ANALYSIS

Potter argues that summary judgment should be granted on cach of the two Counts. For
Count I, Potter argues that summary judgment is appropriate because there is no evidence that
Rivera is substantially limited in any major life activity and, thus, Rivera cannot show that she is
disabled under the Rehabilitation Act. For Count II, Potter argues that Rivera’s retaliation claim
must fail because the manager who disciplined Rivera had no knowledge that Rivera had filed an
EEO claim.”
A. Count I Rehabilitation Act Claim

In Count I, Rivera claims that the USPS discriminated against her under the
Rehabilitation Act by failing to accommodate her disability, The Rehabilitation Act of 1973,
29 U.S.C. §§ 701 et seq., prohibits recipients of federal funds from discriminating against an
otherwise qualified individual based solely on that individual’s disability. Sanchez v. Henderson,
188 F.3d 740, 744 (7th Cir, 1999). Thus, to succeed on her claim under the Rehabilitation Act,

Rivera must show that she is disabled. Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th

"In his reply brief, Potter moves this court to strike numerous paragraphs of Rivera's statement of additional
facts. The court briefly addresses these paragraphs, with the exception of Emma Springs’ affidavit dealt with infra.
Potter argues that paragraphs 20-29 and 31-32 of plaintiffs 56.1 statement of additional facts should be stricken as
irrelevant because they deal with Rivera’s supervisors’ failure to accommodate her alleged disabilities. Potter argucs
that this issue is irrelevant to the issue they have moved for summary judgment on, namely whether Springs is
disabled. See Lippert Mitg., Ltd. v. Kingwood Ceramics, Inc., No. 95 C 6490, 1998 WL 699023, at *11 (N.D. Ifl
Oct. 5, 1998) (Guzman, J.) (striking portions of 12N(3)(b) statement because paragraphs were immaterial and
irrelevant). The court does not strike paragraph 32 where Rivera states that she previously could type longer than
she can now. This is not evidence of accommodation but it docs bear on whether Rivera is now disabled,

Potter also moves to strike portions of Rivera’s affidavits that contradict prior deposition testimony. See
Russell v, Acme-Evans Co., 51 F.3d 64, 67 (7th Cir. 1995) (ordering contradictory affidavits to be disregarded). In
her deposition, Rivera states that in her current job she does data entry as up to 50% of her responsibilities.
Paragraph 21of het affidavit will be allowed to stand because she merely adds that this data entry is not constant, can.
be done at her own pace, and thete is no pressure. The court docs, however, strike paragraph 15 of Rivera’s
affidavit, in which she states that she can only do data entry 2 hours a day. This contradicts Rivera’s deposition
testimony that she does data cntry up to 50% of the day.



significantly restricted in the ability to perform cither a class of jobs or a broad

range of jobs in various classes as compared to the average person having

comparable training, skills, and abilities. The inability 1o perform a single,

particular job docs not constitute a substantial limitation in the major life activity

of working.
29 C.F.R. § 1630.2(j)(3)(i). See also Sutton v. United Airlines, 527 U.S. 471, 489-93 (1999).
Thus, a plaintiff must show not that the impairment causes an inability to perform a single,
particular job, but that “the impairment. . substantially limit[s] employment generally.” Stein v.
Ashcroft, 284 F.3d 721, 725 (7th Cir. 2002), citing Contreras vy. Suncast Corp., 237 F.3d 756,
762 (7th Cir. 2001).

Additionally, ADA regulations require a showing that the claimant is unable to work in a
“class of jobs” or a “broad range of jobs in various classes.” 29 C.F.R. § 1630.2())(3)(i). A
“class of jobs” is “the job from which a claimant was disqualified, as well as all other jobs
utilizing similar training, knowledge, and skills within ‘the geographical area to which the
[claimant] has reasonable access.’” EEOC v. Rockwell Int'l Corp., 243 F.3d 1012, 1017 (7th
Cir. 2001) citing 29 C.F.R. § 1630.2())(3)(i)(A)-(B). A “broad range of jobs in various classcs”
is “the job from which a claimant was disqualified, as well as all other jobs not utilizing similar
training, knowledge, and skills within ‘the geographical area to which the [claimant] has
reasonable access.”” /d., citing 29 C.F.R. § 1630.2(j)(3)Gi)(A), (C).

While quantitative vocational data addressing the number of alternative jobs in a
particular area is not necessary, there must be “some proof of the ‘number and types of jobs’

within the ‘geographical area to which the claimant has reasonable access.”” Jd. (cilations

omitted). Rivera presents no evidence in the record that her carpal tunnel syndrome or tendinitis



“manual tasks." Further, Rivera claims that because of the nccessity to do data entry work ina
broad range of jobs, her impairment substantially affects the major life activity of working.
Rivera’s argument that walking her dog, bowling and golfing should be considered major
life activities is unavailing because the courts have soundly rejected such arguments. See, e.g.,
Moore v. J.B. Hunt Trans., Inc., 221 F.3d 944, 951 (7th Cir, 2000) (in dicta, noting that argument
by plaintiff that bowling was a major life activity would not be meritorious); Colwell v. Suffolk
County Police Dep’t, 158 F.3d 635, 643 (2d Cir. 1998) (holding that golfing is not a major life
activity); Cade v. Consol. Rail Corp., No. 98-5941, 2002 WL 922150, at *10 (E.D. Penn. May 7,
2002) (DuBois, J.) (holding that bowling is not a major life activity); Hanson v. Prairie Material
Sales, No 00 C 1574, 2001 WL 1105097, at *8 (Sept. 20, 2001) (Darrah, J.) (holding that playing
sports is not a major life activity); Hazeldine v. Beverage Media, Ltd., 954 F. Supp. 697, 703-04
(S.D.N.Y. 1997) (finding plaintiff who could not walk dogs more than a block not disabled).
Activities such as golfing, bowling, and walking dogs—or recreation in general—do not have the
same significance as the listed major life activities, including breathing, hearing and learning.
Sinkler, 209 F.3d at 684 (“consider unlisted activities in contrast to listed activities to determine
whether the unlisted activity has equal‘significance.””). In short, while important to many
people, recreational activities are not treated as of central importance to one’s daily life under the

ADA.

‘Rivera classifies chopping onions, cleaning her home and ironing as houschold chores, which the Supreme
Court has reasoned may be considered manual tasks under the ADA regulations if “of central importance to daily
life.” Toyota Motor, 122 S.Ct. at 693. Rivera also claims that her recreational activities, including walking her dog,
golfing and bowling should be considered major life activities even though they are not included on the “illustrative”
list. The court separates these for purposes of discussion but believes they al! qualify as manual tasks in that they do
not implicate complex reasoning skills but can be performed with simple instructions,

6



Cir, 1995). Disability is defined in the Americans with Disabilities Act (“ADA”), which both
parties agree provides the same standards for entitlcment to benefits as does the Rehabilitation
Act. Under the ADA, a disability is:

(A) a physical or mental impairment that substantially limits one or more

of the major life activities of such individual;

(B) a record of such impairment, or

(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). Therefore, to prove that she has a disability, under (A) on which she
relies, Rivera must show: (1) she suffers from an impairment; (2) the impairment affects major
life activities; and (3) the impairment “substantially limits” such major life activities. Bragdon v.
Abbott, 524 U.S. 624, 631 (1998); Sinkler v. Midwest Prop. Mgmt. Ltd. P'ship, 209 F.3d 678,
683 (7th Cir. 2000).

The parties do not dispute that Rivera suffers from an impairment. Thus, Rivera must
show that her impairment substantially limits a major life activity. A major life activily is an
activity of central importance to daily life. Toyota Motor Mfg., Kentucky, Inc., v. Williams,

534 U.S. 184, 122 S.Ct. 681, 691 (2002). ADA regulations provide the following representative
list of major life activities: caring for oneself, performing manual tasks, walking, seeing, hearing,
breathing, learning and working. 29 C.F.R. § 1630.2(i).

Rivera claims that she is unable to cngage in the major life activities of walking her dog,

playing golf, bowling, chopping onions for cooking, cleaning her home, ironing clothes and

performing data entry work for six to cight hours a day, all of which fit under the rubric of

$Courts determining eligibility under the Rehabilitation Act often rely on ADA precedent in reaching their
decisions. See, e.g., Mays v. Principi, --F.3d-, 2002 WL 2019361, at *2 (7th Cir, Sept. 5, 2002); Stein v. Asheroft,
284 F.3d 721, 725 n.2 (7th Cir. 2002); Siefken v, Village of Arlington Hts., 65 F.3d 664, 666 n.1 (7th Cir. 1995).

5



precluded the performance of some isolated, unimportant or particularly difficult manual task”
qualify as disabled. Jd. at 691.

The court is persuaded that Rivera’s evidence is insufficient to raise a genuine issue of
material fact as to the “substantially limited” issue. Rivera proffers that prior to developing her
impairment, she chopped onions for cooking approximately three times a week, and that this
would take five minutes each time. Since developing her impairment, Rivera chops onions for
cooking only once a weck, and it takes aboul twenty minutes each time. (Pl. L.R. 56.1 4 36.)
Additionally, Rivera argues that before her impairment, she ironed clothes every week, and that it
took 10 minutes to tron a shirt or blouse. Currently, Rivera irons fewer clothes, takes more
clothes to the dry cleaners and takes approximately 30 minutes to iron each shirt or blouse.° (Id.
437.) Plainly, tasks that require physical force with the arms arc more difficult than before,
which is without doubt an inconvenicnce, but these tasks are not centrally important to an
average person’s daily life. Neither does the evidence demonstrate that Rivera is unable to
perform a wide variety of other houschold chores, also pointing to a conclusion that she is not
“significantly restricted as to the condition, manner or duration” under which she can perform
houschold chores as compared to the average person. 29 C.F.R. § 1630.2(j)(1) (emphasis added).

Finally, Rivera alleges that her inability to work on a keyboard affects her major life
activity of working, which is expressly included on the list of ADA regulations. 29 C.F.R.
1630.2(i). Where an individual claims to be unable to perform the major life of working, the

term “substantially limits” is defined differently. Substantially limits means:

SRivera presents no evidence as to the differences in the amount of cleaning that she can perform now as
compared to before her impairment.



Minute Onder Form (06/97)

~@ United States District Court, Northern District of Linois

Nume of Assigned Judge Joan EL. Lefkow Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 00 C 8128 DATE 9/25/2002
CASE Leslie A. Rivera vs. John E. Potter
TITLE

{In the following box (a) indicate the party filing the mation, e.g., plaintiff, defendant, 3rd party plaintiff, und (b) stale briefly the nature
of the motion being presented]

MOTION:

DOCKET ENTRY;

ql) Oo Filed motion of [ use listing in “Motion” box above.

QO Brief in support of motion duc

(3) o Answer brief to motion due___. Reply to answer brief due.

(4) qo Ruling/Hearingon__sset fort

6) O Status hearing[held/continucd to] [set for/re-set for]on set for at
© oO Pretrial conference[held/continued to] [sct for/ressct for]on___—sct for at
(7) Oo Trial[sct for/resset for]on at

(8) Oo ({Bench/Jury tial] [Hearing] held/continued to at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) OLocal Rule 41.1 OC FRCP41(a)(1) OO FRCP41(a)(2).

qo [Other docket entry] Enter Memorandum Opinion and Order. Defendant’s motion for summary
judgment [13-1] is granted. Judgment entered in favor of defendant John E. Potter and against plaintiff
Leslie A. Rivera.

a1) [For further detail see order uttached to the original minute order.]

No notices required, advised in open court

‘Bocun

ee

No notices required, uber of tient

SEP 26 2002

slave docketed

| Notices mailed by judge's staff.

Notified counsel by telephone,

Docketing to mail notices. 5

Mail AQ 450 form.

dogketing deputy initiate

Copy to judge/magistrate judge.

e . ynns/2002

date mailed noise
courtroom

MD depuly's
initials

Mp

Datestime received in
contral Clerk's Office, nailing depuly ints



complaint personally, Rivera stated that “I didn’t give anything to Mr. Montgomery.” (Rivera
Dep. at 109.)

Rivera contends that a genuine issuc of material fact still exists based on the affidavit of
Emma Springs (“Springs”). Springs, a Union steward, stated that the USPS" policy is to inform
Managers of Distribution Operations of all EEO Complaints, and thus Montgomery should have
been aware of the complaint when filed.‘

While Rivera does prescnt evidence that Montgomery may have been aware of the EEO
complaint, she still does not establish a causal connection between her discipline and the filing of
her complaint. To establish a causal link between the protected activity and the adverse
employment action, Rivera must present evidence that the USPS “would not have taken the
adverse employment actions ‘but for’ [the] protected expression.” Basith y. Cook County, 241
F.3d 919, 933 (7th Cir. 2001). There is no evidence in the record to show that the USPS’
employment actions would not have occurred “but for” Rivera’s protected expression.

Therefore, her retaliation claim must fail.

“Potter argues that Springs’ affidavit should be stricken because Rivera did not identify Springs in response
to Potter’s interrogatory asking for “all persons with knowledge ot information relating to any claim or defense in
this action, any fact alleged in the pleadings, or any other fact relevant to this action.” (Def. Reply at 2, Ex. A.)
When examining Rivera's responses contained in exhibit A, Rivera responded to question 1 by stating “[s]ee
Plaintiff's amended rule 26 disclosures, section A. Plaintiff expects to call all individuals listed in A as witnesses.”
The court cannot, however, locate plaintiff's amended rule 26 disclosures in the record, Thus, the court is not
presented with any evidence that Springs was not disclosed as a person with relevant knowledge in the interrogatory
answers. Therefore, the court will not strike Springs’ affidavit from the record.

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makes her unable to work in a class of jobs or a broad range of jobs in the gcographical area, and
thus she cannot claim that her major life activity of working is impaired.

Becausc no genuine issue of material fact exists concerning whether Rivera qualifics as
disabled, summary judgment is granted as to Count
B. Count II Retaliation Claim

Tn Count I, Rivera alleges that she was retaliated against when Montgomery, Manager of
Distribution Operations, disciplined her for attendance problems two months after Rivera signed
a Notice of Right to File an Individual Complaint. To establish a cause of action for retaliation, a
plaintiff must show that: “(1) she engaged in statutorily protected activity; (2) she suffered an
adverse employment action; and (3) there is a causal link between the protected activity and the
adverse employment action.” Cole v. Chicago Tribune Co., No. 96 C 3320, 2000 WL 656644, at
*11 (NLD. Ill. May 23, 2000) (Gottschall, J.) citing Essex v. United Parcel Serv., 111 F.3d 1304,
1309 (7th Cir. 1997).

Potter admits that Rivera signed a Notice of Right to File an Individual Complaint on
October 11, 1999, and that Montgomery approved discipline against Rivera on December 5,
1999. Potter claims, however, that there is no causal conncction between the two events because
Montgomery had no knowledge that the EEO Complaint had been filed. Montgomery himself
claims that he had no knowledge that Rivera filed any EEO Complaints. (Montgomery Aff. { 2.)
In addition, when asked if Montgomery knew about the EEO complaint, Rivera responded in her
deposition that “I don’t think so. 1 don’t believe he did. I didn’t tell him, I didn’t walk up to him

and say I did this.” (Rivera Dep. at 110.) Also, when asked if she had given Montgomery the

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With regard to Rivera’s claims that her activities of chopping onions, cleaning and
ironing are major life activities, in Toyota Motor, ihe Supreme Court recently articulated the
standard for assessing whether an individual is substantially limited in performing “manual
tasks” under the ADA. The Court concluded that the proper inquiry under the “manual tasks”
regulation is to examine whether the claimant is “unable to perform the variety of tasks central to
most people’s lives... .” Toyota Motor, 122 §.Ct. at 693. The Court listed the following as
examples of “manual tasks” with central importance to people’s lives: household chores, bathing
and brushing onc’s teeth. fd.

Because chopping onions, deep cleaning and ironing are all household chores, Rivera
presents at least some evidence to show thal her ability to perform household chores is affected.
But Rivera sti{l must pass the next hurdle: showing that she is “substantially limited” in the
major life activity of performing household chores. The term “substantially limited” means:

[unable to perform a major life activity that the average person in the general

population can perform; or 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)(1)(). Factors to be considered in determining whether an individual is
substantially limited in a major life activity include: (i) the nature and severity of the impairment;
(ii) the expected duration of the impairment; and (iii) the permanent or long term impact
resulting from the impairment. 29 C.F.R. § 1630.2(j)(2)(i)-(iii). The determination is to be made

on a case-by-case basis. Toyota Motor, 534 U.S. at 692. Nevertheless, the Court in Toyota

Motor was clear that the standard is “demanding” lest “everyone with a physical impairment that



‘the USPS, Rivera wore splints and decreased the weight of the mail that she lifted. (Def. L.R.

56.1910.) Dr. Alfonso Mejia, who treated Rivera, stated that she suffers from what “seems like
carpal tunnel syndrome.” (Mejia Dep. at 25.) Dr. Mejia did note, however, that he has not been
able to prove that Rivera definitely suffers from carpal tunnel syndrome. (Def. Resp. to PI. L.R.
56.19 42.)

Despite the pain, Rivera continued to work as a flat sorter and was additionally assigned
to sort flat mail in the “manual letlers unit,” which involved no typing. (Def. L.R, 56.1 4 8.)
Rivera admits that she could perform all aspects of both jobs—flat sorter and manual letter
worker-albeit with some pain. (Def. L.R. 56.1911.) After leaving the USPS, Rivera accepted a
position with the Veterans Administration, where she is employed as a clerk-typist and works
forty-hours a week, (Def. L.R. 56.1 4 12.)

On October 11, 1999, Rivera signed a “Notice of Right to File an Individual Complaint”
with the USPS’ EEO officer. On December 5, 1999, Lawrence Montgomery (“Montgomery”),
one of Rivera’s supervisors and the Manager of Distribution Operations, disciplined Rivera for
attendance problems. (Def. L.R. 56.1 {| 15.) On March 23, 2000, Rivera filed her discrimination
complaint with the USPS. (Def. L.R. 56.1 J 14.) After no final decision was made on Rivera’s
claims within the statutory period, she filed the instant law suit in federal court. In Count I,
Rivera claims that the USPS discriminated against her based on her disability of chronic
tendinitis and carpal tunnel syndrome. In Count TI, Rivera alleges that Montgomery retaliated

against her when he suspended her for poor attendance on December 5, 1999.



party seeking summary judgment bears the initial burden of proving there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving
party cannot rest on bare pleadings alone but must use the evidentiary lools listed above to
designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia
v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome
determinative under the goveming law. Insolia, 216 F.3d at 598-99. Although a bare contention
that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp.,
200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to
the non-moving party as well as view all reasonable inferences in that party’s favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
FACTS STATED IN A LIGHT MOST FAVORABLE TO PLAINTIFF

Rivera worked for the USPS from May 1997 to April 2000. Prior to working for the
USPS, Rivera was employed in a variety of jobs, including cashier, switchboard operator, bank
teller and administrative clerk. The USPS employed Rivera as a “flat sorter.” Postal employees
working in that position alternated among several tasks, including sorting and “keying” mail,
tagging and replacing mail tubs, inspecting mail sorting and “ledging.”! (Def. L.R. 56.1 46.)

Shortly after Rivera started working as a flat sortcr in 1997, she began to experience pain
in her hands and wrists. Rivera claims that the pain in her hands and wrists prevents her from
chopping onions, walking her dog, deep cleaning her home, and working with a kcyboard for six

to cight hours a day. (Def. L.R. 56.1 $13.) In an effort to alleviate the pain while working for

Keying” is typing zip codes into a key pad approximately the size of the numeric section of a computer
keyboard. “Ledging” is lining up stacks of mail for the machine operators to sort and key into the machine. (Def.
LR. 56.196.)



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DOCKETED

LESLIE A. RIVERA, SEP 26 2002

Plaintiff,
No. 00 C 8128

vs.

JOHN E. POTTER, POSTMASTER
GENERAL,

Judge Joan H. Lefkow

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff, Leslie Rivera (“Rivera”), brings (his action against defendant, John Potter
(“Potter”), Postmaster General, alleging in Count I that the United States Postal Service
(“USPS”) discriminated against her because of her disability in violation of the Rehabilitation
Act, 29 U.S.C. §§ 701 e¢ seq., and in Count LI that the USPS retaliated against her for filing a
“Notice to File an Individual Complaint” with the USPS’ Equal Employment Opportunity
(“EEO”) officer. The court has jurisdiction over the claims pursuant to 28 U.S.C. § 1331 and
29 U.S.C, § 791. Before the court is Potter’s motion for summary judgment, For the reasons sct
forth below, the court grants the defendant’s motion for summary judgment

SUMMARY JUDGMENT STANDARDS

Summary judgment obviates the need for a trial where therc is no genuine issue as lo any
material fact and the moving party is cntitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and

assess the proof as presented in depositions, answers to interrogatories, admissions, and

affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee’s notes, The



CONCLUSION

For the reasons stated above, the court grants Potter’s motion for summary judgment

[#13]. The clerk is instructed to enter judgment in the defendant’s favor.

ENTER: Senes KP Cf Meir
Y a
JOAN HUMPHREY LEFKOW
United States District Judge

Dated: September 25, 2002

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