Daniel Brewer v. USPS

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 20, 2023
• Docket: 22-35267
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DANIEL MCCOOK BREWER, No. 22-35267

Plaintiff-Appellant, D.C. No. 3:18-cv-00170-TMB v.

UNITED STATES POSTAL SERVICE; MEMORANDUM* LOUIS DEJOY, Postmaster General,

Defendants-Appellees,

and

FEDERAL OFFICE OF WORKER'S COMPENSATION; U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; OFFICE OF FEDERAL OPERATION, of E.E.O.C.,

Defendants.

Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, District Judge, Presiding

Submitted July 18, 2023** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: WALLACE, O’SCANNLAIN, SILVERMAN, Circuit Judges.

Daniel M. Brewer appeals pro se from the district court’s order granting

summary judgment in favor of USPS, et al. on his Title VII employment

discrimination claims. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo. McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1173 (9th Cir. 2016)

(citing Colwell v. Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014)).

I

The district court properly held that Brewer failed to exhaust his

administrative remedies before seeking judicial review. Both Title VII of the Civil

Rights Act of 1964 and § 501 of the Rehabilitation Act of 1973, as amended 29

U.S.C. § 791 et seq, require a federal employee alleging discrimination to exhaust

his administrative remedies before seeking judicial review. Boyd v. U.S. Postal

Service, 752 F.2d 410, 414 (9th Cir. 1985). An administrative exhaustion

requirement implies good-faith cooperation. See Vinieratos v. Air Force, 939 F.2d

762, 771-72 (9th Cir. 1991). Brewer was uncooperative in the administrative process

by refusing to submit an Equal Employment Opportunity Investigative Affidavit or

to respond to USPS’s discovery requests.

II

The district court properly held that Brewer did not state a prima facie case of

discrimination based on disability under § 501 of the Rehabilitation Act. To state a

2 prima facie case under the Act, a plaintiff must show that (1) he is a person with a

disability, (2) who is otherwise qualified for employment, and (3) suffered

discrimination because of his disability. Walton v. United States Marshals Serv., 492

F.3d 998, 1005 (9th Cir. 2007). Brewer did not establish that he is a “qualified

individual,” i.e., “an individual who, with or without reasonable accommodation,

can perform the essential functions of the employment position that such individual

holds or desires.” 42 U.S.C. § 12111(8). Regular attendance is an essential function

of Brewer’s letter-carrier position which he could not fulfill even with his requested

accommodation.

III

Lastly, the district court properly held that Brewer could not show pretext

even if he had stated a prima facie case of discrimination. USPS has presented

evidence that Brewer was terminated for irregular attendance. Once an employer

establishes a facially nondiscriminatory reason for its action, the burden shifts to the

plaintiff to establish pretext. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th

Cir. 1998). To create a triable issue as to an employer’s motivation for its actions

after establishing a prima facie case, a plaintiff must produce some evidence of

discriminatory motive. Id. at 1220-22. Brewer presented no evidence to rebut the

presumption of legitimate, nondiscriminatory termination.

AFFIRMED.