                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-26-1996

Shiring v. Runyon
Precedential or Non-Precedential:

Docket 95-3547




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Recommended Citation
"Shiring v. Runyon" (1996). 1996 Decisions. Paper 121.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/121


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                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT

                      ____________________

                          NO. 95-3547
                      ____________________


                       TERRY J. SHIRING,
                                           Appellant,

                                  v.

            MARVIN T. RUNYON, POSTMASTER GENERAL,
                UNITED STATES POSTAL SERVICE,
                                       Appellee.

                      ___________________

        An Appeal from the United States District Court
            For the Western District of Pennsylvania
                      D.C. No. CV-94-0593
                      ___________________

                      Argued   May 21, 1996

                Before: Sloviter, Chief Judge,
              Sarokin, and Rosenn, Circuit Judges.

            Opinion Filed July 26, l996
                       ____________________



Mark D. Wade, Esquire (argued)
Caroselli, Spagnolli & Beachler
312 Boulevard of the Allies
Eighth Floor
Pittsburgh, PA 15222
Counsel for Appellant


Frederick W. Thieman, U.S. Attorney
Michael C. Colville, Asst. U.S. Attorney
Western District of Pennsylvania
633 U.S. Post Office & Courthouse
7th Avenue & Grant Street
Pittsburgh, PA 15219-1955



R. Andrew German, Managing Counsel
Janet E. Smith (argued)
Legal Policy Section
Law Department
U.S. Postal Service
475 L'Enfant Plaza, SW
Washington, DC 20260-1136
Counsel for Appellee


                      ______________________

                       OPINION OF THE COURT
                      ______________________


ROSENN, Circuit Judge.
     Terry Shiring, formerly employed as a mail carrier by the
United States Postal Service, appeals from the decision of the
United States District Court for the Western District of
Pennsylvania, granting summary judgment for the Postal Service on
Shiring's claim of discrimination in violation of the federal
Rehabilitation Act of 1973. Shiring, whose medical problems made
it impossible for him to continue at his job of postal carrier,
contends that the Postal Service was obligated to find a new job
for him that he was capable of performing within his physical
limitations. Because Shiring made no showing that such a
position exists, or that he properly applied for transfer, we
will affirm the grant of summary judgment in favor of the Postal
Service.

                                I.
     In 1984, the United States Postal Service hired Shiring as
a part-time flexible (PTF) letter carrier. This position meant
that Shiring was not guaranteed a regular route or a full forty-
hour work week. The position is entry level, with the least
amount of seniority of all postal employees. At Shiring's
request, the Postal Service transferred him several times to
different locations, employing him as a PTF carrier in each
location. In 1987, Shiring was reassigned to the Oakmont,
Pennsylvania Post Office.
     In early 1990, Shiring began to experience severe foot pain
when delivering the mail along his routes. In May of that year,
he sought treatment from Dr. Lewis Stein. Dr. Stein diagnosed
Shiring's condition as hallux rigidas limites and a possible
sesemold bone fracture of his right foot. Stein fitted Shiring
for protective orthopedic devices and informed him that he was
restricted from excessive walking before the devices arrived.
Shiring notified the Postal Service, which placed him on light
duty work. The Postal Service assigned Shiring to "casing" mail,
which meant sorting the mail before delivery. Normally, each
letter carrier is responsible for casing the mail for his or her
own route; however, during the period Shiring was on light duty,
the Post Office had him case the mail for all eight carrier
routes.
     Also during this time, Shiring filed a claim with the
Office of Workers' Compensation. He received compensation for
the work-time he missed due to his disability.
     After the orthopedic devices arrived, Shiring went back to
work as a letter carrier. However, the devices failed to ease
his condition, and, in December of 1990, Dr. Stein diagnosed
Shiring as permanently disabled. Shiring was restricted from
more than occasional walking, for a total of less than one hour
in an eight-hour workday. The Oakmont Post Office put him back
on the modified light duty position it had earlier created.
However, in January of 1993, the Post Office determined that
there was nothing more available for him at the time consistent
with his limitations.
     Shiring asserts that during the time before he was
discharged, several postal positions became available that he
could have performed within his physical limitations. He claims
that the Postal Service refused to transfer him to one of these
clerk or counterperson positions. The only proof, however, that
Shiring asserts to support this contention is an excerpt from his
own deposition in which he seems to state that he was transferred
to a light duty position at the McKnight Road office, but was
then released from that position because it was a job which the
union was entitled to have open for bids.
     Shiring remained unemployed, receiving worker's
compensation at 75% of his regular salary, from January, 1993
until November of 1994. At that time, the Postal Service created
a new position for him at its office in Pittsburgh, Pennsylvania.
On December 12, Shiring accepted the position and began to work
again.
     However, in April of 1994, Shiring had filed the instant
complaint, alleging that the Postal Service discriminated against
him in violation of the Rehabilitation Act of 1973, 29 U.S.C.
701 et. seq. Shiring alleged that he was an otherwise qualified
disabled individual, who was capable of performing the essential
functions of his office with reasonable accommodations, and that
the Postal Service had failed to make reasonable accommodations
for him. He further alleged that it had discharged him solely
because of his handicap. Because Shiring was seeking backpay and
reinstatement of pension and seniority losses, he did not dismiss
his complaint when he accepted his current position.
     In March of 1995, the United States Postal Service moved
for summary judgment. It asserted that Shiring was unable to
meet his burden of showing that he was an otherwise qualified
disabled individual. Shiring had stated at his deposition that
he was unable to physically deliver the mail, and that no
accommodation on the part of the Postal Service would have made
this feat possible. The Postal Service pointed out that mail
delivery was an essential function of letter carriers, and that a
disabled person must still be capable of performing the essential
functions of a position in order to be otherwise qualified.
Because Shiring could not, it claimed that his job was not
protected by the Rehabilitation Act.
     In response, Shiring argued that the 1992 amendments to the
Act showed a Congressional intent to apply the standards of the
Americans with Disabilities Act in determining whether the
Rehabilitation Act had been violated. Because the ADA defined
"reasonable accommodation" to include reassignment to certain
vacant positions, Shiring asserted that the Postal Service did
not make reasonable accommodations for his disability when it
refused to reassign him from letter carrier to other positions
which did not require walking.
         The district court did not consider whether
reassignment was a reasonable accommodation under the
Rehabilitation Act. Thus, it did not discuss whether any
positions were available, or whether plaintiff had established
that he had applied for, and was qualified for, the open
positions. Rather, the district court considered "reasonable
accommodations" only as it related to plaintiff's performance in
the specific job of letter carrier. Finding that there were no
accommodations the Postal Service could adopt which would enable
plaintiff to fulfill the essential elements of his job, the
district court determined that plaintiff was not a qualified
individual within the meaning of the Rehabilitation Act.
Therefore, because Shiring had not established a prima facie
case, the district court granted summary judgment in favor of the
United States Postal Service.

                              II.
     The Rehabilitation Act of 1973, 29 U.S.C.   701 et. seq.,
is applicable only to federal employers and employers who receive
federal funding. Private employers must comply with the
standards set forth in the 1990 Americans with Disabilities Act,
42 U.S.C.   12111 et. seq. The Rehabilitation Act forbids
employers from discriminating against persons with disabilities
in matters of hiring, placement, or advancement. At the same
time, Congress recognizes that employers have legitimate
interests in performing the duties of their business adequately
and efficiently. Employers cannot be obligated to employ persons
who are incapable of performing the necessary duties of the job.
Therefore, Congress has devised the following standards:
     In order for an employee to make out a prima facie case of
discrimination under the Rehabilitation Act, the employee bears
the burden of demonstrating (1) that he or she has a disability,
(2) that he or she is otherwise qualified to perform the
essential functions of the job, with or without reasonable
accommodations by the employer; and (3) that he or she was
nonetheless terminated or otherwise prevented from performing the
job. The plaintiff must make a prima facie showing that
reasonable accommodation is possible. If the plaintiff is able
to meet these burdens, the defendant then bears the burden of
proving, as an affirmative defense, that the accommodations
requested by the plaintiff are unreasonable, or would cause an
undue hardship on the employer. The court considers several
factors in making this determination.
     In Shiring's case, no one disputes that he is a disabled
person within the meaning of the Rehabilitation Act. Likewise,
it is undisputed that he was terminated. The parties disagree,
however, on whether Shiring was otherwise qualified to perform
the essential functions of his job.
     One of the essential functions of a mail carrier is to
physically deliver the mail to the people along the route. In
his deposition, Shiring concedes that this was impossible for him
to do. No amount of accommodation on the part of the Postal
Service would have made this possible. Thus, Shiring was not
otherwise qualified for the position of PTF letter carrier. See29 C.F.R.
 1614.203(a)(6)(qualified individual must be able to
perform essential functions of the position); see also McDonald
v. Commonwealth of Pennsylvania, 62 F.3d 92, 96 (3d Cir. 1995).
     It is true that for a few months the Postal Service had
Shiring casing mail for all eight routes, and doing no delivery
at all, notwithstanding that delivery of mail is an essential
element of the `letter carrier' position. The `casing' position
to which he was temporarily assigned was not an official
position, but had been created by the Postal Service to give
Shiring something to do on a temporary basis. Therefore,
Shiring's suggestion that he would have been qualified to perform
the requirements of such a position does not help his case
because under the Act employers are not required to create
positions specifically for the handicapped employee. Fedro v.
Reno, 21 F.3d 1391, 1395 (7th Cir. 1994)("...the Rehabilitation
Act has never been interpreted to require an employer to createalternative
employment opportunities for a handicapped
employee..."). It follows that the district court did not err in
refusing to consider the non-existent position of `caser' as an
accommodation that would make Shiring qualified.
     However, the district court did not consider Shiring's
allegations that he requested transfers and reassignments to desk
jobs within the Postal Service, and that his employers prevented
him from receiving these reassignments. This was error; the
court should have considered whether reassignments were a
reasonable accommodation.
     This was not always the case. Before 1992, disabled
individuals had to prove that they were qualified only for the
job that they were employed to do. "[Employers] are not required
to find another job for an employee who is not qualified for the
job he or she is doing." School Board of Nassau County v.
Arline, 480 U.S. 273, 289, n.19 (1987). Although reassignment
was an option under the 1990 Americans with Disabilities Act, see42 U.S.C.
  12111(9)(B)(reasonable accommodation may include
reassignment to a vacant position), it was not required of
federal employers under the Rehabilitation Act. However, in
1992, the Rehabilitation Act was amended to provide:
     Section 794. Nondiscrimination under Federal grants and
     programs.
     (d) Standards used in determining violation of section
         The standards used to determine whether this section
     has bee violated in a complaint alleging employment
     discrimination under this section shall be the standards
     applied under Title I of the Americans with Disabilities
     Act of 1990....
29 U.S.C.   794(d).
     Pursuant to this amendment, the Code of Federal Regulations
was amended effective October 31, 1992 to provide that employers
shall offer to reassign nonprobationary employees if those
employees become unable to perform the essential functions of
their jobs. The reassignment should be to an already funded,
vacant position within the same commuting area, and at the same
grade or level. 29 C.F.R.    1614.203(g). The use of the word
"shall" indicates that this reassignment offer is mandatory,
unless the reassignment would cause the agency undue hardship.
Therefore, courts should consider whether reassignment is
possible in determining whether an individual seeking relief
under the Rehabilitation Act is an otherwise qualified
individual.
     However, the burden is on the employee to prove that he is
an "otherwise qualified" individual. Buckingham v. United
States, 998 F.2d 735, 739-40 (9th Cir. 1993). When the employee
contends that he would be otherwise qualified with reasonable
accommodation, it falls to the employee to make at least a facial
showing that such accommodation is possible. Id. at 740. In
this case, there is nothing in the record, beyond Shiring's vague
allegations in his deposition, that any transfers were requested.
Shiring would have to demonstrate that there were vacant, funded
positions whose essential duties he was capable of performing,
with or without reasonable accommodation, and that these
positions were at an equivalent level or position as PTF carrier.
PTF carrier is the lowest seniority position in the Postal
Service, and the Service is not required to promote Shiring to a
higher level to accommodate his disability.
                               III.
     In summary, the district court should have considered the
option of reassignment before determining that Shiring was not
otherwise qualified for employment within the United States
Postal Service. However, its failure to do so is not cause for
reversal, because it is harmless at most. Shiring's assertions
in his deposition that there were jobs he wanted to transfer to
are insufficient to meet his burden of demonstrating the presence
of vacant, funded positions at his current level of seniority and
pay, which he could perform. A plaintiff seeking relief under
the Rehabilitation Act must demonstrate what reasonable
accommodations he or she contends the employer should have made,
including an identification of the positions the employer should
have considered for reassignment. Because Shiring failed to do
so, the trial court committed no reversible error.
     Accordingly, the grant of summary judgment in favor of the
Postal Service will be affirmed.
