114 F.3d 415 (3rd Cir. 1997), 96-3287, Mengine v. Runyon

Docket Nº:96-3287.
Citation:114 F.3d 415
Party Name:Michael A. MENGINE, Appellant, v. Marvin RUNYON, Post Master General, U.S. Postal Service.
Case Date:June 11, 1997
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 415

114 F.3d 415 (3rd Cir. 1997)

Michael A. MENGINE, Appellant,

v.

Marvin RUNYON, Post Master General, U.S. Postal Service.

No. 96-3287.

United States Court of Appeals, Third Circuit

June 11, 1997

        Argued March 10, 1997.

Page 416

        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.

Page 417

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...

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