Prewitt v. U.S. Postal Service

• Decision Date: 05 November 1981
• Docket Number: No. 80-3525,80-3525
• Citation: 662 F.2d 292
• Parties: 27 Fair Empl.Prac.Cas. 1043, 27 Empl. Prac. Dec. P 32,251, 1 A.D. Cases 273 George Dunbar PREWITT, Jr., Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee. . Unit A *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 292

662 F.2d 292

27 Fair Empl.Prac.Cas. 1043,

27 Empl. Prac. Dec. P 32,251, 1 A.D. Cases 273

George Dunbar PREWITT, Jr., Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.

No. 80-3525.

United States Court of Appeals, Fifth Circuit.

Unit A ^*

Nov. 5, 1981.

G. Dunbar Prewitt, Jr., pro se.

William N. Reed (Court-appointed), Allan P. Bennett, Jackson, Miss., for plaintiff-appellant.

H. M. Ray, U. S. Atty., John R. Hailman, Asst. U. S. Atty., Oxford, Miss., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before RUBIN, RANDALL and TATE, Circuit Judges.

TATE, Circuit Judge:

Claiming that the United States Postal Service unlawfully denied him employment due to his physical handicap, the plaintiff, George Dunbar Prewitt, Jr., brought this action against the postal service. Prewitt contended that he was physically able to perform the job for which he applied despite his handicap, even though the postal service's physical requirements indicate that only persons in "good physical condition" can perform the job because it involves "arduous" work. Prewitt alleged, inter alia, that the postal service thus violated his rights under the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq. Prewitt filed this suit as a class action, after he was denied employment as a clerk/carrier at the Greenville, Mississippi post office. The district court granted the postal service's motion for summary judgment. On Prewitt's appeal, we find that the plaintiff has raised genuine issues of material fact as to 1) whether the postal service's physical requirements for postal employment are sufficiently "job related" to provide lawful grounds for the refusal to hire Prewitt, and 2) whether the postal service has breached its duty to make "reasonable accommodation" for handicapped persons such as Prewitt. Accordingly, we reverse the summary judgment of the district court, and remand the case for further proceedings in accordance with this opinion.

The Factual Background

The plaintiff Prewitt is a disabled Vietnam war veteran. Due to gunshot wounds, he must endure limited mobility of his left arm and shoulder. Nevertheless, in May 1970 (prior to his rejection for re-employment in 1978 that gave rise to this lawsuit), Prewitt applied for a position as a distribution clerk in the Jackson, Mississippi post office, a position which, according to the job description, "require(s) arduous physical exertion involving prolonged standing, throwing, reaching, and may involve lifting sacks of mail up to 80 pounds." ¹ Prewitt was hired after passing the requisite written and medical examinations, and it is undisputed that, despite his handicap, he performed his duties in a competent, entirely satisfactory manner.

Prewitt resigned his position at the Jackson post office in September 1970 to return to school. He testified in his affidavit, which we must regard as true for summary judgment purposes, that his physical condition did not diminish in any significant way between May 1970 and September 1978, when he applied for the position at the Greenville post office that gave rise to this lawsuit. Prewitt questions the failure of the postal service to re-employ him in 1978, due to a physical handicap, for a position as clerk/carrier, a position with similar physical requirements to those of the job that he had satisfactorily performed in 1970.

After applying for the clerk/carrier position at Greenville in 1978, Prewitt took and passed a standard written examination. He received a final rating of 92.8 (basic rating of 82.8 plus a 10 point compensable veteran's preference), which placed him second on the roster of eligible applicants. Physical suitability for the position, however, remained to be determined.

According to the postal services qualification standards, the duties of a carrier "are arduous and require that the incumbent be in good physical condition." Thus, a medical form which was given to Prewitt indicates that applicants for this position must meet a wide range of physical criteria, including, inter alia, the ability to see, hear, lift heavy weights, carry moderate weights, reach above shoulder, and use fingers and both hands. ² According to the affidavit of Postmaster Charles Hughes, the duties of a clerk/carrier require stooping, bending, squatting, lifting up to seventy pounds, standing for long periods, stretching arms in all directions, reaching above and below the shoulder, and some twisting of the back. ³

To determine whether Prewitt could meet these physical standards, the Greenville postal authorities asked Prewitt to authorize the Veteran's Administration (VA) to release his medical records to the postal service for examination, and Prewitt complied with this request. The VA records, which apparently were made in 1970 before Prewitt was awarded disability benefits, indicated that Prewitt had a 30% service-related disability that caused "limitation of motion of left shoulder and atrophy of trapezius," as well as that he had a kidney disease, hypertension, and an eye condition not related to his armed forces service. ⁴ The VA report was analyzed by Dr. Cenon Baltazar, a postal medical officer, who reported: "Limited records pertaining to (Prewitt) showed limitation of left shoulder and atrophy of trapezius muscle. This is not suitable for full performance as required of postal service positions unless it is a desk job." Prewitt subsequently received from Hughes a terse, two sentence letter informing him that Dr. Baltazar had determined that he was "medically unsuitable for postal employment." The letter did not state any reasons for this finding of unsuitability. ⁵

After receiving word of this adverse determination, Prewitt contacted Hughes to dispute the conclusion of the medical officer. Hughes told Prewitt that there was no appeal from the decision, but that the decision would be reconsidered at the local level if Prewitt would undergo an examination, at his own expense, by a private physician. In fact, Prewitt did have the right to appeal to the postal service's regional medical director. After belatedly learning of this right, Prewitt exercised his right to appeal, but he chose not to undergo a new physical examination. The regional medical officer, Dr. Gedney, examined the VA report and concluded that Prewitt was medically unsuitable. Unlike Dr. Baltazar, who relied solely on Prewitt's shoulder injury as the basis for his adverse determination, Dr. Gedney also mentioned the kidney disease (which Dr. Gedney stated is an unpredictably progressive disease that could possibly be aggravated by arduous duty) and hypertension. ⁶ Based on Dr. Gedney's report, the regional office sustained the adverse determination and told Prewitt that there were no further medical appeal rights. Again, the letter did not inform Prewitt of the medical reasons upon which this conclusion was based. ⁷

Although the regional office correctly stated that there were no further medical appeal rights, in fact Prewitt had available to him an entirely independent chain of administrative review of the adverse determination through the postal service's equal employment opportunity (EEO) office. Prewitt filed an EEO complaint, alleging that the postal service had discriminated against him on the basis of his handicap by finding him unsuitable for postal employment. The EEO office conducted an investigation and found that the same medical officer who had disqualified Prewitt had ruled three other disabled or physically handicapped applicants suitable for postal employment. The investigation also revealed that the Greenville post office had hired fourteen persons classified as disabled and/or physically handicapped. Relying on these findings, the EEO office found no discrimination and advised Prewitt that he could appeal its decision to the Office of Appeals and Review of the Equal Employment Opportunity Commission (EEOC). ⁸

As permitted by statute, 42 U.S.C. § 2000e-16(c), made applicable to the handicapped by 29 U.S.C. § 794a(a)(1), instead of appealing to the EEOC, Prewitt filed this suit in the district court. No contention is made by the postal service that Prewitt did not exhaust administrative remedies. The postal service responded to Prewitt's complaint with a motion for summary judgment, contending that it had rejected Prewitt for valid medical reasons, and that Prewitt's refusal to take a physical examination had precluded it from making a re-evaluation. The plaintiff responded that postal service regulations required that applicants be given a current physical examination before a medical determination is made, and therefore, even though Prewitt was afforded an opportunity to take a physical after his determination was made, the determination of medical unfitness was invalid. Prewitt further argued that the regulations entitled him to a free physical examination, so that he was not required to bear the expense of an examination by a private physician. Finally, Prewitt noted that in view of the undisputed fact that he had been able to perform competently a similar job in 1970, the postal service had failed to articulate any legitimate reason for its finding of medical unsuitability.

The district court reasoned that:

The key to this case lies in plaintiff's continued refusal to take a current physical examination. This refusal has rendered meaningless the defendant's attempt to re-evaluate plaintiff's current physical condition, though the postal service gave plaintiff ample opportunity to supplement the information available to it. The postal service extended plaintiff this opportunity at the initial stage of the procedure, and the opportunity remained open to plaintiff throughout the appellate process. Plaintiff simply cannot base a claim upon a 1970 medical examination when the Veterans Administration records presently available to defendant...