Carter v. Tisch, 86-1728

• Decision Date: 06 July 1987
• Docket Number: No. 86-1728,86-1728
• Citation: 822 F.2d 465
• Parties: 44 Fair Empl.Prac.Cas. 385, 43 Empl. Prac. Dec. P 37,201, 56 USLW 2067, 1 A.D. Cases 1114 Blane CARTER, Plaintiff-Appellant, v. Preston R. TISCH, Postmaster General; United States Postal Service, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 465

822 F.2d 465

44 Fair Empl.Prac.Cas. 385,

43 Empl. Prac. Dec. P 37,201, 56 USLW 2067,

1 A.D. Cases 1114

Blane CARTER, Plaintiff-Appellant, v. Preston R. TISCH, Postmaster General; United States Postal Service, Defendant-Appellee.

No. 86-1728.

United States Court of Appeals Fourth Circuit.

Argued May 6, 1987.

Decided July 6, 1987.

Gary Wallace Smith, for plaintiff-appellant.

Joan Carol Goodrich, Office of Labor Law, U.S. Postal Service, Washington, D.C. (Breckinridge L. Willcox, U.S. Atty., Gary P. Jordan, Asst. U.S. Atty., Baltimore, Md., Stephen E. Alpern, Associate Gen. Counsel, Washington, D.C., on brief), for defendant-appellee.

Before MURNAGHAN and CHAPMAN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judges.

MURNAGHAN, Circuit Judge:

After being fired from his employment as a post office custodian, Blane Carter brought suit alleging handicap discrimination under section 504 of the Rehabilitation Act, 29 U.S.C. Sec. 794. The district court granted summary judgment against Carter. Carter is handicapped by asthma. He concedes that he is unable to perform the duties of a custodian. Carter's appeal depends on the argument that the postal service was required to "accommodate" his handicap by assigning him reduced duties.

Blane Carter began work at the Baltimore, Maryland post office as a laborer-custodian in May, 1980. In May, 1982, Carter began to experience bouts of asthma, a disease which he had suffered from since childhood, but which had been under control for several years. Carter was assigned to temporary light duty which relieved him of the obligation to perform tasks which required exertion or generated dust, factors likely to aggravate his asthma. Carter's condition did not improve and he later requested that his work load be further reduced.

In September, 1983, Carter applied for a permanent light duty position. His request was denied for two reasons. First, there were no permanent light duty assignments available in the maintenance craft in which Carter was employed. In addition, a collective bargaining agreement required that an employee have served five years before becoming eligible for a permanent light duty assignment. Carter had not served the requisite five years.

After concluding that Carter could no longer perform the functions of a laborer-custodian, and that no permanent light duty position could be assigned him, the postal service terminated Carter's employment in November, 1983.

Carter then initiated administrative proceedings by filing a formal complaint alleging handicap discrimination. After a hearing, an Equal Employment Opportunity Commission (EEOC) attorney examiner found that Carter had been the victim of discrimination. The attorney examiner did not base her finding of discrimination on a factual conclusion that Carter was capable of performing the full duties of a laborer-custodian. Instead, she found that Carter was capable of performing the duties of a laborer-custodian if he was assigned to permanent light duty.

In its final decision, the EEOC rejected the attorney examiner's recommendation and found no discrimination. Carter then timely filed suit in federal court. The district court concluded that Carter was not eligible for a permanent light duty assignment because such an assignment was prohibited by the collective bargaining agreement. The court further concluded that Carter was unable to perform the duties of a laborer-custodian. For those reasons the district court granted summary judgment against Carter. The present appeal followed.

There is no dispute that Carter cannot perform the full duties of a laborer-custodian. His argument is, instead, that the postal service was required to assign him to another position, that of a permanent light duty laborer-custodian, as a "reasonable accommodation" of his handicap.

The postal service was not under an obligation to "accommodate" him by assigning him to permanent light duty. The case law is clear that, if a handicapped employee cannot do his job, he can be fired, and the employer is not required to assign him to alternative employment. In this case the postal service's justification for refusing reassignment is even stronger: it was bound by a collective bargaining agreement. Reassigning Carter to permanent light duty, when he was not entitled to one of a limited number of light duty positions, might have interfered with the rights of other employees under the collective bargaining agreement.

Section 504 of the Rehabilitation Act provides that:

No otherwise qualified individual with handicaps ... shall, solely by reason of 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 the United States Postal Service.

29 U.S.C. Sec. 794 (Supp.1987) (emphasis added). A handicapped person is said to be "otherwise qualified" for a position if he can perform the job if reasonable accommodation is made for his handicap, or without reasonable accommodation. ¹ The question in the present dispute is whether a job transfer is "reasonable accommodation."

In its most recent word on job transfer as reasonable accommodation, the Supreme Court said:

Employers have an affirmative obligation to make a reasonable accommodation for a handicapped employee. Although they are not required to find another job for an employee who is not qualified for the job he or she was doing, they cannot deny an employee alternative employment opportunities reasonably available under the employer's existing policies.

Marsh v. Arline, --- U.S. ---- n. 19, 107 S.Ct. 1123, 1131 n. 19, 94 L.Ed.2d 307 (1987). Although dicta, such language suggests that an employer is not required to find alternative employment for an employee who cannot perform his job unless the employer normally provides such alternative employment under its existing policies. The post office does not normally assign permanent light duty to an employee who has served for less than five years. ² Thus, the Supreme Court's dicta suggests that Carter was not entitled to a light duty assignment and the failure to provide one was not discriminatory.

The weight of the case law authority which more directly addresses the issue is also against appellant. In Jasany v. United States Postal Service, 755 F.2d 1244, 1250 (6th Cir.1985), the court held that an employer cannot be required to accommodate a handicapped employee by restructuring a job in a manner which would usurp legitimate rights of other employees under a collective bargaining agreement. In Daubert v. United States Postal Service, 733 F.2d 1367 (10th Cir.1984), the Tenth Circuit held that:

USPS could rely on the collective bargaining agreement in discharging Daubert. USPS's contractual obligations to its employees and their union under the collective bargaining agreement clearly articulates [sic] a legitimate business reason for Daubert's discharge.

733 F.2d at 1370. In Wimbley v. Bolger, 642 F.Supp. 481 (W.D.Tenn.1986), the court held that:

[A] federal agency is under no obligation to transfer a handicapped employee from the job for which he is employed to some other position in order to provide him with work which he can perform.

642 F.Supp. at 486. Carty v. Carlin, 623 F.Supp. 1181 (D.Md.1985), concerned a postal worker, who, like appellant,...