JAMES J. KANIA, A Pennsylvania Resident v. JOHN E. POTTER, Postmaster General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1326
JAMES J. KANIA,
A Pennsylvania Resident,
Appellant
v.
JOHN E. POTTER, Postmaster
General of the United States
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 2-07-cv-00713)
District Judge: Honorable Gary L. Lancaster
Submitted Under Third Circuit LAR 34.1(a)
November 9, 2009
Before: AMBRO, GARTH, and ROTH, Circuit Judges
(Opinion filed: December 22, 2009)
OPINION
AMBRO, Circuit Judge
James J. Kania appeals the District Court’s grant of summary judgment to the
United States Postal Service on his claims for disability discrimination and retaliation

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The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction1
under 28 U.S.C. § 1291.
2
under the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. We affirm.1
I.
Kania is a letter carrier for the Postal Service at its Woods Run Station in Bellevue,
Pennsylvania. In January 2004, he began suffering lower back pain and was diagnosed
with facet syndrome, a condition that causes degeneration of cartilage between the discs
of the lower back. Kania received Family Medical Leave Act (“FMLA”) certifications
for more than 400 hours of missed work due to his back pain between March 2004 and
June 2005. In May and June of 2005, he underwent lumbar facet nerve blocks and a
lumbar facet rhizotomy, which decreased his pain levels.
In September 2005, a route examiner observed that Kania was unable to maintain
“an acceptable walking pace” while on his route, and witnessed Kania take the
prescription narcotic oxycodone. As a result, Lauren Alt, the Customer Service Manager
for the Woods Run Station, placed Kania on limited duty pending the results of a fitness-
for-duty medical examination. Kania complained to Alt and another supervisor, Ronda
Lavezoli, that he was “being treated unfairly due to [his] disability,” and demanded that
he be reinstated to his full-time duties as a letter carrier. He also filed grievances
challenging his placement on limited duty and seeking back pay for the hours of work
missed while on limited duty. During this time, Kania remodeled his own home and his

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3
son’s home, projects that included installing siding and new floors, painting, wiring, and
renovating a bathroom.
In late 2005, Kania was examined by three physicians, each of whom concluded
that Kania was capable of performing the essential functions of his job and should be
reinstated to full-time work as a letter carrier. After receiving these reports, the Postal
Service returned Kania to full-time duty in December 2005. Shortly thereafter, Kania and
the Postal Service settled Kania’s grievances, and he was granted full back pay.
In February 2006, another supervisor of Kania, Norbert Graf, issued him a letter of
warning for missing scan points on his delivery route on February 21, 2006. When Kania
complained to Graf that he had not missed any scan points on that date, Graf allegedly
told Kania that Lavezoli and Alt had forced Graf to issue the discipline because they were
upset that Kania had filed grievances.
In March 2006, Kania expressed interest in a position in the maintenance
department at the Postal Service’s General Mail Facility in Pittsburgh. Two months later,
he was notified that he was being “canvassed” for a position in the maintenance
department. Because Kania was the only current Postal Service employee who had
expressed interest in the position, his was the only application that was initially
considered.
Kania informed Lavezoli and Michael Graf, the Acting Manager of the Woods
Run Station (and Norbert Graf’s brother), of his intention to transfer to the maintenance

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department. Two days later, Lavezoli issued Kania a seven-day suspension for
unauthorized overtime taken in late April 2006. Kania, however, was on authorized leave
on the dates identified by Lavezoli. Kania confronted Lavezoli about the erroneous basis
for the suspension, and Lavezoli rescinded the suspension. However, he reissued the
suspension for different dates on which Kania allegedly took unauthorized overtime. The
newly identified dates, however, did not appear on the Postal Service’s records of
overtime taken by Kania.
James DeLeonibus, a Manager of Maintenance Operations at the General Mail
Facility, was instructed by Thomas Graf, the Maintenance Manager for the General Mail
Facility (and another brother of Norbert Graf), to review Kania’s application. Among the
documents in Kania’s file were (1) records of the letter of warning and seven-day
suspension Kania received in 2006, and (2) an evaluation from Lavezoli, in which she
stated that Kania was “willing to work but cannot complete his duties in a timely
manner.” DeLeonibus rejected Kania’s application because his work record was
“unsatisfactory,” as he had “current” discipline in his record. In his deposition,
DeLeonibus confirmed that he rejected Kania’s application solely because Kania had a
record of “live” discipline.
Kania filed a formal Equal Employment Opportunity complaint in September
2007, alleging that he had suffered disability discrimination and retaliation when he was
not selected for the maintenance position. After his claim was denied in February 2007,

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Kania concedes on appeal that he failed to exhaust his administrative remedies as to2
these claims.
We review a grant of summary judgment de novo, using the same standards as the3
District Court. Jakimas v. Hoffmann-LaRoche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).
We view the facts in the light most favorable to the nonmoving party. Id.; Erie
5
Kania filed suit in the District Court for the Western District of Pennsylvania, alleging
disability discrimination, retaliation, and hostile work environment arising not only out of
his non-selection for the maintenance position, but also his placement on limited duty in
2005 and the discipline imposed on him in February and May 2006.
In November 2007, the District Court dismissed Kania’s claims to the extent they
involved actions other than his non-selection for the maintenance position, as Kania had
not filed EEO complaints regarding his placement on limited duty or the discipline
imposed in 2006. Following discovery, the Magistrate Judge recommended that2
summary judgment be granted in favor of the Postal Service on the disability
discrimination and retaliation claims of Kania because he had failed to establish a prima
facie case for either. The District Court approved and adopted the Magistrate Judge’s
report and recommendation in entering judgment in favor of the Postal Service. Kania
timely appealed.
II.
Kania argues that the District Court improperly granted summary judgment to the
Postal Service on his claims for disability discrimination and retaliation. We address each
claim in turn.3

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Telecomms. Inc. v. City of Erie, 853 F.2d 1084, 1093 (3d Cir. 1988). A party is entitled to
summary judgment only “if 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)(2).
The Rehabilitation Act provides in pertinent part: “No otherwise qualified individual4
with a disability in the United States . . . shall, solely by reason of her or his disability, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance or under any program
or activity conducted by any Executive agency or by the United States Postal Service.”
29 U.S.C. § 794(a).
On September 25, 2008—after the USPS had moved for summary judgment, but5
before Kania had responded—President George W. Bush signed into law the ADA
Amendments Act of 2008 (the “Act”), which took effect on January 1, 2009. Pub. L. No.
110-325, 122 Stat. 3553, 3559. The Act expands the definition of “disability” under the
6
III.
To establish a prima facie case of disability discrimination under the Rehabilitation
Act, a plaintiff must show that he (1) has a “disability,” (2) is otherwise qualified to4
perform the essential functions of the job, with or without reasonable accommodations,
and (3) was nonetheless prevented from performing the job. Wishkin v. Potter, 476 F.3d
180, 184–85 (3d Cir. 2007) (quoting Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996)).
The Rehabilitation Act defines an “individual with a disability” as someone who (1) has a
physical or mental impairment that substantially limits his/her major life activities, (2) has
a record of such an impairment, or (3) is regarded as having such an impairment. 29
U.S.C. § 705(20)(B); 42 U.S.C. § 12102(1). The District Court determined that Kania
failed to establish the first element of his prima facie case because he did not qualify as
an “individual with a disability” under any of these definitions. We agree.5

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ADA and the Rehabilitation Act. See id. § 4(a), 122 Stat. at 3555 (“The definition of
disability in this Act shall be construed in favor of broad coverage of individuals”). At
our request, the parties submitted supplemental letter briefs addressing the effect of the
Act, if any, on Kania’s claims. Although he submitted a supplemental letter brief, Kania
did not address whether the Act applies retroactively.
We have little difficulty concluding that it does not apply retroactively. First, the
Act lacks any “express command” that it is to be applied retroactively. Landgraf v. USI
Film Prods., 511 U.S. 244, 280 (1994). Indeed, it appears to contain an “express
command” that it not apply retroactively, as Congress delayed its effective date by two
months. See Lytes v. DC Water & Sewer Auth., 572 F.3d 936, 940 (D.C. Cir. 2009) (“By
delaying the effective date of the [Act], the Congress clearly indicated the statute would
apply only from January 1, 2009 forward.”). In addition, the Act affects “substantive
rights, liabilities, or duties,” as it substantially broadens the definition of “disability,” and
thus expands the class of employees entitled to protection under the Rehabilitation Act.
See Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 (2006) (in the absence of an express
statutory command, courts must consider whether applying the statute “would have a
retroactive consequence in the disfavored sense of ‘affecting substantial rights, liabilities,
or duties [on the basis of] conduct arising before [the statute’s] enactment’”) (quoting
Landgraf, 511 U.S. at 278) (first alteration in original). Accordingly, we join those
Courts of Appeals that have addressed the issue and concluded that the Act does not
apply retroactively. See Becerril v. Pima County Assessor’s Office, --- F.3d ---, 2009 WL
4067450, at *2 (9th Cir. 2009); Fredricksen v. United Parcel Serv., 581 F.3d 516, 521 n.1
(7th Cir. 2009); Lytes, 572 F.3d at 939–42; Milholland v. Summer County Bd. of Educ.,
569 F.3d 562, 565–67 (6th Cir. 2009); EEOC v. Agro Distribution, LLC, 555 F.3d 462,
469 n.8 (5th Cir. 2009).
7
A. Actual Disability
A “substantial[] limit[ation]” is a significant restriction on a major life activity “as
compared to . . . the average person in the general population.” Toyota Motor Mfg., Ky.,
Inc. v. Williams, 534 U.S. 184, 195–96 (2002) (quoting 29 CFR § 1630.2(j) (2001)). A
major life activity is one that is “of central importance to daily life,” id. at 197, such as
“caring for oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working,” 29 C.F.R. § 1630.2(i), as well as “sitting, standing,

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As stated in 29 C.F.R. § 825.702(b), a “serious health condition” under the FMLA is6
a “different concept[]” than the term “disability,” and “must be analyzed separately.”
8
lifting [and] reaching.” Kralik v. Durbin, 130 F.3d 76, 78–79 (3d Cir. 1997) (quoting 29
C.F.R. § 1630 app.) (alteration in original).
Kania argues that he presented sufficient evidence that he is “substantially
limit[ed]” in the major life activities of walking, standing, and working. But despite his
diagnosis of facet syndrome, the record reveals no doctor who has placed a physical
limitation on Kania. He continues to work as a letter carrier, which requires standing and
walking for several hours a day. Moreover, Kania testified in deposition that he is able to
drive a car, do limited jogging and running, shop, and care for his son. Kania also
testified that he is able to function even when his back pain is sharp. In light of these
facts, we agree with the District Court that Kania does not meet the “demanding standard
for qualifying as disabled.” Toyota Motor Mfg., 534 U.S. at 197.
In response, Kania emphasizes the FMLA certifications he received for more than
400 hours of missed work in 2004–2005, before his non-selection for the maintenance
position. However, we evaluate whether a person is disabled “from the point at which6
the alleged discriminatory decision was made”—here, August 2006. Bowers v. NCAA,
475 F.3d 524, 535–36 (3d Cir. 2007). In May and June of 2005, Kania underwent
procedures that “dramatically” reduced his pain level: in May 2005, he reported a 70%
reduction in pain, and in July 2005, he described his pain level as a two on a scale of one

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to ten. Moreover, Kania engaged in significant physical labor in 2005 and 2006,
including remodeling two homes. This activity belies Kania’s claim that he was
substantially limited in a major life activity at the time of his non-selection.
Kania also places great weight on the March 2008 report of Dr. Patrick N. Smith,
an orthopedic surgeon, who stated that he “fe[lt] that [the facet syndrome] seems to
interfere with [Kania’s] abilities to perform certain activities, particularly as it relates to
his occupation,” and that Kania’s condition could deteriorate “over the next several years”
unless he switched to an “occupation with less physical demands.” Dr. Smith’s 2008
opinion that facet syndrome “seems to interfere” with Kania’s ability to work is not
enough to create a genuine issue of material fact as to whether Kania was substantially
limited in the major life activity of working in August 2006. The possibility that Kania’s
facet syndrome could worsen in the future is also insufficient to show that he was
disabled in August 2006. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999)
(“[A] person [must] be presently—not potentially or hypothetically—substantially limited
in order to demonstrate a disability.”).
Finally, even accepting that Kania experiences limitations on his ability to work as
a letter carrier, he has not demonstrated that these limitations make him “unable to work
in a broad class of jobs.” Id. at 491 (emphasis added); see also id. at 492 (“To be
substantially limited in the major life activity of working, . . . one must be precluded from
more than one type of job, a specialized job, or a particular job choice.”). Accordingly,

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Because we believe that Kania’s impairment does not qualify as a “disability” under7
the Rehabilitation Act, we also agree with the District Court that he has not proven the
existence of a “record” of disability. See Tice v. Centre Area Transp. Auth., 247 F.3d
506, 513 (3d Cir. 2001) (“A plaintiff attempting to prove the existence of a ‘record’ of
disability still must demonstrate that the recorded impairment is a ‘disability’ . . . .”).
10
we conclude that the District Court correctly determined that Kania was not disabled.7
B. Regarded As Having a Disability
We also conclude that Kania failed to demonstrate that the Postal Service
“regarded” him as having a disability. He argues that his supervisor’s ordering a fitness-
for-duty examination, after learning of Kania’s inability to maintain an “acceptable
walking pace,” creates a genuine issue of material fact whether the Postal Service
regarded him as being disabled. But an employer’s direction that an employee undergo a
medical examination “only establishes that the employer harbors doubts (not certainties)
with respect to an employee’s ability to perform a particular job,” and those doubts “alone
do not demonstrate that the employee was held in any particular regard.” Tice, 247 F.3d
at 515; see also Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir. 1996) (that plaintiff’s
employer was aware of his visible walking impairment was insufficient to show the
employer regarded the employee as disabled). Indeed, when three physicians cleared
Kania to return to his full-time duties as a letter carrier, the Postal Service reinstated him.
Moreover, we know of no evidence suggesting that DeLeonibus (the relevant
decision-maker) had any knowledge that Kania had a physical impairment. DeLeonibus
testified that he was completely unaware of Kania’s medical problems when he reviewed

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In Olson v. General Electric Astrospace, 101 F.3d 947 (3d Cir. 1996), we held that8
although the decision-maker was unaware of the plaintiff’s alleged disability, the plaintiff
could still demonstrate that he was “regarded as” having a disability because: (1) the
supervisor who had knowledge of the plaintiff’s impairment was “directly involved in the
hiring process,” and (2) the hiring decision was based largely on that supervisor’s
recommendation, in which the supervisor “made multiple references to the fact that [the
plaintiff] had missed a significant amount of work because of illness.” Id. at 954.
There is no similar basis on which to impute the alleged knowledge of Kania’s
supervisors to DeLeonibus. Those supervisors were not involved in the hiring process,
and DeLeonibus never spoke with them when he reviewed Kania’s file. Although the file
included an evaluation from Lavezoli in which she stated that Kania was “willing to
work, but cannot complete his duties in a timely manner,” no reference was made to
Kania’s impairment.
11
his application and decided not to select him for the maintenance position, and did not
communicate with Kania’s supervisors during his review.8
Kania nonetheless points to “circumstantial evidence” suggesting that DeLeonibus
was aware of his alleged impairment. For example, Kania claims that the month-long gap
between DeLeonibus’ receipt of his application and the decision not to select Kania
suggests that DeLeonibus communicated with Kania’s supervisors during this period and
was informed of his disability. This is speculation, and it is insufficient to defeat
summary judgment. See Geraci v. Moody-Tottrup, Int’l, Inc., 82 F.3d 578, 582 (3d Cir.
1996) (speculation that members of management “lied about their lack of knowledge” of
plaintiff’s pregnancy was insufficient to create a genuine issue of material fact); Hedberg
v. Ind. Bell Tel. Co., 47 F.3d 928, 931–2 (7th Cir. 1995) (speculation about employer’s
knowledge of plaintiff’s disability did not create a genuine issue of material fact;
“instead, it create[d] a false issue, the demolition of which is a primary goal of summary

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12
judgment”).
In sum, we conclude that the District Court properly entered summary judgment in
favor of the Postal Service on Kania’s disability discrimination claim.
III.
To establish a prima facie case of retaliation, a plaintiff must demonstrate that (1)
he engaged in protected activity, (2) his employer took an adverse employment action
against him, and (3) there was a causal connection between his protected activity and the
adverse employment action. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir.
1997). Kania claims that his non-selection for the maintenance position was in retaliation
for two protected actions: (1) his complaint to Alt that he was “being singled out because
of [his] disability” when he was ordered to undergo a fitness-for-duty examination; and
(2) his filing of grievances challenging his placement on limited duty. The District Court
agreed that these acts qualified as protected activity, but concluded that Kania had not
established a causal connection between that protected activity and his non-selection for
the maintenance position.
We agree with the Court. Generally, a plaintiff may establish the requisite causal
nexus by demonstrating either “(1) an unusually suggestive temporal proximity between
the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism
coupled with timing.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d
Cir. 2007). Kania has demonstrated neither. First, his not getting the maintenance

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position occurred 11 months after his grievances and complaint to Alt. See Andreoli v.
Gates, 482 F.3d 641, 650 (3d Cir. 2007) (five-month gap was insufficient to establish a
causal connection between protected activity and adverse employment action). Second,
as with his disability discrimination claim, Kania has produced no evidence
demonstrating that DeLeonibus was aware of Kania’s grievances or his complaint to Alt.
Indeed, Kania testified that he has never met DeLeonibus, and does not believe that
DeLeonibus retaliated against him when he rejected his application. Accordingly, we
conclude that the District Court appropriately entered summary judgment in favor of the
Postal Service on Kania’s retaliation claim.
* * * * *
In this context, we affirm the judgment of the District Court.

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