## 1997 D e c i sion s O p inion s of the U nit e d
S t a t e s C our t of Appe al s for the Thir d C ir c uit

6-11-1997 

# M e n g ine v . Run y on

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 96-3287

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1997

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a
U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1997 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a
U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

## R e c omme nde d C it a t ion

" M e n g ine v

. R un y on " (1997). 1997 D e cisio n s

. P a pe r 128. h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1997/128Filed June 11, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-3287

MICHAEL A. MENGINE, Appellant

v.

MARVIN RUNYON, POST MASTER GENERAL,
U.S. POSTAL SERVICE

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 93-cv-01674)

Argued March 10, 1997

Before: BECKER, SCIRICA and ALITO, Circuit Judges

(Filed June 11, 1997)

BRUCE A. BAGIN, ESQUIRE (ARGUED) PAMELA E. BERGER, ESQUIRE Wienand & Bagin 312 Boulevard of the Allies,
Suite 700 Pittsburgh, Pennsylvania 15222

Attorneys for Appellant

ALICE L. COVINGTON, ESQUIRE (ARGUED)
United States Postal Service 475 L'Enfant Plaza, S.W. Washington, D.C. 20260-1136

Attorney for AppelleeOPINION OF THE COURT

SCIRICA, Circuit Judge

.

This appeal addresses the duty of federal employers under the "reasonable accommodation" requirement of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq

. We have held it is the burden of the disabled employee who seeks reassignment to identify a position appropriate for reassignment. See Shiring v. Runyon , 90 F.3d 827 (3d Cir. 1996). At the same time, we believe "reasonable accommodation" includes the employer's reasonable e fforts to assist the employee and to communicate with the employee in good faith. Because the employee, Micha el Mengine, did not meet his burden and the employer, the United States Postal Service, satisfied its duty, w e will affirm the district court's grant of summary judgme nt.

I.

Michael Mengine was employed by the United States Postal Service as a letter carrier. Following hip s urgery for bilateral aseptic necrosis on November 23, 1992, Me ngine could no longer carry out the duties of a letter ca rrier, which include prolonged walking and substantial lif ting. As a result, Mengine received permission to take advan ced sick leave (he had already exhausted his accrued sick le ave).

On January 13, 1993, Mengine requested assignment t o temporary light duty work. This was approved for a period of 30 days. The approval recited that Mengine may n ot push or pull, lift over 10 pounds, or engage in exc essive standing or walking. Mengine was not assigned to a specific light duty job, but told he would get work "as assi gned." Subsequently, Mengine received one two-hour light d uty assignment which required him to sort mail. Mengine then took advanced sick leave when no further light duty assignments were offered to him.

On January 27, 1993, Mengine wrote to Postmaster William Dunn that he was "physically unable to cont inue" as a letter carrier. He requested "a transfer into another

2craft," noting that he was "on advance sick leave a nd would

like to return to full-time work as soon as possibl e." He attached a letter from his doctor stating he must a void prolonged walking and heavy lifting.

On February 2, 1993, Thomas Schimmel, the Senior Personnel Services Specialist, responded to Mengine 's letter on behalf of the Postmaster, sending him descriptio ns of four vacant positions: mail handler, mail processor , laborercustodian, and custodian. Mengine wrote back that, "[a]lthough I am ready, willing, and able to accept a transfer into another category, I do not feel that these par ticular job descriptions best suit my physical limitations." He requested information on other positions which woul d accommodate him and inquired about a computer maintenance training program.

Schimmel responded that there were no positions available (other than the four mentioned above) tha t would accommodate Mengine's disability. He also stated th at the Postal Service had no training program in computer maintenance: "We do have . . . positions [which] ma intain our computer hardware and software relating to our automation equipment. However your limitations woul d prevent you from working in this area." The letter concluded with, "The only suggestion that I have fo r you at this time is that you might want to pursue, if elig ible, Disability Retirement."

On April 20, 1993, Mengine wrote again to the Postmaster and requested a transfer to a "desk job, " or, in the alternative, reassignment to another federal ag ency. Once again, Schimmel responded on behalf of the Postmaster, stating, "In order for you to transfer to another government agency you must contact that agency and they will have to provide you the necessary requirements to
transfer."

Meanwhile, Mengine visited the Postal Service Human Resources Office and reviewed a list of job descrip tions. He identified several positions that he believed would accommodate his limitations, but he was told none o f these positions were vacant.

3Mengine then applied for Social Security benefits

claiming total disability. On September 28, 1993, t he Social Security Administration approved his application. T wo days later, Mengine applied for disability retirement un der the Federal Employees' Retirement System, stating, "As a Letter Carrier, the requirements of my job are standing, w alking, and lifting which I [no] longer can do without grea t difficulty and pain and without causing further dam age to my hips." The Office of Personnel Management initia lly denied his application but on appeal found him elig ible for disability retirement.

In October 1993, Mengine filed this lawsuit against Marvin Runyon, Postmaster General of the United Sta tes Postal Service, claiming violations of the Rehabili tation Act. Specifically, he contends the Postal Service did no t reasonably accommodate his disability because it re fused to reassign him to another position. The district cour t dismissed Mengine's case for failing to timely exha ust administrative remedies, but the dismissal was reve rsed on appeal. Mengine v. Runyon , No. 94-3298 (3d Cir, Dec. 8, 1994).

The case was remanded and discovery ensued. In September 1995, William F. Greb, a Postal Service manager, testified at his deposition that temporary light duty work was available for Mengine in "collections ." The work required driving a truck and picking up mail f rom office buildings. Mengine took the job for an indet erminate period. It appears he has since stopped working and once again accepted disability retirement.1

After discovery, the parties filed cross motions fo r summary judgment. On April 26, 1996, the district c ourt granted summary judgment to the Postal Service beca use Mengine failed to identify a permanent, vacant, fun ded position appropriate for his reassignment.

___________________________________________________ ______________

1. Mengine contends that after returning to work in September 1995, he contacted the Social Security Office to terminate h is benefits.

4II.

This case arises under the Rehabilitation Act. The district court had jurisdiction under 28 U.S.C. § 1331. We h ave jurisdiction under 28 U.S.C. § 1291. We review summ ary judgment decisions under a plenary standard. See Wa ldron v. SL Indus., Inc. , 56 F.3d 491, 496 (3d Cir. 1995). We must apply the same test as the district court, i.e. we must view the evidence in the light most favorable to the non movant, and we may affirm only if "there is no genuine issu e as to any material fact and . . . the moving party is ent itled to a judgment as a matter of law." Fed. R. Civ. P. 56(c) ; Waldron , 56 F.3d at 496.

III.

The Rehabilitation Act of 1973, 29 U.S.C. § 701, et . seq. , forbids federal employers from discriminating again st persons with disabilities in matters of hiring, pla cement or advancement. See Shiring v. Runyon , 90 F.3d 827, 830-31 (3d Cir. 1996). In order for an employee to make ou t a prima facie case of discrimination under the Rehabi litation Act, the employee bears the burden of demonstrating : "(1) that he or she has a disability; (2) that he or she is otherwise qualified to perform the essential functi ons of the job, with or without reasonable accommodations by t he employer; and (3) that he or she was nonetheless terminated or otherwise prevented from performing t he job."
Id . at 831.2

Defendants moved for summary judgment based on thei r contention that Mengine could not prove he was an "otherwise qualified" employee. In response, Mengin e admits he can no longer perform the job of letter c arrier, but contends the Postal Service had a duty to reaso nably accommodate him through reassignment to a different position.

An employer is not required to create a job for a d isabled employee. But a federal employer has a duty to reas sign

___________________________________________________ ______________

2. The Rehabilitation Act of 1973 is applicable onl y to federal employers, such as the Postal Service, and employers who recei ve federal funding. See Shiring , 90 F.3d at 830.

5nonprobationary employees if they become unable to

perform the essential functions of their jobs, unle ss the reassignment would cause the employer undue hardshi p. See Shiring , 90 F.3d at 832. In bringing suit, it is Mengine's burden to "make at least a facial showing that such accommodation [reassignment] is possible." Id . Specifically, Mengine must "demonstrate that there were vacant, f unded positions whose essential duties he was capable of performing, with or without reasonable accommodatio n, and that these positions were at an equivalent leve l or position as [his former job]." Id

.

Mengine maintains he satisfied his burden to identi fy a vacant, funded position by requesting transfer to a light duty position. In the alternative, he contends any failure on his part to identify such a position was caused by the Postal Service's refusal to cooperate.

a.

Mengine contends he satisfied his burden because he presented proof of the availability of light duty w ork. But the only light duty work available was temporary wo rk. It is uncontested that Mengine was seeking permanent work

. The Postal Service was not required to transform it s temporary light duty jobs into permanent jobs to accommodate Mengine's disability. See Shiring , 90 F.3d at 831. As we have noted, an employer is not required to create a job for a disabled employee. At the same t ime, we are reluctant to adopt a per se rule that the conversion of a temporary job to a permanent job can never consti tute a
"reasonable accommodation" under the Rehabilitation Act. We think that in most cases the imposition of such a requirement will be unreasonable, but there might a rise the rare case in which the cost of converting the tempo rary job into a permanent one is slight and the benefits
considerable. Cf. Vande Zande v. State of Wisconsin Dept. of
Admin. , 44 F.3d 538, 542-43 (7th Cir. 1995). In this case

, however, Mengine has not pointed to evidence from w hich
a reasonable factfinder could conclude the costs of converting the temporary jobs at issue into permane nt ones would have been so slight in relation to the benefi ts so as to make the conversion reasonable. In any event, Me ngine

6did not identify any available permanent jobs which he was

capable of performing. He did not meet his burden u nder Shiring

.

b.

Mengine also contends that any failure on his part to identify a vacant, funded position is the fault of the Postal Service, because it failed to cooperate with his ef forts to investigate job descriptions and job vacancies. The district court rejected this contention, holding that federa l employers do not have a duty to find other jobs for disabled employees.3 Soon after the district court's opinion , we made clear in Shiring , 90 F.3d at 832, that an employer has a duty to reassign a disabled employee if an already funded, vacant position at the same level exists. But "it f alls to the employee to make at least a facial showing" that th ere were vacant, funded positions whose essential functions he was capable of performing. Id . Notwithstanding his burden, Mengine maintains a federal employer has a duty to aid the employee in his investigation.

The Court of Appeals for the Seventh Circuit addres sed a similar issue in Beck v. University of Wisconsin Bd . of Regents , 75 F.3d 1130 (7th Cir. 1996). Lorraine Beck was the secretary to the Dean of the School of Nursing at the University of Wisconsin-Milwaukee. She became sever ely depressed from job stress and had to take periodic leaves of absence. Beck's employer tried reassigning her to a less stressful position, and even tried to obtain more
information from her doctor so that her needs could be satisfied, but Beck continued to suffer from depres sion. After her third leave of absence, Beck gave the Uni versity a

___________________________________________________ ______________

3. Mengine correctly notes that School Bd. of Nassa u County. Fla. v.
Arline , 480 U.S. 273 (1987), cited by the district court, no longer provides the applicable standard. Arline predates the 1992 amendments to the Rehabilitation Act, which substantially chan ged the standards used in determining whether the Act is violated. Se e Shiring , 90 F.3d at 831-32 (stating that under Arline employers were not required to reassign disabled employees, but that after the 199 2 amendments reassignment is mandatory unless it would cause the agency undue hardship).

7letter from her doctor requesting "appropriate assi stance

with her work load," an "adjustable computer keyboa rd," and the tailoring of "her work load to what she & y our staff feel she can realistically accomplish." The Univers ity moved Beck's desk and substantially decreased her work lo ad, but she remained depressed. After Beck went on medical leave,
she filed suit under Title I of the Americans with Disabilities Act ("ADA") for failing to reasonably accommodate her disability. The district court gran ted summary judgment to defendants.

On appeal, the court of appeals discussed the duty of Beck's employer to reasonably accommodate her disab ility, holding, "The employer has at least some responsibi lity in determining the necessary accommodation. . . . [T]h e regulations envision an interactive process that re quires participation by both parties." Id . at 1135. The court was referring to the federal regulations implementing t he ADA, which provide in part:

To determine the appropriate reasonable accommodation it may be necessary for the [employer ] to initiate an informal, interactive process with t he qualified individual with a disability in need of t he accommodation. This process should identify the precise limitations resulting from the disability a nd potential reasonable accommodations that could
overcome those limitations.

29 C.F.R. § 1630.2(o)(3)(1995).

[T]he employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.

29 C.F.R. pt. 1630, App. at 351 (1996); see Beck , 75 F.3d at 1135. The court of appeals concluded that both e mployer and employee must "make reasonable efforts" to help determine "what specific accommodations are necessa ry."
Beck , 75 F.3d at 1135. Because the employer in Beck made good faith efforts to communicate with Beck and to

8accommodate her disability, the court affirmed summ ary

judgment for defendants.

Although Beck

discussed this issue in the context of the ADA, it is relevant to our analysis of the Rehabili tation Act
because in 1992 the Rehabilitation Act was amended to incorporate the standards of several sections of th e ADA, including the section defining "reasonable accommod ation."4 29 U.S.C. § 794(d); see also Shiring , 90 F.3d at 831-32.

We agree that both parties have a duty to assist in the search for appropriate reasonable accommodation and to act in good faith. In order to satisfy the requirem ents of the Rehabilitation Act, the Postal Service had the duty to make reasonable efforts to assist Mengine, to communicat e with him in good faith, and to not impede his investigat ion. See
Beck , 75 F.3d at 1135 ("A party that obstructs or delay s the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or respo nse, may also be acting in bad faith."); see also Hunt-Golli day v. Metropolitan Water Reclamation District of Greater Chicago

, 104 F.3d 1004, 1012 (7th Cir. 1997) ("[D]etermining what specific actions should be taken by an employer req uires an interactive process involving participation by both sides."); Taylor v. Principal Financial Group, Inc. , 93 F.3d 155, 165 (5th Cir. 1996) (The "employee's initial request fo r an accommodation . . . triggers the employer's obligat ion to participate in the interactive process . . . ."), c ert. denied

, 117 S. Ct. 586 (1996).

As we held in Shiring , the employee has the duty to identify a vacant, funded position whose essential functions he is capable of performing. Shiring , 90 F.3d at 832. But we

___________________________________________________ ______________

4. The Rehabilitation Act now provides:

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 (42 U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 and 12210), as such sections relate to employment.

29 U.S.C. § 794(d).

9do not suggest that the employee has the burden of

identifying an open position before the employer's duty of accommodation is triggered. In many cases, an emplo yee will not have the ability or resources to identify a vacant position absent participation by the employer. Simp ly put, a disabled employee seeking reassignment will be be st served by employer and employee working together to identify suitable positions.

When the interactive process works well, it further s the purposes of the Rehabilitation Act and the ADA. The employers will not always know what kind of work th e worker with the disability can do, and conversely, the worker may not be aware of the range of available employment opportunities, especially in a large com pany. Thus, the interactive process may often lead to the identification of a suitable position. If it turns out there is no job which the worker (with or without accommodat ion) is capable of performing, then the company cannot b e held
liable for an ADA or Rehabilitation Act violation. See Willis v. Conopco, Inc. , 108 F.3d 282, 285 (11th Cir. 1997) ("[W]here a plaintiff cannot demonstrate `reasonabl e accommodation,' the employer's lack of investigatio n into reasonable accommodation is unimportant. . . . The ADA, as far as we are aware, is not intended to punish e mployers for behaving callously if, in fact, no accommodatio n for the employee's disability could reasonably have been ma de."). To the extent there is any tension between Beck and Willis it may be more a matter of timing; at all events, i f reasonable accommodation is impossible, nothing mor e than communication to the employee of this fact is required. Nonetheless, if an employer fails to enga ge in the interactive process, it may not discover a way in w hich the employee's disability could have been reasonably accommodated, thereby risking violation of the
Rehabilitation Act.

Mengine contends the Postal Service impeded his sea rch for a vacant, funded position. For example, when he reviewed job descriptions at the Postal Service Hum an Resources Office, he was not permitted to photocopy job descriptions of unavailable positions. He also poin ts to the February 18, 1993 letter from Schimmel which conclu des

10with, "The only suggestion that I have for you at t his time is that you might want to pursue, if eligible, Disa bility
Retirement." But this evidence is not indicative of bad faith. Mengine and the Postal Service engaged in the inter active process contemplated by the federal regulations. Th e uncontradicted evidence shows the parties exchanged many letters in their mutual attempt to identify a vacan t, funded position for reassignment. The Postal Service sent Mengine multiple job descriptions of vacant positions in an effort to meet his needs. The additional job descriptions Men gine wanted to photocopy were not vacant positions and
therefore could not have aided his search. The Post al Service made reasonable efforts to assist Mengine, communicated with him in good faith, and did not ac t to impede his investigation. See Beck , 75 F.3d at 1137 ("[W]here, as here, the employer does not obstruct the process, but instead makes reasonable efforts both to communicate with the employee and provide accommodations based on the information it possesse d, ADA liability simply does not follow.").

IV.

Because no reasonable jury could find the Postal Se rvice violated its duty here, we will affirm the judgment of the
district court.5

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

___________________________________________________ ______________

5. In its brief, the Postal Service contended Mengi ne may be estopped from claiming ability to work with reasonable accom modation because he asserted total disability to the Social Security Ad ministration. See McNemar v. Disney Stores , 91 F.3d 610 (3d Cir. 1996), cert. denied , 117 S. Ct. 958 (1997). But at oral argument, the Postal Service stated it did not wish to pursue this argument.

10