IL. DISCUSSION
A. Standard for Summary Judgment
Summary judgment is permissible when “there is no genuine issue as to any material fact
and. . .the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The

nonmoving party cannot rest on the pleadings alone, but must identity specific facts, see Cornfield

y. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1320 (7th Cir, 1993), that raise more than
a mere scintilla of evidence to show a genuine triable issue of material fact. See Murphy v. ITT

Technical Services, Inc., 176 F.3d 934, 936 (7th Cir. 1999).

Tn deciding a motion for summary judgment, the court can only consider evidence that would
be admissible at trial under the Federal Rules of Evidence. See Bombard v. Fort Wayne
Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). The court views the record and all reasonable
inferences drawn therefrom in the light most favorable to the non-moving party. Fed. R. Civ. P.
56(c); see also Perdomo v. Browner, 67 F.3d 140, 144 (7th Cir.1995). “In the light most favorable”
simply means that summary judgment is not appropriate if the court must make “a choice of
inferences.” See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); see also First Nat’l Bank

of Arizona v. Cities Service Co., 391 U.S. 253, 280 (1968); Wolf v. Buss (America) Inc., 77 F.3d

914, 922 (7th Cir. 1996), The choice between reasonable inferences from facts is a jury function,

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). When the defendant moves for

summary judgment, the court must view the record and all inferences in a light most favorable to the
plaintiff. Ameritech Benefit Plan Comm. v. Communication Workers of Am., 220 F.3d 814, 821

(7th Cir. 2000). However, “[c]onclusory allegations alone cannot defeat a motion for summary

judgment.” Thomas v. Christ Hospital and Medical Center, No. 02-3373, -- F.3d --, 2003 U.S. App.



impairment precludes her from working a broad class of jobs. Absent such a showing, Cooper is not
entitled to relief under the Rehabilitation Act. Scc Stein, 284 F.3d at 725.

Cooper also fails to present evidence showing that she had a record of having such an
impairment that would constitute a disability under the Rehabilitation Act, or that the Postal Service
regarded her as having such an impairment. Cooper asserts that the Postal Service discriminated
against her when it denied her 1998 employment application because it knew she was diagnosed with
Depression and PTSD in 1992. Even if this were true, Cooper fails to produce evidence showing
that cither ailment qualifies as a disability under the Rehabilitation Act. See Byrne v. Avon Prod.,
No. 02-2629, — F.3d —, 2003 U.S. App. LEXIS 8755, at *4 (“[iJnability to work for a multi-month
period removes a person from the class protected by the ADA.”). Cooper’s own self-serving

statements and conclusory allegations are not enough to defeat a motion for summary judgment. See

Thomas, 2003 App. LEXIS 7921, at *11; sce also Rand v. CF Indus., Inc., 42 F.3d 1139, 1146-47

(7th Cir. 1994).
To determine whether a violation of the Rehabilitation Act occurs in the employment context,

the court looks to the standards applied under the ADA. Peters, 311 F.3d at 842 (citing Vande Zande

y. State of Wis. Dept. of Admin., 44 F.3d 538, 542 (7th Cir. 1995)). Tho Supreme Court has held
that when determining whether an ailment is a disability under the ADA, the Court will consider

corrective measures in its determination. Sutton v. Untied Airlincs, Inc., 527 U.S. 471, 488-89

(1999). Cooper fails to provide any evidence establishing that her Depression or PTSD could not
be corrected with medication or other treatments. Additionally, Cooper testified in her deposition

that she was only hospitalized for Depression and PTSD once in April 1992, and that she has not

taken any medication for these or any other conditions since June 1992. Thus, Cooper fails to show



1, Cooper’s Age Discrimination Claim

‘The ADEA prohibits age discrimination in employment against individuals who are lorty or
more years of age. See 29 U.S.C. §§ 623(a) and 631(a). The purpose of the ADEA is “to promote
employment of older persons based on their ability rather than age; to prohibit arbitrary age
discrimination in employment; [and] to help employers and workers find ways of meeting problems
arising from the impact of agc on employment.” 29 U.S.C. § 621(b). Further, the ADEA does not

“prohibit unfaimess or wrongheaded decisions in the workplace[,]” Johnson v. Hondo, Inc., 125 F.3d

408, 415 (7th Cir. 1997), and il is well established that an ADEA plaintiff cannot prevail if his
employer “honestly believed in the nondiscriminatory reason it oftered, even if the reason is foolish

or trivial or even baseless.” Vakharia v. Swedish Covenant Hosp., 190 F.3d 799, 809 (7th Cir.

1999). Moreover, “[a] plaintiffsecking reliefunder the ADEA must establish that he would not have
been treated adversely by his employer ‘but for’ the employer’s motive to discriminate against him

because of his age.” Baron, 195 F.3d at 338 (citing O’Connor v. DePaul Univ., 123 F.3d 665, 669

(7th Cir. 1997)), To establish a prima facie case of discrimination under the ADEA, Cooper must
demonstrate that: (1) she is a member of the protected class of persons over forty years of age; (2)
she was qualified for the positions to which she applied; (3) she was not hired for those positions;
and (4) similarly situated younger employees were treated more favorably. See Wolf v. Buss (Am.)
Inc., 77 F.3d 914, 919 (7th Cir. 1996).

Cooper fails to establish a prima facie case of age discrimination under the ADEA for two
reasons. First, Cooper has not shown that she was qualified for the positions to which she applied

for reinstatement. Although Cooper received adequate examination scores, she did not qualify for

reinstatement to the Postal Service because of her past employment record. The Postal Service has



LEXIS 7921, at *11 (7th Cir. April 25, 2003) (citing Lujan v. Nat'l Wildlife Federation, 497 U.S.
871, 888-89 (1990)).
B. Establishing Proof in an Employment Discrimination Case

In order for Cooper to prove age or disability discrimination, she must present either direct
or indirect evidence of her claims. See Robin v. Espo Engineering Corp., 200 F.3d 1081, 1088 (7th
Cir. 2000), If Cooper cannot present direct evidence to establish the discrimination claim, she may
attempt to prove her case indirectly with circumstantial evidence using the familiar McDonnell

Douglas burden-shifting method. Sec id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973)).

The McDomell Douglas method of proof entails three steps. Sec Robin, 200 F.3d at 1088.
First, the plaintiff must establish a prima facie case of employment discrimination. See id, If the
plaintilf successfully presents a prima facie case, a presumption of discrimination arises and the
burden then shifts to the defendant to offer evidence of a legitimate, nondiscriminatory reason for
taking an adverse employment action against the plaintiff. See id. “[T]he plaintiff must then have
an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by
the defendant were not its true reasons, but were a pretext for discrimination.” Baron v. City of
Highland Park, 195 F.3d 333, 339 (7th Cir. 1999) (citing Wilson v. AM Gen. Corp., 167 F.3d 1114,
1119-20 (7th Cir. 1999)).

In this case, Cooper offers no direct evidence of age or disability discrimination. Thus, the
court will analyze Cooper’s claims under the McDonnell Douglas burden-shifting method. The court

will first determine whether Cooper has established a prima facie case of employment discrimination

under the ADEA or the Rehabilitation Act.



(7th Cir. 1996). In order for a plaintiff to establish a prima facie case of disparate treatment under
the Rehabilitation Act, she must demonstrate that: (1) she has a disability within the meaning of the
statute; (2) she was a qualified individual who could perform the essential functions of the job in
question with or without accommodation; and (3) she was excluded or discharged from the position
solely because of her handicap. Bultmeyer, 100 1'.3d at 1283; Randle v. Bentsen, 19 F.3d 371, 374
(7th Cir. 1994).

To establish a prima facie casc under the Rehabilitation Act, Cooper first “must meet the
threshold burden of establishing that [s]he is ‘disabled’ within the meaning of the statute.” See Roth
y. Lutheran General Hosp., 57 F.3d 1446, 1454 (7th Cir. 1995). A person is disabled if [s]he: (1)
“bas a physical or mental impairment which substantially limits one or more of her major life
activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment
by the person’s employer.” Peters v. City of Mauston, 311 F.3d 835, 842 (7th Cir, 2002).

In this case, Cooper has not met the burden of establishing that she is disabled within the
meaning of the Rehabilitation Act. Cooper fails to show that she has a physical or mental
impairment which substantially limits onc or more of her major life activities, The Seventh Circuit
has defined major life activities as “functions, such as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning and working.” Roth, 57 F.3d at 1454. In
Cooper’s EEOC hearing before the ALJ, Cooper testified that she did not consider herself to be
disabled to the extent that she could not perform the activities required of the positions for which she
applied. See Def.’s LR56,1, Ex. 2, at 25-26. Such an admission shows that Cooper does not have
a physical or mental impairment which substantially limits one or more of her major life activities.

Furthermore, Cooper fails to present any evidence in support of her theory that her mental



Minute Order Form (ufi97)
cu CG United States District Court, Northern District of Illinois

N: of Ai Judge Sitting Judge if Othe:

at asia nde Chatles Norgle ing Je her

CASE NUMBER 02 € 2328 DATE 7/2/2003
CASE Cooper vs. Potter
TITLE

[In the following box (x) indicute the party filing the motion, e.g., plaintiff, detendunt, 3rd party plaintiff, and (b) state briefly the natace
of the motion being presented]

MOTION:
Defendant’s Motion for Summary Judgment
DOCKET ENTRY:
(1) 0 Filed motion of { use listing in “Motion” box above.)
(2) C] Brief in support of motion due -
@) qd Answer brief to motion due___. Reply to answer briefdue___.
(4) Oo Ruling/Hearingon_ set fora
(5) Oo Status hearing[held/continued to] [set for/re-sct for]on__—__set for __at_
(6) oOo Pretrial conference[held/continued to] [sct for/re-set for]on  ____setfor__ at
(2) a Trial[set for/re-set for]on at
(8) o [Bench/Jury trial] [Hearing] held/continuedto___— at.
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CFRCP4(m) OLocal Rule 41.1 CFRCP41(a)(1) 01 FRCP41(a)(2).

do [Other docket entry] Before the court is Defendant’s Motion for Summary Judgment [16-2]. For
the reasons stated on the attached order, Defendant’s motion [16-2] is granted. The clerk shall enter
judgment for Defendant pursuant to Rule 58 of the Federal Rules of Civil Procedure.

Lltole fC |

(il) {For further detail see order attached to the original minute order.]

No nolices required, advised in open court

No notices required.
umber of motives

Nolices mailed by judge's staff, ‘QU 0 " yan

Notified counsel hy telephone, 4

dockuting depul

Docketing to mail notices.

Mail AO 450 form LUAOD FOIE SI ey

ws

Copy to judge/magistrate judge,

von
ny ro “ht 7 date mailed notice,
caurtroom Ores ly tb Yop ate mailed not

deputy's
initiuls

Duteltime-received in.
central Clerk's Office tiling hopary indicia



specifically a phony reason for some action.”” Milbrook v. IBP. Inc., 280 F.3 1169, 1175 (7th Cir.

2002) (quoting Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995)). The focus on the
pretext inquiry is on the honesty of the employer’s stated reason for the termination, not the

accuracy. Tincher v. Wal-Mart Stores, Inc., 118 F.3d 1125, 1129 (7th Cir, 1997), The court does

not sit as a “superpersonnel department” reexamining the propriety of every employment decision.
Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000). Instead, the court’s only concern is
whether “the Icgitimate reason provided by the employer is in fact a true one.” Id,

Here, the Postal Service articulates a legitimate, non-discriminatory reason for its refusal to
reinstate Cooper; that being its policy of generally prohibiting the reinstatement of those federal
employees previously fired “for cause.” On June 10, 1992, Cooper was fired “for cause” because
she was AWOL over a period of several months, The Postal Service claims that this fact alone was
a sufficient basis for Cooper’s 1998 non-selection. Therefore, the burden shifts to Cooper to show
by a preponderance of the evidence that the Postal Service’s stated reason for her non-selection was
a pretext for employment discrimination. See Baron, 195 F.3d 339.

Cooper fails to meet her burden because she does not provide any evidence showing that the
Postal Service’s stated reason for her non-selection was untrue. Cooper provides no evidence
refuting the existence of the Postal Service’s policy, nor does she offer cvidence showing that the
Postal Service does not enforce its stated policy. In fact, Cooper ofters evidence of other employees
(ages unknown) who were similarly denied reinstatement with the Postal Service. Pl.’s LR56.1, Ex.
17-21. But this evidence only strengthens the Postal Service’s position. Similarly, John Richardson
testified that he has never approved reinstatement of applicants who were fired “for cause” and

Cooper offers no evidence to refute this assertion. Additionally, Cooper testified before the EEOC

11



that she had a record of having an impairment that would qualify as a disability under the
Rehabilitation Act, or that the Postal Service perceived her as having such an impairment. As a
result, Cooper fails to establish a prima facie case of discrimination under the Rehabilitation Act and
the Postal Service is entitled to summary judgment. Tyler v. Runon, 70 F.3d at 467-68.
Furthermore, even if Cooper could show that she is disabled under the Rehabilitation Act,
she still cannot establish a prima facie case because she does not present evidence showing that she

was excluded or discharged from the position solely because of her handicap. See Randle, 19 F.3d

al 374. The record in this case shows that the Postal Service has a policy generally prohibiting the
reinstatement of federal employees who were previously fired “for cause.” Cooper was fired “for
cause” in 1992. Thus, even if the Postal Service considered Cooper’s history of Depression and
PTSD when making their decision, Cooper still has not shown that she was not reinstated partly
because of her previous “for cause” termination. See Randle, 19 F.3d at 374-75 (employee must
prove that the adverse employment action was based solely on his handicap to establish a prima facie
case of disability discrimination),
C, Cooper’s Pretext Inquiry

Although the court concludes that Cooper fails to establish a prima facie case of employment
discrimination under both the ADEA and the Rehabilitation Act, with an abundance of caution, the
court will next consider whether the Postal Service's stated reason for Cooper’s non-selection was
a pretext for employment discrimination.

To defeat a motion for summary judgment Under the McDonnell Douglas approach, Cooper
has the burden of proving that the Postal Setvice’s proffered reason for her non-selection was a

pretext for employment discrimination. Sce Wilson, 167 F.3d at 1119-20, “Pretext “means a lie,

10



an established policy of generally not reinstating employees who were previously fired “for cause.”
In 1992, Cooper was fired “for cause” for being AWOL for a period of several months. Although
Cooper now disputes the Postal Service’s reason for her 1992 termination, she has waived the right
to raise the issue in this case. See Clark v. Runyon, 116 F.3d 275, 276 (7th Cir. 1997) (Postal
employee’s failure to timely contact an EEO counselor within 45 days of an alleged discriminatory
act bars employee from filing suit).

Second, Cooper fails to establish a prima facie case of age discrimination under the ADEA
because she does not show that similarly situated younger employees were treated more favorably.
Cooper testified in her deposition that she does not know the names or ages of any of the individuals
hired for the positions for which she applied in 1998. See Def.’s LR56.1, Ex. 1, at 26, 27. Cooper
also fails to present any evidence of the Postal Service reinstating similarly situated younger
applicants who were fired for “cause.” Absent such a showing, Cooper cannot establish a prima
facie case of age discrimination under the ADEA. See Balderston v. Fairbanks Morse Engine
Division of Coltec Industries, 328 F.3d 309, 322 (7th Cir. 2003); see also Bennington v. Caterpillar
Inc., 275 V'.3d 654, 660 (7th Cir. 2001).

2. Cooper’s Disability Discrimination Claim
The Rehabilitation Act of 1973 provides a private right of action for federal employees

alleging employment discrimination on the basis of a disability. 29 U.S.C. § 794(a); Stein v.

Asheroft, 284 F.3d 721, 724 (7th Cir. 2002). Absent direct evidence of discriminatory intent on
behalf of the employer, a plaintiff suing under the Rehabilitation Act may rely on the McDonnell

Douglas burden-shifting method to establish indirect evidence of discrimination, Tyler v. Runon,

70 F.3d 458, 467 (7th Cir. 1995); Bultmeyer v. Fort Wayne Comm. Schools, 100 F.3d 1281, 1283



had no evidence to support her allegation that she was illegally denied employment by the Postal
Service because of her age.

At the same hearing before the ALJ, the Manager of Human Resources for the Chicago
Performance Cluster of the Postal Service, John Richardson, testified that while he was aware that
Cooper had applied for reinstatement to the Postal Service, he was unaware of Cooper’s age or
handicap status at the time Cooper’s 1998 application was denied.’ Postal Service regulations
generally bar reinstatement or employment of those employees removed from Postal or other federal
employment “for cause,” Richardson testified that Cooper's 1998 non-sclection was consistent with
Postal Service regulations because she had previously been fired “for cause” in 1992.

On March 12, 2002, the EEOC denied Cooper’s claim for age and disability discrimination
and issued a Notice of Right to Sue. On April 1, 2002, Cooper filed a Pro Se Complaint with this
court alleging that the Postal Service violated the Age Discrimination in Employment Act, 29 U.S.C,
§ 621 et seq. (‘ADEA”), and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.

(“ADA”),? when it refused to reinstate her to an Agency position.

Cooper disputes this fact and provides evidence showing that she attached medical
history documentation to her 1998 application for reinstatement. (P1.’s 1.R56.1, Ex. 5.) Thus, for
purposes of this motion only, the court concludes that the Postal Service was aware of Cooper’s
1992 Depression and PTSD diagnosis at the time it made the decision to deny her 1998
application. See Fed. R. Civ. P. 56(c); see also Ameritech Benefit Plan Comm, v.
Communication Workers of Am,, 220 F.3d 814, 821 (7th Cir. 2000).

Although Cooper marked the box indicating a violation of the ADA in her Complaint,
Section 505(a)(1) or the Rehabilitation Act provides the exclusive remedy for a claim alleging
that a federal agency discriminated against a disabled employee or job applicant. See Brown v.
Potter, No. 02-2748, -- F.3d —, 2003 App. LEXIS 11161, at *4 (7ih Cir. Jun. 2, 2003) (assuming
that postal employee's disability discrimination claim was brought pursuant the Rehabilitation
Act when employee failed to cite statutory authority for claim in her Complaint); see also Hamm
vy. Runyon, 51 F.3d 721, 722 n.1 (7th Cir. 1995), As such, the court construes Cooper’s disability
discrimination claim in her Complaint to allege a violation of the Rehabilitation Act.

3



through June 1992. Cooper did not appeal her 1992 termination with the Postal Service or assert any
allegations of malfeasance against the Postal Service at the time.

In late 1997, Cooper applied for reinstatement to the Postal Service as a City Mail Carrier
at the Chicago Post Office. The Postal Service did not select Cooper for the position and Cooper
does not know the identities of those individuals who were selected. Cooper failed to appeal her
1997 non-selection for the City Mail Carrier position.

In July of 1998, Cooper again applied for employment with the Postal Service. On October
1, 1998, Cooper took the Postal Service Entrance Exam and was placed on an eligibility list of
potential applicants. During the application process, Cooper did not disclose that she had any
handicap or disability, or that she had any history of having a handicap or disability. Cooper also
failed to disclose that she had been fired from the Postal Service in 1992 for being AWOL.
However, Cooper did state in the medical section of her application that she was removed from the
Postal Service in 1992 for “medical reasons.” The Postal Service did not hire Cooper for any of the
positions for which she applied during 1998.

On September 3, 1998, Cooper filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) alleging age and disability discrimination due to the Postal Service’s failure
to reinstate her to an agency position. On November 17, 1999, Cooper received a hearing before an
EEOC Administrative Law Judge (“ALJ”). At the hearing, Cooper testified that she did not consider
herself to be disabled to the extent that she could not perform the activitics required of the positions
for which she applied. Cooper also testified that she received a notice [rom the Social Security

Administration informing her that she was no longer entitled to disability benefits due to a

physician’s determination that she was no longer disabled. Additionally, Cooper admitted that she



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CONSTANCE A. COOPER
Plaintiff, No. 02 C 2328
vs. Honorable Charles R. Norgle, Sr.

JOHN E. POTTER, Postmaster
General,

eee ee eS eee

Defendant.

OPINION AND ORDER

Before the court is Defendant’s Motion for Summary Judgment brought pursuant to Federal

Rule of Civil Procedure 56, For the following reasons, Defendant’s motion is granted.
1. INTRODUCTION'

Tn 1981, Plaintiff, Constance A. Cooper, began working as a Distribution Clerk at the United
States Postal Service (“Postal Service”). In 1986, Cooper resigned from the Postal Service citing
“personal reasons” as her reason for leaving. In December 1990, Cooper returned to the Postal
Service as a part-time Mail Processor.

In March of 1992, Cooper was admitted to Hartgrove Hospital in Chicago, Hlinois and
diagnosed with Single Episode Major Depression with Melancholia (“Depression”) and Post
Traumatic Stress Disorder (“PTSD”). As a result of Cooper’s medical condition, she did not report
to the Postal Service for duty for several months. On June 10, 1992, the Postal Service terminated

Cooper’s employment for being absent without leave (“AWOI.”) for the period of February 1992

'The court construes all disputed facts and reasonable inferences to be drawn therefrom in
favor of Plaintiff Cooper, the non-movant. See Fed. R. Civ. P. 56(c).

1

¢



that she had no evidence showing that the Postal Service denied her employment because of her age.
Def.’s LR56.1, Lx. 2, at 24. Absent such evidence, Cooper cannot prevail on her employment
discrimination claims. See Brummett v. Lee Enterprises, Inc., 284 I'.3d 742, 745 n.1 (7th Cir. 2002).

As a result, Cooper fails to overcome her burden under the McDonnell Douglas pretext
inquiry and the Postal Service is entitled to summary judgment on Cooper’s employment
discrimination claims. See id.

I. CONCLUSION

For the foregoing reasons, Defendant's Motion for Summary Judgment brought pursuant to
Federal Rule of Civil Procedure 56 is granted.
If 18 SO ORDERED.

ENTER:

LYemlee

CHARLES RONALD NORGLE, SR., Judge”
United States District Court

DATED: 7 TZ -2 12