              Case: 13-10876    Date Filed: 09/04/2013    Page: 1 of 8


                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-10876
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 2:11-cv-01756-AKK



SHIRLEY HUNTER,

                                                          Plaintiff - Appellant,

                                       versus


UNITED STATES POSTAL SERVICE,

                                                          Defendant - Appellee.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                               (September 4, 2013)

Before MARCUS, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

      Shirley Hunter, proceeding pro se, appeals the district court’s grant of

summary judgment in favor of her former employer, the United States Postal
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Service (“USPS”), on her removal and discharge claims under the Rehabilitation

Act, 29 U.S.C. § 794.1 After careful review, we affirm.

                                             I.

       In July 2001, Hunter was badly injured in a car accident while delivering

mail on her USPS route in Leeds, Alabama. She suffered a fractured hip and

pelvis, lacerations, and head trauma, and was unable to return to work for some

time. As a result, she received worker’s compensation benefits under the Federal

Employees Compensation Act (“FECA”), 5 U.S.C. §§ 8101-8152, from the

Department of Labor’s Office of Workers’ Compensation Programs (“OWCP”).

FECA compensates partially disabled employees so long as the disability persists,

unless the employee refuses to work after the employer offers a suitable position.

See id. § 8106(a), (c). By December 2001, Hunter had recovered enough to return

to the USPS in a part-time clerk position, supervised by Laura Newby, the Leeds

Postmaster. Her workers’ compensation was reduced accordingly.

       In June 2002, Hunter’s physical therapist evaluated her and determined she

was “capable of sustaining light demand level work up to an eight hour day.” This

included lifting up to 20 pounds, frequent sitting, standing, kneeling, climbing

steps, and walking, as well as occasional stooping, repetitive squatting, and


1
  The district court also granted summary judgment in favor of the USPS on Hunter’s claim
under the Americans with Disabilities Act (“ADA”). Hunter has expressly abandoned that claim
on appeal.
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repetitive trunk rotation. Accordingly, the therapist recommended Hunter return to

work with accommodations for the restrictions he identified. In August, Hunter’s

physician agreed with these findings and concluded that Hunter could return to

work full-time so long as the USPS accounted for her limitations.

      In October 2002, Newby extended Hunter a “Limited Duty Job Offer” for a

clerk position working eight hours per day, which Hunter accepted. Meanwhile, a

USPS injury compensation manager worked with Newby to make accommodations

to bring Hunter’s original mail-carrier position within her restrictions. The two

decided such accommodations were practicable and, in June 2003, the USPS

extended Hunter a “Permanent Job Accommodation,” which would return her to

her mail-carrier position but would include accommodations. Hunter refused the

offer, and the OWCP ultimately deemed that offer – as well as a subsequent one

that Hunter also rejected – inadequate because it failed to describe in sufficient

detail the accommodations planned. At that point, the USPS placed Hunter on

administrative leave. Then, in February 2004, Linda Hollis, another USPS

employee who had served as a part-time clerk, was selected to serve as a

permanent clerk. In June 2005, the USPS again offered Hunter permanent

modified employment in her original mail-carrier position. This time, the OWCP

reviewed the offer and deemed it suitable under FECA. Hunter, however, refused




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the offer once again. Because Hunter refused the offer, OWCP held a hearing and

then terminated her FECA benefits. See 5 U.S.C. § 8106(c).

      In October 2005, the USPS sent Hunter a notice to report to work. When

Hunter did not report, the USPS sent her a notification of removal from

employment dated December 15, 2005. Hunter contacted the Equal Employment

Opportunity Commission (“EEOC”) on March 17, 2007. Her termination from the

USPS became final on April 12, 2007. Four days later, Hunter submitted a formal

EEO complaint, arguing she was discriminated against based on physical disability

when she was “issued a Notice of Removal for Failure to Maintain a Regular Work

Schedule.” The EEOC issued Hunter a right-to-sue letter on this claim.

      Hunter then filed her complaint in the district court, alleging the USPS

discriminated against her in violation of the Rehabilitation Act by (1) “remov[ing]

her from her accommodated position due to her disability” and “award[ing the

position] to a non-disabled comparator,” Linda Hollis; and (2) terminating her due

to her disability. The district court rendered summary judgment on these claims in

favor of the USPS. This is Hunter’s appeal.

                                        II.

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

Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010). Summary

judgment is proper “if the movant shows that there is no genuine dispute as to any


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material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “We draw all factual inferences in a light most favorable to the non-

moving party.” Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008).

      “The [Rehabilitation] Act prohibits federal agencies from discriminating in

employment against otherwise qualified individuals with a disability.” Id. at 1344

(internal quotation marks omitted). “The remedies, procedures, and rights of Title

VII are available to plaintiffs filing complaints under the Rehabilitation Act.” Id.

      “To establish a prima facie case of discrimination under the [Rehabilitation]

Act, an individual must show that (1) [s]he has a disability; (2) [s]he is otherwise

qualified for the position; and (3) [s]he was subjected to unlawful discrimination as

the result of [her] disability.” Sutton v. Lader, 185 F.3d 1203, 1207 (11th Cir.

1999). Under the Rehabilitation Act, as under Title VII, “federal employees are

required to initiate administrative review of any alleged discriminatory or

retaliatory conduct with the appropriate agency within 45 days of the alleged

discriminatory act,” or, “[w]hen the discriminatory act results in a personnel

action, . . . ‘within 45 days of the effective date of the action.’” Shiver, 549 F.3d at

1344 (quoting 29 C.F.R. § 1614.105(a)(1)). When a plaintiff fails to initiate EEO

contact within this period, her claim is generally barred for failure to exhaust

remedies. Id. And although we apply equitable tolling rules to the deadlines, we

toll them only sparingly, such as when a plaintiff has actively pursued remedies but


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filed a defective timely pleading or when she was induced or tricked by her

employer’s misconduct into allowing the deadline to pass. Irwin v. Dep’t of

Veterans Affairs, 498 U.S. 89, 96 (1990).

                                         III.

      Here, the Rehabilitation Act’s administrative exhaustion requirement bars

Hunter’s claim that she was removed from her clerk position and replaced by

Linda Hollis, a non-disabled employee. Hollis took over as a full-time clerk in

February 2004, more than three years before Hunter initiated EEOC contact. And

equitable tolling of the Act’s 45-day time period for contact is not warranted in this

case. There is no evidence in the record that the USPS induced or tricked Hunter

into allowing the deadline to pass or that she otherwise tried to initiate contact. See

Irwin, 498 U.S. at 96. Instead, Hunter relies on the fact that the USPS “sent her

home” when she rejected its June 2003 offer and contends she should not be held

responsible for learning what transpired at the post office while she was away.

Without more, this is insufficient to permit us to toll the 45-day period. See id.

Accordingly, Hunter’s claim that she was removed from her clerk position and

replaced by a non-disabled comparator in violation of the Rehabilitation Act is

barred from review.

      Hunter’s other claim — that the USPS terminated her because of her

disability in violation of the Rehabilitation Act — is the only one she exhausted.


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In rendering summary judgment in favor of the USPS, the district court concluded

that Hunter failed to establish a prima facie case of discrimination under the Act

because she could not show she was disabled. We agree.

       A person is disabled within the meaning of the Rehabilitation Act if “a

physical or mental impairment . . . substantially limits one or more of the major life

activities” of that person. Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000). 2

Hunter bears the burden of “offering evidence that the extent of the limitation”

caused by the impairment is substantial. Greenberg v. BellSouth Telecomms., Inc.,

498 F.3d 1258, 1264 (11th Cir. 2007) (internal quotation marks omitted). She

contends, with no evidentiary support, that she has substantial impairments in

sleeping, manual tasks, and her general quality of life, including her ability to

garden and care for her grandchildren. These amorphous, unsupported assertions,

however, are exactly the kind we have dismissed as insufficient in similar cases.

See id. (affirming summary judgment when plaintiff put forth no evidence to

support his assertions of disability); see also Rossbach v. City of Miami, 371 F.3d

1354, 1358 (11th Cir. 2004) (holding plaintiffs who claimed their ability to walk,

sit, stand, and sleep was “moderately below average” were not disabled). For this



2
  The standard for determining whether a person is disabled under the Rehabilitation Act is the
same as under the ADA. 29 U.S.C. § 791(g). Congress amended that standard in 2008, but all
of the relevant conduct in this case occurred prior to the amendments. We accordingly use the
standards in place before those amendments’ passage.
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reason, the district court correctly rendered summary judgment in favor of the

USPS on Hunter’s claim that she was unlawfully terminated for her disability.

      AFFIRMED.




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