Daniel McCook Brewer v. UNITED STATES POSTAL SERVICE; LOUIS DEJOY, Postmaster General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL MCCOOK BREWER,
Plaintiff-Appellant,
v.
UNITED STATES POSTAL SERVICE;
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.
No. 22-35267
D.C. No.
3:18-cv-00170-TMB
MEMORANDUM*
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).
FILED
JUL 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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.

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