*

The Honorable Joseph H. McKin

Judge for the Western District of Kentuc

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

RANDAL CROCKER,

Plaintiff-Appellant,

v.

MARVIN T. RUNYON,

Postmaster-General,

Defendant-Appellee.

Appeal from the United St

for the Eastern District of Ten

No. 96-00151—Dennis H. Inm

Argued: Septembe

Decided and Filed: M

Before: BOGGS and DAUGHTR

McKINLEY,

*

 Dist
2 Crocker v. Runyon No. 98-5700

_________________

COUNSEL

ARGUED: 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 the

United 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. 

I

Mr. 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. 98-5700 

impact theory, judgment was prothe [Postal Service] on this claim

Gantt, 143 F.3d at 1048 (discussinwith applying a disparate impdiscrimination claim). The nuindividuals hired by the Postal Sefor the other position open when Cno singling out of disabled applicanof disabled people passed the employment physical for various jonot used as a means to excludemployment in jobs they were capevidence is that Crocker was not hbe able to perform the essential elewhich is a permissible reason und

IV

Because Crocker could not make 

he was “otherwise qualified” for was not hired, the judgment of AFFIRMED.
10 Crocker v. Runyon No. 98-5700

In any event, a disparate impact theory is unavailable under

the 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 the McDonnell Douglas burden-shifting framework is

inappropriate.” Monette v. Electronic Data Systems Corp., 90

F.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 in Monette and Burns. See Mitchell v.

Crowell, 975 F. Supp. 1440, 1446 (N.D. Ala. 1997) (applyingMonette and Burns in a Rehabilitation Act case to grant

summary 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 establish

a 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., 912

F.2d 867, 872 (6th Cir. 1990). Given [his] failure topresent any evidence at all to support [his] adverse

No. 98-5700 Dr. Hill determined that Crocker fhe could not walk without crutcheneurologist, performed a second prCrocker on December 28, 1994. HCrocker’s inability to walk withouhim unable to perform the essentcarrier position. 

Based on the opinions of Drs. 

decided not to hire Crocker after hPostal Service notified him of his stamped July 7, 1995. As it must compensable disability, the PCrocker’s nonhiring through thManagement, a federal agency Service. The letter notifying Croadvised him of his right to submit OPM regarding his automatic areceiving the letter. It noted thaprovide is an objective medical finspecialist in the field that deals with The OPM sent Crocker a letter dateinforming him that his nonhirinindicating that he should forw“additional specific medical docuthese findings” about his capacity 

Rather than seek a contrary m

received either of these letters, Crocomplaint with the Postal Service. had to be brought within 45 days of Crocker of his nonhiring. CrockeService about filing a complaint odays after being notified of his complaint was filed in an untimely rejected it in a letter to Crocker dateHe filed the discrimination complon April 3, 1996. The medical exatrial to argue his fitness for the lplace in December 1996 and April 
4 Crocker v. Runyon No. 98-5700

cannot 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. See 28 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 judgment de 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’s

No. 98-5700 sub nom. Alexander v. Choate, 46court has recognized in an unpubliand Eleventh Circuits allow disparfor discrimination under the RehabHairston, No. 90-3437, 1991 WL Nov. 26, 1991), citing Georgia SNAACP v. Georgia, 775 F.2d 14Prewitt v. United States Postal Se1981). The Choate court assumed prevented some kinds of disparate ibut then found no violation in the case. See Choate, 469 U.S. at 2

boundless notion that all disparate-prima facie cases under §504, we that §504 reaches at least somunjustifiable disparate impact upon it remains “an open question wh. . . ‘conduct that has an unjustifiabdisabled.” Sandison v. Michigan H64 F.3d 1026, 1032 (6th Cir. 1995

There is good reason to believ

theory is not available under Although Title VII contains a prodiscriminatory hiring criterion occupational qualification, that prless expansive in practice than the harbor provision for nonhiring. Co

2(e), with 29 U.S.C. § 794. T“otherwise qualified” language disabled people to be disparately criteria, so a wholesale importinimpact cause of action into the Rmight be inappropriate. Cf. Mullin 696, 700 (1st Cir. 1999) (noting ttransporting disparate impact anacases brought under the Age DiscrAct following the Supreme Court’Co. v. Biggins, 507 U.S. 604 (199
8 Crocker v. Runyon No. 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 like Holiday v. City of Chattanooga, a

recent 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 also

evidence 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.

III

Crocker’s appeal of his disparate impact claim fails for

much 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 in Jennings

v. Alexander was rebuffed by the Supreme Court. SeeJennings v. Alexander, 715 F.2d 1036 (6th Cir. 1983), rev’d

No. 98-5700 

1If, as Crocker attests, his crutches 

his major life activities,” then the magistthat Crocker is disabled. See Sutton v. U

2139 (1999) (holding that corrective measin judging whether an individual is disabServ., Inc., 119 S. Ct. 2133 (1999) (holdina disability since the medication he took pfrom being substantially limited); Alber2162 (1999) (holding that the existence of from the actual effect of the impairmindividual); See also Gilday v. Mecosta (6th Cir. 1997) (presaging the holdings in 

findings of fact are reviewed only twhether such findings are clearly e1 Steven A. Childress and MaSTANDARDS OF 

REVIEW § 2.03(D) 

is clearly erroneous when ‘althosupport it, the reviewing court on with the definite and firm convicticommitted.’” United States v. RussCir. 1998), citing United States v. U333 U.S. 364, 365 (1948).

II

To make out a claim under t

plaintiff in a covered position musindividual with a disability undqualified for the job with oaccommodation, and 3) being disbecause of his handicap. See BuDep’t of Pub. Safety, 91 F.3d 836, Doherty v. Southern College of OpCir. 1985). It is not enough for thhandicap contributed to the Rehabilitation Act “does not forbactual attributes of the handicap.” Valley Auth., 941 F.2d 437, 443 Anderson v. University of Wiscons1988). Assuming that the other el
6 Crocker v. Runyon No. 98-5700

affirm 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 thedecision because of the 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 qualified

for 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 descriptions

sent to Drs. Hill and Dougherty were incomplete, and thatHuman Resources Manager Charles Brantley sent Dr. Hill a

No. 98-5700 letter prejudging Crocker’s fitntogether, Crocker argues, these congood-faith reliance by the Postamedical opinions. As the lower evidence that Crocker was not hirefailing the physicals. Indeed, BCrocker “was using crutches and time I saw him.” If anythingcontemporaneous evidence that Cwell to his crutches at that timincomplete job descriptions did nothat Crocker could not walk withothe Postal Service. 

Crocker also complains that the P

him any accommodation, but sincuntil trial that he needed an acService had no legal duty to Kaltenberger v. Ohio College of 432, 437 (6th Cir. 1998); See also Goods, 143 F.3d 1042, 1046 (6th Cof an accommodation became an Service offered Crocker an accommore sedentary job, which he reotherwise qualified individual onreasonable accommodation. SMiddletown, 145 F.3d 809, 81Moreover, the failed physical indaccommodation was possible for thThe magistrate judge’s finding thabe any reasonable way in which plaaccommodated” is not clearly errtrial court found that Crocker, at tjob, could not perform his duties safety of himself and others. Undfinding that Crocker poses a direct others renders him not otherwise entails “a significant risk of substasafety of the individual or others threduced by reasonable accomm