Deirdre A. Simon v. JOHN E. POTTER, POSTMASTER GENERAL On Appeal from the United States District Court…

The Honorable Jane A. Restani, Chief Judge of the United States Court of*
International Trade, sitting by designation.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3687
DEIRDRE A. SIMON,
Appellant
v.
JOHN E. POTTER,
POSTMASTER GENERAL
On Appeal from the United States District Court
for the District Court of New Jersey
District Court No. 2-04-cv-03752
District Judge: The Honorable Joseph A. Greenaway
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 23, 2009
Before: BARRY, SMITH, Circuit Judges
and RESTANI, Judge.*
(Filed: June 24, 2009)
OPINION
SMITH, Circuit Judge.

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Defendant, John E. Potter, is the Postmaster General; we refer to defendant as the1
“Postal Service.”
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This appeal involves a claim of disability-based discrimination brought under the
Rehabilitation Act of 1973. Deidre Simon sued her former employer, the United States
Postal Service, alleging that she was wrongfully terminated from her employment in1
March 2001 because she was disabled. The United States District Court for the District of
New Jersey granted the Postal Service’s motion for summary judgment after determining
that Simon was not a disabled individual under the Rehabilitation Act and that, even if
Simon could qualify as disabled, the Postal Service had terminated her employment for a
legitimate and non-discriminatory reason: Simon was frequently absent without leave,
sometimes for months at a time. Because the Postal Service terminated Simon’s
employment for a legitimate and non-discriminatory reason, and the record contains no
evidence to create a genuine issue of material fact on this point, we will affirm.
I.
The root of Simon’s claim reaches back nearly 20 years to December 1990. At that
time, she had been employed by the Postal Service for several years. Simon alleges that,
on December 21, 1990, a mail hamper rolled into her and knocked her backwards. She
reported the incident five days later, alleging that she had strained her back when she fell
and that she had suffered contusions. Simon received lost pay and medical benefits, and
did not return to work for more than a year. When she finally returned to work in 1992,
she was assigned light duty sorting letters. She remained on light duty for the remainder

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of her career with the Postal Service.
On April 27, 2000, the Postal Service issued Simon a notice of removal for failing
to report to work without justification. Simon’s union responded with a grievance. The
Postal Service settled the grievance by agreeing to expunge Simon’s notice of removal in
exchange for Simon’s agreement to submit medical documentation explaining her
absences and supporting her contention that she could only work light duty on a reduced
schedule. Simon returned to work on June 16, 2000 with a note from Dr. Daisy De
Guzman. Dr. De Guzman’s note stated that Simon was physically and mentally fit but that
she should be assigned light duty tasks and that she should not work more than four hours
a day. The Postal Service accommodated these constraints.
Nevertheless, Simon reported to work sporadically over the next few days and then
never reported to work again after June 26, 2000. Simon’s supervisor, Ricky Lam, sent
letters to Simon on July 13 and 14, 2000. These letters requested medical documents to
justify Simon’s prolonged absence. Lam followed up these letters with a third letter on
August 1, 2000, inviting Simon to meet and discuss her situation.
On August 16, 2000, Lam met with Simon and a representative from her union.
Simon explained that she was unable to work as a result of the 1990 mail hamper injury.
But Simon did not produce any medical documentation to justify her absence. She
subsequently obtained another note from Dr. De Guzman, dated August 21, 2000,
explaining that De Guzman was treating her for hypertension and depression and that
Simon was not able to lift more than ten pounds. De Guzman’s note did not state that

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Simon was not fit to work, however.
Lam issued Simon a notice of removal on September 8, 2000. Lam’s reason for
terminating Simon’s employment was that she had failed to report to work from July 1 to
September 2, 2000 and that she had failed to provide adequate justification for her
absence.
In October 2000, Simon’s union filed another grievance on her behalf to challenge
Simon’s latest notice of removal. The union’s grievance went to arbitration. On March 8,
2001, the arbitrator upheld the termination of Simon’s employment in view of her
unjustified absences. The Postal Service terminated Simon’s employment on March 8,
2001.
Nineteen months later, on October 15, 2002, Simon filed a complaint in the
United States District Court for the District of New Jersey against the Postal Service. The
District Court dismissed the complaint on September 16, 2003, but suggested that Simon
might amend her complaint to assert a disability discrimination claim under the
Rehabilitation Act. In its opinion, the District Court noted that Simon must exhaust
administrative remedies, which usually required contacting an Equal Employment
Opportunity (EEO) counselor within 45 days of the alleged discrimination. On November
6, 2003, Simon filed an amended complaint asserting a claim under the Rehabilitation Act
without having pursued any administrative remedies. The District Court dismissed
Simon’s complaint on May 5, 2004.
Simon then filed the instant action on August 10, 2004 after the Postal Service’s

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Because we will affirm the District Court’s judgment in favor of the Postal2
Service on the ground that the termination of Simon’s employment was legitimate and
non-discriminatory, we need not address the merits of the Postal Service’s cross-appeal.
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EEO office rejected her complaint as time-barred. After discovery, the Postal Service
moved for summary judgment on three grounds: 1) Simon failed to timely exhaust her
administrative remedies; 2) the evidence did not permit an inference that Simon was a
person with a disability; and 3) the Postal Service terminated Simon’s employment
because of her prolonged and unjustified absences and not for an unlawful reason. The
District Court rejected the time-bar argument but granted summary judgment based on the
second and third grounds. Simon now appeals from the District Court’s judgment
regarding her status as a person with a disability and the Postal Service’s motive for
terminating her employment. The Postal Service cross-appeals from the District Court’s
judgment on Simon’s failure to timely exhaust administrative remedies.2
II.
We exercise jurisdiction under 28 U.S.C. § 1291. Our review of the District
Court’s grant of summary judgment is plenary, and we assess the record using the same
summary judgment standard as the District Court. Gardner v. State Farm Fire & Cas.
Co., 544 F.3d 553, 557 (3d Cir. 2008) (citations omitted). Summary judgment is
appropriate when the “pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
III.

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In making this assumption, we express no view as to whether Simon could make3
out a prima facie case, and, in particular, whether she could establish that she has a
disability. See Wishkin, 476 F.3d at 184–85.
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The well-known McDonnell Douglas burden-shifting framework applies to claims
brought pursuant to Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.
§ 791. Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007). Under this framework, Simon
has the initial burden to make a prima facie case of discrimination. The Postal Service
must then rebut her prima facie case by articulating a legitimate, nondiscriminatory reason
for terminating Simon’s employment. Id. If the Postal Service succeeds, the burden shifts
back to Simon to show that the Postal Service’s proffered reason was actually only
pretext. Id.
A plaintiff who has made out a prima facie case may defeat a motion for summary
judgment by either “(i) discrediting the employer’s proffered reasons, either
circumstantially or directly, or (ii) adducing evidence, whether circumstantial or
direct, that discrimination was more likely than not a motivating or determinative
cause of the adverse employment action.”
Id. (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).
Assuming that Simon could make out a prima facie case, she nevertheless cannot3
show that the Postal Service’s proffered reason for terminating her employment was only
pretext. The Postal Service explained that it terminated Simon’s employment because she
frequently did not show up to work and she did not present adequate medical
documentation justifying her absences. In particular, Simon did not report to work
between July 1 and September 2, 2000 even though she had been declared physically and
mentally fit by her own physician as recently as June 16, 2000. Moreover, Simon’s

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Simon also argues that De Guzman’s August 21, 2000 note was timely notice to4
the Postal Service regarding Simon’s prolonged absence. Simon makes this argument to
suggest that Lam was inconsistent in explaining the reason for terminating Simon’s
employment. At deposition, Lam explained that De Guzman’s August 21 note was
inadequate to justify Simon’s prolonged absence. He referred to the time lapse between
June 27, 2000, when Simon allegedly was first incapable of going to work that summer,
and August 21, 2000, when Simon finally went to a doctor to get a note. Lam queried
whether someone who was really incapacitated would wait nearly two months before
visiting a doctor. Thus, he did not reject the August 21 note as untimely notice to the
Postal Service. Rather, he observed that the time lapse tended to diminish the urgency of
Simon’s incapacity. Regardless of the timeliness of Simon’s notice, however, neither the
August 21 note, nor the testimony of Postal Service supervisors, creates a genuine issue
of material fact as to the Postal Service’s motive in terminating Simon’s employment.
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unjustified absence during the summer of 2000 was not new but rather part of a pattern of
absenteeism.
Simon argues that the issue of her absenteeism was only a pretext and that the
Postal Service actually terminated her employment because she was disabled. To support
her argument, she refers to Dr. De Guzman’s medical notes from June and August 2000,
and an incidental comment her supervisor made when he was deposed for litigation.4
The medical notes do not help Simon. Dr. De Guzman’s June 16, 2000 note
actually undermines Simon’s argument. That note states that Simon was physically and
mentally fit and indicates that Simon may be assigned light duty. Similarly, Dr. De
Guzman’s August 21, 2000 note is of no avail to Simon as it does not state that Simon
was not fit for work. Rather, it indicates that Simon was under her care for depression and
hypertension and that Simon was unable to lift more than ten pounds.
Nor does a comment made by Simon’s supervisor during a deposition discredit the
Postal Service’s reason for termination or suggest that, more likely than not, it was

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In view of our determination that Simon’s employment was terminated for a5
legitimate and non-discriminatory reason, we need not address the question of whether
she qualifies as disabled for purposes of the Rehabilitation Act.
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motivated by a discriminatory intent. In response to a question about what tasks the Postal
Service assigned to a person with very limited mobility, Lam referred to the disabled as
“cripples.” Simon argues that Lam’s use of this term reveals discriminatory animus.
Simon points to no other incident or speech that could suggest that her supervisor, or
anyone else at the Postal Service, was motivated by a discriminatory intent. Lam’s
response at deposition was to explain how the Postal Service accommodates employees
who could not lift, bend, twist, stand, or pull. Although we acknowledge that Lam’s
comment is clumsy at best and perhaps insensitive, it does not show that Lam was more
likely than not motivated by a discriminatory intent.
In reviewing the record before us, we conclude that Simon fails to discredit the
Postal Service’s reason for terminating her employment. She also fails to adduce evidence
that discrimination was more likely than not a motivating or determinative cause of her
termination. We will, therefore, affirm the District Court’s judgment that the Postal
Service terminated Simon’s employment for a legitimate and non-discriminatory reason.5

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