*The Honorable Joseph H. McKinley, Jr., United States DistrictJudge for the Western District of Kentucky, sitting by designation.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0098P (6th Cir.)File Name: 00a0098p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________RANDALCROCKER,Plaintiff-Appellant,v.MARVINT.RUNYON,Postmaster-General,Defendant-Appellee.;>1No. 98-5700Appeal from the United States District Courtfor the Eastern District of Tennessee at Greeneville.No. 96-00151—Dennis H. Inman, Magistrate Judge.Argued: September 21, 1999Decided and Filed: March 22, 2000Before: BOGGS and DAUGHTREY, Circuit Judges; andMcKINLEY,*District Judge.2Crocker v. RunyonNo. 98-5700_________________COUNSELARGUED:W. Douglas Collins, EVANS & BEIER,Morristown, Tennessee, for Appellant. Helen C.T. Smith,UNITED STATES ATTORNEY, Greeneville, Tennessee, forAppellee.ON BRIEF:W. Douglas Collins, EVANS &BEIER, Morristown, Tennessee, for Appellant. Helen C.T.Smith, UNITED STATES ATTORNEY, Greeneville,Tennessee, for Appellee._________________OPINION_________________BOGGS, Circuit Judge. Randal Crocker charges that theUnited States Postal Service refused to hire him due to hisdisability, in violation of the Rehabilitation Act of 1973.Crocker pled both disparate treatment and disparate impactcauses of action below, arguing that he was able to performthe essential functions of the position he sought despite hisdisability. Because Crocker failed to offer medical evidencecontemporaneous with his nonhiring to contradict theevidence upon which the Postal Service relied, we hold thathe did not meet his burden of proof for either cause of action.Accordingly, we affirm both the district court’s dismissal onsummary judgment of the disparate treatment claim and itspost-trial dismissal of the disparate impact claim.IMr. Crocker suffers from Reflex Sympathetic Dystrophy,a neurological disorder that manifests itself in him asexcruciating pain in his right thigh from the knee to the groinif he puts too much weight on his right foot. Thoughexpressing reservations, Postmaster William Dyer hiredCrocker contingent on his passing a pre-employment physical.Dr. Hubert Hill, a physician under contract to do physicals forthe Postal Service, examined Crocker on November 29, 1994.No. 98-5700Crocker v. Runyon11impact theory, judgment was properly granted in favor ofthe [Postal Service] on this claim.Gantt, 143 F.3d at 1048 (discussing the problems associatedwith applying a disparate impact analysis to an agediscrimination claim). The number of other disabledindividuals hired by the Postal Service, including one hiredfor the other position open when Crocker applied, indicatesno singling out of disabled applicants. The fact that a numberof disabled people passed the Postal Service’s preemployment physical for various jobs also suggests that it wasnot used as a means to exclude disabled people fromemployment in jobs they were capable of performing. Theevidence is that Crocker was not hired because he would notbe able to perform the essential elements of the job he sought,which is a permissible reason under the Rehabilitation Act.IVBecause Crocker could not make a prima facie showing thathe was “otherwise qualified” for the position for which hewas not hired, the judgment of the magistrate judge isAFFIRMED.10Crocker v. RunyonNo. 98-5700In any event, a disparate impact theory is unavailable underthe facts of this case. A disparate impact framework involvesburden shifting, and this court has held that burden shifting isinappropriate in Rehabilitation Act cases such as this wherethe employer relies in part on the employee’s disability infinding the employee not otherwise qualified for the job.“[W]hen an employer admits (or the evidence establishes)that its decision was based upon the employee’s disability,direct evidence of discrimination exists [and] . . . applicationof theMcDonnell Douglasburden-shifting framework isinappropriate.”Monette v. Electronic Data Systems Corp., 90F.3d 1173, 1180 (6th Cir. 1996). The disputed factualquestion in this and similar cases is whether the employee canperform the essential functions of the job. The burden toprove this rests on the employee and “can be resolved throughtraditional methods of proof.”Id.at 1183. “Unlike Title VIIcases, where race or sex will almost never be an acceptablereason for an employment decision adverse to a qualifiedemployee, the Rehabilitation Act permits an employer tomake a decision because of a handicap if the handicap is notthe sole reason for the decision.”Burns, 91 F.3d at 841.Thus, a disparate impact analysis was inappropriate to applyto this case, which should have been approached under theframework elaborated inMonetteandBurns.See Mitchell v.Crowell, 975 F. Supp. 1440, 1446 (N.D. Ala. 1997) (applyingMonetteandBurnsin a Rehabilitation Act case to grantsummary judgment to the employer where the employee didnot prove that she was otherwise qualified for the positionfrom which she was terminated).Even if a disparate impact claim were allowed, to establisha prima facie case:Plaintiff would have to support [his] claim by offering“statistical evidence of a kind and degree sufficient toshow that the practice in question has caused the[nonhiring of employees] ... because of their membershipin a protected group.”Abbott v. Federal Forge, Inc., 912F.2d 867, 872 (6th Cir. 1990). Given [his] failure topresent any evidence at all to support [his] adverseNo. 98-5700Crocker v. Runyon3Dr. Hill determined that Crocker failed the physical becausehe could not walk without crutches. Dr. John Dougherty, aneurologist, performed a second pre-employment physical onCrocker on December 28, 1994. He likewise determined thatCrocker’s inability to walk without the use of crutches madehim unable to perform the essential functions of the lettercarrier position.Based on the opinions of Drs. Hill and Dougherty, Dyerdecided not to hire Crocker after he failed the physical. ThePostal Service notified him of his nonhiring in a letter datestamped July 7, 1995. As it must for any veteran who has acompensable disability, the Postal Service processedCrocker’s nonhiring through the Office of PersonnelManagement, a federal agency separate from the PostalService. The letter notifying Crocker of his nonhiring alsoadvised him of his right to submit supporting material to theOPM regarding his automatic appeal within 15 days ofreceiving the letter. It noted that “[t]he best evidence toprovide is an objective medical finding from a board certifiedspecialist in the field that deals with your particular problem.”The OPM sent Crocker a letter date-stamped August 18, 1995informing him that his nonhiring had been upheld, butindicating that he should forward to that office any“additional specific medical documentation that contradictsthese findings” about his capacity to work.Rather than seek a contrary medical opinion when hereceived either of these letters, Crocker filed a discriminationcomplaint with the Postal Service. By law, such a complainthad to be brought within 45 days of the July 7 letter informingCrocker of his nonhiring. Crocker first contacted the PostalService about filing a complaint on November 4, 1995, 120days after being notified of his nonhiring. Because thecomplaint was filed in an untimely fashion, the Postal Servicerejected it in a letter to Crocker date-stamped January 4, 1996.He filed the discrimination complaint at issue in this appealon April 3, 1996. The medical examinations Crocker used attrial to argue his fitness for the letter carrier position tookplace in December 1996 and April 1997. Those examinations4Crocker v. RunyonNo. 98-5700cannot prove that Crocker was physically capable ofperforming the job at the time he was not hired. Even if hewould have passed the physicals later, as he now contends,that does not mean he should have passed the earlier ones.Two years separate the two sets of evaluations, and,significantly, Crocker changed the treatment for his RSD inthe intervening period. Crocker complains that he did nothave much time to seek a medical opinion supporting his caseafter receiving the January 4, 1996 letter. That argumentignores the fact that Crocker was on notice as of July 7, 1995that he needed contrary medical evidence to dispute hisnonhiring.Crocker filed suit in federal district court on April 3, 1996,alleging that the Postal Service failed to hire him because hewas disabled. The parties consented below to the jurisdictionof a United States Magistrate Judge with an appeal lyingdirectly to this court.See28 U.S.C. § 636(c). The PostalService moved for summary judgment on the disparatetreatment claim and the magistrate judge granted the motion,reasoning that Crocker was not otherwise qualified for theposition since he could not perform its essential functions andthat he had shown no proof of animus on the part of the PostalService. However, the magistrate judge discerned a separatedisparate impact claim in the complaint on which heconducted a bench trial. Under this theory, the criteria usedby the Postal Service to assess physical abilitiesdisproportionately impact otherwise qualified persons withRSD. After trial, the court dismissed the latter claim as well,determining again that Crocker was not otherwise qualifiedfor the letter carrier position. We review a magistrate judge’sdecision to grant summary judgmentde novo. In casesreferred to a magistrate judge by a district judge for decisionwith consent of the parties under 28 U.S.C. § 636(c), wereview the magistrate judge’s findings of fact for clear error,as we would the findings of a district judge.See Sherri A.D.v. W.N. Kirby, 975 F.2d 193, 207 n.25 (5th Cir. 1992);Proctor v. North Carolina, 830 F.2d 514, 517 (4th Cir.1987)(“Ordinarily, then, in an appeal from a decision rendered bya magistrate in a § 636(c) proceeding, the magistrate’sNo. 98-5700Crocker v. Runyon9sub nom. Alexander v. Choate, 469 U.S. 287 (1985). Thiscourt has recognized in an unpublished opinion that the Fifthand Eleventh Circuits allow disparate impact causes of actionfor discrimination under the Rehabilitation Act.See Cook v.Hairston, No. 90-3437, 1991 WL 253302, at *6 (6th Cir.Nov. 26, 1991),citing Georgia State Conf. of Branches ofNAACP v. Georgia, 775 F.2d 1403 (11th Cir. 1985),andPrewitt v. United States Postal Serv., 662 F.2d 292 (5th Cir.1981). TheChoatecourt assumed without deciding that §504prevented some kinds of disparate impact on the handicapped,but then found no violation in the program at issue in thatcase.See Choate, 469 U.S. at 299 (“While we reject theboundless notion that all disparate-impact showings constituteprima facie cases under §504, we assume without decidingthat §504 reaches at least some conduct that has anunjustifiable disparate impact upon the handicapped”). Thusit remains “an open question whether section 504 forbids. . . ‘conduct that has an unjustifiable disparate impact’ on thedisabled.”Sandison v. Michigan High School Athletic Ass’n,64 F.3d 1026, 1032 (6th Cir. 1995).There is good reason to believe that a disparate impacttheory is not available under the Rehabilitation Act.Although Title VII contains a provision allowing an overtlydiscriminatory hiring criterion when it is a bona fideoccupational qualification, that provision has proven muchless expansive in practice than the Rehabilitation Act’s safeharbor provision for nonhiring.Compare42 U.S.C. § 2000e2(e),with29 U.S.C. § 794. The Rehabilitation Act’s“otherwise qualified” language specifically allows fordisabled people to be disparately affected by legitimate jobcriteria, so a wholesale importing of Title VII’s disparateimpact cause of action into the Rehabilitation Act contextmight be inappropriate.Cf. Mullin v. Raytheon Co., 164 F.3d696, 700 (1st Cir. 1999) (noting the difficulties inherent intransporting disparate impact analysis from Title VII intocases brought under the Age Discrimination in EmploymentAct following the Supreme Court’s decision inHazen PaperCo. v. Biggins, 507 U.S. 604 (1993)).8Crocker v. RunyonNo. 98-5700§ 1630.2(r). Carrying heavy mail boxes and pushing a heavyhamper down a loading ramp every day while hopping on oneleg, as Crocker proposes, would not be safe.This case is not likeHoliday v. City of Chattanooga, arecent nonhiring case brought under the Americans withDisabilities Act. There the applicant’s status as “otherwisequalified” was also in dispute.See Holiday v. City ofChattanooga, No. 98-5619, 2000 FED App. 0087P, (6th Cir.March 10, 2000). In that case, the physician failed toinvestigate whether Holiday’s HIV caused him any problemsthat would affect his performance on the job, and his medicalopinion contradicted contemporaneous evidence of Holiday’sability to serve as a police officer despite havingasymptomatic HIV.See id., slip op. at 9-10. There was alsoevidence of anti-HIV stereotyping by the hiring authority inthe case, creating a genuine issue of material fact as to theemployer’s “good-faith reliance” on the medical opinionreceived.See id.at 12-13. None of those elements is presenthere. The medical opinions of the two original examiningphysicians determined that Crocker could not do the kinds ofphysical activities required by the job, and there was noevidence of any anti-RSD stereotype at work. The PostalService here relied in good faith on the two medical opinionsit received, and Crocker did not offer any contemporaneousmedical evidence to contradict those opinions. Crockertherefore did not create a genuine issue of material fact, andthe magistrate judge’s granting of summary judgment to thePostal Service on the disparate treatment claim was altogetherappropriate.IIICrocker’s appeal of his disparate impact claim fails formuch the same reasons. Initially, however, it should be notedthat this circuit has not explicitly recognized the availabilityof a disparate impact cause of action under the RehabilitationAct. One earlier effort to do so on a broad basis inJenningsv. Alexanderwas rebuffed by the Supreme Court.SeeJennings v. Alexander, 715 F.2d 1036 (6th Cir. 1983),rev’dNo. 98-5700Crocker v. Runyon51If, as Crocker attests, his crutches truly do not “substantially limithis major life activities,” then the magistrate judge erred in determiningthat Crocker is disabled.See Sutton v. United Air Lines, Inc., 119 S. Ct.2139 (1999) (holding that corrective measures must be taken into accountin judging whether an individual is disabled);Murphy v. United ParcelServ., Inc., 119 S. Ct. 2133 (1999) (holding that an employee did not havea disability since the medication he took prevented his major life activitiesfrom being substantially limited);Albertson v. Kirkinburg, 119 S. Ct.2162 (1999) (holding that the existence of a disability must be determinedfrom the actual effect of the impairment on the life of the givenindividual);See also Gilday v. Mecosta County, 124 F.3d 760, 767-68(6th Cir. 1997) (presaging the holdings in these cases). Because we canfindings of fact are reviewed only to the extent of determiningwhether such findings are clearly erroneous”);See generally1 Steven A. Childress and Martha S. Davis, FEDERALSTANDARDS OFREVIEW§ 2.03(D) (3d ed. 1999). “A findingis clearly erroneous when ‘although there is evidence tosupport it, the reviewing court on the entire evidence is leftwith the definite and firm conviction that a mistake has beencommitted.’”United States v. Russell, 156 F.3d 687, 690 (6thCir. 1998),citing United States v. United States Gypsum Co.,333 U.S. 364, 365 (1948).IITo make out a claim under the Rehabilitation Act, aplaintiff in a covered position must establish that he is: 1) anindividual with a disability under the Act, 2) otherwisequalified for the job with or without a reasonableaccommodation, and 3) being discriminated against solelybecause of his handicap.See Burns v. City of Columbus,Dep’t of Pub. Safety, 91 F.3d 836, 841 (6th Cir. 1996),citingDoherty v. Southern College of Optometry, 862 F.2d 570 (6thCir. 1985). It is not enough for the plaintiff to show that hishandicap contributed to the nonhiring, because theRehabilitation Act “does not forbid decisions based on theactual attributes of the handicap.”Pesterfield v. TennesseeValley Auth., 941 F.2d 437, 443 (6th Cir. 1991),quotingAnderson v. University of Wisconsin, 841 F.2d 737 (7th Cir.1988). Assuming that the other elements are met,1in a case6Crocker v. RunyonNo. 98-5700affirm the district court’s finding that Crocker was not otherwise qualifiedfor the job, we need not reach this issue.such as this where the defendant admittedly “made thedecisionbecause ofthe handicap . . . the sole factual issue leftfor resolution is an objective one — whether the plaintiff isqualified for the position or program despite the handicap,with or without reasonable accommodation.”Burns, 91 F.3dat 842. The second and third elements of the claim collapseinto one question, because if a plaintiff can show that he isotherwise qualified, it will be virtually impossible in thesecircumstances for the employer to show that the nonhiringwas not solely due to the handicap.Hence, for Crocker to show that he was otherwise qualifiedfor the position, he has to show that he could have met thephysical demands of the job. The Postal Service relied on theopinions of two private physicians, including a neurologicalspecialist, in reaching its decision not to hire Crocker.Crocker argues that the subsequent testimony of two otherevaluators who performed more elaborate examinationsrenders reliance on the earlier medical opinions unreasonable.Even if the earlier medical opinions were demonstrablyflawed, the Postal Service’s reasonable reliance upon them isnot discriminatory.See Severino v. North Myers Fire ControlDist., 935 F.2d 1179, 1182 (11th Cir. 1991). So long as thePostal Service relied on those opinions in good faith indetermining that Crocker could not do the job, the failure tohire him was justified.See Pesterfield, 941 F.2d at 443.Moreover, Crocker offered no proof that he was physicallycapable of performing the job at the time he was not hired.That he was aware of the option to obtain another medicalopinion when he was refused employment and chose not tomay mean he was not confident then about the outcome ofany such additional evaluation.Crocker makes much of the fact that the job descriptionssent to Drs. Hill and Dougherty were incomplete, and thatHuman Resources Manager Charles Brantley sent Dr. Hill aNo. 98-5700Crocker v. Runyon7letter prejudging Crocker’s fitness for the job. Takentogether, Crocker argues, these conditions preclude a claim ofgood-faith reliance by the Postal Service on the earliermedical opinions. As the lower court found, there is noevidence that Crocker was not hired for any reason other thanfailing the physicals. Indeed, Brantley’s letter notes thatCrocker “was using crutches and dragging his feet the lasttime I saw him.” If anything, that serves as furthercontemporaneous evidence that Crocker had not adapted aswell to his crutches at that time as he has now. Theincomplete job descriptions did not affect the medical findingthat Crocker could not walk without crutches relied upon bythe Postal Service.Crocker also complains that the Postal Service did not offerhim any accommodation, but since Crocker did not suggestuntil trial that he needed an accommodation, the PostalService had no legal duty to provide him one.SeeKaltenberger v. Ohio College of Podiatric Med., 162 F.3d432, 437 (6th Cir. 1998);See also Gantt v. Wilson SportingGoods, 143 F.3d 1042, 1046 (6th Cir. 1998). When the lackof an accommodation became an issue at trial, the PostalService offered Crocker an accommodation in the form of amore sedentary job, which he refused. Crocker is not anotherwise qualified individual once he rejects an offer ofreasonable accommodation.See Keever v. City ofMiddletown, 145 F.3d 809, 811-812 (6th Cir. 1998).Moreover, the failed physical indicated that no reasonableaccommodation was possible for the position Crocker sought.The magistrate judge’s finding that there “does not appear tobe any reasonable way in which plaintiff’s disability could beaccommodated” is not clearly erroneous. In particular, thetrial court found that Crocker, at the time he applied for thejob, could not perform his duties without endangering thesafety of himself and others. Under 42 U.S.C. § 12113(b), afinding that Crocker poses a direct safety threat to himself orothers renders him not otherwise qualified. A direct threatentails “a significant risk of substantial harm to the health orsafety of the individual or others that cannot be eliminated orreduced by reasonable accommodation.” 29 C.F.R.