                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-7-2007

Wishkin v. Postmaster General
Precedential or Non-Precedential: Precedential

Docket No. 05-4743




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"Wishkin v. Postmaster General" (2007). 2007 Decisions. Paper 1549.
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                                               PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 05-4743




                   RICHARD M. WISHKIN
                                   Appellant
                           v.

         JOHN E. POTTER, POSTMASTER GENERAL




        On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                    (D.C. No. 03-cv-04475)
        District Judge: Honorable Eduardo C. Robreno


                  Argued November 9, 2006

    Before: SLOVITER, CHAGARES, and GREENBERG,
                      Circuit Judges

                   (Filed: February 7, 2007)
                            ______

Joyce Ullman (Argued)
Philadelphia, PA l9l07

      Attorney for Appellant

Richard M. Bernstein (Argued)
Office of United States Attorney
Philadelphia, PA l9l06

      Attorney for Appellee
                  OPINION OF THE COURT




SLOVITER, Circuit Judge

       The issue before us is whether the District Court properly
applied the McDonnell Douglas paradigm in granting summary
judgment for the defendant/appellee United States Postal Service
(“USPS”) in the claim brought by plaintiff/appellant Richard
Wishkin (“Wishkin”) under the Rehabilitation Act of 1973.

                               I.

        Wishkin is a fifty-eight year old mentally disabled man
who was hired by the USPS in 1969 under a federal program
aimed at employing adults with disabilities. After a three-year
trial period, Wishkin became a permanent employee as a mail
handler. The only incident on Wishkin’s otherwise clean record
was a suspension in 1991 for absenteeism, but when it was
determined that his absenteeism was caused by a work-related
hernia injury that occurred in 1983, he was reinstated with back
pay. As a result of that injury, Wishkin is limited to pushing,
pulling, or lifting no more than 20 pounds.

        In 1998, there was talk in the Post Office that the “bag
room,” the unit in which Wishkin was employed, might close.
Wishkin was concerned that he would then face unemployment.
To protect himself from this possibility, on March 3, 1998,
Wishkin requested his urologist, Dr. Harvey Yorker, to write a
letter recommending that he be considered for permanent
disability, ostensibly because of his health problems and
limitations. It is undisputed that Dr. Yorker wrote the letter
reluctantly, and both Joseph A. Madison, Wishkin’s disability
counselor, and Dr. Yorker tried to convince Wishkin to wait to
deliver the letter to his supervisor until he received official
confirmation that the bag room was closing. Despite their
warnings, Wishkin delivered the letter to his supervisor, Mary
Green, soon after he received it.



                                2
        On April 22, 1998, Green scheduled a “fitness for duty”
examination at the medical office of the Post Office for Wishkin.
She also scheduled such an examination for several other
employees who worked in the bag room and were similarly
disabled. On the fitness for duty examination request form,
Green cited Wiskhin’s “constant and reoccurring kidney
problems, knee problems, chronic pulmonary disease, very slow
movements, easy fatigue, and frequent absences,” as reasons for
the examination. App. at 104a. There is no independent support
on the record that these symptoms had intensified during
Wishkin’s tenure. Dr. Evangelista, the USPS’s physician,
examined Wishkin as requested from approximately 8:50 A.M.
until 11:20 A.M. and then released him to work with
documentation that he was “fit for duty” with the same physical
restrictions necessitated by Wishkin’s past injury. Wishkin then
submitted his fitness for duty form to Green.

        Wishkin alleges that upon receiving the fitness for duty
documentation, Green became angry, telephoned the medical
unit, and ordered Wishkin to return to the medical unit for
another fitness for duty examination that afternoon. Wishkin
arrived at the medical office at 1:10 P.M. and, without seeing a
physician, left at 1:15 P.M. with a form declaring him “not fit for
duty.” App. at 203. The USPS asserts that Dr. Evangelista was
unaware of Dr. Yorker’s letter when he determined Wishkin to
be “fit,” and that with new knowledge of the letter and therefore
new knowledge of Wishkin’s ailments, Dr. Evangelista changed
Wishkin’s status from “fit” to “unfit,” with a recommendation
for permanent disability retirement. App. at 119a.

       At approximately 3:00 P.M. that afternoon, Green
accompanied Wishkin to the Labor Relations office to begin
paperwork for disability retirement. Wishkin refused to fill out
the papers and stated that he did not wish to retire. Green then
instructed Wishkin not to return to work and told him that he
was “off the clock.”

      The Labor Relations representative summoned Wishkin’s
Union Chief Shop Steward, Gerald Redd. Redd assured
Wishkin that under the collective bargaining agreement he could

                                3
not be forced to sign retirement papers against his will.
According to Wishkin, Green then scheduled an appointment for
Wishkin to see Kim Shockley, a human resources representative,
so that Shockley would inform him what his disability retirement
benefits projection might be. On April 29, 1998, Wishkin and
Madison, his disability counselor, met with Shockley who
presented him with paperwork necessary to file for permanent
disability. Wishkin again refused to sign any paperwork related
to disability retirement.

        After Dr. Evangelista had declared Wishkin unfit for
duty, Wishkin was not permitted to return to work at the Post
Office. He did not receive disability retirement benefits because
he refused to file the necessary paperwork. On May 5, 1998, at
Wishkin’s behest, Dr. Yorker submitted another letter to USPS
regarding Wishkin’s condition, but it was limited in its scope
and it failed to address all of his medical conditions or his ability
to work at the Post Office. After USPS Human Resources
Manager Harvey White received the second letter from Dr.
Yorker and phone calls from Madison on Wishkin’s behalf,
White wrote to Wishkin advising that before he could return for
duty his physicians must address all of his medical conditions
and his status regarding each. On July 27, 1998, Dr. Stanley
Essl, Wishkin’s family physician, submitted a letter to USPS on
Wishkin’s behalf, stating that Wishkin is currently “able to
return to the same light duty work he has done for many years in
the past.” App. at 141a.

       On March 9, 1999, Wishkin received notification that the
health benefits he had been receiving from USPS since he
stopped working were to be terminated effective May 7, 1999.
On April 13, 1999, Dr. Essl submitted another letter to USPS
stating, in more detail than in his previous letter, that Wishkin is
able to return to work, with the same physical limitations that
were previously required.

       Wishkin reported back to work on April 14, 1999 and
resumed his responsibilities as a mail handler, working in the
bag room until it closed in late 2000. He was then transferred to
another department sorting magazines and bulk mail. A cardiac

                                  4
condition forced Wishkin to retire in 2003.

         Wishkin filed suit against John E. Potter, Postmaster
General of the United States, on August 1, 2003 under Section
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §
791 et seq., and Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq., alleging that he was the
victim of disability discrimination. Wishkin seeks monetary
relief, including back pay, costs, restoration of pension benefits,
compensatory and punitive damages, and attorney’s fees.

       At the close of discovery, USPS moved for summary
judgment, which the District Court granted. Wishkin has filed a
timely appeal to this court, limited to the allegation of disability
discrimination under the Rehabilitation Act.

                                 II.

       In granting summary judgment to the defendant, the
District Court held that there was insufficient evidence to create
a genuine issue of material fact as to whether USPS intentionally
discriminated against Wishkin. Under the relevant federal rule,
a court may grant summary judgment only when “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
considering whether there exist genuine issues of material fact,
the court is required to examine the evidence of record in the
light most favorable to the party opposing summary judgment,
and resolve all reasonable inferences in that party’s favor.
Stewart v. Rutgers, The State Univ., 120 F.3d 426, 431 (3d Cir.
1997) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)). Issues such as intent and credibility
are rarely suitable for summary judgment. As the Supreme
Court noted in Pullman-Standard v. Swint, 456 U.S. 273, 290
(1982), even before Title VII plaintiffs were entitled to a jury
determination, discriminatory intent means actual motive, and is
a finding of fact to be determined by the factfinder.



                                 5
        A decision on summary judgment requires analysis of
both the applicable law and the facts placed on record. The
Rehabilitation Act expressly makes the standards set forth in the
1990 Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.,
applicable to federal employers and to employers receiving
federal funding. See 29 U.S.C. § 791(g). As we stated in
Shiring v. Runyon, 90 F.3d 827, 830-31 (3d Cir. 1996), the
Rehabilitation Act “forbids employers from discriminating
against persons with disabilities in matters of hiring, placement,
or advancement.” To establish a prima facie case of
discrimination under the Rehabilitation Act, a plaintiff must
initially show, “(1) that he or she has a disability; (2) that he or
she is otherwise qualified to perform the essential functions of
the job, with or without reasonable accommodations by the
employer; and (3) that he or she was nonetheless terminated or
otherwise prevented from performing the job.” Id. at 831. The
existence of a prima facie case of employment discrimination is
a question of law that must be decided by the court but the prima
facie test remains flexible and must be tailored to fit the specific
context in which it is applied. Sarullo v. United States Postal
Serv., 352 F.3d 789, 797-98 (3d Cir. 2003) (per curiam).

       We have stated that “the ADA, ADEA and Title VII all
serve the same purpose - to prohibit discrimination in
employment against members of certain classes. Therefore, it
follows that the methods and manner of proof under one statute
should inform the standards under the others as well.” Newman
v. GHS Osetopathic, Inc., 60 F.3d 153, 157 (3d Cir. 1995).
Accordingly, the familiar framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 793-94 (1973), for Title
VII cases is equally applicable to discrimination claims under the
Rehabilitation Act.

        Under the McDonnell Douglas burden shifting paradigm,
plaintiff has the initial burden to make a prima facie showing of
discrimination, but if s/he does so, the burden shifts to the
employer to articulate some legitimate, nondiscriminatory reason
for the employment action. Id. at 802. If the defendant meets
this burden, the presumption of discriminatory action raised by
the prima facie case is rebutted. Tex. Dep’t. of Cmty. Affairs v.

                                 6
Burdine, 450 U.S. 248, 254-55 (1981). However, the plaintiff
must then be afforded an opportunity to show that the
employer’s stated reason for the employment action, such as
plaintiff’s rejection or separation, was pretextual. McDonnell
Douglas, 411 U.S. at 804. In order to prove the employer’s
explanation is pretextual, the plaintiff must “cast[ ] sufficient
doubt upon each of the legitimate reasons proffered by the
defendant so that a factfinder could reasonably conclude that
each reason was a fabrication . . . or . . . allow[ ] the factfinder to
infer that discrimination was more likely than not a motivating
or determinative cause of the adverse employment action.”
Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994). A plaintiff
who has made out a prima facie case may defeat a motion for
summary judgment by either “(i) discrediting the employer’s
proffered reasons, either circumstantially or directly, or (ii)
adducing evidence, whether circumstantial or direct, that
discrimination was more likely than not a motivating or
determinative cause of the adverse employment action. Id. at
764.

        Applied to this case, Wishkin must prove that he has a
“disability” in order to meet the requirements of the first element
of the prima facie case. The statute defines an “individual with a
disability” as an individual who has (1) a physical or mental
impairment which substantially limits one or more of such
person’s major life activities, (2) has a record of such an
impairment, or (3) is regarded as having such an impairment. 29
U.S.C. § 705(20)(B). The USPS does not dispute that Wishkin
satisfies the first element of his prima facie case. He is mentally
retarded and gained employment at USPS in 1969 through a
federal program aimed at providing adults with mental
disabilities the opportunity to work.

        In contrast, the USPS disputes whether Wishkin has
satisfied the second and third elements of a prima facie case.
The District Court found that because Wishkin himself
represented that he was eligible for permanent disability by
procuring a letter from his doctor to that effect, he is not
qualified to perform the essential functions of the job and did not
satisfy the prima facie elements for a Rehabilitation Act claim.

                                   7
The District Court stated:

       In this case, plaintiff himself represented that he
       was eligible for permanent disability and procured
       a letter from his doctor to that effect. Based upon
       the plaintiff’s doctor’s letter, plaintiff was declared
       “unfit for duty” by the USPS. If plaintiff is unfit
       for duty, ergo he is not qualified to perform the
       essential functions of the job at issue. While
       plaintiff claims that he obtained the letter from his
       doctor under “duress,” he has not presented
       evidence that the content of the letter is not
       accurate or correct, or that the doctor who wrote
       the letter agrees that plaintiff is now fit for duty or
       not entitled to consideration for permanent
       disability. Therefore, plaintiff has not satisfied the
       prima facie elements for a Rehabilitation Act claim
       under the McDonnell Douglas paradigm.

App. at 6a. We believe the District Court erred in concluding
that the analysis should end there.

       Our review of the record discloses that Wishkin has put
forth evidence that throws into question the District Court’s
conclusion that Wishkin did not meet the qualification
requirement. Madison, who had accompanied Wishkin to Dr.
Yorker’s office testified that Wishkin told Dr. Yorker that
Green, his USPS supervisor, continually placed pressure on him
to procure a letter from his physician regarding his eligibility for
permanent disability. Green told Wishkin that the bag room, the
department in which Wishkin worked, would soon be eliminated
and that Wishkin’s job would be mechanized. Madison
recounted that Wishkin

       said he needed a note from the doctor that would
       describe his problems that he could use to get
       Disability Retirement, and Dr. Yorker, said I’m not
       going to write that, Richard. He said, I need it,
       Mrs. Green is after me. I’m not going to write that
       Richard, you’re too young. And I’m there. I said

                                 8
       Richard, what’s this for? We are over here to see
       your doctor about kidney stones and now you are
       talking about this. And he said, Mrs. Green says
       they are closing down the Bag Room and I’m not
       going to have a job. I’m going to be out on the
       street and I’m too young to apply for pension, and
       this is the only way I can save myself.

       And Dr. Yorker did not want to write it, but based
       on that and his insistence, he agreed to write it.

App. at 86a-87a.

        Madison also testified there is evidence to suggest that a
number of similarly situated disabled employees were being
convinced to leave their positions at USPS and take permanent
disability because they were being told their jobs were to be
eliminated in the near future. Although the District Court’s one
paragraph disposition suggests that Wishkin wanted to retire or
take permanent disability, Wishkin produced evidence to the
contrary. It is undisputed that he refused to sign the paperwork
necessary for permanent disability and he insisted that he wished
to continue working. Therefore, although Wishkin had, in fact,
procured a letter from his physician attesting to his inability to
continue working (which the District Court deemed dispositive),
the circumstances surrounding the procurement of the letter
required the District Court to treat Wishkin’s qualification as
disputed.

       The District Court pretermitted the McDonnell Douglas
analysis before reaching the third step - at which the employee
must be permitted to show that the employer’s facially neutral
reason for the employment action was pretextual. Wishkin made
an adequate showing to satisfy that requirement. The USPS’s
physician, Dr. Evangelista, deemed him “fit” for duty after a
lengthy evaluation. Although that determination was changed to
“unfit” later that day, the circumstances leading to that quick
about face warranted further inquiry, as there was a suggestion
that Green’s phone call may have been responsible. The
testimony of Redd, the Union Steward, also suggests a

                                9
discriminatory purpose on the part of the USPS. He testified that
“they had declared [Wishkin] fit for duty in the morning and
three hours later they declared him unfit for duty.” App. at 303a.
He concluded that the conduct of the USPS in this case
presented “one of the most unusual situations [he] had seen take
place” and that he “had never seen that happen before or since.”
App. at 303a.

        Furthermore, Wishkin had been performing the essential
functions of the job for nearly twenty years, and there was no
evidence of recent changes to his health status or ability to work
that might have precipitated Wishkin’s request for a physician’s
letter, other than Wishkin’s stated reason that he felt pressure to
protect himself from unemployment. For summary judgment
purposes, the District Court should not have accepted the
USPS’s characterization of Wishkin as not qualified based solely
on the letter that he procured from a physician reluctant to grant
it. A trier of fact could accept Wishkin’s evidence supporting
his contention that USPS’s efforts to force him to take
permanent disability were motivated by discrimination against its
disabled employees. Wishkin contends that his supervisor
continually targeted disabled employees working in the bag
room by conducting “circle meetings,” involving only disabled
employees, during which they were often told that the bag room
would be closing, that their jobs would no longer be needed, that
they were unable to be trained for a different position, and that it
would be best if they took permanent disability. App. at 266a.
Many disabled employees did in fact leave USPS as a result.
App. at 310a-312a. Moreover, many of the disabled employees
were scheduled for fitness for duty examinations on the same
day, which, according to Union Chief Shop Steward Gerry Redd,
was unheard of. Typically, employees are only given fitness for
duty examinations if there is a specific instance of questionable
behavior; they are not considered a routine procedure. Id. The
unusual circumstances surrounding the fitness for duty
examinations of all the disabled employees and the consistent
and routine warnings given to the disabled employees regarding
their job status could support Wishkin’s contention that the
adverse employment action in question was motivated by
discrimination. For purposes of summary judgment, he has

                                10
presented a genuine issue of material fact.

        Despite the fact that Wishkin procured Dr. Yorker’s
letter, which was the basis for the District Court’s grant of
summary judgment, there is substantial evidence, particularly
when the evidence is viewed in the light most favorable to
Wishkin, the non-moving party, to support his argument that the
letter was only procured under duress and as a result of a
calculated attempt to force similarly situated disabled employees
to take permanent disability retirement.

                               III.

       For the reasons set forth, we will reverse the order
granting summary judgment as to the Rehabilitation Act claim
(Count I) and remand for further proceedings consistent with this
opinion.




                                11
