Mantolete v. Bolger
| Decision Date | 27 August 1985 |
| Docket Number | No. 83-2197,83-2197 |
| Parties | 38 Fair Empl.Prac.Cas. 1081, 38 Fair Empl.Prac.Cas. 1517, 37 Empl. Prac. Dec. P 35,455, 54 USLW 2123, 3 Fed.R.Serv.3d 273, 3 Fed.R.Serv.3d 569, 18 Fed. R. Evid. Serv. 1015, 1 A.D. Cases 811 Bonnie MANTOLETE, Plaintiff-Appellant, v. William G. BOLGER, in his capacity as Postmaster General, United States Postal Service, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Amy J. Gittler, Phoenix, Ariz., for plaintiff-appellant.
Mary Elcano, Washington, D.C., for defendant-appellee.
Appeal from the United States District Court for the District of Arizona.
Before TANG and PREGERSON, Circuit Judges, and RAFEEDIE *, District Judge.
Bonnie Mantolete brought this action under the Rehabilitation Act of 1973, 29 U.S.C.A. Sec. 791, alleging that the United States Postal Service improperly denied her a position based on her physical handicap. The district court entered judgment for the defendant. Plaintiff makes four assertions on appeal: first, the court erroneously admitted evidence regarding her medical condition which the Post Office did not possess at the time it refused to hire her for the job; second, the court erroneously dismissed plaintiff's class action allegations and refused to allow pertinent discovery; third, the court applied an incorrect legal standard in determining plaintiff was not an otherwise qualified handicapped person; and fourth, the court failed to apply a meaningful standard for determining a reasonable
accommodation could not be made by the Post Office. We affirm the district court on the first two grounds and reverse and remand on the others.
On July 23, 1976, Bonnie Mantolete applied for a job as a machine distribution clerk at the United States Postal Service in Phoenix, Arizona. As a machine distribution clerk, she would have been employed as a Multi Purpose Letter Sorter Machine ("LSM") operator. Mantolete passed a written exam and was placed on a list of people to be considered for the position. She was an epileptic at the time she applied for the position.
Mantolete was referred to the Occupational Medical Clinic for a standard pre-employment physical. Dr. Jose C. Pallares gave her a complete physical, took a medical history, and recommended to the Post Office that she not be placed in a position which would involve driving a vehicle or using dangerous tools or machinery with moving parts. He noted on the Post Office's form that she averaged one grand mal seizure per year, was taking medication, and that her epilepsy was adequately controlled.
Dr. Pallares sent to the Post Office: plaintiff's medical history record, her physical fitness inquiry, a certificate of medical examination, an x-ray report, and a medical report. On the basis of this information, Dr. Mason, the Post Office Medical Officer, recommended to the Phoenix Post Office that Mantolete not be considered further for the LSM position. Mantolete appealed this recommendation unsuccessfully to Dr. Nixon, the Regional Medical Officer. Neither Dr. Mason nor Dr. Nixon requested any additional medical information nor any information regarding plaintiff's prior employment history. Based upon these recommendations, the Post Office denied further consideration of Mantolete's application.
The LSM is a large letter sorting machine on which a crew of 17 machine distribution clerks works. The front of the machine has 12 operator consoles which are 7 feet long by 33 inches wide. There are various mail racks and trucks in the adjacent area. The back has 277 mail bins into which letters are automatically sorted and again, various mail racks and trucks are adjacent to it. Both parties agree that the LSM is safe for all employees.
The LSM job entails three distinct functions which an operator normally performs for the coding and distribution of mail. They are called "ledge loading," "keying" and "sweeper-tying". First, in loading the mail, the "ledge loading operation," the machine distribution clerk picks up large trays of mail and places these trays on one of the ledges in the front of the machine. The "ledge loader" is responsible for placing the mail on the ledge so that it can be slowly carried to the automatic "pick-off arm," an arm that is constantly picking off by a vacuum process a one to three-ounce letter and placing it in front of a seated operator for distribution.
Next, in "keying" mail, an operator sits in front of a keyboard and watches as the vacuum arm places a letter on the keyboard for the punching of a distribution code, based on the address, which the operator has committed to memory. Once the code is punched by the operator, the letter is carried along by a drive chain mechanism. Letters move in and out of the operator's field of vision at the rate approximately of one letter per second. The mail supply to the vacuum pick-off arm is controlled by a photoelectric cell. The automatic pick-off arm is approximately two-feet from the seated console operator, and the recessed chains are exposed through a narrow slot. The size of the arm is approximately 8-12 inches long and 3/4 inches in diameter. The arm is well-rounded, with no sharp corners.
The final job duty performed by a machine distribution clerk is called "sweeper-tying." An operator pulls mail which has been sorted by the console operator and carried to the back of the machine. The Another duty of the sweep-tyer is to disengage letters jammed in the machine. The area in which the sweeper-tyer removes jammed letters is called the "dropper jam" area and is located just above letter carts that carry mail throughout the machine. In order to unjam a letter, an employee must first turn a switch which halts the movement of a dropper arm, but not the letter carts, and then opens a plexiglass door marked "caution" in order to reach into the jammed area.
operator retrieves the mail from the slots. A person who cannot reach the top bins climbs on a stool to reach mail in those bins.
From 1971 through the trial below, Ms. Mantolete was successfully employed in various capacities at Motorola. Specifically she worked in the epitaxial, thryster, piece parts and metal small signal assembly departments. Her work in those departments involved the operation of a number of sophisticated machines including a vapor washer, a high speed box spinner, a wafer scrubber, a high pressure water blasting cleaning machine, a stamping machine, a dyeing machine and a rotary welder. Other responsibilities required Ms. Mantolete to pour at shoulder-level five gallon jugs of lye and acids into degreasing machines, to load and withdraw items from hot furnaces, and to operate an envelope stuffer machine which rhythmically carried and stuffed checks into envelopes. Finally, Ms. Mantolete also worked in the Motorola cafeteria where there were steam tables, a meat slicing machine and a high coffee urn that employees had to fill by standing on a stool or ladder.
Ms. Mantolete was accustomed to working a twelve-hour night shift and was described by her supervisor as a "very good employee," "very productive", "always willing to learn new jobs", a "self-starter" with an above average attendance record. On the night shift she was "alert" and "wide awake" and worked without difficulty.
Mr. Robert Roehl, plaintiff's rehabilitation engineer, testified at trial that the work Ms. Mantolete performed, and the machinery she worked on at Motorola, exposed her to moving parts that were slightly more dangerous than the postal service machine but were not unsafe. The Postal Service did not contradict this testimony.
Epilepsy is defined as a paroxysmal disorder of the nervous system which may be associated with, or accompanied by, impairment of the individual's consciousness or awareness and may also be accompanied by convulsive or more complex movements of the body.
The extent of Ms. Mantolete's condition is somewhat in dispute. She has what are commonly referred to as "grand mal" or generalized seizures, involving the whole body or whole brain, loss of consciousness, convulsive movements and in some cases, "tonic" movements or, a stiffening of the extremities and "clonic" movements or a "jerking" of the extremities.
Since contracting the disorder in 1967, Ms. Mantolete has averaged one grand mal seizure per year during the day, although, between 1978 and 1981 she had no daytime generalized seizures at all. She also has nocturnal seizures, seizures which occur while she is asleep.
There are three principal areas of contested facts regarding Ms. Mantolete's medical condition. First, the Postal Service contends that she has partial seizures with complex symptoms. In Ms. Mantolete's case, these are believed to include a loss of awareness of her surroundings and a distortion in her perception of passage of time. Ms. Mantolete describes these occurrences as periods of "daydreaming" and denies they are seizures of any kind. There is apparently no dispute that these periods occur once every two or three weeks and last only a few moments.
Second, the Postal Service argues that Ms. Mantolete is sensitive to photic stimulation, that is, a propensity in certain epileptics to be sensitive to flashing lights so as to cause seizures. Ms. Mantolete acknowledges As adduced at trial, most people diagnosed as epileptic require some time initially to adjust to medication for their particular disorder. After this period, the number and severity of seizures is decreased. During the twelve years prior to this trial that Ms. Mantolete worked at Motorola, she had three seizures at work. She has never been injured as a result of any seizure in her lifetime. Defendant's witness, Dr. Alan Yudell, who was formerly Ms. Mantolete's treating physician, testified that her potential for...
To continue reading
Request your trial
-
Guckenberger v. Boston University
...about disabilities." H.R.Rep. No. 101-485, pt. II, at 105 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 388; see also Mantolete v. Bolger, 767 F.2d 1416, 1422 (9th Cir.1985) (finding that Congress's intent in enacting the Rehabilitation Act was "to prevent employers from refusing to give much......
-
Coffman v. West Virginia Bd. of Regents, 17904
... ... It does not include a requirement to reassign or transfer an employee to another position." Id. at 1188. See also Wimbley v. Bolger, 642 F.Supp. 481 (W.D.Tenn.1986) (reasonable accommodation does not require federal agency to transfer handicapped employee from job for which he was ... United States Postal Serv., 755 F.2d 1244, 1249-50 (6th Cir.1985); Gardner v. Morris, 752 F.2d 1271, 1280-81 (8th Cir.1985); Mantolete v. Bolger, 767 F.2d 1416 (9th Cir.1985); Pushkin v. Regents of the Univ. of Colorado, 658 F.2d 1372 (10th Cir.1981); Treadwell v. Alexander, 707 ... ...
-
Eckles v. Consolidated Rail Corp.
...Cir.1987) (finding epilepsy to be handicap under Rehabilitation Act and collecting other cases finding the same); Mantolete v. Bolger, 767 F.2d 1416, 1419-20 (9th Cir.1985) (epilepsy is handicap under Rehabilitation Act even though person averaged only one grand mal seizure per year).4 Seco......
-
Bryant v. Better Bus. Bureau of Greater Maryland, Civil No. AMD 95-970.
...1080 (6th Cir.1988) ("An accommodation is not reasonable ... if ... it imposes an undue hardship...."); see also Mantolete v. Bolger, 767 F.2d 1416, 1423-24 (9th Cir.1985) (placing initial and ultimate burdens on defendant/employer to prove its inability to accommodate); Prewitt v. United S......
-
Disability discrimination
...Act claims and therefore, probably ADA claims. Strathie v. Dep’t of Transp., 716 F.2d 227 (3rd Cir. 1983); Mantolete v. Bolger , 767 F.2d 1416 (9th Cir. 1985). The “substantial evidence or basis” test is primarily utilized in assessing administrative determinations. Both the Fifth and Secon......
-
Permitting After-Acquired Evidence of Employee Qualifications Perpetuating a McKennon Distinction Without a Difference.
...discrimination). (51.) See infra notes 53-57, 59-60 and accompanying text (explaining different outcomes and justifications). (52.) 767 F.2d 1416 (9th Cir. (53.) See id. at 1417-18 (assessing handicap discrimination claim brought under Rehabilitation Act); see also Zemelman, supra note 4, a......
-
Challenges for the mentally ill: the "threat to safety" defense standard and the use of psychotropic medication under Title I of the Americans with Disabilities Act of 1990.
...invoked a "risk-to-self-or-others" formulation. See, e.g., Chiari v. League City, 920 F.2d 311, 316 (5th Cir. 1991); Mantolete v. Bolger, 767 F.2d 1416, 1421 (9th Cir. 1985). A few courts have adopted a "risk-to-self" standard. See, e.g., Bentivegna v. United States Dept. of Labor, 694 F.2d......
-
Same struggle, different difference: ADA accommodations as antidiscrimination.
...the unavailability of a reasonable accommodation, as well as the undue hardship that one would cause, on defendants. Mantolete v. Bolger, 767 F.2d 1416, 1423-24 (9th Cir. 1985); Prewitt v. U.S. Postal Serv., 662 F.2d 292, 308 (5th Cir. Unit A Nov. 1981). The Second Circuit takes a middle gr......
-
29 C.F.R. 1630 app to Part 1630 Interpretive Guidance On Title I of the Americans With Disabilities Act
...with a disability. See Senate Report at 56; House Labor Report at 73-74; House Judiciary Report at 45. See also Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985); Bentivegna v. U.S. Department of Labor, 694 F.2d 619 (9th Cir.1982).Section 29undefined1630.3 Exceptions to the Definitions of ......