Summary Calendar BELINDA L. GROSSKOPF v. Postmaster John E. Potter

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-51397
Summary Calendar
BELINDA L. GROSSKOPF
Plaintiff-Appellant
v.
POSTMASTER JOHN E. POTTER; SAN ANTONIO ALAMO AREA LOCAL
AMERICAN POSTAL WORKERS UNION AFL-CIO
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
No. 5:05-CV-836
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiff Belinda Grosskopf appeals the dismissal of her claims against the
Postmaster under Title VII and the Rehabilitation Act. She also appeals the
dismissal of her claims of race and gender discrimination and violation of the
ADA against the Postal Workers Union. The district court dismissed Grosskopf’s
United States Court of Appeals
Fifth Circuit
F I L E D
July 28, 2008
Charles R. Fulbruge III
Clerk

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No. 07-51397
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claims on the defendants’ Motions to Dismiss and for Summary Judgment based
on the Memorandum and Recommendation of the Magistrate Judge. We affirm.
Grosskopf’s complaint against the Postmaster under Title VII arises from
a change in her scheduled days off in November 2003 that resulted in her being
required to work six consecutive days. Because her medical restrictions
prevented her from working more than five days in a row, she used a day of
medical leave to avoid working more than five days in a row. We agree with the
Memorandum and Recommendation of the Magistrate Judge that a change in
Grosskopf’s scheduled days off does not constitute an adverse employment action
and Grosskopf cannot make a prima facie case of employment discrimination
under Title VII. Watts v. Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999).
Grosskopf’s claims under the Rehabilitation Act against the Postmaster
also fail. A claim under the Rehabilitation Act requires that the plaintiff make
a prima facie showing that she is an individual with a disability. Hileman v.
City of Dallas, 115 F.3d 352, 353 (5th Cir. 1997). “An individual with a disability
is any person who (1) has a physical or mental impairment which "substantially
limits one or more of such person's major life activities"; (2) has a "record" of
such an impairment; or (3) is "regarded" as having such an impairment. 29
U.S.C. § 706(8)(B) (West Supp.1997).” Id. “A physical or mental impairment that
affects the claimant's ability to engage in a narrow range of jobs only or a
particular job alone does not "substantially limit" one or more major life
activities.” Id. The evidence submitted by Grosskopf of her physical limitations
does not establish that her physical impairment substantially limits a major life
activity. In addition, nothing in Grosskopf’s summary judgment evidence raises
a fact question about whether the Postal Service regarded her as having a
“disability” as defined above.
Grosskopf’s claims against the Union meet a similar fate. Her claim under
Title VII against the Union based on race fails for failure to exhaust.

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No. 07-51397
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Grosskopf’s charge filed with the EEOC does not include a complaint about
discrimination on the basis of race. Grosskopf’s claim based on gender
discrimination by the Union fails because she failed to present evidence that
raises a fact question about whether the Union’s reason for not pursuing a
grievance on her behalf was a pretext for gender discrimination. We agree with
the Magistrate Judge that the summary judgment evidence shows that male
employees were treated in the same manner as Grosskopf - that is, the Union
pursued a grievance on behalf of any employee who did not receive 28 days
notice of a change in their scheduled days off. Grosskopf received the required
notice.
Finally, Grosskopf’s claims against the union for discrimination under the
ADA fail for failure to establish a prima facie case. As stated above, Grosskopf
failed to establish that her physical limitations result in a physical impairment
that substantially limits a major life activity or that the Union treated her as
disabled.
For the reasons stated above and in the Magistrate Judge’s Memorandum
and Recommendation on Defendant’s Motions to Dismiss and for Summary
Judgment dated August 22, 2007 and adopted by the district court on October
24, 2007, we affirm.
AFFIRMED.

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