Mclean v. Runyon

• Decision Date: 10 March 2000
• Docket Number: No. 99-35237,99-35237
• Citation: 222 F.3d 1150
• Parties: (9th Cir. 2000) RODNEY MCLEAN, Plaintiff-Appellant, v. MARVIN T. RUNYON, in his official capacity as Postmaster General of the United States, Defendant-Appellee. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1150

222 F.3d 1150 (9th Cir. 2000)

RODNEY MCLEAN, Plaintiff-Appellant, v. MARVIN T. RUNYON, in his official capacity as Postmaster General of the United States, Defendant-Appellee.

No. 99-35237

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted March 10, 2000--Portland, Oregon

Filed August 25, 2000

Michael R. Dehner, Portland, Oregon, for the plaintiff-appellant.

Herbert C. Sundby, Assistant United States Attorney, Port-land, Oregon, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon, D.C. No. CV-97-00418-JAR; James A. Redden, District Judge, Presiding

Before: John T. Noonan, Susan P. Graber and Raymond C. Fisher, Circuit Judges.

FISHER, Circuit Judge:

Rodney McLean worked for the United States Postal Service ("USPS") for nine-and-a-half years as a Mark-Up Clerk until his disabilities prevented him from performing the duties of that position, even after USPS tried to modify the position to accommodate him. Taking the initiative to find a comparable, vacant position to which he could be reassigned, McLean identified over 40 positions he claimed would be suitable, but USPS disagreed and refused to reassign him or accommodate him any further. Although McLean wanted to continue working with USPS, he abandoned hope and opted for disability retirement in August 1996 to preserve his medical and life insurance benefits accumulated during 15 years of government service.

McLean filed suit in district court for violation of the Rehabilitation Act of 1973, 29 U.S.C. S 701 et seq., and its implementing regulations, particularly 29 C.F.R. S 1614.203(g), seeking front and back pay. After a bifurcated trial, a jury found that USPS unlawfully discriminated against McLean by failing to accommodate his disabilities and awarded him $130,000 in front pay. The district court initially awarded McLean $126,307 in back pay but then reduced that award to $55,411 when it determined the front and back pay awards should be offset by McLean's workers' compensation benefits under the Federal Employees Compensation Act ("FECA").¹ A week later, the court granted USPS's renewed motion for judgment as a matter of law, concluding that McLean had not shown USPS could have reassigned him to a vacant position at the same grade or level as McLean's current position -"same grade or level" being the relevant, specified condition for reassignment of disabled employees under 29 C.F.R. S 1614.203(g). USPS argued, and the district court agreed, that it was bound to offer only a position that met USPS's internal classification of grades or levels, and relied solely on the testimony of its personnel specialist that all of the vacancies McLean identified were not at an equivalent grade or level to his clerk's position.

On appeal, McLean argues "grade or level" means a position with equivalent pay, and thus that a jury could properly find there was at least one vacancy for which he was qualified because it was at his pay level. He also contends the district court erred in offsetting his FECA workers' compensation benefits against his front and back pay damages awards. We agree with McLean on the first issue, but disagree on the issue of offset. Accordingly, we reverse the district court's grant of USPS's motion for judgment as a matter of law and remand to the district court to award damages offset by FECA benefits.

FACTUAL and PROCEDURAL BACKGROUND

The facts in this case are largely undisputed. McLean was employed by USPS as a nonprobationary Mark-up Clerk in the Computerized Forwarding Service unit from February 14, 1987, until August 21, 1996. In late 1994, McLean notified USPS that he was unable to perform the essential functions of the Mark-up Clerk position due to his disability, left work and requested reassignment to a position requiring light physical duty. McLean reported back to work at a Mark-up Clerk position modified to suit his disability on October 16, 1995, but immediately began experiencing discomfort in his neck and shoulder as well as cramping and numbness in his hands and left work that day -which turned out to be his last day of active duty. McLean informed USPS he was unable to perform the duties of the modified Mark-up Clerk position and again requested a position requiring only light physical exertion. USPS denied McLean's request, asserting it had no obligation to accommodate his disability any further.

On March 6, 1996, McLean initiated a complaint with the USPS Equal Employment Office regarding USPS's failure to reassign him to an equivalent, less strenuous position. At the time of McLean's separation from USPS in August 1996, his Mark-Up Clerk position was classified as a "Postal Service" craft, level 4 (PS-4) position and his salary was $34,473. In March 1997, McLean filed suit and, at trial, submitted over 40 vacancy announcements regarding positions within the executive appointment scheduled ("EAS") classification USPS posted while he was awaiting reassignment. McLean testified that he was qualified for each of these positions.

Of the 40 potential vacancies, eight had salary ranges that included McLean's salary at the time he was separated. One of these was an EAS level 11 position located in Salem, Oregon, roughly 50 miles -a 60-minute commute -from McLean's original workplace.² This position had a salary range from $29,630 to $36,390, and specifically called for applications from all career employees working "within the Portland District" where McLean had worked as a Mark-up Clerk. Although McLean had previously requested reassignment to this type of position, USPS did not offer the position to McLean when it became vacant, but instead posted it as available to all employees on May 6, 1996, and not even then did it offer the position to McLean³.

DISCUSSION

I. USPS's Duty to Reassign McLean to a Vacant Position at the Same or Lower Grade or Level

We review de novo a district court's grant of a renewed motion for judgment as a matter of law. See Marcy v. Delta Airlines, 166 F.3d 1279, 1282 (9th Cir. 1999). A judgment as a matter of law is proper if the evidence, construed in the light most favorable to the nonmoving party, permits only a conclusion contrary to the jury's verdict. See Gilbrook v. City of Westminster, 177 F.3d 839, 864 (9th Cir. 1999).

The nub of this controversy is whether any of the vacancies submitted by McLean was at the "same grade or level" as McLean's PS-4 Mark-up Clerk position within the meaning of 29 C.F.R. S 1614.203(g). McLean argues "same grade or level" in S 1614.203(g) means a position with an equivalent pay level. McLean contends the district court therefore erred in reversing the jury's verdict because he presented evidence of at least one EAS-11 vacancy offering the same salary as his current position. Absent evidence of a significant objective difference between the two positions, such as status or benefits, we agree.

The Rehabilitation Act requires that government agencies reasonably accommodate an employee's disability. See 29 U.S.C. S 794; Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1176 (9th Cir. 1998). The regulations implementing the Rehabilitation Act also provide, "[t]he Federal Government shall become a model employer of individuals with handicaps." 29 C.F.R. S 1614.203(b) (2000). In determining whether a federal agency has violated the Rehabilitation Act, the standards under Title I of the Americans with Disabilities Act ("ADA") apply. See 29 U.S.C. SS 791(g), 794(d); Newland v. Dalton, 81 F.3d 904, 906 (9th Cir. 1995). Under Title I of the ADA, a reasonable accommodation includes reassignment to a vacant position. 42 U.S.C. S 12111(9)(B). Similarly, the regulations implementing the Rehabilitation Act provide that an agency's duty of reasonable accommodation includes, in certain circumstances, the duty to reassign an employee to a vacant position:

(g) Reassignment. When a nonprobationary employee becomes unable to perform the essential functions of his or her position even with reasonable accommodation due to a handicap, an agency shall offer to reassign the individual to a funded vacant position located in the same commuting area and serviced by the same appointing authority, and at the same grade or level, the essential functions of which the individual would be able to perform with reasonable accommodation if necessary unless the agency can demonstrate that the reassignment would impose an undue hardship on the operation of its program. In the absence of a position at the same grade or level, an offer of reassignment to a vacant position at the highest available grade or level below the employee's current grade or level shall be required.

29 C.F.R. S 1614.203(g) (emphasis added).

It is undisputed that McLean was a nonprobationary employee, was disabled and could no longer perform the essential functions of his current job even with reasonable accommodation. Furthermore, as the district court acknowledged, McLean testified that he could perform the essential functions of the vacant EAS positions during the time he requested to be reassigned.

Neither the text of S 1614.203(g), its administrative history, see Federal Sector Equal Employment Opportunity, 57 Fed. Reg. 12,634, 12,637-38 (1992), nor any decision of this court defines the meaning of "same grade or level." The Third Circuit, however, has held that "grade or level" means an "equivalent level or position . . . of seniority and pay. " Shiring v. Runyon, 90 F.3d 827, 832 (3d Cir. 1996). We find this interpretation persuasive.⁴ Not only is pay the ordinary basis for distinctions in grade or level, but in numerous federal statutes and regulations "level" is frequently defined as level of pay and "grade" represents a class of varying jobs with a level of duties and responsibilities intended to reflect a specific pay range. See, e.g., 5 U.S.C. S 5102 (defining "grade" as a "class of positions...