949 F.2d 637 (2nd Cir. 1991), 161, Gilbert v. Frank

Docket Nº:161, Docket 91-6105.
Citation:949 F.2d 637
Party Name:Leroy GILBERT, Plaintiff-Appellant, v. Anthony M. FRANK, in his capacity as Postmaster General of the United States Postal Service, Defendant-Appellee.
Case Date:November 27, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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949 F.2d 637 (2nd Cir. 1991)

Leroy GILBERT, Plaintiff-Appellant,

v.

Anthony M. FRANK, in his capacity as Postmaster General of

the United States Postal Service, Defendant-Appellee.

No. 161, Docket 91-6105.

United States Court of Appeals, Second Circuit

November 27, 1991

Argued Sept. 13, 1991.

Kipp Elliott Watson, New York City, for plaintiff-appellant.

Bernard W. Bell, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty.,

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S.D.N.Y., Thomas A. Zaccaro, Asst. U.S. Atty., of counsel), for defendant-appellee.

Before KEARSE, MINER and McLAUGHLIN, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Leroy Gilbert appeals from a final judgment of the United States District Court for the Southern District of New York, Leonard B. Sand, Judge, dismissing his complaint alleging that defendant Anthony M. Frank, in his capacity as Postmaster General of the United States Postal Service ("Postal Service"), discriminated against him in employment because of his physical handicap, in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq. (1988) (the "Act"). Following a bench trial of issues as to liability, the district court found that, within the meaning of the Act, Gilbert was not handicapped and was not "otherwise qualified" for the position he sought. On appeal, Gilbert principally challenges these findings. Though we do not agree with the court's finding of no handicap, we conclude that Gilbert had not presented a prima facie case because he did not show that he was otherwise qualified for the position. We therefore affirm the judgment dismissing the complaint.

I. BACKGROUND

A number of the material facts were not in dispute. Gilbert suffered from polycystic kidney disease ("PKD"), a disorder that involves the formation of multiple cysts in the kidneys. PKD cysts are filled with blood or a urine-like fluid, and their presence interferes with the normal functioning of the kidneys. In 1982, when Gilbert's system had deteriorated to the point where he was approaching terminal kidney failure, he began dialysis, which provides a mechanical substitute for the functioning of healthy kidneys. From that time on, he needed three dialysis treatments, each lasting 3 1/2 hours, every week.

Following the initiation of his dialysis treatments in 1982, Gilbert applied to the Postal Service for the position of Manual [Mail] Distribution Clerk, Part-time, Flexible schedule ("Manual MD Clerk" or "MDC"), at the General Post Office ("GPO") in Brooklyn, New York; in 1985, he again applied to the Postal Service for a Manual MD Clerk position, this time at the GPO in Manhattan. Both of his applications were rejected. After each rejection, Gilbert commenced a suit under the Rehabilitation Act; both of those suits were dismissed for failure to exhaust administrative remedies.

In dismissing the second action, the district court found, inter alia, that the positions for which Gilbert had applied "required that plaintiff be capable of lifting 70 pounds," and that in connection with the Postal Service's 1982 rejection, "the basis for this determination was a letter written by Gilbert's treating physician, Dr. [Joseph T.] McGinn, stating that plaintiff was able to lift 'up to 25 pounds.' " Gilbert v. Tisch, No. 86-3933, slip op. at 2, 1987 WL 14908 (S.D.N.Y. July 20, 1987). In connection with its rejection of Gilbert's 1985 application, the Postal Service informed Gilbert that he had been found medically unsuitable for the position he sought, stating as follows:

A review of your medical records and evaluation by our Medical Officer revealed that as per private doctor note--you are not able to perform as per physical requirements of position description. Kidney dysfunction. This condition is not compatible with the strenuous activities required for this position, which includes heavy lifting, pushing, pulling, repetitive stretching and reaching. Under these conditions, postal employment would place your personal health and safety in jeopardy.

(Joint Pre-trial Order ("Pretrial Order") at 9.)

The present action was commenced in 1988. Though there remained some question as to exhaustion, the district court concluded that, in light of the loss of certain administrative records and questions as to the notice given Gilbert with respect to filing deadlines, the court should reach the merits of his claims. Bifurcating the

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issues of liability and remedies, the district court conducted a seven-day trial on liability. Many of the facts and events had been stipulated in the Pretrial Order, and most of the trial was devoted to medical evidence, discussed in greater detail in Part II.B. below, as to Gilbert's ability to perform the weight-lifting aspects of the Manual MD Clerk position.

Following the liability trial, the district court, in an Opinion dated February 19, 1991 ("Opinion"), found that Gilbert "d[id] not meet the statutory criteria under the Rehabilitation Act for an 'individual with handicaps,' " Opinion at 8, and dismissed his claim as "entirely without merit," id. at 11. The court found that Gilbert had not made a prima facie showing that he was a handicapped person principally because "[h]is end-stage renal condition has been adequately dealt with by dialysis and his PKD has not substantially limited any of his major life activities nor does it rise to the level of a 'physical impairment' within the meaning of the Act." Id. at 8-9.

The court also ruled that Gilbert would not be entitled to relief under the Act even if he had shown himself to be a handicapped person because he had failed to show that he was "otherwise qualified" to perform the job of Manual MD Clerk, as required by § 504 of the Act. The court noted that the Manual MD Clerk position

is a position in the Postal Service which involves continuous standing, stretching, and reaching. Clerks may be required to handle heavy sacks of letter mail or parcel post weighing up to 70 pounds. Such clerks are also called upon to carry packages and to push heavy postal wheeled containers. The lifting, carrying and moving of such objects are among the "essential functions" of the MDC. The job is clearly one which calls for extended strenuous physical exertion.

Opinion at 3. It found that "the performance of the heavy lifting, carrying and pushing is an essential aspect of the tasks assigned to an MDC-[Part-time, Flexible schedule]. At an entry level, a[n] MDC performs the more arduous tasks. Jobs which require less physical exertion are awarded, based on seniority." Id. at 7. As to Gilbert's ability to perform these tasks, the court credited principally (a) the 1982 evaluation of Gilbert's treating physician describing Gilbert as not capable of lifting more than 25 pounds; (b) the 1985 recommendation of another of his treating physicians that Gilbert "should be restricted from 'heavy lifting' and any physically traumatic activities," id. at 3-4; and (c) the opinion of the Postal Service's expert witness that there was a greater than 50% chance of Gilbert's sustaining rupture of a cyst if he were employed as a Manual MD Clerk and that it was therefore not medically advisable for Gilbert to perform that job. The district court concluded that Gilbert was not "otherwise qualified" within the meaning of the Act because he "could not perform essential functions of the MDC job without significant medical risk." Id. at 9. The court also concluded that because Gilbert had not shown himself to be handicapped or otherwise qualified for the position he had sought, the Postal Service was not required to show that it had offered to provide him with "reasonable accommodation." Id.

Judgment was entered dismissing the complaint, and this appeal followed. On appeal, Gilbert pursues his claim under § 504 of the Act, contending principally that the district court erred in finding (1) that he was not handicapped under the Act and (2) that he was not "otherwise qualified" for the job of Manual MD Clerk. Though our analysis of the requirements of the Act differs from that of the district court, we conclude that Gilbert did not establish a prima facie case of discrimination under the Act and that it was therefore proper to dismiss his complaint. Our decision is constrained to an extent by the tactical choices made by Gilbert as to the theories he has pursued at trial and in this Court.

II. DISCUSSION

The Rehabilitation Act, which was intended to deter discrimination against handicapped individuals and to expand their employment opportunities and their integration

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into society, see 29 U.S.C. § 701, prohibits the Postal Service, inter alios, from discriminating against handicapped individuals solely by reason of their handicaps, see generally School Board of Nassau County v. Arline, 480 U.S. 273, 277-79, 107 S.Ct. 1123, 1125-27, 94 L.Ed.2d 307 (1987) ("Arline "). Section 504 of the Act provides, in pertinent part, as follows:

No otherwise qualified individual with handicaps in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

29 U.S.C. § 794. Section 501 of the Act, 29 U.S.C. § 791, and the regulations promulgated thereunder by the Equal Employment Opportunity Commission call for federal government agencies and the Postal Service to be "model employer[s] of handicapped individuals," 29 C.F.R. § 1613.703 (1991).

Only persons "who are both handicapped and otherwise qualified are eligible for relief" under the Act. Arline, 480 U.S. at 285, 107 S.Ct. at 1129 (emphasis in original). Thus, to establish a prima facie case under § 504, a plaintiff bears the...

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