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December 14, 2005.

JOHN E. POTTER, Defendant.

The opinion of the court was delivered by: RICHARD LEON, District Judge


This employment discrimination case is before the Court on Defendant's Motion for Summary Judgment on the remaining claim brought under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. See Memorandum Opinion ("Mem. Op.") and Order of February 14, 2005 (dismissing all other claims). Plaintiff Ruthie M. Goodman has opposed the motion and cross moved for summary judgment. Upon consideration of the parties' submissions and the entire record, the Court will grant defendant's motion and dismiss the case.


  Ms. Goodman is a former mail carrier who suffered a dog bite while delivering mail in June 1987. She was diagnosed with nerve damage, required surgery, and finally diagnosed as "having sustained a permanent impairment." Complaint at 4. During her tenure with the Postal Service after the injury, Ms. Goodman was assigned to light or limited duty at its Ward Place Station, where she worked the day shift from December 1989 until May 1994. In May 1994, Ms. Goodman was assigned to a night shift at defendant's Cleveland Park Station. She "refused the detailed assignment offer" because "the night shift did not meet the requirements of her physical limitations and violated the U.S. Postal Service Collective Bargaining Agreement of her working out of schedule." Id.

  In July 1994, Ms. Goodman filed an equal employment opportunity ("EEO") charge "for reasonable accommodation to remain in a day shift position." Id. at 5. After a hearing (and apparent decision) in 1998, Ms. Goodman eventually received a notice of removal dated June 21, 1999. The notice cited her for "failure to be regular in attendance and [] failure to follow official instruction." Id. at 6. Ms. Goodman filed an EEO charge for wrongful termination in June 1999 "based on her left leg disability [and] other U.S. Postal Service violations. . . ." Id at 7. The agency issued its final decision on September 30, 2003. Id. at 8.

  Ms. Goodman's Rehabilitation Act claim is based on defendant's alleged failure to accommodate her disability by assigning her to a day shift. Defendant moves for summary judgment on the bases that Ms. Goodman is not a qualified individual as defined by the Act and that she failed to provide timely notification of her need for accommodation and to provide medical documentation to substantiate that need.


  Summary judgment is warranted if "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 that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When evaluating a summary judgment motion, the Court must view the evidence in favor of the nonmoving party and believe and give benefit of all reasonable inferences drawn from the nonmoving party's evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). As a general rule, "[i]n deciding whether there is a genuine issue of fact before it, the court must assume the truth of all statements proffered by the party opposing summary judgment." Greene v. Dalton, 164 F.3d 671, 674 (D.C. Cir. 1999). "If material facts are at issue, or, though undisputed, are susceptible to divergent inferences, summary judgment is not available." Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994) (citing Alyeska Pipeline Serv. Co. v. United States Envtl. Protection Agency, 856 F.2d 309, 314 (D.C. Cir. 1988)). Material facts are those "that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248.

  Summary judgment is appropriate in an employment discrimination case "where either the evidence is insufficient to establish a prima facie case, . . . or, assuming a prima facie case, there is no genuine issue of material fact that the defendant's articulated nondiscriminatory reasons for the challenged decision is pretextual." Paul v. Federal Nat'l Mortgage Ass'n, 697 F. Supp. 547, 553 (D.D.C. 1988) (citations omitted); see Phillips v. Holladay Property Services, Inc., 937 F. Supp. 32, 34 (D.D.C. 1996), aff'd No. 96-7202, 1997 WL 411695 (D.C. Cir. Jun 19, 1997). It is often difficult for a plaintiff to offer direct proof of an employer's discrimination. For that reason, summary disposition of such cases is not favored and the court "must be extracareful to view all the evidence in the light most favorable" to the plaintiff. Ross v. Runyon, 859 F. Supp. 15, 21-22 (D.D.C. 1994), aff'd per curiam, No. 95-5080, 1995 WL 791567 (D.C. Cir. Dec. 7, 1995). Nonetheless, summary judgment is appropriate if a plaintiff relies on "[e]vidence of discrimination that is `merely colorable,' or `not significantly probative.'" Johnson v. Digital Equip. Corp., 836 F. Supp. 14, 15 (D.D.C. 1993) (citation omitted). The Rehabilitation Act of 1973 provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability . . . be subjected to discrimination . . . by any Executive Agency." See 29 U.S.C. § 794(a). The language "solely by reason of" requires plaintiff to establish a "causal link . . . [that] the employer . . . acted with an awareness of the disability itself." Crandall v. Paralyzed Veterans of America, 146 F.3d 894, 897 (D.C. Cir. 1998). To survive defendant's summary judgment motion, Ms. Goodman must proffer sufficient evidence establishing that (1) she is disabled within the meaning of 29 C.F.R. § 1614.203(a), (b); (2) her employer was aware of her disability; (3) with reasonable accommodation she could perform the essential functions of the position; and (4) she was denied a reasonable accommodation. Scarborough v. Natsios, 190 F. Supp. 2d 5, 19 (D.D.C. 2002) (citations omitted). For the following reasons, she has not done so.

  1. Plaintiff's Alleged Disability

  The Rehabilitation Act defines a disability as a "physical or mental impairment that substantially limits one or more major life activities." 29 U.S.C. § 705(9)(B). "Major life activities" are defined by regulation as "functions, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). The Act's terms are "interpreted strictly to create a demanding standard for qualifying as disabled." Toyota Motor Manufacturing Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002).*fn1 In analyzing the issue, the Court must "ask whether [plaintiff's] impairments prevented or restricted her from performing tasks that are of central importance to most people's daily lives." Id. at 187. A determination of disability is analyzed on a case-by-case basis of how the impairment affects the life of the individual. Id. at 198; Sutton v. United Air Lines, 527 U.S. 471, 483 (1999) ("whether a person has a disability under the ADA is an individualized inquiry."). Ms. Goodman therefore must proffer "`evidence that the extent of the limitation [caused by (her) impairment] in terms of [her] own experience . . . is substantial.'" Toyota, 534 U.S. at 198 (quoting Albertson's Inc. v. Kirkingburg, 527 U.S. 555, 567 (1999)) (brackets in original).

  Ms. Goodman asserts that since the injury, she "suffers pain, swelling and spasms each day of her life."*fn2 Plaintiff's Answer to Defendant's Motion for Summary Judgment ("Pl.'s Opp.") at 8. She claims that her left foot "is moderately swollen each day[,] some days are better than others. The pain is more extensive during weather changes, late evening hours, walking, standing and sitting." Id. To relieve the pain and swelling, plaintiff states that she must wear shoes one size larger than her normal size. She cannot walk, stand, or sit for any prolonged period of time without pain or spasms and therefore claims that she cannot "work any sedentary jobs such as cashiers or any job that has to do with prolong walking, standing and sitting without pain." Id. Ms. Goodman claims that she is substantially limited in performing manual tasks, doing housework, lifting, and "playing with her grandchild or children."*fn3 Id. at 9. She shops with the use of a cane or by leaning on the shopping cart, rides public transportation, albeit in discomfort, and drives. Id. at 8-9. To avoid pain and spasms while driving, Ms. Goodman "must keep her left leg constantly moving and or extended outward." Id. at 9. Ms. Goodman states that she can no longer enjoy "leisure life as she once had, such as play tennis, dancing, bike ride, run, and walk because of the pain and swelling in her left foot and leg." Id.

  "[T]o be substantially limited in performing manual tasks, an individual must have a [permanent or long-term] impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives." Toyota, 534 U.S. at 198. This includes such activities as performing "household chores, bathing, and brushing one's teeth." Id. at 202. Such lifestyle changes as avoiding sweeping, quitting dancing, "occasionally" seeking help dressing, and reducing "how often [one] plays with her children, gardens, and drives long distances . . . [do] not amount to such severe restrictions in the activities that are of central importance to most people's daily lives that they establish a manual task disability as a matter of law." Id. By her own admission, Ms. Goodman worked through her pain in order to "to stay gainfully employed with the Defendants." Pl.'s Opp. at 9. Although most of her alleged restrictions are the type of "lifestyle changes" the Supreme Court has implicitly rejected as supporting a disability, defendant has failed to support its motion on this element of the prima facie case with any contradicting evidence. At the least, Ms. Goodman has created a genuine issue of material fact on whether she is disabled under the Act. Her claim nonetheless fails on the remaining elements.

2. Defendant's Awareness of the Disability and Accommodation Need
  Defendant asserts that Ms. Goodman failed to provide timely notice of her need to work the day shift and failed to report to work after the reassignment in May 1994. Ms. Goodman disputes both facts, albeit confusingly. In her opposition, Ms. Goodman counters that she "did in fact reported [sic] to the Cleveland Park Station, and gave notice to acting supervisor about her inability to work the night shift. The supervisor was given a detailed medical report of the Plaintiff['s] medical condition and restrictions." Pl.'s Opp. at 4. In her complaint, Ms. Goodman alleges that "she was issued a detail assignment order by acting supervisor, Steve Jones," on June 23, 1994, and "in the same day" spoke with her immediate supervisor, Verly Burton, about the reassignment. Complaint at 4. Defendant agrees that Ms. Goodman provided medical documentation of her condition on June 23, 1994, Def't Fact ¶ 11, but asserts that it occurred nearly one month after the effective date of the reassignment ...

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