Safia Cobey v. Pete Geren

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cv-00406-LO-JFA Copies to all parties and the district court/agency. [998571052]. [10-1323]

Case: 10-1323

Document: 33

Date Filed: 04/19/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-1323

SAFIA COBEY,
Plaintiff - Appellant,
v.
PETE GEREN, Secretary of the Army,
Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Liam O’Grady, District
Judge. (1:08-cv-00406-LO-JFA)

Argued:

January 27, 2011

Decided:

April 19, 2011

Before GREGORY and AGEE, Circuit Judges, and Irene C. BERGER,
United States District Judge for the Southern District of West
Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Donna Renee Williams Rucker, GEBHARDT & ASSOCIATES, LLP,
Washington, D.C., for Appellant. Monika L. Moore, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Frazer Walton, Jr., LAW OFFICE OF FRAZER WALTON, JR.,
Washington, D.C., for Appellant.
Neil H. MacBride, United
States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 04/19/2011

Page: 2

PER CURIAM:
Safia
summary

Cobey

judgment

appeals
in

the

favor

district

of

Pete

court’s

Geren

in

order
this

granting

employment

discrimination action brought under the Rehabilitation Act of
1973. 29 U.S.C. § 701. Cobey asserts that she is an individual
with a disability under the Act and that Geren, her employer,
failed to accommodate her disability.

I.
Summary judgment is appropriate under Federal Rule of Civil
Procedure 56(c) if no genuine issue of material fact exists and
the movant is entitled to judgment as a matter of law. Anderson
v. Liberty Lobby, 477 U.S. 242, 247 (1986).
the

district

court’s

grant

of

summary

This Court reviews
judgment

de

novo.

Monumental Paving & Excavating Manufacturer’s Ass’n Ins. Co.,
176 F.3d 794, 797 (4th Cir. 1999). A genuine issue of material
fact exists when there is a factual dispute that might affect
the outcome of the case and a reasonable factfinder could find
in favor of the nonmoving party.

Anderson, 477 U.S. at 248.

Inasmuch as the evidence contained in the record is insufficient
to

create

a

genuine

issue

of

material

district court’s judgment.

2

fact,

we

affirm

the

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II.
Cobey was employed as a fabric worker in the Directorate of
Public

Works

and

Logistics,

Services

Division,

Central

Issue

Facility (CIF) at Fort Myer, Virginia. As a fabric worker, her
duties included performing alterations and repairs on military
uniforms.

The

physical

demands

of

this

position

included

standing at work tables, stooping, bending, kneeling and sitting
for long periods to sew.
On March 14, 2006, she suffered what she describes as an
“on-the-job injury” and went to the emergency room. She returned
to

work

on

March

16,

2006,

and

presented

a

note

from

her

treating physician, Dr. Cho, to her immediate supervisor, Ms.
Hernandez. The note is hand-written and difficult to read. It
appears

to

limitations:

list
3

some
weeks,

limitations
till

and

it

reevaluated

states,
by

me

“Length
or

of

other

physician.” Cobey was placed on “light duty status” within four
(4) days to a week of her return to work.
On March 22, 2006, she had an appointment regarding her
back pain with Dr. Ramler, of Family Practice Woodbridge Clinic.
Her records indicate that she was “released w/o limitations.” On
April 5, 2006, Cobey was involved in a car accident and injured
her back. She saw Dr. Doroski, a chiropractor, for that injury.
Dr. Doroski’s records indicate that Cobey reported that she did
not have any symptoms of her previous work injury before the car
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Case: 10-1323

accident

occurred

Document: 33

and

that

Date Filed: 04/19/2011

her

prognosis

Page: 4

for

recovery

was

favorable. When she returned to work on April 19, 2006, she
presented

a

medical

form

to

Ms.

Hernandez

detailing

her

limitations. This form stated that Cobey’s “Duration of Total
Disability” was from April 6, 2006, to April 18, 2006.

There is

some dispute in the record as to whether Dr. Doroski intended
April 18, 2006, to be the actual ending date for the Plaintiff’s
limitations.

However, a plain reading of the form indicates

that the limitations were temporary in nature.

Cobey asserts

that Ms. Hernandez refused to accommodate her limitations.
On April 21, 2006, Cobey called an ambulance from her job
site and was transported to the hospital. She did not return to
work after this day. One month later she began treatment for her
back

injury

with

an

orthopedist.

She

filed

a

formal

EEO

complaint with the Department of the Army and was denied relief.
She appealed this denial by filing her federal complaint.

III.
Under

the

Act,

an

“individual

with

a

disability,”

or

handicap, is defined as one who (i) has a physical or mental
impairment

which

substantially

limits

one

or

more

of

such

person's major life activities; (ii) has a record of such an
impairment; or (iii) is regarded as having such an impairment.
29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102(2)(A); see Pollard v.
4

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High’s of Baltimore, Inc., 281 F.3d 462, 467. In determining
whether

an

impairment

substantially

limits

a

major

life

activity, the court may consider the “nature and severity of the
impairment,”
impairment,”

the
and

“duration
the

or

“permanent

expected
or

long

duration

term

of

impact”

of

the
the

impairment. 29 C.F.R. § 1630.2(j)(2); see Pollard, 281 F.3d at
467-68 (“An impairment simply cannot be a substantial limitation
on a major life activity if it is expected to improve in a
relatively short period of time.”)
The district court found that the record demonstrates that
Cobey’s injuries were temporary and that her employer had no
reason to believe she suffered from a permanent disability. The
district court further found that the restrictions noted by Dr.
Doroski did not rise to the level of substantial limitation.

IV.
Cobey contends that she meets both (i) and (iii) of the
Act’s definition of a person with a disability because she has
established that she has a substantially limiting impairment and
because her supervisors were aware that her condition limited
her life activities such as standing for a long time, lifting
anything

above

evidence

in

her

this

shoulders

case

and

demonstrates

bending

at

that

Cobey

the
did

waist.

The

have

some

limitations to these normal life activities as a result of her
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on the job injury and accident, but there is nothing in the
record to suggest that her limitations were other than shortterm. The records from her doctors give positive prognoses for
recovery, release her from care or note her improvement.

When

Dr. Doroski treated her for the car accident, he noted that her
symptoms

from

her

previous

work

injury

had

disappeared,

indicated the temporary nature of her current injury.

and

Six weeks

after her accident Dr. Doroski reported that she ranked her pain
as one out of ten, with ten being unbearable pain.
record

shows

that

Cobey

did

not

have

an

Thus, the

impairment

with

a

permanent or long-term impact.
Additionally,
supervisors

Cobey

perceived

her

has
as

not
having

established
such

an

that

impairment.

her
The

doctors’ notes presented to her supervisor contained end dates
for her limitations.

Despite her employer’s stated efforts to

give Cobey light work, they had no reason to believe she had a
substantially limiting impairment of a permanent or long-term
nature.

V.
There is no genuine issue of material fact as to whether
Cobey meets the Act’s definition of disability.

None of her

medical records, including the few relied on by her employer,
establish that her injuries were more than temporary. Because
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there is no disability under the Act, Cobey has not met the
threshold requirement for bringing her claim.

Accordingly, we

affirm the district court’s order granting summary judgment in
favor of Geren.
AFFIRMED

7