*

This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicata and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

July 21, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROY D. SPENCER,

Plaintiff - Appellant,

v.

U.S. POSTAL SERVICE; JOHN E.

POTTER, Postmaster General, 

Defendant - Appellee.

No. 10-1029

(D. Ct. No. 08-CV-02249-KLM-MEH)

(D. Colo.)

ORDER AND JUDGMENT*

Before BRISCOE, Chief Circuit Judge, TACHA, and O’BRIEN, Circuit Judges.

After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

Roy D. Spencer appeals from the district court’s order granting summary judgment

in favor of defendant John E. Potter, Postmaster General of the United States Postal

Service (“USPS”). We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

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In 1998, Mr. Spencer took the USPS entrance examination and applied to become

a mail carrier. In 2002, he was selected from the USPS register for a city carrier position,

subject to the successful completion of a medical evaluation. Upon completion of the

evaluation, which included several physical examinations and multiple doctors’ opinions,

Mr. Spencer was not hired because he suffers from a chronic back injury that requires

certain activity restrictions.

On February 10, 2009, Mr. Spencer filed a second amended complaint against the

defendant under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (“the Act”). Mr.

Spencer alleges that the USPS discriminated against him because of his chronic back

injury, which he contends is a physical disability under the Act. On December 29, 2009,

the magistrate judge, sitting by consent of the parties, granted the defendant summary

judgment, holding that Mr. Spencer failed to demonstrate a genuine issue of material fact

concerning whether he was “disabled” under the Act. Mr. Spencer now appeals. 

“We review a grant of summary judgment de novo, applying the same standard as

the district court.” Hennagir v. Utah Dep’t of Corr., 587 F.3d 1255, 1261 (10th Cir.

2009). Summary judgment is only appropriate when “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to

any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c)(2).

Mr. Spencer, proceeding pro se, raises the same arguments on appeal that he raised

before the district court in response to defendant’s motion for summary judgment. He

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contends that the evidence presented establishes a genuine issue regarding whether he is

“disabled” under the Act. Specifically, he points to his Veterans Association disability

rating and appears to argue, in the alternative, that the defendant regarded him as

disabled. Additionally, Mr. Spencer argues that he was treated differently from other

applicants for the city carrier position because of his back injury.

Our review of the record, the parties’ appellate materials, and the relevant legal

authority, however, compels us to agree with the decision reached by the district court. 

The magistrate judge did a thorough job of laying out the facts and correctly applied the

law, and we see no reason to repeat the analysis here. Accordingly, we AFFIRM for

substantially the same reasons set forth in the magistrate judge’s order granting the

defendant summary judgment.

ENTERED FOR THE COURT,

Deanell Reece Tacha

Circuit Judge

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