Thomas LEEDS, Plaintiff-Appellant, v. John E. POTTER, Postmaster General, Defendant-Appellee.
No. 06-4628
United States Court of Appeals, Sixth Circuit
Oct. 3, 2007
CLAY, Circuit Judge.
Plaintiff Thomas Leeds, an employee of the United States Postal Service, appeals the district court‘s grant of summary judgment in favor of Defendant John Potter, Postmaster General, dismissing Plaintiff‘s age, race and disability discrimination claims. For the reasons set forth below, this Court AFFIRMS the district court‘s grant of summary judgment.
BACKGROUND
Plaintiff, a white male, began working with the United States Postal Service (“USPS“) in 1974 as a part-time flexible letter carrier. In 1983 he suffered a back injury while on the job, which subsequently resulted in back surgery. When Plaintiff returned to work after his surgery, he was placed in a “limited duty” position in the Rewrap Section since he was no longer able to function as a mail carrier. These positions are reserved to accommodate employees injured while on the job and to allow them to perform restricted functions to aid in their recovery. Specifically, Plaintiff‘s job offer for the Rewrap Section position stated:
This restricted duty position is tailored to meet your personal physical limitation. This job does not qualify as a position which requires assignment to a competitive seniority bidding. All positions requiring assignment by seniority contain duties within different job descriptions which are contrary and contro-convalescent to your physical condition. Therefore, although you have and gain in seniority, you cannot bid on other assignments unless your physical condition improves to permit your reassignment.
(J.A. at 157.) Sometime later Plaintiff requested and was granted a transfer to the non-restricted position of forklift operator.
As a result of the accident, Plaintiff‘s forklift license was suspended pursuant to standard USPS procedure. The suspension lasted for some period between thirty and ninety days.3 Due to the suspension, Plaintiff could not work as a forklift operator. On September 30, Rachel McGrady, a temporary supervisor who was assigned to oversee Plaintiff that day, sent Plaintiff to work on the sack sorter machine. Plaintiff agreed to do the work but later told Manager of Distribution Operations Hugh Martin that the job was “kicking [his] ass.” (J.A. at 105.) He told supervisor Ron Parsel the same thing. They both told Plaintiff he should “hang in there” and “be careful.” (J.A. at 105.)
On his fourth day on the sack sorter machine, Plaintiff left early because of back pain. He returned to work on October 7, 2002 and was assigned to sort loose mail. Later that day, Plaintiff complained of back pain so severe that a co-worker drove him to an urgent care medical facility. He was diagnosed with a strain, and returned to work to finish his shift. The following day Plaintiff was not scheduled to work and saw a doctor. By October 11, 2002, Plaintiff was under several medical restrictions and did not return to work until December 16, 2002, at which time he returned only to submit further documentation that he could not continue to work.
On January 17, 2003, Plaintiff filed a claim with the EEO officer for age, disability and race discrimination. The claim was dismissed as untimely. Plaintiff brought suit in district court, asserting claims of disability discrimination pursuant to the
DISCUSSION
A. Standard of Review
This Court reviews a district court‘s grant of summary judgment de novo. Blackmore v. Kalamazoo County, 390 F.3d 890, 894-95 (6th Cir.2004). Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.”
To support its motion, the moving party may show “that there is an absence of evidence to support the nonmoving party‘s case.” Id. at 325. While all inferences must be drawn in favor of the nonmoving party, this Court is under no obligation to imagine favorable facts where the nonmoving party has alleged none. “[T]he mere existence of a scintilla of evidence in support of the plaintiff‘s position will be insufficient [to defeat a motion for summary judgment]; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
B. Analysis
1. Racial Discrimination Claim
Regulations for federal employees require that if a party claiming discrimination does not file a complaint with an EEO counselor within forty-five days of the offense, the complaint must be dismissed by the agency as well as the district court unless estoppel or equitable tolling applies.
We have held that “[t]he forty-five day filing period is not a jurisdictional prerequisite, and can be tolled where principles of equity demand it.” Steiner v. Henderson, 354 F.3d 432, 435 (6th Cir. 2003). However, tolling should be “available only in compelling circumstances.” Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1488 (6th Cir.1989). This Court looks to five factors to determine whether equitable tolling is available: “(1) whether the plaintiff had actual notice of the time restraint; (2) whether she had constructive notice of the time restraint; (3) the degree of diligence exerted in pursuing her rights; (4) the degree of prejudice to the defen-
In the instant case, it is undisputed that Plaintiff had no actual or constructive notice of the time restraint and such ignorance was certainly reasonable. Ogletree, Plaintiff‘s direct supervisor, testified that even he was unaware of the requirements to file an EEO complaint. Defendant focuses his argument on the fact that Plaintiff was not diligent in pursuing his rights against Defendant. Equitable tolling would be proper if Plaintiff‘s failure to file within the appropriate deadline “unavoidably arose from circumstances beyond [Plaintiff‘s] control.” Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000).
The undisputed facts of the instant case indicate that Plaintiff did not exercise due diligence. As stated in the district court opinion, Plaintiff‘s argument that Ogletree‘s promise to take action justified Plaintiff‘s delay in filing an EEO claim is not persuasive. Leeds v. Potter, No. 1:04-CV-429, 2006 WL 2860980, at *7 (S.D.Ohio Oct.4, 2006). Two weeks after the incident, Plaintiff knew that his supervisors had not disposed of the matter to his satisfaction. At that point, Plaintiff was on notice as to how the USPS was handling the situation, and if he found it unsatisfactory, he should have initiated the grievance process with the EEO counselor. Instead, Plaintiff waited an additional four months before filing a complaint. As the district court noted, Plaintiff stated that he filed a grievance with his union regarding his discrimination claims and that he decided to file an EEO claim when he discovered that his grievance had not been acted upon. Leeds, 2006 WL 2860980, at *6. Thus, the four-month delay in filing an EEO claim was not attributable to Ogletree‘s assurances but to the union‘s failure to act upon Plaintiff‘s grievance. Further, a review of the complaint that was ultimately filed reveals that while Plaintiff did mark the appropriate box alleging racial discrimination along with his other claims, his brief narrative of the discriminatory event makes no mention of North‘s comments. By filing a complaint with the EEO counselor four months late and failing to include any mention of his racial discrimination claim in this complaint, Plaintiff failed to diligently pursue his racial discrimination claim. Equitable tolling should be invoked only in rare cases where the facts illustrate that the plaintiff‘s case is compelling; this is not the case in Plaintiff‘s situation. See Puckett, 889 F.2d at 1488. Thus, the district court properly refused to invoke the doctrine of equitable tolling to save Plaintiff‘s claim from being time-barred.
2. Disability Discrimination Claim
Plaintiff also argues that the district court erred in granting Defendant summary judgment on the merits of Plaintiff‘s disability discrimination claim brought under the Rehabilitation Act. Plaintiff claims that Defendant refused to provide reasonable accommodation of his disability. However, Plaintiff failed to give Defendant notice of his need for accommodation. This court agrees with the district court‘s determination that Defendant‘s general statement regarding the difficulty of his new work assignment was not enough to constitute a request for accommodation.
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court created a framework for analyzing Title
Plaintiff brings his disability discrimination claim under the Rehabilitation Act. “The Rehabilitation Act prohibits the United States Postal Service from discriminating against their employees on the basis of a disability.” DiCarlo v. Potter, 358 F.3d 408, 418 (6th Cir.2004) (citing
A disability is defined as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.”
As this Court has held, “the ‘otherwise qualified’ inquiry requires a consideration not only of the [disabled] applicant‘s ability to perform the job‘s essential function, but also whether a reasonable accommodation by the employer would enable the handicapped person to perform those functions.” Hall v. United States Postal Service, 857 F.2d 1073, 1078 (6th Cir.1988). Thus, a disabled employee will still be considered otherwise qualified if a reasonable accommodation by the employer would render the employee capable of performing the “essential functions” of the job. Id. “Although a ‘reasonable accommodation’ may include reassignment to a vacant position,
In the instant case, Plaintiff contends that the decision to place him in positions that were too physically taxing for him to perform constituted discrimination whereas his position as a forklift operator accommodated his disability. However, importantly, Plaintiff was unqualified for the position of forklift operator following his accident because it is the policy of the USPS to suspend the forklift license of any individual involved in an accident pending investigation. Thus, Plaintiff does not attempt to allege that the decision to remove him from his forklift position was itself an aspect of the alleged discrimination. Because the event disqualifying him from the position he sought was not motivated by the discrimination he alleges, Plaintiff cannot contend that he was otherwise qualified to hold the position with a reasonable accommodation for his disability; Plaintiff was unqualified for the position of forklift operator because of a validly suspended license and not because of his disability. Thus, Plaintiff cannot succeed on this prong.
Plaintiff also cannot show that his supervisors had knowledge of his disability as is required to establish a prima facie case. As this Court has explicitly held, “an employer cannot be said to know or have reason to know of an employee‘s disability where that employee returns to work without restriction or request for accommodation. The natural assumption in such a case is that the employee is fully fit for work.” Hubbs v. Textron, Inc., 2000 WL 1032996, at *2 (6th Cir.2000). A plaintiff must show that an “accommodation was needed, in that a causal relationship existed between the disability and the request for accommodation.” Gerton v. Verizon S. Inc., 145 Fed.Appx. 159, 164 (6th Cir.2005). Thus, not only does a plaintiff have to show that supervisors actually knew of the disability, but he or she must show that an accommodation was requested and the employer failed to provide a reasonable accommodation. Gaines, 107 F.3d at 1175.
In the instant case, Plaintiff admits that the supervisor directly responsible for reassigning him after his license was suspended was unaware that Plaintiff ever had a medical problem. Plaintiff also does not contest that the most recent letter from a doctor in his personnel file specified that he was not on any work restrictions. Finally, he does not dispute the fact that according to the job description for his Rewrap Section position, the one restricted work position Plaintiff did hold following his surgery, he could only be reassigned to a position based on seniority (like the forklift operator position) if his physical condition improved such that he was no longer restricted. As the district court noted, these facts all indicate that Plaintiff‘s supervisors had no way of knowing that Plaintiff still suffered from a disability that required an accommodation. Leeds, 2006 WL 2860980, at *10.
Naturally, if Plaintiff had requested a reasonable accommodation, his supervisors would have been put on notice of his disability. Plaintiff alleges that his comments to supervisors Martin and Parsel that the position he held after his license was pulled was “kicking [his] ass” constituted requests for accommodations. (J.A. at 105.) However, these statements are not nearly specific enough to be considered requests for accommodations. While this Court has held that an employee need not use the magic words “accommodation” or even “disability,” the request does need to make it clear from the context that it is being made in order to conform with existing medical restrictions. Smith v. Henderson, 376 F.3d 529, 535 (6th Cir.
CONCLUSION
Because the district court properly concluded that equitable tolling was not available for Plaintiff‘s racial discrimination claim and that Plaintiff did not establish a prima facie case of disability discrimination, this Court AFFIRMS the district court‘s grant of summary judgment to Defendant.
Ronald D. SKELTON, Plaintiff-Appellant, v. SARA LEE CORPORATION, Defendant-Appellee.
No. 06-4234
United States Court of Appeals, Sixth Circuit
Oct. 3, 2007