                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0035n.06

                                            No. 19-1328


                           UNITED STATES COURT OF APPEALS                                FILED
                                FOR THE SIXTH CIRCUIT                              Jan 22, 2020
                                                                               DEBORAH S. HUNT, Clerk
 LOU CHINNA BENT-CRUMBLEY,                   )
                                             )
        Plaintiff-Appellant,                 )
                                             )                    ON APPEAL FROM THE
 v.                                          )                    UNITED STATES DISTRICT
                                             )                    COURT FOR THE EASTERN
 MEGAN J. BRENNAN, Postmaster General of the )                    DISTRICT OF MICHIGAN
 United States Postal Service,               )
                                             )                                OPINION
        Defendant-Appellee.                  )
                                             )



BEFORE:        SUHRHEINRICH, STRANCH, and NALBANDIAN, Circuit Judges.

       PER CURIAM. Plaintiff-Appellant Lou Chinna Bent-Crumbley was a probationary letter

carrier for the Postal Service when she injured her foot and ankle on the job, resulting in a month

of medical leave. While on leave, she received poor marks in a performance review that covered

her first 30 days, generally before her injury. After returning to work, she did not wear a seat belt

on two occasions and delivered mail out of order in violation of instructions to her, all resulting in

warnings by her supervisors. She then received unacceptable ratings in another performance

review and her supervisors filed paperwork recommending her termination. She was terminated

upon approval of the paperwork, on the same day that she notified her supervisor that she needed

further medical attention for her injury.

       Bent-Crumbley filed a complaint against the Postal Service for discrimination in violation

of the Rehabilitation Act. The district court found that she did not establish a prima facie case
No. 19-1328, Bent-Crumbley v. Brennan


under the indirect evidence framework for disability discrimination and granted summary

judgment in favor of the Postal Service. Because Bent-Crumbley cannot establish that her

termination was based solely on her disability as required by the Rehabilitation Act, we AFFIRM.

                                     I.   BACKGROUND

       Bent-Crumbley was a letter carrier with the United States Postal Service at the Inkster,

Michigan office. During the relevant times, Bent-Crumbley was on a 90-day probationary period

that began when she was hired full time on November 29, 2014 and was set to end on February

26, 2015. She was supervised by Tim Pendleton, the first line supervisor, and Christopher Baker,

the second line supervisor and Officer in Charge at the Inkster Post Office.

       On December 26, 2014, Bent-Crumbley suffered an ankle and foot injury while delivering

mail, resulting in medical leave from December 26, 2014 to January 23, 2015. On around January

7, 2015, Bent-Crumbley brought medical documentation to the post office, and Baker met with

her for a 30-day performance review of the performance period that covered mostly the time before

her injury. Bent-Crumbley received “unacceptable” ratings in a number of areas and “not

observed” ratings in other areas.

       Bent-Crumbley returned to work on January 23 without any restrictions, and on January

27, Baker noticed that she was improperly working without a seat belt on and instructed her to

wear a seat belt. Two days later, Baker and Pendleton again observed Bent-Crumbley working

without a seat belt after stopping her for delivering mail out of sequence against instructions.

Baker gave Bent-Crumbley another warning and instruction to wear a seat belt and to complete

her assignment in accordance with her route. On February 3, with Baker’s approval, Pendleton

completed an administrative action request to the Labor Relations Department to terminate

Bent-Crumbley for failure to follow instructions, unsafe practices, and failure to be in regular




                                                -2-
No. 19-1328, Bent-Crumbley v. Brennan


attendance, citing in the comments the seat belt incidents, delivering mail out of order, and prior

unscheduled absences during her probationary period.         Though Baker had the authority to

terminate Bent-Crumbley, he noted that it was customary to get the approval and recommendation

from the Labor Relations Department before doing so.

        On February 5, Baker met with Bent-Crumbley and her union representative Phil Ashford

for a 60-day performance review and gave Bent-Crumbley “unacceptable” ratings in all areas. He

did not indicate that she would be terminated. The next day, Bent-Crumbley reported to work and

told Baker that her ankle was bothering her again, but that she would still go on her route and have

it checked later.     Baker testified that the Labor Relations Department approved the

recommendation for her termination after she left for her route that day. He told Ashford and sent

for Bent-Crumbley to return. Ashford testified that Baker told him, “I’m going to have to let her

go. She’s going to cost the Post Office too much money,” and that he made a similar comment

during the 60-day review the day before. When Bent-Crumbley returned, Baker and Pendleton

met with her in Ashford’s presence and terminated her for “Failure to Adhere to Safety Rules and

Regulations,” referencing the two instances when they observed her working without wearing a

seat belt.

        Bent-Crumbley filed an Equal Employment Opportunity complaint; an Administrative

Law Judge (ALJ) concluded that while her termination was motivated in part by her disability, the

Postal Service proved by clear and convincing evidence that it would have taken the same action

regardless of her disability. On June 5, 2017, Bent-Crumbley filed a complaint against the

Postmaster General under the Americans with Disabilities Act (ADA) and the Rehabilitation Act,

alleging that her termination was the result of her ankle and foot injury. The Postal Service filed

for summary judgment. Bent-Crumbley argued that Baker’s decision to terminate her was based




                                                -3-
No. 19-1328, Bent-Crumbley v. Brennan


on the recurrence of her injury on February 6 and sought to rely on the ALJ’s finding that her

termination was motivated in part by disability discrimination. Because she was challenging the

administrative decision in the district court, however, she cannot rely on the ALJ’s findings of fact.

The district court determined independently that Bent-Crumbley did not prove the elements of her

prima facie case under the McDonnell Douglas burden-shifting framework for establishing

discrimination claims. The district court granted summary judgment in favor of the Postal Service,

and Bent-Crumbley now appeals.

                                        II.   ANALYSIS

       We review de novo the district court’s grant of summary judgment. Ferrari v. Ford Motor

Co., 826 F.3d 885, 891 (6th Cir. 2016). Summary judgment is appropriate if, viewing the facts

and reasonable inferences in the light most favorable to the nonmoving party, there are no genuine

issues of material fact for trial and the movant is entitled to judgment as a matter of law. Id.; Fed.

R. Civ. P. 56(a). “[W]e may affirm [summary judgment] on any grounds supported by the record

even if different from the reasons of the district court.” Abercrombie & Fitch Stores, Inc. v. Am.

Eagle Outfitters, Inc., 280 F.3d 619, 629 (6th Cir. 2002).

       The Rehabilitation Act, a parallel statute of the ADA, prohibits the United States Postal

Service, federal agencies, and other programs receiving federal funding from discriminating

against any qualified individual with a disability. 29 U.S.C. § 794(a). The Act is the “exclusive

remedy for a federal employee alleging disability-based discrimination.” Jones v. Potter, 488 F.3d

397, 403 (6th Cir. 2007). It specifically incorporates the standards applied under the ADA to

determine violations, 29 U.S.C. § 794(d), and courts look to guidance under the ADA to determine

if a federal employee has been discriminated against because of a disability, Mahon v. Crowell,

295 F.3d 585, 588–89 (6th Cir. 2002).




                                                 -4-
No. 19-1328, Bent-Crumbley v. Brennan


         While the ADA and the Rehabilitation Act are analytically similar and contain the same

protections against disability discrimination, they are not identical. Lewis v. Humboldt Acquisition

Corp., 681 F.3d 312, 314–17 (6th Cir. 2012) (en banc). A plaintiff under the ADA needs to show

that disability was the “but for” causation of the employer’s adverse action. Id. at 321. On the

other hand, the Rehabilitation Act requires that individuals show that the employer’s actions were

taken “solely by reason of her or his disability.” 29 U.S.C. § 794(a). “The sole-cause standard . . .

is a creature of the Rehabilitation Act, and . . . does not apply to claims under the ADA.” Lewis,

681 F.3d at 317. Taken together, this circuit has clarified that a plaintiff claiming disability

discrimination under the Rehabilitation Act must show 1) that she has a disability, 2) that she is

otherwise qualified to perform the job requirements with or without reasonable accommodation,

and 3) that the adverse action was taken solely by reason of the disability. See Jones, 488 F.3d at

403 (citing Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1996)1).

         A plaintiff may establish a claim for disability discrimination under the Rehabilitation Act

or the ADA in one of two ways: “by introducing direct evidence of discrimination, including

evidence that the employer relied upon the plaintiff’s disability in making its employment

decision,” or indirect evidence, under which the familiar McDonnell Douglas burden-shifting

framework applies. Monette, 90 F.3d at 1178. If a plaintiff has direct evidence of discrimination,

the “burden shifting approach is unnecessary because the issue of the employer’s intent, the issue

for which McDonnell Douglas was designed, has been admitted by the defendant . . . and the

plaintiff has direct evidence of discrimination on the basis of his or her disability.” Ferrari, 826

F.3d at 892 (alteration in original) (quoting Monette, 90 F.3d at 1182). A plaintiff can establish a


1
  Monette was subsequently abrogated in part by Lewis, which held that an ADA plaintiff must show that he suffered
an adverse employment action “because of” rather than “solely by reason of” disability. The Lewis court, however,
left Monette’s analysis under the Rehabilitation Act intact, and plaintiffs under the Rehabilitation Act must still show
adverse action “solely by reason of” the disability.


                                                          -5-
No. 19-1328, Bent-Crumbley v. Brennan


prima facie case under the direct evidence framework by bringing evidence of discriminatory

intent, such as a facially discriminatory employment policy or express statements of desires to

remove employees. Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). Direct

evidence “does not require the fact finder to draw any inferences” to conclude “that the disability

was at least a motivating factor.” Hostettler v. Coll. of Wooster, 895 F.3d 844, 853 (6th Cir. 2018)

(citation omitted).

       The threshold inquiry for disability discrimination is whether the plaintiff is disabled. The

definition of disability under the Rehabilitation Act is “a physical or mental impairment that

constitutes or results in a substantial impediment to employment.” 29 U.S.C. § 705(9). The

Rehabilitation Act also incorporates the definition of disability under the ADA, under which a

disability is “(A) a physical or mental impairment that substantially limits one or more major life

activities . . . ; (B) a record of such an impairment; or (C) being regarded as having such an

impairment . . . .” 42 U.S.C. § 12102(1)(A)–(C); see also Mahon, 295 F.3d at 589. A plaintiff

showing a disability and direct evidence of discrimination based on that disability must also show

she is otherwise qualified to do the job with or without accommodation and that “the adverse

employment decision was based solely on [her] disability.” Monette, 90 F.3d at 1180–81.

       The district court analyzed the present case under the indirect evidence test alone, finding

that Bent-Crumbley did not establish a prima facie case for disability discrimination. On appeal,

Bent-Crumbley argues that there was direct evidence of disability discrimination and challenges

only the district court’s finding that she was not disabled. Bent-Crumbley argues that she was

disabled because her ankle and foot injury was a physical impairment that substantially limited the

major life activity of walking, and in the alternative, that the Postal Service regarded her as

disabled. As direct evidence of disability discrimination, Bent-Crumbley relies on a statement




                                                -6-
No. 19-1328, Bent-Crumbley v. Brennan


Baker made to Ashford prior to notifying her of her termination: that he was “going to let her go”

because she was going to “cost the Post Office too much money.”

        Bent-Crumbley’s proof that she raised genuine issues of material fact on her disability and

the existence of direct evidence of disability discrimination are not dispositive here because she

cannot carry her burden to show the other essential elements of a Rehabilitation Act claim.

        As to the second element of the test, Bent-Crumbley does not argue that she is “otherwise

qualified” for the position on appeal, with or without reasonable accommodation, see Jones, 488

F.3d at 403, and we consider it waived, see Radvansky v. City of Olmsted Falls, 395 F.3d 291, 311

(6th Cir. 2005) (“[Plaintiff’s] failure to raise an argument in his appellate brief constitutes a waiver

of the argument on appeal.”).

        As to the third element, Bent-Crumbley makes no argument on appeal that she was

terminated solely by reason of her disability and has conceded the existence of other reasons for

her termination. In the administrative action request to terminate Bent-Crumbley, the Postal

Service cited two seat-belt-safety violations, the failure to follow instructions in the mail-delivery

order, and prior attendance issues, though her official notice of separation noted only the two

seat-belt violations. Bent-Crumbley does not dispute these facts, or that she met with Baker twice

to discuss her 30-day and 60-day performance reviews and was given “unacceptable” ratings in

almost all performance categories. Because she was a probationary employee, the Postal Service

was within its authority to terminate Bent-Crumbley for these violations.

        The key relevant question for Bent-Crumbley’s Rehabilitation Act claim is whether there

are genuine issues of material fact that her termination was motivated solely by the impermissible

discriminatory motive. On the record before us, we cannot find under either the direct evidence

or indirect evidence framework that disputes of material fact exist as to whether disability




                                                  -7-
No. 19-1328, Bent-Crumbley v. Brennan


discrimination was the sole motivation for her discharge. The grant of summary judgment to the

Postal Service was therefore appropriate.

                                   III.     CONCLUSION

       Because Bent-Crumbley cannot establish the elements of a Rehabilitation Act claim, we

AFFIRM the district court’s order granting defendant’s motion for summary judgment.




                                               -8-
