Jasany v. U.S. Postal Service

Decision Date28 February 1985
Docket NumberNo. 84-3134,84-3134
Citation755 F.2d 1244
Parties37 Fair Empl.Prac.Cas. 210, 36 Empl. Prac. Dec. P 35,070, 1 A.D. Cases 706 Thomas JASANY, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Donald Weisberger, Elliott Lester, argued, Cleveland, Ohio, for plaintiff-appellant.

Dale F. Kainski, Asst. U.S. Atty., Alan J. Ross (FTS), argued, Cleveland, Ohio, Robert P. Henderson, Office of Labor Law, Chicago, Ill., Mary S. Elcano, U.S. Postal Service, Washington, D.C., for defendants-appellees.

Before KENNEDY, MARTIN and WELLFORD, Circuit Judges.

CORNELIA G. KENNEDY, Circuit Judge.

This is an appeal from the judgment of the District Court in favor of the defendants in an employment discrimination case. The appellant, Thomas Jasany, alleges that his discharge from the United States Postal Service (post office) was based on handicap and sex discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 701, et seq., and the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq. The case was submitted to the District Court on briefs and an extensive stipulation of the facts.

Facts

Jasany was born with a mild case of strabismus, commonly known as crossed eyes. In September, 1976, having successfully passed the Letter Sorter Machine Vision Examination and other requirements for the position, he was hired for the position of Distribution Clerk Machine Trainee. His primary function in the position was to operate a mail sorting (LSM-ZMT) machine. Upon satisfactory completion of his probationary period, in January, 1977, he was promoted to Distribution Clerk, Part-Time Flexible (PTF), Machine Qualified. Although he continued to operate the LSM-ZMT, in this position he was required to perform whatever other duties he was assigned by the post office, including those duties performed by manual distribution (not machine qualified) clerks. As his job title suggests, he was also required to work an irregular schedule of up to 40 hours per week, although 40 hours was not guaranteed.

Post office employees are hired for specific entry level positions. They take examinations for those positions and their names are placed on a register in order of examination scores. Machine operators and manual distribution clerks are hired from separate registers. PTF operators bid for full time positions as they open up. If no bids are received, the senior PTF operator is converted to full time. Operators who bid or are assigned to full time positions are subject to a "lock-in" period. Prospective trainees are advised of these conditions of employment before hire.

After three months as a PTF machine operator, Jasany began to develop eye strain, headaches, and excessive tearing. Between March and August, 1977, several letters were exchanged between Jasany's physician, Dr. Kamen, and post office officials, in which Dr. Kamen indicated that Jasany's symptoms were the result of the detailed visual work required to operate the LSM-ZMT in combination with his strabismus. Prior to March, 1977, and after his removal from the LSM-ZMT, Jasany's vision and health were unaffected by his congenital condition. He participated fully in school, work, sports, and recreational activities, as well as all other normal daily activities of every kind whatsoever without limitation.

On July 29, 1977, Jasany refused an order to operate the LSM-ZMT, for which he was suspended from work for seven days. After returning to work, he again refused assignments to operate the machine on August 9, 10, and 11. Based on these incidents, Jasany's supervisor requested that he be given a Fitness for Duty Examination. On August 22, 1977, he was given such an examination and found to be disqualified for further employment as an LSM-ZMT operator. Consequently, he was notified that he was to be discharged, effective September 30, 1977.

On August 26, 1977, the American Postal Workers Union (APWU) filed a grievance on Jasany's behalf. At arbitration, the APWU argued that the Distribution Clerk PTF position was two-fold, encompassing both manual distribution clerk and machine distribution clerk, and that Jasany's eye strain was a job-related injury entitling him to reassignment regardless of seniority under p 13 the National Agreement. The arbitrator ruled in favor of the post office, finding that Jasany was specifically hired as a machine operator, and that his eye strain was not an injury entitling him to reassignment under the union contract.

In 1978, Jasany filed a formal complaint with the EEOC alleging that he had been discriminated against because of a physical handicap. In 1981, an EEOC Attorney Examiner ruled in his favor. The post office rejected the Attorney Examiner's findings in a final agency decision of no discrimination. Jasany filed a second complaint with the EEOC in 1979 alleging discrimination on the basis of sex. This complaint was set for hearing after the filing of the instant lawsuit, and at the request of the post office administrative procedures were thereby suspended.

Jasany makes three assertions of error. First, with respect to his claim of handicap discrimination, he contends that the District Court erred in its conclusion that he was not a "qualified handicapped person" within the meaning of 29 U.S.C. Sec. 794, as defined by 29 C.F.R. Sec. 1613.703. Second, with respect to his sex discrimination claim, he argues that the District Court erred in considering the nondiscriminatory reason for his discharge proffered by the post office because it was neither offered in evidence nor probative. Finally, Jasany asserts that the District Court abused its discretion in denying his Fed.R.Civ.P. 60(b) motion, based on the discovery of an internal post office memorandum that he claims was deliberately withheld from the court and himself by the post office and which mandates judgment in his favor.

I. Handicap Discrimination

To assert a claim that he was discriminated against because of a physical handicap, Jasany must satisfy the threshold requirement that he is a handicapped person as defined by the statute. A handicapped person is one who "has a physical or mental impairment which substantially limits one or more such person's major life activities." 29 U.S.C. Sec. 706(7)(B)(i) (emphasis added). "Major life activities" is defined in 29 C.F.R. Sec. 1613.702(c) as "functions, such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working " (emphasis added). The District Court reasoned that Jasany's strabismus impaired his ability to work on the LSM-ZMT, which qualified as a major life activity, and held that he was a handicapped person within the meaning of 29 U.S.C. Sec. 706(7)(B). The appellees do not question that Jasany's strabismus qualifies as a "physical or mental impairment." They do, however, challenge the conclusion that Jasany's impairment meets the second part of the definition. 1

In E.E. Black, Ltd. v. Marshall, 497 F.Supp. 1088 (D.Hawaii 1980), the court carefully considered the definition of a handicapped individual in 29 U.S.C. Sec. 706(7). 2 It concluded that an impairment that interfered with an individual's ability to do a particular job, but did not significantly decrease that individual's ability to obtain satisfactory employment otherwise, was not substantially limiting within the meaning of the statute. 497 F.Supp. at 1099-1100; see also Salt Lake City Corp. v. Confer, 674 P.2d 632, 636-37 (Utah 1983) ("one particular job for one particular employer cannot be a 'major life activity' " (emphasis in original)) (interpreting identical language in state statute). The Black court suggested a number of factors relevant to determining whether an impairment substantially limited an individual's employment potential--the number and type of jobs from which the impaired individual is disqualified, the geographical area to which the individual has reasonable access, and the individual's job expectations and training. 497 F.Supp. at 1100-01.

Black was an appeal from an ALJ's determination that an individual, refused employment as an apprentice carpenter because of a congenital back anomaly, was not handicapped because his impairment did not affect his employability generally. Although the appellant was not functionally limited, the refusal of employment was based on the ground that his impairment made him more prone to injury. The ALJ had reasoned that focusing on particular fields rather than on employability in general would lead by way of illustration to the anomolous result that individuals too slow to play professional football or too short to play basketball would be able to surmount the initial burden of demonstrating that they were handicapped individuals in challenging their exclusion from those jobs. The Black court responded that the ALJ's concerns were misplaced, since those individuals would not be protected by the Act, not because their "impairment" did not substantially limit their employability, but because they were not capable of performing the particular job in question and hence were not "qualified handicapped individuals" within the meaning of 60 C.F.R. Sec. 60-741.2. Id. at 1099-1100; see also 29 C.F.R. Sec. 1613.702(f). The court concluded that the policy of the defendant employer must be ascribed all employers offering the same or similar jobs, and that the appellant's impairment constituted, for him, a substantial handicap to employment when the factors listed above were applied. Id. at 1102.

Black represents the most comprehensive examination by a court to date of the Sec. 706(7) definition of "handicapped." While we agree with the Black court's conclusion that in applying the definition, the impairment at issue must be evaluated with reference to the individual job seeker, that court did not adequately analyze the focus and...

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