F I L E D

United States Court of Appeals

Tenth Circuit

DEC 24 1997

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PATRICIA KAYE WOODMAN,

Plaintiff-Appellant,

v.

MARVIN T. RUNYON,

POSTMASTER GENERAL, and

UNITED STATES POSTAL

SERVICE,

Defendants-Appellees,

No. 96-4104

Appeal from the United States District Court

for the District of Utah

(D.C. No. 92-CV-427)

David J. Holdsworth of Romney, Condie & Holdsworth, Salt Lake City, Utah, for

Plaintiff-Appellant.

Carlie Christensen, Assistant United States Attorney (Scott M. Matheson, Jr.,

United States Attorney, with her on the brief), Salt Lake City, Utah, for

Defendants-Appellees.

Before SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges.

SEYMOUR, Chief Judge.
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Patricia Woodman filed a disability discrimination action against the United

States Postal Service (USPS) under the Vocational Rehabilitation Act of 1973, 29

U.S.C. §§ 791 and 794, and Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000 et. seq. The district court granted defendant’s motion for summary

judgment and denied plaintiff’s cross-motion for summary judgment without

opinion. At issue in this appeal is Ms. Woodman’s allegation that she is a

qualified individual with a disability, that the USPS failed reasonably to

accommodate her disability by providing her with a permanent job assignment

within her medical limitations, and that such failure constitutes discrimination on

the basis of disability proscribed by the Rehabilitation Act. For the reasons set

forth below, we reverse.

I. 

 Patricia Woodman began working for the USPS in Salt Lake City, Utah, 

in 1981. From the date of her hiring, Ms. Woodman worked in the General Mail

Facility (GMF). In January 1985, Ms. Woodman bid into the position of PS-5

distribution clerk at the GMF, where she was responsible for separating incoming

and outgoing mail. During her time as a distribution clerk, Ms. Woodman

manually sorted letters and later, after training, worked on a multi-position letter

sorting machine.
-3-

In August 1989, Ms. Woodman sustained an on-the-job injury as a result of

her work on the small parcel bundle sorter machine. Her injury was subsequently

diagnosed by her treating physician as thoracic outlet syndrome and Ms.

Woodman sought compensation and reassignment according to USPS policy and

the Federal Employees Compensation Act, 5 U.S.C. §§ 8101 et. seq. Distribution

clerks are governed by a collective bargaining agreement between the USPS and

the American Postal Workers Union. Article 19 of the collective bargaining

agreement incorporates those parts of all USPS handbooks, manuals and

published regulations which directly relate to wages, hours, or working

conditions. Section 546 of the Employee and Labor Relations Manual governs the

USPS injury compensation program and specifically addresses the reassignment

of employees injured on the job. Section 546 provides:

To the extent that there is adequate work available within the

employee’s work limitation tolerances, within the employee’s craft,

in the work facility to which the employee is regularly assigned, and

during the hours when the employee regularly works, that work

constitutes the limited duty to which the employee is assigned.

 Aplt. App. at 122-23.

Article 37 of the collective bargaining agreement requires that permanent

assignments in the clerk craft be bid for and awarded on the basis of either

seniority or qualifications. Assignments to such preferred duty positions without

competitive bidding would violate the terms of the collective bargaining
1Ms. Woodman describes the symptoms she experiences from thoracic

outlet syndrome and carpel tunnel syndrome as “pain from my neck down to my

left hand, fingers. And it’s -- at one moment might be my shoulder hurts, it might

be my wrist that hurts. It may be my neck that hurts. My hand goes numb. It

affects me in everything I do.” Ms. Woodman describes the pain as varying from

intermittent to “throbbing.” Aplee. App. at 76.

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agreement unless adequate work is not available within the assignee’s craft, work

facility and work hours consistent with the assignee’s medical restrictions. Aplt.

App. 123-24.

On October 16, 1989, as a result of her injury, the USPS assigned Ms.

Woodman to a limited duty job in the mail processing section of the GMF. Her

duties consisted of processing letters by lifting handfuls of ten pounds or less and

other miscellaneous duties. In April 1991, Ms. Woodman was diagnosed with

carpal tunnel syndrome in her left wrist and arm.1

 Ms. Woodman continued to

work in the limited duty job assignment at the GMF until February 1992, when

she underwent surgery on her left wrist for treatment of carpal tunnel syndrome.

Following Ms. Woodman’s surgery, she was restricted from any use of her

left hand. The USPS subsequently assigned her to a temporary limited duty job in

“consumer affairs” at the Holladay, Utah, Post Office during the hours of 8:00

a.m. to 5:00 p.m., Monday through Friday. Her duties involved such sedentary

and limited-movement tasks as serving as a receptionist, answering phones, doing

carrier check-ins, handling accountable mail, and conducting tours of the facility. 
-5-

Ms. Woodman’s treating physician, Dr. George Veasy, approved the job

assignment in consumer affairs at the Holladay Post Office and Ms. Woodman

accepted it. In March 1992, Ms. Woodman underwent additional testing at the

Pioneer Valley Hospital Work Performance Center. Todd Brown, the physical

therapist who conducted that testing, advised against returning Ms. Woodman to a

job with duties involving repetitive motion.

On November 12, 1992, after Ms. Woodman had achieved maximum

improvement as a result of the surgery on her left wrist, the USPS offered her a

permanent in-service rehabilitation job assignment as a general clerk in the

Patchup-Nixie section at the GMF. The duties consisted of repairing damaged

mail and other miscellaneous duties. On November 18, Dr. Veasy approved the

job assignment. However, Ms. Woodman’s attorney sent a letter to Leo McIssac,

Field Director, Human Resources of the Salt Lake City Division of the USPS,

expressing several concerns about the Patchup-Nixie job assignment. He pointed

out that Dr. Veasy’s Work Restriction Evaluation indicated Ms. Woodman’s

medical condition limited her ability to perform tasks involving simple grasping. 

The attorney further noted that Ms. Woodman was concerned about how

extensively the Patchup-Nixie job would require her to use her left hand and

fearful that extensive use of the left side of her body would aggravate both her
2The USPS asserts that the position at Patchup-Nixie was consistent with

Ms. Woodman’s medical restrictions. Ms. Woodman contends that the position

involved “fine manipulation” which fell outside her medical restrictions. Ms.

Woodman describes her duties at Patchup-Nixie as follows: “You tape together

letters that have been ripped up, envelopes that have been ripped up, you take

letters that have been damaged and you stick them in little plastic bags and staple

them closed.” Aplee. App. at 108.

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carpal tunnel syndrome and her thoracic outlet syndrome.2

 Ms. Woodman’s

attorney concluded by suggesting that she accept the job assignment on a

provisional basis, subject to whether she experienced pain on the job. In addition,

he requested that the USPS attempt to identify other available jobs that might fit

Ms. Woodman’s medical restrictions:

We also request the Postal Service examine whether there are

other jobs which are available at the Main Office (or elsewhere)

which would permit Pat to work but which would require only very

limited use of her left arm, left shoulder and left side of her body. If

she has no alternative but to accept this job offer and if further injury

occurs, we want to know all the considerations which entered into the

decision.

. . . .

I would appreciate your review of this situation and the

opportunity to discuss the situation with you. 

Aplt. App. at 35. Ms. Woodman accepted the permanent job assignment “subject

to the terms and limitations set forward by my legal representative.” Id. at 37.

On November 28, 1992, Ms. Woodman began work as a clerk in the

Patchup-Nixie section at GMF. After working in this position for a period of
3Ms. Woodman outlined the inconsistencies between the duties required of

a Patchup-Nixie clerk and her disability:

Q: What specific duties or what part of that job was it that

resulted in your discomfort or your injuries being worsened?

A: Just doing the job, sitting there and taping a letter together and

sticking them in the envelope, that hurt me to do. I mean I can

do that two or three times, but you make me do that -- keep

doing that all day long --

Q: So it is the repetitive nature of the job --

A: Correct

Q: -- that was the problem for you?

A: Yes. Richard Gray, I think, told me that I could do it onehanded. I don’t know how to tape a ripped up letter together

one-handed. I just don’t know how that can be done.

Aplee. App. at 108. 

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approximately eleven hours over the course of two days, Ms. Woodman began to

experience severe pain and swelling, and sought emergency medical attention at a

local emergency care facility. On November 30, Dr. Kathleen Tucker diagnosed

Ms. Woodman as suffering from an exacerbation of thoracic outlet syndrome, a

cervical strain, and neck spasm. On December 18, Dr. Veasy wrote to the USPS

indicating Ms. Woodman had reported that her duties at the Patchup-Nixie job

had caused her serious discomfort.3

 He rescinded his previous assertion that the

Patchup-Nixie job was consistent with Ms. Woodman’s medical restrictions and

recommended that she not be assigned to work involving mail processing. Dr.

Veasy has since consistently maintained that Ms. Woodman should continue

working in light duty assignments.
-8-

Subsequent to Ms. Woodman’s failed attempt to perform the Patchup-Nixie

job assignment, the USPS reassigned her to the position in consumer affairs. The

USPS maintained that the reassignment was temporary pending resolution of Ms.

Woodman’s medical issues. On September 3, 1993, Ms. Woodman’s attorney

wrote to counsel for the USPS requesting information as to the status of a

permanent assignment for Ms. Woodman and expressing her desire to have the

temporary consumer affairs position at the Holladay Post Office converted to a

permanent one. Ms. Woodman asserts she received no response to her inquiries

until February 1994, at which time Steve Gerber, manager of the Holladay Post

Office, informed Ms. Woodman he had received a memorandum from Jerry

Jensen, Senior Safety Specialist, Salt Lake City USPS, indicating that Ms.

Woodman should return to the Patchup-Nixie job at GMF effective February 12,

1994. In response, Ms. Woodman’s counsel sent a letter to Jerry Jenson outlining

Ms. Woodman’s previous difficulties with the Patchup-Nixie job and stating: “I

would hope we ought to be able to share information and all agree before a job

offer is made on whether the job would be ‘suitable’ and consistent with

reasonable accommodation.” Aplt. App. at 69.

The record reflects that the USPS has accommodated at least one other

employee injured on the job by reassigning her to a permanent clerical position

after it became apparent the employee could not work in mail processing, even
-9-

though the employee was not qualified for that position in terms of seniority and

bid status under the collective bargaining agreement.

On April 13, 1994, Ms. Woodman underwent a functional capacity

evaluation to assess her functional capabilities, physical tolerances, and the

feasibility of her competitive employment. The physical therapist who conducted

the evaluation issued a report finding that Ms. Woodman was capable of

performing “at a Work level of SEDENTARY.” Aplt. App. at 72. The evaluation

also detailed Ms. Woodman’s disabilities as revealed by medical testing:

The pinch strength tested significantly lower in the left hand as

compared to the right hand and fell within the low range. During the

lifting tests she experienced a marked increase of neck and left arm

and shoulder pain. This caused her to alter her body mechanics

which prevented safe lifting. She also held her neck rigid

throughout.

The bike test to measure her cardiovascular fitness was extremely

difficult for her to accomplish. She tested quite low in the poor

range. During the mile walk she held herself very rigid and walked

very mechanically.

She could not complete the dexterity testing because of pain in the

left arm, the results that were obtained indicated low results. During

the disassembly of the West Bus Bench her left arm was used

sparingly, 95% of the time it hung limply at her side. She did not

complete this phase. Assembly of the bus bench requires using the

left hand more, she could not complete that portion, and had to quit

after 16 minutes because of extreme neck and arm pain. The left

hand was darker and bluish in color as compared to the right hand

during this testing. Ms. Woodman was in obvious physical distress

during and after the evaluation. 

Id. 
4Ms. Woodman objects to the permanent job offers in Patchup-Nixie

tendered by the USPS because she does not know exactly what the nature of her

duties would be: “[O]n the job offers they always say something to the effect and

other duties within your medical limitations, so to me things like that are very

ambiguous. What are other duties?” Aplee. App. at 92. 

-10-

On September 22, 1994, and again on February 5, 1996, the USPS renewed

its offer to assign Ms. Woodman to the permanent limited duty job in PatchupNixie at the GMF. Ms. Woodman objected to these offers as inconsistent with her

medical limitations. The USPS maintains that the limited duty job assignment at

GMF is within Ms. Woodman’s work limitation tolerances.4 However, the record

contains no evidence that any physical therapist or treating physician has ever

approved the Patchup-Nixie assignment as consistent with Ms. Woodman’s

disabilities after her failed attempt to perform that job assignment in November

1992. As of this date, Ms. Woodman remains in the temporary limited duty job

assignment at the Holladay Post Office and continues to receive the full salary of

a distribution clerk.

II.

We review the grant or denial of summary judgment de novo,

applying the same legal standard used by the district court pursuant

to Fed. R. Civ. P. 56(c). Summary judgment is appropriate if the

pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. When applying this standard, we
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examine the factual record and reasonable inferences drawn

therefrom in the light most favorable to the party opposing summary

judgment.

Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996) (quoting Wolf v. Prudential

Ins. Co. of America, 50 F.3d 793, 796 (10th Cir. 1995)). The nonmovant is

generally “given wide berth to prove a factual controversy exists.” Ulissey v.

Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995). “[T]he relevant inquiry is

whether the evidence presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail as a matter of law.”

Bingaman v. Kansas City Power & Light Co., 1 F.3d 976, 980 (10th Cir. 1993)

(quotation omitted).

Ms. Woodman contends that the USPS, by failing to reassign her to a

permanent position within her medical restrictions, engaged in unlawful

discrimination based on her disability in violation of the Rehabilitation Act. 

Section 504(a) provides in relevant part:

No otherwise qualified individual with a disability in the United

States . . . shall, solely by reason of his or her disability, be . . .

subjected to discrimination under any program or activity receiving

Federal financial assistance or under any program or activity

conducted by an Executive agency or by the United States Postal

Service. 

29 U.S.C. § 794(a) (1994). In addition, section 501(b), which applies only to

federal agencies, including the USPS, requires those agencies to “submit to the

[Equal Opportunity] Commission and to the Committee an affirmative action
5For a history of the Rehabilitation Act, see generally Prewitt v. United

States Postal Serv., 662 F.2d 292, 301-04 (5th Cir. Unit A, Nov. 5, 1981).

6Because of the affirmative action duties placed upon federal employers

under section 501, courts should be wary of applying cases interpreting federal

grantees’ duties of reasonable accommodation under section 504 to cases brought

under section 501. See 67 TEX. L. REV. at 836; Fedro v. Reno, 21 F.3d 1391,

(continued...)

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program plan for the hiring, placement, and advancement of individuals with

disabilities in such . . . agency.” 29 U.S.C. § 791(b) (1994).5 For federal

employers, therefore, nondiscrimination requires more than mere “equal

treatment” of disabled employees and job applicants, and encompasses an

affirmative duty to meet the needs of disabled workers and to broaden their

employment opportunities. See generally Fedro v. Reno, 21 F.3d 1391, 1398 (7th

Cir. 1994) (Rovner, J., dissenting) (citing cases).

 Section 501's provision for affirmative action in addition to section 504's

prohibition of discrimination against the disabled indicates that federal employers

are charged with a greater duty to ensure the employment of disabled workers

than are federal grantees or private employers. See Southeastern Community

College v. Davis, 442 U.S. 397, 410 (1979) (comparing a federal grantee’s duty to

accommodate to the greater duty placed upon federal employers under section

501); see also Kathryn W. Tate, The Federal Employer’s Duties Under the

Rehabilitation Act: Does Reasonable Accommodation or Affirmative Action

Include Reassignment?, 67 TEX. L. REV. 781, 800-803 (1989).6 “[T]he EEOC --
6

(...continued)

1398 (7th Cir. 1994) (Rovner, J., dissenting). 

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the agency charged with enforcing section 501 -- has issued a directive providing

that ‘each agency has a special obligation to provide reasonable accommodation

for employees who become disabled and to identify positions within the agency or

in other agencies in which the individuals can function in spite of their

disabilities.’” Taylor v. Garrett, 820 F. Supp. 933, 936 (E.D. Pa. 1993) (quoting

Equal Employment Opportunity Management Directive No. EEO-MD-712, at 9

(Mar. 9, 1983)). Moreover, the federal government is directed to “become a

model employer of individuals with handicaps.” 29 C.F.R. § 1614.203(b) (1996).

 Neither this nor any other circuit court has established the elements of a

prima facie case within the specific context of an action brought against a federal

employer under section 501 of the Rehabilitation Act. However, in Pushkin v.

Regents of University of Colorado, 658 F.2d 1372, 1386-87 (10th Cir. 1981), we

set out the following test for actions brought under section 504. In order to

qualify for relief, a plaintiff must demonstrate that (1) she is a handicapped

person within the meaning of the Act; (2) she is otherwise qualified for the job;

and (3) she was discriminated against because of the handicap. We later adopted

this same test for actions brought under the Americans with Disabilities Act

(ADA), 42 U.S.C. §§ 12101 et. seq. See White v. York Int’l Corp., 45 F.3d 357,
7The USPS apparently concedes Ms. Woodman is a “disabled” person

within the meaning of the Act in that it argues only that she is not “otherwise

qualified.”

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360-61 (10th Cir. 1995); Hudson v. MCI Telecomm. Corp., 87 F.3d 1167, 1168

(10th Cir. 1996). In Williams v. Widnall, 79 F.3d 1003, 1005 & n.4 (10th Cir.

1996), we analyzed a section 501 claim according to elements (1) and (2) of the

White test, but declined to apply element (3) because it was not necessary to our

decision in that case. We can discern no reason why the elements of a prima facie

case should differ as between sections 501 and 504, although the meaning of

“reasonable accommodation,” which we will discuss infra, may vary due to the

heightened duties ascribed to federal employers under section 501. We therefore

adopt the above-stated test for actions brought pursuant to section 501.

The USPS advances several arguments in support of its claim that summary

judgment was appropriate in this case. We will treat each one in turn.

A. 

The USPS initially argues it was entitled to summary judgment because Ms.

Woodman is not a “qualified individual” with a disability and therefore is not

protected by the Rehabilitation Act.7

 In determining whether an individual is

“qualified” within the meaning of the ADA, this circuit has adopted a two-part

analysis:
8White was decided under the ADA. The ADA, effective July 26, 1992,

extended to private employees many of the protections afforded the employees of

federal grantees under section 504 of the Rehabilitation Act of 1973. As will be

discussed infra, the Rehabilitation Act was amended effective October 29, 1992,

to incorporate into sections 501 and 504 the ADA’s express provision for

reassignment as a potential form of reasonable accommodation. The new addition

to section 504 of the Rehabilitation Act states:

The standards used to determine whether this section has been

violated in a complaint alleging employment discrimination under

this section shall be the standards applied under title I of the

Americans with Disabilities Act of 1990 and the provisions of

sections 501 through 504, and 510, of the Americans with

Disabilities Act of 1990, as such sections relate to employment.

29 U.S.C. § 794(d). Section 501 was likewise amended by adding a provision that

states:

The standards used to determine whether this section has been

violated in a complaint alleging nonaffirmative action employment

discrimination under this section shall be the standards applied under

title I of the Americans with Disabilities Act of 1990 . . . .

29 U.S.C. § 791(g).

(continued...)

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First, we must determine whether the individual could perform the

essential functions of the job, i.e., functions that bear more than a

marginal relationship to the job at issue. Second, if (but only if) we

conclude that the individual is not able to perform the essential

functions of the job, we must determine whether any reasonable

accommodation by the employer would enable him to perform those

functions.

White, 45 F.3d at 361-62 (quoting Chandler v. City of Dallas, 2 F.3d 1385, 1393-

94 (5th Cir. 1993)). This analysis also applies under section 501 of the

Rehabilitation Act.8 According to the EEOC regulations implementing the
8

(...continued)

Cases decided under section 504 of the Rehabilitation Act are therefore

applicable to cases brought under the ADA and vice versa, except to the extent

the ADA expressly states otherwise. See 29 C.F.R. pt. 1630, App. 1630 (“Unless

expressly stated otherwise, the standards applied in the ADA are not intended to

be lesser than the standards applied under the Rehabilitation Act of 1973.”) The

same is true of section 501 in some instances. However, as we have already

discussed and will discuss further infra, section 501 of the Rehabilitation Act

applies only to federal employers, imposes affirmative action duties, and may

therefore entail heightened duties of “reasonable accommodation” not applicable

to private employers under the ADA.

9A majority of courts have held that reassignment was not required as a

form of reasonable accommodation under the pre-1992 Act. See, e.g., Fedro, 21

F.3d at 1395 (citing cases). There has been considerable dissent on this point,

however, largely based on the argument that decisions finding no duty to reassign

did not take adequate account of the heightened duties federal employers must

carry out under section 501. See id. at 1398-1400 (Rovner, J., dissenting); 67

TEX. L. REV. at 800-803.

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Rehabilitation Act, a “[q]ualified individual with handicaps” is:

an individual with handicaps who, with or without reasonable

accommodation, can perform the essential functions of the position

in question without endangering the health and safety of the

individual or others and who . . . [m]eets the experience or education

requirements . . . of the position in question. 

29 C.F.R. § 1614.203(a)(6) (1996).

By definition, whether an individual is “qualified” turns on whether that

person can reasonably be accommodated to perform the job in question. There

has been considerable debate as to whether the duty to provide reasonable

accommodation under the Rehabilitation Act includes a duty to reassign a

disabled employee to another job.9 In 1992, Congress eradicated this confusion
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by amending the Act to include reassignment as a possible reasonable

accommodation. See 29 U.S.C. §§ 791(g), 794(d) (incorporating standards of

ADA into Rehabilitation Act); 42 U.S.C. § 12111(9) (under ADA, “The term

‘reasonable accommodation’ may include -- .assignment to a vacant position”);

see also supra note 8. The regulations were likewise amended in October 1992, to

provide in relevant part:

(g) Reassignment. When a nonprobationary employee becomes

unable to perform the essential functions of his or her position even

with reasonable accommodation due to a handicap, an agency shall

offer to reassign the individual to a funded vacant position located in

the same commuting area and serviced by the same appointing

authority, and at the same grade or level, the essential functions of

which the individual would be able to perform with reasonable

accommodation if necessary unless the agency can demonstrate that

the reassignment would impose an undue hardship on the operation

of its program. In the absence of a position at the same grade or

level, an offer of reassignment to a vacant position at the highest

available grade or level below the employee’s current grade or level

shall be required . . . .

29 C.F.R. § 1614.203(g) (1996) (emphasis added).

At least subsequent to the 1992 amendments, the EEOC’s use of the term

“position in question” as part of its definition of “qualified” in § 1614.203(a)(6) 

requires clarification. Section 1614.203(g) of the regulations explicitly states that

an agency must offer reassignment to a vacant position to employees who,

because of a handicap, no longer are able to perform the essential functions of

their position, even with reasonable accommodation -- i.e., individuals who
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concede that they are not qualified for their original positions. To interpret

“position in question” to refer only to plaintiff’s qualifications for the original

position, then, would render § 1614.203(g) meaningless. Requiring that plaintiffs

demonstrate they are capable of performing their original job would disqualify the

very individuals the regulation is intended to benefit. We think it obvious that

“position in question” cannot be read so narrowly and remain consistent with the

reassignment requirement.

Further, although a majority of courts have held that no statutory duty to

attempt reassignment existed prior to 1992, it has long been the law that a federal

employer “cannot deny an employee alternative employment opportunities

reasonably available under the employer’s existing policies.” School Bd. v.

Arline, 480 U.S. 273, 289 n.19 (1987); see Rhone v. United States Dep’t of the

Army, 665 F. Supp. 734, 744 (E.D. Mo. 1987) (employer required by

Rehabilitation Act to consider reassignment where OPM handbook and

demonstrated practice expressed policy favoring reassignment of disabled

employees). A restrictive reading of “position in question” is therefore similarly

illogical when the employer’s duty to reassign emanates from its own policies or

customs. See Taylor, 820 F. Supp. at 938 (availability of reassignment as a

possible reasonable accommodation “casts doubt on the limited, retrospective

definition of the phrase ‘position in question’ urged by [the defendant]” prior to
10We believe this approach is consistent with that applied by other courts

considering whether a plaintiff has demonstrated he is “otherwise qualified” in

the context of either a statutory or other duty to consider reassignment. For

example, in Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996), a post-1992

(continued...)

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1992 amendments).

Indeed, we have recently made clear that whether a person is “qualified”

under the amended Rehabilitation Act and the corresponding EEOC regulations

entails a modified version of the two-step inquiry that examines, if necessary, the

availability of other jobs the plaintiff might do: 

To determine if a person with a disability is “otherwise qualified” for

employment, we look to whether or not a reasonable accommodation

would enable the person to perform the job. There are two

components to the reasonable accommodation analysis. First,

whether a reasonable accommodation would enable the employee to

do the particular job. Additional training might be a reasonable

accommodation for this purpose. Second, whether the employee

could be transferred to other work which could be done with or

without accommodation.

 Gonzagowski v. Widnall, 115 F.3d 744, 747 (10th Cir. 1997) (citing White, 45

F.3d at 360).

Thus, the relevant inquiry in determining whether an employee is

“qualified” under the amended Act for purposes of a motion for summary

judgment is whether the employee has provided evidence that she can be

reasonably accommodated -- which includes reasonable reassignment -- sufficient

to require submission to a jury.10 The USPS asserts that since Ms. Woodman was
10(...continued)

amendments case, the Third Circuit determined that the plaintiff had not

demonstrated he was “otherwise qualified” for the position he held prior to being

terminated by USPS. However, it then held that the district court had erred in

failing to consider whether the plaintiff had demonstrated there were other jobs

available for which he was qualified and to which he could be reassigned. The

court explicitly stated: “[C]ourts should consider whether reassignment is possible

in determining whether an individual seeking relief under the Rehabilitation Act

is an otherwise qualified individual.” Id. at 832. 

Courts have also taken this approach where the duty to consider

reassignment emanates from application of an agency’s already-existing policy. 

In Taylor, the court noted that the Navy’s contention that the plaintiff was not

qualified to perform the job for which he was originally hired “presupposes that it

had no obligation under the Rehabilitation Act to transfer [plaintiff], once he

proved unable to perform his original job, to another suitable, permanent position

within the agency or to reclassify him within his medical restrictions.” 820 F.

Supp. at 936.

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hired as a distribution clerk, and since it is undisputed she can no longer perform

the “essential functions” of a distribution clerk’s job, she is not “qualified” for

the “position in question” and is therefore not entitled to accommodation by the

USPS. In light of the foregoing analysis, the USPS’s claim depends entirely upon

whether it had a duty to attempt to reassign Ms. Woodman either because the

1992 amendments are applicable to this case, or because USPS had an existing

policy of reassigning disabled workers, the question to which we now turn. 

B.

The USPS contends the 1992 amendments do not apply here because all the

instances of discrimination alleged by Ms. Woodman occurred prior to the
11Ms. Woodman also alleged various claims under a hostile environment

theory she has since abandoned.

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October 29, 1992, effective date. We disagree. The central issue in this case is

whether the USPS discriminated against Ms. Woodman by assigning her in

November 1992 (one month after the effective date of the amendment) to a

position she contends is not consistent with her medical restrictions and by failing

to assign her to a permanent position that does meet her capabilities. Ms.

Woodman is currently requesting only injunctive relief in the form of a permanent

job assignment within her medical restrictions and reasonable attorneys’ fees. 

Although Ms. Woodman filed this action in May 1992 based in part on the

USPS’s alleged failure to assign her to a permanent position within her medical

restrictions prior to that time,11 she amended her complaint in December 1992 to

include the dispute over the Patchup-Nixie job assignment. Moreover, the district

court’s pre-trial order entered in November 1995 lists all of Ms. Woodman’s postOctober 1992 claims as disputed issues in this litigation. Whether or not the

USPS had a duty based on its existing policies to attempt to reassign Ms.

Woodman as part of its duty to provide her reasonable accommodation prior to

October 1992, it most certainly does now under the 1992 amendments.

Nonetheless, we must also consider whether plaintiff complied with the

statutory requirement that she exhaust her administrative remedies before seeking
-22-

relief in federal court as to the claims arising after the filing of her initial

complaint. “‘[E]xhaustion of administrative remedies is a jurisdictional

prerequisite’ to instituting a Title VII action in federal court.” See Khader v.

Aspin, 1 F.3d 968, 970 (10th Cir. 1993) (quoting Johnson v. Orr, 747 F.2d 1352,

1356 (10th Cir. 1984)). The Rehabilitation Act encompasses this exhaustion

requirement. Id. at 971 & n.3; see also Johnson, 747 F.2d at 1356-57.

Ms. Woodman filed her final EEO complaint with the USPS in April 1992. 

The final agency decision was issued on June 22, 1992. Although these

complaints were filed and disposed of prior to both the effective date of the 1992

amendments and the beginning of the present dispute over the Patchup-Nixie

permanent job assignment, Ms. Woodman maintains we should consider her postOctober 1992 claims exhausted under a “continuing violation theory.” In support

of this position, she cites our decision in Brown v. Hartshorne Pub. Sch. Dist.,

864 F.2d 680 (10th Cir. 1988), in which we held that discriminatory acts arising

during the pendency of an EEOC complaint were properly before the court even

though not formally presented to the agency. Id. at 682. In doing so, we agreed

with numerous other courts holding that a “‘judicial complaint . . . may

encompass any discrimination like or reasonably related to the allegations’” in the

administrative charge, and that “acts committed pursuant to a pattern of

discrimination . . . are reasonably related to that complaint.” Id. (quoting
-23-

Oubichon v. North Am. Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973)).

Although the discriminatory acts asserted post-filing (the failure by the

USPS to reassign plaintiff to a suitable permanent position) are clearly part of an

alleged pattern of continuing behavior, we are presented here with a case in which

a change in the law has occurred that arguably gives those facts a different

meaning than they had when the administrative agency considered the claim. 

Even so, we hold that Ms. Woodman’s claims under the 1992 amendment were

properly before the district court. The twofold purpose of the exhaustion

requirement is to give notice of an alleged violation to the charged party and to

give the administrative agency an opportunity to conciliate the claim in

furtherance of Title VII’s goal of securing voluntary compliance. See Ingels v.

Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994). In this case, Ms. Woodman

complied in good faith with the exhaustion requirement as to her pre-October

1992 claims. See Khader, 1 F.3d at 971 (“Good faith effort by the employee to

cooperate with the agency and the EEOC and to provide all relevant, available

information is all that exhaustion requires.”). The new law went into effect after

her claims were already pending in federal court and she thus could not have

raised them before the administrative agency. To force her to suspend her case

and return to the administrative process in order to obtain the benefit of the new

law would cause unnecessary bifurcation of her claims and frustration of the
12We note that this is an unusual case. Although Ms. Woodman contended

initially that the USPS was under a legal duty to attempt to reassign her under the

Rehabilitation Act even prior to October 1992 because it had an existing policy to

do so, she now asserts that the only issues before this court concern events that

occurred after October 1992. (“[A]ll of the events at issue in this lawsuit . . . ,

occurred after the date the 1992 amendments went into effect. The USPS did not

promulgate its limited duty job offer until after October 1992, beginning in

November 1992. These events post October 1992, are the focus of Pat

Woodman’s claims.” Aplt. Repl. Br. at 13-14).

-24-

principles of judicial economy.12 See Oubichon, 482 F.2d at 571.

We therefore hold that the 1992 amendments to the Rehabilitation Act

apply to all of Ms. Woodman’s claims arising after October 1992, and that those

claims were properly before the district court. Moreover, Ms. Woodman has

provided evidence sufficient to raise an issue of fact as to whether the USPS had

a duty to reassign her pursuant to its existing policies pertaining to workers

injured on the job as defined by USPS. Because the USPS had a duty to consider

reassignment as a possible accommodation, its assertion that summary judgment

was proper on the ground that Ms. Woodman was not a qualified individual

within the meaning of the Rehabilitation Act due to her inability to perform her

previous job must fail.

C.

The USPS next asserts it should be granted summary judgment on the

ground that Ms. Woodman failed to meet her burden to demonstrate that
-25-

reasonable accommodation of her disability was possible. The USPS urges that

reassignment is required only where there exists a “funded vacant position located

in the same commuting area and serviced by the same appointing authority, and at

the same grade or level,” 29 C.F.R. §1614.203(g), and that it is solely plaintiff’s

duty to identify the jobs for which she would be eligible. The USPS cites several

federal cases for this proposition, including two of our own decisions construing

the various burdens of production and persuasion under the ADA. See Milton v.

Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995); White, 45 F.3d 357. USPS

further contends a plaintiff must demonstrate that reasonable accommodation

through reassignment is possible prior to invoking any duty on the part of the

employer to assist her in this process. In doing so, USPS again cites White,

where we stated that “the interactive process is triggered only if the employee is

‘qualified,’ . . . and the term ‘qualified’ is designed to include the concept of

reasonable accommodation.” White, 45 F.3d at 363.

Because this circuit has never squarely addressed the issue and because

there is considerable division among the circuits that have done so, we will first

clarify the burden of proof plaintiffs and defendants must meet in order to survive

summary judgment under the Rehabilitation Act. In doing so, we emphasize once

again that this case involves a discrimination claim brought by a federal employee

against a federal agency under section 501 of the Rehabilitation Act. It is well
13The EEOC, the agency charged with promulgating regulations and

otherwise enforcing the Rehabilitation Act, has elaborated the breadth of the

duties accorded federal employers under section 501:

[I]t is important to consider both the legislative history and

Congressional mandates of the Rehabilitation Act on [f]ederal

agencies. The legislative history of the Rehabilitation Act shows that

Congress expected and fully intended that the [f]ederal government

was to be a model employer of the handicapped, taking affirmative

action to hire and promote the disabled. 

Ignacio v. United States Postal Serv., Pet. No. 03840005, Fed. Equal Opportunity

Rptr. ¶ 843159, at XII-84-264 (EEOC Sept. 4, 1984), quoted in Fedro, 21 F.3d at

1399 (Rovner, J., dissenting) (citations omitted).

-26-

established both by the statutory language and Supreme Court decisions

interpreting the Act that federal employers have greater duties to accommodate

disabled workers under section 501 than the duties owed by federal grantees

under section 504 or those owed by employers under the ADA. We keep this

heightened duty in the foreground when fleshing out a plaintiff’s and defendant’s

respective burdens under section 501.13

Courts have encountered considerable difficulty in allocating the burdens of

persuasion and production under the Rehabilitation Act. Of course, the ultimate

burden of proving unlawful discrimination rests with the plaintiff. See White, 45

F.3d at 361. However, the defendant employer is also obligated to demonstrate it

has complied with the various statutory duties placed upon it, most especially the

duty to provide reasonable accommodation. See Shiring v. Runyon, 90 F.3d 827,
-27-

831-32 (3d Cir. 1996). Further muddying the waters is the unfortunate fact that

“reasonable accommodation” is an element that must be addressed by both the

plaintiff (as part of a showing that she is “qualified”) and by the defendant (who

must demonstrate that reasonable accommodation is not possible). See

Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 136 (2d Cir. 1995) (“Given

the rather obscure regulatory language,” it is not surprising that courts “have

found the assignment of the burdens of production and persuasion particularly

difficult as to reasonable accommodation.”); 29 C.F.R. § 1614.203(g) (1996)

(“[A]n agency shall offer to reassign the individual . . . unless the agency can

demonstrate that the reassignment would impose an undue hardship on the

operation of its program.”) (emphasis added); 29 C.F.R. § 1613.702(f) (1991)

(“[q]ualified handicapped person” is one who, “with or without reasonable

accommodation, can perform the essential functions of the position in question”)

(emphasis added).

At least one of the circuits considering this issue has placed both the

burden of production and persuasion on the plaintiff. In Barth v. Gelb, 2 F.3d

1180, 1186-87 (D.C. Cir. 1993), the court held that a plaintiff must demonstrate

both that a given accommodation would allow him to perform the essential

elements of the job and that the accommodation would be reasonable “in the run

of cases.” The court further held, however, that an employer who invokes the
-28-

affirmative defense of undue hardship bears the burden of proof on that issue. Id.

at 1186-87. See also Carr v. Reno, 23 F.3d 525, 529 (D.C. Cir. 1994). The Fifth

and the Ninth Circuits have taken exactly the opposite approach, placing the

initial burden on the employer to demonstrate that the plaintiff cannot reasonably

be accommodated. See Mantolete v. Bolger, 767 F.2d 1416, 1423-24 (9th Cir.

1985); Prewitt v. United States Postal Serv., 662 F.2d 292, 308 (5th Cir. Unit A

Nov. 5, 1981). 

The Second Circuit, in a helpful discussion of the issue, has observed that

the D.C. Circuit’s position fails to account for those cases in which an

accommodation that would be unreasonable for most employers could be required

in the particular circumstances. Borkowski, 63 F.3d at 137. The approach of the

D.C. Circuit also overlooks the fact that “the employer has far greater access to

information than the typical plaintiff, both about its own organization, and equally

importantly, about the practices and structure of the industry as a whole.” Id.

The Second Circuit also identified problems with the position taken by the Fifth

and Ninth Circuits, however, pointing out that those courts in effect ‘put[] on the

employer the burden of demonstrating that the plaintiff is not otherwise qualified

for employment.” Id. The Second Circuit therefore urges adherence to a “middle

course” that will place burdens on both parties in keeping with the intended

purposes of the Rehabilitation Act and in recognition of the types of information
-29-

each party is most likely to be in the best position to produce. Id. at 137-38. 

We agree with the Second Circuit and hold that a plaintiff bears the

ultimate burden of proving she is “qualified” within the meaning of the

Rehabilitation Act, i.e., that there are jobs available that her disability will

nevertheless allow her to do, with or without reasonable accommodation. 

However, a plaintiff’s burden with respect to the plausibility of reasonable

accommodation is one of production only. In accordance with section 501 of the

Rehabilitation Act’s mandate that federal employers act affirmatively to provide

reasonable accommodation for disabled workers, this burden of production “is not

a heavy one. It is enough for the plaintiff to suggest the existence of a plausible

accommodation, the costs of which, facially, do not clearly exceed its benefits.”

Borkowski, 63 F.3d at 138 (citation omitted). Once the plaintiff has made this

facial showing that accommodation is possible, the burden shifts to the defendant

to prove that accommodating the plaintiff would pose an undue hardship. Id.

We are convinced that placing the burden of locating other available jobs

entirely on the plaintiff would be inconsistent both with the implementing

regulations of the 1992 amendments and with the affirmative action duties

contemplated by section 501, the latter of which do not apply to private employers

under the Americans with Disabilities Act, the statute controlling our decision in
14The factors that must be considered in determining what is “reasonable”

obviously differ as between federal and private employers. See, e.g., Lex K.

Larson, Employment Discrimination § T106.44(a) (2d ed. 1997) (“‘Reasonable

accommodation’ in federal employment does not raise the same issues as it does,

say, under §504. There is little to stop the federal government from expending

considerable money and effort to become a model employer of handicapped

individuals, when that is its chosen policy.”); see also Mantolete v. Bolger, 767

F.2d 1416, 1425 (9th Cir. 1985) (Rafeedie, District J., concurring) (demanding

burdens placed on federal employers to seek means of accommodation are

“justified in light of the express language of § 501 and its implementing

regulations. . . . Certainly it is hoped that private employers will follow the

government’s lead, but it is debatable whether Congress meant to impose

equivalent obligations.”).

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White.

14 The duties of reasonable accommodation under section 501 and the duty

to reassign under the 1992 amendments are mandates with which federal

employers are obligated to comply. Federal employers therefore must play a

considerable role in ensuring that every reasonable effort is made to find suitable

jobs for disabled employees. Without question, employees must come forward

with that information they are best placed to know -- the fact and nature of their

disability and their wish to be accommodated. In other words, employers are not

required to initiate the inquiry into whether a given employee with a disability

can be accommodated. See Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir. 1991)

(holding that while employer does not have the initial burden of raising the issue

of accommodation, once the employee has done so, “in light of the goals of the

Rehabilitation Act and the greater access of the employer to information

regarding the feasibility of various possible job modifications, the employer is
-31-

given the ultimate burden of proof on the issue of reasonable accommodation”).

Nevertheless, we agree with those courts concluding that realizing the goals

of the Rehabilitation Act requires an “interactive process” whereby federal

employers investigate in good faith the availability of positions to which disabled

employees could be reassigned, a task that employers are far better placed to do

than are employees, and that they must do under the Act. See id.; Benson v.

Northwest Airlines, Inc., 62 F.3d 1108, 1113 (8th Cir. 1995) (pointing out that

although plaintiff retains ultimate burden of proof on his ability to perform the

essential functions of the job, with or without accommodation, “much of the

information which determines those essential functions lies uniquely with the

employer”). We find persuasive the Ninth Circuit’s interpretation of the

employer’s duties under the Rehabilitation Act once an employee has identified

the nature of her disability and requested accommodation:

An employer, to meet its burden under the Act, may not merely

speculate that a suggested accommodation is not feasible. When

accommodation is required to enable the employee to perform the

essential functions of the job, the employer has a duty to ‘gather

sufficient information from the applicant and qualified experts as

needed to determine what accommodations are necessary to enable

the applicant to perform the job . . . .’

Buckingham v. United States, 998 F.2d 735, 740 (9th Cir. 1993).

Common sense dictates that an employee need not identify an available

position for reassignment prior to enlisting the employer’s assistance. In order to
15We recognize that employees may acquire other duties as the interactive

process unfolds. For example, it may be necessary for an employee to undergo

medical and other forms of testing in order to assist the employer in determining

the extent of her disability and in identifying jobs consistent with her capabilities.

16One of the key cases cited by the USPS for the proposition that it is Ms.

Woodman’s burden to identify a position suitable for reassignment is the Third

Circuit’s decision in Shiring v. Runyon, 90 F.3d 827 (3d Cir. 1996). Shiring

states in relevant part: “When the employee contends that he would be otherwise

qualified with reasonable accommodation, it falls to the employee to make at least

a facial showing that reasonable accommodation is possible. . . . Shiring would

have to demonstrate that there were vacant, funded positions whose essential

duties he was capable of performing, with or without reasonable accommodation

. . .” Id. at 832. Subsequently, however, in Mengine, 114 F.3d at 420, the Third

Circuit specifically discussed Shiring and went on to make clear that before this

duty arises, an employee is entitled to enlist the federal employer’s assistance in

identifying a position and that the employer is obliged to provide the assistance.

Further support for our construction of a federal employer’s burden in the

process of identifying a reasonable accommodation comes from the Interpretive

Guidance on Title I of the Americans with Disabilities Act, which provides the

following:

Once a qualified individual with a disability has requested provision

of a reasonable accommodation, the employer must make a

(continued...)

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initiate the interactive process, it is enough for a plaintiff to notify the employer

of the nature of her disability and specifically request information about possible

reassignment. At that point, the employer is obliged to assist her in the effort to

identify an available job.15 See Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir.

1997) (“[W]e do not suggest that the employee has the burden of identifying an

open position before the employer’s duty of accommodation is triggered. In many

cases, an employee will not have the ability or resources to identify a vacant

position absent participation by the employer.”);16 Taylor v. Principal Fin. Group,
16(...continued)

reasonable effort to determine the appropriate accommodation. The

appropriate reasonable accommodation is best determined through a

flexible, interactive process that involves both the employer and the

qualified individual with a disability. 

29 C.F.R. Pt. 1630, App. § 1630.9 (1996). (emphasis added). The Interpretive

Guidance then describes how an employer and employee might together identify

accommodations that are not immediately obvious. See id.

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Inc., 93 F.3d 155, 165 (5th Cir. 1996) (The “employee’s initial request for an

accommodation . . . triggers the employer’s obligation to participate in the

interactive process.”); Beck v. University of Wisconsin Bd. of Regents, 75 F.3d

1130, 1135 (7th Cir. 1996) (employer bears some responsibility in determining the

necessary accommodation).

In this case, Ms. Woodman has requested reasonable accommodation and

has also made a facial showing that reasonable accommodation through

permanent reassignment is plausible. In addition to Ms. Woodman’s admittedly

disputed contention that the consumer affairs job she has held and performed

without difficulty since 1992 could become her permanent job, Ms. Woodman has

repeatedly and specifically requested that the USPS assist her in locating other

jobs she might do. Moreover, she has undergone several arduous functional

capacity evaluations in order to determine the extent of her physical limitations

and capabilities, often causing herself significant physical pain in the process. 

The USPS was thus obliged to investigate the possibility of permanent
-34-

reassignment by gathering necessary information from Ms. Woodman concerning

her medical condition and searching for available permanent jobs.

The USPS asserts it has met its obligations under the Rehabilitation Act by

assigning Ms. Woodman to the Patchup-Nixie position. However, Ms. Woodman

has vigorously contested the assertion that the Patchup-Nixie job meets her

medical restrictions. In light of the evidence in the record concerning Ms.

Woodman’s medical restrictions and her previous inability to perform this job, 

the USPS’s conclusory assertion that the assignment is within her medical

restrictions is a disputed question of fact that must be resolved at trial. See Tuck

v. HCA Health Servs. of Tennessee, Inc., 7 F.3d 465, 471-72 (6th Cir. 1993)

(“[F]act-specific inquiry ‘should be based upon more than statements in a job

description and should reflect the actual functioning and circumstances of the

particular enterprise involved.’” (quoting Hall v. United States Postal Serv., 857

F.2d 1073, 1079 (6th Cir. 1988)). Consequently, the district court erred in

granting summary judgment to the USPS.

D.

 We address briefly the USPS’s assertions that assigning Ms. Woodman to a

permanent position in consumer affairs would be unreasonable as a matter of law. 

Because we hold there is a question of fact as to whether the USPS has done
-35-

everything reasonably possible to assist Ms. Woodman in locating a permanent

position within her medical restrictions apart from the position in consumer

affairs, resolution of this question in the USPS’s favor would not dispose of the

entire case. Since we do not know on what basis the district court granted

summary judgment, however, we consider this question for the purpose of

determining whether Ms. Woodman’s assertion that she could reasonably be

accommodated by a permanent assignment to consumer affairs remains an issue to

be placed before the factfinder on remand.

USPS first asserts as a matter of law that it need not permanently assign

Ms. Woodman to consumer affairs because reassignment is required only where

there exists a “funded vacant position located in the same commuting area and

serviced by the same appointing authority, and at the same grade or level.” 29

C.F.R. § 1614.203(g) (1996). USPS further contends that the consumer affairs

job Ms. Woodman now performs is, in fact, “nonexistent” because it was created

solely as a temporary measure to provide Ms. Woodman with some work duties

while awaiting reassignment elsewhere.

It is well established in the case law that regardless of any explicit statutory

duty to reassign, a federal employer “cannot deny an employee alternative

employment opportunities reasonably available under the employer’s existing

policies.” Arline, 480 U.S. at 289 n.19. Ms. Woodman has demonstrated a
-36-

factual dispute on this point by providing evidence that USPS has accommodated

another employee in a situation similar to her own by assigning her to a

permanent position in consumer affairs. See Leslie v. St. Vincent New Hope,

Inc., 916 F. Supp. 879, 887-88 (S.D. Ind. 1996) (where department routinely

grants transfers between facilities it is required to do so as reasonable

accommodation under the Rehabilitation Act); Hurley-Bardige v. Brown, 900 F.

Supp. 567, 571 (D. Mass. 1995) (same); Howell v. Michelin Tire Corp., 869 F.

Supp. 1488, 1492-93 (M.D. Ala. 1994) (question of fact existed as to whether

employer had previously reassigned other employees in similar situation as

plaintiff). 

 The USPS next contends as a matter of law that it need not reassign Ms.

Woodman to the position in consumer affairs because to do so would violate the

terms of the collective bargaining agreement between the USPS and the American

Postal Workers Union. The USPS cites the large body of case law holding that

the Rehabilitation Act does not require federal employers to accommodate

disabled employees in such a way as to usurp the legitimate rights of other

employees under the terms of a collective bargaining agreement. See, e.g., Milton

v. Scrivner, 53 F.3d 1118, 1125 (10th Cir. 1995); Daubert v. United States Postal

Serv., 733 F.2d 1367, 1370 (10th Cir. 1984). Indeed, the 1992 revisions of the

implementing regulations expressly provide:
-37-

For the purpose of this paragraph [discussing reassignment as an

accommodation], an employee of the United States Postal Service

shall not be considered qualified for any offer of reassignment that

would be inconsistent with the terms of any applicable collective

bargaining agreement.

29 C.F.R. § 1614.203(g). The USPS argues that it is not required to assign Ms.

Woodman to a permanent position in consumer affairs because such a position is

classified as a “preferred duty assignment” that must be filled through a bidding

process based on seniority and qualifications pursuant to the collective bargaining

agreement. Aplee. Br. at 24.

We need not define the outer limits of a valid collective bargaining

agreement under the Rehabilitation Act for purposes of our decision in this case

because the agreement at issue does not by its terms bar reassignment to a

position in consumer affairs. The USPS contends it has offered unrebutted

evidence that Article 37 of the collective bargaining agreement prohibits Ms.

Woodman’s permanent reassignment to the position she now holds. The USPS

correctly asserts that Article 37 requires that preferred duty assignments be bid

for, but it fails to note the declaration of its own Labor Relations Specialist that

this requirement applies only where there is “adequate work available within the

plaintiff’s craft, work facility and work hours consistent with her medical

restrictions.” Aplt. App. at 123-24. Where reassignment is not expressly

prohibited by the collective bargaining agreement, such reassignment does not
-38-

constitute a per se contravention of the rights of other employees and does not

justify a grant of summary judgment. See Buckingham v. United States, 998 F.2d

735, 741-42 (9th Cir. 1993). Thus, there remain disputed issues of fact regarding

whether Ms. Woodman could be reasonably accommodated with a position in

consumer affairs.

III.

This case clearly presents genuine issues of material fact precluding

judgment as a matter of law. We therefore REVERSE the district court’s grant

of summary judgment to the USPS and REMAND for further proceedings

consistent with this opinion.