                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     July 18, 2008
                     UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    MARSHA MADEWELL,

                Plaintiff-Appellant,

    v.                                                 No. 07-7086
                                               (D.C. No. 6:06-cv-00526-FHS)
    DEPARTMENT OF VETERANS                              (E.D. Okla.)
    AFFAIRS and Agency; R. JAMES
    NICHOLSON, Secretary of
    Department of Veterans Affairs and
    Agency, Agency Head, in his official
    capacity,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before HOLMES, PORFILIO, and ANDERSON, Circuit Judges.



         Marsha Madewell appeals the district court’s order granting summary

judgment to her former employer, the Department of Veterans Affairs (the VA),

on her claims of disability discrimination and retaliation and also dismissing her


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
state-law tort claims for lack of subject-matter jurisdiction. We review the

district court’s judgment pursuant to 28 U.S.C. § 1291 and AFFIRM.

                                         I.

      Ms. Madewell was a Veterans Claims Examiner (VCE) in the VA’s

Education Division from September 1988 until July 2005. As a VCE,

Ms. Madewell was responsible for receiving, reviewing, and making decisions on

veterans’ applications for educational benefits. In 2002, the VA implemented

national performance standards for the VCEs, including a minimum production

component. Ms. Madewell believed that this aspect of the system rewarded VA

managers with bonuses for the amount of work processed by VCEs, but not for

the quality of that work. According to Ms. Madewell, the standards led to the

incorrect adjudication, and perhaps wrongful denial, of veterans’ claims. She

expressed this viewpoint to her supervisors and to the office of her United States

Senator.

      From May 2003 through her discharge date, Ms. Madewell met the

minimum production requirement only intermittently. The VA took disciplinary

steps: Ms. Madewell was counseled, given additional assistance, admonished,

and placed on improvement plans. Ms. Madewell felt that many of the counseling

meetings were for the purpose of harassing and humiliating her. She informed

her director, managers, and supervisors that the workplace stress exacerbated the

pain and fatigue caused by her existing medical conditions, which included

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fibromyalgia, arthritis, scoliosis, degenerative disc disease, migraines, and vision

problems. During the time of her employment difficulties, she developed

insomnia, irritable bowel syndrome, anxiety, depression, and symptoms of pre-

menopause. Management, however, denied Ms. Madewell’s requests to continue

with a “mega-flex” work schedule and to change her work duties to accommodate

her medical needs. Reply Br. at 16, 27-30. In response to this situation, she filed

an Equal Employment Opportunity (EEO) complaint alleging disability

discrimination in September 2004. The outcome of this complaint is not part of

the district court record.

      In July 2005, the VA terminated Ms. Madewell’s employment for failure to

meet the May 2005 minimum production standard. At that point, she had not met

the standard in May, June, July, October, and November of 2003; February, June,

and December of 2004; and January, February, and May of 2005. After her

discharge, Ms. Madewell brought disability-discrimination and whistle-blower

claims to the Merit Systems Protection Board. Although it is apparent that

Ms. Madewell was unsuccessful in administrative proceedings, the record does

not contain a Board decision.

      Ms. Madewell then filed this lawsuit in district court alleging disability

discrimination under the Rehabilitation Act of 1973, see 29 U.S.C. §§ 791, 794a;

retaliation under Title VII of the Civil Rights Act of 1964, see 42 U.S.C.

§ 2000e-3; discrimination and retaliation under the Whistle Blower Protection Act

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(WPA), see 5 U.S.C. § 2302(b); and state-law tort claims. In a sixteen-page

Opinion and Order, the district court described the background facts, discussed

the applicable law, and concluded that the VA was entitled to summary judgment

on all claims.

                                          II.

      Although she was represented by counsel in the district court,

Ms. Madewell appears pro se in this appeal. We therefore treat her appellate

filings liberally and construe her briefs as seeking review of all issues decided by

the district court. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

We review de novo the district court’s grant of summary judgment and dismissal.

Santana v. City of Tulsa, 359 F.3d 1241, 1243 (10th Cir. 2004). Summary

judgment is appropriate if “the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

Disability Discrimination

      To meet the threshold element of her disability discrimination claim,

Ms. Madewell was required to show that she was a disabled person within the

meaning of the Rehabilitation Act. The Act defines the term disability in

pertinent part as a “physical or mental impairment that substantially limits one or

more major life activities.” 29 U.S.C. § 705(9)(B). Standing alone, evidence of

physical impairments does not demonstrate entitlement to the protections of the

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Rehabilitation Act. A plaintiff must also demonstrate that her impairments

substantially limit a major life activity, “functions such as caring for one’s self,

performing manual tasks, walking, seeing, hearing, speaking, breathing, learning,

and working.” 45 C.F.R. § 84.3(j)(2)(ii). This court looks at “only the major life

activity or activities asserted by the plaintiff” in district court. Justice v. Crown

Cork & Seal Co., 527 F.3d. 1080, 1086 & n.2 (10th Cir. 2008) (quotation omitted)

(construing a claim under the similar Americans with Disabilities Act).

      Ms. Madewell asserted that she was substantially limited in the major life

activity of working. Under this premise, she was required to present some

evidence that she was “significantly restricted in the ability to perform either a

class of jobs or a broad range of jobs in various classes as compared to the

average person having comparable training, skills, and abilities.” Id. (quotation

omitted). The district court determined that Ms. Madewell had not made this

showing in her summary-judgment filings.

      Our review of the record indicates that the district court’s evaluation of the

evidence was correct. Moreover, Ms. Madewell’s own reply brief debunks her

claim that she was substantially limited in the major life activity of working. She

states that she does “everything I can to take care of myself so I am able to work,

that is just about all I could do.” Reply Br. at 19. Summary judgment was the

appropriate disposition of Ms. Madewell’s Rehabilitation Act claim.




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Title VII Retaliation

      Ms. Madewell’s Title VII retaliation claim relies on a showing that the VA

discriminated against her for “oppos[ing] any practice made an unlawful

employment practice” by Title VII.” 42 U.S.C. § 2000e-3(a). A retaliation

plaintiff may prove her case with direct or circumstantial evidence, with the

burden-shifting approach of McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-05 (1973), coming into play where a plaintiff relies on circumstantial

evidence. Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145

(10th Cir. 2008).

      A plaintiff proceeding under the McDonnell Douglas framework must first

establish a prima facie case with a showing that “(1) she engaged in protected

opposition to Title VII discrimination; (2) she suffered an adverse employment

action; and (3) there is a causal connection between the protected activity and the

adverse employment action.” Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1227

(10th Cir. 2008) (quotation omitted). A prima facie showing shifts the burden to

the employer to “proffer a legitimate, nondiscriminatory reason for her

termination.” Id. Then, the plaintiff “has the burden of demonstrating that the

[employer’s] asserted reasons for her termination are pretextual.” Id.

      Because Ms. Madewell lacked direct evidence of retaliation, the McDonnell

Douglas procedure applied to her case. The VA and the district court assumed

that Ms. Madewell had demonstrated a prima facie case and proceeded to the

                                        -6-
issue of whether the VA’s expressed nondiscriminatory reason for termination

(failure to meet production standards) was a “pretext masking discriminatory

animus.” Proctor v. United Parcel Serv., 502 F.3d 1200, 1208 (10th Cir. 2007)

(quotation omitted). Ms. Madewell alleged that managers treated her differently

after she filed her EEO charge and also that no other VCEs were fired for failure

to meet the monthly production requirements. But she failed to provide any

factual basis for her allegations and therefore failed to demonstrate that the VA

provided a pretextual reason to terminate her employment. The district court

properly entered summary judgment on Ms. Madewell’s discrimination-retaliation

claim.

Whistleblowing Retaliation

         Ms. Madewell claims that she was entitled to damages under the WPA

because the VA’s discharge decision was prompted, in part, by her revealing the

VA’s wrongful emphasis on quantity over quality. The WPA, however, protects

disclosures of alleged misbehavior only if based on the employee’s objective,

reasonable belief “that the disclosed information evidences a violation of law,

rule, regulation, gross mismanagement, gross waste of funds, abuse of authority,

or substantial and specific danger to public health or safety.” Giove v. Dep’t of

Transp., 230 F.3d 1333, 1338 (Fed. Cir. 2000). “A purely subjective perspective

of an employee is not sufficient even if shared by other employees.” Lachance v.

White, 174 F.3d 1378, 1381 (Fed. Cir. 1999). Moreover, “there is a presumption

                                         -7-
that public officers perform their duties correctly, fairly, in good faith, and in

accordance with the law and governing regulations.” Id. (quotation omitted).

“[T]his presumption stands unless there is irrefragable proof to the contrary.” Id.

(quotation omitted).

      As the district court stated, Ms. Madewell “offer[ed] nothing other than

unsupported, conclusory allegations . . . to support her claim of retaliation for

engaging in whistleblowing activities.” R., Vol. II, Doc. 78 at 15 n.6. Her

statements do not constitute the necessary “irrefragable proof” of wrongdoing on

the part of VA employees and officials. Lachance, 174 F.3d at 1381. As a

consequence, Ms. Madewell’s disclosures were not protected by the WPA, and

her whistleblowing claim was subject to summary judgment.

Tort claims

      Ms. Madewell also appeals the dismissal of her state-law tort claims of

infliction of emotional distress and failure to direct, supervise and train

employees. The Federal Tort Claims Act (FTCA) provides the exclusive avenue

of relief for these claims. See 28 U.S.C. §§ 1346(b), 2671-2680. And “[t]he

FTCA bars claimants from bringing suit in federal court until they have exhausted

their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113

(1993). Because Ms. Madewell “failed to heed that clear statutory command,” the

tort claims were not properly before the district court. Id. The district court

correctly dismissed these claims for lack of subject matter jurisdiction.

                                          -8-
                                      III.

      The judgment of the district court is AFFIRMED. Ms. Madewell’s motion

for leave to proceed in forma pauperis is GRANTED. Her motion asking this

court to reconsider appointment of counsel is DENIED.


                                                 Entered for the Court



                                                 John C. Porfilio
                                                 Circuit Judge




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