*2 PREGERSON, Cirсuit Before TANG *, Judge. Judges, RAFEEDIE District TANG, Judge: Circuit un- brought Mantolete this action Bonnie 1973, 29 U.S. der the Rehabilitation 791, alleging that the United States C.A. § posi- improperly denied her a Postal Service handicap. The physical on her tion based de- judgment entered for the district court assertions Plaintiff makes four fendant. erroneously ad- appeal: first, the court regarding her medical con- mitted possess did not the Post Office dition which to hire her for time it refused at the second, erroneously dis- job; allegations plaintiff’s class action missed discovery; pertinent to allow and refused legal third, incorrect determining plaintiff standard person; an otherwise apply the court failed fourth, determining a rea-' meаningful standard * Rafeedie, designation. sitting by United States Dis- Edward Honorable California, Judge Central District of trict not be made
sonable accommodation could bution clerks works. The front of the ma- Post We affirm the district by the Office. 12 operator chine has consoles which are 7 grounds and court on the first two reverse feet long 33 inches wide. There are remand on the others. various mail adja- racks and trucks in the cent area. The back 277 mail bins into I. automatically which letters are sorted and *3 23, 1976, July ap- Bonnie Mantelete On again, various mail racks and trucks are plied job as a machine distribution adjacent to it. parties agree Both that the clerk at the United States Postal Service in LSM employees. is safe for all Phoenix, Arizona. As a machine distribu- The LSM entails three distinct func- clerk, employed tion would have been operator tions which an normally performs Multi Letter Purpose Sorter Machine coding for the and distribution of mail. (“LSM”) operator. passed Mantelete a They “ledge loading,” “keying” are called placed exam was on a written and list of First, and “sweeper-tying”. loading people position. to be considered for the mail, “ledge loading operation,” epileptic an at the She was time she clerk picks up large machine distribution position. trays places of mail and trays these on one Occupa- Mantelete wаs referred to the ledges in the front of the machine. pre-em- tional Medical Clinic for a standard “ledge responsible The loader” plac- ployment physical. Dr. Jose C. Pallares ledge the mail on the so that it can be gave physical, her complete a took a medi- slowly “pick-off carried to the automatic history, cal recommended the Post arm,” arm constantly picking an that is off placed position Office that she not be in a process a vacuum a one to three-ounce driving which would a involve vehicle or placing letter and init front of a seated using dangerous machinery tools or operator for distribution. moving parts. He noted on the Post Of- Next, mail, “keying” operator an fice’s form that she sits averaged grand one year, keyboard in front a per mal seizure as taking was watches medi- cation, places epilepsy and that her vacuum adequate- key- arm a letter.on ly punching controlled. board of a distribution code, address, oper- based on the which the Dr. Pallares sent to the Post Office: memory. ator has committed to Once plaintiff’s record, medical physi- punched by operator, code is the letter inquiry, cal fitness certificate medical along by is carried drive chain mecha- examination, x-ray report, and a nism. oper- Letters move in and out of the report. information, On the this approxi- ator’s field vision rate Mason, Officer, Dr. the Post Office Medical mately per of one letter second. The mail recommended to the Phoenix Post Office supply pick-off vacuum is con- arm that Mantelete not be considered further photoelectric trolled cell. The auto- position. for the LSM appealed Mantelete pick-off approximately matic arm is two- this unsuccessfully recommendation to Dr. feet Nixon, operator, from the seated console Regional Medical Officer. Nei- exposed through recessed chains ther Dr. Mason nor are requested Dr. Nixon any approx- The additional medical narrow slot. size of the аrm is any information nor regarding plaintiff’s imately long prior 8-12 inches and % inches in em- ployment history. well-rounded, Based upon these diameter. The arm rec- ommendations, the Post Office denied fur- no corners. sharp ther applica- consideration Mantolete’s job duty performed The aby final ma- tion. “sweeper- chine distribution clerk called Letter Sorter Machine tying.” operator pulls An mail which has large
The LSM is sorting operator letter been ma- sorted the console chine which a crew of 17 machine distri- carried to the back of the machine. The Roehl, plaintiffs the mail from the slots. Mr. Robert retrieves rehabilita- operator engineer, testified at top trial cannot reach the bins person who A performed, work Ms. Mantelete and the a stool to reach mail those climbs Motorola, machinery she worked on at ex- bins. posed moving parts slight- her to that were duty sweep-tyer is to Another ly dangerous postal more than the service disengage jammed letters the machine. machine but were not unsafe. The Postal sweeper-tyer area in which testimony. Service did not contradict this “drop- letters is called the jammed moves Medical Condition Plaintiffs just per jam” area and is located above Epilepsy is defined a paroxysmal dis- carry throughout mail letter carts system may order of the nervous letter, unjam In order to machine. with, aсcompanied by, impair- associated turn a employee must first switch which ment of individual’s consciousness or arm, dropper the movement but halts may accompanied by awareness and also be carts, opens plexi- and then not the letter *4 complex convulsive or more movements of glass marked “caution” in order to door body. jammed area. reach into The extent of Ms. Mantolete’s condition Employment Previous dispute. in is somewhat She has what are below, through the trial Ms. From 1971 commonly “grand referred to as mal” or successfully employed in Mantelete was n generalized seizures, involving the whole Specifically capacities at Motorola. variоus brain, consciousness, body or whole loss epitaxial, thryster, piece in she worked cases, convulsive movements and some signal assembly parts and metal small de- or, stiffening “tonic” movements a depart- partments. Her work those and “clonic” extremities movements or a operation of a number ments involved “jerking” of the extremities. sophisticated including vapor machines contracting Since the disorder washer, spinner, high speed box a wafer averaged grand Mantelete has one Ms. mal scrubber, high pressure blasting water per year during day, although, seizure machine, machine, stamping cleaning daytime between 1978 and 1981 she had no rotary dyeing machine and a welder. Oth- genеralized seizures at all. also has She responsibilities required Ms. Mantelete er seizures, nocturnal seizures which occur pour gallon jugs to at shoulder-level five asleep. while she is machines, degreasing lye and acids into to principal There are three areas of con- items from hot fur- load withdraw regarding tested facts Ms. Mantolete’s naces, operate envelope and to stuffer First, medical condition. the Postal Service rhythmically machine which carried and partial she has seizures with contends that envelopes. Finally, checks into Ms. stuffed complex symptoms. In Ms. Mantolete’s Mantelete also worked the Motorola caf- case, these are bеlieved to include a loss of tables, eteria where there were steam surroundings of her and a dis- awareness slicing high meat machine and a coffee urn perception passage in her tortion by standing fill employees that had to on a time. Ms. Mantelete describes these occur- stool or ladder. periods “daydreaming” and rences as they any are seizures of kind. denies Ms. Mantelete was accustomed to work- dispute these apparently There is no night ing a twelve-hour shift and was de- periods every occur once two or three supervisor “very good by her scribed only and last a few moments. weeks employee,” “very productive”, “always jobs”, willing to learn new a “self-starter” Second, argues that the Postal Service average attendance record. with an above photic to stimu- Ms. Mantelete sensitive night lation, is, epi- shift she was “alert” and propensity On certain flashing lights leptics “wide awake” and worked without difficul- to sensitive to so ac- to cause seizures. Ms. Mantelete ty- knowledges tongs already when she first These produced have been and are in use epilepsy, contracted she was tested at numerous Post Offices. laboratory phot- conditions shown to be The Trial ieally again sensitive. was tested She sev- This case originally April filed on years subsequent eral times in and never 1978, as a national class action on behalf of Further, again sensitivity. displayed any epileptics. sought all prohibit Plaintiffs photically she has stimulated in never been unlawful discrimination the Postal Ser- environment, laboratory. outside vice under Section Rehabilitation sensitivity Her initial occurred at the rela- (1976 U.S.C. tively high frequency per of 15 times sec- Supp. 1981) V and the fifth amendment of ond, is, triggered court, Constitution. The district in re- per seizure flashed at a rate of 15 times sponse protec- defendant’s motion for a potential order, second. The areas of concern for tive the discovery limited with re- produce spect Ms. Post Office allegations Mantelete at the to the “epileptics class only approximately pеr applying flashes at a rate once with the United difference, States Postal Service frequency second. The within the ar- judge State of subsequent- Arizona.” gues, laboratory prior renders the sensitivi- ly denied Ms. motion expand Mantolete’s ty insignificant. discovery granted the Postal Service’s trial, people most diag- As adduced at motion to claims dismiss all for relief other require epileptic some nosed as time initial- than statutory claim under the Rehabil- ly adjust particu- for their medication itation Act allega- and to strike the class *5 period, lar disorder. After this the number tions. severity and of seizures decreased. Dur- trial, Before Ms. Mantelete filed a motion prior years twelve this trial thаt in limine from to exclude the Postal Ser- Motorola, Ms. Mantelete she worked had vice’s any defense about evidence her medi- three seizures at work. She has never cal or work that it did not have injured any been of a result seizure in employment. when it denied her This mo- witness, her lifetime. Defendant’s Dr. tion was denied and defendants were al- Yudell, Alan formerly who was Ms. Manto- present lowed to such for the lim- treating physician, lete’s testified that her purpose ited of of Ms. rebuttal Mantolete’s potential having a seizure at work was prima qualification. facie case of extremely subsequent small and chance bench, After a trial to the the district being of her injured as a result of such a Fаct, Findings of entered Conclusions seizure was even more remote. He stated Law, of in Judgment and favor of the Post- further that her medical condition inwas 4,1983. May al The Service court found complete control. grand that Ms. Mantolete suffered from Finally, argue defendants and the trial partial complex seizures, mal and that she court concluded as a matter of law that photic was sensitive to stimulation and that not accommodations would have been rea- envelopes flashing lights and created sonable in they this because case would such an effect. The found that she required have expenditure large of could if seriously injured she had such a money amounts of and wоuld not make the performing any seizure while of the tasks machine safe for Mantelete. Ms. of operator. LSM Roehl, plaintiff’s expert Mr. rehabilita- reasons, For these was found not to engineer, that, any if testified such qualified handicapped person be a under necessary, accommodations deemed were Section 501 of the Rehabilitation Act of they simple inexpensive. would be He Therefore, the Post Office did not suggested plexiglass guard key refusing violate the to hire Act her and operator position pair tongs of obligation $30.00 had no make reasonable ac- clearing to assist dropper jams. handicap commodations to her because she
1421 though does not safely the essential func- this case arise under could not any condition and there is no reason tions of § impose would differ from such accommodation definition should that of because Postal hardship on the Service. except regulations undue 501 and its im- that § timely filed. appeal was This pose explicit requirement accommo- handicap of dation be considered in
II.
determining
handicapped person’s qualifi-
involves the construction and
employment.
This case
cations for federal
of the Reha-
Section 501
interpretation
previously
This court has not
considered
(1976
U.S.C. §
bilitation
respect
the issue raised
this case with
1981),
regula-
Supp.
appurtenant
V
proper
standard to be
in deter-
tions.
mining
person
lawfully
whether a
denied
handicap
in the area of
Most of
cases
employment
handicap
because
could
interpretation
discrimination involve
safety
pose some
to her
risk
and that of
Act,
504 of the
29 U.S.C.
section
her co-workers.
district court held “an
The
1984),
prohibits the exclu
(Supp. V.
justified
employing
in not
sion, “solely by
handicap”
their
reason of
handicapped person
presents
if he or she
qualified individuals” from
“otherwise
injury.”
‘an elevated risk’ of
The court
agencies
programs
receiv
government
in Bentivegna
opinion
this
cited
ing federal funds.1
Labor,
Department
U.S.