## 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 Attorne y (Scott M. Matheson, Jr., United States Attorney, with her on the brief), Sal t Lake City, Utah, for Defendants-Appellees.

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

SEYMOUR , Chief Judge.-2-

Patricia Woodman filed a disability discrimination action against the United States Postal Service (USPS) under the Vocational R ehabilitation Act of 1973, 29 U.S.C. §§ 791 and 794, and Title VII of the Civil R ights Act of 1964, 42 U.S.C. §§ 2000 et. seq . The district court granted defendant’s motion fo r summary judgment and denied plaintiff’s cross-motion for su mmary judgment without opinion. At issue in this appeal is Ms. Woodman’s allegation that she is a qualified individual with a disability, that the US PS failed reasonably to accommodate her disability by providing her with a permanent job assignment within her medical limitations, and that such failu re constitutes discrimination on the basis of disability proscribed by the Rehabilit ation Act. For the reasons set forth below, we reverse.

I. Patricia Woodman began working for the USPS in Sal t 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 i nto the position of PS-5 distribution clerk at the GMF, where she was respon sible for separating incoming and outgoing mail. During her time as a distributi on 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 out let syndrome and Ms. Woodman sought compensation and reassignment accord ing to USPS policy and the Federal Employees Compensation Act, 5 U.S.C. §§ 8101 et. seq . Distribution clerks are governed by a collective bargaining agre ement between the USPS and the American Postal Workers Union. Article 19 of t he collective bargaining agreement incorporates those parts of all USPS hand books, manuals and published regulations which directly relate to wage s, hours, or working conditions. Section 546 of the Employee and Labor Relations Manual governs the USPS injury compensation program and specifically a ddresses the reassignment of employees injured on the job. Section 546 provi des: To the extent that there is adequate work available within the employee’s work limitation tolerances, within the e mployee’s craft, in the work facility to which the employee is regul arly 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 r equires that permanent assignments in the clerk craft be bid for and award ed on the basis of either seniority or qualifications. Assignments to such p referred duty positions without competitive bidding would violate the terms of the collective bargaining1 Ms. Woodman describes the symptoms she experiences from thoracic

outlet syndrome and carpel tunnel syndrome as “painfrom my neck down to my left hand, fingers. And it’s -- at one moment migh t 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 descri bes the pain as varying from intermittent to “throbbing.” Aplee. App. at 76. -4- agreement unless adequate work is not available wit hin the assignee’s craft, work facility and work hours consistent with the assigne e’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 processin g section of the GMF. Her duties consisted of processing letters by lifting h andfuls of ten pounds or less and other miscellaneous duties. In April 1991, Ms. Woo dman 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 treatme nt of carpal tunnel syndrome. Following Ms. Woodman’s surgery, she was restrictedfrom any use of her left hand. The USPS subsequently assigned her to atemporary limited duty job in “consumer affairs” at the Holladay, Utah, Post Offi ce during the hours of 8:00 a.m. to 5:00 p.m., Monday through Friday. Her duti es involved such sedentary and limited-movement tasks as serving as a receptio nist, answering phones, doing carrier check-ins, handling accountable mail, and c onducting tours of the facility.-5-

Ms. Woodman’s treating physician, Dr. George Veasy, approved the job assignment in consumer affairs at the Holladay PostOffice and Ms. Woodman accepted it. In March 1992, Ms. Woodman underwent additional testing at the Pioneer Valley Hospital Work Performance Center. T odd Brown, the physical therapist who conducted that testing, advised again st returning Ms. Woodman to a job with duties involving repetitive motion. On November 12, 1992, after Ms. Woodman had achieve d 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 consi sted of repairing damaged mail and other miscellaneous duties. On November 1 8, Dr. Veasy approved the job assignment. However, Ms. Woodman’s attorney se nt a letter to Leo McIssac, Field Director, Human Resources of the Salt Lake Ci ty Division of the USPS, expressing several concerns about the Patchup-Nixie job assignment. He pointed out that Dr. Veasy’s Work Restriction Evaluation in dicated Ms. Woodman’s medical condition limited her ability to perform ta sks involving simple grasping. The attorney further noted that Ms. Woodman was con cerned about how extensively the Patchup-Nixie job would require herto use her left hand and fearful that extensive use of the left side of her body would aggravate both her2 The USPS asserts that the position at Patchup-Nixie was consistent with

Ms. Woodman’s medical restrictions. Ms. Woodman co ntends that the position involved “fine manipulation” which fell outside hermedical restrictions. Ms. Woodman describes her duties at Patchup-Nixie as fo llows: “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 i n little plastic bags and staple them closed.” Aplee. App. at 108. -6- carpal tunnel syndrome and her thoracic outlet synd rome. 2 Ms. Woodman’s attorney concluded by suggesting that she accept th e job assignment on a provisional basis, subject to whether she experienc ed pain on the job. In addition, he requested that the USPS attempt to identify othe r 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 requ ire only very limited use of her left arm, left shoulder and leftside of her body. If she has no alternative but to accept this job offerand if further injury occurs, we want to know all the considerations whic h entered into the decision.

. . . . I would appreciate your review of this situation an d the opportunity to discuss the situation with you. Aplt. App. at 35. Ms. Woodman accepted the permane nt job assignment “subject to the terms and limitations set forward by my lega l representative.” Id. at 37. On November 28, 1992, Ms. Woodman began work as a c lerk in the Patchup-Nixie section at GMF. After working in thi s position for a period of3 Ms. Woodman outlined the inconsistencies between th e 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 le tter 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 lette r together one-handed. I just don’t know how that can be done

. Aplee. App. at 108. -7- approximately eleven hours over the course of two d ays, Ms. Woodman began to experience severe pain and swelling, and sought eme rgency medical attention at a local emergency care facility. On November 30, Dr. Kathleen Tucker diagnosed Ms. Woodman as suffering from an exacerbation of th oracic outlet syndrome, a cervical strain, and neck spasm. On December 18, D r. 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 involv ing mail processing. Dr. Veasy has since consistently maintained that Ms. Wo odman should continue working in light duty assignments.-8-

Subsequent to Ms. Woodman’s failed attempt to perfo rm the Patchup-Nixie job assignment, the USPS reassigned her to the posi tion in consumer affairs. The USPS maintained that the reassignment was temporarypending resolution of Ms. Woodman’s medical issues. On September 3, 1993, Ms . Woodman’s attorney wrote to counsel for the USPS requesting informatio n as to the status of a permanent assignment for Ms. Woodman and expressing her desire to have the temporary consumer affairs position at the HolladayPost Office converted to a permanent one. Ms. Woodman asserts she received no response to her inquiries until February 1994, at which time Steve Gerber, ma nager of the Holladay Post Office, informed Ms. Woodman he had received a memo randum from Jerry Jensen, Senior Safety Specialist, Salt Lake City US PS, indicating that Ms. Woodman should return to the Patchup-Nixie job at G MF effective February 12, 1994. In response, Ms. Woodman’s counsel sent a le tter 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 apermanent clerical position after it became apparent the employee could not wor k in mail processing, even-9-

though the employee was not qualified for that posi tion in terms of seniority and bid status under the collective bargaining agreemen t. On April 13, 1994, Ms. Woodman underwent a function al capacity evaluation to assess her functional capabilities, p hysical tolerances, and the feasibility of her competitive employment. The phy sical therapist who conducted the evaluation issued a report finding that Ms. Woo dman was capable of performing “at a Work level of SEDENTARY.” Aplt. App. at 72. The evaluation also detailed Ms. Woodman’s disabilities as reveale d by medical testing: The pinch strength tested significantly lower in th e 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 bo dy mechanics which prevented safe lifting. She also held her ne ck 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 becaus e 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 si de. She did not complete this phase. Assembly of the bus bench req uires using the left hand more, she could not complete that portion , and had to quit after 16 minutes because of extreme neck and arm pa in. 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

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

tendered by the USPS because she does not know exac tly 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, 199 6, the USPS renewed its offer to assign Ms. Woodman to the permanent li mited duty job in PatchupNixie at the GMF. Ms. Woodman objected to these of fers as inconsistent with her medical limitations. The USPS maintains that the l imited duty job assignment at GMF is within Ms. Woodman’s work limitation toleran ces. 4 However, the record contains no evidence that any physical therapist ortreating physician has ever approved the Patchup-Nixie assignment as consistentwith Ms. Woodman’s disabilities after her failed attempt to perform th at 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 continue s to receive the full salary of a distribution clerk.

II. We review the grant or denial of summary judgment d e novo, applying the same legal standard used by the distri ct court pursuant to Fed. R. Civ. P. 56(c). Summary judgment is appr opriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show th at there is no genuine issue as to any material fact and that the moving p arty is entitled to judgment as a matter of law. When applying this st andard, we-11-

examine the factual record and reasonable inference s 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 cont roversy exists.” Ulissey v. Shvartsman , 61 F.3d 805, 808 (10th Cir. 1995). “[T]he releva nt inquiry is whether the evidence presents a sufficient disagree ment to require submission to a jury or whether it is so one-sided that one party m ust 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 r eassign 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 disabilityin the United States . . . shall, solely by reason of his or her disability, be . . . subjected to discrimination under any program or ac tivity receiving Federal financial assistance or under any program o r activity conducted by an Executive agency or by the United S tates Postal Service. 29 U.S.C. § 794(a) (1994). In addition, section 50 1(b), which applies only to federal agencies, including the USPS, requires thos e agencies to “submit to the [Equal Opportunity] Commission and to the Committee an affirmative action5 For a history of the Rehabilitation Act, see genera llyPrewitt v. United

States Postal Serv. , 662 F.2d 292, 301-04 (5th Cir. Unit A, Nov. 5, 19 81).

6 Because of the affirmative action duties placed upo n federal employers under section 501, courts should be wary of applyin g cases interpreting federal grantees’ duties of reasonable accommodation under section 504 to cases brought under section 501. See 67 T EX
. L. REV . at 836; Fedro v. Reno , 21 F.3d 1391, (continued...) -12- program plan for the hiring, placement, and advance ment of individuals with disabilities in such . . . agency.” 29 U.S.C. § 79 1(b) (1994). 5 For federal employers, therefore, nondiscrimination requires mo re than mere “equal treatment” of disabled employees and job applicants , and encompasses an affirmative duty to meet the needs of disabled work ers and to broaden their employment opportunities. See generallyFedro 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 emplo yment of disabled workers than are federal grantees or private employers. Se e Southeastern Community College v. Davis , 442 U.S. 397, 410 (1979) (comparing a federal gra ntee’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 Und er the Rehabilitation Act: Does Reasonable Accommodation or Affirmative Action Include Reassignment? , 67 T EX
. L. REV . 781, 800-803 (1989). 6 “[T]he EEOC --6 (...continued)

1398 (7th Cir. 1994) (Rovner, J., dissenting). -13- the agency charged with enforcing section 501 -- ha s issued a directive providing that ‘each agency has a special obligation to provi de reasonable accommodation for employees who become disabled and to identify p ositions within the agency or in other agencies in which the individuals can func tion in spite of their disabilities.’” Taylor v. Garrett , 820 F. Supp. 933, 936 (E.D. Pa. 1993) (quoting Equal Employment Opportunity Management Directive N o. 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 esta blished 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 Ac t. 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 unde r section 504. In order to qualify for relief, a plaintiff must demonstrate th at (1) she is a handicapped person within the meaning of the Act; (2) she is ot herwise qualified for the job; and (3) she was discriminated against because of th e handicap. We later adopted this same test for actions brought under the Americ ans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et. seq . See White v. York Int’l Corp. , 45 F.3d 357,7 The USPS apparently concedes Ms. Woodman is a “disabled” person

within the meaning of the Act in that it argues onl y that she is not “otherwise qualified.” -14- 360-61 (10th Cir. 1995); Hudson v. MCI Telecomm. Co rp. , 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 itwas 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 i nfra, may vary due to the heightened duties ascribed to federal employers und er section 501. We therefore adopt the above-stated test for actions brought pur suant to section 501. The USPS advances several arguments in support of i ts claim that summary judgment was appropriate in this case. We will tre at 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 disa bility and therefore is not protected by the Rehabilitation Act. 7In determining whether an individual is “qualified” within the meaning of the ADA, this cir cuit has adopted a two-part analysis:8 White was decided under the ADA. The ADA, effective Jul y 26, 1992,

extended to private employees many of the protectio ns afforded the employees of federal grantees under section 504 of the Rehabili tation 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 acco mmodation. The new addition to section 504 of the Rehabilitation Act states: The standards used to determine whether this sectio n has been violated in a complaint alleging employment discrim ination under this section shall be the standards applied under t itle I of the Americans with Disabilities Act of 1990 and the pro visions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990, as such sections relate t o employment. 29 U.S.C. § 794(d). Section 501 was likewise amend ed by adding a provision that states: The standards used to determine whether this sectio n has been violated in a complaint alleging nonaffirmative act ion employment discrimination under this section shall be the stan dards applied under title I of the Americans with Disabilities Act of 1 990 . . . . 29 U.S.C. § 791(g). (continued...) -15- First, we must determine whether the individual cou ld 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 anyreasonable accommodation by the employer would enable him to p erform those functions. White , 45 F.3d at 361-62 (quoting Chandler v. City of Da llas , 2 F.3d 1385, 1393- 94 (5th Cir. 1993)). This analysis also applies un der section 501 of the Rehabilitation Act. 8 According to the EEOC regulations implementing th e8 (...continued)

Cases decided under section 504 of the Rehabilitati on 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 i n the ADA are not intended to be lesser than the standards applied under the Reha bilitation Act of 1973.”) The same is true of section 501 in some instances. How ever, as we have already discussed and will discuss further infra, section 5 01 of the Rehabilitation Act applies only to federal employers, imposes affirmat ive action duties, and may therefore entail heightened duties of “reasonable a ccommodation” not applicable to private employers under the ADA.

9 A majority of courts have held that reassignment wa s 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 consid erable dissent on this point, however, largely based on the argument that decisio ns finding no duty to reassign did not take adequate account of the heightened dut ies federal employers must carry out under section 501. See id. at 1398-1400 (Rovner, J., dissenting); 67 T EX
. L. REV
. at 800-803. -16- Rehabilitation Act, a “[q]ualified individual with handicaps” is: an individual with handicaps who, with or without r easonable accommodation, can perform the essential functions of the position in question without endangering the health and safe ty of the individual or others and who . . . [m]eets the expe rience 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 th e job in question. There has been considerable debate as to whether the dutyto 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-17-

by amending the Act to include reassignment as a po ssible reasonable accommodation. See 29 U.S.C. §§ 791(g), 794(d) (incorporating standar ds of ADA into Rehabilitation Act); 42 U.S.C. § 12111(9) (under ADA, “The term ‘reasonable accommodation’ may include -- .assignme nt to a vacant position”); see also supra note 8. The regulations were likewise amend ed in October 1992, to provide in relevant part: (g) Reassignment . When a nonprobationary employee becomes unable to perform the essential functions of his orher position even with reasonable accommodation due to a handicap, an agency shall offer to reassign the individual to a funded vacantpositionlocated in the same commuting area and serviced by the same ap pointing authority, and at the same grade or level, the esse ntial functions of which the individual would be able to perform with reasonable accommodation if necessary unless the agency can de monstrate that the reassignment would impose an undue hardship on the operation of its program. In the absence of a position at th e same grade or level, an offer of reassignment to a vacant positio n at the highest available grade or level below the employee’s curre nt grade or level shall be required . . . . 29 C.F.R. § 1614.203(g) (1996) (emphasis added). At least subsequent to the 1992 amendments, the EEO C’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 posit ion to employees who, because of a handicap, no longer are able to perfor m the essential functions of their position, even with reasonable accommodation -- i.e., individuals who-18-

concede that they are not qualified for their origi nal positions. To interpret “position in question” to refer only to plaintiff’s qualifications for the original position, then, would render § 1614.203(g) meaningl ess. Requiring that plaintiffs demonstrate they are capable of performing their or iginal job would disqualify the very individuals the regulation is intended to bene fit. 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 th at no statutoryduty to attempt reassignment existed prior to 1992, it has long been the law that a federal employer “cannot deny an employee alternative emplo yment 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 r equired by Rehabilitation Act to consider reassignment where O PM handbook and demonstrated practice expressed policy favoring rea ssignment of disabled employees). A restrictive reading of “position in question” is therefore similarly illogical when the employer’s duty to reassign eman ates from its own policies or
customs. See Taylor , 820 F. Supp. at 938 (availability of reassignmentas a possible reasonable accommodation “casts doubt on the limited, retrospective definition of the phrase ‘position in question’ urg ed by [the defendant]” prior to10 We believe this approach is consistent with that ap plied 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...) -19- 1992 amendments). Indeed, we have recently made clear that whether a person is “qualified” under the amended Rehabilitation Act and the corres ponding 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 “othe rwise 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 b e a reasonable accommodation for this purpose. Second, whether the employee could be transferred to other work which could be d one 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 a n employee is “qualified” under the amended Act for purposes of amotion for summary judgment is whether the employee has provided evide nce that she can be reasonably accommodated -- which includes reasonabl e reassignment -- sufficient to require submission to a jury. 10 The USPS asserts that since Ms. Woodman was10 (...continued)

amendments case, the Third Circuit determined that the plaintiff had not demonstrated he was “otherwise qualified” for the p osition 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 demon strated there were other jobs available for which he was qualified and to which h e 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 dutyto consider reassignment emanates from application of an agency ’s already-existing policy. In Taylor , the court noted that the Navy’s contention that t he plaintiff was not qualified to perform the job for which he was origi nally hired “presupposes that it had no obligation under the Rehabilitation Act to t ransfer [plaintiff], once he proved unable to perform his original job, to anoth er suitable, permanent position within the agency or to reclassify him within his m edical restrictions.” 820 F. Supp. at 936. -20- hired as a distribution clerk, and since it is undi sputed 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 ent itled 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. Wo odman either because the 1992 amendments are applicable to this case, or bec ause USPS had an existing policy of reassigning disabled workers, the questio n 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 the11 Ms. Woodman also alleged various claims under a hos tile environment

theory she has since abandoned. -21- October 29, 1992, effective date. We disagree. Th e central issue in this case is whether the USPS discriminated against Ms. Woodman by assigning her in November 1992 (one month afterthe effective date of the amendment) to a position she contends is not consistent with her me dical restrictions and by failing to assign her to a permanent position that does mee t her capabilities. Ms. Woodman is currently requesting only injunctive rel ief 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 permanentposition 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 assi gnment. Moreover, the district court’s pre-trial order entered in November 1995 li sts all of Ms. Woodman’s postOctober 1992 claims as disputed issues in this liti gation. 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 reasonab le accommodation prior to October 1992, it most certainly does now under the 1992 amendments. Nonetheless, we must also consider whether plaintif f complied with the statutory requirement that she exhaust her administ rative remedies before seeking-22-

relief in federal court as to the claims arising af ter the filing of her initial complaint. “‘[E]xhaustion of administrative remedi es 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 Johnsonv. Orr , 747 F.2d 1352, 1356 (10th Cir. 1984)). The Rehabilitation Act enc ompasses 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, 19 92. Although these complaints were filed and disposed of prior to boththe 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 v iolation 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 prope rly 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 “‘judicia l complaint . . . may encompass any discrimination like or reasonably rel ated to the allegations’” in the administrative charge, and that “acts committed pur suant to a pattern of discrimination . . . are reasonably related to thatcomplaint.” Id. (quoting-23-

Oubichon v. North Am. Rockwell Corp. , 482 F.2d 569, 571 (9th Cir. 1973)). Although the discriminatory acts asserted post-fili ng (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 pres ented here with a case in which a change in the law has occurred that arguably give s those facts a different meaning than they had when the administrative agenc y considered the claim. Even so, we hold that Ms. Woodman’s claims under th e 1992 amendment were properly before the district court. The twofold pu rpose of the exhaustion requirement is to give notice of an alleged violati on to the charged party and to give the administrative agency an opportunity to co nciliate the claim in furtherance of Title VII’s goal of securing volunta ry 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 requirem ent 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 provi de all relevant, available information is all that exhaustion requires.”). Th e new law went into effect after her claims were already pending in federal court an d she thus could not have raised them before the administrative agency. To f orce her to suspend her case and return to the administrative process in order t o obtain the benefit of the new law would cause unnecessary bifurcation of her clai ms and frustration of the12 We 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 becau se 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 in to effect. The USPS did not promulgate its limited duty job offer until after O ctober 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 R ehabilitation Act apply to all of Ms. Woodman’s claims arising after October 1992, and that those claims were properly before the district court. Mo reover, Ms. Woodman has provided evidence sufficient to raise an issue of f act as to whether the USPS had a duty to reassign her pursuant to its existing pol icies 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 aqualified 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 t o demonstrate that-25-

reasonable accommodation of her disability was poss ible. 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), a nd that it is solely plaintiff’s duty to identify the jobs for which she would be el igible. The USPS cites several federal cases for this proposition, including two o f our own decisions construing the various burdens of production and persuasion un der 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 s o, USPS again cites White , where we stated that “the interactive process is tr iggered only if the employee is ‘qualified,’ . . . and the term ‘qualified’ is desi gned 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 t hat have done so, we will first clarify the burden of proof plaintiffs and defendan ts 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 clai m brought by a federal employee against a federal agency under section 501 of the R ehabilitation Act. It is well13 The EEOC, the agency charged with promulgating regu lations and

otherwise enforcing the Rehabilitation Act, has ela borated 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 Rehabilit ation Act shows that Congress expected and fully intended that the [f]ed eral government was to be a model employer of the handicapped, taki ng 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 inFedro , 21 F.3d at 1399 (Rovner, J., dissenting) (citations omitted). -26- established both by the statutory language and Supr eme Court decisions interpreting the Act that federal employers have gr eater 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 outa 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 al so obligated to demonstrate it has complied with the various statutory duties plac ed 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 “qualif ied”) and by the defendant (who must demonstrate that reasonable accommodation is n ot 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 individua l . . . unless the agency can demonstrate that the reassignment would impose an u ndue hardship on the operation of its program .”) (emphasis added); 29 C.F.R. § 1613.702(f) (1991 ) (“[q]ualified handicapped person” is one who, “withor without reasonable accommodation , can perform the essential functions of the positi on in question”) (emphasis added). At least one of the circuits considering this issue has placed both the burden of production and persuasion on the plaintif f. In Barth v. Gelb , 2 F.3d 1180, 1186-87 (D.C. Cir. 1993), the court held thata plaintiff must demonstrate both that a given accommodation would allow him to perform the essential elements of the job and that the accommodation woul d be reasonable “in the run of cases.” The court further held, however, that a n employer who invokes the-28-

affirmative defense of undue hardship bears the bur den 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 oppos ite 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 th ose cases in which an accommodation that would be unreasonable for most e mployers 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 empl oyer has far greater access to information than the typical plaintiff, both about its own organization, and equally importantly, about the practices and structure of t he industry as a whole.” Id. The Second Circuit also identified problems with th e position taken by the Fifth and Ninth Circuits, however, pointing out that thos e courts in effect ‘put[] on the employer the burden of demonstrating that the plain tiff 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 recogniti on of the types of information-29-

each party is most likely to be in the best positio n to produce. Id. at 137-38. We agree with the Second Circuit and hold that a pl aintiff bears the ultimate burden of proving she is “qualified” withi n 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 reaso nable accommodation. However, a plaintiff’s burden with respect to the p lausibility of reasonable accommodation is one of production only. In accord ance 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 sug gest the existence of a plausible accommodation, the costs of which, facially, do notclearly exceed its benefits.” Borkowski , 63 F.3d at 138 (citation omitted). Once the plai ntiff has made this facial showing that accommodation is possible, the burden shifts to the defendant to prove that accommodating the plaintiff would pos e an undue hardship. Id. We are convinced that placing the burden of locatin g other available jobs entirely on the plaintiff would be inconsistent bot h with the implementing regulations of the 1992 amendments and with the aff irmative action duties contemplated by section 501, the latter of which do not apply to private employers under the Americans with Disabilities Act, the stat ute controlling our decision in14 The factors that must be considered in determining what is “reasonable”

obviously differ as between federal and private emp loyers. 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 feder al government from expending considerable money and effort to become a model emp loyer of handicapped individuals, when that is its chosen policy.”); see also Mantolete v. Bolger , 767 F.2d 1416, 1425 (9th Cir. 1985) (Rafeedie, DistrictJ., concurring) (demanding burdens placed on federal employers to seek means o f accommodation are “justified in light of the express language of § 50 1 and its implementing regulations. . . . Certainly it is hoped that private employers will follow the government’s lead, but it is debatable whether Cong ress meant to impose equivalent obligations.”). -30- White

. 14 The duties of reasonable accommodation under sec tion 501 and the duty to reassign under the 1992 amendments are mandates with which federal employers are obligated to comply. Federal employe rs therefore must play a considerable role in ensuring that every reasonable effort is made to find suitable jobs for disabled employees. Without question, emp loyees 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 o ther words, employers are not required to initiate the inquiryinto 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 init ial burden of raising the issue of accommodation, once the employee has done so, “i n light of the goals of the Rehabilitation Act and the greater access of the employer to information regarding the feasibility of various possible job m odifications, 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 employer s 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 acc ommodation, “much of the information which determines those essential functi ons 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 accommod ation: An employer, to meet its burden under the Act, may not merely speculate that a suggested accommodation is not fea sible. 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 quali fied experts as needed to determine what accommodations are necessa ryto 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 ide ntify an available position for reassignment prior to enlisting the employer’s assistance. In order to15 We recognize that employees may acquire other dutie s 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 assi st the employer in determining the extent of her disability and in identifying job s consistent with her capabilities.

16 One of the key cases cited by the USPS for the prop osition that it is Ms. Woodman’s burden to identify a position suitable fo r 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 contend s that he would be otherwise qualified with reasonable accommodation, it falls t o the employee to make at least a facial showing that reasonable accommodation is p ossible. . . . 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 Mengi ne , 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 obl iged to provide the assistance. Further support for our construction of a federal e mployer’s burden in the process of identifying a reasonable accommodation c omes from the Interpretive Guidance on Title I of the Americans with Disabilit ies Act, which provides the following: Once a qualified individual with a disability has r equested provision of a reasonable accommodation , the employer must make a (continued...) -32- initiate the interactive process, it is enough for a plaintiff to notify the employer of the nature of her disability and specifically re quest information about possible reassignment. At that point, the employer is oblig ed 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 t he burden of identifying an open position before the employer’s duty of accommo dation is triggered. In many cases, an employee will not have the ability or res ources to identify a vacant position absent participation by the employer.”); 16 Taylor v. Principal Fin. Group,16 (...continued)

reasonable effort to determine the appropriate acco mmodation. The appropriate reasonable accommodation is best determ ined through a flexible, interactive process that involves both th e employer and the qualified individual with a disability. 29 C.F.R. Pt. 1630, App. § 1630.9 (1996). (emphasi s added). The Interpretive Guidance then describes how an employer and employe e might together identify accommodations that are not immediately obvious. S ee id. -33- Inc. , 93 F.3d 155, 165 (5th Cir. 1996) (The “employee’s initial request for an accommodation . . . triggers the employer’s obligat ion to participate in the interactive process.”); Beck v. University of Wisco nsin Bd. of Regents , 75 F.3d 1130, 1135 (7th Cir. 1996) (employer bears some res ponsibility in determining the necessary accommodation). In this case, Ms. Woodman has requested reasonable accommodation and has also made a facial showing that reasonable acco mmodation through permanent reassignment is plausible. In addition t o Ms. Woodman’s admittedly disputed contention that the consumer affairs job s he has held and performed without difficulty since 1992 could become her perm anent job, Ms. Woodman has repeatedly and specifically requested that the USPS assist her in locating other jobs she might do. Moreover, she has undergone sev eral arduous functional capacity evaluations in order to determine the exte nt of her physical limitations and capabilities, often causing herself significantphysical pain in the process. The USPS was thus obliged to investigate the possib ility of permanent-34-

reassignment by gathering necessary information fro m Ms. Woodman concerning her medical condition and searching for available p ermanent 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 Pat chup-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 assignmentis within her medical restrictions is a disputed question of fact that mu st 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 mor e than statements in a job description and should reflect the actual functioni ng and circumstances of the particular enterprise involved.’” (quoting Hall v. United States Postal Serv. , 857 F.2d 1073, 1079 (6th Cir. 1988)). Consequently, th e district court erred in granting summary judgment to the USPS.

D. We address briefly the USPS’s assertions that ass igning Ms. Woodman to a permanent position in consumer affairs would be unr easonable as a matter of law. Because we hold there is a question of fact as to w hether 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 th e district court granted summary judgment, however, we consider this questio n for the purpose of determining whether Ms. Woodman’s assertion that sh e 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 t he same commuting area and serviced by the same appointing authority, and at t he 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, “nonexist ent” 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 regardl ess of any explicit statutory duty to reassign, a federal employer “cannot deny a n employee alternative employment opportunities reasonably available underthe employer’s existing policies.” Arline , 480 U.S. at 289 n.19. Ms. Woodman has demonstrat ed 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. Mi chelin Tire Corp. , 869 F. Supp. 1488, 1492-93 (M.D. Ala. 1994) (question of f act 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 betwee n 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 emp loyers to accommodate disabled employees in such a way as to usurp the le gitimate rights of other employees under the terms of a collective bargainin g agreement. See, e.g. , Milton v. Scrivner , 53 F.3d 1118, 1125 (10th Cir. 1995); Daubert v. U nited States Postal
Serv. , 733 F.2d 1367, 1370 (10th Cir. 1984). Indeed, t he 1992 revisions of the implementing regulations expressly provide:-37-

For the purpose of this paragraph [discussing reass ignment as an accommodation], an employee of the United States Po stal Service shall not be considered qualified for any offer of reassignment that would be inconsistent with the terms of any applica ble 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 mu st be filled through a bidding process based on seniority and qualifications pursu ant to the collective bargaining agreement. Aplee. Br. at 24. We need not define the outer limits of a valid coll ective bargaining agreement under the Rehabilitation Act for purposes of our decision in this case because the agreement at issue does not by its term s bar reassignment to a position in consumer affairs. The USPS contends ithas offered unrebutted evidence that Article 37 of the collective bargaini ng agreement prohibits Ms. Woodman’s permanent reassignment to the position sh e now holds. The USPS correctly asserts that Article 37 requires that pre ferred duty assignments be bid for, but it fails to note the declaration of its ow n Labor Relations Specialist that this requirement applies only where there is “adequ ate work available within the plaintiff’s craft, work facility and work hours con sistent with her medical restrictions.” Aplt. App. at 123-24. Where reass ignment 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 di sputed issues of fact regarding whether Ms. Woodman could be reasonably accommodate d with a position in consumer affairs.

III. This case clearly presents genuine issues of materi al 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.