NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 08a0194n.06 F iled: April 11, 2008 No. 07-3347 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT
MARGARET M. BRADY , Pla int if f- Ap pe lla nt,
v. JO H N E
. P O T T E R , P o s t m a s t e r G e n e r a l; UNI TED STATES POSTALSERVI CE, De fe nd ants -A

pp e lle e s. ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE N O R T H E R

N D IS T R IC T O F O H IO

Be for e : C OLE, G IBBO NS, and R OG ER S, C ir c uitJudg e s. Roger s, Circuit Judge. Plaintiff Marg are t M. Bra dy appea ls the d i strict court’s g rant of summary judgme nt in favor of

defe ndants Postmaster Gene ral a nd United States Postal Service. Af te r v olu nta ri ly re sig nin ghe r p os iti on

wi th t he Pos ta l Se rv ic e , B ra dy , wh o s uf fe rs fr om d ia

be te s, sued the de fenda

nts on the g rounds that: (1) they had discriminated a g ainst her in vio l at ion of the Rehabilitation Act, and (2) they had violated he r rig hts under the Family Medica l L eave Act. The district court held that B rady could not rec over unde r the Reha bilitation Act beca

use she wa s neither disabled nor reg arde d as disabled by her employ er. On the FMLA claims, the district court g rante d summary judgme nt for the de fenda nts on the basis that they had n ei t h er i nterfe red w ith Bra dy ’s exercise of

her F ML A rig hts nor reta liated ag ainst her f or exercisingthose rights. Br ady disputes tho se ho ldi ng s, but be c a

us e he r a rgume nts la c k me ri t, w e a ff ir m.No. 07-3347

Brady v. P otter

- 2 - I.
Br ady , who was first diag nosed with T y pe I diabetes in 1983, was hired by the Postal Service
as a c lerk on De cembe r 5, 1998. She resig ned on October 15, 2004. Thr oug hout her e mploy ment with the Postal Service , Br ady regulated her insulin either through shots or throug h an insulin pump, which she w ore on he r side. She a l so took simpl er pr eca utions to m anag e her

condition, such as maintaining a

balanc ed diet, maintaining an appropr iate level of phy sical fitness, and keepingsodas in the ref rig erator at work to he lp regulate her blood suga

r. Those me asure s allowed B rady to live
a re latively normal l ife free of any major l imitations
. I n fac t, when she was ini tially hired, he r doctor place d two minimal restric tions on her employ ment — that she not operate dang erous mac hinery or climb ladders — a

nd almost five y ear s later, he r doctor c ertified that she was not subjec t to any ph y sic a l r e str ic tio ns . During1998, 1999, and 2000, B rady had an ex ce l l en t attendanc e re cord. She w as neve r absent in 1998 or 1999, a

nd she only missed w ork once or twice in 2000. Br ady appar ently had her fi rs t di a be te s- re late d e pis od e a t wor k on J anu ary 9, 20 01 , whe n she be c a me dis or ie nte d an d fe ll o nto
a ca rt. She then went to the bathroom, whe re she fell down a g ain and hit her head, which prompted her c o-worke rs to call an a mbulance to take her to the hospital. Brady missed work for

the re st of that da y and the ne xt day

a s a re su lt o f t

his inc ide nt. Approxim ately

two months later, on M arc h 22, 2001, Br ady started feeling ill at work. She claims that the post office was very war m on that particula

r day beca use the e x terior doc k doors hadNo. 07-3347

Brady v. P otter

- 3 - been c losed, and she f

urther c laims that the high te mperature made her feel ill
. Br ady further alleg es that she we nt to the ba

throom to c heck her blood suga r leve l, which she discove red to be low. After chec king he r blood, Br ady decide d t o go h o m e for the day . She say s that decision ca used a confr ontation with J ack T homas, her supe rvisor that day . Thomas tells a slightly differ ent story . He say s that the temperature outside wa s 33 deg ree s and that although he had closed the exterior dock do or s bec a

us e oth e r em

plo y e e s we re c old , h e c omp ro mis e d b y le a vin g the wi nd ow s o pe n. Up on his
c los ingthe do ors , acco rd ingto T ho ma s, B ra dy ra n to the bathr oo m c la imi ngthat sh e wa s h ot. Thomas say s that Br ady beca me ang ry about the doors being closed a nd y elled at him and sa id that she wa s g oing home . Bot h p ar t i es ar e in ag ree ment that Br ady left work a fter c ompleting the
nece ssary reque st-for- absenc e pape rwork. Five day s afte r that absenc e, B rady was g iven a letter

of
warn in g f o r “ c o n d u c t u nb e c o mi n g ” a s a

r e s u lt o f th e u np r o f

e s s io n a l c o n d

u c t t h a t s h e display ed during her c onfrontation with Thomas. The l etter of war ning, how ever , was e ventually dropped thr ou g h th e Pos ta l Se rv ic e ’s g ri e va nc e sy ste m.
On May 5, 2001, Br ady

missed work bec ause of

sy mptoms related to her

diabetes. She w as initially denied F ML A leave on the ground that she had not provided proper medic al documentation, but the absenc e wa s later approved as FMLA l eave . Represe ntatives from the Postal Service and her union subsequently

met with her to e x plain the information that she w as re quired to provide in or der to be appr oved for

FMLA leave . Br ady ’s hostile attitude at t h at m ee t ing le d to imposi tion of a
se ve n- da y su sp e ns ion , b ut t

hat pu nis hme nt w a s a lso dr op pe d thro ug h th e g ri e va nc e pr oc e ss.No. 07-3347

Brady v. P otter

- 4 - On J une 13, 2002, Br ady was late to work because of an episode of hy pog ly cemia. She was g rante d FMLA leave for the por tion of the day

that she missed be cause the medica l cer tification form that she submitted indicated that she ha d been incapac itated on J une 13. The form, howeve r, wa s de e me d an ins uf

fi c ie nt ba sis fo r a

pp ro vin g futur e F MLA l e a ve be c a us e it i nd ic a te d th a t B ra dy wo uld not need to wor

k intermittently

or on a le ss than full schedule, a nd beca us e i t fa i l ed to provide a

n estimate of the likely

durat i o n and fr equenc y

of future episodes of inc apac ity . There fore , when Br ady missed w ork on dates afte r June 13, 2002, she was aske d to submit additional documentation showing that she had been incapa citated on those dates as well. Despite beinginformed that the June 13 form wa s only

sufficie nt for that date , Br ady persisted in her

belief that the J une 13 fo rm was sufficie nt to cover f

uture intermittent abse nces a s well. Thus, she re peate dly submitt ed copie s of her J une 13 for

m wheneve r she missed wor k afte r J une 13, and each tim e she r e-submitted the June 13 form her reque st for F ML A leave was de nied. The recor d indicates that a ll of Br ady ’s re quests for FMLA leave up to and including J une 13, 2002, wer e approve d, while all reque sts after June 13 wer e denied.
On December 19, 2002, Br ady had a confr ontation with supervisor L arr y Nekic. She called i ns i c k t h e n e x td ay an d t h e n d i d n o tr e tu r nt o w o r k f o r t h e n e x tt w o m o n t h s . S h e r e qu e s t e d F M LA leave , and Postal Service r ecor ds — wh i ch Brady has not contra dicted — show that she ne ver
su bmi tte d a ny F MLA d oc ume ntatio n r e latin g to h e r a bs e nc e . B e c a

use Brady was c on tin

uo us ly absent without leave for a pproxi mately two months, the Postal Servic e dec ided in Fe bruar y of 2003No. 07-3347

Brady v. P otter

Br ady ’s compl ai n t d i d not actually mention the interfe renc e alleg ation by name. Instead, 1 it alleg ed re tali ati on while citing the portion of the statute a pplicable to interf

ere nce c laims. The dis tr ic t c ourt

int e rp re te d th e c omp la int a s a sse rt ingbo th a

re ta liatio n a

nd an inte rf e re nc e c la im. - 5 - that she would be te rminated e ffe ctive Mar ch 29, 2003. Throug h the g rieva nce pr ocess, howe ver, B r a dy’ s r e m o v a l w a s r e d

u c e d t o a l o n g - t e r ms u s p e n s i o nw i t h o u tb a c k p ay. Starting in Apr il of 2004, Br ady took 12 wee ks of FMLA leave in or der to g ive birth to her son. She returne d to work in J uly of 2004. On October 5, 2004, Br ady was infor med that she ha d used her entire 12- wee k allotment of FMLA leave for 2004. L ess than two we eks later , on October 15, 2004, Br ady

resig ned her p o s i t i o n throug h a letter to her super

visor, Stan L ong . I n her le tter, Br ady cited her health and fa

mily as the re asons for he r depa rture, a nd she pra ised her supe rvisor for his “strong and fa ir leade rship.” Ne arly three months late r, Br ady filed this lawsuit. Her c omplaint pres e n te d a ll e g a ti o n s th a t th e Po s ta l Se r v ic e d is c r im in a te d a g a in s t h e r in v io lati o n o f the Rehabilitation Act, interfe red w ith her rig hts under the F amily Medica l L eave Act, and r etaliated ag ainst her f

or exercisingher r ights under t he Family Medica l L eave Act. The district cour t gr anted 1
summa ry jud g me nt i n f

avo r o f t he de fe nd ants on

a ll o f B ra dy ’s c la ims
. B ra dy fi le d f ou r E EO C c omp la int s dur ing he r em plo y me nt wit h th e Pos ta l Se rv ic e . T he fi rs t was filed on J une 15, 2001, conce rning the letter of war ning that she rec eived in Mar ch of 2001 f or conduct unbecoming
. The second complaint was f iled on Dec ember

23, 2002, conce rning the Postal Service ’s re fu s al t o acc ept the F ML A documentation that Bra dy had re peate dly

submitt ed in the second ha lf of 2002 despite being informed that it was insufficient. An a dminist rative judg e issued
a de c isi on a g a ins t B ra dy

on bo th o f t ho se c la ims on Augu st 1 8, 20 04 . B ra dy ’s thi rd EE OC c la imNo. 07-3347

Brady v. P otter

- 6 - was made on Fe bruar

y 24, 2003, and it perta ined to non-sexual hara ssment. Her fourth cla im, which was made on April 28, 2003, stemmed from he r propose d termination that was ultimately reduc ed to a long -term suspension without pay . The third ca se wa s closed on January 12, 2005, wh i l e the fourth ca se wa s closed a year ear lier, on F ebrua

ry 6, 2004. Only

the first two EEOC complaints were
ma de the su

bje c t of thi s la ws uit
. II.
Th e de fe nd ants are e nti tle d to summa ry jud g me nt on B ra dy ’s Re ha bil itatio n A c t c la im beca use B rady

is not disabled, nor was she reg arde d her a s bein g d i s ab led by her e mploy er. In a disability discrimination case broug ht under the Reha bilitation Act, the plaintiff must esta b l i s h a prima fa cie c ase by

proving that: (1) the plaintiff is disable d, (2) she is otherwise qua lified for the job, with or without r easona ble acc ommodation, ( 3) she suffe red an adver se employ ment action, (4) the employ er kne w or ha d rea son to know of the plaintiff’s disability , and (5) either the plaintiff was tr e a te d le ss f

avo ra bly tha n s imi larl y

sit uate d n on -d isa

ble d e mpl oy e e s, or , a ft e r t he a dv e rs e employ ment action, the plaintiff w as repla ced by a non-disable d person or the plaintiff’s position
rema ined open. See J

ones v. Potter , 4 88 F .3 d 3 97 , 4 04 (6 th C ir . 2 00 7) . T o s a tis fy the fi rs t e le me nt, Br ady need not pr ove that she is a ctually disabled if she ca n show that the Postal Service r eg arde d her a s being disabled. Se e Ma ho n v . Cr owe ll , 29 5 F .3 d 58 5, 59 2 (6 th Cir
. 20 02 ) (c iti ng 42 U. S.C. § 12102(2)( C)). B eca

use B rady cannot satisfy

the first element, summary judgme nt in favor of the defe ndants was a

ppropriate since ther e is no way that a re asonable jury

could rule in he r favor
. See Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 248 (1986).No. 07-3347

Brady v. P otter

- 7 - Br ady ’s diabete s is not a disabilit y beca use it is not a “phy sical o r m en t al i mpairment that substantially

limit s one or more major l ife activities.” 29 U.S.C. § 705(9)(B ). Major life activities
are those “that a

re of centr al importance to daily life,” Toyota Motor Mfg., Ky., Inc. v . W illiams , 534 U. S
. 1 8 4 , 1 9 7 (2 0 0 2 ), s u ch as “c ar i n g fo r o n e’ s s el f, p er fo r m i n g m an u al t as k s , wa l k i n g, s ee i n g, hear ing, spe aking , breathing, lea rning , and wor

king.” Mahon , 2 95 F .3 d at 590 (q uo tin g 45 C.F .R. § 8 4. 3( j) (2 )( ii) ). A sub sta

nti a l limitatio n o f s uc h a

n a c tiv ity e xists wh e n th e ind ivi du a l’ s a bil ity to perf orm that ac tivity

is lim ited to a lar g e degree . See Toyota M otor Mfg. , 5 34 U. S. at 19 6- 97 . It is not enou gh for the impair ment to cause mere ly

moderate or intermittent interruptions in the perf ormanc e of the activity
. See M ahon at 5 9 0 -9 1 (c i t i n g Toyota Motor Mfg. , 534 U.S. at 196-97). Although B rady ’s diabete s is an impairment, it d i d n o t substantially limit any major life activities. All of the evidenc e indicates that B rady leads a relatively normal life that is fr ee of any
ma jor lim itatio ns . H e r c on dit ion ha s, a t mos t, a mod e rate imp a c t on he r ma jor lif e a c tiv iti e s. I n f

a c t, her impairme nt imposed such slight limitations on her life duringher e mploy ment with the Postal S e r v i c e t h a ts h e w a s a

b l e t o g o f

o r o v e r a ye ar w i t h o u t m i s s i n g a

s i n g l e d ay o f

w o r k
. A d d i t i o n a l l y, when she was originally hired by the P ostal Service , her doctor pl ace d minimal restrictions on her work, a nd her phy sician later cer

tified that she was able to work with no restric tions. Her cla ims that she is disabled ar e also be lied by her EE OC testimony , i n wh i ch she sa id that her c ondition was easily manag ed with the use of her insulin pump and with simp l e p re cautions like maintaining an
a pp ro pr iate die t, g e tti ngsu ff ic ie nt e xer c ise , a

nd ke e pin g so da s in

the re fr ig e rator

a t w or k to he lp
re g ulate he r b loo d s ug ar. B ra dy ’s c on dit ion mus t be a na ly zed in lig ht o f t

he se the ra pe uti c me a sure s.No. 07-3347

Brady v. P otter

I t is unclea

r whe ther “ working ” is a major life activity . I n Sutton , the Supreme Court noted 2 that th e re are c on c e ptu a l pr ob le ms w ithc on sid e ri ng“ wo rk ing ” to b e a ma jor lif e a c tiv ity , 527 U. S. at 491, and in Toyota Motor Mfg. , the Supreme Court que stioned the validity of t he re g ulation that identifies “wor

king” as a ma

jor life ac tivity
. See Toyota M otor Mfg. , 534 U.S. at 194. For the sake o f ar g u m e n t , w e a s s u m e , w i t h o u td e c i d i n g , t h a tw o r k i n g i s a m a j o r l i f e a c t i v i t y. - 8 - The Supreme Court held in S u tto n v . U

n ite d A ir Li nes Inc

. , 5 2 7 U. S. 471, 482 (1999), that the
c ur a tiv e e ff

e c ts o f s uc h mea sure s mu st b e c on sid e re d in de te rm ini ngwh e the r a

n in div idu a l is disabled. Despite ample evidenc e that she is not disabled, Br ady asser ts that she is substantially

limit ed in the major life a ctivities of workingand eating. Whil e she miss ed a few da y s of work be cause of 2 her dia betes, ther e is no indication that her diabe tes-re lated abse nces c onstitut ed a substantial lim it a ti o no nh e r

a b il it y to w o r k
. Sh e h a d

a lm o s t n o me d ic a l r e s tr ic ti o n s o nth e ty p e o f w o r k that sh e c ou ld p e rf

or m, a nd the re is n o e vid e nc e that sh e ha s e ve r b e e n d e te rm ine d to be un a ble to p e r f o r man y j o b s . T h e r e f

o r e , i tc an n o tb e s a i d t h at s h e i s l i m i t e d i nt h e a c t i v i t y o f

w o r k i n g . F i n a l l y, t h e ev i d en ce al s o i n d i ca t es t h at Br ad y i s n o t s u b s t an t i al l y l i m i t ed i n t h e ma j o r l i fe ac t i v i t y

o f e at i n g. B ra dy he rs e lf te sti fi e d th a t th e re are no sp e c if ic re str ic tio ns on

what sh e can eat . I ns te a d, sh e is
me re ly re qu ir e d to mon ito r t

he qu anti ty

of wh a t sh e e a ts. I f t

he need to wat ch what on e e a ts constitutes a disability , then almost ever y one is disabled.
B e c a us e B ra dy wa s not dis a

ble d, sh e c an o nly

satis fy the fi rs t e le me nt o f h e r p ri ma fa c ie c a se if she ca n show that she was reg arde d as disabled by the Postal Servic e. She ca nnot meet that burde n beca use t here is no evidenc e showing: (1) that the Postal Service mistakenly believed that she had a phy sical or menta l impairment that substantially limit s one or more major life activities, or (2) thatNo. 07-3347

Brady v. P otter

- 9 - the Postal Service c orre ctly believed that she had a

n impairment but mistakenly b el i ev ed that the impairment substantially

limit ed one or

more major life activit i es . See M ahon , 295 F.3d at 592 (c i t i n g Sutton , 527 U.S. at 489)
. Her e, there is no evidenc e indicating that the Posta l S er vice reg arde d her a s having substantial limi tations on any major life activities. I t is true that the Postal Service was a

war e of B rady ’s diabete s, but awa rene ss of an impairment is not enoug h to prove that the impairment wa s reg arde d as substantially limit ing ma

j o r l i fe ac t i v ities. I t is also true that the Postal S ervic e made Br ady submit t o a medica l reviewbefor e re turning t o wo rk on at lea st one
occa sion, but that is not evidenc e that she was reg arde d as disabled. To the c ontrary , it is evidence that th e Po s ta l Se r

v ic e w a s u n c e rta in a s to h e r c o n d it io n . B y a ll o w in g h e r to r eturn to work following her e x amination, the P ostal Service actua lly appea rs t o have acc epted the c ertification of her he alth and ther eby

reg arde d h er as n o t d i sabled. F urther, the re is no evide nce that the Postal Service ever

considere d her to be unfit for any positions, nor is there evidenc e that the Postal Service pla c e d a ny re str ic tio ns on he r e mpl oy me nt. Ac c or din g ly , B ra dy ’s Re ha bil itatio n Ac t c la im mus t f a il
as a matter of law
. The de fe n d an ts also ask this court to aff irm on the g round that B rady did not suffer a

n adver se employ

ment action. B eca

use B rady was not disabled, we need not r eac h that issue.
III
. Th e de fe nd ants are a lso e nti tle d t o su mm ary jud g me nt o n B ra dy ’s F MLA c la ims . F ir st, Br ady has wa ived her

FMLA re taliation claim by not addre ssing it in he r openingbrief. See M arksNo. 07-3347

Brady v. P otter

- 10 - v. Newcourt Credit Group, Inc. , 3 4 2 F. 3 d 4 4 4 , 4 6 2 (6 t hC i r. 2 0 0 3 ) ( ci t i n g Thaddeus-X v. Blatter , 175 F .3 d 3 78 , 4 03 n. 18 (6 th C ir . 1 99 9) (e n b anc ); Bicke l v.Korean Air Lines Co., L td. , 96 F.3d 151, 153- 5 4 ( 6 t hC i r . 1 9 9 6 ) )
. S e c o n d , t h e d e f e n d an t s ar e e n t i t l e d

t o s u m m ar

y j u d g m e n to nB r a dy ’ s F M LA interfe renc e claim beca

use the Postal Servic e did not interfe re with B rady ’s FMLA rig hts during the period encompa ssed by

the statute of limitations — i.e., the twenty -four months prece ding B rady ’s lawsuit. See 29 U. S.C. § 2 61 7( c )( 1) . D ur ingthat ti me pe ri od , th e re wa s n o inte rf e renc e wi th Br ady ’s FML A ri gh t s beca use she wa s not denied F ML A bene fits to which she wa s entitled. See Nov ak v . Me troHe alt

h M e d. Ctr

. , 5 0 3 F. 3 d

5 7 2 , 5 7 7 -7 8 (6 t hC i r. 2 0 0 7 ) ( ci t i n g W alton v. Ford Motor Co. , 4 24 F .3 d 4 81 , 48 5 (6 th Cir
. 20 05 )) . B e c a us e pr oo f o f s uc h a

de nia l is e sse nti a l to B ra dy ’s pr ima fac ie ca se, her

failure to present suc h proof mea n s t h at the def

endants a re e ntitled to sum mary judgme nt. Se e Ce lote

xCor p. v . Ca tre tt , 477 U.S. 317, 323 (1986). The only denial of F ML A bene fits during the statutory period oc curr ed whe n Br ady soug ht FMLA leave for he r two-month abse nce in e arly 2003 that ultimately

resulted in a long -term suspension. Co ntrary

to being an interf

ere nce w ith Bra dy ’s rig hts, the denial of be nefits in that instance was entirely appropr iate beca use B rady had re fused to provide any medical doc umentation to support he r reque st. Br ady , howeve r, cla ims that it was a n interfe renc e with her

FMLA rig hts for the Pos ta l Se rv ic e to d e ny he r re qu e st be c a us e sh e ha d p re vio us ly

pr ov ide d th e Pos ta l Se rv ic e wi th do c ume ntatio n th a t w a s su ffici ent to c ov e r h e r t wo -m on th a

bs e nc e in 2 00 3. B ra dy ’s argume nt i s wrongbeca

use her previously

submitt ed docume ntation did not provide a suffic ient b as i s for approvingher two- month absence as F ML A l eave since it stated t hat she would not nee d to be abse ntNo. 07-3347

Brady v. P otter

- 11 - from work

inte r mi tt e n tl y . A s a

r e s u lt , th e Po s ta l S e r

v ic e c o r r e c tl y r e qu e s te d

n e w d o c u me n tati on showing that Br ady ’s abse nce w as due to inca pacitation by

her dia betes. By ref

using to pr ovide such do c ume ntatio n, B ra dy

e sse nti a lly

fo rf e ite d h e r a

bil ity to r e c e ive F MLA b e ne fi ts.
I t is true that the t wo-y ear statute of l imitations on FMLA claims is extended to three y ear s if the ca se involves a willful violation of the F ML A. See 29 U.S.C. § 2617(c)(2) . I n this case, the two-y ear limit ations period is appropr iate bec ause the re w as no violation — muc h less a willful violation — during the twelve- month period prec edingJ anuar y 3, 2003, the cut-of

f date for the twoy e ar s tatut e of

lim itatio ns . T he on ly

po ssi ble vio latio ns duri ngthat a dd iti on a l y e ar w e re the mul tip le reje ctions of B rady ’s FMLA documentation after Ju n e 1 3 , 2 0 0 2 . Even if those r ejec tions were F M L A v i o l a t i o n s , h o w e v e r , t h e y c o u l d n o tb e c o n s i d e r e d

w i l l f u l v i o l a t i o n s b e c a

u s e t h e F M LA Coordinator for

the Northe rn Ohio District of the Unit ed S tates P ostal Service said that he re lied on the advice of Postal attorney s in rejec ting B rady ’s documentation. Reliance on a n attorney ’s opinion neg ates a finding of willfulness. See W illis v. Hartzell Propeller Inc

. , 497 F. Supp. 2d 913, 919 ( S.D. Oh i o 2 0 0 7 ) ( ci t i n g Trans W orld Airli nes, Inc . v. Thurston , 469 U.S. 111, 130 (1985)).

I V.
For the fore g oing r easons, the judg ment of the district cour t is AFF I RMED.