UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RACHEL T. OSBORNE, : : Plaintiff, : : v. : Civil Action No. 08-1979 (JR) : DAVID EISNER, CEO, CORPORATION : FOR NATIONAL AND COMMUNITY : SERVICE, et al., : : Defendants. :

MEMORANDUM

Plaintiff Rachel Osborne alleges that her former

employer, the Corporation for National and Community Service (the

“Agency”), discriminated against her based on a disability, in

violation of the Rehabilitation Act,

et seq.,

and that it provided insufficient notice of her termination, in

violation of 42 U.S.C. § 2000e-16. David Eisner, CEO of the

Agency, moves for summary judgment. For the reasons that follow,

the motion will be granted.

Background

The Agency hired Osborne as a purchasing agent in 2005.

Compl. ¶ 9; Resp. 1. On October 16, 2006, she left a voice

message for her supervisor stating that she had been injured in

an automobile accent and would be unable to work. See Ex. F to

Mot. She ceased attending work thereafter. She also began

regularly mailing the Agency “Status Forms” and “Orthopedic

Evaluations” from her physician. See Ex. K to Mot. The “Status Forms” simply stated that she should not be working, and the

“Orthopedic Evaluations” provided a brief description of her

condition. See id. In all, she mailed the Agency six “Status

Forms” and six “Orthopedic Evaluations” by the end of January.

See id. Over the same time period, the Agency mailed her three

letters, each listing reasons why the documents she had been

submitting were insufficient to show a need for continued medical

leave. See Exs. A-C to Mot.

Osborne abruptly returned to work on February 5, 2007.

Compl. ¶¶ 14-15. She also sent the Agency a letter requesting

until February 20 to submit supplemental medical documentation.

See Ex. D. to Mot. On February 15, Osborne slipped and fell on a

sidewalk and ceased attending work once more. Compl. ¶ 16;

Ex. E. to Mot. Soon after her fall, she again began submitting

regular “Status Forms” and “Orthopedic Evaluations” to the

Agency, similar to those she had submitted previously. See

Ex. K. There is no evidence she submitted any other

documentation of her injuries stemming from either the car

accident or the slip-and-fall.

On March 13, 2007, the Agency sent Osborne two more

letters. One stated that the medical documentation remained

insufficient, and the second proposed that she be suspended for

five days because of her absence. See Exs. E-F to Mot. After

she submitted yet another “Status Note” on March 23, the Agency

- 2 - sent her another letter on March 30, again stating that the

doctor’s notes were insufficient and threatening that her

continued absence could lead to her termination. See Ex. G to

Mot. On April 12, the Agency imposed the proposed five-day

suspension. See Ex. H. to Mot. On May 1, the Agency sent a

“Notice of Proposed Removal” to Osborne, stating its intent to

terminate her employment. See Ex. I. to Mot. The proposed

termination was approved on May 22, and the Agency ended her

employment effective June 4. See Ex. J to Mot.

Analysis

I. Rehabilitation Act

Under the Rehabilitation Act, federal agencies are

prohibited from discriminating against qualified individuals

based on disabilities. See

(a); Breen v. DOT,

(D.C. Cir. 2002). The standards to determine

whether a federal agency has violated the Rehabilitation Act are

the same as those applied to private employers under the

Americans with Disabilities Act (“ADA”),

, et

seq. See

(d);

(b). Under the

ADA, a plaintiff seeking to recover for discriminatory

termination must show (1) that she was disabled, (2) that she was

qualified as an employee, and (3) that she suffered an adverse

employment action (here termination) because of her disability.

See Breen,

; Mogenhan v. Chertoff, 577 F. Supp. 2d

- 3 - 210, 218 (D.D.C. 2008). The Agency contends that Osborne cannot

meet any of these criteria. Because I agree that Osborne cannot

show she is disabled within the statutory definition, I need not

reach the other elements.

A person is disabled under the statute if she has a

“physical or mental impairment that substantially limits one or

more [of her] major life activities.”1

; see

also

(20)(B). The impairment must “prevent[] or

severely restrict[]” the individual’s ability to perform the

major life activity at issue and must have a long-term impact.

Toyota, 534 U.S. at 198. To determine whether a plaintiff is

substantially limited in a major life activity, courts must

consider “(I) [t]he nature and severity of the impairment;

(ii) [t]he duration or expected duration of the impairment; and

(iii) [t]he permanent or long term impact, or the expected

permanent or long term impact of or resulting from the

impairment.” Rand v. Geithner,

(D.D.C.

2009) (quoting

(j)(2)). When working is the

major life activity allegedly impaired, “[t]he term substantially

limits means significantly restricted in the ability to perform

1 The ADA Amendments Act of 2008,

overturned the Supreme Court’s interpretation of the term “disability” as expounded in Toyota Mfg., Ky., Inc. v. Williams,

(2002) and Sutton v. United Air Lines, Inc.,

(1999). However, the Act became effective on January 2009, and it does not apply retroactively here. See Lytes v. D.C. Water & Sewer Auth.,

(D.C. Cir. 2009).

- 4 - either 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.”

(j)(3)(I).

To establish a disability, “[m]erely submitting a

medical diagnosis of an impairment is insufficient to establish

disability status.” Thompson v. Rice,

(D.D.C. 2006) (citing Toyota,

). Instead,

plaintiffs must offer “evidence that the extent of the

limitation . . . is substantial” within the meaning of the

statute. Toyota, 334 U.S. at 198.

Osborne has not submitted any documentation of her

alleged disability to the Court beyond that attached to the

Agency’s motion, and the Agency in turn has submitted only the

numerous “Status Forms” and “Orthopedic Evaluations” that Osborne

mailed to them, as well as a Montgomery County Department of

Social Services medical report form. See Ex. K. This

documentation is insufficient to establish a disability as

defined in the ADA. The “Status Forms” merely state ipse dixit

that she should not be working. See Ex. K. The various

“Orthopedic Evaluations” state that she suffered “[c]ervical,

thoracic, and lumbar sprains” and later “[c]ervical and lumbar

strain[s] with tremor” from her car accident and a

“[l]umbrosacral sprain with coccyx contusion and possible occult

fracture” from her slip and fall. Id. The “Orthopedic

- 5 - Evaluations” also state that Osborne suffered spasms and pain in

her neck and back. Id. However, none of these documents explain

the duration or severity of her impairment, nor do they describe

how the injuries might impact her ability to work or perform any

other major life functions.

The Montgomery County medical report, submitted on

April 12, 2007, offers a bit more detail.2 See Ex. K. It

mentions that Osborne could not lift more than ten pounds and

that she suffered “moderate” impairment in “activities of daily

living.” Id. It also states that her doctor estimated she was

unable to work from February 15 through June 15, 2007. Id. The

report, however, does not seem to address the period prior to the

slip-and-fall. It also does not explain how her injuries relate

to her ability to work. For instance, there is nothing to link

her inability to lift heavy weights to her job. In fact, while

the form contains three tables designed to show how injuries

affect a person’s ability to work, two of the tables are not

filled in but are instead simply marked “off work.”3 Id.

In sum, Obsborne has not offered a sufficient response

to the Agency’s many requests or its motion. Therefore, she

cannot prove she was disabled within the meaning of the

2 There is no evidence that Osborne ever submitted this form to the Agency during her employment. 3 On the third table, related to hand functioning, Osborne’s doctor indicated that she had normal functionality. Id.

- 6 - Rehabilitation Act, and summary judgment will be granted against

her claim.

II. Due Process – Notice

The Merit Systems Protection Board (“MSPB”) affirmed

the Agency’s decision to dismiss Osborne. See Ex. L to Mot.

Osborne challenges its ruling that she received sufficient notice

during the termination process. See Resp. 14; see Stone v. FDIC,

(Fed. Cir. 1999) (stating that a federal

employee’s due process rights include notice of allegations

against her, an explanation of the employer’s evidence, and an

opportunity to respond). Normally, appeal of a MSPB decision

must be filed in the Federal Circuit, but where such an appeal is

mixed with a discrimination claim, it is properly reviewed here.

See Barnes v. Small,

(D.C. Cir. 1988). I

must review the administrative record deferentially and may set

aside the MSPB’s determination only if it is “arbitrary or

capricious, obtained without compliance with lawful procedures,

unsupported by substantial evidence or otherwise not in

accordance with law.”

at 979 (quoting

(c)).

Osborne’s contention is meritless. As the MSPB found

and as is undisputed, the Agency mailed notice of her proposed

and actual termination to the Laurel, Maryland address she had

provided it for employment-related correspondence. See Ex. L at

23-27. Osborne admits in her response that she received mail at

- 7 - the same address a few months prior to her termination. See

Resp. 2-3. The administrative record supports the MSPB’s

decision that Osborne never directed the Agency to send its

correspondence to a different address. See Ex. L. at 26.

Therefore, the notice was sufficient and her due process rights

were not violated.

Conclusion

For the reasons set forth above, summary judgment will

be granted. An appropriate order accompanies this memorandum.

JAMES ROBERTSON United States District Judge

- 8 -