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
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
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 ...