Frivolous Dress Order - Post Its
Sofie Kovalcheck
Plaintiff, Juanita Johnston ("Johnston" or "Plaintiff") has filed the instant action against her employer William J. Henderson, Postmaster General of the United States ("Defendant") alleging disability discrimination, retaliation and hostile work environment under the Rehabilitation Act of 1973 as amended, 29 U.S.C. 701 et seq. Specifically, Johnston contends she has been discriminated against and subjected to a hostile environment based on her alleged disability, post traumatic stress disorder ("PTSD"), and has been retaliated against for participating in protected *1345 activity (filing numerous EEO complaints) and for pursuing worker's compensation benefits.
1. Plaintiff Juanita E. Johnston has been employed by the U.S. Postal Service since April 22, 1991. She began her employment as a clerk (Flat Sorter Machine ["FSM"] Operator) at the South Florida Processing and Distribution Center ("P & DC") in Pembroke Pines, Florida. She now works in a limited duty position in "revenue protection", which involves the processing of mail that lacks the proper postage. Her limited duty is the result of an on-the-job shoulder injury which occurred in January, 1998. Plaintiff's Depo. I, pp. 67, 154-155.[1] The acts of discrimination complained of by Johnston arise from an incident that occurred on November 20, 1998. On that date, another clerk at the P & DC, Debra Adams, found an unaddressed envelope with the words "Happy Holiday postal employee" on the front, and "just been exposed to anthrax" on the back. Ex. 1 to Defendant's Motion for Summary Judgment. Ms. Adams delivered the envelope to her supervisor, Patrick Keough. Adams depo. p. 5. Johnston never touched the subject envelope, although she testified at her Office of Worker Compensation Program (OWCP) hearing and in her deposition that she saw the co-worker holding the envelope. Plaintiff's Depo. I, p. 71; Adams Depo., p. 11.
6. Johnston was absent from work due to the alleged post traumatic stress disorder ("PTSD") and the anthrax virus scare for more than four months from November 24, 1998, through April 5, 1999. Plaintiff's Depo. I, pp. 144,26. She returned to work initially in a limited/light duty status with the following restrictions per Sherrie Lewis-Thomas, Ph.D.: "Limited exposure to conflict, stress, and to exposure to dangerous situations (i.e. explosive customers)." Interestingly, by a note dated April 12, 1999, Johnston requested to be placed on the overtime list, even though she was at that time restricted from overtime by her health care providers. Ex. 4 to Defendant's Motion for Summary Judgment; Plaintiff's Depo. I, pp. 144-145.
In her various EEO claims and in the instant Complaint Johnston alleges that she suffers from the mental disability of post traumatic stress disorder ("PTSD") which was brought about as a result of her witnessing a co-worker handle an envelope which was purportedly infected with the anthrax virus, but on testing was in fact not so infected, and managements slow response time in addressing the scare. Her symptoms were described in her various EEO claims as excessive stress, anxiety, headaches, flushing, fatigue, and emotional drain. Now, for the first time in her Response in Opposition to Defendant's Motion for Summary Judgment, Johnston alleges that she is disabled due to "sexual dysfunction" and a litany of other impairments she never before mentioned, such as sleeping problems, learning disorder, memory retention, reclusive, obesity, and daily hygiene. It is unclear whether Johnston is asserting separate disorders or describing conditions arising from her alleged PTSD. In either event the foregoing analysis remains the same.
As Defendant correctly observes, while PTSD is a mental impairment, "PTSD ... standing alone, is not necessarily a disability contemplated by the ADA." Hamilton v. Southwestern Bell Telephone Co., 136 F.3d 1047, 1050 (5th Cir.1998); see also Gazaway v. Makita, 11 F. Supp. 2d 1281 (D.Kan.1998) (plaintiff suffering from post traumatic stress disorder did not have a disability within the meaning of the ADA). To be covered under the Rehabilitation Act, Johnston must demonstrate that her PTSD is such that it substantially limits a major life activity. Hamilton, 136 F.3d at 1050;Floyd Adams v. Autozoners, Inc., 1999 WL 744039, at *3 ("plaintiff's allegation that he suffered from a mental impairment, PTSD, is not enough to assert a disability protected by the ADA. Plaintiff must also show that the impairment limited one of his major life functions."); Croley v. Republican National Committee, 759 A.2d 682, 700-01 (D.C.2000) (same).
To be substantially limited in the major life activity of "working," the individual must be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes compared to the average person having comparable training skills and abilities. Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir.1997); Pritchard v. Southern Company Services, 92 F.3d 1130, 1133 (11th Cir. 1996); 29 C.F.R. 1630.2(j) (3) (i). "Although a plaintiff seeking recovery under the ADA, is not required to prove a comprehensive list of jobs which [he] cannot perform, the person must provide some evidence beyond the mere existence and impact of a physical impairment to survive summary judgment." Swain v. Hillsborough County School Bd., 146 F.3d 855, 858 (11th Cir.1998). An impairment does not substantially limit the ability to work merely because it prevents an individual from performing either a particular specialized job or a narrow range of jobs. Id. Nor does the inability to perform a single, particular job constitute a substantial limitation in the major life activity of working. Id. "The inquiry is whether ... the particular impairment constitutes for the particular person a significant barrier to employment." Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir.1986); see also Cash v. Smith, 231 F.3d 1301, 1306 (11th Cir.2000) ("To be substantially limited in the major life activity of working, an individual must be precluded from more than one type of job, even if the job foreclosed is the individual's job of choice."); Jasany v. United States Postal Service, 755 F.2d 1244 (6th Cir.1985) (postal clerk with mild case of crossed eyes that caused him to develop eye strain and headaches after operating a particular machine was not substantially limited in working because he was capable *1352 of working at other jobs within the post office); Mustafa v. Clark County School Dist., 876 F. Supp. 1177 (D.Nev.1995) (teacher whose anxiety disorder prevented him from working in a classroom was not substantially limited in his ability to work because he was not precluded from employment in general). In Johnston's case, not only has she has returned to work on a full time basis since her leave of over four months, but since her return she has requested to be placed on the overtime work list.[4] This hardly seems consistent with Johnston's claim that she is substantially limited in the major life activity of working.
Finally, Johnston's claim that she was discriminated against because she was perceived by her employer as disabled is, like the entirety of her Complaint, nothing short of frivolous. In order for Johnston to prevail on a "perceived as" theory of disability discrimination, she must be able to show that, as with a real impairment, the perceived impairment is "substantially limiting" and significant. Sutton v. Lader, 185 F.3d 1203, 1208 (11th Cir.1999). To show that she was perceived as disabled, Johnston must produce "substantial evidence" that her employer regarded her as having a permanent or long-term impairment. Id. at 1209. From the evidence of record it is abundantly clear that Defendant never regarded Johnston as substantially limited in any major life activity, and Johnston has produced not a scintilla of evidence to indicate otherwise. In her Response in Opposition to Summary Judgment, Johnston makes the unsubstantiated allegations that her "employer treated [her] as if she had a mental impairment" and "[her] supervisor considered her as disabled." Consistent with Johnston's actions throughout these summary judgment proceedings, she falls to back up her allegations with any evidence. In support of her wholly conclusory allegations she cites not even one incident or fact as evidence. Johnston's failure to present concrete evidence in the form of specific facts, sounds the death knell for her claim of disability discrimination and mandates summary judgment. Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990) (to defeat summary judgment plaintiff must "present concrete evidence in the form of specific facts....Mere conclusory allegations and assertions will not suffice.").
*1354 Johnston's sworn testimony at her deposition indicated that her alleged disability is post traumatic stress disorder. Now, however, in her Response in Opposition to Defendant's Motion, Johnston asserts that she requested reasonable accommodation for asthma. In response, this Court can only shake its judicial head in "so what" agreement. The record is uncontroverted that at one point Johnston requested to work in a less dusty area due to alleged problems with asthma and allergies. In response the Postal Service conducted an environmental scan of the area of which she complained. This resulted in a finding that the area in which she worked was no more dusty than other areas of the facility. Apart from the fact that Johnston's request to be relocated due to dust is entirely unrelated to any such request for reasonable accommodation for PTSD, courts have long held that the duty to reasonably accommodate does not require an employee to provide an irritant-free work environment. See Buckles v. First Data Resources, 176 F.3d 1098, 1101 (8th Cir. 1999) (the ADA does not require employer to create a wholly isolated work space for an employee that is free from numerous possible irritants and to provide for unlimited absenteeism). Nevertheless, as Johnston concedes in her Response brief, after she complained of dust she was moved to a different area of the building acceptable to her. In summary, based upon the uncontroverted facts, the evidence of record and the relevant statutory provisions and case law, this Court finds that no rational trier of fact could possibly find for Johnson. The uncontroverted material issues of fact in this case conclusively establish that Johnston is not disabled and therefore not entitled to reasonable accommodation and further, that even assuming arguendo she was so entitled, the record evidence is clear that Johnston never requested an accommodation for any of her alleged impairments at issue here.
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