IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30922
Summary Calendar
LIONEL WAYNE MAGEE, Plaintiff-Appellant,
versus
UNITED STATES POSTAL SERVICE and MARVIN RUNYON, Postmaster General, Defendants-Appellees.
Appeal from the United States District Court for the Western District of Louisiana (94-CV-1412)
February 15, 1996
Before HIGGINBOTHAM, DUHE’, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Lionel Wayne Magee appeals from the entry of summary judgment
in favor of the United States Postal Service and Marvin Runyon,
Postmaster General of the U.S. We have jurisdiction, 28 U.S.C.
§ 1291, and we affirm.
I.
Magee, a former employee of the Postal Service, sued the
Postal Service and the Postmaster General, alleging violations of
* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. the Rehabilitation Act, 29 U.S.C. § 791 et seq., and the Privacy
Act, 5 U.S.C. § 552a.
Magee began working for the Postal Service in June 1983 as a
Mailhandler. In 1992, Larry Fortsun, Magee's supervisor, referred
Magee to the Postal Service's Employee Assistance Program due to
concerns about his mental fitness for duty. Dr. J. Roderick
Hundley, Magee's own psychiatrist, diagnosed Magee as suffering
from Post Traumatic Stress Disorder, and Magee relayed this
information to his supervisors.
Michael Smith, the Postmaster of Monroe, learned of the
problems Magee had been having with work and his co-workers. In
June, 1993, Smith requested that Magee undergo a fitness for duty
examination. Dr. Rahn Sherman, a board-certified psychiatrist,
performed the examination and concluded that Magee was not fit for
duty due to his mental condition. Magee's own psychiatrist, Dr.
Hundley, concurred with the conclusions in Dr. Sherman's report.
Based on this report, Smith decided to place Magee on off-duty
status in July 1993. Magee sought Smith's assistance in applying
for disability retirement based on his condition. After six
months, Smith requested a second fitness for duty examination. Dr.
Anthony Young, a clinical psychologist, performed the exam in June
1994 and concluded that Magee could not work in "any kind of
stressful setting, whether that be from the work demands or the
interpersonal or social demands of the setting at the present
time."
2 After reviewing available positions, Smith concluded that
Magee's condition rendered him unfit to work as a Mailhandler and
that he could not be reasonably accommodated in the Monroe post
office. Smith removed Magee from his position on July 5, 1994, and
Donald Vercher, Smith's superior, advised Magee of his termination
on August 8, 1994.
Alleging discrimination based on disability, Magee appealed
his removal to the Merit Systems Protection Board. The Board
affirmed the decision to remove Magee but concluded that the Postal
Service had not given Magee a proper appeal when it placed him on
off-duty status in 1993. The Postal Service awarded Magee backpay
for that period. Magee did not appeal the Board's decision.
Magee filed this suit in August 1994. By an amended
complaint, Magee alleged violations of the Rehabilitation Act and
the Privacy Act. This district court granted summary judgment for
the defendants on all claims. Magee now appeals.
II.
To prevail under the Rehabilitation Act, Magee must prove that
1) he was an individual with a disability, 2) he was otherwise
qualified, 3) he worked for the United States Postal Service, and
4) he was adversely treated solely because of his disability. 29
U.S.C. § 794(a); Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th
Cir. 1993). A qualified individual is, inter alia, one "who, with
or without reasonable accommodation, can perform the essential
functions of the position in question without endangering the
health and safety of the individual or others." 29 C.F.R.
3 § 1613.702(f). The district court held that Magee failed to
produce proof that he was capable of performing the essential
functions of the job, either with or without reasonable
accommodations.
Magee does not contest the district court's conclusion that
the essential functions of a Mailhandler include the ability to
work closely with others while processing mail. Rather, Magee
challenges the district court's conclusion that he could not
perform those functions, arguing that deposition testimony of two
of Magee's supervisors, when viewed in the light most favorable to
Magee, support an inference that Magee was capable of performing
his job.
The district court considered and rejected this argument.
Every doctor to examine Magee, including Magee's own psychiatrist,
concluded that he was unable to work in the stressful environment
of the Monroe post office. In light of this uncontradicted medical
evidence, strained inferences drawn from the deposition testimony
of Magee's supervisors do not raise a triable issue of fact. See
Chiari v. City of League City, 920 F.2d 311, 317 (5th Cir. 1991)
(affirming summary judgment in light of uncontradicted medical
testimony).
Magee next contends that, regardless of his condition in July
1994, he was capable of performing his job in June 1993. Moreover,
he contends that, even if he was not so capable, there is no
evidence of the unavailability of a reasonable accommodation in
June 1993. The first claims falls prey to the uncontradicted
4 medical opinions of two doctors that Magee was unable to perform
his job at that time.
The second claim falls prey to the fact that neither doctor
recommended any changes in Magee's work duties that would have
rendered him able to perform his job. Nor did Magee request any
accommodation from the Postal Service. To the contrary, Magee
sought Postmaster Smith's help in completing documentation for
disability retirement after he was notified of his off-duty status.
Magee cannot now complain that the Postal Service failed to
consider reasonable accommodations when he did not even request
such accommodation.
Finally, Magee claims that the district court erred by not
considering Magee's alternative claim of disparate treatment under
the Rehabilitation Act. The amended complaint did not clearly
allege a claim for disparate treatment. Even so, Magee did not
press this claim either in his motion for summary judgment or in
his opposition to the Postal Service's motion for summary judgment.
In short, Magee abandoned this claim, if it was ever asserted at
all. His belated attempt to resurrect it in his motion for
reconsideration of the district court's grant of summary judgment
is too little, too late. See Frietsch v.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30922
Summary Calendar
LIONEL WAYNE MAGEE, Plaintiff-Appellant,
versus
UNITED STATES POSTAL SERVICE and MARVIN RUNYON, Postmaster General, Defendants-Appellees.
Appeal from the United States District Court for the Western District of Louisiana (94-CV-1412)
February 15, 1996
Before HIGGINBOTHAM, DUHE’, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Lionel Wayne Magee appeals from the entry of summary judgment
in favor of the United States Postal Service and Marvin Runyon,
Postmaster General of the U.S. We have jurisdiction, 28 U.S.C.
§ 1291, and we affirm.
I.
Magee, a former employee of the Postal Service, sued the
Postal Service and the Postmaster General, alleging violations of
* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. the Rehabilitation Act, 29 U.S.C. § 791 et seq., and the Privacy
Act, 5 U.S.C. § 552a.
Magee began working for the Postal Service in June 1983 as a
Mailhandler. In 1992, Larry Fortsun, Magee's supervisor, referred
Magee to the Postal Service's Employee Assistance Program due to
concerns about his mental fitness for duty. Dr. J. Roderick
Hundley, Magee's own psychiatrist, diagnosed Magee as suffering
from Post Traumatic Stress Disorder, and Magee relayed this
information to his supervisors.
Michael Smith, the Postmaster of Monroe, learned of the
problems Magee had been having with work and his co-workers. In
June, 1993, Smith requested that Magee undergo a fitness for duty
examination. Dr. Rahn Sherman, a board-certified psychiatrist,
performed the examination and concluded that Magee was not fit for
duty due to his mental condition. Magee's own psychiatrist, Dr.
Hundley, concurred with the conclusions in Dr. Sherman's report.
Based on this report, Smith decided to place Magee on off-duty
status in July 1993. Magee sought Smith's assistance in applying
for disability retirement based on his condition. After six
months, Smith requested a second fitness for duty examination. Dr.
Anthony Young, a clinical psychologist, performed the exam in June
1994 and concluded that Magee could not work in "any kind of
stressful setting, whether that be from the work demands or the
interpersonal or social demands of the setting at the present
time."
2 After reviewing available positions, Smith concluded that
Magee's condition rendered him unfit to work as a Mailhandler and
that he could not be reasonably accommodated in the Monroe post
office. Smith removed Magee from his position on July 5, 1994, and
Donald Vercher, Smith's superior, advised Magee of his termination
on August 8, 1994.
Alleging discrimination based on disability, Magee appealed
his removal to the Merit Systems Protection Board. The Board
affirmed the decision to remove Magee but concluded that the Postal
Service had not given Magee a proper appeal when it placed him on
off-duty status in 1993. The Postal Service awarded Magee backpay
for that period. Magee did not appeal the Board's decision.
Magee filed this suit in August 1994. By an amended
complaint, Magee alleged violations of the Rehabilitation Act and
the Privacy Act. This district court granted summary judgment for
the defendants on all claims. Magee now appeals.
II.
To prevail under the Rehabilitation Act, Magee must prove that
1) he was an individual with a disability, 2) he was otherwise
qualified, 3) he worked for the United States Postal Service, and
4) he was adversely treated solely because of his disability. 29
U.S.C. § 794(a); Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th
Cir. 1993). A qualified individual is, inter alia, one "who, with
or without reasonable accommodation, can perform the essential
functions of the position in question without endangering the
health and safety of the individual or others." 29 C.F.R.
3 § 1613.702(f). The district court held that Magee failed to
produce proof that he was capable of performing the essential
functions of the job, either with or without reasonable
accommodations.
Magee does not contest the district court's conclusion that
the essential functions of a Mailhandler include the ability to
work closely with others while processing mail. Rather, Magee
challenges the district court's conclusion that he could not
perform those functions, arguing that deposition testimony of two
of Magee's supervisors, when viewed in the light most favorable to
Magee, support an inference that Magee was capable of performing
his job.
The district court considered and rejected this argument.
Every doctor to examine Magee, including Magee's own psychiatrist,
concluded that he was unable to work in the stressful environment
of the Monroe post office. In light of this uncontradicted medical
evidence, strained inferences drawn from the deposition testimony
of Magee's supervisors do not raise a triable issue of fact. See
Chiari v. City of League City, 920 F.2d 311, 317 (5th Cir. 1991)
(affirming summary judgment in light of uncontradicted medical
testimony).
Magee next contends that, regardless of his condition in July
1994, he was capable of performing his job in June 1993. Moreover,
he contends that, even if he was not so capable, there is no
evidence of the unavailability of a reasonable accommodation in
June 1993. The first claims falls prey to the uncontradicted
4 medical opinions of two doctors that Magee was unable to perform
his job at that time.
The second claim falls prey to the fact that neither doctor
recommended any changes in Magee's work duties that would have
rendered him able to perform his job. Nor did Magee request any
accommodation from the Postal Service. To the contrary, Magee
sought Postmaster Smith's help in completing documentation for
disability retirement after he was notified of his off-duty status.
Magee cannot now complain that the Postal Service failed to
consider reasonable accommodations when he did not even request
such accommodation.
Finally, Magee claims that the district court erred by not
considering Magee's alternative claim of disparate treatment under
the Rehabilitation Act. The amended complaint did not clearly
allege a claim for disparate treatment. Even so, Magee did not
press this claim either in his motion for summary judgment or in
his opposition to the Postal Service's motion for summary judgment.
In short, Magee abandoned this claim, if it was ever asserted at
all. His belated attempt to resurrect it in his motion for
reconsideration of the district court's grant of summary judgment
is too little, too late. See Frietsch v. Refco, Inc., 56 F.3d 825,
828 (7th Cir. 1995).
III.
Magee's Privacy Act claims fare no better. Magee alleges that
Postal Service officials violated his privacy rights through
various actions. Those actions include: 1) Smith's obtaining
5 Magee's medical records from Magee's private physician; 2)
releasing those records to Dr. Tony Young; 3) Vercher's receiving
a copy of Dr. Sherman's medical report; 4) Smith's receiving a copy
of Dr. Sherman's medical report; and, 5) Smith's maintaining a
secret file regarding Magee. We address each in turn.
Magee argues that Smith obtained Magee's medical records from
Dr. Hundley in violation of 39 C.F.R. § 266.4(a)(1)(ii), which
provides that postal official will "collect information, to the
greatest extent practicable, directly from the subject individual."
The district court rejected Magee's claim, holding that Smith had
satisfied the regulation by asking for these records after Magee
informed him of their existence and by seeking a subpoena for them
only after Magee refused to turn the records over to the Postal
Service. Magee concedes that he refused to turn over his medical
records to Smith when Smith asked for them. There was no error.
Magee next argues that the release of Magee's medical records
to Dr. Tony Young violated the Privacy Act. The district court
held that the Privacy Act permitted the release of records "to an
expert, consultant, or other person who is under contract to the
Postal Service to fulfill an agency function, but only to the
extent necessary to fulfill that function." 54 Fed.Reg. 43652-
01(2)(F). Magee's response that the release does not qualify under
this exception because Dr. Young was not a contract physician and
because he was retained to perform a one-time examination of Magee
is unavailing.
6 Magee's third and fourth claims center upon the partial
release of Dr. Sherman's medical report to Smith and Vercher. The
district court rejected Magee's claims, concluding that 5 U.S.C.
§ 552a(b)(1) allows disclosure "to those officers and employees of
the agency . . . who have a need for the record in the performance
of their duties." Magee does not contest that Smith and Vercher
have a need for the record as part of their duty to manage Postal
Service employees under their supervision, nor does Magee address
the controlling effect of the statute's own language. Rather, he
alleges that Smith and Vercher violated the Privacy Act because
they did not follow the procedure for requesting medical records as
provided by internal Postal Service rules not published in the Code
of Federal Regulations. We doubt that the violation of these
internal rules states a claim under the Privacy Act. Even so, we
cannot ignore the clear mandate of the Privacy Act itself.
Finally, Magee claims that Smith maintained a secret file in
his desk drawer regarding Magee in violation of 39 C.F.R.
§ 268.1(b), which provides that "[n]o employee will maintain a
secret system of records about individuals." The record, viewed in
the light most favorable to Magee, only shows that Smith retained
copies of relevant documents regarding Magee during the pending
review of Magee's employment status. Moreover, Magee knew of the
file's existence and had discussed the file's security with Smith.
In short, Smith's limited file-keeping was not a "secret system of
records about individuals."
AFFIRMED.