* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 30 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

PHILLIP E. HUCKANS,

Plaintiff-Appellant,

v. UNITED STATES POSTAL SERVICE, Marvin T. Runyon, Postmaster General,

Defendant-Appellee. No. 99-5020 (D.C. No. CV-97-894-K) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , PORFILIO , and BRORBY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Plaintiff Phillip E. Huckans appeals from the distr ict court’s grant of summary judgment in favor of defendant United State s Postal Service on Huckans’ claim that the Postal Service discriminate d against him in its employment practices in violation of the Vocational Rehabilitation Act of 1973, 29 U.S.C. §§ 791 and 794. We review the district c ourt’s grant of summary judgment de novo, applying the same legal standards used by the district court pursuant to Fed. R. Civ. P. 56(c). See Woodman v. Runyon , 132 F.3d 1330, 1337 (10th Cir. 1997). For the reasons stated below, we affirm the district court’s decision. Huckans began working for the Postal Service in 198 8, and was a thirty percent disabled veteran, ten percent of which related to a cervical spine problem. In December 1995, Huckans was employed as a full-ti me letter carrier at the Postal Service’s West Tulsa facility when he fell at work and aggravated his back, right hip and right leg. He was treated by medical personnel and returned to work the next day. On March 9, 1996, he experienced an unbearable back pain at work related to his December injury. His medical provid ers released him from work until April 30. In early April, Huckans requested advance sick leave, submitting medical documentation indicating he would probably be able to return to work. The Postal Service denied this request, ostensibly on the basis that it did not include an expected date for return to duty.-3-

On April 30, Huckans’ medical providers released hi m to return to work with the following restrictions: no prolonged walk ing, standing, sitting, stooping, squatting or running; no lifting over twenty pounds ; and no driving. On that day, he requested that the Postal Service allow him to w ork on temporary, light duty assignments. He was allowed to return to light work on May 16, working two and one-half hours a day. Huckans requested that he be allowed to receive donated leave under the Postal Service’s leave sharing prog ram on May 8. Although his request was denied by mistake, Huckans contends that the effect was to deprive him of his rights. On June 5, 1996, Huckans’ doctor released him to re turn to work full-time with the only restriction being that he not lift mo re than thirty-five pounds. He returned to his full-time letter carrier position t he next day. He contends that this lifting restriction prevents him from performing al l of his carrier duties, but the record does not indicate what duties he cannot perf orm. In September 1997, he filed this action alleging th at the Postal Service violated the Rehabilitation Act by failing to make reasonable accommodation for his disability. In his complaint, and in his subse quently filed papers, Huckans does not contend that the Postal Service discriminated against him in any way following his return to full-time work on June 6, 1 996. Instead, as the district court summarized his claim, he contends that it-4-

violated the Act by discriminating against him base d on physical disability; denying [his] request for advanced sickleave on or about April 29, 1996; denying [his] request for donated annual leave on or about May 16, 1996; and denying [him] light duty fr om April 30, 1996 until May 16, 1996 and denying [him] appropriate light duty from May 16, 1996 until June 6, 1996. Appellant’s App. at 280 (district court’s December 23, 1998 order granting summary judgment at 1). In granting summary judgme nt to the Postal Service, the district court concluded that Huckans’ restriction on lifting more than thirty-five pounds was not a substantial enough limitation to q ualify him as disabled under the Act. On appeal, Huckans contends that that con clusion was error. He also contends that he presented evidence showing he is e ntitled to protection under the Act because the Postal Service perceived him as dis abled. The Rehabilitation Act provides that “[n]o otherwis e qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be . . . subjected to discrimination un der any program or activity receiving Federal financial assistance or under anyprogram or activity conducted by an Executive agency or by the United States Post al Service.” 29 U.S.C. § 794(a). To make a prima facie case under the Act , a plaintiff must show (1) that he is a disabled person within the meaning of the Act; (2) that he is otherwise qualified for the job; and (3) that he wa s discriminated against because of his disability. See Woodman , 132 F.3d at 1338. A disabled person within the meaning of the Act is any person who “(i) has a phy sical or mental impairment2 In Lowe , we were interpreting the Americans with Disabilit ies Act, 42

U.S.C. §§ 12101-12213, but ADA cases are generally applicable to Rehabilitation Act cases and vice-versa. See 29 U.S.C. § 794(d) (requiring standards applied under ADA to be applied to claims under Rehabilitation Act); Woodman , 132 F.3d at 1339 n.8.

3 Although Huckans contends that he cannot perform al l the duties of his job, (continued...) -5- which substantially limits one or more of such pers on’s major life activities; (ii) has a record of such an impairment; or (iii) i s regarded as having such an impairment.” 29 U.S.C. § 706(8)(B) (1996) (recodif ied in 1998 as 29 U.S.C. § 705(20)(B)). Huckans claims that he is disabled under the Act be cause he is substantially impaired in the major life activity of “lifting.” In Lowe v. Angelo’s Italian Foods,
Inc. , 87 F.3d 1170, 1174 (10th Cir. 1996), we held that“lifting” is a major life activity. 2 The question then becomes whether Huckans is subs tantially impaired in that activity because he is restricted to liftin g no more than thirty-five pounds. Before we answer that question, we need to back up a little and explain, as best we can, why it is crucial to Huckans’ claim to find this limitation on his ability to lift to be a disability. At first glanc e, it would appear that this limitation is irrelevant. After all, it was included in his d octor’s release that allowed him to return to his regular job on a full-time basis, and it has not prevented him from performing that job, apparently satisfactorily and without any accommodations by the Postal Service. 3 Moreover, he claims the Postal Service discriminated against3 (...continued)

he has not indicated what those unperformed duties are, and neither he nor the Postal Service has indicated that it has had to mak e any “reasonable accommodations” to allow him to work. -6- him only during the period prior to his return to work with this alleged disability , when his impairments, i.e., lifting no more than tw enty pounds, no driving, limited standing, walking and sitting, were even mo re severe. These more severe impairments, however, lasted less than three months. Two of the factors relevant to determining whether an impairment “substantially limits” a major life activity are the duration or e xpected duration of the impairment and the permanent or expected long-term impact of the impairment.
See 29 C.F.R. § 1630.2(j)(2)(ii), (iii); McGuinness v. University of N.M. Sch. of Medicine , 170 F.3d 974, 978 (10th Cir. 1998), cert. denied , 119 S. Ct. 1357 (1999). Further, the appendix to 29 C.F.R. Part 16 30, providing “interpretive guidance,” explains that “temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, ar e usually not disabilities. Such impairments may include, but are not limited to, br oken limbs, sprained joints, concussions, appendicitis, and influenza.” Given this criteria for determining whether an impa irment “substantially limits” a major life activity, it appears that Huck ans presumed--correctly, we might add--that he could not ground his claim on any alleged disability lasting only the three months prior to his return to work. See Sorensen v. University of-7-

Utah Hosp. , ___ F.3d ___, No. 98-4068, 1999 WL 820213, at *3- 4 (10th Cir. Oct. 14, 1999) (finding impairment lasting less tha n three weeks of too short duration to be disability under ADA); Colwell v. Suffolk County Police Dep’t , 158 F.3d 635, 646 (2d Cir. 1998) (same, seven months), cert. denied , 119 S. Ct. 1253 (1999); Halperin v. Abacus Tech. Corp. , 128 F.3d 191, 200 (4th Cir.1997) (same, two months); Sanders v. Arneson Prods., Inc. , 91 F.3d 1351, 1354 (9th Cir. 1996) (same, less than four months); McDonald v. Pennsylvania Dep’t of Public Welfare, Polk Center , 62 F.3d 92, 96 (3d Cir. 1995) (same, less than tw o months). He thus pins his hopes on establishing hi s thirty-five pound lifting restriction, which apparently has a long term impac t, as a disability sufficient to make a prima facie case under the Act. Even were we to accept the theory behind his claim, it would be of no avail to Huckans because he has not shown that he is subs tantially limited in his ability to perform a major life activity. We agree with th e district court--and with a number of other circuits--that the thirty-five poun d restriction is not an impairment substantially limiting the major life activity of lifting. See Thompson v. Holy Family Hosp. , 121 F.3d 537, 539-40 (9th Cir. 1997) (finding res triction from lifting more than twenty-five pounds not substantially limiting); Williams v. Channel Master Satellite Sys., Inc. , 101 F.3d 346, 349 (4th Cir.1996) (same), cert. denied , 520 U.S. 1240 (1997); Aucutt v. Six Flags Over Mid-America, Inc. ,4 We note that an impairment is substantially limitin g when it renders a

person unable to perform major life activities thatthe average person can perform, or when it significantly restricts the con dition, manner, or duration under which he or she can perform the major life activity as compared to an average person. See 29 C.F.R. § 1630.2(j)(1)(i) & (ii); see also Lowe , 87 F.3d at 1173. Huckans has presented no evidence comparing his lif ting restriction with the capabilities of an average person. While such evid ence is not necessary where the impairment is facially substantially limiting, see id. at 1174 (not requiring comparative evidence for plaintiff who was “unable to lift items weighing more than fifteen pounds and . . .[who] should lift item s weighing less than fifteen pounds only occasionally.”), Huckans’ failure to pr esent such evidence reinforces the conclusion that his impairment is not substanti ally limiting. -8- 85 F.3d 1311, 1319 (8th Cir.1996) (same); see also Mondzelewski v. Pathmark Stores, Inc. , 162 F.3d 778, 785-786 (3d Cir. 1998) (evidence th at plaintiff could not lift over fifty pounds or carry over twenty-fiv e pounds frequently combined with plaintiff’s “very low employment opportunities ” created issue of fact as to whether plaintiff disabled). 4 Huckans’ lifting restriction therefore does not qualify him as a disabled person under the Act. Huckans also argues that he is entitled to protecti on under the Act because the Postal Service perceived him as disabled. The basis for this contention is his testimony that when he asked for work on April 30, after he had been released for work with the variety of restrictions noted earlier , his supervisor told him there was no work for him and that there was nothing he c ould do to be productive. However, Huckans also testified that at this same m eeting, the supervisor suggested that he request light duty work as allowe d under the collective bargaining agreement, and two weeks later, he was p rovided with a light duty job.-9-

We do not agree with Huckans that a reasonable fact finder could find this evidence sufficient to show that the Postal Service perceived him as disabled. The district court correctly concluded that Huckans had not shown he was a disabled individual subject to the protections of t he Rehabilitation Act. The judgment of the district court is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge