Shannon v. Henderson ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 01-10346
Summary Calendar
____________________
RONALD L. SHANNON, JR.,
Plaintiff-Appellant,
v.
WILLIAM J. HENDERSON, POSTMASTER GENERAL, UNITED STATES
POSTAL SERVICE
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
No. 4:99-CV-021-Y
_________________________________________________________________
September 25, 2001
Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Ronald L. Shannon, Jr. (“Shannon”)
appeals from the district court’s judgment in favor of Defendant-
Appellee William J. Henderson, Postmaster General, United States
*
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that this opinion should not be published and is not precedent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.
Postal Service (“Postal Service”), on Shannon’s retaliation and
disability discrimination claims under the Rehabilitation Act of
1973, 29 U.S.C. § 794 (1994) (“Rehabilitation Act”). For the
reasons set forth below, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff-Appellee Shannon has been employed by the United
States Postal Service since 1990. From 1990 until June, 1996 he
worked as a letter carrier for the U.S. Postal Service in Euless,
Texas. During the course of his employment as a letter carrier
with the Euless post office, Shannon suffered two on-the-job back
injuries, one in 19931 and one on January 3, 1996.
Shannon reported his January 3, 1996 back injury to his
supervisor, who provided him with a CA-17 duty status form (“CA-
17") to take to his doctor. Shannon called in sick on January 5
and was examined by a doctor that day. He remained on sick leave
until January 16, at which point he returned to work. The
portion of the CA-17 form prepared by Shannon’s doctor diagnosed
Shannon with lower back injury and a possible lumbar strain and
indicated that his duties should be restricted to “casing” his
1
In its November 27, 2000 order partially granting the
Postal Service’s motion for summary judgment, the trial court
ruled that any claims based on Shannon’s 1993 injury were barred
due to Shannon’s failure to exhaust his administrative remedies
by contacting an Equal Employment Opportunity counselor within 45
days of the alleged discriminatory action. See 29 C.F.R. §
1614.105(a)(1) (2000). Shannon does not appeal this
determination.
2
route (i.e., sorting the mail in preparation for delivery) and to
two hours of walking.
Shannon returned to his doctor for reevaluation the next
day, January 17. Shannon’s doctor prepared another CA-17 after
this reevaluation, indicating that Shannon had a lower back
injury and that he should return to work on January 19. The
doctor’s instructions on the second CA-17 restricted Shannon to
twenty pounds of lifting, three to five hours of sitting, two
hours of standing, two hours per day of continuous walking, one
hour per day of kneeling, one hour per day of pulling/pushing,
one half hour per day of simple grasping, three to five hours per
day of fine manipulation, two to four hours per day of reaching,
and one to three hours per day of driving a vehicle. Shannon was
entirely restricted from twisting or climbing. He returned to
work on January 19. The parties dispute whether and to what
extent Shannon’s supervisors respected these restrictions in
assigning his job tasks from January 19 through January 31.
Shannon saw his doctor again on January 31. The CA-17 from
that visit indicates his doctor’s opinion that he was able to
return to full-time work (i.e., eight hours per day, five days
per week), subject to a restriction that he should not engage in
more than two hours of walking for three weeks,2 but could return
2
The Postal Service contends that the January 31, 1996
CA-17 form restricted Shannon to no more than two hours per day
of continuous walking and that Shannon was actually approved to
walk for more than two hours if he took intermittent breaks.
3
to normal walking after three weeks had elapsed. The portion of
the CA-17 prepared by Shannon’s employer (informing his treating
physician of his normal job requirements) indicated that
Shannon’s duties were “subject to employee input.” The parties
dispute the exact meaning of this phrase. The parties also
dispute whether and to what extent Shannon’s supervisors
respected these restrictions in assigning his job tasks for the
next three weeks and whether and to what extent he requested or
received accommodations subsequent to this three-week
restriction.
Shannon returned to his doctor’s office approximately five
months later, on June 7, 1996. The physician’s assistant who
treated him at that time ordered an MRI test. The results of
this test indicated that Shannon required back surgery. This
surgery was performed in November of 1996. After his surgery and
subsequent rehabilitation, Shannon could no longer perform his
duties as a letter carrier.
He returned to work in July of 1997 and was assigned to
perform duties as a saturation test technician — a limited duty
position within the carrier craft — at a post office in Fort
Although this interpretation is supported by the appearance of
the form, because we interpret all factual disputes in the light
most favorable to the non-moving party when considering a
district court’s decision to grant summary judgment or judgment
as a matter of law, we will assume for the purposes of this
appeal that Shannon was restricted to a total of two hours per
day of walking during this three week period.
4
Worth. In March, 1998, Shannon was offered and accepted, under
protest, a permanent reassignment from the letter carrier craft
to the clerk craft as a part-time flexible distribution clerk in
the Fort Worth office. Shannon’s position within the clerk craft
involved duties substantially similar to those he performed as a
saturation test technician within the carrier craft. He
continues to hold this position today.
Shannon filed a discrimination complaint with the Postal
Service’s Equal Employment Opportunity (“EEO”) office on
September 12, 1996. He subsequently filed charges of
discrimination with the Equal Employment Opportunity Commission
(“EEOC”). An EEOC hearing was conducted on May 21, 1998. The
EEOC made a finding of discrimination based on the Postal
Service’s failure to adhere to Shannon’s work restrictions and
awarded Shannon minimal compensatory damages for emotional
distress.
Shannon objected to the EEOC decision and filed the instant
action in the United States District Court for the Northern
District of Texas on January 8, 1999, alleging that his
supervisors discriminated against him on the basis of his
disability by refusing to adhere to his work restrictions and by
otherwise refusing to reasonably accommodate his disability.
Shannon similarly alleged that he was discriminated against
because he was “regarded as” disabled. He also asserted
discrimination claims for disability harassment and disparate
5
treatment, alleging that he was treated differently than non-
disabled employees and other employees with similar disabilities,
and made a retaliation claim, alleging that his permanent
reassignment to the clerk craft was an adverse employment action
in retaliation for his filing an EEO complaint.
The Postal Service moved for summary judgment on April 27,
2000, arguing that Shannon’s failure-to-accommodate claims should
be dismissed because his proposed accommodations for his back
injury from January 16, 1996 through June 12, 1996 were
unreasonable as a matter of law and because the Postal Service
made good faith efforts to reasonably accommodate his injuries
during this period. The Postal Service further argued that
Shannon’s retaliation claims should be dismissed, contending that
his reassignment was not an adverse employment action and that
the Postal Service had a legitimate non-discriminatory reason for
reassigning him. The district court awarded summary judgment on
the retaliation claim, finding that Shannon had not established a
prima facie case of retaliation because he failed to demonstrate
that his reassignment was an adverse employment action.3
Shannon’s remaining claims proceeded to trial by jury on
January 3, 2001. At the conclusion of Shannon’s case, the Postal
Service moved for judgment as a matter of law, arguing that
3
The district court also ruled in the summary judgment
order that reassigning Shannon to the clerk craft after his
surgery was, as a matter of law, a reasonable accommodation for
his post-surgical limitations.
6
Shannon had not established that he was an individual with a
disability as defined by the Rehabilitation Act. The court
granted this motion, finding that there was no legally sufficient
evidentiary basis for a reasonable jury to find for the plaintiff
on the issue of disability.
Shannon timely appealed.
II. SHANNON’S RETALIATION CLAIM
We review the district court’s grant of summary judgment to
the Postal Service on Shannon’s retaliation claim de novo,
applying the same standard as the district court. See Rivers v.
Central and S.W. Corp., 186 F.3d 681, 683 (5th Cir. 1999).
Summary judgment is appropriate if no genuine issue of material
fact exists, and the moving party is entitled to judgment as a
matter of law. See FED. R. CIV. P. 56(c).
The Rehabilitation Act prohibits retaliation against
individuals who have opposed discriminatory employment practices
or made charges of discrimination.4 See 29 C.F.R. § 1614.101
(2000) (“No person shall be subject to retaliation for opposing
any practice made unlawful by . . . the Rehabilitation Act or for
participating in any stage of administrative or judicial
proceedings under those statutes.”) (internal citations omitted).
4
While the Rehabilitation Act contains no parallel
language to the ADA provision prohibiting retaliatory
discrimination, the Department of Labor has promulgated a
regulation under the Rehabilitation Act barring retaliation.
7
In evaluating retaliation claims under the ADA and Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1994),
this court has applied the burden-shifting framework outlined in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Evans
v. City of Houston, 246 F.3d 344, 351 (5th Cir. 2001) (Title
VII); Seaman v. CPSH, Inc., 179 F.3d 297, 301 (5th Cir. 1999)
(ADA). While this court has not explicitly held that this
framework would also be applicable to a retaliation claim brought
under the Rehabilitation Act, both the language of the Act5 and
the findings of our sister circuits6 indicate that the same
framework should be applied to retaliation claims under the
Rehabilitation Act.
5
The Rehabilitation Act’s anti-discrimination provision
indicates that “[t]he standards used to determine whether this
section has been violated . . . shall be the standards applied
under title I of the Americans with Disabilities Act of 1990 and
the provisions of sections 501 through 504, and 510, of the
Americans with Disabilities Act of 1990, as such sections relate
to employment.” 29 U.S.C. § 794(d) (1994).
6
At least two circuits have explicitly noted that the
same standard is applicable to retaliation claims brought under
the Rehabilitation Act and the ADA. See Gribcheck v. Runyon, 245
F.3d 547, 550 (6th Cir. 2001) petition for cert. filed (Jun. 28,
2001) (No. 01-264); Hooven-Lewis v. Caldera, 249 F.3d 259, 272
(4th Cir. 2001). Similarly, other circuits have applied the
McDonnell Douglas framework to retaliation claims brought under
the Rehabilitation Act without explicitly noting that the same
standard is used for retaliation claims under the ADA. See,
e.g., Sherman v. Runyon, 235 F.3d 406, 409 (8th Cir. 2000);
Williams v. Widnall, 79 F.3d 1003, 1005 n.3 (10th Cir. 1996).
8
To establish a prima facie claim of retaliation, the
plaintiff must demonstrate that (1) the plaintiff engaged in a
protected activity, such as filing an Equal Employment
Opportunity complaint; (2) the employer took adverse employment
action against the plaintiff; and (3) a causal connection existed
between the protected activity and the adverse action. See
Seaman, 179 F.3d at 301. Once the plaintiff has established a
prima facie case, the defendant must provide a legitimate, non-
discriminatory explanation for the adverse employment action.
The plaintiff must then provide evidence that the employer’s
proffered reason is pretextual. The plaintiff retains the
ultimate burden of proof to demonstrate that the adverse
employment action would not have occurred “but for” the protected
activity. See id; see also Evans, 246 F.3d at 354 (noting that,
while the “causal link” requirement for establishing a prima
facie case of retaliation does not require a “but for” test, the
ultimate question of whether an employer has unlawfully
retaliated against an employee requires the employee to show that
the adverse employment action would not have occurred but for the
plaintiff’s participation in protected activity).
In granting summary judgment to the Postal Service, the
district court determined that Shannon had not met the
requirements for a prima facie case of retaliation. The court
found that Shannon had provided insufficient evidence that the
effects of his transfer to the clerk craft — including, by
9
plaintiff’s assessment, having his leave time accrue over the
course of the year rather than advanced at the beginning of the
year, having his holiday pay averaged into his hourly rate rather
than getting paid for holidays, loss of seniority to bid on
vacation times, and loss of advancement opportunities and future
earnings due to the change in craft designation — were
sufficiently detrimental to constitute an adverse employment
action. We find it unnecessary to determine whether a
reassignment with these effects would constitute an adverse
employment action. Even assuming, arguendo, that Shannon could
establish a prima facie case of retaliation, the Postal Service
has provided a legitimate nondiscriminatory reason for this
action. Shannon has not provided any evidence indicating that
this reason was pretextual.
The Postal Service argues that Shannon’s reassignment to the
clerk craft was a reasonable and necessary accommodation for his
post-surgical medical condition, which rendered him unable to
perform the duties of a letter carrier. While Shannon maintains
that this reason was pretextual, he provides only two arguments
in support of this position: (1) that the Human Resources and
Injury Compensation Managers who reassigned him testified falsely
when they indicated that they had not known about Shannon’s
discrimination claims when they reassigned him; and (2) that the
transfer occurred approximately six months after his maximum
10
medical improvement was determined and thus could not have been a
response to that determination.
Looking at the facts in the light most favorable to Shannon,
we must assume that Shannon is correct in his assertion that the
Human Resources and Injury Compensation Managers who reassigned
him were aware that he had filed a complaint with the EEOC.
While this court has indicated that an employer’s awareness of an
employee’s protected activity might be sufficient to establish
the “causal link” element of a prima facie case of retaliation,7
see Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 684 (5th Cir.
2001), once the employer has offered a nondiscriminatory reason
for the adverse action, additional evidence beyond mere knowledge
is necessary to demonstrate that the employer’s proffered reason
for the action is pretextual. See id.
Similarly, the timing of the allegedly adverse employment
action in this case does not provide evidence that Shannon’s
reassignment was a pretext for discrimination. While this court
has recognized that “[c]lose timing between an employee’s
protected activity and an adverse action may provide the ‘causal
connection’ necessary to establish a prima facie case of
retaliation,” Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188
7
This implication in Medina is contrary to the holdings
of other circuits. See, e.g., Sanchez v. Henderson, 188 F.3d
740, 747 (7th Cir. 1999) (finding that mere knowledge of a
plaintiff’s protected activity prior to an adverse employment
action is insufficient to establish a retaliatory motive); Hughes
v. Bedsole, 48 F.3d 1376, 1387 (4th Cir. 1995) (same).
11
(5th Cir. 1997), suspicious timing alone is insufficient to
establish pretext. See id.
The Postal Service has offered a legitimate,
nondiscriminatory reason that explains both Shannon’s
reassignment and the timing of that reassignment — namely, that
the reassignment was made to reasonably accommodate Shannon’s
changed abilities and that the delay was necessary in order to
process the reassignment administratively and to craft a position
in the Fort Worth office that would comply with Shannon’s medical
restrictions. Shannon has provided no evidence that undermines
the legitimacy of this explanation.
Because Shannon has not raised a genuine issue of material
fact indicating that he would not have been reassigned “but for”
his protected activities, the district court acted appropriately
in granting summary judgment to the Postal Service on this claim.
III. SHANNON’S DISCRIMINATION CLAIMS BASED ON ACTUAL DISABILITY
Shannon contends that the district court erred in granting
judgment as a matter of law to the Postal Service on his
disability discrimination claims. The standard of review
governing motions for judgment as a matter of law mirrors the
summary judgment standard of review. See FED. R. CIV. P. 50(a).
“Judgment as a matter of law is appropriate if, after viewing the
trial record in the light most favorable to the non-moving party,
there is no ‘legally sufficient evidentiary basis’ for a
12
reasonable jury to have found for the prevailing party.” Stokes
v. Emerson Electric Co., 217 F.3d 353, 356 (5th Cir. 2000).
Shannon’s primary discrimination claim is a failure-to-
accommodate claim arguing that the Postal Service discriminated
against him on the basis of his disability by working him beyond
his work restrictions between January, 1996 (when he reinjured
his back on the job) and June, 1996 (when his surgery rendered
him unable to perform the duties of a letter carrier).8 Shannon
also advances disability discrimination claims based on disparate
treatment, arguing that he was treated differently than employees
without physical limitations and differently than employees with
similar physical limitations, and on hostile work environment
harassment.
In order to prevail on his claims of disability
discrimination under the Rehabilitation Act, Shannon must
establish a prima facie case of discrimination — i.e., he must
establish that he is an individual with a disability, that he is
otherwise qualified, that he works for a program or activity that
8
Throughout the course of this litigation Shannon has
asserted (with varying degrees of specificity) a number of other
failure-to-accommodate claims. However, because the district
court determined in its November 27, 2000 order granting partial
summary judgment that any claims based on the 1993 injury were
barred and that Shannon’s reassignment to the clerk craft
subsequent to his June, 1996 surgery was a reasonable
accommodation (determinations that Shannon does not challenge),
his only remaining discrimination claims at trial were grounded
in his employer’s alleged conduct between January and June of
1996.
13
receives federal financial assistance, and that he was adversely
treated solely because of his disability. Chandler v. City of
Dallas, 2 F.3d 1385, 1390 (5th Cir. 1993).
The district court held that Shannon provided insufficient
evidence to demonstrate that he was an individual with a
disability within the meaning of the Rehabilitation Act during
the time period in question. To demonstrate that he is an
“individual with a disability” as defined under the
Rehabilitation Act, Shannon must demonstrate that he (1) has a
mental or physical impairment that (2) substantially limits (3)
one or more major life activities. See 29 U.S.C. § 705(9)(B)
(1994). The parties do not appear to dispute that Shannon has an
“impairment.” However, the Postal Service contends that Shannon
was not substantially limited in any major life activity between
January and June of 1996.
The Rehabilitation Act regulations define “major life
activities” to mean “functions, such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.” 29 C.F.R. § 1614.203(a)(3)
(2000). The Rehabilitation Act does not define the term
“substantially limits.” The definition of an “individual with a
disability” is substantially the same under the Rehabilitation
Act and ADA. See Kapche v. City of San Antonio, 176 F.3d 840, 844
n.27 (5th Cir. 1999). Moreover, Congress intended this
definition to be given the same construction under both statutes.
14
See Bragdon v. Abbott, 524 U.S. 624, 646 (1998). Therefore, we
can look to the ADA’s implementing regulations9 for guidance in
interpreting these terms. Regulations promulgated by the EEOC
interpreting the ADA define “substantially limits” to mean
either: (1) a total inability to perform a major life activity
that the average person in the general population can perform; or
(2) a significant restriction on the condition, manner, or
duration under which an individual can perform a major life
activity as compared to the general population. See 29 C.F.R. §
1630.2(j)(1) (2000). Factors to be considered in determining
whether an individual is substantially limited with respect to a
major life activity include “(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.” Id. at § 1630.2(j)(2).
Shannon has never clearly articulated which major life
activities he was substantially limited in his ability to perform
9
The Supreme Court has never definitively established
whether the EEOC regulations interpreting the generally
applicable provisions of the ADA, including the definition of
disability, are entitled to judicial deference. See Sutton v.
United Air Lines, Inc., 527 U.S. 471, 479 (1999) (noting that “no
agency has been delegated authority to interpret the term
‘disability’”). However, this Circuit has looked to the EEOC’s
regulations interpreting the definition of disability for
guidance in the past. See, e.g., Dupre v. Charter Behavioral
Health Sys., Inc., 242 F.3d 610, 614 (5th Cir. 2001).
15
during the time period in question. A generous reading of the
record indicates that Shannon has, at various points in this
litigation, suggested that he might have been substantially
limited in his ability to walk, lift, stand, “enjoy his life
outside of work” and work during the time period in question.
Walking and working are specifically enumerated as major life
activities in the Rehabilitation Act regulations. See 29 C.F.R.
§ 1614.203(a)(3) (2000). This court has previously recognized
lifting and standing to be major life activities as well. See
Pryor v. Trane Co., 138 F.3d 1024, 1026 (5th Cir. 1998)
(lifting); Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755,
758 (5th Cir. 1996) (standing).
With regard to Shannon’s alleged inability to “enjoy his
life outside of work,” the record reveals that Shannon appears to
be referring primarily to his abilities to engage in recreational
activities after work and to socialize with his family after
work. A number of courts have found that recreational activities
do not constitute major life activities. See, e.g., Colwell v.
Suffolk County Police Dept., 158 F.3d 635, 642-43 (2nd Cir.
1998); Wellner v. Town of Westport, -- F.Supp.2d -–, 2001 WL
987492, at *2 (D.Conn. Aug. 8, 2001); Ouzts v. USAir, Inc., No.
94-625, 1996 WL 578514, at *14, n.14 (W.D.Pa. Jul. 26, 1996),
aff'd, 118 F.3d 1577 (3d Cir. 1997). The record reveals that the
only recreational activity that Shannon indicates he was unable
to perform during the specific time period in question is
16
recreational hunting. We find that recreational hunting is not a
major life activity for the purposes of disability determinations
under the ADA and the Rehabilitation Act.
Courts are split as to whether “socialization” (i.e., “the
ability to get along with others”) constitutes a major life
activity. Compare Soileau v. Guilford of Maine Inc., 105 F.3d
12, 15 (1st Cir. 1997) (expressing doubt that the "ability to get
along with others" constitutes a major life activity) with
McAlindin v. County of San Diego, 192 F.3d 1226, 1234 (9th Cir.
1999) ("Because interacting with others is an essential, regular
function, like walking and breathing, it easily falls within the
definition of ‘major life activity.’"). For the purposes of this
appeal, we shall assume without deciding that socialization is a
major life activity.
Thus, we evaluate whether Shannon’s back problems resulted
in a substantial limitation on his ability to walk, lift, stand,
work, or socialize with his family between January and June of
1996. The ADA’s implementing regulations instruct us to consider
“working” as a major life activity only if an individual is not
substantially limited with respect to any other major life
activity. See 29 C.F.R. § 1630, App., § 1630.2(j) (2000) ("If an
individual is not substantially limited with respect to any other
major life activity, the individual's ability to perform the
major life activity of working should be considered. If an
individual is substantially limited in any other major life
17
activity, no determination should be made as to whether the
individual is substantially limited in working."). Therefore, we
begin by considering Shannon’s limitations with respect to
walking, lifting, standing, and socializing.
Though at least one court has suggested that it is
inappropriate to look exclusively at the activity restrictions
ordered by an individual’s doctor in determining whether that
individual qualifies as an individual with a disability, see
Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933, 936-37
(3rd Cir. 1997) questioned on other grounds in Sutton, 527 U.S.
at 477, in the instant case the CA-17 work restriction forms are
perhaps the best evidence available of Shannon’s ability to
perform many of the major life activities listed above. Shannon
was subject to some restriction on his ability to walk, lift, and
stand from January 19 through 31 and was subject to a restriction
on his ability to walk for the first three weeks of February.
However, from the beginning of the fourth week of February (when
this three-week restriction expired) through June 7, 1996,
Shannon’s doctor had released him to return to work without any
enumerated restrictions on his duties.10 Thus, for significantly
10
Shannon maintains that he was still subject to work
restrictions after his three-week walking restriction in the
January 31 CA-17 expired because that CA-17 contained a note
indicating that his duties were “subject to employee input.”
However, as this language is contained on the portion of the CA-
17 that is filled out by Shannon’s employer rather than his
doctor, it is not relevant to our examination of Shannon’s
doctor’s assessment of his physical capabilities.
18
more than half of the time period in question, Shannon was, in
the assessment of his treating medical professionals, fully
capable of performing all of the requirements of his job,
including two to four hours per day of lifting, one to two hours
per day of standing, and two to four hours per day of walking.
The remaining evidence in the record does not contradict
this assessment. The record contains very little testimony from
Shannon himself regarding his restrictions during this time
period. While Shannon testifies in great detail about the impact
of his surgery and his current, post-surgical limitations, during
the six-month time period in question, the record reveals only
that he was experiencing back pain and numbness that radiated
down his legs, that he was attending physical therapy for his
back problems, and that he considered his physical condition to
be “really bad off.” His testimony does not indicate any
specific physical activities that he was unable to perform during
this period (when he was working full time), other than that he
was unable to continue his recreational hunting and that he was
unable to perform overtime at work. Testimony provided by
Shannon’s coworkers indicates only that Shannon appeared to be in
pain during this time period and that he often requested
assistance so that he would not have to perform overtime at work.
While this court is sympathetic with Shannon’s plight, the
fact that he was experiencing pain and was unable to work
overtime is insufficient to demonstrate that he was substantially
19
limited in his ability to walk, stand, or lift during the first
six months of 1996, especially in light of his doctor’s
assessment indicating that he was able to meet the significant
lifting, standing, and walking requirements of his job without
restriction for more than half of the time period in question.
See, e.g., Penny v. United Parcel Serv., 128 F.3d 408, 415 (6th
Cir. 1997) (finding that plaintiff’s claim that it was painful to
walk did not rise to the level of a disability). Moreover, even
considering Shannon’s condition when he was subject to numerous
restrictions, this court and our sister circuits have considered
and rejected ADA claims of individuals with standing, walking,
and lifting restrictions equivalent to or greater than Shannon’s
on the grounds that these individuals were not substantially
limited in any major life activities. See, e.g., Dupre, 242 F.3d
at 614 (rejecting the claim of an individual who could not stand
continuously for more than one hour); Kelly v. Drexel Univ., 94
F.3d 102, 105-07 (3rd Cir. 1996) (rejecting the claim of an
individual who could not walk more than one mile); Williams v.
Channel Master Satellite Sys. Inc., 101 F.3d 346, 349 (4th Cir.
1996) (rejecting the claim of an individual who could not lift
more than twenty-five pounds).
We turn next to Shannon’s claim that his back condition
substantially impaired his ability to socialize with his family
in after-work hours. Although the record contains extensive
testimony from both Shannon and his wife regarding the emotional
20
impact of his back problems and their effect on his family life,
much of this testimony appears to be specific to the effects of
his initial injury in 1993 or to the effects of his surgery and
subsequent reassignment in late 1996 and 1997. Both of these
time periods are foreclosed from this court’s inquiry. Reading
the record generously, Shannon’s primary complaints with respect
to his ability to socialize with his family during the six-month
period relevant to this litigation appear to be that he was too
tired at the end of the day to play with his children and that he
was hostile and moody and otherwise unable to socialize with his
family or friends in the evenings because he was preoccupied with
resting and with his concerns regarding his injury.
Initially, this court notes that these effects on Shannon’s
ability to socialize appear to be attributable more to his work
and his frustration with his treatment by his supervisors than to
his injury itself. Even if we assume that Shannon’s decreased
ability to socialize with his family during this time period was
attributable to his back condition, the evidence is insufficient
to provide a triable issue of fact regarding whether these
limitations rise to the level of a disability. To show that he
was “substantially limited” with respect to a major life activity
other than working, Shannon must demonstrate that he was
“[s]ignificantly restricted as to the condition, manner or
duration” under which he could perform this activity “as compared
to the condition, manner, or duration under which the average
21
person in the general population can perform that same major life
activity.” 29 C.F.R. § 1630.2(j) (2000). While this court does
not question that Shannon’s injury might have constrained his
ability to socialize with his family and friends, the record does
not provide any evidence that Shannon was more limited in his
ability to socialize than the average person who is tired after a
long and frustrating workday. Thus, Shannon cannot be deemed an
“individual with a disability” based on this limitation.
Because we have found that Shannon was not substantially
limited in the major life activities of walking, standing,
lifting or socializing, we turn finally to assess whether he was
substantially limited in his ability to work during the relevant
time period. In order to establish a substantial limitation on
the major life activity of “working,” Shannon must demonstrate
that he was significantly restricted in his ability to perform
either a class of jobs or a broad range of jobs in various
classes. See Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727
(5th Cir. 1995) (citing 29 C.F.R. § 1630.2(j)(3)(i)). Evidence
of disqualification from a single position or narrow range of
jobs will not support a finding that an individual is
substantially limited from the major life activity of working.
See id. at 727; see also Chandler, 2 F.3d at 1392 ("An impairment
that affects only a narrow range of jobs can be regarded either
as not reaching a major life activity or as not substantially
22
limiting one.") (quoting Jasany v. U.S. Postal Serv., 755 F.2d
1244, 1249 n.3 (6th Cir. 1985)).
Initially, it is important to note that during the time
period in question, there is strong evidence that Shannon was not
substantially limited in his ability to perform even the
particular carrier position that he held. He performed that job
without restrictions and without significant accommodations
(other than occasional assistance from other carriers so that he
could avoid overtime work and the removal of two streets from his
route) for most of the six month period. Moreover, even if
Shannon was substantially limited in his ability to perform his
particular job and should have had greater restrictions from his
doctor and greater accommodations from his employer as he
contends, this is still insufficient to establish that he was
substantially impaired in his ability to work. Shannon suggests
at numerous points in his testimony that there were other
positions within the carrier craft that he would have been able
to perform during this time period prior to his surgery,
including express mail delivery or a primarily driving-based
delivery route. Thus, Shannon does not present a triable issue
of fact as to whether he was substantially limited in his ability
to work because he grants that he was not restricted in his
ability to perform either an entire class of jobs or a broad
range of jobs in various classes.
23
Because Shannon has not demonstrated that his back condition
substantially limited his ability to perform any major life
activity during the first six months of 1996, he has not
established a prima facie case of disability discrimination under
the Rehabilitation Act. The trial court acted properly in
granting judgment as a matter of law to the Postal Service on
Shannon’s failure-to-accommodate, disparate treatment, and
disability harassment11 claims to the extent that these claims
are grounded in alleged discrimination based on actual disability
rather than discrimination based on perceived disability.
IV. SHANNON’S CLAIMS BASED ON PERCEIVED DISABILITY
Shannon also argues that he was discriminated against
because he was “regarded as” disabled. Although this claim is
inadequately developed throughout this litigation, in the
interest of fairness we shall nonetheless address it.
“In order to be ‘regarded as’ disabled a plaintiff must:
(1) have a physical or mental impairment that does not
substantially limit major life activities, but be treated as such
by an employer; (2) have a physical or mental impairment that
substantially limits one or more major life activities, but only
because of the attitudes of others toward the impairment; or (3)
11
Membership in the protected group (i.e., “individuals
with disabilities”) is a requirement to succeed in a cause of
action for disability-based harassment. See Flowers v. S. Reg’l
Physician Servs., Inc., 247 F.3d 229, 235 (5th Cir. 2001).
24
have no actual impairment at all, but be treated by an employer
as having a substantially limiting impairment. The plaintiff
also must establish that the impairment, if it existed as
perceived, would be substantially limiting.” McInnis v. Alamo
Cmty. College Dist., 207 F.3d 276, 281 (5th Cir. 2000) (internal
citations omitted).
Though the exact nature of Shannon’s “regarded as” claim is
unclear from the record, we presume that he intends to argue that
he falls within either the first or the third categories
described above, i.e., that he has an impairment that is not
substantially limiting but that his employer treated as such, or
that he had no actual impairment but was treated as if he did.
Either of these positions is nonsensical as applied to Shannon’s
failure-to-accommodate claim, as the basis of this claim is
Shannon’s assertion that his employer did not regard him as being
disabled enough to warrant accommodations, not that his employer
perceived him to be more disabled than he actually was.
Shannon’s “regarded as” argument is similarly inapplicable
to his disparate treatment claim. The crux of this claim (as it
applies to the time period at issue in this case) is that Shannon
was not provided with the same type of accommodations that were
provided to other employees with similar physical limitations —
again, arguing that his employer did not regard him as being
disabled enough, not that his employer regarded him as being too
disabled to do his job.
25
Thus, we shall assume Shannon intends to argue that he was
discriminated against based on perceived disability only in the
sense that he was subject to hostile work environment harassment
because he was “regarded as” disabled. Specifically, Shannon’s
testimony indicates that two of his supervisors would sometimes
tell him he was doing a bad job, two supervisors would question
whether he was actually as impaired as he claimed, one supervisor
would sometimes walk away rather than listen to his requests for
assistance with his route, another supervisor threatened him with
a letter of warning for absenteeism on one occasion, and one
supervisor once “assaulted” him by poking a finger in his face.
Viewing any factual disputes in the light most favorable to
the nonmoving party, we will assume that all of Shannon’s
allegations are true. Nonetheless, we shall disregard the
incidents where Shannon’s supervisors questioned whether he was
actually disabled, as these incidents indicate that his employer
regarded him as physically capable and thus do not support his
claim that he was harassed because he was “regarded as” disabled.
Examining the other incidents in totality, Shannon has not
alleged sufficiently pervasive disability-based harassment to
state a claim upon which relief can be granted.
In order to be actionable on a hostile environment theory,
disability-based harassment, like sexual harassment, must "be
sufficiently pervasive or severe to alter the conditions of
employment and create an abusive working environment." McConathy
26
v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir. 1998)
(quoting Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806
(5th Cir. 1996)). Even assuming that all of Shannon’s allegations
are true, his supervisors’ behavior, while certainly insensitive,
is not sufficient as a matter of law to state a claim for hostile
environment harassment. This court has recognized that “a few
harsh words or ‘cold shouldering’ . . . [is not] an actionable
offense.” Id. at 564. As the few instances of harassing
behaviors that Shannon reports with any specificity in his
testimony are generally of the “harsh words and cold shouldering”
variety, he has not provided sufficient evidence to raise a
triable issue of fact as to whether he was subject to disability
harassment.
V. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
27