*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. 60 L.Ed.2d 980 As ship operation agency on the one court observed: 1613.704(c).3 Id. question. “impose[s] duty 501 a fed- [SJection so, proce- always agencies eral While it has not been structure their clear, circuit, programs so as is now in this dures and to ensure that least including handicapped employees, Postal Service individuals are afforded 1) including composition of the and structure These factors are: overall size of the force; 3) agency’s program respect agency’s to number work nature and employees, types number facilities cost of the accommodation. 2) budget; type operation, agency size of 107 8 17, (1987); Mante 1131 n. 94 L.Ed.2d 307 alleging handicap discrimina employees, (9th 1416, Bolger, v. 1421 lete 767 F.2d private may maintain employment

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, 107 S.Ct. at 1131 n. tions. See 504 of the Act and Stewart, tions of section Brennan v. 834 F.2d 1261- regulations, discussed Cir.1988). administrative Supreme As the Court above, adopted 501. As under section recently explained: alleging such, complaint as we view context, employment an otherwise 504 as well action under section causes of person perform is who can qualified one as under section 501. job in “the essential functions” handicapped person question. When dispute Hall was there Because the essential func- able meaning of the Act handicapped within also must the court job, tions of the because of her was denied *6 “reasonable ac- consider any whether case, inquiry in this the essential handicap, by employer would commodation" Act, is of the whether under either section per- enable handicapped person job of qualified for the was otherwise Hall form functions. those regula- clerk. In terms of distribution (citations Arline, n. 17 107 S.Ct. at 1131 requirement— tions, this Hall would meet added). emphasis To some ex & omitted “qualified handi- a and thus be considered tent, inquiries are interrelated in that these or rea- person”—if, “with without capped employer, that an includ courts have held accommodation, can sonable [she] required to ing employer, a is not position in functions handicapped a individual accommodate endangering” question her own without eliminating one of the essential functions safety 29 or that others. health and job. Jasany, 755 F.2d at In 1250. (1987) 1613.702(f) (emphasis add- C.F.R. § words, elimi an accommodation that other essentially the same ed). is This definition job is not nates an essential function of used for the as that which courts have reasonable. 504 of the Act— operative term section determining whether a handi handicapped individu- In qualified “otherwise perform the essential See, Nassau Coun- capped individual can e.g., Bd. School al.” and, not, Arline, if whether functions of a ty 107 S.Ct. 480 U.S. that, accordingly, person requirement Rehabili- and her is It also clear that must be dismissed for failure discriminatory tation Act claims alleging treatment must exhaust subject matter prece- a claim and for lack of to state as a condition administrative remedies accept jurisdiction. did not The district court bringing section an action under either dent to argument declined to dismiss Hall's this v. United States or 504. See Smith 501 section (6th Cir.1984). claims. Defendants did Rehabilitation Act object 262 742 F.2d Moreover, in their alleges conclusion. complaint, this that she notified her motion, summary judgment handicap subsequent defend- claim of dis- office her the EEO crimination; issue, nor exhaustion investigation ants did not reassert the be un- asked that an claim; and, they briefs in this the issue in their regard did raise to her receiv- dertaken Accordingly, we note that Hall’s agency days, while ing response court. from the after 180 requirement compliance with the exhaustion In their in the district court. filed this lawsuit doubt, ad- summary judg- entirely we decline to free from motion to dismiss and/or ment, properly before it is not argued dress that issue because efforts that Hall's the defendants satisfy us. the exhaustion sufficient to were not Arline, accommodation will inquiry. a reasonable enable 772 F.2d at 764-65. Such so, or her to do a district “will him court determination should be based more need to conduct individualized than inquiry statements in description appropriate findings and make of fact.” should reflect the actual functioning and Arline, added). (emphasis particular S.Ct. circumstances enterprise As involved. stated the Eleventh Circuit its

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. 94 L.Ed.2d 307 Under the scheme, statutory Judge As recognizes, Jones “an Service must make “reasonable accomoda accomodation eliminates an essential tion” “qualified to a applicant.” Defend function of job is not reasonable.” ants claimed their motion for summary plaintiff That time, in a part- served short judgment plaintiff failed to exhaust time clerk period some earlier her administrative remedies pro before not, which did according recollection, to her ceeding with this suit. There is no require record heavy lifting or “excessive bend- that Hall ever filed written formal ing” basis upon which to counter the complaint handicap undisputed discrimination. requirements particular Plaintiff has the burden of showing she sought clerk. There —distribution *9 she fulfilled requirements administrative no was factual material issue as to Hall’s proceeding before into court to sue inability as to one or the Postal Service. She has merely assert more of its essential grant functions. The ed that she wanted and asked about summary judgment clearly indi- EEO officer’s investigation “concerning Corp. Catrett, Celotex cated. v. 477 U.S. her complaint of handicap discrimination.” (1986). S.Ct. 91 L.Ed.2d 265 2. Judge Jones makes reference to 29 U.S.C. 3. Hall stated that “she that the assumed EEO § if which sets out handicapped persons, completed necessary had filed or officer qualified, are to be "equal opportuni- afforded paperwork" complaint based on an oral which ty” to do work Service. (Emphasis added). is uncertain. U.S.C. 791. Plaintiff made such reference in complaint. Inc., 477 U.S. Lobby, Liberty v.

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