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w . v i l l a no v a . e du/thir dc ir c uit_2014/215NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 3

- 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

- 0 8

- cv - 0 2 1 23 ) 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

( F iled : February 21, 2014 )

O P I N I O N

ROTH , Circuit Judge :2

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 Re habilitation Act (RA) , 29 U.S.C. § 7 01 et seq
. Savidge also appeals the jury ’ s verdict in favor of USPS on his regarded

- as - disabled claim

. See 42 U.S.C. § 12 102(1)

. For the reasons that follow, we will affirm. I. Background 2 Savidge serv ed 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 pa lsy. To alleviate his symptoms, Savidge took pain medication daily and

wore a brace that went down the back of his leg and underneath h is foot

. The brace caused Savidge to walk with a noticeable limp

. T he Department of Veterans Affairs (VA) deemed Savid ge 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 d epartment 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.3

In 2007, Savidge applied to replace retiring custodia n Gene Pollack , a disabled veteran whose knee injury made walking difficult and required him to take absences

u nder the Family and M edical Leave Act ( FMLA )

. F ranco 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 employee s . On Januar y 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 t he APWU members ’ “ Attendance (FMLA not included) , ” and i nformed Savidge that his reassignment reque st 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

aw are that Savidge walk ed 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. The4

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: T o show that USPS intentionally discr iminated 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, t o prove that USPS regarded him as disabled , S avidge 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, eve n 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 bu t 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 . Questi on one o n 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 cla ss of jobs or broad range of jobs in 2007? ”5

Question seven used the same language but r eplaced 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, o ver 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 a nother question: “ Is Ed Jones missing signature, relevant to that documents [sic] legality , w as the letter of intent legal without signature? ” After again conferring w ith 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. Savid ge 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. McLa ughlin , 386 F.3d 547, 552 (3d Cir. 2004). We review a d istrict c ourt ’ s verdict form and trial management for abuse of discretion

. S ee , e.g. , Armstrong v. Burdette Tomlin Mem ’ l Hosp. , 438 F.3d 240, 245

- 466

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

error s 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. Discussion 3 Savidge contends the Dis trict Court erred by 1) grant ing summary judgment for USPS on his record

- of

- disability claim , 2) admitt ing the 2006

- 10 collective bargaining agreement (CBA) into evidence when the parties had been relying on the 200 0

- 03 version, 3 ) instruct ing the jury on his regarded

- as - disabled claim and defin ing it o n the verdict form, and 4 ) direct ing the clerk to enter the jury room

. None of these arguments has merit. First, t he court properly granted s ummary judgment on the record

- of

- disability claim. Savidge ’ s FML A 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 a nother USPS decision

- maker saw those records, they are insufficient to show actual disability unde r the RA

. S ee Kelly v. Drexel Univ. , 94 F.3d 102, 106

- 08 (3d Cir. 1996) . Therefore, they are also i nsufficient to support a record

- of

- disability claim. Tice v. Ctr. Area Transp. Auth. , 247 F.3d 506, 513 (3d Cir. 2001). Second, t he court did not abuse i ts dis cretion by a dmitting 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 jurisdict ion under 28 U.S.C. § 1331. We have appellate jurisdiction under 28 U.S.C. § 1291.7

Third, the court ’ s jury instructions did not misstate the law. S avidge offered evidence tha t Franco knew Savidge might retire on disability, told HR that an APWU member sought “ permanent light duty for an injury off the job, ” and t hought Savidge could not climb ladders

. Th e co urt instructed the jury that it could find USPS regarded Savidge as d isabled in his ability to work. However, t he court did not instruct the jury that it could find USPS regar ded Savidge as disabled in a major life activity due to his difficulty walking because this evidence, plus Franco ’ s knowledge of his limp and abnorma l gait, did not support such a claim. See Kelly , 94 F.3d at 109

. Therefore, th e 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 instruct ed the jury that Savidge must prove discrimination

was a determin ative factor in USPS ’ s action

. A “ motivating factor ” charge is appropriate when a plaintiff has direct evidence of discrimination

. S ee Third Circuit M odel Civil Jury Instructions , § 9 .1. 1, Commentary (2013) . But Savidge ha d 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 th e 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.8

F.2d at 371 (citing Arrington v. Robertson , 114 F. 2d 821, 822

- 23 (3d Cir. 1940)). In addition, S avidge presents no c redible basis for finding he was harmed

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