                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 12a1278n.06

                                                Case Nos. 11-1746
                                                                                                          FILED
                               UNITED STATES COURT OF APPEALS                                        Dec 11, 2012
                                    FOR THE SIXTH CIRCUIT                                     DEBORAH S. HUNT, Clerk

 KENDRA S. VANDERLEE,                                            )
                                                                 )
             Plaintiff-Appellant,                                )       ON APPEAL FROM THE
                                                                 )       UNITED STATES DISTRICT
                    v.                                           )       COURT FOR THE WESTERN
                                                                 )       DISTRICT OF MICHIGAN
 PATRICK R. DONAHOE, POSTMASTER                                  )
 GENERAL of the UNITED STATES,                                   )
                                                                 )
       Respondent-Appellee.                                      )
 _______________________________________                         )

Before: BATCHELDER, Chief Circuit Judge; COLE, Circuit Judge; and ROSEN, District
Judge.*

         ALICE M. BATCHELDER, Chief Judge. Kendra Vanderlee appeals the district court’s

grant of summary judgment to the defendant United States Postal Service (USPS). For the reasons

stated by the district court, and reiterated herein, we AFFIRM.

                                                           I.

         Vanderlee began employment with the USPS in August 1992 as a Rural Carrier Associate

(RCA), a part-time position in which she substituted for full-time rural mail carriers. Rural mail

carriers are unionized under the National Rural Letter Carriers’ Association, which has a collective

bargaining agreement with the USPS. Under this agreement, a person must begin work as an RCA




         *
         The Honorable Gerald E. Rosen, Chief United States District Judge for the Eastern District of Michigan, sitting
by designation.
No. 11-1746, Vanderlee v. Donahoe



before she is permitted to bid on a full-time rural carrier position. Vanderlee worked as an RCA

until January 1997, when she bid for and received a position as a full-time rural carrier.

        In January 1998, Vanderlee was seriously injured in an automobile accident while delivering

the mail. She obtained worker’s compensation benefits and was placed in a limited duty position

that guaranteed no lifting, pulling, or carrying more than ten pounds, and only intermittent standing

or twisting. She attempted to return to her carrier position but re-aggravated the injury in January

1999. She returned to the limited duty assignment.

        On November 2, 1999, Vanderlee submitted a “work restriction evaluation” form, known as

an OWCP-5, wherein her treating physician asserted that she had reached maximum improvement

and was “permanently disabled from performing her normal route functions.” Because she was

permanently disabled from working as a rural carrier, the USPS offered her a Rehabilitation Job

Offer Assignment, or “Rehab Job,” as a General Clerk with restrictions on her standing, walking,

carrying/pulling/lifting weight, bending, reaching, or twisting, or sitting for prolonged periods.

        Vanderlee accepted the Rehab Job on September 13, 2000. The USPS documented this re-

assignment in a Standard Form 50 (“Notice of Personnel Action”) and adjusted her salary to ensure

that she did not suffer any decrease in compensation as a result of the re-assignment. Because

General Clerks are members of the Clerk Craft Union (which has a separate CBA with the USPS),

Vanderlee became a member of that union upon acceptance of the assignment and left the NRLCA.

But the Rehab Job was a position created especially for Vanderlee — to accommodate her disability

— it was not a permanent position available to other union members based on seniority.




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No. 11-1746, Vanderlee v. Donahoe



        On March 26, 2004, Vanderlee provided a letter from her treating physician stating that she

was no longer subject to physical restrictions and “may return to her [former] job as a rural carrier

at any time.” In response to this letter, the USPS ended Vanderlee’s Rehab Job assignment and

awarded her a full-time General Clerk position. But Vanderlee wanted to be a rural carrier again.

On April 12, 2004, she sent a letter to the USPS, insisting that she had “fully recovered from [her]

injuries and ha[d] been cleared to return to [work] . . . with no restrictions,” and asked to “be put on

a priority reemployment list in the rural craft for the next full time [rural mail carrier] position.”

Because Vanderlee was no longer an NLRCA member, the local union replied that “there is no

provision between the parties . . . for your return to the rural [mail carrier] craft in any way other than

taking the test to become an RCA and to be hired thr[ough] that process.”

        Meanwhile, the Clerk Craft’s union steward — apparently under the erroneous assumption

that Vanderlee was not a member of the Clerk Craft union — protested the award of a union position

to her. The USPS responded that Vanderlee had joined the Clerk Craft when she accepted the Rehab

Job; she became an unassigned regular member within the Clerk Craft when she recovered from her

injuries and the special Rehab Job ended; and she was awarded a job on which no one else had bid.

        According to Vanderlee, other Clerk Craft members — also apparently under the assumption

that she was not a member of the Clerk Craft union — harassed her because they thought she was

not entitled to the General Clerk job. On July 26, 2004, Vanderlee submitted a note from a

psychologist, Dr. Nelson Zwaanstra, stating that she was suffering severe stress caused by her work

environment and that she was no longer able to work. Two days later, Vanderlee presented another

letter, from one Dr. Bleicher, asserting that, in Vanderlee’s words, “due to stresses, which have been

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No. 11-1746, Vanderlee v. Donahoe



going on since August 2002, [she] was having chest pains and shortness of breath, difficulty

concentrating, and difficulty controlling her blood sugars.” On August 11, 2004, Dr. Zwaanstra

stated that Vanderlee was experiencing increased panic and anxiety, and was too anxious to function

on the job; he diagnosed her with adjustment disorder with mixed anxiety and depression.

        Vanderlee stopped going to work. On February 23, 2005, the USPS mailed her a letter

proposing to terminate her employment. On November 4, 2005, the USPS sent her another such

letter, to which she responded that she was suffering medical problems due to harassment and a

hostile work environment. On December 9, 2005, the USPS terminated her employment.

        In February 2005, Vanderlee had filed a complaint with the EEOC accusing the USPS of

failing or refusing to return her to a full-time rural carrier position. In November 2009, the EEOC

issued her a right-to-sue letter. In February 2010, Vanderlee sued the USPS, seeking reinstatement

to the position of rural carrier, back pay, and other damages in the amount of $300,000. The USPS

moved for summary judgment on the primary basis that — according to the letter she had submitted

from her own doctor — she was no longer disabled at the time of the alleged adverse employment

action (that action being the alleged refusal to return her to a rural carrier position). The district

court granted summary judgment (on this and other bases) and Vanderlee appeals.

                                                 II.

        We review de novo a district court’s grant of summary judgment. Holloway v. Brush, 220

F.3d 767, 772 (6th Cir. 2000). Under Federal Rule of Civil Procedure 56(a), summary judgment is

proper if the record “shows that there is no genuine dispute as to any material fact and the movant




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No. 11-1746, Vanderlee v. Donahoe



is entitled to judgment as a matter of law.” We review the facts and evidence in the light most

favorable to the nonmoving party. Warf v. Bd. of Elections, 619 F.3d 553, 558 (6th Cir. 2010).

        The Rehabilitation Act provides in pertinent part that “[n]o otherwise qualified individual

with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation

in, be denied the benefits of, or be subjected to discrimination under any program or activity . . .

conducted by any Executive Agency.” 29 U.S.C. § 794(a). To prevail on her Rehabilitation Act

claim for disability-based discrimination, Vanderlee must establish by a preponderance of the

evidence that: (1) she had a disability, (2) she was otherwise qualified to perform the requirements

of the position, with or without reasonable accommodations, and (3) she suffered an adverse

employment action solely by reason of her disability. See Lee v. City of Columbus, 636 F.3d 245,

249 (6th Cir. 2011). On the first element, she must show that she was disabled at the time of the

adverse employment action for which she seeks Rehabilitation Act recovery. See Kocsis v.

Multi-Care Mgmt., Inc., 97 F.3d 876, 884 (6th Cir. 1996).

        The adverse action for which Vanderlee’s complaint sought recovery was the USPS’s denial

of her April 2004 request to be returned to a full-time rural carrier position. To make out a prima

facie case, Vanderlee had to present evidence that, at the time of that adverse action, she (1) had a

physical or mental impairment which substantially limited her in at least one major life activity, such

as “caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning and working”; (2) had a record of such an impairment; or (3) was regarded by the USPS as

having such an impairment. See Timm v. Wright State Univ., 375 F.3d 418, 423 (6th Cir. 2004).




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No. 11-1746, Vanderlee v. Donahoe



        Vanderlee has failed to present evidence that at the time of the adverse decision (April 2004)

she had an impairment that substantially limited her in some major life activity. Rather, at that time,

the USPS had recently received a letter from Vanderlee’s own treating physician stating that she was

“under no work restrictions,” as well as a contemporaneous letter from Vanderlee herself stating that

she had fully recovered from her injuries. Furthermore, Vanderlee testified at deposition that she

has not had any physical limitations since her physician’s March 26, 2004 letter.

        Vanderlee later suggested that the 2005 termination was the adverse employment for which

she sought Rehab Act recovery but, as the district court explained, this was not consistent with her

complaint, which alleged disability discrimination only in the form of the USPS’s refusal to return

her to the rural carrier position. Moreover, Vanderlee’s EEOC complaint alleged only that the USPS

committed disability discrimination by refusing to return her to the rural carrier position. The EEOC

complaint did not allege disability discrimination by termination, so she has failed to exhaust

administrative remedies for any such claim. See Burden v. USPS, 345 F. App’x 972 (6th Cir. 2009).

        On appeal to this court, Vanderlee has changed course: she now appears to disclaim her car

accident injuries and instead claims that her disability is due to her diabetes or her adjustment

disorder/depression, or some combination of the two. But, again, she has not exhausted her

administrative remedies on this particular claim. Furthermore, she has pointed to no evidence in the

record that would support a finding that either of these conditions substantially limits her in some

major life activity. Nor can she overcome her own evidence to the contrary. Neither condition,

under these facts, would satisfy a Rehabilitation Act claim. See Timm, 375 F.3d at 423.




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No. 11-1746, Vanderlee v. Donahoe



        Vanderlee also contends, now on appeal, that the adverse employment action at issue was

that she was unable to work because of the harassment by the clerks. But, again, she has not

exhausted her administrative remedies on this claim. Furthermore, it is undisputed that any

harassment from the other clerks was due to union issues, not her disability. In order to satisfy a

Rehabilitation Act claim, Vanderlee must show that she suffered an adverse employment action

solely by reason of her disability. See Lee, 636 F.3d at 249. Because this alleged adverse

employment action is unrelated to her disability, it would not satisfy a Rehabilitation Act claim.

                                                III.

        For the foregoing reasons, we AFFIRM the judgment of the district court.




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