Veldran, no reasonable jury
could find in his favor on his claims. See Shannon v. N.Y.C. Transit Auth., 332 F.3d 95,
103 (2d Cir. 2003).
Veldran presents both actual and perceived disability claims. We address
these in turn.
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I. Actual Disability
Veldran's first claim is that he was not provided a reasonable
accommodation for an actual disability sustained when he sprained his knee on October
26, 2015. He argues that this injury substantially limited the following major life
activities: "walking, working, climbing steps, and . . . operating a motor vehicle." He
does not, however, dispute that these limitations lasted for only four days of his
employment with the Postal Service, and that he was cleared to return to work without
any physical limitations on the fourth day, before he was terminated. During the four
days, Veldran was restricted to no more than two hours per day of standing, walking,
or climbing stairs. This injury was simply too brief and minor to qualify as a disability
under the Rehabilitation Act. See Adams v. Citizens Advice Bureau, 187 F.3d 315, 316-17
(2d Cir. 1999) (holding plaintiff was not disabled within meaning of ADA where his
injury lasted only three and one-half months and he failed to present evidence of a
substantial limitation on a major life activity). 2 While a temporary impairment can be
covered if it is sufficiently severe, see 29 C.F.R. Pt. 1630, Interp. Guidance, §
1630.2(j)(1)(ix) ("[T]he duration of an impairment is one factor that is relevant in
determining whether the impairment substantially limits a major life activity.
Impairments that last only for a short period of time are typically not covered, although
2 While Adams predated the ADA Amendment Act of 2008, which
broadened the definition of "disability" under the ADA, the analysis in Adams has not
been abrogated and still applies.
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they may be covered if sufficiently severe." (citation and internal quotation marks
omitted)), Veldran's injury was of such a short duration and limited severity that it
could not qualify as a disability within the meaning of the Rehabilitation Act as a matter
of law.
Because a reasonable factfinder could only conclude that Veldran's knee
injury did not constitute a "disability" within the meaning of the Rehabilitation Act, the
Postal Service did not have a duty to provide a reasonable accommodation, and the
district court correctly granted summary judgment on Veldran's actual disability claim.
II. Perceived Disability
Veldran's second claim is that he was wrongfully terminated based on the
Postal Service's perception that he was disabled due to his 2001 knee injury sustained
while in the military, for which he continued to receive a disability benefit during his
employment with the Postal Service. A person is "regarded as" disabled if he
"establishes that he . . . has been subjected to an action prohibited [by the ADA or the
Rehabilitation Act] because of an actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit a major life activity." 42
U.S.C. § 12102(3)(A). The perceived impairment, however, cannot be an impairment
that is "transitory" -- having an "actual or expected duration of 6 months or less" -- and
"minor." Id. § 12102(3)(B). "It is not enough that the employer perceive the employee as
somehow disabled; the employer must regard the employee as disabled within the
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meaning of the ADA, i.e., having an impairment that substantially limits a major life
activity." Capobianco v. City of New York, 422 F.3d 47, 57 (2d Cir. 2005) (internal
quotation marks omitted).
Veldran's perceived disability claim fails because he did not raise a
genuine issue of fact as to whether his supervisors perceived him as disabled. Although
he provided evidence that at least one of his supervisors knew he was previously
injured before terminating him, there is no evidence in the record to support an
inference that his supervisors believed he was disabled as defined in the ADA. He does
not state what major life activity his employers believed was substantially limited by
that injury. Moreover, Veldran does not dispute that he worked as a City Carrier
Assistant -- walking seven hours a day with a 35-pound mail bag, among other physical
demands -- without any physical limitation or incident for the first two months of his
employment. Based on these undisputed facts, no rational factfinder could conclude
that Veldran's supervisors believed his 2001 injury resulted in a substantial limitation
on his ability to walk or work in 2015.
Because Veldran failed to present evidence from which a reasonable jury
could conclude that he was or perceived to be disabled, the district court correctly
granted summary judgment to the Postal Service. See Woolf, 949 F.3d at 95 (affirming
grant of summary judgment because "no reasonable factfinder could conclude" plaintiff
had disability within meaning of ADA); cf. Capobianco, 422 F.3d at 60 (reversing grant of
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summary judgment in perceived disability case, where plaintiff presented evidence that
employer perceived him as being disabled and that he was able to perform essential
functions of job with reasonable accommodation).
We have considered all of Veldran's remaining arguments and find them
to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk of Court
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