Mengine v. Runyon

• Decision Date: 11 June 1997
• Docket Number: No. 96-3287,96-3287
• Citation: 114 F.3d 415
• Parties: 6 A.D. Cases 1530, 22 A.D.D. 734, 10 NDLR P 146 Michael A. MENGINE, Appellant, v. Marvin RUNYON, Post Master General, U.S. Postal Service.
• Court: U.S. Court of Appeals — Third Circuit

Page 415

114 F.3d 415

6 A.D. Cases 1530, 22 A.D.D. 734, 10

NDLR P 146

Michael A. MENGINE, Appellant, v. Marvin RUNYON, Post Master General, U.S. Postal Service.

No. 96-3287.

United States Court of Appeals Third Circuit.

Argued March 10, 1997.

Decided June 11, 1997.

Bruce A. Bagin (argued), Pamela E. Berger, Wienand & Bagin, Pittsburgh, PA, for Appellant.

Alice L. Covington (argued), United States Postal Service, Washington, DC, for Appellee.

Before: BECKER, SCIRICA and ALITO, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

This appeal addresses the duty of federal employers under the "reasonable accommodation" requirement of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. We have held it is the burden of the disabled employee who seeks reassignment to identify a position appropriate for reassignment. See Shiring v. Runyon, 90 F.3d 827 (3d Cir.1996). At the same time, we believe "reasonable accommodation" includes the employer's reasonable efforts to assist the employee and to communicate with the employee in good faith. Because the employee, Michael Mengine, did not meet his burden and the employer, the United States Postal Service, satisfied its duty, we will affirm the district court's grant of summary judgment.

I.

Michael Mengine was employed by the United States Postal Service as a letter carrier. Following hip surgery for bilateral aseptic necrosis on November 23, 1992, Mengine could no longer carry out the duties of a letter carrier,which include prolonged walking and substantial lifting. As a result, Mengine received permission to take advanced sick leave (he had already exhausted his accrued sick leave).

On January 13, 1993, Mengine requested assignment to temporary light duty work. This was approved for a period of 30 days. The approval recited that Mengine may not push or pull, lift over 10 pounds, or engage in excessive standing or walking. Mengine was not assigned to a specific light duty job, but told he would get work "as assigned." Subsequently, Mengine received one two-hour light duty assignment which required him to sort mail. Mengine then took advanced sick leave when no further light duty assignments were offered to him.

On January 27, 1993, Mengine wrote to Postmaster William Dunn that he was "physically unable to continue" as a letter carrier. He requested "a transfer into another craft," noting that he was "on advance sick leave and would like to return to full-time work as soon as possible." He attached a letter from his doctor stating he must avoid prolonged walking and heavy lifting.

On February 2, 1993, Thomas Schimmel, the Senior Personnel Services Specialist, responded to Mengine's letter on behalf of the Postmaster, sending him descriptions of four vacant positions: mail handler, mail processor, laborer-custodian, and custodian. Mengine wrote back that,"[a]lthough I am ready, willing, and able to accept a transfer into another category, I do not feel that these particular job descriptions best suit my physical limitations." He requested information on other positions which would accommodate him and inquired about a computer maintenance training program.

Schimmel responded that there were no positions available (other than the four mentioned above) that would accommodate Mengine's disability. He also stated that the Postal Service had no training program in computer maintenance: "We do have ... positions [which] maintain our computer hardware and software relating to our automation equipment. However your limitations would prevent you from working in this area." The letter concluded with, "The only suggestion that I have for you at this time is that you might want to pursue, if eligible, Disability Retirement."

On April 20, 1993, Mengine wrote again to the Postmaster and requested a transfer to a "desk job," or, in the alternative, reassignment to another federal agency. Once again, Schimmel responded on behalf of the Postmaster, stating, "In order for you to transfer to another government agency you must contact that agency and they will have to provide you the necessary requirements to transfer."

Meanwhile, Mengine visited the Postal Service Human Resources Office and reviewed a list of job descriptions. He identified several positions that he believed would accommodate his limitations, but he was told none of these positions were vacant.

Mengine then applied for Social Security benefits claiming total disability. On September 28, 1993, the Social Security Administration approved his application. Two days later, Mengine applied for disability retirement under the Federal Employees' Retirement System, stating, "As a Letter Carrier, the requirements of my job are standing, walking, and lifting which I [no] longer can do without great difficulty and pain and without causing further damage to my hips." The Office of Personnel Management initially denied his application but on appeal found him eligible for disability retirement.

In October 1993, Mengine filed this lawsuit against Marvin Runyon, Postmaster General of the United States Postal Service, claiming violations of the Rehabilitation Act. Specifically, he contends the Postal Service did not reasonably accommodate his disability because it refused to reassign him to another position. The district court dismissed Mengine's case for failing to timely exhaust administrative remedies, but the dismissal was reversed on appeal. Mengine v. Runyon, 46 F.3d 1117 (3d Cir.1994).

The case was remanded and discovery ensued. In September 1995, William F. Greb, a Postal Service manager, testified at his deposition that temporary light duty work was available for Mengine in "collections." The work required driving a truck and picking up mail from office buildings. Mengine took the job for an indeterminate period. It appears he has since stopped working and once again accepted disability retirement. ¹

After discovery, the parties filed cross motions for summary judgment. On April 26, 1996, the district court granted summary judgment to the Postal Service because Mengine failed to identify a permanent, vacant, funded position appropriate for his reassignment.

II.

This case arises under the Rehabilitation Act. The district court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. We review summary judgment decisions under a plenary standard. See Waldron v. SL Indus., Inc., 56 F.3d 491, 496 (3d Cir.1995). We must apply the same test as the district court, i.e. we must view the evidence in the light most favorable to the nonmovant, and we may affirm only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Waldron, 56 F.3d at 496.

III.

The Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., forbids federal employers from discriminating against persons with disabilities in matters of hiring, placement or advancement. See Shiring v. Runyon, 90 F.3d 827, 830-31 (3d Cir.1996). In order for an employee to make out a prima facie case of discrimination under the Rehabilitation Act, the employee bears the burden of demonstrating: "(1) that he or she has a disability; (2) that he or she is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that he or she was nonetheless terminated or otherwise prevented from performing the job." Id. at 831. ²

Defendants moved for summary judgment based on their contention that Mengine could not prove he was an "otherwise qualified" employee. In response, Mengine admits he can no longer perform the job of letter carrier, but contends the Postal Service had a duty to reasonably accommodate him through reassignment to a different position.

An employer is not required to create a job for a disabled employee. But a federal employer has a duty to reassign nonprobationary employees if they become unable to perform the essential functions of their jobs, unless the reassignment would cause the employer undue hardship. See Shiring, 90 F.3d at 832. In bringing suit, it is Mengine's burden to "make at least a facial showing that such accommodation [reassignment] is possible." Id. Specifically, Mengine must "demonstrate that there were vacant, funded positions whose essential duties he was capable of performing, with or without reasonable accommodation, and that these positions were at an equivalent level or position as [his former job]." Id.

Mengine maintains he satisfied his burden to identify a vacant, funded position by requesting transfer to a light duty position. In the alternative, he contends any failure on his part to identify such a position was caused by the Postal Service's refusal to cooperate.

a.

Mengine contends he satisfied his burden because he presented proof of the availability of light duty work. But the only light duty work available was temporary work. It is uncontested that Mengine was seeking permanent work. The Postal Service was not required to transform its temporary light duty jobs into permanent jobs to accommodate Mengine's disability. See Shiring, 90 F.3d at 831. As we have noted, an employer is not required to create a job for a disabled employee. At the same time, we are reluctant to adopt a per se rule that the conversion of a temporary job to a permanent job can never constitute a "reasonable accommodation" under the Rehabilitation Act. We think that in most cases the imposition of such a requirement will be unreasonable but there might arise the rare case in which the cost of converting the temporary job into a permanent one is slight and the benefits considerable. Cf. Vande Zande v. State of Wisconsin Dept. of Admin., 44 F.3d 538, 542-43 (7th Cir.1995). In this case, however, Mengine has not pointed to evidence from which a reasonable factfinder could conclude the costs of converting the temporary jobs at issue into permanent ones would...