Ronald H. Winslow v. Lawrence Summers

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-3899
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Ronald H. Winslow, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Lawrence Summers, Secretary of the *
Department of Treasury, * [UNPUBLISHED]
*
Appellee. *
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Submitted: October 19, 2000
Filed: October 27, 2000
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Before McMILLIAN, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
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PER CURIAM.
Ronald H. Winslow appeals the District Court’s1 adverse grant of summary
judgment to the Secretary of the Department of the Treasury (Secretary) in Winslow’s
employment discrimination suit. Having carefully reviewed the record and the parties’
1
The Honorable Robert E. Larsen, United States Magistrate Judge for the
Western District of Missouri, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
briefs, we affirm. See Crawford v. Runyon, 37 F.3d 1338, 1340-41 (8th Cir. 1994)
(standard of review).
Initially, we note that Winslow was precluded from basing his discrimination
claims on gender, as he failed to raise gender as an issue in his Equal Employment
Opportunity Commission charges. See Kells v. Sinclair Buick--GMC Truck, Inc., 210
F.3d 827, 836-37 (8th Cir. 2000). Accordingly, we consider only handicap
discrimination and retaliation.
As to the denial of Winslow’s November 1990 temporary-transfer request, we
agree with the District Court that he failed to show he was “handicapped” at that time:
the record is devoid of evidence regarding limitations in major life activities other than
working, and his doctor had recommended only lifting (and later cold-air) restrictions,
suggesting his condition would improve. See Demming v. Housing & Redev. Auth.,
66 F.3d 950, 954-55 (8th Cir. 1995) (finding Rehabilitation Act plaintiff must first
prove he has physical/mental impairment substantially limiting major life activity, or
has record of or is regarded as having such impairment); cf. Wooten v. Farmland
Foods, 58 F.3d 382, 385-86 & n.2 (8th Cir. 1995) (holding in Americans with
Disabilities Act (ADA) context, employee limited to light duty involving no work with
meat products or in cold environment was precluded from only narrow range of jobs,
and thus was not substantially limited in major life activity of working). In addition,
Winslow did not establish a connection between the temporary-transfer denial and his
protected Equal Employment Opportunity (EEO) activities. See Cossette v. Minnesota
Power & Light, 188 F.3d 964, 972 (8th Cir. 1999) (defining prima facie case of
retaliation).
We further agree with the District Court that the claim related to the denial of
Winslow’s May 1991 permanent-transfer request was time-barred, and we reject
Winslow’s continuing-discrimination argument as meritless. See Scott v. St. Paul
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Postal Serv., 720 F.2d 524, 525 (8th Cir. 1983) (per curiam), cert. denied, 465 U.S.
1083 (1984).
Winslow’s claim regarding his erroneous disqualification from consideration for
an open position in November 1991 also fails. Even assuming, as did the District
Court, that he was “handicapped” at that time, Winslow did not demonstrate that the
Secretary acted “in circumstances that raise an inference of unlawful discrimination,”
Crawford, 37 F.3d at 1341, or that the disqualification was connected to his EEO
activities. The Secretary readily admitted that the disqualification (based on failure to
meet the time-in-grade requirement) was an error, and Winslow does not dispute that
all wage-grade applicants were similarly disqualified from consideration. Instead, he
contends--without support--that the Secretary disqualified the others to avoid hiring
him. See Stanback v. Best Diversified Prods., Inc., 180 F.3d 903, 909 (8th Cir. 1999)
(finding general statements in affidavits and depositions are insufficient to defeat
properly-supported summary judgment motion).
Finally, we hold that the other allegedly discriminatory acts--an April 1991
evaluation and Winslow’s assignment as acting foreman for only thirty days--did not
constitute adverse employment actions. Cf. Cossette, 188 F.3d at 972 (finding
negative performance appraisal did not by itself constitute adverse employment action
within ADA’s contemplation; at most, it resulted in loss of status without material
change in salary, position, or duties).
Accordingly, we affirm.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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