                                                                                     United States Court of Appeals
                                                                                              Fifth Circuit
                                                                                            F I L E D
                                                                                             April 23, 2003
                       IN THE UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT
                                                                                        Charles R. Fulbruge III
                                                                                                Clerk
                                   __________________________

                                          No. 02-21155
                                        Summary Calendar
                                   __________________________


THOMAS HENRICKSON,
                                                                                     Plaintiff-Appellant,

versus

JOHN E. POTTER, POSTMASTER GENERAL,
                                                                                   Defendant-Appellee.

                   ___________________________________________________

                             Appeal from the United States District Court
                                 for the Southern District of Texas

                   ___________________________________________________

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

         Appellant asserts that the district court erred in granting summary judgment as to his disability

discrimination claim. We affirm.




                                                    1
                                    I. FACTS AND PROCEEDINGS

       Appellant Thomas Henrickson (“Henrickson”) worked for Appellee United States Postal

Service (“USPS”) from May 25, 1985, to July 19, 2000. On June 21, 1996, Henrickson was

diagnosed with carpal tunnel syndrome, which caused him to suffer numbness and tingling in his left

and right hands as well as some shooting pain in his left arm. Between 1996 and 1999, Henrickson

underwent physical therapy and several medical procedures to alleviate the symptoms of carpal tunnel

syndrome.

       Dr. Michael G. Brown (“Dr. Brown”), Henrickson’s doctor, recommended that Henrickson

receive an ergonomic chair with nonstandard armrests in order to reduce stress on his elbows, wrists,

and shoulders.1 Henrickson selected a custom chair from a retail store to suit his needs and requested

on May 22, 1998, that USPS purchase the chair for his use.2 USPS denied his request.3 Instead,

USPS offered him a range of alternative chairs that were already available, including several

ergonomic chairs with adjustable armrests.4 R.241. Henrickson refused this offer and insisted on the




   1
     Following his return from a three-month medical leave in March 1998, Henrickson was given a limited-
   duty job to accommodate the restrictions on his abilities noted by his doctor, such as “no reaching above
   shoulder” and “may only work at waist level or below.” Henrickson was employed in this position from
   March 2, 1998, until May 22, 1998.
   2
     In his Affidavit, Henrickson asserted that he submitted medical records to USPS on at least five different
   occasions in 1998. In Plaintiff’s Response in Opposition to Defendant’s Motion for Summary Judgment,
   however, Henrickson cited a meeting on May 22, 1998, with Supervisor Yvonne Edwards, Manager of
   Distribution Operations Linda Schultz, and Mail Handler M.D. Thomas as the only time he requested the
   custom chair. The record indicates that only Edwards could have authorized the purchase of the custom
   chair. R.414. The nature of Thomas’ position indicates that he did not have such authority, and Schultz
   explicitly stated that she did not have such authority. R.320.
   3
     USPS explained that Dr. Brown only recommended an ergonomic chair with nonstandard armrests and
   did not order Henrickson to use only the specific model of chair selected by Henrickson.
   4
     The alternative chairs included those that were already on the premises and those that USPS had
   available elsewhere.


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purchase of the custom chair.5 Due to the lack of the custom chair, Henrickson refused to report for

work beginning on May 22, 1998, until his dismissal on July 19, 2000.6

       In March 1999, Henrickson initiated contact with an Equal Employment Opportunity (“EEO”)

counselor regarding his dispute with USPS over the custom chair. Following the completion of the

EEO investigation, the administrative law judge recommended that USPS find that no discrimination

had occurred. Subsequently, Henrickson filed a lawsuit in federal district court on May 12, 2000,

alleging that USPS failed to accommodate his disability in violation of the Americans with Disabilities

Act (“ADA”), 42 U.S.C. § 12101; the Rehabilitation Act, 29 U.S.C. § 701; the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. § 2000e; and the Civil Rights Act of 1866 and 1871 (“Section 1981”),

42 U.S.C. § 1981.

       The district court granted summary judgment in favor of USPS on the claims under: (1) the

ADA, because it does not permit discrimination actions against the federal government, 42 U.S.C.

§ 12111(5)(B), and USPS is a federal employer, 39 U.S.C. § 201 (stating “[t]here is established, as

an independent establishment of the executive branch of the Government of the United States, the

United States Postal Service”); (2) Section 1981, because it does not permit discrimination actions

against the federal government, Eastland v. Tennessee Valley Authority, 553 F.2d 364, 371 (5th Cir.

1977), and Henrickson did not allege racial discrimination, Felton v. Polles, 315 F.3d 470, 473-74

(characterizing Section 1981 as “proscrib[ing] racial discrimination in ‘making and enforcement’ of


   5
     According to the Appellee’s Brief and his Affidavit, Henrickson refused to even test the suitability of the
   alternative chairs.
   6
     His absence from June 8, 1998, to September 1998 was supported by his doctor’s recommendation that
   he not return to work in order to prevent further re-injury. R.118. Except for this period of time, USPS
   listed Henrickson as absent without leave (AWOL) beginning on May 22, 1998. According to his
   Affidavit, Henrickson did not receive any compensation or benefits from USPS subsequent to May 20,
   1998.


                                                         3
contracts, including their ‘performance’ and ‘enjoyment of all benefits ... and conditions of the

contractual relationship’”); (3) Title VII, because Henrickson showed a protected activity (filing the

complaint with the EEO counselor) but not an adverse employment action in response to his

protected activity;7 and (4) the Rehabilitation Act, because Henrickson failed to contact the EEO

counselor within 45 days of the alleged discriminatory act.8 29 C.F.R. § 1614.105(a)(1).

                                    II. STANDARD OF REVIEW

       “A grant of summary judgment is reviewed de novo . . . Summary judgment is appropriate

when there ‘is no genuine issue as to any material fact and the moving party is entitled to a judgment

as a matter of law.’” Quorum Health Res., L.L.C. v. Maverick County Hosp. Dist., 308 F.3d 451, 458

(5th Cir. 2002) (internal citations omitted) (quoting Conoco, Inc. v. Medic Systems, Inc., 259 F.3d

369, 371 (5th Cir. 2001)). This Court “must view facts and inferences in the light most favorable to

the party opposing the motion. A factual dispute precludes a grant of summary judgment if the

evidence would permit a reasonable jury to return a verdict for the nonmoving party.” Id. (internal

citations omitted).

                                           III. DISCUSSION

       On appeal, Henrickson challenges the grant of summary judgment in favor of USPS in regards

to his claims under the ADA and the Rehabilitation Act.

       First, Henrickson contends that he established a prima facie case of disability discrimination

under the ADA. In clear statutory language, Congress established that USPS is part of the federal


   7
     In May 1998, USPS denied Henrickson’s requests to purchase the custom chair. Henrickson first
   contacted the EEO counselor in March 1999. Therefore, the failure to purchase the custom chair cannot
   be characterized as retaliation in response to a protected activity.
   8
     The first alleged discriminatory act (refusal to purchase custom chair) occurred in May 1998, but
   Henrickson did not contact the EEO counselor until March 1999.


                                                      4
government, 39 U.S.C. § 201 (stating “[t]here is established, as an independent establishment of the

executive branch of the Government of the United States, the United States Postal Service”), and that

the entire federal government is excluded from the coverage of the ADA. 42 U.S.C. § 12111(5)(B)

(stating that “[t]he term ‘employer’ does not include the United States [or] a corporation wholly

owned by the government of the United States”). Therefore, whether Henrickson established a prima

facie case of disability discrimination under the ADA is irrelevant because no such claim is permitted

under the statute against USPS.

       Second, Henrickson concedes that “[i]t is undisputed that all of Complainant’s allegations fall

outside of the 45-day time limit” for contacting an EEO counselor.9 R.171. This statement recognizes

that he had no viable claims under the Rehabilitation Act because he failed to contact the EEO

counselor within 45 days of the alleged discriminatory act. 29 C.F.R. § 1614.105(a)(1).

       On appeal, Henrickson seeks to escape his failure to act within the 45-day limit by alleging

a “continuing violation.” Plaintiffs asserting continuing violations “must demonstrate more than a

series of discriminatory acts. [They] must show an organized scheme leading to and including a

present violation such that it is the cumulative effect of the discriminatory practice, rather than any

discrete occurrence, that gives rise to the cause of action.” Huckabay v. Moore, 142 F.3d 233, 239

(5th Cir. 1998) (internal citations omitted). This language indicates that Henrickson must, at a

minimum, demonstrate that there was a series of alleged discriminatory acts.

       The alleged discriminatory act of which Henrickson complains is the denial of his request for

the custom chair. By his own admission, Henrickson only requested the cust om chair on a single
   9
    In Plaintiff’s Response in Opposition to Defendant’s Amended Motion and Amended Memorandum to
   Dismiss Plaintiff’s Original Complaint – First Amended, Henrickson discussed a “letter allegation” that
   allegedly did not fall outside the 45-day limit. R.171. On appeal, however, Henrickson did not raise the
   “letter allegation.”


                                                       5
occasion. Therefore, Henrickson failed to meet the bare minimum of requirements for establishing

a continuing violation.10

        Alternatively, Henrickson identifies being listed as “absent without leave” (AWOL) status as

the allegedly discriminatory act. Beginning on May 22, 1998, Henrickson refused to report for work.

As a result, USPS listed Henrickson as AWOL beginning on May 22, 1998. “The focus is on what

event, in fairness and logic, should have alerted the average lay person to act to protect his rights.”

Id. at 238 (citing Messer v. Meno, 130 F.3d 130, 134-35 (5th Cir. 1997)). The initial listing of

Henrickson on AWOL status should have alerted Henrickson to act to protect his rights. Id.

Therefore, Henrickson had 45 days from the initial listing on May 22, 1998, to contact an EEO

counselor. By his own admission, he did not contact an EEO counselor until March 1999 and thus

failed to meet the deadline.

        Furthermore, the jurisprudence of this Court indicates that continuing to list Henrickson as

AWOL until his termination on July 19, 2000, did not constitute a “continuing violation.” Id. at 239

n.3 (holding that the “mere receipt of a [biweekly] paycheck [did] not constitute a ‘continuing act’

of discrimination”). Therefore, Henrickson failed to meet the bare minimum of requirements for

establishing a continuing violation.

                                          IV. CONCLUSION

        Viewing facts and inferences in the light most favorable to Henrickson, it is clear that there

is no genuine issue as to any material fact, and USPS is entitled to judgment as a matter of law. The

judgment of the district court is AFFIRMED.


   10
    Henrickson claims that he submitted medical records and other materials on multiple occasions.
   However, he only requested the custom chair on a single occasion.


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