Opinion
CV-00-71-ST
October 19, 2001
OPINION
INTRODUCTION
Plaintiff, James Sharpe ("Sharpe"), filed this action on January 13, 2000, against his former employer, the Postmaster General of the United States Postal Service ("USPS"). Plaintiff alleges two claims for discrimination and failure to accommodate his disabilities in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 790-94c, as amended by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978, 29 U.S.C. § 701-797b ("Rehabilitation Act"). The First Claim for Relief alleges that the USPS failed and refused to reasonably accommodate Sharpe's disabilities despite his requests for reassignment to a light duty position, reassignment to various available and suitable positions, and modification of his working conditions. The Second Claim for Relief alleges that because of Sharpe's disabilities, the USPS subjected him to adverse employment actions, including failing and refusing to follow his medical restrictions, reassigning him to a less favorable shift, treating him rudely and ridiculing him, and failing and refusing to accommodate his disabilities. Although the Second Claim for Relief overlaps the First Claim for Relief with respect to the USPS's alleged failure to reasonably accommodate Sharpe's disabilities, it is premised upon the broader theory that Sharpe cannot resume employment due to a hostile working environment.
This court has jurisdiction pursuant to 28 U.S.C. § 1331. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 U.S.C. § 636(c).
The USPS has filed a Motion for Summary Judgment against both claims for relief (docket #18). For the reasons that follow, that motion is granted.
LEGAL STANDARD
FRCP 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party shows the absence of an issue of material fact, the non-moving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id at 324. A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir), cert denied, 493 U.S. 809 (1989).
The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir 1987). The court must view the inferences drawn from the facts in the light most favorable to the non-moving party. Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id at 630-31. However, when the non-moving party's claims are factually implausible, that party must come forward with more persuasive evidence than would otherwise be required. California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics Inc., 818 F.2d 1466, 1468 (9th Cir 1987), cert denied, 484 U.S. 1006 (1988). The Ninth Circuit has stated, "No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." Id at 1468.
UNDISPUTED FACTS
As required on a motion for summary judgment, this court construes all facts in favor of plaintiff. Taking as true all undisputed facts, and drawing all inferences from the remaining facts in Sharpe's favor, the record reveals the following:
Sharpe was employed by the USPS from July 6, 1985, until January 14, 1999, at the USPS's General Mail Facility on Hoyt Street, Portland, Oregon. During the relevant time period, he worked as an Automation Clerk, formally referred to as a Level Four Mail Processor. According to the job description, the function of a Level Four Mail Processor is to perform "a combination of tasks required to process mail using a variety of automated mail processing equipment." Declaration of Paul Nettler ("Nettler Dec."), Ex 3, p. 1. At the Hoyt Street facility, the Automation Unit contained at least the following four machines: the digital bar code scanner ("DBCS"), optical character reader ("OCR"), bar code reader and distributer ("ECA"), and sticker applicator for re-coding ("LMLM"). Operating these machines involves lifting.
Although the USPS also refers to a letter sorting machine ("LSM"), Sharpe does not. Sharpe Depo, pp. 44-45.
In 1995, Sharpe developed lower back problems which limited his ability to operate the DBCS machine. On November 7, 1996, based on an ergonomic assessment, Sharpe was relieved from having to operate the DBCS machine and was no longer permitted to work overtime despite the availability of overtime work within his restrictions. Sharpe requested permanent light duty some time before June 1997, and underwent a Fitness for Duty examination on June 11, 1997, but received no offer of permanent light duty.
The documents refer to the DBC machine, which apparently is the same as the DBCS machine.
Beginning in July 1997, Sharpe became suicidal and depressed. Then in early October 1997, he was injured while working on the ECA machine. On October 17, 1997, Dr. John Reichel confirmed that Sharpe was permanently restricted from operating the DBCS machine, from repetitive lifting, bending, or stooping, and from lifting over 26 pounds. These restrictions also prohibited Sharpe from operating any of the other machines.
On October 29, 1997, Larry Triano ("Triano"), Manager of Distribution Operations ("MDO") at USPS's Portland distribution center, told Sharpe that he was not going to receive permanent light duty and that he needed a 365 day light duty assignment if he wanted to remain employed with the USPS. That same day, Sharpe completed a Light Duty Request form requesting a temporary light duty assignment for approximately 365 days. However, some unknown person later altered Sharpe's request to only 60 days.
Because this form references Article 13 of the National Agreement, it appears to be related to the terms of a collective bargaining agreement. Other references in the record indicate that the National and Local Agreements allow for light duty assignments within a prescribed period.
The record contains very little evidence indicating what occurred between Sharpe and the USPS between October 1997 and May 1998. However, Sharpe apparently continued working on Tour 2 (day shift) in the temporary light duty assignment, with the USPS renewed every 60 days. That work consisted first of coloring labels, then casing mail, and then patching mail (repairing mail envelopes damaged by the machines). This is work reserved for employees with restrictions. At some point Sharpe filed a claim with the Office of Workers' Compensation Claims ("OWCP") for workers' compensation benefits. The OWCP ultimately denied his claim sometime after June 1998.
As his condition continued to deteriorate, Sharpe made ongoing requests for assistance to USPS management. The only response he received was that he should apply for disability retirement. On April 24, 1998, out of desperation Sharpe did apply for disability retirement based on "continual work related pain and depression" caused by the USPS' "failure to accommodate [his] work related injury" and "policy against handicaps." Defendant's Concise Statement of Material Facts, Attachment 1, p. 36. He also stated that his supervisor and manager had managed to lower his esteem "to the point of suicide" by harassing and intimidating him. Id. The supervisor who signed Sharpe's application for disability retirement on May 24, 1998, indicated that Sharpe was put "in a light duty, temporary assignment which is within his medical limitations." Id at 37. In the section asking what efforts have been made to accommodate the employee, the supervisor wrote that Sharpe "is allowed to get up and walk/stand in his work area when he feels the need to do it" and that he "does not lift more than 26 pounds." Id.
Shortly thereafter on May 27, 1998, Sharpe inquired of MDO John Gedlick ("Gedlick") whether "there is an option to work in Vancouver in a job that is not physical" and requested that Gedlick "contact Mr. Middleton and explore my alternatives to disability retirement." Sharpe Dec, Ex E, p. 1. On June 3, 1998, Gedlick replied that there was "not a chance" because he was not a "full duty regular." Id, Ex E, p. 2.
Some time in the spring of 1998, Tal Middleton ("Middleton"), the Senior Plant Manager, decided to create a time gap from 6:00 a.m. to 9:00 a.m. between the end of Tour 1 (graveyard shift) and the beginning of Tour 2 (day shift). This change was designed to allow maintenance workers to have unencumbered access to the machinery used to process and distribute mail and to reduce the complaints by craft employees of the paper dust blown into their work areas by the use of air hoses on the machinery by the maintenance workers. Middleton's decision entailed a significant change in the start time for Tour 2 and required rebidding of all Tour 2 positions to allow employees with greater seniority on Tours 1 and 3 a chance to bid on the Tour 2 positions with the later start time.
Because of this change, the USPS sent Sharpe a letter on June 2, 1998, stating that his "current position Automation Clerk is abolished effective June 20, 1998." Id, Ex G, p. 1. On June 10 and 16, 1998, Sharpe made further written inquires concerning a permanent light duty assignment to the manual distribution cases on Tour 2 with Sundays and Mondays off or to Vancouver. He received no response.
To make a bid for a Tour 2 position, the Collective Bargaining Agreement would have required Sharpe to clear his medical restrictions within six months of his bid. Because he could not do that, he did not submit a bid.
On July 15, 1998, Sharpe provided to Triano a Clinician's Report of Disability indicating that due to his depression, Sharpe needed to continue his "present permanent physical work restrictions" and also "remain on present shift and schedule [Tour 2] . . . to keep [a] stable routine." Sharpe Dec, Ex J. On July 16, 1998, Triano responded with a letter stating:
In reference to your memo dated July 15, 1998, the following information is provided. The copy of the medical unit documentation on your restrictions shows only that your doctor has determined your condition permanent and does not reflect the medical unit or Postal Service determination of your pending status or condition. You requested paperwork from the supervisor/204B and it was unclear as to what you were asking for related to light or limited duty.
The forms can be used for both light or limited duty but, your temporary light duty request has been honored every 60 days from the original date of October 29, 1997 and your current schedule change expires on July 18, 1998. The National and Local contract allow for light duty assignments within a prescribed period. You were sent correspondence regarding your current job status as an unassigned regular in PL 282, however this letter came back refused. Your current request for permanent light/limited duty is with the Sr. Plant Manager being considered. The local Injury Compensation office has been asked once again to find out the status of your current claim.
Id, Ex K.
At the close of bidding in July 1998, no vacant, or residual, bid positions remained on Tour 2. As a result of the bidding, Tour 3 had several new vacancies, but Sharpe was not actually placed in any of those vacant positions since he could not meet their physical requirements. On July 17, 1998, Sharpe received a letter dated July 11, 1998, notifying him that effective July 21, 1998, he would be reassigned as an unassigned Regular to Tour 3 (swing shift), not Tour 2 as required by Sharpe's July 15, 1998 restrictions. Under the terms of the Collective Bargaining Agreement, unassigned Regulars do not hold a bid position and may be assigned to positions where they best meet the operational needs of the USPS consistent with their physical restrictions. Tour 3 had an operational need for the light duty that Sharpe could perform.
Also on July 21, 1998, Sharpe requested 136 hours of advanced sick leave, indicating that the request was based on his doctor's opinion that it was necessary for his health and well-being. The next day, he wrote a letter to the "hotline" at the Office of Inspector General ("OIG") requesting an investigation. On July 23, 1998, Middleton denied the request for advanced sick leave stating: "Considering your request for Disability retirement and the medical documentation provided with this request for advanced sick leave it is my belief that you do NOT intend to return to duty." Sharpe Dec, Ex L (emphasis in original). Feeling hopeful that the OIG would intervene, on July 28, 1998, Sharpe withdrew his application for disability retirement.
Also on July 28, 1998, Corrine Loprinzi, Senior Personnel Services Specialist ("Loprinzi"), authored a memorandum to Sharpe advising that he was now available for an arbitrary assignment to a residual vacancy and asking him to indicate his preference from an enclosed list of currently available residual vacancies at his salary level for which he was fully qualified. Apparently all of those residual vacancies were on Tour 3. Sharpe responded that he had been "in a holding pattern until Disability Retirement is issued and Workers' Comp finalizes" and enclosed Dr. Reichel's July 29, 1998 letter outlining Sharpe's restrictions. Defendant's Concise Statement of Material Facts, Attachment 1, p. 35. Sharpe apparently received no response to his repeated inquiries. By August 5, 1998, Triano had contacted Margaret Grey (position unidentified) regarding Sharpe's "FFD request," and she was "trying to figure out just what the best plan would be for [Sharpe]." Sharpe Dec, Ex N.
Although this letter is dated "July 3, 1998," it refers to Loprinzi's July 29 memorandum. Therefore, it had to be written after July 29 and likely is misdated and actually was written on August 3, 1998.
Once again on October 15, 1998, Dr. Maroney informed the USPS that Sharpe should only work on Tour 2, reiterating his previous physical restrictions.
On October 21, 1998, at the suggestion of MDO Rick DeWolfe ("DeWolfe"), Sharpe again requested a permanent light duty position which DeWolfe interpreted as a request for accommodation. Margaret Grey advised DeWolfe that upon receipt of Sharpe's request, an independent medical exam would be scheduled to determine the extent of his permanent restrictions and then an appropriate placement would be sought within those restrictions. Sharpe received no response to his request.
The record contains a notice signed by DeWolfe on October 21, 1998, assigning Sharpe to permanent light duty on Tour 3. However, the parties agree that Sharpe was never actually placed on permanent light duty status.
Hearing nothing from the USPS about his request for permanent light duty or from OIG, he decided to reactivate his disability retirement claim on November 4, 1998. Marguerite Collier ("Collier") in Human Resources told him that he would have 14 days after approval of his disability retirement request to either accept or reject the retirement.
In late December 1998, Middleton told Sharpe about a possible liaison position that would be specifically created for him that would not be subject to the restrictions of any Collective Bargaining Agreement. When Sharpe learned on January 10 or 11, 1999, that his disability retirement had been approved on January 7, 1999, he confirmed with Collier that he had 14 days to accept or reject disability retirement. On January 14, 1999, he advised Collier that he wanted to rescind his application for disability retirement because Middleton was preparing a position for him. Collier then advised him that it was too late and he had already been separated from his employment. Sharpe was terminated from his employment effective January 14, 1999.
ANALYSIS
I. Legal Standards
Sections 501 and 504 of the Rehabilitation Act prohibit federal employers from discriminating against handicapped individuals solely by reasons of their handicap. School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 277-79 (1987), reh denied, 481 U.S. 1024 (1988). Section 504 of the Rehabilitation Act provides in pertinent part that:
No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, 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. § 794(a).
In 1978, Congress added a private right of action by enacting 29 U.S.C. § 794a(a)(2), which provides that the rights and remedies available under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 et seq, are available to a person complaining of discrimination in violation of 29 U.S.C. § 794.
The duty on federal employers under the Rehabilitation Act "goes beyond mere nondiscrimination; the regulations promulgated under section 501 emphasize the affirmative obligation to accommodate." Buckingham v. United States, 998 F.2d 735, 739 (9th Cir 1993). In fact, by administrative rule, federal employers are required to be "model" employers of individuals with handicaps:
The Federal Government shall become a model employer of individuals with handicaps. Agencies shall give full consideration to the hiring, placement, and advancement of qualified individuals with mental and physical handicaps. An agency shall not discriminate against a qualified individual with physical or mental handicaps.29 C.F.R. § 1614.203(b).
The substantive standards governing claims under the Rehabilitation Act are the same as those governing claims under the ADA. 29 U.S.C. § 791(g) 794(d); Newland v. Dalton, 81 F.3d 904, 906 (9th Cir 1996). To establish a prima facie case of discrimination under Section 504 of the Rehabilitation Act, a plaintiff must show: (1) he is an "individual with a disability;" (2) he is "otherwise qualified" to receive the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance. Weinreich v. Los Angeles County Metropolitan Transp. Auth., 114 F.3d 976, 978 (9th Cir), cert denied, 522 U.S. 971 (1997).
Title I of the ADA forbids an employer to "discriminate against a qualified individual with a disability because of the disability of such individual. . . ." 42 U.S.C. § 12112(a). Title II of the ADA is modeled after Section 504 of the Rehabilitation Act. Weinrich, 114 F.2d at 978.
II. Failure to Accommodate (First Claim for Relief)
For purposes of this motion, the USPS concedes that Sharpe has a disability and that it is subject to the Rehabilitation Act. However, the USPS asserts that Sharpe cannot show that he was "otherwise qualified," and that even if he could make such a showing, he was not discriminated against by reason of his disability.
A. "Otherwise Qualified"
A "qualified individual" under the Rehabilitation Act is "an individual with handicaps who, with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and safety of the individual or others." 29 C.F.R. § 1614.203(a)(6). This determination requires a two-pronged analysis. First, is the worker qualified to perform the essential requirements of the job without a reasonable probability of substantial injury to the worker and others? If not, then can reasonable accommodations be made, without undue hardship to the employer, sufficient to enable the worker to perform the essential requirements of the job without a reasonable probability of substantial injury to the worker or others? Arline, 480 U.S. at 287 n 17; Mantolete v.Bolger, 767 F.2d 1416, 1423 (9th Cir 1985), amended to include concurring opinion, 38 FEP Cases 1517 (Aug 27, 1985).
1. Essential Functions of the Job
The USPS argues that operating machines is an "essential function" of the Level Four Mail Processor job and that because Sharpe could not operate any machines, he was not a "qualified individual" with a disability. Sharpe concedes that due to aggravation of his back he was unable to operate any machines as of October 1997, but contends that operating machines was not an "essential function" of the job or, at the very least, a genuine issue of material fact exists as to whether operating machines is essential which should be reserved for a jury.
As an initial issue, the court must first determine the job for which Sharpe must establish his qualifications. Are the relevant essential job functions those of a Level Four Mail Processor, which was Sharpe's official job position prior to his termination, or those of his temporary light duty position to which he was assigned after his injury? The Eighth Circuit Court of Appeals faced a similar situation in Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1047 (8th Cir), cert denied, 528 U.S. 1050 (1999) and determined job qualifications with respect to the employee's long-held, rather than temporary, job duties.
Some cases have decided job qualifications based on reassigned, rather than original, job duties, but are distinguishable from this case. For example, in Taylor v. Garrett, 820 F. Supp. 933, 938 n 9 (E.D. Pa 1993), the court determined job qualification using the employee's permanently reassigned light duty position instead of his pre-injury position as a rigger, even though the employee was still classified as a rigger. However, the employer had never disputed the employee's qualifications as a rigger and the reassignment was permanent. In contrast, the USPS disputes Sharpe's qualifications as a Mail Processor and consistently refused to give him a permanent light duty assignment.
Similarly, in Florence v. Runyon, 990 F. Supp. 485, 493 (N.D. Tex1997), the court determined job qualifications with respect to a reassigned position which had been formally offered and accepted, rather than informally created and short-term, as with Sharpe. In another example, Valdez v. Albuquerque Pub. Sch., 875 F. Supp. 740, 742 (D NM 1994), followed Taylor and held that the employee worked in a restructured job as a supervisor, rather than in a temporary light duty position, as in this case.
Browning also is supported by considerable authority from other jurisdictions. See Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697-98 (7th Cir 1998); Shiring v. Runyon, 90 F.3d 827, 831-32 (3rd Cir 1996); Clark v. Central Cartage Co., 73 F.3d 361, 1995 WL 758459, *4 n 2 (6th Cir 1995) (unpublished opinion); Johnson v. Loram Maint. of Way, Inc., 83 F. Supp.2d 1007, 1013 (D Minn 2000); Hill v. Harper, 6 F. Supp.2d 540, 543 (E.D. Va 1998); Bowers v. Bethany Med. Ctr., 959 F. Supp. 1385, 1390 (D Kan 1997); Champ v. Baltimore County, 884 F. Supp. 991, 998 n 3 (D Md 1995), aff'd 91 F.3d 129 (4th Cir 1996). Therefore, this court will ascertain the essential functions of Sharpe's long-held job of Level Four Mail Processor.
A job's "essential functions" are defined in 29 C.F.R. § 1630.2(n)(1) as those that are "fundamental," not "marginal." The regulations list several factors to consider when distinguishing the fundamental from the marginal job functions, including: (1) whether the performance of the function is "the reason the position exists;" (2) whether there are a "limited number of employees available among whom the performance of that job function can be distributed;" and (3) whether the function is "highly specialized so that the incumbent in the position is hired for his or her expertise." 29 C.F.R. § 1630.2(n)(2). The regulations further set forth a non-exhaustive list of seven examples of evidence that are designed to assist a court in identifying the "essential functions" of a job. They include:
(i) The employer's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii)The current work experience of incumbents in similar jobs.29 C.F.R. § 1630.2(n)(3).
Of the three factors included in 29 C.F.R. § 1630.2(n)(2), two are not present in this case as Mail Processors are not highly specialized and hired because of their expertise and the record contains no evidence to evaluate whether only a limited number of employees are available for performing the job function. The remaining factor appears to support the USPS since the job description states that the Level Four Mail Processor's function is to use "a variety of automated mail processing equipment." Nettler Dec, Ex 3, p. 1. Thus, operating machines seems to be the primary reason why the job exists.
Moreover, consideration of the seven evidentiary examples included in 29 C.F.R. § 1630.2(n)(3) clearly weigh in the USPS's favor. According to 29 C.F.R. § 1630.2(n)(3)(i), deference is owed to the USPS's own judgment that operating machinery is essential to the Mail Processor position. The second example, the written job description, also favors the USPS, given its listing of the following four essential job duties:
1. Starts and stops mail processing equipment as needed. Culls out non-processable items as needed.
2. Faces mail and load onto the transport unit for induction into the distribution system.
3. Clears jams in mail processing equipment not requiring the use of hand tools. Notifies the supervisor or maintenance when malfunctions occur.
4. Labels trays appropriately. Sweeps processed mail from stackers and bins and places into trays on carts and racks. Sleeves full trays of mail and rubber bands as needed.
Id.
All of these essential job duties involve the operation of mail processing equipment in one way or another, although they "may vary based upon the office, tour, specific bid assignment, or facility needs." Id.
Other examples concern the employee's actual experience as well as that of other employees. It is undisputed that until his injury, a significant portion of Sharpe's job responsibilities required operating machines. After his injury, Sharpe, similar to other injured employees, no longer worked on the machines. However, the record contains no evidence that uninjured Mail Processors could perform their jobs without operating the machines. Instead, it appears that Mail Processors operated machines if they had no physical restrictions and only those with physical restrictions performed other duties. Of course, Sharpe's own experience exemplifies that no negative consequences resulted from his failure to operate machines, which meets another illustration listed in the regulations. However, it appears that only a limited amount of work is available for Mail Processors who cannot operate machines without impacting the USPS operations. Kuehl Depo, pp. 25-27 ("five percent of the workforce can be accommodated that way").
In sum, the court finds that an essential function of the Level Four Mail Processor position is operating machines.
2. Ability to Perform Job Without Reasonable Accommodation
Sharpe asserts that he can perform the Mail Processor job without accommodation because he did so after his injury from October 1997 until his forced disability retirement in January 1999. The problem with this assertion is that Sharpe was only able to remain employed because of temporary light duty provided by the USPS. As a result, he was required to do only the least physically demanding jobs available, leaving others to complete the more physically demanding tasks. Sharpe's ability to perform these limited duties does not speak to whether he can perform the essential functions of the position of a Level Four Mail Processor. See Allen v. Georgia Power Co., 980 F. Supp. 470, 477 (N.D. Ga 1997) ("Indeed, the fact that Plaintiff had to be placed on `light duty' status shows that Plaintiff was unable to perform all the essential functions of the position electrician").
Thus, Sharpe fails to present sufficient evidence to create a jury question whether he is able to perform the essential functions of the position of Level Four Mail Processor without accommodation.
3. Ability to Perform Job With Reasonable Accommodation
Because Sharpe cannot show that he can perform essential functions of his position without accommodation, he must show that he can perform the essential functions of his position with a reasonable accommodation. "Reasonable accommodations are mechanisms to remove barriers or provide assistance to disabled individuals so that they can perform the `essential functions' of employment positions." Cripe v. City of San Jose, 261 F.3d 877, 889 (9th Cir 2001). A defendant may obtain summary judgment only "in cases in which the plaintiff's proposal is either clearly ineffective or outlandishly costly." Skerski v. Time Warner Cable Co., 257 F.3d 273, 284 (3rd Cir 2001), citing Walton v. Mental Health Ass'n of Southeastern Pa., 168 F.3d 661, 670 (3rd Cir 1999).
What is a reasonable accommodation for a given employer is a highly fact specific inquiry that will vary depending on the circumstances and necessities of each employment situation. Wong v. Regents of Univ. of Cal., 192 F.3d 807, 818 (9th Cir 1999); Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1527 (11th Cir 1997); Hall v. U.S. Postal Serv., 857 F.2d 1073, 1079 (6th Cir 1988). As set forth in the federal regulations promulgated pursuant to the ADA:
An employer or other covered entity may restructure a job by reallocating or redistributing non-essential, marginal job functions. . . . An employer or other covered entity is not required to reallocate essential functions.
29 C.F.R. Pt 1630, Appendix at 344.
Thus, while it may be reasonable for an employer to shuffle some of the duties of a particular position in issue, the employer is not required to eliminate any essential job functions. Holbrook, 112 F.3d at 1527; Cochrum v. Old Ben Coal Co., 102 F.3d 908, 912 (7th Cir 1996); Milton v. Scrivner, Inc., 53 F.3d 1118, 1124 (10th Cir 1995) ("An employer is not required by the ADA to reallocate job duties in order to change the essential functions of a job"). Similarly, an obligation to provide a reasonable accommodation does not require an employer to create a new job. Mengine v. Runyon, 114 F.3d 415, 417 (3rd Cir 1997).
Sharpe requested as a reasonable accommodation that he should be allowed to continue in the capacity in which he was placed for more than a year following his injury. However, this proposed accommodation is inherently unreasonable because it would force the USPS to eliminate the essential functions of the Level Four Mail Processor under the guise of reasonably accommodating Sharpe's disability. According to the EEOC, an employer is not required to create a "light duty" position as a reasonable accommodation:
Many employers have established "light duty" positions to respond to medical restrictions on workers recovering from job-related injuries, in order to reduce workers' compensation liability. Such positions usually place few physical demands on an employee and may include tasks such as answering the telephone and simple administrative work. An employee's placement in such a position is often limited by the employer to a specific period of time.
The ADA does not require an employer to create a "light duty" position unless the "heavy duty" tasks an injured worker can no longer perform are marginal job functions which may be reallocated to co-workers as part of the reasonable accommodation of job-restructuring. In most cases however, "light duty" positions involve a totally different job from the job that a worker performed before the injury. Creating such positions by job restructuring is not required by the ADA. However, if an employer already has a vacant light duty position for which an injured worker is qualified, it might be a reasonable accommodation to reassign the worker to that position. If the position was created as a temporary job, a reassignment to that position need only be for a temporary period.
EEOC Technical Assistance Manual, 9.4 (1992).
The fact that the USPS allowed Sharpe to remain at work on temporary light duty after his injury for 60 days at a time does make this proffered accommodation reasonable. Otherwise, every light duty assignment would automatically become a reasonable accommodation. If an employer already has a vacant light duty position for which an injured worker is qualified, it might be a reasonable accommodation to reassign the worker to that position. If the position created was a temporary job, a reassignment to that position need only be for a temporary period. However, if an employer does not have a permanent light duty position, it is not required to create one or convert a temporary light duty position into a permanent one for purposes of accommodating an employee's disability. Holbrook, 112 F.3d at 1528; Cochrum, 102 F.3d at 912-13; Allen, 980 F. Supp. at 478; McCollough v. Atlanta Beverage Co., 929 F. Supp. 1489, 1503 (N.D. Ga 1996); Mott v. Synthetic Indus., 1995 WL 584734, at *4 (N.D. Ga Aug 9, 1995); Nguyen v. IBP, Inc., 905 F. Supp. 1471, 1485-86 (D Kan 1995); Champ, 884 F. Supp. at 1000; Howell v. Michelin Tire Corp., 860 F. Supp. 1488, 1492 (M.D. Ala 1994).
Because the temporary accommodation of Sharpe's disability eliminated certain job functions, the USPS exceeded what the Rehabilitation Act requires. See Holbrook, 112 F.3d at 1528 ("[T]he City of Alpharetta's previous accommodation may have exceeded that which the law requires. . . . [W]e cannot say that the City's decision to cease making those accommodations that pertained to the essential functions of Holbrook's job was violative of the ADA"); Vande Zande v. State of Wis. Dep't of Admin., 44 F.3d 538, 545 (7th Cir 1995) ("[I]f the employer . . . goes further than the law requires . . ., it must not be punished for its generosity by being deemed to have conceded the reasonableness of so far-reaching an accommodation.")
However, this is not the end of the analysis because Sharpe contends that his light duty was temporary in name only, and that the USPS had reasonably accommodated other injured employees with such light duty on a permanent basis. According to Sharpe, the USPS routinely assigns injured Mail Processors to temporary light duty, and then continues them in the temporary assignment for long periods, in some cases for years. Affidavits from two co-workers allegedly confirm this practice. Kathleen J. Hamblin suffered a work-related injury in 1995 which was determined to be compensable. Since her injury, she has worked full-time on Tour 2 on temporary light duty and since September 15, 1999, has been an unassigned Regular doing patching. Similarly, Gene Hamblin suffered a work-related injury in 1994 which was determined to be compensable. Since his injury he has worked full-time on Tour 2 on temporary light duty and since September 15, 1999, has been an unassigned Regular doing patching and tabbing. Both have requested but been denied a permanent light duty position. The Hamblins maintain that due to a substantial backlog of mail waiting to be patched, Tour 2 has an abundance of available work in patching and could easily keep another one or two full-time employees busy patching and tabbing. This has been the case for the past five years. Moreover, the USPS has informally permitted Automation Clerks to confine their work to one or two machines or job duties on a long-term or permanent basis.
In essence, Sharpe contends that the USPS had a permanent light duty position to which it could have assigned him. The Rehabilitation Act requires reassignment to a vacant position if employees "can no longer perform the essential functions of their positions even with reasonable accommodation." 29 C.F.R. § 1614.102(a)(9); also see Cochrum, 102 F.3d at 913 ("`Reassignment to a vacant position' is another possible accommodation under the ADA"), quoting 42 U.S.C. § 12111(9)(B) and 29 C.F.R. § 1630.2(o)(2)(ii).
The USPS counters that it has no vacant permanent light duty positions to which Sharpe could be reassigned. It does have permanents limited duty positions which are available only to injured workers with compensable worker's compensation claims, such as the Hamblins, but not to injured workers whose worker's compensation claims are denied, such as Sharpe.
The Hamblins state that they both have requested but been denied a permanent light duty position. However, they both suffered work-related injuries and therefore must be receiving worker's compensation benefits from OWCP. As a result, they are eligible for, and likely have, permanent limited duty positions, and not permanent light duty positions. The Hamblins may be confused since the duties of both positions may be the same.
Under the regulatory scheme created by the Department of Labor, 20 C.F.R. § 10.500 et seq, for the Federal Employee Compensation Act, 5 U.S.C. § 8100 et seq, the USPS has certain obligations to injured workers who are eligible to receive benefits from the OWCP. If the OWCP accepts the claim of an injured employee with permanent partial restrictions, then the USPS must find work for that employee consistent with that employee's restrictions. 20 C.F.R. § 10.507(b) ("If the employee can perform restricted or limited duties, the employer should determine whether such duties are available or whether an existing job can be modified.") The USPS meets this obligation through a special classification of modified jobs, Labor Distribution Code ("LDC") 69, which are often referred to as permanent limited duty. These jobs may consist of tasks that are subfunctions, and not essential functions, of an existing position, and are specifically tailored for the injured employee, for example patching, which is a subfunction of a Mail Processor, or answering telephones. If the employee who holds that position is absent, only another LDC 69 employee can cover that work. When the employee leaves that position, the position ceases to exist.
If the USPS cannot bring the employee back to work, then OWCP pays benefits to that employee. The USPS is self-insured for worker's compensation programs and must fully reimburse the OWCP for all benefits paid to injured employees for lost time, rehabilitation, retraining, education and medical benefits. Therefore, the USPS is highly motivated to find some type of work for an employee eligible to receive benefits from OWCP who might be permanently disabled, but capable of some work.
If the OWCP accepts the claim of an injured employee with temporary restrictions, then the USPS similarly will modify work for that employee on a temporary basis which is assigned a LDC 68 job classification.
If an employee has restrictions, but the OWCP has not yet accepted those restrictions as work-related and compensable, then the USPS assumes that it is a compensable work-related injury until the OWCP decides otherwise. Accordingly, it attempts to accommodate that person within an existing job with a temporary light duty assignment or looks for another vacant position that fits the employee's medical restrictions until the OWCP makes a final determination. Again, the USPS has a financial incentive to do so in the event that the OWCP ultimately accepts the worker's compensation claim and pays benefits.
If the OWCP rejects the worker's compensation claim of an injured employee, then the USPS is no longer bound by the obligations of the Department of Labor, but must comply only with the Rehabilitation Act. Unlike employees who are paid benefits by the OWCP, the USPS has no financial incentive to keep that injured employee working, but only a legal obligation to reasonably accommodate that employee.
After October 1997, Sharpe found himself in the twilight zone of being assigned a temporary light duty position while awaiting the OWCP's decision whether to accept his worker's compensation claim. In the event that the OWCP had found his injury compensable, the USPS presumably would have assigned him to a permanent limited duty position, similar to the Hamblins. However, the OWCP rejected his claim. At that point the USPS terminated his employment because it no longer had any reason, financial or legal, to keep him working because in its view, the Rehabilitation Act did not require his continued employment as a Mail Processor performing non-essential tasks. The USPS is correct that it had no obligation under the Rehabilitation Act to create a new modified position for Sharpe, as it does under the Department of Labor regulations. As a result, the USPS provides greater rights to injured workers who receive OWCP benefits (in the form of permanent limited duty positions) than to injured workers who are not eligible for OWCP benefits.
Although the duty to reasonably accommodate Sharpe under the Rehabilitation Act does required the USPS to create a new modified position, it does require the USPS to reassign Sharpe to a vacant position which he can perform. However, those alternative employment opportunities must be reasonably available under the employer's existing policies. Arline, 480 U.S. at 288, n 19. Here, under the USPS's existing policies, permanent limited positions are created exclusively for injured employees whose claims are accepted by the OWCP. Those positions are never vacant, and thus are not available to injured employees such as Sharpe as a possible accommodation. Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 680 (7th Cir 1998) ("The ADA does not compel an employer to reduce the number of bona fide temporary jobs it has set aside in conjunction with a program like the one contemplated by the state worker's compensation statute and to convert them to permanent positions for disabled employees").
Because Sharpe fails to satisfy his burden to show that there is a reasonable accommodation that would allow him to perform the essential functions of his position as a Level Four Mail Processor, he cannot show that he is a qualified individual with a disability or that the USPS unlawfully failed to reasonably accommodate his disability.
B. Interactive Process
Sharpe also argues that the USPS did not engage in any efforts to find him a reasonable accommodation by attempting to locate other vacant positions for which he was qualified. Once the employer knows the "underlying facts" of a disability, the employer has a "mandatory rather than a permissive obligation" to engage in an "interactive process" with the employee. Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114 (9th Cir 2000), cert granted in part, 121 S.Ct. 1600 (2001). This process "should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations." 29 C.F.R. § 1630.2(o)(3).
The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees, and neither side can delay or obstruct the process. . . . Employers who fail to engage in the interactive process in good faith face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible.
Humphrey v. Memorial Hosps. Ass'n, 239 F.3d 1128, 1137-38 (9th Cir 2001), citing Barnett, 228 F.3d at 1116.
Without the interactive process, an employee may be unable to identify effective reasonable accommodations. Therefore, "[t]he range of reasonable accommodation, for purposes or establishing liability for failure to accommodate, can extend beyond those proposed." Barnett, 228 F.2d at 1115. "[A]n employer cannot prevail at the summary judgment stage if there is a genuine dispute as to whether the employer engaged in good faith in the interactive process." Id at 1116. However, unless a reasonable accommodation would have been possible, "the breakdown of the interactive process would be academic." Hansen v. Henderson, 233 F.3d 521, 523 (7th Cir 2000).
The heart of Sharpe's claim is that, rather than engaging in any "interactive process," USPS simply assigned him to temporary light duty while awaiting the outcome of the OWCP process. The USPS apparently is of the view that it can meet its obligations under the Rehabilitation Act by refusing to engage in an interactive process with its disabled workers unless and until the OWCP issues a decision on their worker's compensation claims.
For purposes of this motion, the USPS is not disputing that it was on notice of Sharpe's need for an accommodation as early as October 1997. Once the USPS knew that Sharpe needed an accommodation, it was affirmatively obligated to engage in an interactive process with Sharpe to allow him to perform the essential functions of his position.
However, the only action apparently taken by the USPS was to tell Sharpe to apply for, and then assign him to, temporary light duty work. This court is not privy to the details of what took place between Sharpe and the USPS from October 1997 and April 1998. Sharpe asserts that he repeatedly requested assistance from USPS management in finding a workable accommodation, but that he was rebuffed or encouraged to apply for disability retirement. Finally, out of desperation, he applied for disability retirement on April 28, 1998, accusing the USPS of refusing to accommodate his known restrictions and causing him to suffer from depression. While that application was pending, he continued to request non-physical work, explored alternatives to disability retirement, and met with upper management.
At the time the Tour 2 jobs were rebid, the OWCP had not yet determined whether Sharpe's injury was compensable. Sharpe was told he could bid only on those positions that were "within his medical restrictions" (or would be within six months). Apparently, the only formal biddable "positions" were those which contained requirements which were not within his medical restrictions (i.e. they required "constant lifting" or "constant standing"). Given that Sharpe had been diagnosed with permanent restrictions, he could not take the alternative route of providing documentation that he was capable of assuming the full scope of any available position within six months. And the USPS took the position that without a determination from the OWCP that his injuries were work-related, he was not entitled to a permanent limited duty position, nor was he eligible to transfer to non-physical work in Vancouver. In other words, unless and until the OWCP determined his injures to be compensable, Sharpe was relegated to temporary light duty despite the permanent nature of his restrictions.
Nothing in the record indicates that the USPS undertook any "interactive" process to find a long-term workable accommodation or reassignment for Sharpe, despite his repeated requests for accommodation, first as to the physical requirements of his job and later as to his need for a "stable routine" and concomitant need for a day shift schedule due to his ongoing difficulties with depression. As a result, the USPS is liable to Sharpe for failing in good faith to engage in an interactive process if a reasonable accommodation would have been possible.
The record does not reveal whether or not a reasonable accommodation would have been possible. The USPS has submitted evidence concerning the lack of any other suitable vacant positions at the close of bidding in July 1998. At that time, all clerk positions at City Stations and Post Offices in the Portland commuting area were Level Five positions (a higher grade), with physical requirements comparable or greater than those of a Mail Processor. Level Four positions were available elsewhere, but they were Mail Processor jobs or in the mail handler craft which required even greater lifting and other physical requirements than the clerk positions. Another available Level Four position was a Markup Clerk-Automated at the General Mail Facility, but it had no vacancies on Tour 2.
Furthermore, Loprinzi opines that Sharpe could not have performed its essential functions due to his difficulty with concentration and with sitting for extended periods. Level Two custodial positions were open on Tour 2, but Loprinzi opines that their physical requirements could not be modified to meet Sharpe's restrictions. Sharpe has not contested Loprinzi's opinion.
However, the USPS has submitted no evidence concerning other vacant positions which existed between the onset of Sharpe's disability in October 1997 and the rebidding in July 1998 or between July 1998 and the date the OWCP rejected Sharpe's worker's compensation claim. The USPS's obligation to find an alternative position for Sharpe within his medical limitations did not begin and end with the rebidding in July 1998, but continued from the date of his injury through the date of his termination.
Although the USPS clearly failed to engage in any interactive process, the fact remains that Sharpe carries the burden of showing that a reasonable accommodation exists. Moses v. American Nonwovens, Inc., 97 F.3d 446, 448 (11th Cir 1996), cert denied 519 U.S. 1118 (1997) ("American's failure to investigate [the existence of reasonable accommodations] did not relieve Moses of his burden of producing probative evidence that reasonable accommodations were available."); see also Willis v. Conopco, 108 F.3d 282, 285-86 (11th Cir 1997). "[I]f, after a full opportunity for discovery, the summary judgment record is insufficient to establish the existence of an appropriate position into which the plaintiff could have been transferred, summary judgment must be granted in favor of the defendant — even if it also appears that the defendant failed to engage in good faith in the interactive process." Donahue v. Consolidated Rail Corp., 224 F.3d 226, 234 (3rd Cir 2000). Also see Jackan v. New York State Dep't of Labor, 205 F.3d 562, 567 (2nd Cir 2000).
Even after a full opportunity for discovery, Sharpe has not proffered any reasonable accommodation except assignment to permanent light or limited duty as a Mail Processor, which, as discussed above, is not a reasonable accommodation. He has failed to identify any vacant position, even in another location, during the pertinent time period that he could perform with a reasonable accommodation. Thus, summary judgment must be granted to the USPS.
III. Adverse Employment Actions (Second Claim)
Although the USPS seeks summary judgment against Sharpe's Second Claim, it has presented no argument as to why. As noted above, the Second Claim is based on several adverse employment actions in addition to a failure to accommodate as alleged in the First Claim. As Sharpe concedes, to the extent that his First Claim fails, that portion of his Second Claim premised on a failure to accommodate also fails. At issue, then, are the other alleged adverse employment actions, namely failing and refusing to follow his medical restrictions, reassigning him to a less favorable shift, and treating him rudely and ridiculing him because of his disabilities.
If the USPS failed and refused to follow Sharpe's medical restrictions and reassigned him to a less favorable shift, the facts reveal that it was not due to his disabilities, but due to the way the USPS treats injured workers while awaiting a final determination from the OWCP and after the OWCP denies a claim. Because of his medical restrictions in October 1997, the USPS could have terminated Sharpe at that time, but kept him employed on temporary light duty on Tour 2 until the rebidding when his temporary light duty job was shifted to Tour 3. It then terminated him when the OWCP denied his worker's compensation claim. Nothing in the record supports Sharpe's contention that he was discriminated against because of his disability. Rather, he was terminated because his worker's compensation claim was denied.
The only allegation that causes this court concern is that Sharpe was treated rudely and was ridiculed because of his disabilities. Such conduct would have nothing to do with the nature of his job. However, the record reveals no such rude treatment, let alone rude treatment caused by his disabilities. To the extent Sharpe felt mistreated, it was due to the USPS's denial of his repeated requests for permanent light or limited duty.
Thus, the USPS is entitled to summary judgment as to both claims.
ORDER
For the reasons set forth in the accompanying Opinion, defendant's Motion for Summary Judgment (docket #18) is GRANTED.
JUDGMENT
Based on the Order granting defendant's Motion for Summary Judgment, it is hereby ORDERED and ADJUDGED that this action is dismissed.