1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-11-1997

Mengine v. Runyon

Precedential or Non-Precedential:

Docket 96-3287

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Recommended Citation

"Mengine v. Runyon" (1997). 1997 Decisions. Paper 128.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/128
Filed 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 Appellee 
OPINION 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 efforts 

to assist the employee and to communicate with the 

employee in good faith. Because the employee, Michael 

Mengine, did not meet his burden and the employer, the 

United States Postal Service, satisfied its duty, we will 

affirm the district court's grant of summary judgment. 

I.

Michael Mengine was employed by the United States 

Postal Service as a letter carrier. Following hip surgery for 

bilateral aseptic necrosis on November 23, 1992, Mengine 

could no longer carry out the duties of a letter carrier, 

which include prolonged walking and substantial lifting. As 

a result, Mengine received permission to take advanced sick 

leave (he had already exhausted his accrued sick leave). 

On January 13, 1993, Mengine requested assignment to 

temporary light duty work. This was approved for a period 

of 30 days. The approval recited that Mengine may not 

push or pull, lift over 10 pounds, or engage in excessive 

standing or walking. Mengine was not assigned to a specific 

light duty job, but told he would get work "as assigned." 

Subsequently, Mengine received one two-hour light duty 

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 continue" 

as a letter carrier. He requested "a transfer into another 

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craft," noting that he was "on advance sick leave and would 

like to return to full-time work as soon as possible." He 

attached a letter from his doctor stating he must avoid 

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 descriptions 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 particular job 

descriptions best suit my physical limitations." He

requested information on other positions which would 

accommodate him and inquired about a computer 

maintenance training program. 

Schimmel responded that there were no positions 

available (other than the four mentioned above) that would 

accommodate Mengine's disability. He also stated that the 

Postal Service had no training program in computer 

maintenance: "We do have . . . positions [which] maintain 

our computer hardware and software relating to our 

automation equipment. However your limitations would 

prevent you from working in this area." The letter 

concluded with, "The only suggestion that I have for you at 

this time is that you might want to pursue, if eligible, 

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 agency. 

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 descriptions. He 

identified several positions that he believed would

accommodate his limitations, but he was told none of these 

positions were vacant. 

 3 
Mengine then applied for Social Security benefits 

claiming total disability. On September 28, 1993, the Social 

Security Administration approved his application. Two days 

later, Mengine applied for disability retirement under the 

Federal Employees' Retirement System, stating, "As a Letter 

Carrier, the requirements of my job are standing, walking, 

and lifting which I [no] longer can do without great 

difficulty and pain and without causing further damage to 

my hips." The Office of Personnel Management initially 

denied his application but on appeal found him eligible for 

disability retirement. 

In October 1993, Mengine filed this lawsuit against

Marvin Runyon, Postmaster General of the United States 

Postal Service, claiming violations of the Rehabilitation Act. 

Specifically, he contends the Postal Service did not 

reasonably accommodate his disability because it refused to 

reassign him to another position. The district court 

dismissed Mengine's case for failing to timely exhaust 

administrative remedies, but the dismissal was reversed 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 from 

office buildings. Mengine took the job for an indeterminate 

period. It appears he has since stopped working and once 

again accepted disability retirement.1 

After discovery, the parties filed cross motions for 

summary judgment. On April 26, 1996, the district court 

granted summary judgment to the Postal Service because 

Mengine failed to identify a permanent, vacant, funded 

position appropriate for his reassignment. 

_________________________________________________________________ 

1. Mengine contends that after returning to work in September 1995, he 

contacted the Social Security Office to terminate his benefits. 

 4 
II. 

This case arises under the Rehabilitation Act. The district 

court had jurisdiction under 28 U.S.C. § 1331. We have 

jurisdiction under 28 U.S.C. § 1291. We review summary 

judgment decisions under a plenary standard. See Waldron

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 nonmovant, 

and we may affirm only if "there is no genuine issue as to 

any material fact and . . . the moving party is entitled 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 against 

persons with disabilities in matters of hiring, placement or 

advancement. See Shiring v. Runyon, 90 F.3d 827, 830-31 

(3d Cir. 1996). In order for an employee to make out a 

prima facie case of discrimination under the Rehabilitation 

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 functions of the 

job, with or without reasonable accommodations by the 

employer; and (3) that he or she was nonetheless 

terminated or otherwise prevented from performing the job." 

Id. at 831.2 

Defendants moved for summary judgment based on their 

contention that Mengine could not prove he was an 

"otherwise qualified" employee. In response, Mengine 

admits he can no longer perform the job of letter carrier, 

but contends the Postal Service had a duty to reasonably 

accommodate him through reassignment to a different

position. 

An employer is not required to create a job for a disabled 

employee. But a federal employer has a duty to reassign 

_________________________________________________________________ 

2. The Rehabilitation Act of 1973 is applicable only to federal employers, 

such as the Postal Service, and employers who receive federal funding. 

See Shiring, 90 F.3d at 830. 

 5 
nonprobationary employees if they become unable to 

perform the essential functions of their jobs, unless the 

reassignment would cause the employer undue hardship. 

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, funded 

positions whose essential duties he was capable of 

performing, with or without reasonable accommodation, 

and that these positions were at an equivalent level or 

position as [his former job]." Id. 

Mengine maintains he satisfied his burden to identify 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 work. But 

the only light duty work available was temporary work. It is 

uncontested that Mengine was seeking permanent work. 

The Postal Service was not required to transform its 

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 time, we 

are reluctant to adopt a per se rule that the conversion of 

a temporary job to a permanent job can never constitute 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 arise the 

rare case in which the cost of converting the temporary 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 which 

a reasonable factfinder could conclude the costs of

converting the temporary jobs at issue into permanent ones 

would have been so slight in relation to the benefits so as 

to make the conversion reasonable. In any event, Mengine 

 6 
did not identify any available permanent jobs which he was 

capable of performing. He did not meet his burden under 

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 efforts to 

investigate job descriptions and job vacancies. The district 

court rejected this contention, holding that federal 

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 falls to the 

employee to make at least a facial showing" that there 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 addressed 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 severely 

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 depression. 

After her third leave of absence, Beck gave the University a 

_________________________________________________________________ 

3. Mengine correctly notes that School Bd. of Nassau 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 changed the standards 

used in determining whether the Act is violated. See Shiring, 90 F.3d at 

831-32 (stating that under Arline employers were not required to 

reassign disabled employees, but that after the 1992 amendments 

reassignment is mandatory unless it would cause the agency undue 

hardship). 

 7 
letter from her doctor requesting "appropriate assistance 

with her work load," an "adjustable computer keyboard," 

and the tailoring of "her work load to what she & your staff 

feel she can realistically accomplish." The University moved 

Beck's desk and substantially decreased her work load, 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 granted 

summary judgment to defendants. 

On appeal, the court of appeals discussed the duty of 

Beck's employer to reasonably accommodate her disability, 

holding, "The employer has at least some responsibility in 

determining the necessary accommodation. . . . [T]he 

regulations envision an interactive process that requires 

participation by both parties." Id. at 1135. The court was 

referring to the federal regulations implementing the 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 the 

qualified individual with a disability in need of the 

accommodation. This process should identify the 

precise limitations resulting from the disability and 

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 employer 

and employee must "make reasonable efforts" to help

determine "what specific accommodations are necessary." 

Beck, 75 F.3d at 1135. Because the employer in Beck made 

good faith efforts to communicate with Beck and to 

 8 
accommodate her disability, the court affirmed summary 

judgment for defendants. 

Although Beck discussed this issue in the context of the 

ADA, it is relevant to our analysis of the Rehabilitation Act 

because in 1992 the Rehabilitation Act was amended to 

incorporate the standards of several sections of the ADA, 

including the section defining "reasonable accommodation."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 requirements of the 

Rehabilitation Act, the Postal Service had the duty to make 

reasonable efforts to assist Mengine, to communicate with 

him in good faith, and to not impede his investigation. See

Beck, 75 F.3d at 1135 ("A party that obstructs or delays the 

interactive process is not acting in good faith. A party that 

fails to communicate, by way of initiation or response, may 

also be acting in bad faith."); see also Hunt-Golliday 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 requires 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 for an 

accommodation . . . triggers the employer's obligation to 

participate in the interactive process . . . ."), cert. 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 section has been 

violated in a complaint alleging employment discrimination under 

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

Americans with Disabilities Act of 1990 (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). 

 9 
do not suggest that the employee has the burden of 

identifying an open position before the employer's duty of 

accommodation is triggered. In many cases, an employee 

will not have the ability or resources to identify a vacant 

position absent participation by the employer. Simply put, 

a disabled employee seeking reassignment will be best 

served by employer and employee working together to

identify suitable positions. 

When the interactive process works well, it furthers the 

purposes of the Rehabilitation Act and the ADA. The

employers will not always know what kind of work the 

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 company. 

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 accommodation) 

is capable of performing, then the company cannot be 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 `reasonable 

accommodation,' the employer's lack of investigation into 

reasonable accommodation is unimportant. . . . The ADA, 

as far as we are aware, is not intended to punish employers 

for behaving callously if, in fact, no accommodation for the 

employee's disability could reasonably have been made."). 

To the extent there is any tension between Beck and Willis

it may be more a matter of timing; at all events, if 

reasonable accommodation is impossible, nothing more 

than communication to the employee of this fact is 

required. Nonetheless, if an employer fails to engage in the 

interactive process, it may not discover a way in which the 

employee's disability could have been reasonably 

accommodated, thereby risking violation of the 

Rehabilitation Act. 

Mengine contends the Postal Service impeded his search 

for a vacant, funded position. For example, when he

reviewed job descriptions at the Postal Service Human 

Resources Office, he was not permitted to photocopy job 

descriptions of unavailable positions. He also points to the 

February 18, 1993 letter from Schimmel which concludes 

 10 
with, "The only suggestion that I have for you at this time 

is that you might want to pursue, if eligible, Disability 

Retirement." But this evidence is not indicative of bad faith. 

Mengine and the Postal Service engaged in the interactive 

process contemplated by the federal regulations. The 

uncontradicted evidence shows the parties exchanged many 

letters in their mutual attempt to identify a vacant, 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 Mengine 

wanted to photocopy were not vacant positions and 

therefore could not have aided his search. The Postal 

Service made reasonable efforts to assist Mengine, 

communicated with him in good faith, and did not act 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 possessed, 

ADA liability simply does not follow."). 

IV.

Because no reasonable jury could find the Postal Service 

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 Mengine may be estopped 

from claiming ability to work with reasonable accommodation because he 

asserted total disability to the Social Security Administration. 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