*1 permitted if to remain at his work sta- listings two duplicative because a claimant significant tion without walking. paralyzed in two extremities would qualify under both listings 1.09 and 1.13. statute, As defined the term “disabili- ty” “inability means engage in any sub- Under listing 1.13, a claimant is gainful stantial activity by reason of deemed disabled as the result of his having medically physical determinable or mental been rendered for employment unavailable impairment expected which can be to result due to surgical procedures, when he in death which or has lasted or can be sustains soft injuries tissue of an extremity expected to last period continuous require for a series staged of surgical than less 12 months." 42 U.S.C. of procedures to restore major function of the 423(d)(1)(A)(emphasis added). § extremity, process and the has not been completed so as to regulations, Under restore if an function individual is within twelve months working after onset. suffering from a In such severe event, impairment claimant is which meets the deemed duration to have re- been disabled for a quirement period continuous which meets equals or of not less than twelve impairment, listed months. finding When of “disabled” claimant longer is no will be made without unavailable consideration of for em voca- ployment due to the surgical tional procedures, factors. 404.1520(d) C.F.R. § he is no longer disabled within the contem plation listing of 1.13.
The Court of Appeals for the Seventh Circuit concluded listing has 1.13 is: Because Lapinsky returned to work less than twelve
directed at the months loss of the after injury, use one is clear that his extremity, not disabling surgery itself restorative under did not regulations, render him unavailable where for restoration of work as re quired by function require repeated listing will staged 1.13. judgment sur- gical procedures the district over a court is period, affirmed. lengthy thus making an individual who would
otherwise capable gain- substantial employment
ful unavailable for work be-
cause of these repeated surgical proce-
dures. This interpretation supported
by the phrases “staged surgical proce- “salvage dures” for and/or restoration.” HALL, Odis D. Plaintiff-Appellant, Bowen, Waite v. F.2d Cir.1987) UNITED SERVICE; STATES POSTAL Waite, argued claimant that his Carlin; Cole, Paul N. and Chester injury listing satisfied the since major Defendants-Appellees. function of his permanently paralyzed arm No. 86-2082. could not be restored within twelve months. The court noted that interpreting United States Appeals, Court of listing 1.13 to cover an injury such Sixth Circuit. mean that Waite would be able qualify Submitted Dec. 1987. under listing, benefits though even Aug. Decided 1988. he could not meet the specific more re quirements for loss of function of extremi ties listing found in addition, 1.09.1 In interpretation
such an would also make the P, Subpt. App. C.F.R. Part X-ray 1.09 bony ankylosis tendons and evidence of reads: angle, joint at an subluxation or unfavorable Amputation (i.e., instability): deformity anatomical major hands; loss degenerative due to A. Both or function changes feet; neurologi- associated with vascular or B. Both deficits, cal traumatic loss mass or muscle C. One hand and foot. one *2 Mich., Detroit, Magidson,
Mark H. plaintiff-appellant. Detroit, Atty., U.S. Caplin, Asst.
Peter A. defendants-appellees. Mich., for JONES, WELLFORD Before Judges. BOGGS, Circuit JONES, Circuit R. NATHANIEL Judge. Hall, brought D.
Plaintiff-appellant, Odis Act of Rehabilitation under this action 29 U.S.C. seq. (1982), et alleg- ing and bending required position. of that ing that the United States Postal Service Hall asked to become a distribution clerk improperly denied her a as a distri- because she “assumed” that it was the *3 bution clerk on physical based her handi- position same that she had previously per- cap. The district court granted summary formed with the postal service during the judgment for the defendants. Because we Christmas rush. Moreover, she believed find that there genuine are issues that her physical of mate- limitations would pre- not rial fact remain unresolved, vent we her re- from doing the work that she verse the grant court’s formerly summary performed judg- as a clerk at the main ment and post remand for further proceedings office. According to deposition: Hall’s in the district court. “Whatever I was doing then I can do now.”
Id. at 66. I. job description of a distribution clerk The underlying facts giving rise to this states that position requires, among lawsuit are largely undisputed. Plaintiff, other things, lifting up to pounds, kneel- Hall, Odis D. who is a year woman, ing old repeated and bending. Adams, David began working defendant, with Supervisor the United of Employment and Placement States in 1968 at the as a letter Detroit Office, Post described in his carrier the Detroit Region. At affidavit the the time basic functions of a distribu- hired, she was passed tests; Hall tion two clerk: one for a clerk’s and the other for job involves substantial amounts of letter carrier. While she could have taken heavy lifting bending. Distribution position, either she chose to be a letter clerks must heavy lift mail, sacks of carrier. capacity, Hall sorted dump them out and then sort the mail. foot, delivered mail on joba They she held also parcel must lift post packages for years. five Occasionally during weighing up this pounds. to 70 The heavy period performed she what she termed is an part job, as it “clerk work” at the main post office during often done repetitively throughout the Christmas day. rush. Hall could say exactly type what of clerk work she was Id. at 96. doing, but she did indicate that heavy During the course application pro- lifting was required and that the job basi- cess, Hall was found to be per- unable to cally involved sorting mail. form physical requirements of 11, 1973, On June while the course of —particularly heavy lifting and bend- mail, delivering an automobile out ing went therefore medically unsuited —and Hall, control and struck causing injury to position. distribution clerk According hip, her right foot and back. Adams, As a result of to this conclusion part was based in this on-the-job injury, Hall received Work- opinion treating Hall’s physi- Compensation ers’ benefits under the Fed- cian who stated that she per- was able to eral Employee Compensation Act form employment requiring excessive (“FECA”). She continued to receive bending lifting. strenuous The Postal compensation until June when it was examining Service’s physician concurred determined that she was no longer dis- with this stating, conclusion report abled. April 15, 1985, dated that Hall could not meet the criteria heavy lifting and bend- 7, Í984, On October fifteen months after ing without risk serious to her health. stopped she receiving benefits, FECA Hall Therefore, 16, 1985, May on applica- Hall’s wrote the Detroit Postmaster requesting tion was denied. that she be “reinstated aas Distribution Clerk at the General Mail facility.” App. J. During the first May week of prior at 105-06. She did request reinstate- to her application being formally denied, ment to her carrier because she Hall Equal went to the Employment Oppor- longer could no do all of walking, (“EEO”) tunity lift- Office at Detroit Post May By order dated crimination. was she complaint file to Office defendants’ granted Horace Gilmore Post Judge by the against discriminated
being filed the claim as to dismiss Ac- to handicap. motion physical her to due Office Handicappers Michigan EEO pursuant Hall, spoke she cording to Act, the motion but denied Rights investi- be an there Civil asked officer Rehabilita- arising under applica- the claim denial regarding gation by the told she Act. alleges that tion tion. have she time officer the defend- Thereafter, May denial actual received she until wait Reha- plaintiff’s their answer filed ants before *4 Office Post the from termination three claim, put forth Act bilitation 6. There- Id. taken. be could any action the defense defenses, including affirmative 1985, after May of week after, third in the ad- her exhaust to had failed plaintiff that her informing her that letter receiving the remedies. ministrative to denied, back Hall went was application discovery limited conducted parties The request her renewed office and the EEO 19,1987, defendants the and, September on regard- undertaken be investigation that In judgment. summary for a motion filed discrimina- handicap of complaint ing her that argued motion, defendants the their 7. Id. at tion. discrimina- forbids Act Rehabilitation the any action without days passed 180 After an “otherwise against employment in tion 30, Hall, December office, EEO by the individual,” which handicapped qualified the United complaint 1985, her filed who, without with or person as a defined Dis for the Eastern Court District States accommodation, perform can reasonable States the United against Michigan of trict position the essential functions Carlin, Post then Service, N. Paul Postal view, 70 the In defendants’ question. States,1 and of the United General master essential is an lifting requirement pound Detroit, the Cole, Postmaster Chester clerk of the distribution function complaint, In her Post Office.2 Michigan The defendants applied. Hall for denied been alleged she had Hall admittedly could Hall since argued that physi of a because Service the Postal with they since heavy this perform the Rehabilita handicap in violation cal accommo- Act to by the required were Act” (“the Rehabilitation 1973 Act of tion “essential” eliminating this Hall date seq. et Act”), 29 U.S.C. § “the or quali- “otherwise function, not an was Hall thereunder, issued regulations (1982), the Thus, de- the individual.” fied the (1987), and seq. et 1613.701 29 C.F.R. § maintain argued, she could fendants Act. Rights Handicappers Civil Michigan under handicap discrimination claim complaint, answering Hall’s to Prior Act. Rehabilitation a mo- 1986, filed 11, defendants, on March agreed Judge Gilmore opinion, oral In alternative, for dismiss, in the tion contention defendants’ with motion, the this summary judgment. distribution lifting requirement pound things, among other argued, defendants function essential anwas clerks jurisdic- not have did court the district question no factual was there claim Act Rehabilitation over Hall’s tion with agreed also court issue. to this her admin- exhausted had not she because Ser- argument defendants’ further, remedies, and, istrative lifting “re- modify the have did not vice must law Michigan for relief under claim could Hall so that quirement” the Rehabilitation because be dismissed elimi- in the result would this because job, remedy for exclusive provides Act distri- function of an nation handicap dis- claim employee's federal 1986, Cole Chester May By dated order Casey named was V. January Albert 1. In lawsuit. party States, aas replac- dismissed United General Postmaster Fed.R.Civ.P. Pursuant ing Carlin. Paul N. automatically been Casey’s has 25(d)(1), name party. as a substituted position. Such equal bution clerk an accommoda- opportunity job assignment in both tion, court, promotion.” view of the district and, therefore, not be reasonable was not Prewitt v. United States Postal required the Act. (5th 662 F.2d 1981) Cir. Unit A FDIC, Ryan v. (quoting 565 F.2d genu- Because believed there were (D.C.Cir.1977)); see also Mantelete Bol fact ine issues material as to whether ger, 767 F.2d Cir.1985). lifting requirement was an essential Equal Employment function and as to whether a Opportunity reasonable (“EEOC”), Commission made, timely agency charged accommodation could she Act, appeal. prom- enforcement of the filed has ulgated regulations administrative that de- fine the duties of agencies, such as II. Office, the Post under section 501. The regulations Act of The Rehabilitation ambitiously “[tjhat U.S.C. declare seq. (1982), 701 et Federal program designed is a Government shall become a model *5 employer protect rights individuals,” the of handicapped to assist and the of hand- 29 (1987), C.F.R. 1613.703 icapped. prohibits Title V of Act and the feder- make clear § that contractors, employers obligation federal agencies, al federal have an recipi- and to make reasonable federal accommodations for discriminating ents of funds from handicapped job applicants: against handicapped individuals. Toward end, (a) of provides agency section 504 the Act An shall make ac- reasonable pertinent part: commodation to physical the known or mental qualified limitations of a qualified handicapped
No otherwise
in-
handicapped applicant
employee
or
shall,
in the
dividual
...
United States
can
the
agency
demonstrate
unless
solely
handicap,
reason
of
be ex-
the accommodation would im-
in,
from
participation
cluded
the
be de-
pose
hardship
opera-
an undue
on the
of,
subjected
nied the benefits
or be
to
program.
tion
its
of
discrimination
program
under
or ac-
(b)
may
Reasonable
in-
accommodation
tivity receiving Federal financial assist-
clude,
(1)
but shall
to:
limited
program
ance
under any
activity
or
or
Making
readily
facilities
accessible to
or
by any
agency
conducted
Executive
by handicapped
and usable
by the United States Postal Service.
persons,
(2) job restructuring, part-time
and
Id.
added).
addition,
(emphasis
794
In
§
schedules, acquisi-
or
work
modified
requires
section
of
501
the Act
em-
federal
equipment
tion or modification of
ployers, including
Office,
the Post
to under-
devices, appropriate adjustment
or
action
take
behalf of the
affirmative
examinations,
pro-
modification of
the
791(b).
Id.
handicapped.
This affirma-
§
and interpreters,
vision
readers
obligation goes beyond
tive action
the obli-
and other similar actions.
gation
504, which, by
set forth in section
its
(1987).
regula
29 C.F.R.
1613.704
§
terms,
requires only non-discrimination.
tions
the
also define
factors
should be
generally
Community
See
Southeastern
determining
considered in
whether an ac
Davis,
397, 410-11,
College v.
442
U.S.
99
impose
commodation would
an undue hard
2361, 2369,
S.Ct.
tion
Cir.1985); Jasany v.
States Postal
United
employers
their
against
action
causes of
Service,
(6th Cir.1985).
F.2d
501 and 504
under both
sections
v. United
Act.4 Smith
Rehabilitation
It
from review of the
is evident
Service,
F.2d
Postal
States
law in this area
the “otherwise
case
curiam);
Smith v. Unit
Cir.1985)
(6th
(per
requires
inquiry
a consideration
qualified”
Service,
742 F.2d
Postal
ed States
applicant’s
only
v.
See also Gardner
Cir.1984).
(6th
259-60
ability
perform
job’s
essential func
(8th
Morris,
Cir.
1277-78
752 F.2d
tion,
accom
but also whether a reasonable
Mackay
United States
1985);
employer
would enable
modation
(E.D.Pa.
F.Supp.
handicapped person
perform
those func
alleges
1985).
complaint, viola
In her
17;
Arline,
opinion in Arline: view, In our Hall has legitimate raised a legitimate physical qualifications While dispute factual as to whether pound the 70 may performance be essential to lifting requirement was indeed essential. jobs, certain both that determination and Hall spent doing time clerk work in the the determination of whether accommo- and, early 1970’s as she stated in her affi- possible fact-specific dation are issues. davit, never observed clerks—whether obligated to scrutinize court is they be “distribution clerks” or something determining
evidence before
whether the
else—doing any heavy lifting. As Hall
justifications
defendant’s
reflect a well- points
brief,
out in
lifting
if
were “es-
judgment grounded
informed
in a careful
position,
sential” to the
she
likely
most
open-minded weighing
of the risks would have
herself,
had to do
some
alternatives,
or at
they
or whether
are
least would have observed others
doing heavy lifting,
simply conclusory
while
statements that are
she worked in a
capacity.
clerk
While
being
the Postal
justify
used to
reflexive reactions
Service
suggests that
prior
experience
Hall’s
grounded
clerk
ignorance
capitulation
was not in
position,
a distribution clerk
public prejudice.
the Postal Service was unable to indicate
Arline
County,
v. School Bd. Nassau
was,
what type
of clerk
even
(cita
Cir.1985)
F.2d
764-65
though that
presumably
information
added),
emphasis
aff'd,
tions omitted &
be within its control. Nor did the Postal
273, 107
U.S.
S.Ct.
L.Ed.2d
suggest
Service
that Hall’s observations
regarding
lifting requirements
of other
Applying
principles
these
*7
clerk positions were not accurate.
case,
summary judgment
we believe the
persuaded
We are not
that the affidavit
view,
order
inappropriate.
was
In our
Adams,
of
Employment
David
genuine
there are
of
fact as
issues material
Supervisor
Placement
at the Detroit Post
perform
to whether Hall could
the essential
Office,
genuine
dispute
removes the
factual
of
functions
clerk
distribution
regarding the
functions of
essential
and,
not,
if she could
reasonable
whether a
position.
distribution clerk
Adams’s affida-
accommodation
the Postal Service would
description,
vit
job
references the
avers
perform
enable
to
those functions.
that distribution clerks must do substantial
holding
perform
In
that Hall could not
an
heavy lifting,
of
and concludes
amounts
clerk
essential function of the distribution
“heavy lifting
part
that
an
as
essential
position, the lower court concluded that it
every
job,
repetitively
as
is done
it
accept
job
must
de-
the Postal Service’s
place,
day.” J.App. at 96. In the first
scription as controlling.
job
Since the
de-
requirement
lifting
is
statement
that the
scription states that
clerk
a distribution
legal
is a
conclusion. Adams’s
“essential”
pounds,
must be able to lift 70
and since
may dif-
assessment of what is “essential”
much,
admittedly
could not lift that
it
fer
a
conclusion after
has
from court’s
fac-
the court concluded that there was no
inquiry” re-
the “individualized
conducted
inability
perform
Further,
as Hall’s
to
tual issue
to
Adams
quired by
while
Arline.
job
an essential function of
distribu-
must lift
that distribution clerks
asserts
mail,
clerk.
this
error. As
that
heavy
tion
We believe
was
he does
state
sacks
Arline,
regu-
in
so on
the court stated
the determina-
all
clerks must do
a
distribution
basis,
could
physical qualifications
say
clerks
tion of whether
are
lar
nor does he
that
only 25-30
they
if
could lift
job requires
not do the
essential functions
a
short,
think
In
we
engage
highly
pounds,
in
as Hall can.
fact-specific
court to
case,
questions
factual
as
this
the Postal Service failed to
are material
that there
suggesting
is
introduce
evidence
requirement
such
that
to whether
reasonably
job so
to
could not
accommodate
of the
Hall.
function
an essential
Therefore,
completely
the lower court was
refusal
to hire
the Postal Service’s
justify
unable to make the kind of
summary judgment on
individualized
Accordingly,
Hall.
inquiry on
that
the accommodation issue
is
inappropriate.
this issue was
Moreover,
required by Arline.
while the
no
factual
Even if it
concluded
were
stating
court was
em-
correct
an
respect
to whether
questions existed with
ployer
required
is not
to eliminate an “es-
lifting requirement was an essential
accommodating
sential function” in
hand-
ques-
job, there is still the
function
individual,
icapped
the Postal
made
Service
Hall could
to whether
tion as
absolutely
showing
oc-
that this would
reasonably accommo-
if
were
function
she
they
to
attempted
cur if
accommodate Hall.
Arline,
107 S.Ct. at
n.
dated. See
Indeed,
(and
the court
the Postal Service in
that no factual
court concluded
district
brief) evidently operated
its
as-
under the
respect
whether
questions existed
every
sumption
accommodation relat-
necessary.
an accommodation
ing
to an essential function of a
conclusion on its view that
court
based
necessarily
eliminates
that function.
This
in this case
require an accommodation
simply
particular
is
the law. Because a
in the elimination of
essen-
would result
function is found to
does
job. We
believe
tial function
employer
relieve the federal
of its burden
was error.
showing
that the
individual
reasonably
cannot be
accommodated. To
earlier,
As
mentioned
we
otherwise,
hold
as we think the district
obligation to
an affirmative
employers have
did,
ignore
court
ac-
reasonable
for hand
make reasonable accommodations
aspect
commodation
“otherwise
icapped employees. The burden is on
qualified” inquiry.
employer
present
credible evidence
reasons,
foregoing
RE-
For
we
possible
is not
a reasonable accommodation
grant
summary judgment
VERSE the
particular
situation.
C.F.R.
the defendants’ favor and REMAND to the
Jasany, 755 F.2d
1613.704(a);
at 1251
proceedings.
district court for further
(citing Prewitt v. United States Postal
A
662 F.2d
Cir. Unit
WELLFORD,
Judge,
Circuit
1981)).
An accommodation
not reason
dissenting.
able,
if,
required,
not be
and will therefore
*8
instance,
hardship
being
was a letter carrier
imposes
undue
Hall
before
1982,
finally
injured,
she was
deter
upon
operation
employer.
the
of the federal
determination,
longer
no
after she
However,
es mined
disabled
like the
determination,
highly
protested
had
this decision administrative
function
is
sential
(She
hearing by
ly.
requested
hearing
a
a
requires
en
fact-specific and
the court to
longer
no
representative
found her
gage
inquiry to ensure
who
in an individualized
disabled,
by
a
and this decision was reviewed
employer’s justifications
that
“reflect
for Federal Em
judgment grounded in a
the Office of
Director
well-informed
specifically
weighing
ployees’ Compensation.)1 Hall
open-minded
careful
Arline,
requested
“as Distribution
reinstatement
a
risks
772
and alternatives....”
Facility.”
Thus,
indi Clerk at the General Mail
fact-specific,
F.2d
at
position
included a
particu
job description for
inquiry as to
a
vidualized
whether
lifting up
pounds,
requirement should re
lar accommodation
reasonable
authorities,
was, according
postal
practicability
enterprise in which
flect the
to the
part
job,”
by
“an
found
making
necessary
volved of
accommo
testified that she
court. Hall
the district
dation.
by
compensation was denied
"Workman’s"
ued
1. Hall’s letter of October
1984 to
Postmas-
“review” Board.
her
for contin-
ter at Detroit concedes that
claim
previously
had
done “clerk work at
the She has never claimed or demonstrated
post
main
during
office ...
the Christmas
any filing
complaint
written
assert
(Not “any
rush.”
special job” and she did
ing handicap discrimination
as is re
not know
job
was,
whether the
she did
quired,
nor has she
any
asserted
excuse for
not,
classified as “distribution clerk
not following this necessary prerequisite to
work.”) Hall said
during
that
this short
this suit.3 Defendants
questioned
have
special season work she was not called
exhaustion necessity, and should have been
any
to do
heavy
mail sacks.
granted a motion to dismiss on this basis.
Smith v. United States
Service,
Postal
unquestioned
It is
that from a medical
(6th
F.2d 257
Cir.1984).
standpoint,
cannot,
without
hazard
health,
her
meet the criteria for the distri-
Even if not dismissed
grounds
of fail-
job.
bution clerk
Just before official denial
exhaust,
ure to
defendants were entitled to
of her re-employment for this reason, Hall
summary judgment for the reasons stated
speak
claimed to
to someone in the
Detroit
Judge Gilmore. Hall asserted a claim in
EEO office of the Postal Service to assert
complaint
her
only under the Rehabilitation
discrimination
reason of her
Act,
physical
29 U.S.C.
701 et seq.,
§
specifically
handicap. After the official
denial of her
regulations
§
spelling out a
application
clerk,
as distribution
Hall made
“reasonable accomodation.” She did a further
request
oral
of the EEO officer
assert a
claim under
nor claim
§
that
to investigate her rejection but
specifi-
defendants had any affirmative duty to-
cally based on her asserted handicap. Af- ward
except
“not
discriminate
[to]
ter
days
without
response,
she filed
against
qualified
physicially or mentally
this action under the
(29
Rehabilitation Act
person.”
701)
seq.
et
U.S.C.
Michigan
§
Plaintiff has
demonstrated,
as a mat-
Handicappers Act.
I believe the district
law,
ter
she can
an essen-
court was correct
granting
the defend-
tial function of
she herself
judgment.
ants
Accordingly, I dissent.
sought
in writing.
Jasany v. United
prescribes
Rehabilitation Act
only
States Postal
F.2d
qualified”
“otherwise
persons
Cir.1985).
shall
See also School Board Nas-
not be excluded from Postal Service Work
County,
Arline,
sau
Fla. v.
480 U.S.
by reason of a handicap. 29 U.S.C. 794.2
S.Ct.
1131 n.
Anderson L.Ed.2d S.Ct. discussed, herein bases or both either On defend- for affirmed should
judgment
ants. (argued), Mapother R. James Ad- William Louisville, Ky., Earhart, plaintiff- for
rian appellant. Cincinnati, Bavely (argued), Hanlin
E. defendant-appellee. Ohio, for Debtor, WARD, Terry Patrick re ENGEL, *, Judge Chief Before KRUPANSKY, Circuit MERRITT TRUST HANOVER MANUFACTURER’S Judges. Plaintiff-Appellant, COMPANY, KRUPANSKY, Judge. Circuit WARD, Terry Patrick Chapter arises from the bar The claim at Defendant-Appellee. bankruptcy proceeding the defendant- (Ward). Patrick Ward Terry appellee 87-3525. No. Manufacturers Hanover Plaintiff-Appellant Appeals, Court of States United (MHT) except seeks to Company Trust Circuit. Sixth indebtedness incurred discharge from of his use of a Mastercard March as result Argued Ward issued as a result purportedly it 16, 1988. Sept. Decided in his made Ward representations false credit card. bank- application and the district court concluded ruptcy was dis- MHT’s debt agreed that court appealed. timely chargeable. MHT question credit card received Ward circulat- an application completion direct of a nationwide part by MHT ed to en- by MHT sponsored solicitation mail retail consumer its members new roll credit his Ward received credit business. awith of 1985 May MHT from card During $2,000. limit of credit preapproved 13,1985, May beginning 23-day period charged 5, 1985, he June ending on includ- charges $2,200 account. MHT each. $900 cash advances ed two financial requested no admitted Ward, it conduct did nor from statement responsibility, financial check of credit indebtedness have disclosed *10 credit accounts other least twelve on at conviction embezzlement together $250,000. MHT’s ordering a restitution April Judge effective of Chief duties Engel assumed J. Albert *The Honorable