19-4010-cv Veldran v. DeJoy

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of January, two thousand twenty-one.

PRESENT: GUIDO CALABRESI, REENA RAGGI, DENNY CHIN, Circuit Judges. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

JONATHAN M. VELDRAN, Plaintiff-Appellant,

-v- 19-4010-cv

LOUIS DEJOY, POSTMASTER GENERAL, Defendant-Appellee. 1

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Postmaster General Louis Dejoy is automatically substituted for former Postmaster General Megan J. Brennan as defendant-appellee in this case. The Clerk of Court is respectfully directed to amend this caption. FOR PETITIONER: Jonathan M. Veldran, pro se, Queens, NY.

FOR RESPONDENT: Varuni Nelson, Rachel G. Balaban, Matthew Modafferi, Assistant United States Attorneys, for Seth DuCharme, United States Attorney for the Eastern District of New York, Brooklyn, NY.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Kuntz, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-appellant Jonathan Veldran, proceeding pro se, appeals from a

judgment of the district court entered October 1, 2019, in favor of defendant-appellee

Postmaster General of the United States (the "Postal Service"). Veldran, a former

employee of the Postal Service, brought this action alleging that he was denied a

reasonable accommodation and terminated from his employment in violation of the

Americans with Disabilities Act (the "ADA") and state law. In a decision and order

entered September 30, 2019, the district court construed Veldran's ADA claims as claims

brought under the Rehabilitation Act, and granted the Postal Service's motion for

summary judgment. Veldran appeals. We assume the parties' familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

"We review a grant of summary judgment de novo, construing the

evidence in the light most favorable to the nonmoving party and drawing all reasonable

2 inferences in his favor." Biondo v. Kaledia Health,

(2d Cir. 2019) (internal

quotation marks omitted). "Summary judgment is proper only when, construing the

evidence in the light most favorable to the non-movant, 'there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.'"

Doninger v. Niehoff,

(2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).

As a threshold matter, as the Postal Service is a federal agency subject to

disability discrimination claims under the Rehabilitation Act but not the ADA or state

law, the district court correctly construed Veldran's claims as having been brought

under the Rehabilitation Act. See Rivera v. Heyman,

(2d Cir. 1998) ("[A]

federal employee . . . has no remedy for employment discrimination under the ADA.

His sole claim for discrimination on the basis of disability is under the Rehabilitation

Act, if anywhere." (citation omitted)).

Discrimination claims under the Rehabilitation Act are determined using

the standards set forth in the ADA. See

(f), 794(d).

To establish a prima facie case of discrimination under the ADA, a plaintiff must show by a preponderance of the evidence that: (1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered adverse employment action because of his disability . . . [or] his employer refused to make a reasonable accommodation.

Woolf v. Strada,

(2d Cir. 2020).

3 A person has a "disability" under the ADA (or Rehabilitation Act) if he

has: (a) "a physical or mental impairment that substantially limits one or more [of his]

major life activities," (b) "a record of such an impairment," or (c) is "regarded as having

such an impairment."

(1);

(9)(B) (emphasis added).

Major life activities include "caring for one's self, performing manual tasks, walking,

seeing, hearing, speaking, breathing, learning, and working."

(j)(2)(ii).

"An impairment need not prevent, or significantly or severely restrict, the individual

from performing a major life activity in order to be considered substantially limiting";

however, "not every impairment will constitute a disability."

(j)(ii).

Only where an employer knew, or reasonably should have known, that

the employee has a disability within the meaning of the ADA does the employer have a

duty to "engage in an interactive process with the[] employee[] and in that way work

together to assess whether an employee's disability can be reasonably accommodated."

Costabile v. N.Y.C. Health & Hosps. Corp.,

(2d Cir. 2020) (internal quotation

marks omitted). We may affirm summary judgment only if we conclude that on the

record presented, considered in the light most favorable to Veldran, no reasonable jury

could find in his favor on his claims. See Shannon v. N.Y.C. Transit Auth.,

,

103 (2d Cir. 2003).

Veldran presents both actual and perceived disability claims. We address

these in turn.

4 I. Actual Disability

Veldran's first claim is that he was not provided a reasonable

accommodation for an actual disability sustained when he sprained his knee on October

26, 2015. He argues that this injury substantially limited the following major life

activities: "walking, working, climbing steps, and . . . operating a motor vehicle." He

does not, however, dispute that these limitations lasted for only four days of his

employment with the Postal Service, and that he was cleared to return to work without

any physical limitations on the fourth day, before he was terminated. During the four

days, Veldran was restricted to no more than two hours per day of standing, walking,

or climbing stairs. This injury was simply too brief and minor to qualify as a disability

under the Rehabilitation Act. See Adams v. Citizens Advice Bureau,

(2d Cir. 1999) (holding plaintiff was not disabled within meaning of ADA where his

injury lasted only three and one-half months and he failed to present evidence of a

substantial limitation on a major life activity). 2 While a temporary impairment can be

covered if it is sufficiently severe, see 29 C.F.R. Pt. 1630, Interp. Guidance, §

1630.2(j)(1)(ix) ("[T]he duration of an impairment is one factor that is relevant in

determining whether the impairment substantially limits a major life activity.

Impairments that last only for a short period of time are typically not covered, although

2 While Adams predated the ADA Amendment Act of 2008, which broadened the definition of "disability" under the ADA, the analysis in Adams has not been abrogated and still applies. 5 they may be covered if sufficiently severe." (citation and internal quotation marks

omitted)), Veldran's injury was of such a short duration and limited severity that it

could not qualify as a disability within the meaning of the Rehabilitation Act as a matter

of law.

Because a reasonable factfinder could only conclude that Veldran's knee

injury did not constitute a "disability" within the meaning of the Rehabilitation Act, the

Postal Service did not have a duty to provide a reasonable accommodation, and the

district court correctly granted summary judgment on Veldran's actual disability claim.

II. Perceived Disability

Veldran's second claim is that he was wrongfully terminated based on the

Postal Service's perception that he was disabled due to his 2001 knee injury sustained

while in the military, for which he continued to receive a disability benefit during his

employment with the Postal Service. A person is "regarded as" disabled if he

"establishes that he . . . has been subjected to an action prohibited [by the ADA or the

Rehabilitation Act] because of an actual or perceived physical or mental impairment

whether or not the impairment limits or is perceived to limit a major life activity."

(3)(A). The perceived impairment, however, cannot be an impairment

that is "transitory" -- having an "actual or expected duration of 6 months or less" -- and

"minor."

§ 12102(3)(B). "It is not enough that the employer perceive the employee as

somehow disabled; the employer must regard the employee as disabled within the

6 meaning of the ADA, i.e., having an impairment that substantially limits a major life

activity." Capobianco v. City of New York,

(2d Cir. 2005) (internal

quotation marks omitted).

Veldran's perceived disability claim fails because he did not raise a

genuine issue of fact as to whether his supervisors perceived him as disabled. Although

he provided evidence that at least one of his supervisors knew he was previously

injured before terminating him, there is no evidence in the record to support an

inference that his supervisors believed he was disabled as defined in the ADA. He does

not state what major life activity his employers believed was substantially limited by

that injury. Moreover, Veldran does not dispute that he worked as a City Carrier

Assistant -- walking seven hours a day with a 35-pound mail bag, among other physical

demands -- without any physical limitation or incident for the first two months of his

employment. Based on these undisputed facts, no rational factfinder could conclude

that Veldran's supervisors believed his 2001 injury resulted in a substantial limitation

on his ability to walk or work in 2015.

Because Veldran failed to present evidence from which a reasonable jury

could conclude that he was or perceived to be disabled, the district court correctly

granted summary judgment to the Postal Service. See Woolf,

(affirming

grant of summary judgment because "no reasonable factfinder could conclude" plaintiff

had disability within meaning of ADA); cf. Capobianco,

(reversing grant of

7 summary judgment in perceived disability case, where plaintiff presented evidence that

employer perceived him as being disabled and that he was able to perform essential

functions of job with reasonable accommodation).

We have considered all of Veldran's remaining arguments and find them

to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk of Court

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