                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-10-2004

Mikruk v. US Postal Ser
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3192




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                                                                 NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                                       No. 03-3192
                                       __________

                                   JOSEPH M. MIKRUK
                                             Appellant

                                             v.

                             U.S. POSTAL SERVICE;
                    JOHN E. POTTER, POSTMASTER GENERAL
                                   __________

                    On Appeal from the United States District Court
                       For the Middle District of Pennsylvania
                                  (Civ. No. 00-2232)
                      District Judge: Honorable Edwin M. Kosik
                                      __________

                        Submitted Under Third Circuit L.A.R. 34.1(a)
                                    October 27, 2004
                                      ___________

              Before: NYGAARD, AM BRO, and GARTH, Circuit Judges

                            (Opinion Filed: November 10, 2004)
                                        __________

                                         OPINION


Garth, Circuit Judge:

      Appellant Joseph M ikruk appeals from the District Court’s grant of summary

judgment in favor of Appellee John Potter, Postmaster General (the “Postmaster
General”) of the United States Postal Service (“USPS”), on Mikruk’s disability

discrimination claim. The District Court had jurisdiction pursuant to 28 U.S.C. § 1331.

We have jurisdiction pursuant to 28 U.S.C. §1291. W e will affirm.

                                              I.

       Because we write solely for the benefit of the parties, we recount only those facts

that are relevant to the issues before us. Mikruk is a type 1 “brittle” diabetic. His

condition is controlled primarily through insulin, diet and a strictly regimented schedule.

Mikruk’s supervisors were aware of his condition. From 1983 to 1993, he was employed

with the USPS as a letter carrier. In 1993, Mikruk bid on and was awarded a maintenance

position. His working hours were 6:30 a.m. to 3:00 p.m. and he was off on Wednesday

and Saturday.

       In December 1998, Mikruk was assigned new scheduled hours of 10:00 a.m. to

7:00 p.m. with days off on Wednesday and Thursday. Mikruk refused to work the new

schedule and did not return to work after December 1998. The USPS terminated Mikruk

in October 2000.

       Mikruk filed suit alleging disability discrimination under § 504 of the

Rehabilitation Act, 29 U.S.C. § 794. In his amended complaint, Mikruk claimed that the

Postmaster General failed to make reasonable accommodations for his disability, i.e., his

diabetes, when he changed Mikruk’s work schedule. Mikruk further stated that his

schedule was changed in retaliation for a letter he wrote to the main post office in



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Harrisburg, Pennsylvania, detailing an alleged affair between Mikruk’s supervisor and the

union president. Mikruk also alleged that the Postmaster General treated Mikruk more

harshly than similarly situated people without diabetes.

       On December 31, 2002, the Postmaster General moved for summary judgment on

the grounds that (1) Mikruk failed to establish a prima facie case of disability

discrimination because there was no evidence that he was disabled within the meaning of

the Rehabilitation Act or that his employer took adverse action because of a disability, (2)

there was no evidence of similarly situated employees outside of Mikruk’s alleged

protected class who were treated more favorably than he was, and (3) the Postmaster

General had made appropriate accommodations for Mikruk’s condition.

       In an opinion dated May 30, 2003, the District Court granted the motion for

summary judgment, finding that Mikruk failed to make out a prima facie claim of

discrimination. Specifically, Mikruk argued that he was disabled because he was

substantially impaired in the major life activity of work. The District Court concluded,

however, that Mikruk was not substantially impaired because he had not produced

evidence to support the conclusion that he was unable to work in a broad class of jobs.

Because it found that Mikruk did not make out a prima facie claim, the District Court did

not reach the Postmaster General’s alternative arguments for summary judgment.

                                             II.

       We exercise plenary review over the District Court’s grant of summary judgment



                                             -3-
and apply the same standard as the District Court, i.e., whether there are any genuine

issues of material fact such that a reasonable jury could return a verdict for the plaintiff.

Fed. R. Civ. P. 56(c); Debiec v. Cabot Corp., 352 F.3d 117, 128 n.3 (3d Cir. 2003)

(citation omitted). “One of the principal purposes of the summary judgment rule is to

isolate and dispose of factually unsupportable claims or defenses . . . .” Celotex Corp. v.

Catrett, 477 U.S. 317, 323-24 (1986). Applying that standard here, we conclude that the

District Court properly granted summary judgment in favor of the Postmaster General.

       To establish a prima facie case of disability discrimination under the Rehabilitation

Act, Mikruk must show that (1) he has a disability, (2) he is otherwise qualified to

perform the essential functions of the job, with or without a reasonable accommodation,

and (3) that he was terminated or prevented from performing the job. Mengine v. Runyon,

114 F.3d 415, 418 (3d Cir. 1997). An individual with a disability is a person who:

       (A) has a physical or mental impairment that substantially limits one or
       more major life activities of such person;
       (B) has a record of such impairment; or
       (C) is regarded as having such impairment.

29 U.S.C. § 705(20)(B). As noted above, the District Court found that Mikruk failed to

establish a prima facie claim of discrimination because he failed to demonstrate that he

was substantially impaired in the major life activity of work. On that basis it granted the

Postmaster General’s motion for summary judgment.

       On appeal, Mikruk does not dispute the District Court’s conclusion that he was not

substantially impaired in the major life activity of work. Instead, he argues that the

                                              -4-
District Court erred by not first considering whether he was substantially impaired in

other major life activities, specifically eating. A review of the record demonstrates that

Mikruk failed to raise that issue before the District Court. Instead, as the District Court

found, M ikruk asserted only that his impairment “limits a major life activity, work.”

       It is well established that the failure to properly raise an argument before the

district court constitutes a waiver of the right to raise that argument on appeal, absent

compelling or exceptional circumstances. See Gucci America, Inc. v. Daffy’s, Inc., 354

F.3d 228, 233 n.3 (3d Cir. 2003) (citation omitted). On appeal, Mikruk does not contend

that compelling circumstances are present. Instead, he asks the Court to read his

argument – that he is substantially limited in the major life activity of eating – as

“inextricably related to his work.”

       We decline to address this issue for the first time on appeal. Notably, Mikruk had

several opportunities to develop this argument before the District Court but failed to do

so. Because Mikruk did not establish that he was substantially impaired in a life activity,

the District Court correctly concluded that he failed to make out a viable discrimination

claim. Therefore, its grant of summary judgment in favor of the Postmaster General was

proper.

       As a final matter, we note that because Mikruk waived the issue, we need not

decide whether eating is a major life activity within the meaning of the Rehabilitation

Act. While language in our recent opinion in Fiscus v. Wal-Mart Stores, Inc., — F.3d —,



                                              -5-
2004 WL 2219323 (3d Cir. 2004), may be read as indicating, but not holding, that eating

does constitute a major life activity, that case is distinguishable.1 Moreover, the present

record does not support Mikruk’s argument raised for the first time on appeal.

                                               III.

       Accordingly, we will AFFIRM the judgment of the District Court.




       1
          Fiscus involved a plaintiff with end stage renal disease who was required to undergo
kidney dialysis several times a day. We held there that kidney failure was a covered disability
under the Americans with Disabilities Act because the inability to cleanse and eliminate body
waste substantially impairs a major life activity. Furthermore, whether eating is or is not a major
life activity within the meaning of the Rehabilitation Act cannot be decided here as that issue was
never raised in the District Court, as we noted supra in text.

                                                -6-
