Odis D. Hall v. United States Postal Service Paul N. Carlin and Chester Cole

WELLFORD, Circuit Judge,

dissenting.

Hall was a letter carrier before being injured, and in 1982, she was finally determined no longer to be disabled after she had protested this decision administratively. (She requested a hearing by a hearing representative who found her no longer disabled, and this decision was reviewed by the Office of the Director for Federal Employees’ Compensation.)1 Hall specifically requested reinstatement “as a Distribution Clerk at the General Mail Facility.” The job description for this position included a requirement of lifting up to 70 pounds, which was, according to postal authorities, “an essential part of the job,” as found by the district court. Hall testified that she *1081had previously done “clerk work at the main post office ... during the Christmas rush.” (Not “any special job” and she did not know whether the job she did was, or was not, classified as “distribution clerk work.”) Hall said that during this short special season work she was not called upon to do any lifting of heavy mail sacks.

It is unquestioned that from a medical standpoint, Hall cannot, without hazard to her health, meet the criteria for the distribution clerk job. Just before official denial of her re-employment for this reason, Hall claimed to speak to someone in the Detroit EEO office of the Postal Service to assert discrimination by reason of her physical handicap. After the official denial of her application as distribution clerk, Hall made a further oral request of the EEO officer to investigate her rejection but not specifically based on her asserted handicap. After 180 days without a response, she filed this action under the Rehabilitation Act (29 U.S.C. § 701) et seq. and the Michigan Handicappers Act. I believe the district court was correct in granting the defendants judgment. Accordingly, I dissent.

The Rehabilitation Act prescribes only that “otherwise qualified” persons shall not be excluded from Postal Service Work by reason of a handicap. 29 U.S.C. § 794.2 Under the statutory scheme, the Postal Service must make “reasonable accomodation” to a “qualified applicant.” Defendants claimed in their motion for summary judgment that plaintiff failed to exhaust her administrative remedies before proceeding with this suit. There is no record that Hall ever filed any formal written complaint of handicap discrimination. Plaintiff has the burden of showing that she fulfilled administrative requirements before proceeding into federal court to sue the Postal Service. She has merely asserted that she wanted and asked about an EEO officer’s investigation “concerning her complaint of handicap discrimination.” She has never claimed or demonstrated any filing of a written complaint asserting handicap discrimination as is required, nor has she asserted any excuse for not following this necessary prerequisite to this suit.3 Defendants have questioned the exhaustion necessity, and should have been granted a motion to dismiss on this basis. Smith v. United States Postal Service, 742 F.2d 257 (6th Cir.1984).

Even if not dismissed on grounds of failure to exhaust, defendants were entitled to summary judgment for the reasons stated by Judge Gilmore. Hall asserted a claim in her complaint only under the Rehabilitation Act, 29 U.S.C. § 701 et seq., specifically § 794, and the regulations spelling out a “reasonable accomodation.” She did not assert a claim under § 501, nor claim that defendants had any affirmative duty toward her except “not [to] discriminate against a qualified physicially or mentally handicapped person.”

Plaintiff has not demonstrated, as a matter of law, that she can perform an essential function of the position she herself sought in writing. Jasany v. United States Postal Service, 755 F.2d 1244 (6th Cir.1985). See also School Board of Nassau County, Fla. v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 1131 n. 17, 94 L.Ed.2d 307 (1987). As Judge Jones recognizes, “an accomodation that eliminates an essential function of the job is not reasonable.” That plaintiff served in a short time, part-time clerk position at some earlier period which did not, according to her recollection, require heavy lifting or “excessive bending” is no basis upon which to counter the undisputed requirements of the particular job she sought — distribution clerk. There was no factual material issue as to Hall’s inability to perform that job as to one or more of its essential functions. The grant of summary judgment was clearly indicated. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). *1082Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

On either or both bases herein discussed, judgment should be affirmed for defendants.

. Hall’s letter of October 7, 1984 to the Postmaster at Detroit concedes that her claim for continued "Workman’s" compensation was denied by the “review” Board.

. Judge Jones makes reference to 29 U.S.C. § 791, which sets out that handicapped persons, if qualified, are to be afforded "equal opportunity” to do work with the Postal Service. 29 U.S.C. § 791. Plaintiff made no such reference in her complaint.

. Hall stated that “she assumed that the EEO officer had filed or completed the necessary paperwork" based on an oral complaint which is uncertain. (Emphasis added).