                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-11-1997

Mengine v. Runyon
Precedential or Non-Precedential:

Docket 96-3287




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Recommended Citation
"Mengine v. Runyon" (1997). 1997 Decisions. Paper 128.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/128


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Filed June 11, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-3287

MICHAEL A. MENGINE,
Appellant

v.

MARVIN RUNYON, POST MASTER GENERAL,
U.S. POSTAL SERVICE

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 93-cv-01674)

Argued March 10, 1997

Before: BECKER, SCIRICA and ALITO, Circuit Judges

(Filed June 11, 1997)

BRUCE A. BAGIN, ESQUIRE
(ARGUED)
PAMELA E. BERGER, ESQUIRE
Wienand & Bagin
312 Boulevard of the Allies,
Suite 700
Pittsburgh, Pennsylvania 15222

Attorneys for Appellant

ALICE L. COVINGTON, ESQUIRE
(ARGUED)
United States Postal Service
475 L'Enfant Plaza, S.W.
Washington, D.C. 20260-1136

Attorney for Appellee
OPINION OF THE COURT

SCIRICA, Circuit Judge.

This appeal addresses the duty of federal employers
under the "reasonable accommodation" requirement of the
Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. We have
held it is the burden of the disabled employee who seeks
reassignment to identify a position appropriate for
reassignment. See Shiring v. Runyon, 90 F.3d 827 (3d Cir.
1996). At the same time, we believe "reasonable
accommodation" includes the employer's reasonable efforts
to assist the employee and to communicate with the
employee in good faith. Because the employee, Michael
Mengine, did not meet his burden and the employer, the
United States Postal Service, satisfied its duty, we will
affirm the district court's grant of summary judgment.

I.

Michael Mengine was employed by the United States
Postal Service as a letter carrier. Following hip surgery for
bilateral aseptic necrosis on November 23, 1992, Mengine
could no longer carry out the duties of a letter carrier,
which include prolonged walking and substantial lifting. As
a result, Mengine received permission to take advanced sick
leave (he had already exhausted his accrued sick leave).

On January 13, 1993, Mengine requested assignment to
temporary light duty work. This was approved for a period
of 30 days. The approval recited that Mengine may not
push or pull, lift over 10 pounds, or engage in excessive
standing or walking. Mengine was not assigned to a specific
light duty job, but told he would get work "as assigned."
Subsequently, Mengine received one two-hour light duty
assignment which required him to sort mail. Mengine then
took advanced sick leave when no further light duty
assignments were offered to him.

On January 27, 1993, Mengine wrote to Postmaster
William Dunn that he was "physically unable to continue"
as a letter carrier. He requested "a transfer into another

                    2
craft," noting that he was "on advance sick leave and would
like to return to full-time work as soon as possible." He
attached a letter from his doctor stating he must avoid
prolonged walking and heavy lifting.

On February 2, 1993, Thomas Schimmel, the Senior
Personnel Services Specialist, responded to Mengine's letter
on behalf of the Postmaster, sending him descriptions of
four vacant positions: mail handler, mail processor, laborer-
custodian, and custodian. Mengine wrote back that,
"[a]lthough I am ready, willing, and able to accept a transfer
into another category, I do not feel that these particular job
descriptions best suit my physical limitations." He
requested information on other positions which would
accommodate him and inquired about a computer
maintenance training program.

Schimmel responded that there were no positions
available (other than the four mentioned above) that would
accommodate Mengine's disability. He also stated that the
Postal Service had no training program in computer
maintenance: "We do have . . . positions [which] maintain
our computer hardware and software relating to our
automation equipment. However your limitations would
prevent you from working in this area." The letter
concluded with, "The only suggestion that I have for you at
this time is that you might want to pursue, if eligible,
Disability Retirement."

On April 20, 1993, Mengine wrote again to the
Postmaster and requested a transfer to a "desk job," or, in
the alternative, reassignment to another federal agency.
Once again, Schimmel responded on behalf of the
Postmaster, stating, "In order for you to transfer to another
government agency you must contact that agency and they
will have to provide you the necessary requirements to
transfer."

Meanwhile, Mengine visited the Postal Service Human
Resources Office and reviewed a list of job descriptions. He
identified several positions that he believed would
accommodate his limitations, but he was told none of these
positions were vacant.

                    3
Mengine then applied for Social Security benefits
claiming total disability. On September 28, 1993, the Social
Security Administration approved his application. Two days
later, Mengine applied for disability retirement under the
Federal Employees' Retirement System, stating, "As a Letter
Carrier, the requirements of my job are standing, walking,
and lifting which I [no] longer can do without great
difficulty and pain and without causing further damage to
my hips." The Office of Personnel Management initially
denied his application but on appeal found him eligible for
disability retirement.

In October 1993, Mengine filed this lawsuit against
Marvin Runyon, Postmaster General of the United States
Postal Service, claiming violations of the Rehabilitation Act.
Specifically, he contends the Postal Service did not
reasonably accommodate his disability because it refused to
reassign him to another position. The district court
dismissed Mengine's case for failing to timely exhaust
administrative remedies, but the dismissal was reversed on
appeal. Mengine v. Runyon, No. 94-3298 (3d Cir, Dec. 8,
1994).

The case was remanded and discovery ensued. In
September 1995, William F. Greb, a Postal Service
manager, testified at his deposition that temporary light
duty work was available for Mengine in "collections." The
work required driving a truck and picking up mail from
office buildings. Mengine took the job for an indeterminate
period. It appears he has since stopped working and once
again accepted disability retirement.1

After discovery, the parties filed cross motions for
summary judgment. On April 26, 1996, the district court
granted summary judgment to the Postal Service because
Mengine failed to identify a permanent, vacant, funded
position appropriate for his reassignment.
_________________________________________________________________

1. Mengine contends that after returning to work in September 1995, he
contacted the Social Security Office to terminate his benefits.

                    4
II.

This case arises under the Rehabilitation Act. The district
court had jurisdiction under 28 U.S.C. § 1331. We have
jurisdiction under 28 U.S.C. § 1291. We review summary
judgment decisions under a plenary standard. See Waldron
v. SL Indus., Inc., 56 F.3d 491, 496 (3d Cir. 1995). We must
apply the same test as the district court, i.e. we must view
the evidence in the light most favorable to the nonmovant,
and we may affirm only if "there is no genuine issue as to
any material fact and . . . the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P. 56(c);
Waldron, 56 F.3d at 496.

III.

The Rehabilitation Act of 1973, 29 U.S.C. § 701, et. seq.,
forbids federal employers from discriminating against
persons with disabilities in matters of hiring, placement or
advancement. See Shiring v. Runyon, 90 F.3d 827, 830-31
(3d Cir. 1996). 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."
Id. at 831.2

Defendants moved for summary judgment based on their
contention that Mengine could not prove he was an
"otherwise qualified" employee. In response, Mengine
admits he can no longer perform the job of letter carrier,
but contends the Postal Service had a duty to reasonably
accommodate him through reassignment to a different
position.

An employer is not required to create a job for a disabled
employee. But a federal employer has a duty to reassign
_________________________________________________________________

2. The Rehabilitation Act of 1973 is applicable only to federal employers,
such as the Postal Service, and employers who receive federal funding.
See Shiring, 90 F.3d at 830.

                    5
nonprobationary employees if they become unable to
perform the essential functions of their jobs, unless the
reassignment would cause the employer undue hardship.
See Shiring, 90 F.3d at 832. In bringing suit, it is Mengine's
burden to "make at least a facial showing that such
accommodation [reassignment] is possible." Id. Specifically,
Mengine must "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 [his former job]." Id.

Mengine maintains he satisfied his burden to identify a
vacant, funded position by requesting transfer to a light
duty position. In the alternative, he contends any failure on
his part to identify such a position was caused by the
Postal Service's refusal to cooperate.

a.

Mengine contends he satisfied his burden because he
presented proof of the availability of light duty work. But
the only light duty work available was temporary work. It is
uncontested that Mengine was seeking permanent work.
The Postal Service was not required to transform its
temporary light duty jobs into permanent jobs to
accommodate Mengine's disability. See Shiring, 90 F.3d at
831. As we have noted, an employer is not required to
create a job for a disabled employee. At the same time, we
are reluctant to adopt a per se rule that the conversion of
a temporary job to a permanent job can never constitute a
"reasonable accommodation" under the Rehabilitation Act.
We think that in most cases the imposition of such a
requirement will be unreasonable, but there might arise the
rare case in which the cost of converting the temporary job
into a permanent one is slight and the benefits
considerable. Cf. Vande Zande v. State of Wisconsin Dept. of
Admin., 44 F.3d 538, 542-43 (7th Cir. 1995). In this case,
however, Mengine has not pointed to evidence from which
a reasonable factfinder could conclude the costs of
converting the temporary jobs at issue into permanent ones
would have been so slight in relation to the benefits so as
to make the conversion reasonable. In any event, Mengine

                    6
did not identify any available permanent jobs which he was
capable of performing. He did not meet his burden under
Shiring.

b.

Mengine also contends that any failure on his part to
identify a vacant, funded position is the fault of the Postal
Service, because it failed to cooperate with his efforts to
investigate job descriptions and job vacancies. The district
court rejected this contention, holding that federal
employers do not have a duty to find other jobs for disabled
employees.3 Soon after the district court's opinion, we made
clear in Shiring, 90 F.3d at 832, that an employer has a
duty to reassign a disabled employee if an already funded,
vacant position at the same level exists. But "it falls to the
employee to make at least a facial showing" that there were
vacant, funded positions whose essential functions he was
capable of performing. Id. Notwithstanding his burden,
Mengine maintains a federal employer has a duty to aid the
employee in his investigation.

The Court of Appeals for the Seventh Circuit addressed a
similar issue in Beck v. University of Wisconsin Bd. of
Regents, 75 F.3d 1130 (7th Cir. 1996). Lorraine Beck was
the secretary to the Dean of the School of Nursing at the
University of Wisconsin-Milwaukee. She became severely
depressed from job stress and had to take periodic leaves of
absence. Beck's employer tried reassigning her to a less
stressful position, and even tried to obtain more
information from her doctor so that her needs could be
satisfied, but Beck continued to suffer from depression.
After her third leave of absence, Beck gave the University a
_________________________________________________________________

3. Mengine correctly notes that School Bd. of Nassau County. Fla. v.
Arline, 480 U.S. 273 (1987), cited by the district court, no longer
provides the applicable standard. Arline predates the 1992 amendments
to the Rehabilitation Act, which substantially changed the standards
used in determining whether the Act is violated. See Shiring, 90 F.3d at
831-32 (stating that under Arline employers were not required to
reassign disabled employees, but that after the 1992 amendments
reassignment is mandatory unless it would cause the agency undue
hardship).

                    7
letter from her doctor requesting "appropriate assistance
with her work load," an "adjustable computer keyboard,"
and the tailoring of "her work load to what she & your staff
feel she can realistically accomplish." The University moved
Beck's desk and substantially decreased her work load, but
she remained depressed. After Beck went on medical leave,
she filed suit under Title I of the Americans with
Disabilities Act ("ADA") for failing to reasonably
accommodate her disability. The district court granted
summary judgment to defendants.

On appeal, the court of appeals discussed the duty of
Beck's employer to reasonably accommodate her disability,
holding, "The employer has at least some responsibility in
determining the necessary accommodation. . . . [T]he
regulations envision an interactive process that requires
participation by both parties." Id. at 1135. The court was
referring to the federal regulations implementing the ADA,
which provide in part:

To determine the appropriate reasonable
accommodation it may be necessary for the [employer]
to initiate an informal, interactive process with the
qualified individual with a disability in need of the
accommodation. 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)(1995).

[T]he employer must make a reasonable effort to
determine the appropriate accommodation. The
appropriate reasonable accommodation is best
determined through a flexible, interactive process that
involves both the employer and the [employee] with a
disability.

29 C.F.R. pt. 1630, App. at 351 (1996); see Beck, 75 F.3d
at 1135. The court of appeals concluded that both employer
and employee must "make reasonable efforts" to help
determine "what specific accommodations are necessary."
Beck, 75 F.3d at 1135. Because the employer in Beck made
good faith efforts to communicate with Beck and to

                    8
accommodate her disability, the court affirmed summary
judgment for defendants.

Although Beck discussed this issue in the context of the
ADA, it is relevant to our analysis of the Rehabilitation Act
because in 1992 the Rehabilitation Act was amended to
incorporate the standards of several sections of the ADA,
including the section defining "reasonable accommodation."4
29 U.S.C. § 794(d); see also Shiring, 90 F.3d at 831-32.

We agree that both parties have a duty to assist in the
search for appropriate reasonable accommodation and to
act in good faith. In order to satisfy the requirements of the
Rehabilitation Act, the Postal Service had the duty to make
reasonable efforts to assist Mengine, to communicate with
him in good faith, and to not impede his investigation. See
Beck, 75 F.3d at 1135 ("A party that obstructs or delays the
interactive process is not acting in good faith. A party that
fails to communicate, by way of initiation or response, may
also be acting in bad faith."); see also Hunt-Golliday v.
Metropolitan Water Reclamation District of Greater Chicago,
104 F.3d 1004, 1012 (7th Cir. 1997) ("[D]etermining what
specific actions should be taken by an employer requires an
interactive process involving participation by both sides.");
Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 165
(5th Cir. 1996) (The "employee's initial request for an
accommodation . . . triggers the employer's obligation to
participate in the interactive process . . . ."), cert. denied,
117 S. Ct. 586 (1996).

As we held in Shiring, the employee has the duty to
identify a vacant, funded position whose essential functions
he is capable of performing. Shiring, 90 F.3d at 832. But we
_________________________________________________________________

4. The Rehabilitation Act now provides:

The standards used to determine whether this section has been
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 (42 U.S.C. 12111 et seq.)
and the provisions of sections 501 through 504, and 510, of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 and
12210), as such sections relate to employment.

29 U.S.C. § 794(d).

                    9
do not suggest that the employee has the burden of
identifying an open position before the employer's duty of
accommodation is triggered. In many cases, an employee
will not have the ability or resources to identify a vacant
position absent participation by the employer. Simply put,
a disabled employee seeking reassignment will be best
served by employer and employee working together to
identify suitable positions.

When the interactive process works well, it furthers the
purposes of the Rehabilitation Act and the ADA. The
employers will not always know what kind of work the
worker with the disability can do, and conversely, the
worker may not be aware of the range of available
employment opportunities, especially in a large company.
Thus, the interactive process may often lead to the
identification of a suitable position. If it turns out there is
no job which the worker (with or without accommodation)
is capable of performing, then the company cannot be held
liable for an ADA or Rehabilitation Act violation. See Willis
v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997)
("[W]here a plaintiff cannot demonstrate `reasonable
accommodation,' the employer's lack of investigation into
reasonable accommodation is unimportant. . . . The ADA,
as far as we are aware, is not intended to punish employers
for behaving callously if, in fact, no accommodation for the
employee's disability could reasonably have been made.").
To the extent there is any tension between Beck and Willis
it may be more a matter of timing; at all events, if
reasonable accommodation is impossible, nothing more
than communication to the employee of this fact is
required. Nonetheless, if an employer fails to engage in the
interactive process, it may not discover a way in which the
employee's disability could have been reasonably
accommodated, thereby risking violation of the
Rehabilitation Act.

Mengine contends the Postal Service impeded his search
for a vacant, funded position. For example, when he
reviewed job descriptions at the Postal Service Human
Resources Office, he was not permitted to photocopy job
descriptions of unavailable positions. He also points to the
February 18, 1993 letter from Schimmel which concludes

                    10
with, "The only suggestion that I have for you at this time
is that you might want to pursue, if eligible, Disability
Retirement." But this evidence is not indicative of bad faith.
Mengine and the Postal Service engaged in the interactive
process contemplated by the federal regulations. The
uncontradicted evidence shows the parties exchanged many
letters in their mutual attempt to identify a vacant, funded
position for reassignment. The Postal Service sent Mengine
multiple job descriptions of vacant positions in an effort to
meet his needs. The additional job descriptions Mengine
wanted to photocopy were not vacant positions and
therefore could not have aided his search. The Postal
Service made reasonable efforts to assist Mengine,
communicated with him in good faith, and did not act to
impede his investigation. See Beck, 75 F.3d at 1137
("[W]here, as here, the employer does not obstruct the
process, but instead makes reasonable efforts both to
communicate with the employee and provide
accommodations based on the information it possessed,
ADA liability simply does not follow.").

IV.

Because no reasonable jury could find the Postal Service
violated its duty here, we will affirm the judgment of the
district court.5

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

_________________________________________________________________

5. In its brief, the Postal Service contended Mengine may be estopped
from claiming ability to work with reasonable accommodation because he
asserted total disability to the Social Security Administration. See
McNemar v. Disney Stores, 91 F.3d 610 (3d Cir. 1996), cert. denied, 117
S. Ct. 958 (1997). But at oral argument, the Postal Service stated it did
not wish to pursue this argument.

                    10
