Crocker v. Runyon

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0098P (6th Cir.) File Name: 00a0098p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  RANDAL CROCKER,  Plaintiff-Appellant,   No. 98-5700 v.  > MARVIN T. RUNYON,   Defendant-Appellee.  Postmaster-General,

 1 Appeal from the United States District Court for the Eastern District of Tennessee at Greeneville. No. 96-00151—Dennis H. Inman, Magistrate Judge. Argued: September 21, 1999 Decided and Filed: March 22, 2000 Before: BOGGS and DAUGHTREY, Circuit Judges; and McKINLEY,* District Judge.

* The Honorable Joseph H. McKinley, Jr., United States District Judge for the Western District of Kentucky, sitting by designation.

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_________________ impact theory, judgment was properly granted in favor of the [Postal Service] on this claim. COUNSEL Gantt, 143 F.3d at 1048 (discussing the problems associated ARGUED: W. Douglas Collins, EVANS & BEIER, with applying a disparate impact analysis to an age Morristown, Tennessee, for Appellant. Helen C.T. Smith, discrimination claim). The number of other disabled UNITED STATES ATTORNEY, Greeneville, Tennessee, for individuals hired by the Postal Service, including one hired Appellee. ON BRIEF: W. Douglas Collins, EVANS & for the other position open when Crocker applied, indicates BEIER, Morristown, Tennessee, for Appellant. Helen C.T. no singling out of disabled applicants. The fact that a number Smith, UNITED STATES ATTORNEY, Greeneville, of disabled people passed the Postal Service’s pre- Tennessee, for Appellee. employment physical for various jobs also suggests that it was not used as a means to exclude disabled people from _________________ employment in jobs they were capable of performing. The evidence is that Crocker was not hired because he would not OPINION be able to perform the essential elements of the job he sought, _________________ which is a permissible reason under the Rehabilitation Act. BOGGS, Circuit Judge. Randal Crocker charges that the IV United States Postal Service refused to hire him due to his disability, in violation of the Rehabilitation Act of 1973. Because Crocker could not make a prima facie showing that Crocker pled both disparate treatment and disparate impact he was “otherwise qualified” for the position for which he causes of action below, arguing that he was able to perform was not hired, the judgment of the magistrate judge is the essential functions of the position he sought despite his AFFIRMED. disability. Because Crocker failed to offer medical evidence contemporaneous with his nonhiring to contradict the evidence upon which the Postal Service relied, we hold that he did not meet his burden of proof for either cause of action. Accordingly, we affirm both the district court’s dismissal on summary judgment of the disparate treatment claim and its post-trial dismissal of the disparate impact claim. I Mr. Crocker suffers from Reflex Sympathetic Dystrophy, a neurological disorder that manifests itself in him as excruciating pain in his right thigh from the knee to the groin if he puts too much weight on his right foot. Though expressing reservations, Postmaster William Dyer hired Crocker contingent on his passing a pre-employment physical. Dr. Hubert Hill, a physician under contract to do physicals for the Postal Service, examined Crocker on November 29, 1994.

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In any event, a disparate impact theory is unavailable under Dr. Hill determined that Crocker failed the physical because the facts of this case. A disparate impact framework involves he could not walk without crutches. Dr. John Dougherty, a burden shifting, and this court has held that burden shifting is neurologist, performed a second pre-employment physical on inappropriate in Rehabilitation Act cases such as this where Crocker on December 28, 1994. He likewise determined that the employer relies in part on the employee’s disability in Crocker’s inability to walk without the use of crutches made finding the employee not otherwise qualified for the job. him unable to perform the essential functions of the letter “[W]hen an employer admits (or the evidence establishes) carrier position. that its decision was based upon the employee’s disability, direct evidence of discrimination exists [and] . . . application Based on the opinions of Drs. Hill and Dougherty, Dyer of the McDonnell Douglas burden-shifting framework is decided not to hire Crocker after he failed the physical. The inappropriate.” Monette v. Electronic Data Systems Corp., 90 Postal Service notified him of his nonhiring in a letter date- F.3d 1173, 1180 (6th Cir. 1996). The disputed factual stamped July 7, 1995. As it must for any veteran who has a question in this and similar cases is whether the employee can compensable disability, the Postal Service processed perform the essential functions of the job. The burden to Crocker’s nonhiring through the Office of Personnel prove this rests on the employee and “can be resolved through Management, a federal agency separate from the Postal traditional methods of proof.” Id. at 1183. “Unlike Title VII Service. The letter notifying Crocker of his nonhiring also cases, where race or sex will almost never be an acceptable advised him of his right to submit supporting material to the reason for an employment decision adverse to a qualified OPM regarding his automatic appeal within 15 days of employee, the Rehabilitation Act permits an employer to receiving the letter. It noted that “[t]he best evidence to make a decision because of a handicap if the handicap is not provide is an objective medical finding from a board certified the sole reason for the decision.” Burns, 91 F.3d at 841. specialist in the field that deals with your particular problem.” Thus, a disparate impact analysis was inappropriate to apply The OPM sent Crocker a letter date-stamped August 18, 1995 to this case, which should have been approached under the informing him that his nonhiring had been upheld, but framework elaborated in Monette and Burns. See Mitchell v. indicating that he should forward to that office any Crowell, 975 F. Supp. 1440, 1446 (N.D. Ala. 1997) (applying “additional specific medical documentation that contradicts Monette and Burns in a Rehabilitation Act case to grant these findings” about his capacity to work. summary judgment to the employer where the employee did not prove that she was otherwise qualified for the position Rather than seek a contrary medical opinion when he from which she was terminated). received either of these letters, Crocker filed a discrimination complaint with the Postal Service. By law, such a complaint Even if a disparate impact claim were allowed, to establish had to be brought within 45 days of the July 7 letter informing a prima facie case: Crocker of his nonhiring. Crocker first contacted the Postal Service about filing a complaint on November 4, 1995, 120 Plaintiff would have to support [his] claim by offering days after being notified of his nonhiring. Because the “statistical evidence of a kind and degree sufficient to complaint was filed in an untimely fashion, the Postal Service show that the practice in question has caused the rejected it in a letter to Crocker date-stamped January 4, 1996. [nonhiring of employees] ... because of their membership He filed the discrimination complaint at issue in this appeal in a protected group.” Abbott v. Federal Forge, Inc., 912 on April 3, 1996. The medical examinations Crocker used at F.2d 867, 872 (6th Cir. 1990). Given [his] failure to trial to argue his fitness for the letter carrier position took present any evidence at all to support [his] adverse place in December 1996 and April 1997. Those examinations

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cannot prove that Crocker was physically capable of sub nom. Alexander v. Choate, 469 U.S. 287 (1985). This performing the job at the time he was not hired. Even if he court has recognized in an unpublished opinion that the Fifth would have passed the physicals later, as he now contends, and Eleventh Circuits allow disparate impact causes of action that does not mean he should have passed the earlier ones. for discrimination under the Rehabilitation Act. See Cook v. Two years separate the two sets of evaluations, and, Hairston, No. 90-3437, 1991 WL 253302, at *6 (6th Cir. significantly, Crocker changed the treatment for his RSD in Nov. 26, 1991), citing Georgia State Conf. of Branches of the intervening period. Crocker complains that he did not NAACP v. Georgia, 775 F.2d 1403 (11th Cir. 1985), and have much time to seek a medical opinion supporting his case Prewitt v. United States Postal Serv., 662 F.2d 292 (5th Cir. after receiving the January 4, 1996 letter. That argument 1981). The Choate court assumed without deciding that §504 ignores the fact that Crocker was on notice as of July 7, 1995 prevented some kinds of disparate impact on the handicapped, that he needed contrary medical evidence to dispute his but then found no violation in the program at issue in that nonhiring. case. See Choate, 469 U.S. at 299 (“While we reject the boundless notion that all disparate-impact showings constitute Crocker filed suit in federal district court on April 3, 1996, prima facie cases under §504, we assume without deciding alleging that the Postal Service failed to hire him because he that §504 reaches at least some conduct that has an was disabled. The parties consented below to the jurisdiction unjustifiable disparate impact upon the handicapped”). Thus of a United States Magistrate Judge with an appeal lying it remains “an open question whether section 504 forbids directly to this court. See 28 U.S.C. § 636(c). The Postal . . . ‘conduct that has an unjustifiable disparate impact’ on the Service moved for summary judgment on the disparate disabled.” Sandison v. Michigan High School Athletic Ass’n, treatment claim and the magistrate judge granted the motion, 64 F.3d 1026, 1032 (6th Cir. 1995). reasoning that Crocker was not otherwise qualified for the position since he could not perform its essential functions and There is good reason to believe that a disparate impact that he had shown no proof of animus on the part of the Postal theory is not available under the Rehabilitation Act. Service. However, the magistrate judge discerned a separate Although Title VII contains a provision allowing an overtly disparate impact claim in the complaint on which he discriminatory hiring criterion when it is a bona fide conducted a bench trial. Under this theory, the criteria used occupational qualification, that provision has proven much by the Postal Service to assess physical abilities less expansive in practice than the Rehabilitation Act’s safe disproportionately impact otherwise qualified persons with harbor provision for nonhiring. Compare 42 U.S.C. § 2000e- RSD. After trial, the court dismissed the latter claim as well, 2(e), with 29 U.S.C. § 794. The Rehabilitation Act’s determining again that Crocker was not otherwise qualified “otherwise qualified” language specifically allows for for the letter carrier position. We review a magistrate judge’s disabled people to be disparately affected by legitimate job decision to grant summary judgment de novo. In cases criteria, so a wholesale importing of Title VII’s disparate referred to a magistrate judge by a district judge for decision impact cause of action into the Rehabilitation Act context with consent of the parties under 28 U.S.C. § 636(c), we might be inappropriate. Cf. Mullin v. Raytheon Co., 164 F.3d review the magistrate judge’s findings of fact for clear error, 696, 700 (1st Cir. 1999) (noting the difficulties inherent in as we would the findings of a district judge. See Sherri A.D. transporting disparate impact analysis from Title VII into v. W.N. Kirby, 975 F.2d 193, 207 n.25 (5th Cir. 1992); cases brought under the Age Discrimination in Employment Proctor v. North Carolina, 830 F.2d 514, 517 (4th Cir.1987) Act following the Supreme Court’s decision in Hazen Paper (“Ordinarily, then, in an appeal from a decision rendered by Co. v. Biggins, 507 U.S. 604 (1993)). a magistrate in a § 636(c) proceeding, the magistrate’s

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§ 1630.2(r). Carrying heavy mail boxes and pushing a heavy findings of fact are reviewed only to the extent of determining hamper down a loading ramp every day while hopping on one whether such findings are clearly erroneous”); See generally leg, as Crocker proposes, would not be safe. 1 Steven A. Childress and Martha S. Davis, FEDERAL STANDARDS OF REVIEW § 2.03(D) (3d ed. 1999). “A finding This case is not like Holiday v. City of Chattanooga, a is clearly erroneous when ‘although there is evidence to recent nonhiring case brought under the Americans with support it, the reviewing court on the entire evidence is left Disabilities Act. There the applicant’s status as “otherwise with the definite and firm conviction that a mistake has been qualified” was also in dispute. See Holiday v. City of committed.’” United States v. Russell, 156 F.3d 687, 690 (6th Chattanooga, No. 98-5619, 2000 FED App. 0087P, (6th Cir. Cir. 1998), citing United States v. United States Gypsum Co., March 10, 2000). In that case, the physician failed to 333 U.S. 364, 365 (1948). investigate whether Holiday’s HIV caused him any problems that would affect his performance on the job, and his medical II opinion contradicted contemporaneous evidence of Holiday’s ability to serve as a police officer despite having To make out a claim under the Rehabilitation Act, a asymptomatic HIV. See id., slip op. at 9-10. There was also plaintiff in a covered position must establish that he is: 1) an evidence of anti-HIV stereotyping by the hiring authority in individual with a disability under the Act, 2) otherwise the case, creating a genuine issue of material fact as to the qualified for the job with or without a reasonable employer’s “good-faith reliance” on the medical opinion accommodation, and 3) being discriminated against solely received. See id. at 12-13. None of those elements is present because of his handicap. See Burns v. City of Columbus, here. The medical opinions of the two original examining Dep’t of Pub. Safety, 91 F.3d 836, 841 (6th Cir. 1996), citing physicians determined that Crocker could not do the kinds of Doherty v. Southern College of Optometry, 862 F.2d 570 (6th physical activities required by the job, and there was no Cir. 1985). It is not enough for the plaintiff to show that his evidence of any anti-RSD stereotype at work. The Postal handicap contributed to the nonhiring, because the Service here relied in good faith on the two medical opinions Rehabilitation Act “does not forbid decisions based on the it received, and Crocker did not offer any contemporaneous actual attributes of the handicap.” Pesterfield v. Tennessee medical evidence to contradict those opinions. Crocker Valley Auth., 941 F.2d 437, 443 (6th Cir. 1991), quoting therefore did not create a genuine issue of material fact, and Anderson v. University of Wisconsin, 841 F.2d 7371 (7th Cir. the magistrate judge’s granting of summary judgment to the 1988). Assuming that the other elements are met, in a case Postal Service on the disparate treatment claim was altogether appropriate. 1 III If, as Crocker attests, his crutches truly do not “substantially limit his major life activities,” then the magistrate judge erred in determining that Crocker is disabled. See Sutton v. United Air Lines, Inc., 119 S. Ct. Crocker’s appeal of his disparate impact claim fails for 2139 (1999) (holding that corrective measures must be taken into account much the same reasons. Initially, however, it should be noted in judging whether an individual is disabled); Murphy v. United Parcel that this circuit has not explicitly recognized the availability Serv., Inc., 119 S. Ct. 2133 (1999) (holding that an employee did not have of a disparate impact cause of action under the Rehabilitation a disability since the medication he took prevented his major life activities Act. One earlier effort to do so on a broad basis in Jennings from being substantially limited); Albertson v. Kirkinburg, 119 S. Ct. 2162 (1999) (holding that the existence of a disability must be determined v. Alexander was rebuffed by the Supreme Court. See from the actual effect of the impairment on the life of the given Jennings v. Alexander, 715 F.2d 1036 (6th Cir. 1983), rev’d individual); See also Gilday v. Mecosta County, 124 F.3d 760, 767-68 (6th Cir. 1997) (presaging the holdings in these cases). Because we can

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such as this where the defendant admittedly “made the letter prejudging Crocker’s fitness for the job. Taken decision because of the handicap . . . the sole factual issue left together, Crocker argues, these conditions preclude a claim of for resolution is an objective one — whether the plaintiff is good-faith reliance by the Postal Service on the earlier qualified for the position or program despite the handicap, medical opinions. As the lower court found, there is no with or without reasonable accommodation.” Burns, 91 F.3d evidence that Crocker was not hired for any reason other than at 842. The second and third elements of the claim collapse failing the physicals. Indeed, Brantley’s letter notes that into one question, because if a plaintiff can show that he is Crocker “was using crutches and dragging his feet the last otherwise qualified, it will be virtually impossible in these time I saw him.” If anything, that serves as further circumstances for the employer to show that the nonhiring contemporaneous evidence that Crocker had not adapted as was not solely due to the handicap. well to his crutches at that time as he has now. The incomplete job descriptions did not affect the medical finding Hence, for Crocker to show that he was otherwise qualified that Crocker could not walk without crutches relied upon by for the position, he has to show that he could have met the the Postal Service. physical demands of the job. The Postal Service relied on the opinions of two private physicians, including a neurological Crocker also complains that the Postal Service did not offer specialist, in reaching its decision not to hire Crocker. him any accommodation, but since Crocker did not suggest Crocker argues that the subsequent testimony of two other until trial that he needed an accommodation, the Postal evaluators who performed more elaborate examinations Service had no legal duty to provide him one. See renders reliance on the earlier medical opinions unreasonable. Kaltenberger v. Ohio College of Podiatric Med., 162 F.3d Even if the earlier medical opinions were demonstrably 432, 437 (6th Cir. 1998); See also Gantt v. Wilson Sporting flawed, the Postal Service’s reasonable reliance upon them is Goods, 143 F.3d 1042, 1046 (6th Cir. 1998). When the lack not discriminatory. See Severino v. North Myers Fire Control of an accommodation became an issue at trial, the Postal Dist., 935 F.2d 1179, 1182 (11th Cir. 1991). So long as the Service offered Crocker an accommodation in the form of a Postal Service relied on those opinions in good faith in more sedentary job, which he refused. Crocker is not an determining that Crocker could not do the job, the failure to otherwise qualified individual once he rejects an offer of hire him was justified. See Pesterfield, 941 F.2d at 443. reasonable accommodation. See Keever v. City of Moreover, Crocker offered no proof that he was physically Middletown, 145 F.3d 809, 811-812 (6th Cir. 1998). capable of performing the job at the time he was not hired. Moreover, the failed physical indicated that no reasonable That he was aware of the option to obtain another medical accommodation was possible for the position Crocker sought. opinion when he was refused employment and chose not to The magistrate judge’s finding that there “does not appear to may mean he was not confident then about the outcome of be any reasonable way in which plaintiff’s disability could be any such additional evaluation. accommodated” is not clearly erroneous. In particular, the trial court found that Crocker, at the time he applied for the Crocker makes much of the fact that the job descriptions job, could not perform his duties without endangering the sent to Drs. Hill and Dougherty were incomplete, and that safety of himself and others. Under 42 U.S.C. § 12113(b), a Human Resources Manager Charles Brantley sent Dr. Hill a finding that Crocker poses a direct safety threat to himself or others renders him not otherwise qualified. A direct threat entails “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or affirm the district court’s finding that Crocker was not otherwise qualified reduced by reasonable accommodation.” 29 C.F.R. for the job, we need not reach this issue.