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ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

KELLY A. VALADEZ, 

Plaintiff,

v.

JOHN E. POTTER,

Defendant.

Case No. C06-0329RSL

ORDER GRANTING MOTION 

FOR SUMMARY JUDGMENT

I. INTRODUCTION

This matter comes before the Court on a motion for summary judgment (Dkt. #11) filed

by defendant John E. Potter, Postmaster General of the United States Postal Service. Plaintiff

worked as a probationary status employee of the Postal Service from April 2002 until her

termination on June 22, 2002. Plaintiff alleges that she was discriminated against on the basis of

her disability, which she alleges is a breathing impairment, in violation of the Rehabilitation Act

of 1973, as amended, 29 U.S.C. § 791 and the Americans with Disabilities Act of 1990, 42

U.S.C. § 12101 et seq. Plaintiff alleges that she was told to continue working when she was ill,

she was not provided with a reasonable accommodation, and she was discharged. She also

argues that she was retaliated against for filing a prior complaint.

For the reasons set forth below, the Court grants defendant’s motion.
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1

 Valadez’s declaration states that she ceased working on April 25, 2002, but all of the

other documents in the record note that the date was May 25, 2002. The exact date does not

change the outcome of this motion.

ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT - 2

II. DISCUSSION 

A. Background Facts.

Plaintiff was hired by the Postal Service in 1996 as a mail carrier for the Marysville,

Washington Post Office. In 1998, she filed a complaint with the Equal Employment

Opportunity Commission (“EEOC”) claiming that she was subjected to a hostile work

environment. Valadez Dep. at pp. 5-6. She resigned in 2000. In January 2002, she entered into

a settlement agreement with the Postal Service and was reinstated. She resumed working as a

mail carrier around April 20, 2002 in the Everett, Washington Post Office. As a reinstated

employee, she was required to undergo a 90-day probationary period. 

On May 25, 2002,1

 plaintiff informed her supervisor Jeff Welsh that she needed to go

home because she was sick. Welsh told her that he was understaffed and “needed her to do as

best she could and [he] would send help if he could.” Declaration of Marion Mittet, (Dkt. #12)

(“Mittet Decl.”), Ex. H at p. 5. Plaintiff never returned to work. Instead, over the next few

weeks, she provided the agency with five notes from health care providers. The first note, dated

May 25, 2002, indicated that Valadez had bronchitis and could return to work on May 29. A

second note dated May 28 stated “off work x 1 week” and indicated plaintiff could return to

work on June 3. A May 31 note stated that plaintiff had “a severe asthma exacerbation” and

would be re-evaluated on June 3. The June 3 note indicated that she had been hospitalized for

an asthma exacerbation and would return to work on June 17. The last note, dated June 17,

stated that she had an asthma exacerbation and would be evaluated on June 24, 2002. Id., Exs.

K, Q. During her deposition, plaintiff alleged that her disability was hypersensitivity
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2

 According to plaintiff, hypersensitivity pneumonitis is “something in your environment

is making you ill similar to an internal allergic reaction.” Valadez Dep. at p. 17.

3

 Plaintiff has not contested the admissibility of the EEOC’s findings. Although the Court

has considered the findings, it would have reached the same conclusion even if it had not

considered the EEOC’s findings and other documents.

ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT - 3

pneumonitis,2 although the diagnosis has not been confirmed. Valadez Dep. at p. 15.

Plaintiff was discharged on June 22, 2002. The decision to terminate her employment

was made by her immediate supervisors: Todd Merriman, Jeff Welsh, and Singh Somal. Welsh

Dep. at p. 97. They made the decision based on her unsatisfactory attendance, unsatisfactory

personal conduct, including yelling at her supervisors on two occasions, and “unsatisfactory

work relations,” which related to safety. Mittet Decl., Exs. E, I. As for her attendance, plaintiff

was discharged because, as the end of her 90-day probationary period approached, she had not

worked a sufficient number of days for the Postal Service to effectively evaluate her work. 

Merriman Dep. at pp. 123-24 (“We don’t want to have an employee with us for a career, a 30-

year career, that we never had a chance to evaluate, and the amount of time that we had to

evaluate Ms. Valadez was limited to, I believe, 13 days, and those 13 days weren’t very good”);

Welsh Dep. at p. 77. 

Plaintiff filed a complaint with the EEOC challenging her termination. The EEOC

investigated plaintiff’s complaint, conducted a hearing, and issued findings of fact and

conclusions of law.3

 Mittet Decl., Ex. P. The EEOC found that plaintiff was not “disabled” for

purposes of the statute, she was not entitled to an accommodation, and the Postal Service had a

legitimate, non-discriminatory reason for her discharge. It also found that the Postal Service did

not retaliate against plaintiff for her prior EEO activity. Those findings were affirmed after

Valadez appealed. Id., Ex. Q. Plaintiff filed her complaint with this Court in March 2006.

B. Summary Judgment Standard.

On a motion for summary judgment, the Court must “view the evidence in the light most
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ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT - 4

favorable to the nonmoving party and determine whether there are any genuine issues of material

fact.” Holley v. Crank, 386 F.3d 1248, 1255 (9th Cir. 2004). All reasonable inferences

supported by the evidence are to be drawn in favor of the nonmoving party. See Villiarimo v.

Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). “[I]f a rational trier of fact might

resolve the issues in favor of the nonmoving party, summary judgment must be denied.” T.W.

Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987).

C. Analysis.

The Rehabilitation Act prohibits discrimination in federal employment and requires

agencies to make reasonable accommodation for the known limitations of qualified individuals

with disabilities. 29 U.S.C. § 791 et seq. The EEOC’s regulations prohibit retaliation against an

individual who has participated in the employment discrimination process under the

Rehabilitation Act. 29 C.F.R. § 1614.101(b).

Defendant alleges that plaintiff’s claim for disability discrimination must be dismissed

because she has failed to exhaust her administrative remedies. Federal employees must exhaust

their administrative remedies prior to filing suit in federal court. See, e.g., Leorna v. U. S.

Dep’t. of State, 105 F.3d 548, 550 (9th Cir. 1997); Boyd v. U.S. Postal Serv., 752 F.2d 410, 415

(9th Cir. 1985). Specifically, a federal employee must (1) initiate contact with an EEO

counselor within forty-five days of the allegedly discriminatory conduct, and (2) file a formal

complaint within fifteen days of being advised that informal counseling has ended. 29 C.F.R. §§

1614.105(a)(1), 1614.105(d); 1614.106(b). The time period for filing a complaint “beings to run

when the facts that would support a charge of discrimination would have been apparent to a

similarly situated person with a reasonably prudent regard for his rights.” Boyd, 752 F.2d at

414. In this case, Valadez had notice of the facts giving rise to her disability discrimination

claim, whether characterized as disparate treatment or a failure to accommodate, no later than

the date of her termination. Even though she was represented by counsel when she filed her

EEOC complaint, she did not complain of disability discrimination. In fact, she did not raise an
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4

 Plaintiff has not shown the existence of any of the factors listed in the regulation that

would justify an extension of the deadline.

ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT - 5

allegation of disability discrimination until over five months later.

Plaintiff concedes that her claim of disability discrimination was late. Nevertheless, she

argues that it should not be dismissed because the agency accepted her complaint of disability

discrimination for investigation, and the regulation provides:

The agency or the Commission shall extend the 45-day time limit in paragraph (a)(1) of

this section when the individual shows that he or she was not notified of the time limits

and was not otherwise aware of them, that he or she did not know and reasonably should

not have been known that the discriminatory matter or personnel action occurred, that

despite due diligence he or she was prevented by circumstances beyond his or her control

from contacting the counselor within the time limits, or for other reasons considered

sufficient by the agency or the Commission.4

29 C.F.R. § 1614.105(a)(2). However, in a factually similar case, the Ninth Circuit held that

“[t]he mere receipt and investigation of a complaint does not waive objection to a complainant’s

failure to comply with the original filing time limit when the later investigation does not result in

an administrative finding of discrimination.” Boyd, 752 F.2d at 414 (internal citations omitted). 

In this case, the agency did not make a finding of discrimination. It did not make a finding that

the filing was timely or extend the deadline. Plaintiff does not argue that the time limit should

be extended based on waiver, estoppel, or equitable tolling. Nor are there facts which would

support applying any of those doctrines. Accordingly, plaintiff’s claim of disability

discrimination must be dismissed for failure to exhaust her administrative remedies.

Even if plaintiff’s disability discrimination claim had been timely, it would be dismissed

because plaintiff has failed to show that she is disabled. Plaintiff apparently believes that the

agency could not discharge her because she was ill. However, being ill does not equate to

having a disability. To state a claim under either the ADA or the Rehabilitation Act, plaintiff

must show that she has an impairment that substantially limits one or more major life activities. 

See, e.g., Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879, 885 (9th Cir. 2004). 

Plaintiff argues that she is substantially limited in her ability to breathe. Breathing is a major
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5

 Plaintiff cites two cases in which individuals with asthma filed disability discrimination

claims. Carter v. Tisch, 822 F.2d 465 (4th Cir. 1987) (granting defendant’s motion for summary

judgment on other grounds); Albert v. Smith’s Food & Drug Centers, Inc., 356 F.3d 1242, 1245

(10th Cir. 2004) (explaining that plaintiff’s asthma “limited her activities” and an episode

“renders her completely unable to function”). Those cases do not stand for the proposition that

asthma is per se disabling. Rather, the inquiry is made on an individual basis. Albert, 356 F.3d

at 1250 (stating that “we must examine the extent of the limitation caused by her impairment in

terms of her own experience”). 

ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT - 6

life activity.5 29 C.F.R. § 1630.2(I). The term substantially limited means: 

(I) Unable to perform a major life activity that the average person in the general

population can perform; or (ii) Significantly restricted as to the condition, manner, or

duration under which an individual can perform a particular major life activity as

compared to the condition, manner, or duration under which the average person in the

general population can perform that same major life activity.

29 C.F.R. § 1630.2(j). In determining whether an individual is substantially limited, courts

should consider: “(I) The nature and severity of the impairment; (ii) the duration or expected

duration of the impairment; and (iii) the permanent or long term impact of or resulting from the

impairment.” Id.

In this case, plaintiff has not explained how her impairment substantially limits her ability

to breathe. Nor is there is no medical evidence that plaintiff is so limited. None of the doctors’

notes that plaintiff submitted to the Postal Service or to this Court indicate that she has a

disability, a severe impairment, or significant limitations. Although Ms. Valadez was

hospitalized briefly around the time of her discharge, that fact shows that her condition was

serious for at most a few weeks. In addition, the notes from her physicians all indicated that she

would be able to resume work shortly. Valadez Dep. at pp. 38, 42; Mittet Decl., Ex. K. 

According to the EEOC’s findings, “At the time of management’s decision to terminate Ms.

Valadez, the medical documentation did not indicate that Complainant’s absence was due to a

disability, rather than to a short-term, albeit serious, health condition.” Mittet Decl., Ex. P. In

fact, after she left the Postal Service, plaintiff’s condition “continues to improve” and has not

precluded her from working full time. Declaration of Kelly Valadez, (Dkt. #17) (“Valadez
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6

 These facts also defeat plaintiff’s retaliation claim.

7

 Plaintiff alleges that knowledge of her prior complaint should be imputed to her

supervisors because they reported to Kathy Newman, who reported to Pat Ogle, and Mr. Ogle

had knowledge of her prior complaint. There is no evidence that Mr. Ogle informed Ms.

Newman or plaintiff’s supervisors of the prior complaint, and no evidence that he was involved

in any way in the decision to discharge plaintiff.

ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT - 7

Decl.”), Ex. B; Valadez Dep. at p. 18. She has never had another episode of her condition as

severe as the one she experienced in May/June 2002. Valadez Dep. at p. 20. Because plaintiff

was not disabled, she was not entitled to any accommodation, and she cannot state a claim for

disparate treatment. 

In addition, even if plaintiff were disabled, defendant has offered legitimate, nondiscriminatory reasons for her discharge. Plaintiff has offered no evidence of pretext.6

 Nor has

she shown that other employees who engaged in similar conduct were treated differently. 

Plaintiff also alleges that she was discharged in retaliation for filing her 1998 EEO

complaint. Defendant concedes that plaintiff has exhausted her administrative remedies as to

that claim. However, in response to defendant’s motion, plaintiff did not offer any arguments or

facts to support the claim. In addition, plaintiff has failed to show any evidence of a casual

connection between her prior complaint and her discharge. No inference of retaliation arises

based on the nearly four-year gap between plaintiff’s first EEO complaint and her discharge. 

See, e.g., Manatt v. Bank of Am., 339 F.3d 792, 802 (9th Cir. 2003) (declining to infer causation

based on a nine-month gap between the protected activity and the adverse action). Moreover, in

2002, plaintiff returned to work at a different facility, with different supervisors. Plaintiff had

never worked with her new supervisors before her reinstatement, she never told them about the

complaint, and she has no knowledge that they were aware of the complaint. Valadez Dep. at

pp. 30-31. In fact, the supervisors who made the decision to terminate her employment deny

that it was based on any protected characteristic or on her prior EEO activity.7

 Mittet Decl., Ex.

E, Ex. J at p. 8, Ex. P at p. 14. During plaintiff’s deposition, when asked why she was
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8

 Plaintiff has not filed claims for discrimination based on her age or sex before this

Court. 

ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT - 8

discharged, she gave multiple reasons: “I think it was more of a combination of being female,

over 40, and prior EEO was my thought.”8

 Valadez Dep. at p. 27. In sum, plaintiff has offered

nothing more than her own assumption of retaliation to support her claim. Such unsupported

speculation, however, is insufficient to defeat a motion for summary judgment. See, e.g., Steckl

v. Motorola, 703 F.2d 392, 393 (9th Cir. 1983) (explaining that the plaintiff’s “mere assertions

that [his employer] had discriminatory motivation and intent in failing to promote him were

inadequate, without substantial factual evidence, to raise an issue precluding summary

judgment”). 

III. CONCLUSION

For all of the foregoing reasons, the Court GRANTS defendant’s motion for summary

judgment (Dkt. #11). The Clerk of the Court shall enter judgment in favor of defendant and

against plaintiff.

DATED this 13th day of February, 2008.

A

Robert S. Lasnik

United States District Judge