           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0098P (6th Cir.)
                    File Name: 00a0098p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                                  ;
                                   
 RANDAL CROCKER,
                                   
         Plaintiff-Appellant,
                                   
                                   
                                       No. 98-5700
            v.
                                   
                                    >
 MARVIN T. RUNYON,                 
                                   
           Defendant-Appellee. 
 Postmaster-General,

                                   
                                  1
       Appeal from the United States District Court
   for the Eastern District of Tennessee at Greeneville.
   No. 96-00151—Dennis H. Inman, Magistrate Judge.
                  Argued: September 21, 1999
              Decided and Filed: March 22, 2000
 Before: BOGGS and DAUGHTREY,     Circuit Judges; and
            McKINLEY,* District Judge.




    *
    The Honorable Joseph H. McKinley, Jr., United States District
Judge for the Western District of Kentucky, sitting by designation.

                                1
2    Crocker v. Runyon                           No. 98-5700      No. 98-5700                          Crocker v. Runyon      11

                    _________________                               impact theory, judgment was properly granted in favor of
                                                                    the [Postal Service] on this claim.
                         COUNSEL
                                                                  Gantt, 143 F.3d at 1048 (discussing the problems associated
ARGUED: W. Douglas Collins, EVANS & BEIER,                        with applying a disparate impact analysis to an age
Morristown, Tennessee, for Appellant. Helen C.T. Smith,           discrimination claim). The number of other disabled
UNITED STATES ATTORNEY, Greeneville, Tennessee, for               individuals hired by the Postal Service, including one hired
Appellee. ON BRIEF: W. Douglas Collins, EVANS &                   for the other position open when Crocker applied, indicates
BEIER, Morristown, Tennessee, for Appellant. Helen C.T.           no singling out of disabled applicants. The fact that a number
Smith, UNITED STATES ATTORNEY, Greeneville,                       of disabled people passed the Postal Service’s pre-
Tennessee, for Appellee.                                          employment physical for various jobs also suggests that it was
                                                                  not used as a means to exclude disabled people from
                    _________________                             employment in jobs they were capable of performing. The
                                                                  evidence is that Crocker was not hired because he would not
                        OPINION                                   be able to perform the essential elements of the job he sought,
                    _________________                             which is a permissible reason under the Rehabilitation Act.
  BOGGS, Circuit Judge. Randal Crocker charges that the                                         IV
United States Postal Service refused to hire him due to his
disability, in violation of the Rehabilitation Act of 1973.         Because Crocker could not make a prima facie showing that
Crocker pled both disparate treatment and disparate impact        he was “otherwise qualified” for the position for which he
causes of action below, arguing that he was able to perform       was not hired, the judgment of the magistrate judge is
the essential functions of the position he sought despite his     AFFIRMED.
disability. Because Crocker failed to offer medical evidence
contemporaneous with his nonhiring to contradict the
evidence upon which the Postal Service relied, we hold that
he did not meet his burden of proof for either cause of action.
Accordingly, we affirm both the district court’s dismissal on
summary judgment of the disparate treatment claim and its
post-trial dismissal of the disparate impact claim.
                               I
   Mr. Crocker suffers from Reflex Sympathetic Dystrophy,
a neurological disorder that manifests itself in him as
excruciating pain in his right thigh from the knee to the groin
if he puts too much weight on his right foot. Though
expressing reservations, Postmaster William Dyer hired
Crocker contingent on his passing a pre-employment physical.
Dr. Hubert Hill, a physician under contract to do physicals for
the Postal Service, examined Crocker on November 29, 1994.
10   Crocker v. Runyon                            No. 98-5700      No. 98-5700                           Crocker v. Runyon        3

   In any event, a disparate impact theory is unavailable under    Dr. Hill determined that Crocker failed the physical because
the facts of this case. A disparate impact framework involves      he could not walk without crutches. Dr. John Dougherty, a
burden shifting, and this court has held that burden shifting is   neurologist, performed a second pre-employment physical on
inappropriate in Rehabilitation Act cases such as this where       Crocker on December 28, 1994. He likewise determined that
the employer relies in part on the employee’s disability in        Crocker’s inability to walk without the use of crutches made
finding the employee not otherwise qualified for the job.          him unable to perform the essential functions of the letter
“[W]hen an employer admits (or the evidence establishes)           carrier position.
that its decision was based upon the employee’s disability,
direct evidence of discrimination exists [and] . . . application      Based on the opinions of Drs. Hill and Dougherty, Dyer
of the McDonnell Douglas burden-shifting framework is              decided not to hire Crocker after he failed the physical. The
inappropriate.” Monette v. Electronic Data Systems Corp., 90       Postal Service notified him of his nonhiring in a letter date-
F.3d 1173, 1180 (6th Cir. 1996). The disputed factual              stamped July 7, 1995. As it must for any veteran who has a
question in this and similar cases is whether the employee can     compensable disability, the Postal Service processed
perform the essential functions of the job. The burden to          Crocker’s nonhiring through the Office of Personnel
prove this rests on the employee and “can be resolved through      Management, a federal agency separate from the Postal
traditional methods of proof.” Id. at 1183. “Unlike Title VII      Service. The letter notifying Crocker of his nonhiring also
cases, where race or sex will almost never be an acceptable        advised him of his right to submit supporting material to the
reason for an employment decision adverse to a qualified           OPM regarding his automatic appeal within 15 days of
employee, the Rehabilitation Act permits an employer to            receiving the letter. It noted that “[t]he best evidence to
make a decision because of a handicap if the handicap is not       provide is an objective medical finding from a board certified
the sole reason for the decision.” Burns, 91 F.3d at 841.          specialist in the field that deals with your particular problem.”
Thus, a disparate impact analysis was inappropriate to apply       The OPM sent Crocker a letter date-stamped August 18, 1995
to this case, which should have been approached under the          informing him that his nonhiring had been upheld, but
framework elaborated in Monette and Burns. See Mitchell v.         indicating that he should forward to that office any
Crowell, 975 F. Supp. 1440, 1446 (N.D. Ala. 1997) (applying        “additional specific medical documentation that contradicts
Monette and Burns in a Rehabilitation Act case to grant            these findings” about his capacity to work.
summary judgment to the employer where the employee did
not prove that she was otherwise qualified for the position           Rather than seek a contrary medical opinion when he
from which she was terminated).                                    received either of these letters, Crocker filed a discrimination
                                                                   complaint with the Postal Service. By law, such a complaint
  Even if a disparate impact claim were allowed, to establish      had to be brought within 45 days of the July 7 letter informing
a prima facie case:                                                Crocker of his nonhiring. Crocker first contacted the Postal
                                                                   Service about filing a complaint on November 4, 1995, 120
  Plaintiff would have to support [his] claim by offering          days after being notified of his nonhiring. Because the
  “statistical evidence of a kind and degree sufficient to         complaint was filed in an untimely fashion, the Postal Service
  show that the practice in question has caused the                rejected it in a letter to Crocker date-stamped January 4, 1996.
  [nonhiring of employees] ... because of their membership         He filed the discrimination complaint at issue in this appeal
  in a protected group.” Abbott v. Federal Forge, Inc., 912        on April 3, 1996. The medical examinations Crocker used at
  F.2d 867, 872 (6th Cir. 1990). Given [his] failure to            trial to argue his fitness for the letter carrier position took
  present any evidence at all to support [his] adverse             place in December 1996 and April 1997. Those examinations
4     Crocker v. Runyon                            No. 98-5700      No. 98-5700                           Crocker v. Runyon        9

cannot prove that Crocker was physically capable of                 sub nom. Alexander v. Choate, 469 U.S. 287 (1985). This
performing the job at the time he was not hired. Even if he         court has recognized in an unpublished opinion that the Fifth
would have passed the physicals later, as he now contends,          and Eleventh Circuits allow disparate impact causes of action
that does not mean he should have passed the earlier ones.          for discrimination under the Rehabilitation Act. See Cook v.
Two years separate the two sets of evaluations, and,                Hairston, No. 90-3437, 1991 WL 253302, at *6 (6th Cir.
significantly, Crocker changed the treatment for his RSD in         Nov. 26, 1991), citing Georgia State Conf. of Branches of
the intervening period. Crocker complains that he did not           NAACP v. Georgia, 775 F.2d 1403 (11th Cir. 1985), and
have much time to seek a medical opinion supporting his case        Prewitt v. United States Postal Serv., 662 F.2d 292 (5th Cir.
after receiving the January 4, 1996 letter. That argument           1981). The Choate court assumed without deciding that §504
ignores the fact that Crocker was on notice as of July 7, 1995      prevented some kinds of disparate impact on the handicapped,
that he needed contrary medical evidence to dispute his             but then found no violation in the program at issue in that
nonhiring.                                                          case. See Choate, 469 U.S. at 299 (“While we reject the
                                                                    boundless notion that all disparate-impact showings constitute
   Crocker filed suit in federal district court on April 3, 1996,   prima facie cases under §504, we assume without deciding
alleging that the Postal Service failed to hire him because he      that §504 reaches at least some conduct that has an
was disabled. The parties consented below to the jurisdiction       unjustifiable disparate impact upon the handicapped”). Thus
of a United States Magistrate Judge with an appeal lying            it remains “an open question whether section 504 forbids
directly to this court. See 28 U.S.C. § 636(c). The Postal          . . . ‘conduct that has an unjustifiable disparate impact’ on the
Service moved for summary judgment on the disparate                 disabled.” Sandison v. Michigan High School Athletic Ass’n,
treatment claim and the magistrate judge granted the motion,        64 F.3d 1026, 1032 (6th Cir. 1995).
reasoning that Crocker was not otherwise qualified for the
position since he could not perform its essential functions and        There is good reason to believe that a disparate impact
that he had shown no proof of animus on the part of the Postal      theory is not available under the Rehabilitation Act.
Service. However, the magistrate judge discerned a separate         Although Title VII contains a provision allowing an overtly
disparate impact claim in the complaint on which he                 discriminatory hiring criterion when it is a bona fide
conducted a bench trial. Under this theory, the criteria used       occupational qualification, that provision has proven much
by the Postal Service to assess physical abilities                  less expansive in practice than the Rehabilitation Act’s safe
disproportionately impact otherwise qualified persons with          harbor provision for nonhiring. Compare 42 U.S.C. § 2000e-
RSD. After trial, the court dismissed the latter claim as well,     2(e), with 29 U.S.C. § 794. The Rehabilitation Act’s
determining again that Crocker was not otherwise qualified          “otherwise qualified” language specifically allows for
for the letter carrier position. We review a magistrate judge’s     disabled people to be disparately affected by legitimate job
decision to grant summary judgment de novo. In cases                criteria, so a wholesale importing of Title VII’s disparate
referred to a magistrate judge by a district judge for decision     impact cause of action into the Rehabilitation Act context
with consent of the parties under 28 U.S.C. § 636(c), we            might be inappropriate. Cf. Mullin v. Raytheon Co., 164 F.3d
review the magistrate judge’s findings of fact for clear error,     696, 700 (1st Cir. 1999) (noting the difficulties inherent in
as we would the findings of a district judge. See Sherri A.D.       transporting disparate impact analysis from Title VII into
v. W.N. Kirby, 975 F.2d 193, 207 n.25 (5th Cir. 1992);              cases brought under the Age Discrimination in Employment
Proctor v. North Carolina, 830 F.2d 514, 517 (4th Cir.1987)         Act following the Supreme Court’s decision in Hazen Paper
(“Ordinarily, then, in an appeal from a decision rendered by        Co. v. Biggins, 507 U.S. 604 (1993)).
a magistrate in a § 636(c) proceeding, the magistrate’s
8    Crocker v. Runyon                            No. 98-5700      No. 98-5700                                  Crocker v. Runyon             5

§ 1630.2(r). Carrying heavy mail boxes and pushing a heavy         findings of fact are reviewed only to the extent of determining
hamper down a loading ramp every day while hopping on one          whether such findings are clearly erroneous”); See generally
leg, as Crocker proposes, would not be safe.                       1 Steven A. Childress and Martha S. Davis, FEDERAL
                                                                   STANDARDS OF REVIEW § 2.03(D) (3d ed. 1999). “A finding
   This case is not like Holiday v. City of Chattanooga, a         is clearly erroneous when ‘although there is evidence to
recent nonhiring case brought under the Americans with             support it, the reviewing court on the entire evidence is left
Disabilities Act. There the applicant’s status as “otherwise       with the definite and firm conviction that a mistake has been
qualified” was also in dispute. See Holiday v. City of             committed.’” United States v. Russell, 156 F.3d 687, 690 (6th
Chattanooga, No. 98-5619, 2000 FED App. 0087P, (6th Cir.           Cir. 1998), citing United States v. United States Gypsum Co.,
March 10, 2000). In that case, the physician failed to             333 U.S. 364, 365 (1948).
investigate whether Holiday’s HIV caused him any problems
that would affect his performance on the job, and his medical                                           II
opinion contradicted contemporaneous evidence of Holiday’s
ability to serve as a police officer despite having                  To make out a claim under the Rehabilitation Act, a
asymptomatic HIV. See id., slip op. at 9-10. There was also        plaintiff in a covered position must establish that he is: 1) an
evidence of anti-HIV stereotyping by the hiring authority in       individual with a disability under the Act, 2) otherwise
the case, creating a genuine issue of material fact as to the      qualified for the job with or without a reasonable
employer’s “good-faith reliance” on the medical opinion            accommodation, and 3) being discriminated against solely
received. See id. at 12-13. None of those elements is present      because of his handicap. See Burns v. City of Columbus,
here. The medical opinions of the two original examining           Dep’t of Pub. Safety, 91 F.3d 836, 841 (6th Cir. 1996), citing
physicians determined that Crocker could not do the kinds of       Doherty v. Southern College of Optometry, 862 F.2d 570 (6th
physical activities required by the job, and there was no          Cir. 1985). It is not enough for the plaintiff to show that his
evidence of any anti-RSD stereotype at work. The Postal            handicap contributed to the nonhiring, because the
Service here relied in good faith on the two medical opinions      Rehabilitation Act “does not forbid decisions based on the
it received, and Crocker did not offer any contemporaneous         actual attributes of the handicap.” Pesterfield v. Tennessee
medical evidence to contradict those opinions. Crocker             Valley Auth., 941 F.2d 437, 443 (6th Cir. 1991), quoting
therefore did not create a genuine issue of material fact, and     Anderson v. University of Wisconsin, 841 F.2d 7371 (7th Cir.
the magistrate judge’s granting of summary judgment to the         1988). Assuming that the other elements are met, in a case
Postal Service on the disparate treatment claim was altogether
appropriate.
                                                                       1
                              III                                        If, as Crocker attests, his crutches truly do not “substantially limit
                                                                   his major life activities,” then the magistrate judge erred in determining
                                                                   that Crocker is disabled. See Sutton v. United Air Lines, Inc., 119 S. Ct.
  Crocker’s appeal of his disparate impact claim fails for         2139 (1999) (holding that corrective measures must be taken into account
much the same reasons. Initially, however, it should be noted      in judging whether an individual is disabled); Murphy v. United Parcel
that this circuit has not explicitly recognized the availability   Serv., Inc., 119 S. Ct. 2133 (1999) (holding that an employee did not have
of a disparate impact cause of action under the Rehabilitation     a disability since the medication he took prevented his major life activities
Act. One earlier effort to do so on a broad basis in Jennings      from being substantially limited); Albertson v. Kirkinburg, 119 S. Ct.
                                                                   2162 (1999) (holding that the existence of a disability must be determined
v. Alexander was rebuffed by the Supreme Court. See                from the actual effect of the impairment on the life of the given
Jennings v. Alexander, 715 F.2d 1036 (6th Cir. 1983), rev’d        individual); See also Gilday v. Mecosta County, 124 F.3d 760, 767-68
                                                                   (6th Cir. 1997) (presaging the holdings in these cases). Because we can
6      Crocker v. Runyon                                   No. 98-5700         No. 98-5700                          Crocker v. Runyon        7

such as this where the defendant admittedly “made the                          letter prejudging Crocker’s fitness for the job. Taken
decision because of the handicap . . . the sole factual issue left             together, Crocker argues, these conditions preclude a claim of
for resolution is an objective one — whether the plaintiff is                  good-faith reliance by the Postal Service on the earlier
qualified for the position or program despite the handicap,                    medical opinions. As the lower court found, there is no
with or without reasonable accommodation.” Burns, 91 F.3d                      evidence that Crocker was not hired for any reason other than
at 842. The second and third elements of the claim collapse                    failing the physicals. Indeed, Brantley’s letter notes that
into one question, because if a plaintiff can show that he is                  Crocker “was using crutches and dragging his feet the last
otherwise qualified, it will be virtually impossible in these                  time I saw him.” If anything, that serves as further
circumstances for the employer to show that the nonhiring                      contemporaneous evidence that Crocker had not adapted as
was not solely due to the handicap.                                            well to his crutches at that time as he has now. The
                                                                               incomplete job descriptions did not affect the medical finding
   Hence, for Crocker to show that he was otherwise qualified                  that Crocker could not walk without crutches relied upon by
for the position, he has to show that he could have met the                    the Postal Service.
physical demands of the job. The Postal Service relied on the
opinions of two private physicians, including a neurological                      Crocker also complains that the Postal Service did not offer
specialist, in reaching its decision not to hire Crocker.                      him any accommodation, but since Crocker did not suggest
Crocker argues that the subsequent testimony of two other                      until trial that he needed an accommodation, the Postal
evaluators who performed more elaborate examinations                           Service had no legal duty to provide him one. See
renders reliance on the earlier medical opinions unreasonable.                 Kaltenberger v. Ohio College of Podiatric Med., 162 F.3d
Even if the earlier medical opinions were demonstrably                         432, 437 (6th Cir. 1998); See also Gantt v. Wilson Sporting
flawed, the Postal Service’s reasonable reliance upon them is                  Goods, 143 F.3d 1042, 1046 (6th Cir. 1998). When the lack
not discriminatory. See Severino v. North Myers Fire Control                   of an accommodation became an issue at trial, the Postal
Dist., 935 F.2d 1179, 1182 (11th Cir. 1991). So long as the                    Service offered Crocker an accommodation in the form of a
Postal Service relied on those opinions in good faith in                       more sedentary job, which he refused. Crocker is not an
determining that Crocker could not do the job, the failure to                  otherwise qualified individual once he rejects an offer of
hire him was justified. See Pesterfield, 941 F.2d at 443.                      reasonable accommodation.           See Keever v. City of
Moreover, Crocker offered no proof that he was physically                      Middletown, 145 F.3d 809, 811-812 (6th Cir. 1998).
capable of performing the job at the time he was not hired.                    Moreover, the failed physical indicated that no reasonable
That he was aware of the option to obtain another medical                      accommodation was possible for the position Crocker sought.
opinion when he was refused employment and chose not to                        The magistrate judge’s finding that there “does not appear to
may mean he was not confident then about the outcome of                        be any reasonable way in which plaintiff’s disability could be
any such additional evaluation.                                                accommodated” is not clearly erroneous. In particular, the
                                                                               trial court found that Crocker, at the time he applied for the
  Crocker makes much of the fact that the job descriptions                     job, could not perform his duties without endangering the
sent to Drs. Hill and Dougherty were incomplete, and that                      safety of himself and others. Under 42 U.S.C. § 12113(b), a
Human Resources Manager Charles Brantley sent Dr. Hill a                       finding that Crocker poses a direct safety threat to himself or
                                                                               others renders him not otherwise qualified. A direct threat
                                                                               entails “a significant risk of substantial harm to the health or
                                                                               safety of the individual or others that cannot be eliminated or
affirm the district court’s finding that Crocker was not otherwise qualified   reduced by reasonable accommodation.”               29 C.F.R.
for the job, we need not reach this issue.
