Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

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Case 2:03-cv-01876-NVW Document 52 Filed 08/02/2005 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) John E. Potter, Postmaster General of the) ) United States, ) ) Defendant. ) ) Donald Thompson,

No. CV-03-1876-PHX-NVW ORDER

Pending before the court is Defendant John E. Potter's Motion for Summary Judgment (Doc. #32), his Motion to Strike (Doc. #45), Plaintiff Donald Thompson's ("Thompson") respective responses, and Defendant's reply briefs. Thompson alleges he was unlawfully discriminated and retaliated against because of his reactive airways disease. I. Factual Background Thompson worked for the United States Postal Service ("USPS") between 1981 and 2000, except for a brief period when he served in the Gulf War. (DSOF ¶ 2, 4). Beginning in November 1993, he worked as a custodial laborer at the General Mail Facility in Phoenix, Arizona. (Id. ¶ 6.) Plaintiff worked the "west wall route," which entailed cleaning offices that were mostly carpeted, and cleaning and occasionally waxing tile floors. (Id. ¶ 11.) Thompson began experiencing respiratory problems after he returned from the Gulf War.

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(Id. ¶ 5.) He had bouts of acute bronchitis and was diagnosed with reactive airways disease in May 1994. (Id. ¶ 8; PSOF ¶ 32.) Thompson was hospitalized on June 10, 1997 due to elevated blood pressure and dizziness. (Id. ¶ 14.) He was examined by Dr. Sandra MacDonald, a psychiatrist, who concluded that Thompson could return to work on June 21, 1997, with no restrictions. (Id. ¶ 14.) The USPS Medical Unit issued a PS form in accordance with Dr. MacDonald's findings. (Id. ¶ 14.) Before returning to work Thompson learned that his supervisor, Leon Johnson, was planning to transfer him from the west wall route to wax detail. (Id. ¶ 15.) This information prompted Thompson for an unspecified reason to see his doctor, Michael Adickman, on June 20, 1997. (Id. ¶ 15.) Dr. Adickman provided Thompson with a note that stated: "Donald Thompson is not to work on waxing detail. It will provoke his lung disease." (Id. ¶ 15.) Thompson gave this note to Johnson when he returned to work. (Id. ¶ 16.) He also gave Johnson a written request for a reasonable accommodation that he be kept on the west wall route, or another position away from heavy dust and waxing. (Id. ¶ 16.) Johnson thus had two conflicting notes: one from the Medical Unit saying that Thompson could work without restrictions and one from Dr. Adickman placing a restriction on Thompson's work. (Id. ¶ 16.) Johnson conferred with his supervisor, Brian Cornelius, about these notes. (Id. ¶ 16.) Meanwhile, Thompson worked the west wall route night shift on June 20, 21, and 22. (PSOF ¶ 4.) Cornelius took Thompson off work before the end of Thompson's June 22nd shift because it was determined they "could not continue to work Mr. Thompson in any capacity until his medical condition was clarified." (Id. ¶ 5.) USPS then asked Dr. Adickman to clarify the limitations of Thompson's disease. Dr. Adickman provided the following clarification in a letter: It appears as though the patient's problem is directly produced by exposure to wax or wax fumes. Consequently, it would be in my patient's best interest not to work in an area where the floor wax is used. Ideally, it would be best if Don did not have to work in the building or on the floor where wax is used at all.

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(DSOF ¶ 17.) The Medical Unit issued another PS form in accordance with this letter. (Id. ¶ 17.) Based on the Medical Unit's PS form, Cornelius asked Thompson to submit requests for light duty work. (Id. ¶ 17.) Thompson responded that he was not requesting light duty work or any kind of leave, or even an accommodation to perform the west wall duty, but a reasonable accommodation that he not work directly with wax in the future. (Id. ¶ 19.) The parties went forward with various administrative procedures, including gathering more medical information. On August 5, 1997, Dr. Adickman clarified his diagnosis by explaining that Thompson "has severe aggravation of his reactive airways disease when exposed to wax or wax fumes." (Id. ¶ 22.) He advised that Thompson "cannot work directly in areas where the wax has been used. Presumably this may be any surface to which it has been applied indoors. Obviously, Donald would be more suited for outdoor work." (Id. ¶ 22.) Johnson concluded from this letter that there were no positions under his supervision that Thompson was "medically capable of doing." (Id. ¶ 25.) In an additional effort to learn about Thompson's limitations, he was examined by Dr. Robert Comp, a pulmonologist. (Id. ¶ 32.) In his January 8, 1998 report, Dr. Comp concluded "that Thompson suffered from reactive airways disease exacerbated by exposure and suggested as an accommodation that Thompson avoid wax exposure." (Id. ¶ 32.) The USPS also tried to obtain information about the type of wax to which Thompson could not be exposed and at what level wax fumes became harmful to him. In January 2000, Thompson was examined by another pulmonologist, Brendon Thomson, who found that Thompson should avoid "even minute quantities" of the vapors in floor waxes and paints. (Id. ¶ 44.) He stated that Thompson should not work where floors have been waxed for several hours. (Id. ¶ 44.) USPS also provided sheets of wax used at the General Mail Facility to Dr. Adickman for his evaluation. (Id. ¶ 35.) Dr. Adickman responded that . . . it is in Mr. Thompson's best interest if he avoids wax altogether. He needs a new job description where he does not have to exposed to wax products whatsoever. There is no assurance that just changing brands of wax is going to eliminate the problem. In fact, I think we can anticipate that his sensitivity will span a wide spectrum of wax products, all of which may aggravate his severe reactive airways disease. -3Case 2:03-cv-01876-NVW Document 52 Filed 08/02/2005 Page 3 of 10

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(Id. ¶ 35.) Dr. Adickman later testified that he "overstated the case" of Thompson's limitations, (Id. ¶ 37), and that his disease was only "mild to moderate." (Id. ¶ 50.) Nonetheless, he maintained that Thompson "cannot work directly in areas where the wax is being used or has recently been used" (Id. ¶ 50) and could return to work as long as he was never exposed to the fumes of fresh wax. (Id. ¶ 37.) On August 21, 2000, the USPS issued a letter removing Thompson from the Postal Service because he was "physically incapable of performing the duties of any postal position due to a permanent medical condition that sensitizes you to the chemical components of wax and wax products used in all Postal facilities." (Id. ¶ 45.) In the meantime, Thompson received a teacher's certificate and a masters degree in education in June 2000. He has been working as a teacher since August 2000. After other administrative proceedings were decided against him, Thompson filed a pro se Complaint on September 26, 2003. He obtained counsel and filed an Amended Complaint in this court alleging discrimination based on disability and retaliation under the Rehabilitation Act of 1973, as amended 29 U.S.C. §§ 791 & 794a(1). Defendant moves for summary judgment on the ground that Thompson cannot establish a prima facie case of discrimination or retaliation. II. Legal Analysis A. The Rehabilitation Act and the Americans with Disabilities Act The Rehabilitation Act applies to federal employees and was enacted prior to the Americans with Disabilities Act, 42 U.S.C. § 1211 et seq. ("ADA"). It was later amended to incorporate the substantive standards of the ADA, 29 U.S.C. § 791(g), and courts rely on ADA cases in interpreting the Rehabilitation Act. See Giebeler v. M & B Assocs., 343 F.3d 1143, 1146 n. 2 (9th Cir. 2003) (finding "no significant difference in the analysis or rights and obligations created by the two Acts"); Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 n. 11 (9th Cir. 1999). Thus, the standards that apply under Title I of the ADA govern the analysis here. McLean v. Runyon, 222 F.3d 1150, 1153 (9th Cir. 2000). To establish a prima facie case of disability discrimination under the Rehabilitation Act, -4Case 2:03-cv-01876-NVW Document 52 Filed 08/02/2005 Page 4 of 10

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Thompson must show that 1) he is disabled within the meaning of the Act; 2) that he is a qualified individual able to perform the essential functions of the job with or without accommodation; and 3) that USPS acted adversely against him solely because of his disability. Zukle, 166 F.3d at 1045. The Rehabilitation Act prohibits employers from discriminating against persons who have disabilities. Accordingly, a person seeking relief under the Act must first demonstrate that they are disabled. A person is disabled within the meaning of the ADA, and thus the Rehabilitation Act, if he 1) has a physical or mental impairment that substantially limits one or more of his major life activities; 2) has a record of such an impairment; or 3) is regarded by a covered employer as having such an impairment. 42 U.S.C. § 12102(2). There are two ways a person can be "regarded as" disabled under this third prong: an employer can "mistakenly believe[ ] that a person has a physical impairment that substantially limits one or more major life activities" or an employer can "mistakenly believe[ ] that the person's actual, nonlimiting impairment substantially limits one or more major life activities." Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999); see Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 522 (1999). The "regarded as" claim of disability is intended to protect people about whom employers have misconceptions that " 'result from stereotypic assumptions not truly indicative of . . . individual ability.' " Sutton, 527 U.S. at 489 (quoting 42 U.S.C.A. § 12101(7)). The reactions of others to one's perceived limitations can be just as disabling as true impairments. School Bd. of Nassau County, Fla. v. Airline, 480 U.S. 273, 283 (1987). A covered employer "runs afoul of the ADA when it make an employment decision based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life activity." Id. at 490. B. Thompson's Claim that USPS Regarded Him As Disabled
1. Prevailing under the "Regarded As" Prong

In its Motion, USPS assumes Thompson is claiming that his reactive airways disease substantially limits the major life activity of working. Thompson, however, disclaims an actual impairment that substantially limits a major life activity. He argues that he comes -5Case 2:03-cv-01876-NVW Document 52 Filed 08/02/2005 Page 5 of 10

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within the Rehabilitation Act only because USPS regarded him as having such an impairment. Thompson claims that USPS mistakenly believed his disease substantially limited him in the major life activity of breathing. In other words, Thompson claims his disease did not substantially limit any major life activities, but that USPS fired him because it thought the disease substantially limited his ability to breathe. To prevail under the "regarded as" prong, Thompson must show more than that USPS regarded him as "somehow disabled;" rather he must show that he was regarded "as disabled within the meaning of the ADA." Jacques v. DiMarzio, Inc., 386 F.3d 192, 201 (2d Cir. 2004) (quoting Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 646 (2d Cir.1998, cert. denied, 526 U.S. 1018 (1999)). The regulations accompanying the ADA define substantially limits as: (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(1). The regulations advise courts to consider the following factors in

16 determining whether a person is substantially limited in a major life activity: the nature, 17 severity, duration, and long term impact of the impairment. 29 CFR § 1630.2(j)(2). 18 2. USPS' perception of Thompson was not mistaken 19 Thompson has not presented evidence that creates a triable issue of fact as to whether 20 USPS mistakenly regarded him as being substantially limited in his ability to breathe. USPS 21 clearly regarded Thompson as substantially limited in his ability to breathe the air in a 22 building where floors were being or had recently been waxed, but it did so because 23 Thompson was so limited. Dr. Adickman, Dr. Thomson, and Dr. Comp testified that 24 Thompson could not breathe fumes from fresh or recently applied wax without risk to his 25 health. The risk to Thompson could not be alleviated with different brands of wax or even 26 small quantities of wax fumes. The "regarded as" prong of the ADA was intended to protect 27 people from employer's misconceptions about people's abilities. In this case, Thompson 28 -6Case 2:03-cv-01876-NVW Document 52 Filed 08/02/2005 Page 6 of 10

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himself seems to be the one who misperceives his impairment. Although there is no evidence that he has yet to experience serious problems from wax fumes, the medical evidence on this record shows he could seriously suffer from even a small amount of exposure. The purpose of the "regarded as" prong would be turned on its head if Thompson were considered disabled under it because his employer grasped the gravity of his impairment when he did not. Thus, Thompson cannot establish that he was mistakenly regarded as disabled because USPS' perception of Thompson's sensitivity to wax was not inaccurate. 3. USPS did not regard Thompson as substantially limited in the major life activity of breathing Even if its perception were mistaken and Thompson was not severely limited in his

10 ability to breathe wax, USPS did not regard Thompson as substantially limited in the major 11 life activity of breathing. USPS perceived Thompson as restricted in breathing in a very 12 particular circumstances: in buildings where wax was being or had recently been applied. 13 There is no evidence that USPS perceived Thompson as substantially limited in his ability 14 15 ADA if his disease is only triggered in particular locations or by uncommon conditions. For 16 example, a young girl with a peanut allergy was not considered disabled because she can eat 17 and breathe normally when not exposed to peanuts. Land v. Baptist Med. Ctr., 164 F.3d 423, 18 424 (8th Cir. 1999). 19 environmental conditions at her work and seasonal changes was not substantially limited in 20 her ability to breathe. Mayers v. Wash. Adventist Hosp., 131 F. Supp. 2d 743, 749 (D. Md. 21 2001). An asthmatic whose condition was triggered by chemicals in the workplace was not 22 substantially limited in the major life activity of working. Maulding v. Sullivan, 931 F.2d 23 24 25 26 27 28 -7Case 2:03-cv-01876-NVW Document 52 Filed 08/02/2005 Page 7 of 10

to breathe in other conditions.1 Generally a person is not disabled within the meaning of the

An employee who had difficulty breathing due to extreme

Thompson did occasionally suffer from bronchitis, shortness of breath, and dizziness on occasion, but there is no evidence that USPS perceived these problems as limiting him. Thompson worked for USPS for several years after these difficulties began. It was not until USPS learned that Thompson could have a seriously adverse reaction to a product used in the workplace that they considered him limited in his abilities.

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694, 698 (8th Cir. 1992). A plaintiff who was very sensitive to heat was not disabled when he could perform his work in areas where the temperature did not exceed 90 degrees. Miller v. AT&T Network Sys., 722 F. Supp. 633, 639-40 (D. Or. 1989), aff'd 915 F.2d 1404 (9th Cir. 1990). Finally, experiencing shortness of breath when climbing stairs does not substantially limit a person's major life activity of breathing in general. Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir. 1996). These cases demonstrate that one is not substantially limited in a major life activity, like breathing, when the limitation exists only in particular circumstances, such as breathing recently applied wax fumes. Persons whose illness, allergies, or diseases are triggered by limited circumstances are not "[s]ignificantly restricted" in their ability to perform major life activities in comparison to the rest of the population. 29 C.F.R. § 1630.2(j)(1). Because USPS perceived (however rightly or wrongly) that Thompson was limited in his ability to breathe in particular circumstances, they did not regard him as disabled within the meaning of the ADA. Thompson's only proffered theory for why he is disabled is that USPS regarded him as being substantially limited in breathing. Having determined there is no triable issue of fact as to whether USPS regarded Thompson as substantially limited in this major life activity, the court will not speculate as to the validity of other unasserted theories of disability. This case illustrates how the limited purpose of the ADA can be overlooked. The ADA was a social experiment intended to benefit disabled persons who were able to work if reasonably accommodated. Congress shifted to employers the cost of accommodating disabled individuals so both they could become self-supporting and society could be freed of the expense of public support. The ADA was not intended to require employers to shoulder the cost of enabling any person with any impairment to perform any job. To allow any person who has an impairment to demand accommodations would place an undue burden on employers without the benefit to significantly impaired people that justifies the Rehabilitation Act and the ADA. D. Thompson's Claim of Retaliation -8Case 2:03-cv-01876-NVW Document 52 Filed 08/02/2005 Page 8 of 10

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Thompson also claims that he was retaliated against because of his impairment. An employee need not have a qualified disability to be protected by the retaliation provisions of the Rehabilitation Act. Heisler v. Metro. Council, 339 F.3d 622, 632 (8th Cir. 2003). To establish a prima facie case of retaliation under the Rehabilitation Act, Thompson must show that 1) he was involved in a protected activity; 2) he suffered an adverse employment action; and 3) there is a causal link between the two. Coons v. Sec'y of the U.S. Dept. of the Treasury, 383 F.3d 879, 887 (9th Cir. 2004). USPS does not contest that Thompson engaged in a protected activity when he requested a reasonable accommodation on June 20, 1997, or that he suffered an adverse employment action when he was taken off work on June 23. The dispositive inquiry is whether these events were causally linked. The only evidence Thompson offers of a causal link between the request for an accommodation and the adverse action is that they were close in time. Causation sufficient to establish a prima facie case of retaliation may be inferred from proximity of time. Knickerbocker v. City of Stockton, 81 F.3d 907, 912 (9th Cir. 1996); Milller v. Fairchild Indus., Inc., 797 F.2d 727, 731 (9th Cir. 1986), aff'd in part, rev'd in part on other grounds, 885 F.2d 498 (1989). Yet, "such an inference is not compelled where other evidence provides a reasonable basis for inferring that adverse action was not retaliatory." Knickerbocker, 81 F.3d at 912. In this case the closeness in time between the protected activity and the employer's action is fully explained. While Thompson presents only the circumstantial evidence of timing to explain the adverse employment action as retaliation, USPS points to actual evidence to explain their actions: Thompson's supervisors had conflicting information about his ability to work "wax detail" and required clarification before they could allow him to return to work. While Thompson was not currently on wax detail, he did some waxing on the west wall route and USPS was concerned that this exposure put Thompson at risk. Rather than risk exposing Thompson to a substance that could be harmful to him, they removed him from his position and sought clarification on the appropriate limitations. USPS' prompt action to investigate the risk and to protect Thompson in the mean time did not violate the Rehabilitation Act. -9Case 2:03-cv-01876-NVW Document 52 Filed 08/02/2005 Page 9 of 10

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Where promptness is evidence of the employer's good faith purpose, it cannot rationally also be evidence of the wholly different purpose of retaliation. Indeed, if the employer had not acted promptly, the delay itself might have been basis to question the good faith of its action since ultimately Dr. Adickman and Dr. Comp both agreed that exposure to wax fumes could be seriously harmful to Thompson. As against USPS's direct evidence of its purpose, which is supported by the timing of its actions, no reasonable trier of fact could infer from timing alone that USPS's reaction was retaliation. Thus, Thompson has failed to establish a triable issue of causal link between his request for an accommodation and the adverse action. E. Defendant's Motion to Strike The court has resolved this case without ruling on the Motion to Strike portions of Thompson's Statement of Facts, and various affidavits. Therefore, it is unnecessary to decide that motion. IT IS THEREFORE ORDERED that Defendant John E. Potter's Motion for Summary Judgment (Doc. #32) is granted. The Clerk shall enter judgment in favor of Defendant and terminate the case. IT IS FURTHER ORDERED that Defendant's Motion to Strike (Doc. #45) is denied as moot. DATED this 2nd day of August, 2005.

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