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


12-19-2007

Ozlek v. Postmaster Gen
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2161




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                                                     NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                            No. 06-2161



                        MICHAEL OZLEK,

                                  Appellant

                                    v.

           JOHN E. POTTER, POSTMASTER GENERAL,
              UNITED STATES POSTAL SERVICE,
                   EASTERN AREA, AGENCY




           On Appeal from the United States District Court
                for the Eastern District of Pennsylvania
                      (D.C. Civil No. 05-cv-0257)
          District Court Judge: Honorable R. Barclay Surrick


           Submitted Pursuant to Third Circuit LAR 34.1(a)
                         December 13, 2007

Before: RENDELL, GREENBERG, and VAN ANTWERPEN, Circuit Judges.

                     (Filed: December 19, 2007)




                     OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.

       Appellant Michael Ozlek brought claims against the Postmaster General of the

United States Postal Service under both the Rehabilitation Act of 1973 and the Family

and Medical Leave Act. The District Court granted the defendant’s Motion for Judgment

as a Matter of Law on all claims pursuant to Federal Rule of Civil Procedure 50(b). For

the reasons set forth below, we will affirm the decision of the District Court.

                                             I.

       Because we write solely for the benefit of the parties, we will set forth only those

facts necessary to our analysis.

       Appellant Michael Ozlek was a Part-Time Flexible (“PTF”) Letter Carrier for the

United States Postal Service. After a number of transfers around the Philadelphia area,

Ozlek was assigned to the West Park Post Office (“West Park”). At West Park, Ozlek

was supervised by Joseph Stewart, who was replaced for a brief period of time by Louetta

Curry. Ozlek’s immediate supervisors were Marquita Rucker and Danielle Candelaria.

This entire supervisory team reported to James Vance.

       Prior to Ozlek’s arrival in West Park, he had begun to experience psychological

problems including depression, anxiety disorder, and obsessive-compulsive disorder.

However, prior to his transfer to West Park, these symptoms did not affect the

performance of his job, which had always been good. App. at A657.

       Ozlek reported for duty at West Park on January 26, 2002. On January 30, 2002,



                                              1
Ozlek received a letter of warning from Mr. Stewart for failure to properly scan bar codes

during his mail route. In addition to this warning letter, Ozlek received other warnings

and discipline throughout his tenure at West Park for various mistakes Ozlek made while

delivering mail. Ozlek testified that during the meetings to discuss these various

infractions, Ozlek’s supervisors would holler at him and treat him unfairly. App. at A56.

       In February 2002, Ozlek requested and received Family and Medical Leave Act

(“FMLA”) leave for personal illness. Over the course of the next 10 months of his

employment at West Park, Ozlek requested and received FMLA leave every month, often

for multiple days in a given month. The majority of this leave was based upon Ozlek’s

psychological problems. Ozlek exhausted all of his FMLA leave on August 6, 2002, and

all of his subsequent time off was approved leave without pay or penalty.

       The stress Ozlek experienced due to his issues with the management team at West

Park caused him to be overwhelmed, and he requested a transfer out of West Park. Ozlek

requested a transfer first from his direct supervisors, App. at A693, who told Ozlek that

only the Postmaster of the Philadelphia District, James Gallagher, had the authority to

effectuate a transfer. Ozlek wrote at least one letter to Gallagher, but his transfer request

was denied. App. at 697. Ozlek also sent additional letters to Senators and Congressmen

seeking assistance in his quest for a transfer, and he continued to request the transfer from

his direct supervisors. Ozlek’s stated reasons for transfer in all of these requests were a

number of personal hardships, including his mental illness, his daughter’s learning



                                              2
disability, and his wife’s heart problems.

       During Ozlek’s tenure at West Park, Louetta Curry became concerned about

Ozlek’s reactions to unfavorable feedback and his long absences from work. Curry

requested that Ozlek undergo a Fitness for Duty examination on April 29, 2002, and the

examining doctor determined that Ozlek was fit for duty and able to continue working at

West Park. App. at A723. However, she also recommended a temporary transfer to help

Ozlek deal with his emotional problems. Ozlek continued to request a transfer.

Throughout the trial, Ozlek maintained that the only accommodation he sought was to be

reassigned to a station outside of Vance’s management team, maintaining that he could

handle the stress of the job but for the management team at West Park. App. at A85,

A100, A106, A135.

       In November 2002, after being consistently denied transfer, Ozlek applied for

Disability Retirement. On December 17, 2002, Joseph Stewart told Ozlek he should not

return to work until his status was determined, declaring him “non-scheduled

indefinitely.” In March 2003, Ozlek’s Disability Retirement application was approved,

effective December 17, 2002. Ozlek’s psychologist, Dr. McGalliard, indicated that Ozlek

was totally unable to work at that time, and that his condition makes it impossible for him

to work at all, even through the trial date.

       Ozlek filed suit on January 19, 2005, asserting that the Post Office had violated the

Rehabilitation Act and the Family and Medical Leave Act (“FMLA”). Trial commenced



                                               3
on February 6, 2006. At the close of evidence, the District Court granted the Post

Office’s Motion for Judgment as a Matter of Law. This appeal followed.

                                            II.

       The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

       Our review of the District Court’s grant of judgment as a matter of law under Fed.

R. Civ. P. 50(b) is plenary. Raiczyk v. Ocean County Veterinary Hosp., 377 F.3d 266,

269 (3d Cir. 2004). “Such a motion should be granted only if, viewing the evidence in

the light most favorable to the nonmovant and giving it the advantage of every fair and

reasonable inference, there is insufficient evidence from which a jury reasonably could

find liability.” Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1156 (3d Cir. 1993).

                                            III.

       In this appeal, appellant Ozlek claims that he presented sufficient evidence to

survive a Motion for Judgment as a Matter of Law on three claims. First, he claims that

he presented sufficient evidence to prove a discrimination claim under the Rehabilitation

Act. Second, he claims that he presented sufficient evidence to prove a retaliation claim

under the Rehabilitation Act. Finally, Ozlek claims that he presented sufficient evidence

to prove a retaliation or discrimination claim under the Family and Medical Leave Act.

              A. Ozlek’s Discrimination Claim Under the Rehabilitation Act

       Mr. Ozlek claims that he was discriminated against due to his disability in



                                             4
violation of the Rehabilitation Act. 29 U.S.C. § 701 et seq.

       In order to raise claims for relief under the Rehabilitation Act, the plaintiff must

first present a prima facie case of discrimination “by demonstrating: (1) he is a disabled

person within the meaning of the ADA 1 ; (2) he is otherwise qualified to perform the

essential functions of the job, with or without reasonable accomodations by the employer;

and (3) he has suffered an otherwise adverse employment decision as a result of

discrimination.” Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 580 (3d Cir. 1998); 29

U.S.C. § 794.

       Although the District Court based its decision to grant appellee’s motion for

judgment as a matter of law on finding that Ozlek was neither “disabled” (1 st prong) nor

“qualified” (2 nd prong), this Court will confine its analysis to whether Ozlek was

“qualified.” Since this Court agrees with the District Court finding that Ozlek was not

“qualified,” his discrimination claim under the Rehabilitation Act fails and it is

unnecessary to address whether he is “disabled.”

       “[T]he burden is on the employee to prove that he is ‘an otherwise qualified’

individual.” Shiring v. Runyon, 90 F.3d 827, 832 (3d Cir. 1996).

              A two-part test is used to determine whether someone is a qualified
       individual with a disability. First, a court must consider whether the
       individual satisfies the prerequisites for the position, such as possessing the



       1
        In this opinion, we refer to case law that discusses standards under both the
Rehabilitation Act and the Americans with Disabilities Act interchangeably, in
accordance with the statutory text of the Rehabilitation Act. 29 U.S.C. § 794(d).

                                              5
       appropriate educational background, employment experience, skills,
       licenses, etc. Second, the court must consider whether or not the individual
       can perform the essential functions of the position held or desired, with or
       without reasonable accommodation.

Gaul, 134 F.3d at 580 (internal quotations and citations omitted).

       Because neither party seems to be contesting that Ozlek possessed the necessary

prerequisites for his employment, we consider only whether Ozlek has presented a

sufficient evidentiary basis for a reasonable jury to find for him on the issue of his ability

to perform the essential functions of his job with reasonable accommodation. We decide

that Ozlek has failed to present such evidence.

       The District Court was correct in stating that “[t]he Third Circuit has stated that

the Rehabilitation Act does not require employers to accommodate employees by transfer

to another supervisor.” App. at A11 (citing Gaul, 134 F.3d at 581). The facts in Gaul are

essentially indistinguishable from the case on appeal,2 and this Court concludes that the

holding in Gaul is dispositive of this issue.

       In Gaul, the plaintiff suffered from depression and anxiety-related disorders.

Gaul, 134 F.3d at 577. Gaul’s proposed accommodation, like Ozlek’s, was a transfer to a



       2
         Ozlek attempts to distinguish Gaul on the grounds that unlike the appellant in
Gaul, Ozlek is requesting a transfer for other reasons, in addition to his desire to get away
from his supervisors. Appellant’s Brief at 46. However, we do not feel this slight
difference in requests has any effect on the reasonableness of the accommodation sought,
particularly when Ozlek testified, in response to the denial of his first request for transfer,
“I would have taken any transfer, as long as it was . . . away from the supervisors and
managers that I had been working for.” App. at A85. It is clear from the record that
Ozlek was only seeking a transfer to a post office outside of Vance’s management team.

                                                6
different location in order to get away from a co-worker. Id. at 578. The Gaul Court held

that “Gaul’s request to be transferred away from individuals causing him prolonged and

inordinate stress was unreasonable as a matter of law . . . .” Id. at 579. The Gaul Court

reasoned that “nothing in the law leads us to conclude that in enacting the [Rehabilitation

Act], Congress intended to interfere with personnel decisions within an organizational

hierarchy.” Id. at 581.

       Like the plaintiff in Gaul, Ozlek’s only proposed accommodation was a transfer to

a location that was outside of the supervision and control of the West Park management

team. App. at A85, A100, A106, A135. According to Gaul, this accommodation was

“unreasonable as a matter of matter of law.” Therefore, Ozlek failed to meet his burden

in pleading a prima facie case under the Rehabilitation Act. Accordingly, the District

Court properly granted the appellee’s motion for judgment as a matter of law.3

       Ozlek seeks to nonetheless gain relief by claiming that the appellee violated the

Act by failing to engage in the “interactive process” of finding a reasonable

accommodation. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 311 (3d Cir. 1999).

However, this argument ignores the fact that in order to file such a claim under the




       3
         Both the appellant and the appellee seem to argue in their briefs over the issue of
whether Ozlek was a “qualified individual” under the Rehabilitation Act before
December 17, 2002, as a separate inquiry from whether he was a “qualified individual”
after that date. Based on our determination that the only accommodation sought by Ozlek
both before and after this date was unreasonable as a matter of law, this distinction is
unnecessary.

                                             7
Rehabilitation Act, the claimant must first be “qualified.”

       As this Court stated in Mengine v. Runyon, “[w]here a plaintiff cannot demonstrate

‘reasonable accommodation,’ the employer’s lack of investigation into reasonable

accommodation is unimportant . . . . The ADA, as far as we are aware, is not intended to

punish employers for behaving callously if, in fact, no accommodation for the employee’s

disability could reasonably have been made.” 114 F.3d 415, 420 (3d Cir. 1997) (citing

Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997)).

       In fact, both cases cited by Ozlek list as one of the elements for a failure to

communicate claim that “[the plaintiff] could have reasonably been accommodated.”

Armstrong v. Burdette Tomlin Memorial Hospital, 438 F.3d 240, 246 (3d Cir. 2006)

(citing Taylor, 184 F.3d at 317-20). The Court in Taylor even distinguished Gaul, stating

that in Gaul the “employee’s proposed accommodation . . . was unreasonable as a matter

of law.” Taylor, 184 F.3d at 316 n.7. Therefore, because Ozlek’s only proposed

accommodation was unreasonable as a matter of law, Gaul, 134 F.3d at 581, Ozlek’s

failure to accommodate claim based on a lack of “interactive process” fails.

                B. Ozlek’s Retaliation Claim Under the Rehabilitation Act

       Ozlek also appeals the fact that the District Court failed to consider his claim that

the USPS violated the Rehabilitation Act by constructively terminating him in retaliation

for his requested accommodation under the Rehabilitation Act and for filing an EEO

complaint. App. at A53. Although Ozlek’s brief does not make it clear exactly what



                                              8
conduct led to the constructive termination, we will assume arguendo that the

supervisor’s decision to declare Ozlek “non-scheduled indefinitely” is the adverse

employment action that is the focus of Ozlek’s retaliation claim. Although the District

Court failed to specifically address this claim, we determine that this claim is without

merit. At the outset, it should be noted that Ozlek’s failure to establish that he was

“qualified” does not prevent him from being able to recover under a retaliation claim.

Krouse v. Am. Sterilizer Co., 126 F.3d 494, 498 (3d Cir. 1997).

       Krouse laid out the framework for analyzing retaliation claims as follows:

       To establish a prima facie case of retaliation under the [Rehabilitation Act],
       a plaintiff must show: (1) protected employee activity; (2) adverse action by
       the employer either after or contemporaneous with the employee’s protected
       activity; and (3) a causal connection between the employee’s protected
       activity and the employer’s adverse action . . . . If an employee establishes a
       prima facie case . . . the burden shifts to the employer to advance a
       legitimate, non-retaliatory reason for its adverse employment action . . . . If
       the employer satisfies its burden, the plaintiff must be able to convince the
       factfinder both that the employer’s proffered explanation was false, and that
       retaliation was the real reason for the adverse employment action.

Krouse, 126 F.3d at 500-501 (internal citations and quotations omitted). See also

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06 (1973) (describing

framework).

       Even assuming that Ozlek presented sufficient evidence to establish a prima facie

case of retaliation,4 Ozlek’s retaliation claim fails because he failed to provide any



       4
        We express doubt as to whether Ozlek presented sufficient evidence to prove the
required causal link between his protected activities and the alleged adverse employment

                                              9
evidence to rebut the USPS’s legitimate, non-retaliatory reason for declaring Ozlek “non-

scheduled indefinitely.”

       Joseph Stewart, Ozlek’s supervisor, testified that the real reason for declaring

Ozlek “non-scheduled indefinitely” was not due to discriminatory animus, but rather was

due to the fact that USPS needed to resolve inconsistencies related to Ozlek’s medical

status and due to inappropriate behavior by Ozlek. App. at A550. This testimony is

sufficient to carry the employer’s burden under this scheme. See Krouse, 126 F.3d at 500

(stating that defendant simply must “articulate[] any legitimate reason”).

       Ozlek, however, failed to rebut this articulated reason because the record is devoid

of any evidence that would raise a genuine issue of fact as to whether Stewart’s proffered

reason was pretextual. See id. at 504 (stating that plaintiff must generally demonstrate

“such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the

employer’s proffered legitimate reasons for its action that a reasonable factfinder could

rationally find them unworthy of credence”) (internal quotations and citations omitted).

Because Ozlek failed to carry this burden, his retaliation claim under the Rehabilitation

Act is without merit.



action. We have held that timing that is “unusually suggestive” of retaliatory motive may
establish the necessary causal connection, or that, in the absence of such temporal
proximity, other evidence of retaliatory animus during the intervening period may suffice.
Krouse v. American Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir. 1997) (quoting
Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997)). Although we
believe Ozlek presented insufficient evidence to prove a causal link, his claim fails for
other reasons, and thus we will not explore this issue further.

                                             10
                C. Ozlek’s Claim Under the Family and Medical Leave Act

        Mr. Ozlek claims that he was discriminated and retaliated against due to the

exercise of his rights under the Family and Medical Leave Act (“FMLA”). 29 U.S.C. §

2611 et. seq. For the following reasons, we affirm the District Court’s granting of the

motion for judgment as a matter of law dismissing these claims.

        To establish a prima facie case of discrimination or retaliation based on FMLA

use, the plaintiff must show that “(1) he took an FMLA leave, (2) he suffered an adverse

employment decision, and (3) the adverse employment decision was causally related to

his leave.” Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135, 146 (3d Cir.

2004); 29 U.S.C. § 2615(a)(2).

        In this appeal, Ozlek identifies two adverse employment decisions/actions. First,

he claims that Mr. Stewart’s decision to declare him “non-scheduled indefinitely” was a

retaliation due to Ozlek’s use of FMLA leave. However, this claim fails for the same

reasons that Ozlek’s retaliation claim against Mr. Stewart failed under the Rehabilitation

Act.5

        Second, Ozlek claims that he was discriminated against and harassed by his

supervisors due to his frequent requests for FMLA leave. This claim fails, however,



        5
        Claims under FMLA are analyzed using the same burden-shifting scheme as is
used for ADA and other retaliation/discrimination claims. See Hodgens v. General
Dynamics Corp., 144 F.3d 151, 160 (1st Cir. 1998) (“McDonnell Douglas burden-shifting
framework applies to claims that an employee was discriminated against for availing
himself of FMLA-protected rights”).

                                             11
because Ozlek did not present sufficient evidence on the issue of causation.

       In his brief, Ozlek stated that he had “testified how his supervisors would scream

and yell at him, call him a ‘liar’ and give him jobs that could not be done in the time

allowed.” Appellant’s Brief at 56. However, Ozlek was unable to remember the date of

this treatment, App. at A56, and the record strongly suggests that this complained-of

behavior by his supervisors (or at least a large part of it) happened prior to Ozlek even

inquiring about FMLA leave on February 6, 2002. In addition, Ozlek attempted to prove

causation at trial by pointing to a statement made by his supervisor Louetta Curry at her

deposition. Curry stated that her superior’s evaluation of her was based at least partly on

the amount of sick leave taken by the subordinates under her supervision, including

Ozlek. However, given a complete lack of other evidence that would tend to prove

causation, we agree with the District Court that this statement by itself is not sufficient to

prove causation. Therefore, Ozlek failed to make out a prima facie case of retaliation or

discrimination under the FMLA.

                                             IV.

       We have considered all other arguments made by the parties on the appeal, and

conclude that no further discussion is necessary. For the foregoing reasons, we will

affirm the District Court’s decision to grant the defendant’s motion for judgment as a

matter of law.




                                              12
