                                                            NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 13-1572
                                     ___________

                                 GARY E. SAVIDGE,
                                              Appellant

                                           v.

             POSTMASTER GENERAL OF THE UNITED STATES;
                  UNITED STATES POSTAL SERVICE



                  On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                             (D. C. No. 3-08-cv-02123)
                   District Judge: Honorable Robert D. Mariani


                       Submitted under Third Circuit LAR 34.1(a)
                                 on November 8, 2013



      Before: GREENAWAY, JR., GARTH and ROTH, Circuit Judges

                               (Filed: February 21, 2014)



                                     OPINION


ROTH, Circuit Judge:
       Gary Savidge appeals the District Court’s grant of summary judgment to Patrick

R. Donohoe, Postmaster General of the U.S. Postal Service (USPS),1 on Savidge’s

record-of-disability claim under the Rehabilitation Act (RA), 29 U.S.C. § 701 et seq.

Savidge also appeals the jury’s verdict in favor of USPS on his regarded-as-disabled

claim. See 42 U.S.C. § 12102(1). For the reasons that follow, we will affirm.

I.     Background2

       Savidge served in the U.S. Marine Corps during the Gulf War. He suffered from

several disabilities as a result of his military service. They included fibromyalgia and

peroneal nerve palsy. To alleviate his symptoms, Savidge took pain medication daily and

wore a brace that went down the back of his leg and underneath his foot. The brace

caused Savidge to walk with a noticeable limp. The Department of Veterans Affairs

(VA) deemed Savidge 40 percent disabled, but noted his conditions did not present

“marked interference with employment.”

       Following his military service, Savidge worked as a mail sorter for USPS. In the

fall of 2006, Savidge decided to seek a transfer to the maintenance department to work as

a building custodian. Savidge expressed interest to maintenance manager Rick Franco

and informed him that he wore the brace, that a transfer would accommodate his physical

issues, and that he would have to retire on disability without a transfer. Franco told

Savidge to take a custodial exam, which Savidge took and passed.


1
  Although USPS was properly dismissed as a defendant, see 42 U.S.C. § 2000e-16(c),
we refer to claims against Donohoe in his official capacity as being against USPS.
2
  We write primarily for the parties, who are familiar with this case. Therefore, we set
forth only those facts, construed in Savidge’s favor, necessary to our analysis.
                                             2
       In 2007, Savidge applied to replace retiring custodian Gene Pollack, a disabled

veteran whose knee injury made walking difficult and required him to take absences

under the Family and Medical Leave Act (FMLA). Franco testified that he was to select

the applicant who had filed the earliest request for the position. That employee was Ed

Jones. Jones had an acceptable work, attendance and safety record and he passed the

physical exam. Jones was selected.

       Early in 2008, a second custodial position became open. At that time, USPS’s

hiring policy prioritized current maintenance staff and American Postal Workers Union

(APWU) members over other employees. On January 24, 2008, Franco wrote USPS

Human Resources (HR) seeking approval to interview a non-APWU employee instead of

four APWU members, including Savidge, because the APWU members’ “attendance

leaves much to be desired.” Franco also noted one unnamed applicant “is seeking

permanent light duty for an injury off the job.” HR approved Franco’s request, due to the

APWU members’ “Attendance (FMLA not included),” and informed Savidge that his

reassignment request had been rejected due to his poor attendance record.

       Franco later told APWU officials that Savidge had informed him of his medical

issues, that he did not know if Savidge could climb a ladder, as the job required, and that

he “did not need another Gene Pollak in maintenance.” Franco also admitted he was

aware that Savidge walked with a limp and an abnormal gait.

       On November 24, 2008, Savidge sued USPS alleging discrimination based on

theories of actual disability, record of disability, and regarded as disabled. On March 30,

2012, the District Court denied USPS’s motion for summary judgment on all claims. The

                                             3
court then granted USPS’s motion for reconsideration in part, finding it was entitled to

summary judgment on the actual-disability and record-of-disability claims, but that a jury

would decide Savidge’s regarded-as-disabled claim.

       The trial began on January 28, 2013. After two days of testimony and a charge

conference with counsel, the court instructed the jury on Savidge’s regarded-as-disabled

claim as follows: To show that USPS intentionally discriminated against him, Savidge

must prove “that regarding him as disabled was a determinative factor in [USPS’s]

decision not to transfer [him] to a custodial position in 2007 and 2008.” The court also

told the jury that, to prove that USPS regarded him as disabled, Savidge must prove that

USPS treated him as having an impairment that “substantially limited his ability to

work,” whether or not he had such an impairment, or that “he was discriminated against,

because of an actual or perceived impairment, even if the impairment did not or was not

perceived to limit a major life activity.” The court defined disability under the RA as “a

physical impairment that substantially limits a major life activity,” which activities

“include but are not limited to caring for one’s self, performing manual tasks, seeing,

hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing,

learning, reading, concentrating, thinking, communicating, and working.”

       The court gave the jury a verdict form. Question one on that form asked, “With

regard to the 2007 custodial position, has Mr. Savidge established by a preponderance of

the evidence that [USPS] regarded him as disabled by having a physical impairment that

substantially limited his ability to work a class of jobs or broad range of jobs in 2007?”



                                              4
Question seven used the same language but replaced 2007 with 2008. At 3:46 p.m., the

court dismissed the jury to deliberate.

       At 4:40 p.m., the jury submitted a note to the court that stated in full, “letter of

intent Ed Jones signature relative.” After discussing this incomprehensible note on the

record with counsel, the court, over Savidge’s objection, directed his deputy clerk to enter

the jury room to “ask whether they mean relative or relevant.” The clerk did so, and

testified four minutes later that he “[w]ent in [the jury room] and asked [the jury] to

explain their first question. I asked them exactly what the Judge asked me to, and I asked

them to write out their answer.”

       The jury’s written answer was another question: “Is Ed Jones missing signature,

relevant to that documents [sic] legality, was the letter of intent legal without signature?”

After again conferring with counsel, the court directed the clerk to deliver its written

response to the jury at 5:26 p.m. Forty-one minutes later, the jury reached a verdict in

favor of USPS. Savidge appealed.

II.    Standard of Review

       We review a grant of summary judgment de novo. See Liberty Lincoln-Mercury,

Inc. v. Ford Motor Co., 676 F.3d 318, 323 (3d Cir. 2012). Summary judgment is only

appropriate when there is no genuine issue of material fact and the movant is entitled to

judgment as a matter of law. Id. We also review de novo “whether [the jury] instructions

misstated the law.” United States v. McLaughlin, 386 F.3d 547, 552 (3d Cir. 2004).

       We review a district court’s verdict form and trial management for abuse of

discretion. See, e.g., Armstrong v. Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 245-46

                                               5
(3d Cir. 2006). In reviewing the court’s ex parte contact with the jury, we “disregard all

errors and defects in the proceeding that do not affect any party’s substantial rights.”

Fed. R. Civ. P. 61; see also Skill v. Martinez, 677 F.2d 368, 371 (3d Cir. 1982).

III.   Discussion3

       Savidge contends the District Court erred by 1) granting summary judgment for

USPS on his record-of-disability claim, 2) admitting the 2006-10 collective bargaining

agreement (CBA) into evidence when the parties had been relying on the 2000-03

version, 3) instructing the jury on his regarded-as-disabled claim and defining it on the

verdict form, and 4) directing the clerk to enter the jury room. None of these arguments

has merit.

       First, the court properly granted summary judgment on the record-of-disability

claim. Savidge’s FMLA and VA records indicate he could ambulate and climb stairs,

albeit with a limp and at a slow pace, and could work in a light-duty job. Assuming

Franco or another USPS decision-maker saw those records, they are insufficient to show

actual disability under the RA. See Kelly v. Drexel Univ., 94 F.3d 102, 106-08 (3d Cir.

1996). Therefore, they are also insufficient to support a record-of-disability claim. Tice

v. Ctr. Area Transp. Auth., 247 F.3d 506, 513 (3d Cir. 2001).

       Second, the court did not abuse its discretion by admitting into evidence the later

versions of the CBA because the relevant portion of both CBAs on transfers and

reassignment were identical.


3
  The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate
jurisdiction under 28 U.S.C. § 1291.
                                              6
        Third, the court’s jury instructions did not misstate the law. Savidge offered

evidence that Franco knew Savidge might retire on disability, told HR that an APWU

member sought “permanent light duty for an injury off the job,” and thought Savidge

could not climb ladders. The court instructed the jury that it could find USPS regarded

Savidge as disabled in his ability to work. However, the court did not instruct the jury

that it could find USPS regarded Savidge as disabled in a major life activity due to his

difficulty walking because this evidence, plus Franco’s knowledge of his limp and

abnormal gait, did not support such a claim. See Kelly, 94 F.3d at 109. Therefore, the

court properly limited its instructions on the regarded-as-disabled claim, and the

corresponding verdict form, to Savidge’s ability to work.

        The court also properly instructed the jury that Savidge must prove discrimination

was a determinative factor in USPS’s action. A “motivating factor” charge is appropriate

when a plaintiff has direct evidence of discrimination. See Third Circuit Model Civil

Jury Instructions, § 9.1.1, Commentary (2013). But Savidge had no such evidence.

Therefore, the court committed no error in instructing the jury.4

        Finally, the District Court did not commit reversible error in directing the deputy

clerk to enter the jury room to clarify the jury’s note. Although ex parte jury contact is

generally disfavored, no prejudice occurred where, as here, the note’s content was

included in the record, Savidge was on notice of and had an opportunity to object to the

clerk’s conduct, the clerk testified on the record about what he asked the jury, and the

jury responded via written note subsequently included in the record. See, e.g., Skill, 677

4
    We need not decide whether Savidge waived his right to appeal this issue.
                                              7
F.2d at 371 (citing Arrington v. Robertson, 114 F.2d 821, 822-23 (3d Cir. 1940)). In

addition, Savidge presents no credible basis for finding he was harmed.

IV.   Conclusion

      For the foregoing reasons, we will affirm the judgment of the District Court.




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