*1
827
jury’s
justify
rejecting
in
rise
does not
us
gave
to a
tendant circumstances
Sandini,
v.
888 F.2d
committed
permissible inference that Jenkins
verdict.” United
(3d Cir.1989),
denied,
300,
charged.
cert.
494 U.S.
the crime
(1990).
L.Ed.2d
S.Ct.
course,
for a
to live
possible,
It is
(“There is
Iafelice,
Accord
this case can personal the conclusion that Jenkins’
support apartment area
connection hub of a small-scale narcotics that was the SHIRING, Terry Appellant, J. enterprise of a was that trusted distribution territory. familiar insider on v. jury could have concluded that Jen- rational General, RUNYON, Marvin Postmaster T. standing good of crimi- was a member in kins United States operation when the nal narcotics distribution Appellee. police Stallings’ apartment on Feb- entered 10,1994. ruary No. 95-3547.
IV. Appeals, Court of United States Third Circuit. Iafelice, v. United States Our decision how a which discusses ration- May Argued 1996. analyze jury al circumstantial evi- could July 1996. Decided possession presented constructive dence eases, is also instructive here: Sept. 1996. Rehearing Sur Petition government not unusual that is Knowledge not have direct evidence. proven circumstances. A case
is often against grain- defendant
can be built finally tips;
by-grain until scale upon
considering drawing all the facts and therefrom, a reason-
rational inferences beyond a reasonable jury could find
able committed the defendant
doubt charged.
crime for which added). (emphasis Since the evi-
Id. at 98 effectively tipped the presented here
dence scale, precluded from nul-
evidentiary we are jury’s finding.
lifying the fact
Although “other inferences evidence, ... that circumstance
from the *2 physical within his show-
limitations. Because made no exists, ing such a that he or transfer, properly applied for we affirm *3 grant summary judgment of in favor of the Postal Service.
I. In the United States Postal Service (PTF) part-time hired as a flexible letter This carrier. meant Shir- ing guaranteed a was not a route or full forty-hour work week. The level, entry with the least amount of employees. Shiring’s of At postal all re- quest, Postal him Service transferred locations, employ- several times to different ing PTF him as a carrier each location. 1987, Shiring reassigned In to the Oak- mont, Pennsylvania Post Office. early Shiring began experience In pain mail delivering foot when severe along May year, he his routes. Caroselli, (argued), Spag- D. sought Mark Wade Dr. Lewis Dr. treatment from Stein. PA, Beachler, Pittsburgh, Appel- for diagnosed Shiring’s nolli & hallux Stein condition as rígidas lant. limites a sesemold bone right his Stein Shir- fracture of foot. fitted Thieman, Attorney, Frederick Mi- W. U.S. ing in- orthopedic for protective devices Colville, Attorney, chael C. Asst. U.S. West- formed him that was restricted from ex- he PA, Pennsylvania, Pittsburgh, District ern walking arrived. cessive before devices German, Counsel, Managing Andrew R. Jan- Service, which Shiring notified the Postal Section, (argued), Legal Policy et E. Smith placed light duty on work. Postal him Department, Law U.S. Postal Wash- mail, assigned Shiring “casing” Service DC, Appellee. ington, for delivery. mail sorting which meant before SLOVITER, Normally, responsible carrier is each letter Before: Chief route; casing for the mail for his or her own ROSENN, Judges. SAROKIN and Circuit
however, during
period Shiring was on
light duty, the Post
had him case the
Office
OPINION OF THE COURT
eight
mail
carrier routes.
for all
ROSENN,
Judge.
Circuit
time, Shiring
during this
filed a claim
Also
Terry Shiring, formerly employed
a
as
Compensation.
the Office Workers’
Postal
mail carrier
the United States
Ser-
compensation for
He
the work-time
received
vice, appeals from the decision of the United
disability.
due
his
missed
for
District Court
the Western Dis-
arrived,
orthopedic
Pennsylvania,
summary
devices
Shir-
granting
trict of
After the
ing
as a
carrier.
judgment
for
Postal
on
back
work
letter
went
However,
condi-
in violation of the
the devices failed
ease his
claim
discrimination
tion, and,
Dr. Stein
Shiring,
of 1973.
December
federal Rehabilitation Act
impossible
diagnosed Shiring
permanently disabled.
problems
whose medical
made
occa-
job
postal
him
at his
restricted from more than
to continue
carri-
er,
walking, for
total of
than one
that the Postal
obli-
sional
a
less
contends
Service was
eight-hour workday.
him that
hour in an
The Oak-
gated to
a new
he was
find
put him
mont Post Office
back on the modi- vice would have made this feat
light duty position
pointed
it had
delivery
fied
earlier created.
out that mail
carriers,
January
was an essential function of
the Post Office
letter
nothing
and that a disabled
must
determined that
there was
more
still be
the essential
available for him at the time consistent with
functions
quali-
of a
in order to be otherwise
his limitations.
not,
fied. Because
could
it claimed
during
asserts that
the time before
protected by
was not
the Reha-
discharged,
postal positions
he was
several
bilitation Act.
per-
became available that he could have
response, Shiring argued
that the 1992
physical
formed within his
limitations. He
Congres-
amendments to the Act
showed
*4
claims that
the Postal Service refused to
apply
sional intent to
the
of
standards
the
transfer him to one of these clerk or counter-
Americans with Disabilities Act in determin-
however,
only proof,
positions. ing whether the Rehabilitation Act had been
Shiring
support
that
to
asserts
conten-
violated. Because the ADA defined “reason-
deposition
tion
excerpt
is an
from his own
in
able
reassignment
accommodation” to include
which he seems to state that he was trans-
positions, Shiring
to certain vacant
asserted
light duty position
ferred to a
at
the
that the Postal Service did not make reason-
office,
McKnight Road
but was then released
disability
able accommodations for his
when
position
from that
it
because was a
which
it
reassign
refused to
him from letter carrier
the union
open
was entitled to have
for bids.
positions
require
to other
which did not
walk-
Shiring
unemployed, receiving
remained
ing.
compensation
worker’s
at 75% of his
The district court did not consider whether
salary,
January,
from
1993until
November
reassignment was a reasonable accommoda-
time,
1994. At that
the Postal Service creat-
Thus,
tion under the Rehabilitation Act.
aed
new
for him at
its office
any
did not
discuss whether
were
Pittsburgh, Pennsylvania. On December
available,
plaintiff
or whether
had established
Shiring accepted
began
and
to
for,
for,
applied
that he had
qualified
and was
again.
work
open positions. Rather,
the district court
April
Shiring
had
considered
“reasonable
accommodations”
complaint, alleging
filed the instant
that the
plaintiffs
as it
performance
related to
against
Postal Service discriminated
him in
specific
Finding
of letter carrier.
violation of the
Act
Rehabilitation
that there were no accommodations the Post-
§
seq. Shiring alleged
U.S.C. 701 et.
that he
adopt
al Service could
which would enable
qualified
was an otherwise
disabled individu- plaintiff to fulfill the essential elements of his
al,
performing
who was
the essen-
job, the district court
plain-
determined that
tial functions of his office with reasonable
qualified
tiff was not a
individual within the
accommodations, and that the Postal Service meaning of the Rehabilitation Act. There-
had failed to make reasonable accommoda-
fore,
because
had not established a
tions for
alleged
him. He further
that it had
prima
granted
facie
the district court
discharged him solely because of his handi-
summary judgment
in favor of the United
cap.
seeking backpay
Because
States Postal Service.
pension
and reinstatement of
and
losses,
complaint
he did not dismiss his
when
II.
accepted
position.
his current
The Rehabilitation Act of
29 U.S.C.
In March of
United
§
seq.,
applicable only
701 et.
to federal
summary judgment.
moved for
employers
employers
and
who receive federal
asserted that
was unable to meet his
funding.
employers
comply
Private
must
burden of
that he was an otherwise with the standards set forth in the 1990
qualified
disabled individual.
had
Act,
Americans with
Disabilities
U.S.C.
stated
deposition
at his
§
he was unable to
seq.
12111 et.
The Rehabilitation Act for-
physically
mail,
deliver the
employers
and that no ac-
discriminating against
bids
from
part
persons
commodation on the
hiring,
the Postal
Ser-
disabilities in matters of
routes,
all,
doing
delivery
eight
At the same
placement, or advancement.
time,
recognizes
employers
notwithstanding
delivery
Congress
is an
mail
legitimate
interests
posi
have
essential element of the ‘letter carrier’
effi-
adequately and
duties of their business
to
‘casing’ position
tion. The
which he was
obligated to
ciently. Employers cannot be
temporarily assigned
posi
not an
official
per-
persons
incapable
who are
employ
tion,
had
but
been created
the Postal
necessary
job.
forming
duties
give Shiring something
to
a
to do on
Therefore,
follow-
Congress
devised the
temporary
sug
basis.
ing standards:
gestion that he
have
qualified
would
been
perform
requirements
of such a
an
make
order
help
not
ease because
the Act
does
under
under
prima
a
case of discrimination
out
facie
employers
posi
create
Act,
bears
the Rehabilitation
specifically
handicapped employee.
tions
for the
(1)
he or
demonstrating
burden
(7th
Reno,
F
edro v.
(2)
disability,
or she is
she has
that he
Cir.1994)(“...
the Rehabilitation Act has
perform
essential
otherwise
require
employ
interpreted
never been
job, with or
reason
functions of
without
employment opportu
er to create alternative
employer;
able accommodations
*5
”).
handicapped
nities for a
...
(3)
was
terminat
that
or she
nonetheless
follows that the district court did not err
prevented
ed or otherwise
from
refusing
to consider the non-existent
job.
plaintiff
prima
the
must make
of ‘caser’ as an accommodation that would
facie
that reasonable accommodation
Shiring qualified.
possible.
plaintiff
If
able to meet make
is
the
is
burdens,
bears the
these
the defendant then
However,
district
not
the
court did
defense,
an
proving,
burden
affirmative
Shiring’s allegations that he re
consider
by the
requested
that
the accommodations
reassignments
quested
to desk
transfers and
unreasonable,
an
plaintiff
or would cause
jobs
the
within
Postal
and that his
hardship
employer.
The court
undue
on
employers prevented
receiving
him from
in making
factors
this de
considers several
error;
reassignments. This was
these
termination.
should
reas
court
have considered whether
disputes
that
Shiring’s
one
signments were a reasonable accommodation.
meaning of
he is a
within the
disabled
always
was
Before
Likewise,
This
not
case.
Act.
it is undis
the Rehabilitation
1992,
prove
disabled
had to
that
individuals
parties
that
puted
he was terminated. The
job
they
however,
they
qualified
were
for the
Shiring
disagree,
on
was
whether
employed
“[Employers] are not
perform
were
to do.
qualified to
the essential
otherwise
required to find another
for an
job.
functions of his
qualified
is not
for
he or she is
who
functions of a mail
One
the essential
County v.
doing.” School Board Nassau
is
mail to the
physically
carrier
to
deliver the
Arline,
273, 289,
n.
480
107 S.Ct.
U.S.
people
deposition,
along the route.
(1987).
n.
1131
Pursuant to this vacant, strating presence Regulations posi- Code of Federal funded was amended provide effective October at pay, tions his current level of employers reassign nonproba shall offer to perform. plaintiff which A seeking he could tionary employees employees if those become relief under the Rehabilitation Act must perform unable the essential functions of demonstrate what reasonable accommoda- jobs. reassignment their should be to employer tions he or she contends the should funded, already vacant within the made, including have an identification of the area, commuting grade same the same employer should have consid- § 1614.203(g). or level. 29 C.F.R. The use reassignment. ered for Because the word “shall” indicates that this reas so, failed to do the trial court committed no signment mandatory, offer is unless the reas reversible error. signment agency would cause the undue Accordingly, grant summary judg- hardship. courts should consider ment in favor of the Postal be reassignment whether deter affirmed. mining whether an seeking individual relief
under the Rehabilitation Act is an otherwise SLOVITER, Present: Chief qualified individual. *6 BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN,
However, the burden is on the NYGAARD, ALITO, ROTH, employee prove LEWIS, he is “otherwise qualified” McKEE, ROSENN,* Buckingham individual. v. United Judges. Circuit States, (9th Cir.1993). 739-40 When the contends that he would SUR PETITION FOR REHEARING be otherwise with reasonable ac commodation, Sept. falls to the make at least facial that such petition rehearing Appel filed accommodation is Id. at 740. Terry lant J. in the above-entitled record, nothing there is in the having case judges been submitted to the beyond Shiring’s vague allegations in his de participated ** who in the decision of this position, any requested. transfers were court all and to the other available circuit Shiring would have to demonstrate that judges regular service, circuit active vacant, positions there were funded whose judge and no who concurred in the decision essential duties perform he was having rehearing, asked for majority and a ing, with or without reasonable accommoda judges the circuit of the circuit in tion, and that these were at an having active service rehearing voted for equivalent level or as PTF carrier. banc, petition court en for rehear PTF seniority position carrier is the lowest ing is denied. in the Postal and the Service is not promote Shiring higher ato level disability. to accommodate his
III. summary, the district court
should option have considered the of reas-
* ** Rosenn, Hon. Max argument Senior Circuit toas Hon. H. Lee Sarokin heard but retired prior filing petition panel rehearing only. from office rehearing. to the