Della Shultz v. John E. Potter, Postmaster General of the United States Postal Service on Appeal…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4227
DELLA SHULTZ,
Appellant,
v.
JOHN E. POTTER, POSTMASTER GENERAL
OF THE UNITED STATES POSTAL SERVICE
ON APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(Dist. Court No. 03-CV-00090)
United States Magistrate Judge: Keith A. Pesto
Submitted Under Third Circuit LAR 34.1(a)
July 15, 2005
(Filed: August 4, 2005)
Before: ALITO, VAN ANTWERPEN, and ALDISERT, Circuit Judges

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Plaintiffs can prove that they have a disability in three ways. “Disability means,1
with respect to an individual – (1) A physical or mental impairment that substantially
limits one or more of the major life activities of such individual; (2) A record of such
impairment; or (3) being regarded as having such an impairment.” 29 C.F.R. § 1630.2(g).
Shultz focuses on the first definition. She obliquely references the second, and does not
mention the third in her appellate brief or her complaint. We therefore conclude that she
is not advancing a “regarded as” claim.
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PER CURIAM:
Della Shultz sued her employer, the United States Postal Service, for disability
discrimination and retaliation. The District Court granted summary judgment for the
Postal Service on both counts. We review summary judgment grants de novo, viewing all
facts in the light most favorable to, and drawing all justifiable inferences in favor of, the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-51 (1986). As
we write solely for the parties, we need not relate the facts.
Shultz argues that the District Court erred when it denied her claim under § 501 of
the Rehabilitation Act of 1973, 29 U.S.C. § 791, which “forbids [federal] employers from
discriminating against persons with disabilities in matters of hiring, placement, or
advancement.” Shiring v. Runyon, 90 F.3d 827, 830-31 (3d Cir. 1996). To make out a
prima facie case of discrimination under the Rehabilitation Act, Schultz must first prove
that she has a “disability,” as that term is defined by the Act. See Mengine v. Runyon,1
114 F.3d 415, 418 (3d Cir. 1997).
Here, Shultz contends that she has a “disability” because she has a form of
diabetes. According to the District Court, the “only major life activity that Shultz

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Sutton involves the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C.2
§ 12111 et seq. “The Rehabilitation Act provides that the standards of the [ADA] are to
be used in determining whether the Rehabilitation Act has been violated in the
employment context.” Branham v. Snow, 392 F.3d 896, 902 (7th Cir. 2004); 29 U.S.C. §
794(d).
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testified was affected by her diabetes is eating.” App. at 14a. But her condition has no
significant effect on her diet: it merely requires her “to watch what she eats more
carefully,” have a snack if her blood sugar is low, and take insulin if it becomes too high.
Id. Shultz has been hospitalized because of diabetes three times in fifteen years, and she
claims that she “came close to passing out” while on the job just once, over five years
ago. Id. at 33a.
“A person whose physical or mental impairment is corrected by medication or
other measures does not have an impairment that presently ‘substantially limits’ a major
life activity.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 482-83 (1999). In2
considered dictum, the Supreme Court has stated that it “is contrary to both the letter and
the spirit” of the ADA (and therefore the Rehabilitation Act) to deem a “diabetic whose
illness does not impair his or her daily activities . . . disabled simply because he or she has
diabetes.” Id. at 483-84. Since Shultz has not produced sufficient evidence to convince a
reasonable jury that any of her major life activities is substantially impaired, we affirm.
Even if Shultz were disabled, her supervisor offered several reasonable alternative
locations for testing her blood. See 29 C.F.R. 1630.9(d) (disabled employee will not be
considered a qualified individual with a disability if she “rejects a reasonable

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4
accommodation”). It is uncontroverted that he offered use of his own office or the
women’s restroom, among other places, adding that he would “provide whatever she
needed” to make the restroom suitable for testing purposes. App. at 198a. Shultz turned
down these offers without a reasonable explanation, and therefore cannot be considered a
“qualified individual with a disability.” See Keever v. City of Middletown, 145 F.3d 809,
811-12 (6th Cir. 1998).
Shultz also argues that her employer retaliated against her for “enforcing her rights
with the Equal Employment Opportunity Office.” App. at 36a. The District Court
properly limited Shultz’s allegations to two paper suspensions, because these were the
only incidents raised in her administrative complaint. See Spence v. Straw, 54 F.3d 196,
200-01 (3d Cir. 1995); Haithcock v. Frank, 958 F.2d 671, 676 (6th Cir. 1992). The first
suspension was not retaliatory because it took place before she complained of disability
discrimination, not after. And, as the District Court found, Shultz’s second suspension
was imposed because she was at fault in a motor vehicle accident and left the scene
without following proper procedures. See App. at 9a-10a. Though Shultz produced
evidence that other employees who committed similar transgressions were not given
paper suspensions, none of them had a prior history of disciplinary actions. Id. at 21a.
Without additional evidence, no reasonable jury could ignore the Postal Service’s
legitimate reasons for the suspension in favor of Shultz’s unsupported allegations of
retaliation.

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For the foregoing reasons, the judgment of the District Court is affirmed.

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