UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

J ACQUELINE W EBSTER ; M YRA L. P ITTS ; E LAINE M. S EESZ -P INDER , Plaintiffs-Appellants,

v. No. 00-1520 W ILLIAM J. H ENDERSON , Postmaster

General, Defendant-Appellee. Appeal from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, District Judge. (CA-98-647-L)

Argued: December 5, 2000

Decided: February 25, 2002 Before WIDENER and KING, Circuit Judges, and

William L. GARWOOD, Senior Circuit Judge of the

United States Court of Appeals for the Fifth Circuit, sitting by designation. Affirmed by unpublished opinion. Judge Widener wrote the opinion,

in which Judge King and Senior Judge Garwood joined. COUNSEL ARGUED: Shannon Micah Salb, Washington, D.C., for Appellants.

Tamera Lynn Fine, Assistant United States Attorney, Baltimore,

Maryland, for Appellee. ON BRIEF: Richard H. Semsker, Washing-

ton, D.C., for Appellants. Lynne A. Battaglia, United States Attorney,

Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). OPINION WIDENER, Circuit Judge:

Plaintiffs Jacqueline Webster, Myra Pitts, and Elaine Seesz-Pinder

(plaintiffs) appeal the district court's grant of summary judgment in

their claims filed under the Rehabilitation Act, 29 U.S.C. 791-976 l

  (1999), and the Americans with Disabilities Act (ADA), 42 U.S.C. 12101-12213 (1995 & 2000 Supp.). For the reasons that follow,

we affirm. I. Each plaintiff has been employed by the United States Postal Ser-

vice (USPS) in Silver Spring, Maryland for several years. Each plain-

tiff is disabled because of on-the-job injuries. 1 The Silver Spring Post

Office system consists of six different stations: Aspen Hill, Coles-

ville, Silver Spring, Takoma Park, Wheaton, and Woodmoor. The

Takoma Park Station is also referred to as the Blair Station.

In the fall of 1994, John Duchesne (Duchesne), the Silver Spring

postmaster, established the Blair Support Center (the Blair Center).

Duchesne stated that the operational purpose of the Blair Center was

to sort through bulk mail looking for first class mail accidentally

In 1995, Webster suffered a back injury while working at the Whea-

ton facility. In February 1992, Seesz-Pinder suffered a back injury while

working at the Wheaton facility. In May 1990, Pitts suffered an injury

while working at the Aspen Hill facility.

placed there. In response to complaints from customers regarding the

untimeliness of mail, some of it was lying on the platform or some

place else not secure, Duchesne believed that a specialized unit would

improve the timeliness of processing return-to-sender and undeliver-

able bulk mail, relieve overcrowding caused by lack of space for stor-

ing unprocessed mail, and protect the security of the mail in close

quarters, where other mail was inadvertently mixed in with return-to-

sender mail. Duchesne's problem was delay, intermixing, and space.

He tried every trick he knew, including working Sundays. Several

options were discussed to address this problem, and the creation of a

centralized system was recommended by Duchesne. Duchesne, after

consultation with the union, ultimately made the decision to institute

the Blair Center with the knowledge of higher USPS management. A

similar program was used in Washington, D.C. for the sorting of

return-to-sender mail. Duchesne chose the Takoma or Blair Station 2

to house this operation because it had a large work floor that had been

used for a similar centralization projectÐthe processing of Express

Mail.

The Blair Center did not provide optimal working conditions.

Plaintiffs and other employees worked in an old warehouse portion of

Blair Station with inadequate heating, several broken windows, and

uneven hardwood floors. Moreover, Blair Center workers had access

to parking spaces until only approximately 6:30 a.m.; after that time,

workers had to leave work and seek out street parking. Duchesne

chose to operate the Blair Center on a modified night shift, from 2:00

a.m. until 10:30 a.m. Duchesne chose these hours because those were

the hours when the mail could be put on trucks or existing runs with-

out making special runs to or from the other area post offices. These

hours also were anticipated to permit mail sorted out at the Blair Cen-

ter to be returned to local stations as necessary without using special

runs.

The operation at issue in this case, the Blair Support Center, was

located in a large warehouse-style portion of this larger Station. The

entire Blair Station was used as a regular post office and housed several

administrative offices, including that of the postmaster. In addition to the

facility which is the subject of this claim, the Postmaster himself worked

in the building, as did the staff, the accounting department, and carriers.

After deciding to create the Blair Center, Duchesne turned to the

question of staffing it with then-existing personnel because additional

staff would not be provided. To staff the Blair Center, Duchesne

selected limited and light duty personnel, desiring to provide suffi-

cient work for this class of workers. Limited and light duty personnel

are those whose work is limited by medical or other conditions. 3

Duchesne chose this class of workers because they would have the

least impact on mail operations. In this regard, they were less flexible

than other workers and could not be moved from work station to work

station with ease because they could mistakenly be put in a position

requiring work beyond their medical limits. Moreover, Duchesne

thought this class of workers was best suited for the Blair Center

because the Blair Center could be set up to accommodate their medi-

cal needs and get the work done.

All limited duty workers were then transferred from their home sta-

tions to the Blair Center. 4 Upon reassignment, all employees were

assigned to clerk positions. In some cases, reassignments resulted in

a loss of seniority. 5 The USPS personnel rules and agreements with

the American Postal Workers Union (Union) provided that USPS

could alter workers' stations, hours, and crafts to provide them with

adequate work within their medical limitations. Duchesne consulted

with the Union during the creation of the Blair Center and the finding

of the district court that the Union contract was complied with is not

contested on appeal. Workers were compensated with bargained-for

night differential pay. 6 There were approximately 43 limited duty

Employees who are injured on-the-job are put in limited duty posi-

tions in accordance with the Federal Employees Compensation Act, 5

U.S.C. Chapter 81. Employees who are injured while employed by USPS

but whose injuries are not caused by their work may request light duty

positions under the collective bargaining agreement between the USPS

and the American Postal Workers Union.

Plaintiff Webster was transferred in October 1994. Plaintiff Pitts was

transferred on or about November 8, 1994. Plaintiff Seesz-Pinder was

transferred on September 18, 1995.

This loss of seniority was permissible under the Snow Arbitration

Award the Union previously obtained on February 7, 1994.

In this regard, the Union contract states, "For time worked between

the hours of 6:00 p.m. and 6:00 a.m. employees shall be paid additional

compensation at the rate of ten percent (10%) of the base hourly straight-

time rate."

employees before the Blair Center was created; after its creation,

there were 23.

Plaintiffs state that the true reason the Blair Center was created was

because USPS management believed that limited duty employees

reduce productivity, affect morale, and often are plagued by malinger-

ers. Although these rumors may have existed in the Silver Spring

postal system, each plaintiff has stated that no supervisor ever articu-

lated this as the reason for creating the Blair Center. (Webster A. 38-

, Seesz A. 34-35, Pitts A. 21-22). Upon questioning, Patrick Dona-

hue, District Manager of the Capital District and Mr. Duchesne's sec-

ond line supervisor, stated that the Blair Center was created to control

return-to-sender mail in an efficient manner. Roland Dustin, the Post-

master's designee in the area of limited duty assignments, stated that

the purpose of the Blair Center was to accommodate limited duty

employees and to serve postal customers more efficiently. Likewise,

Willie Miner, Manager of the Post Office Operations for the Capital

District, stated that the Blair Center was established to accommodate

injured employees. Leslie Bell, the Customer Service Supervisor, also

stated that the Blair Center was created for accommodating limited

duty employees. No manager stated that the reason for creating the

Blair Center was to decrease the number of limited duty employees.

Duchesne retired from USPS on June 27, 1996. Bensing was subse-

quently placed in charge of the Blair Center. In December 1996,

Bensing decided to halt operation of the Blair Center because he

believed efficiency would be improved if the staff returned to their

home stations. 7 In a memorandum to the USPS Branch Managers,

Bensing wrote, "If it appears that the number of ill or injured employ-

ees increases because of more favorable work hour/location, then we

will re-initiate the Blair Station as concentration point for all service

center work."

The Blair Center centralized the work of all limited duty employees

from the seven stations making up the Silver Spring postal system into

one stationÐthe Blair Station. Under this scheme, an employee would be

moved from their original or home station upon being considered a lim-

ited duty employee. Bensing believed that workers were ultimately more

efficient in their home station because "[s]ome of them have specific job

knowledge of the work that goes on in these units, specifically, the

scheme knowledge as an example. Or as a letter carrier they would have

knowledge of several letter routes . . . ."

Plaintiffs filed charges with the Equal Employment Opportunity

Commission (EEOC). The EEOC denied relief. The plaintiffs subse-

quently filed a complaint in district court alleging violations of the

Rehabilitation Act and the ADA. Plaintiffs' amended complaint states

four causes of action: 1) Count I alleges disability discrimination in

violation of the Rehabilitation Act; 2) Count II alleges retaliation in

violation of the Rehabilitation Act; 3) Count III alleges disability dis-

crimination in violation of the ADA; 4) Count IV alleges retaliation

in violation of the ADA. After discovery, USPS filed a Motion for

Summary Judgment under Rule 56 of the Federal Rules of Civil Pro-

cedure. The District court granted the motion because although it

assumed, without finding, that plaintiffs had established a prima facie

case, "an adverse employment action," USPS offered legitimate, non-

discriminatory reasons for establishing the Blair Center. The court

held that the plaintiffs failed to establish pretext and granted summary

judgment to the defendant. This appeal followed. II. We review a district court's grant of summary judgment de novo.

See Russell v. Microdyne Corp. , 65 F.3d 1229, 1239 (4th Cir. 1995).

The moving party must demonstrate the absence of a genuine issue

of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett , 477 U.S. , 322-23 (1986). We consider the facts in the light most favorable

to the nonmoving party. See Anderson v. Liberty Lobby, Inc. , 477

U.S. 242, 255 (1986). A plaintiff's naked opinion, without more, will

not shield a plaintiff from a grant of summary judgment. See Gold-

berg v. B. Green & Co. , 836 F.2d 845, 848 (4th Cir. 1988).

Congress enacted the Rehabilitation Act of 1973 (Rehabilitation

Act), 29 U.S.C. 701-796 l , and the Americans with Disabilities Act

of 1991 (ADA), 42 U.S.C. 12101-12113 (incorporating amend-

ment of the Civil Rights Act of 1991, Pub. L. No. 102-166, 1991

U.S.C.C.A.N. (105 Stat.) 1071), to protect disabled individuals from

discrimination and to require that covered employers provide reason-

able accommodation to disabled persons. When a plaintiff presents a

claim for employment discrimination with no direct evidence of dis-

criminatory conduct, the case is "subject to the burden-shifting

scheme of McDonnell Douglas ." See Hawkins v. PepsiCo, Inc. , 203

F.3d 274, 278 (4th Cir. 2000) (citing McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973)); Ennis v. Nat'l Assoc. of Business

& Educ. Radio , 53 F.3d 55, 58 (4th Cir. 1995) (holding that McDon-

nell Douglas scheme applies to claims of discrimination based on

handicap status under Rehabilitation Act as well as ADA). McDonnell

Douglas requires a plaintiff to make a prima facie case of employ-

ment discrimination, which then shifts the burden of production to the

employer to proffer some legitimate, nondiscriminatory reason for its

action. See Hawkins , 203 F.3d at 278. To establish a prima facie case

of discrimination, a plaintiff must prove that: (1) he is a member of

a protected group; (2) he was subject to an adverse employment

action; and (3) this adverse employment action occurred under cir-

cumstances that raise a reasonable inference of unlawful discrimina-

tion. See Halperin v. Abacus Tech. Corp. , 128 F.3d 191, 201 (4th Cir. 7).

If the plaintiff establishes a prima facie case and the defendant then

articulates a legitimate, nondiscriminatory explanation for its action,

the presumption created by the prima facie case "drops from the

case," and the plaintiff bears the ultimate burden to prove that the

defendant's proffered reason is pretextual and that the defendant

intentionally discriminated against the plaintiff. See Halperin , 128

F.3d at 201 (citing St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 515

  (1993)). Mere speculation by the plaintiff that the defendant had a dis-

criminatory motive is not enough to withstand a motion for summary

judgment. See Autry v. North Carolina Dep't of Human Resources ,

F.2d 1384, 1386 (4th Cir. 1987); Lovelace v. Sherwin-Williams

Co. , 681 F.2d 230, 241-46 (4th Cir. 1982).

At the outset, we easily dispose of Counts III and IV of plaintiffs'

complaint under the ADA because USPS is not an "employer" under

the express terms of the Act. See 42 U.S.C. 12111(2), (5)(B)(i).

We next address Counts I and II of plaintiffs' complaint under the

Rehabilitation Act, 29 U.S.C. 794. The Rehabilitation Act provides

that "[n]o otherwise qualified individual with a disability in the

United States . . . shall, solely by reason of her or his disability, be

excluded from the participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity . . . con- ducted by any Executive agency or the United States Postal Service."

U.S.C. § 794(a). In general, the Act requires employers to make

a "`reasonable good-faith effort to adjust its legitimate needs to a

handicapping condition' that requires a reasonable accommodation in

order for the employee to perform the essential functions of the posi-

tion." Gaines v. Runyon , 107 F.3d 1171, 1178 (6th Cir. 1997). The

Act, however, does not mandate preferential treatment of an

employee by virtue of his handicap and does not impose a duty to

provide every accommodation requested. See Gaines , 107 F.3d at

8. Plaintiffs' initial claim is unusual, even extraordinary, because they

contend that the method of accommodation chosen by USPS was, in

itself, an act of discrimination. Plaintiffs argue that all disabled

employees were segregated from the general postal worker population

with the intent to dissuade this class of workers from taking advan-

tage of limited and light duty status. USPS argues that it had legiti-

mate, nondiscriminatory reasons for the creation of the Blair Center

and its staffing with limited and light duty personnel. Moreover, it

argues that plaintiffs have not met their burden of proving that dis-

crimination was the real reason for the creation of the Blair Center.

We first address plaintiffs' contention that a triable issue regarding

the motivation for creating the Blair Center exists. We assume, with-

out deciding , as the district court did not decide, that placing the

plaintiffs at the Blair Center constituted an adverse employment

action and that the prima facie case has been established. 8 USPS,

however, has established several legitimate, nondiscriminatory rea-

USPS does not dispute that the plaintiffs were handicapped for pur-

poses of the Act because they were certified as limited duty employees

through the internal USPS process. Additionally, this court has held that

reassignments can form the basis of a Title VII claim. In Boone v. Goldin , this court stated that "reassignment can only form the basis of a

valid Title VII claim if the employee can show that the reassignment had

some significant detrimental effect on her . . . . [However,] a change in

working conditions may be a factor to consider in assessing whether a

reassignment qualifies as an adverse employment action that could give

rise to Title VII liability." 178 F.3d 253, 256 (4th Cir. 1999). In this case,

it is argued that a shift in working hours, some loss of parking, the condi-

tions of the heat, broken windows, and uneven floors would suffice

under the statute.

sons for the establishment and staffing of the Blair Center. At the out-

set, Duchesne named several functions that were not addressed

adequately by the pre-Blair Center organization including that return-

to-sender and undeliverable bulk mail was not being timely pro-

cessed, inadequate security of mail because some was inadvertently

mixed with return-to-sender mail, and a lack of storage space for

unprocessed mail. Indeed, at another postal center (Washington, D.C.)

with a similar return mail problem, such a unit as Duchesne ordered

had been established and staffed with disabled employees. Regarding

the choice of the Blair Center, the record reflects that this area had

ample work space and had in the past been used for another unit that

dealt with express mail. Moreover, the modified work shift also had

logistical significance because during these hours no additional

transportation-added expense accrued.

The plaintiffs' main complaint, however, was Duchesne's choice to

staff the Blair Center with limited and light duty personnel. Duchesne

chose these employees because they, as a group, were not used opti-

mally in other offices. Moreover, centralization allowed management

to provide sufficient work within the restrictions imposed by their

medical conditions. Significantly, the accommodations provided were

within the bounds permitted by the personnel rules and were dis-

cussed with the union prior to implementation.

To withstand USPS's motion for summary judgment, plaintiffs

must prove that these legitimate nondiscriminatory reasons were

merely pretext for unlawful discrimination, which was the real reason

for the changes. Plaintiffs allege that the real reason USPS established

Blair Center and staffed it with limited duty employees was to force

limited and light duty employees to resume regular work. Plaintiffs

highlight the different opinions stated by USPS management regard-

ing the impetus for setting up the Blair Center and a memorandum

from Bensing, Duchesne's successor, to support their contention. We

recently rejected a similar claim in a case so nearly on the same facts

as to be indistinguishable, Rowe v. Marley Co. , 233 F.3d 825, 831

(4th Cir. 2000). In Rowe , the plaintiffs attempted to prove pretext by

arguing that different supervisors "offered inconsistent explanations

of the criteria used in determining which salesman to discharge."

Rowe , 233 F.3d at 831. We held that the argument failed to prove pre- text because there was "only [one] true decision-maker in this case"

and the other supervisor "merely approved the selections." Rowe , 233

F.3d at 831. The "somewhat inconsistent statements as to the factors

[the other supervisor] believed [the decision-maker] considered is

simply not probative of pretext." Rowe , 233 F.3d at 831.

Similarly, in this case, the different recollections by the several

supervisors do not establish pretext because Duchesne was the rele-

vant decision-maker responsible for the creation and staffing of the

Blair Center. Duchesne stated that he was responsible for the decision

and that he made the decision with the knowledge of higher manage-

ment. 9 Additionally, whether the reason was to provide adequate work

to limited duty personnel or to deal with third class mail does not

have significance, both were legitimate concerns for management.

Moreover, although a sentence of Bensing's memorandum, if vastly

stretched, might support plaintiffs' theory of illegal motivation, it

does not show that the initial creation of the Blair Center was moti-

vated by this goal, but merely tends to show that a subsequent post-

master may have entertained this notion. 10 Thus, Bensing's memo is

not probative of Duchesne's motivation in creating the Blair Center.

It is not the purpose of this court to second guess the wisdom of busi-

ness decisions, even if they ultimately prove inefficient as plaintiffs

have suggested in this case. See EEOC v. Clay Printing Co. , 955 F.2d

, 946 (4th Cir. 1992).

In sum, the evidence presented is not sufficient to create a triable

issue that the legitimate, nondiscriminatory reasons urged by

Duchesne and USPS for the creation of the Blair Center were merely

pretext for discrimination. Accordingly, the decision of the district

court granting summary judgment on plaintiffs' discrimination claim

under the Rehabilitation Act is affirmed.

In response to an Interrogatory, USPS stated that the decision to

create Blair Center was made by Duchesne, and his supervisors, Pat

Donohoe, the former District Manager for the Capital District, and Willie

Miner, the Manager of Post Office Operations for the Capital District.

Duchesne has never disputed that higher management was aware of the

decision, and acknowledges he was responsible for making it. That sentence is: "If it appears that the number of ill or injured

employees increases because of more favorable work hour/location, then

we will reinstate the Blair Station as concentration point for all service

center work."

III. We next address plaintiffs' argument that USPS did not provide

reasonable accommodation under the Rehabilitation Act. As noted

above, the Rehabilitation Act does not require that the employer make

every requested accommodation, but only that the accommodations

provided in fact are reasonable.

In this case, plaintiffs do not claim that they were not provided

with work within their medical restrictions prior to the Blair Center's

creation or at the Blair Center. In fact, casual employees worked spe-

cifically at Blair Center to assist the limited duty employees with lift-

ing. The main complaint is that the hours, working space and

conditions, and lack of parking spaces made the job of sorting third

class mail an unacceptable accommodation for this class of workers.

The record reflects that other employees worked night shifts and that

parking was not guaranteed for any postal employee. Plaintiffs cannot

seek another form of accommodation when the type of accommoda-

tion chosen by the employer is reasonable, which was patently the

case here. IV. Finally, we address plaintiffs' claim of retaliation under the Reha-

bilitation Act. To prevail on a claim for retaliation, plaintiffs must

prove that they were engaged in a protected activity under the Reha-

bilitation Act, that the defendant took an adverse employment action

against them, and that there is a causal connection between the pro-

tected activity and this adverse action. See Sherman v. Runyon , 235

F.3d 406, 410 (8th Cir. 2000); Carter v. Ball , 33 F.3d 450, 460 (4th

Cir. 1994). To be engaged in a protected activity under the Rehabilita-

tion Act, plaintiffs must have been protesting what they perceived as

discriminatory acts by USPS.

Plaintiffs assert that their original requests for accommodation are

an exercise of statutory rights sufficient to trigger protection against

retaliation. Assuming this may be true, plaintiffs have not shown how

they were retaliated against. Significantly, no plaintiff was denied the

status of a limited duty employee and as indicated above, plaintiffs have not borne their burden of proving that the legitimate, nondis-

criminatory reasons proffered by USPS were merely pretext for dis-

crimination or, in this case, retaliation. Thus, their claims for

retaliation fail. V. Because the plaintiffs have failed to prove that Duchesne's legiti-

mate, nondiscriminatory reasons in creating the Blair Center were

merely pretext for illegal discrimination, we affirm the district court

on that point. Similarly, because the plaintiffs have failed to make out

a case for failure to accommodate or for retaliation, the district court

is also affirmed on that account.

The judgment of the district court is accordingly AFFIRMED .