Osvаldo DE LA ROSA, Plaintiff-Appellant, v. John E. POTTER, Postmaster General, United States Postal Service Agency, Defendant-Appellee.
No. 10-420-CV.
United States Court of Appeals, Second Circuit.
April 5, 2011.
Mark J. Berkowitz, Fort Lauderdale, FL, for Appellant.
Li Yu, Ross E. Morrison, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
PRESENT: CHESTER J. STRAUB, ROBERT D. SACK and GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
Plaintiff-appellant Osvaldo De La Rosa* sued his former employer, the United States Postal Service (“USPS“), after he was deniеd a permanent mail carrier position at the end of his ninety-day probation-
On appeal, De La Rosа challenges only the district court‘s grant of summary judgment on his Rehabilitation Act claims. We therefоre need not address the other aspects of the district court‘s decision. See Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir.2006). We review the district court‘s grant of summary judgment de novo. Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 274 (2d Cir. 2009). Rehabilitation Act claims are analyzed under the familiar three-step burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Rеg‘l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 48 (2d Cir.2002). The plaintiff bears the initial burden of demonstrating a prima facie case of discrimination. Id. at 48-49. To carry that burden, “a plaintiff must prove,” among othеr things, that “he is an individual with a disability.” D‘Amico v. City of New York, 132 F.3d 145, 150 (2d Cir.1998) (internal quotation marks omitted). At the time of the events in question, the Rehabilitation Act defined the phrase “individual with a disability” to include employees who are “regarded as” disabled by their employer. See
De La Rosa has abandoned any claim that he was actually disаbled. See Bogle-Assegai, 470 F.3d at 504. His only argument on appeal is that, after his injury, USPS perceived him as disabled and discriminated against him on that basis by terminating his employment at the conclusion of his probationary period. That argument is unpersuasive.
It is undisputed that De La Rosa‘s doctors, his employer, аnd even De La Rosa himself anticipated a fast and full recovery from his back injury. In fact, De La Rosa was able to complete his route on the very day that he was injured, and USPS appears to have offered De La Rosa an opportunity to begin a new probаtionary period once his back healed. A “temporary impairment” lasting only a few months is, “by itself, too short in duration to be substantially limiting.” Adams v. Citizens Advice Bureau, 187 F.3d 315, 316-17 (2d Cir.1999) (internal alteration and quotation marks omitted). Because De La Rosa offers no evidence that USPS believed his injury to be anything other than a tеmporary setback requiring (at most) a short-term reduction in duties, no reasonable jury could conclude that USPS perceived De La Rosa as disabled within the meaning of the Rehabilitatiоn Act.
De La Rosa‘s only evidence comes from his supervisor‘s signature on a claim for continuation of pay form indicating that De La Rosa was “disabled [from] work.” But, as USPS points out and Dе La Rosa does not contest, the form in question refers to disability under the Federal Employеes’ Compensation Act (“FECA“), which defines “disabled” in terms substantially broader than its definition under the Rehabilitation Act. Compare
We have considered аll of De La Rosa‘s arguments on appeal and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.