TATE, Circuit Judge:
Claiming that the United States Postal Service unlawfully denied him employment due to his physical handicap, the plaintiff, George Dunbar Prewitt, Jr., brought this action against the postal service. Prewitt contended that he was physically able to perform the job for which he applied despite his handicap, even though the postal service's physical requirements indicate that only persons in "good physical condition" can perform the job because it involves "arduous" work. Prewitt alleged, inter alia, that the postal service thus violated his rights under the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq. Prewitt filed this suit as a class action, after he was denied employment as a clerk/carrier at the Greenville, Mississippi post office. The district court granted the postal service's motion for summary judgment. On Prewitt's appeal, we find that the plaintiff has raised genuine issues of material fact as to 1) whether the postal service's physical requirements for postal employment are sufficiently "job related" to provide lawful grounds for the refusal to hire Prewitt, and 2) whether the postal service has breached its duty to make "reasonable accommodation" for handicapped persons such as Prewitt. Accordingly, we reverse the summary judgment of the district court, and remand the case for further proceedings in accordance with this opinion.
The Factual Background
The plaintiff Prewitt is a disabled Vietnam war veteran. Due to gunshot wounds, he must endure limited mobility of his left arm and shoulder. Nevertheless, in May 1970 (prior to his rejection for re-employment in 1978 that gave rise to this lawsuit), Prewitt applied for a position as a distribution clerk in the Jackson, Mississippi post office, a position which, according to the job description, "require[s] arduous physical exertion involving prolonged standing, throwing, reaching, and may involve lifting sacks of mail up to 80 pounds."
Prewitt resigned his position at the Jackson post office in September 1970 to return to school. He testified in his affidavit, which we must regard as true for summary judgment purposes, that his physical condition did not diminish in any significant way between May 1970 and September 1978, when he applied for the position at the Greenville post office that gave rise to this lawsuit. Prewitt questions the failure of the postal service to re-employ him in 1978, due to a physical handicap, for a position as clerk/carrier, a position with similar physical requirements to those of the job that he had satisfactorily performed in 1970.
According to the postal services qualification standards, the duties of a carrier "are arduous and require that the incumbent be in good physical condition." Thus, a medical form which was given to Prewitt indicates that applicants for this position must meet a wide range of physical criteria, including, inter alia, the ability to see, hear, lift heavy weights, carry moderate weights, reach above shoulder, and use fingers and both hands.
To determine whether Prewitt could meet these physical standards, the Greenville postal authorities asked Prewitt to authorize the Veteran's Administration (VA) to release his medical records to the postal service for examination, and Prewitt complied with this request. The VA records, which apparently were made in 1970 before
After receiving word of this adverse determination, Prewitt contacted Hughes to dispute the conclusion of the medical officer. Hughes told Prewitt that there was no appeal from the decision, but that the decision would be reconsidered at the local level if Prewitt would undergo an examination, at his own expense, by a private physician. In fact, Prewitt did have the right to appeal to the postal service's regional medical director. After belatedly learning of this right, Prewitt exercised his right to appeal, but he chose not to undergo a new physical examination. The regional medical officer, Dr. Gedney, examined the VA report and concluded that Prewitt was medically unsuitable. Unlike Dr. Baltazar, who relied solely on Prewitt's shoulder injury as the basis for his adverse determination, Dr. Gedney also mentioned the kidney disease (which Dr. Gedney stated is an unpredictably progressive disease that could possibly be aggravated by arduous duty) and hypertension.
As permitted by statute, 42 U.S.C. § 2000e-16(c), made applicable to the handicapped by 29 U.S.C. § 794a(a)(1), instead of appealing to the EEOC, Prewitt filed this suit in the district court. No contention is made by the postal service that Prewitt did not exhaust administrative remedies. The postal service responded to Prewitt's complaint with a motion for summary judgment, contending that it had rejected Prewitt for valid medical reasons, and that Prewitt's refusal to take a physical examination had precluded it from making a re-evaluation. The plaintiff responded that postal service regulations required that applicants be given a current physical examination before a medical determination is made, and therefore, even though Prewitt was afforded an opportunity to take a physical after his determination was made, the determination of medical unfitness was invalid. Prewitt further argued that the regulations entitled him to a free physical examination, so that he was not required to bear the expense of an examination by a private physician. Finally, Prewitt noted that in view of the undisputed fact that he had been able to perform competently a similar job in 1970, the postal service had failed to articulate any legitimate reason for its finding of medical unsuitability.
The district court reasoned that:
The Applicable Legal Principles
Our trial brother fell into error of law in his analysis by his implicit assumption that the "substantial disability" disclosed by the Veterans Administration records provided the postal service with legally sufficient grounds for rejecting Prewitt's bid for the clerk/carrier position. For reasons stated below, we find, construing the evidence in the light most favorable to the party resisting summary judgment, that under the Rehabilitation Act of 1973, as amended, a genuine issue of material fact exists as to whether the postal service's physical requirements for postal employment are sufficiently "job related" to provide lawful grounds for the refusal to hire Prewitt.
1. The Applicability of the Rehabilitation Act to Federal Government Hiring
Only since 1978 have handicapped individuals been entitled to bring private actions against federal agencies for violations of the Rehabilitation Act. This is apparently the first case in which a federal appellate court has been called upon to determine the nature and extent of this newly-created private right. We shall therefore examine the history of this legislation in some detail.
Congress passed the Rehabilitation Act of 1973 for the express purpose, inter alia, of "promot[ing] and expand[ing] employment opportunities in the public and private sectors for handicapped individuals." 29 U.S.C. § 701(8). In addition to creating a number of wide-ranging federally-funded programs designed to aid handicapped persons in assuming a full role in society, the Act, in its Title V, established the principle that (a) the federal government, (b) federal contractors, and (c) recipients of federal funds cannot discriminate against the handicapped.
The duties of each of these three classes of entities were set forth in separate sections. Section 503 of the Act, 29 U.S.C. § 793, required federal contractors to include in their contracts with the United States a provision mandating that, in employing persons to carry out the contract, "the party contracting with the United States shall take affirmative action to employ and advance in employment qualified handicapped individuals...." Section 504, 29 U.S.C. § 794, which imposed duties on recipients of federal funds, provided: "No otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance."
The duties of the federal government itself were set forth in section 501(b), 29 U.S.C. § 791(b) which stated:
A Senate committee report commenting on section 501 emphasized that "the Federal Government must be an equal opportunity employer, and that this equal opportunity must apply fully to handicapped individuals."
Under the original 1973 Rehabilitation Act, a private cause of action founded on handicap discrimination was not recognized upon section 501 as against a federal government employer; the literal statutory wording merely required federal agencies to submit affirmative actions plans.
In 1978, the Rehabilitation Act was amended to provide a private cause of action in favor of persons subjected to handicap discrimination by the federal government employing agencies. In the House, an amendment was adopted and ultimately enacted by the Congress that extended section 504's proscription against handicap discrimination to "any program or activity conducted by an Executive agency or by the United States Postal Service;"
The Senate, at the same time, added a new section 505(a)(1) to the Rehabilitation
Section 717 of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-16, to which section 501 is explicitly tied by the new section 505, mandates that all federal personnel actions be made "free from any discrimination based on race, color, religion, sex, or national origin." The provision further provides for a private right of action in favor of those whose claims of discrimination have not been satisfactorily resolved by administrative procedures. However, before an individual can bring a section 717 action in court, strict procedural requirements with respect to exhaustion of administrative remedies must be fulfilled. See 42 U.S.C. § 2000e-16(c). Once administrative remedies have been exhausted, however, an individual is entitled to de novo consideration of his discrimination claims in the district court; however, prior administrative findings made with respect to an employment discrimination claim may be admitted into evidence at the trial de novo. See Chandler v. Roudebush, 425 U.S. 840, 863-64, 96 S.Ct. 1949, 1960-61, 48 L.Ed.2d 416 (1976).
The Senate Committee on Human Resources explained its reasons for granting the rights set forth in section 717 to section 501 plaintiffs:
Sen.Rep.No.95-890, 95th Cong., 2d Sess., at 18-19 (1978). See also Cong.Rec. S15591 (Daily ed. Sept. 20, 1978) (remarks of Sen. Cranston).
The scope of the federal government's obligations under section 501 received Senate attention during debate on a proposed amendment to the proposed new section 505(a)(1). An amendment offered by Senator McClure would have added the following clause at the end of section 505(a)(1): "provided, however, that no equitable relief or affirmative action remedy disproportionately exceeding actual damages in the case shall be available under this section." Cong.Rec. S15664 (Daily ed. Sept. 21, 1978). Senator McClure explained that his amendment "would provide that the federally financed affirmative action remedy ... could not be used to initiate massive construction projects for relatively minor temporal damages." Id.
Senators Cranston and Stafford spoke in opposition to the McClure amendment. Senator Cranston remarked:
Id. at S15665-66.
The dispute was resolved when Senator McClure and the managers of the bill agreed upon the following compromise language: "In fashioning an equitable or affirmative action remedy under such section [section 501], a court may take into account the reasonableness of the cost of any necessary workplace accommodation, and the availability of alternative therefor or other appropriate relief." Id. at S15667. As thus amended, the new section 505(a)(1) was enacted into law, and is now codified as 29 U.S.C. § 794a(a)(1).
In summary, the 1978 amendments to the Rehabilitation Act 1) established a private right of action, subject to the same procedural constraints (administrative exhaustion, etc.) set forth in Title VII of the Civil Rights Act, in favor of section 501 claimants, and 2) extended section 504's proscription against handicap employment discrimination to cover the activities of the federal government itself.
Thus, by its 1978 amendments to the Rehabilitation Act, Congress clearly recognized both in section 501 and in section 504 that individuals now have a private cause of action to obtain relief for handicap discrimination on the part of the federal government and its agencies. The amendments to section 504 were simply the House's answer to the same problem that the Senate saw fit to resolve by strengthening section 501. The joint House-Senate conference committee could have chosen to eliminate the partial overlap between the two provisions, but instead the conference committee, and subsequently Congress as a whole, chose to pass both provisions, despite the overlap. "When there are two acts upon the same subject, the rule is to give effect to both if possible." United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 188, 84 L.Ed. 181 (1939). By this same principle, in order to give effect to both the House and the Senate 1978 amendments finally enacted, we must read the exhaustion of administrative remedies requirement of section 501 into the private remedy recognized by both section 501 and section 504 for federal government handicap discrimination.
2. Prewitt's Present Claim(s) of Handicap Discrimination
In the present suit, Prewitt claims that, despite his handicap, he is physically able to perform the job for which he applied, but that the postal service's physical requirements, neutral on their face, had disparate impact upon a person with his particular handicap and that they excluded him from employment that in fact he was physically able to perform. The present case was dismissed on summary judgment, through a failure to take into account the principles
To anticipate issues that will arise on the remand, we will also take judicial notice of further factual developments set forth in the record of a companion suit, which was consolidated with the present one for appeal, an opinion in which is rendered this same date, Prewitt v. United States Postal Service, 662 F.2d 311 (5th Cir. 1981), Docket No. 81-4205 (1981). This latter case concerns Prewitt's suit with regard to the 1980 rejection of his new application for employment for a position as a substitute rural carrier at the Greenville post office. At a hearing on Prewitt's motion for a preliminary injunction, after which the district court dismissed Prewitt's complaint (a dismissal we vacate today), testimony was submitted by the postal service that made specific the factual reasons why the postal service believes Prewitt had to be rejected because of his physical condition. The physical requirements for the substitute rural carrier position for which Prewitt applied in 1980, it should be noted, are much the same as those for the clerk-carrier position involved in the present suit. See notes 2 and 3.
One of the chief physical factors upon which the postal service bases its refusal to hire Prewitt is that, due to Prewitt's inability to lift his left arm above shoulder level, the employing authority feels that he cannot "case" (sort) the mail that he would be required to deliver on his route. Because a carrier is required to lift above shoulder level with both hands to remove stacks of mail from a six-foot-high top ledge, the postal service contends that Prewitt would not be able to do this part of the job without some workplace modification — however, the postal service witness admitted, for instance, that Prewitt could be accommodated simply by lowering the legs to which the shelves are attached.
Since both issues will arise on the remand, we will therefore note the principles applicable to judicial determination of both cases involving claims of "disparate impact" and also of "surmountable barrier" ("the duty to make reasonable accommodation") discrimination against a handicapped person.
3. "Disparate Impact" Discrimination
Griggs v. Duke Power Company, supra, may be considered the seminal decision concerning instances whereby a facially neutral employment policy has a discriminatory impact upon the employment of individuals statutorily protected against discrimination. There the Court held that an employer's use of written tests and a high school degree requirement violated Title VII of the Civil Rights Act of 1964 because the criteria were not shown to be related to job performance. The unanimous Court reasoned: "The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited." 401 U.S. at 431, 91 S.Ct. at 853. See also Albemarle Paper Co. v. Moody, supra. In Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977), the Court extended Griggs and held that the use of physical requirements (specifically, a 120 pound minimum weight requirement) as employment criteria violates Title VII if the criteria disproportionately exclude women and are not shown by the employer to be job related. Id. 433 U.S. at 328-331, 97 S.Ct. at 2726-28.
In the discriminatory impact context, a plaintiff need not prove that the employer acted with discriminatory intent. Griggs, supra, 401 U.S. at 430-32, 91 S.Ct. at 853-54; Teamsters v. United States, 431 U.S. 324 n.15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). All a plaintiff need prove to establish a prima facie case is that the challenged standard disparately disadvantages the protected group of which he is a member, and that he is qualified for the position under all but the challenged criteria. The burden of persuasion then shifts to the employer to prove that the challenged criteria are "job related," i. e., that they are required by "business necessity." Moody, supra, 422 U.S. at 425, 95 S.Ct. at 2375; Griggs, supra, 401 U.S. at 431, 91 S.Ct. at 853; Johnson v. Uncle Ben's, Inc., 657 F.2d 750 (5th Cir. 1981).
The EEOC regulations adopt a Griggs-type approach in the disparate impact handicap discrimination context. They require federal agencies not to use any selection
In our opinion, in the disparate impact context, there should be only minor differences in the application of the Griggs principles to handicap discrimination claims. One difference, however, is that, when assessing the disparate impact of a facially-neutral criterion, courts must be careful not to group all handicapped persons into one class, or even into broad subclasses. This is because "the fact that an employer employs fifteen epileptics is not necessarily probative of whether he or she has discriminated against a blind person."
In a section 504 handicap discrimination case, the Supreme Court held that the Rehabilitation Act does not require redress of "insurmountable barrier" handicap discrimination — that the statutory language prohibiting discrimination against an "otherwise qualified handicapped individual" means qualified "in spite" of his handicap, not qualified in all respects except for being handicapped. Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979) (emphasis added).
The Davis rationale is equally controlling in the employment discrimination context. Accordingly, employers subject to the Rehabilitation Act need not hire handicapped individuals who cannot fully perform the required work, even with accommodation. However, while Davis demonstrates that only individuals who are qualified "in spite of" their handicaps need be hired, Griggs and its progeny dictate that the employer must bear the burden of proving that the physical criteria are job related. If the employer does this, then the burden of persuasion to show that he can satisfy these criteria rests on the handicapped applicant.
4. "Surmountable Barrier" Discrimination, or the Duty to Make Reasonable Accommodation
Federal employers, including the postal service, are obliged by section 501(b) to provide reasonable accommodation for the handicapped.
There is a dearth of decisional law on this issue.
The relevant EEOC regulation, 29 C.F.R. § 1613.704, provides:
Thus, under subsection (a) of this provision, the burden of proving inability to accommodate is upon the employer. The administrative reasons for so placing the burden likewise justify a similar burden of proof in a private action based upon the Rehabilitation Act. The employer has greater knowledge of the essentials of the job than does the handicapped applicant. The employer can look to its own experience, or, if that is not helpful, to that of other employers who have provided jobs to individuals with handicaps similar to those of the applicant in question. Furthermore, the employer may be able to obtain advice concerning possible accommodations from private and government sources. See Note, Accommodating the Handicapped: Rehabilitating Section 504 After Southeastern, 80 Colum.L.Rev. 171, 187-88 (1980).
Although the burden of persuasion in proving inability to accommodate always remains on the employer, we must add one caveat. Once the employer presents credible evidence that indicates accommodation of the plaintiff would not reasonably be possible, the plaintiff may not remain silent. Once the employer presents such evidence, the plaintiff has the burden of coming forward with evidence concerning his individual capabilities and suggestions for possible accommodations to rebut the employer's evidence. See Note, supra, 80 Colum.L.Rev. at 189.
In addition, subsections (a) and (c) of 29 C.F.R. § 1613.704, which limit the employer's
Genuine Disputed Issues of Material Fact Preclude Summary Judgment
The factual showing before the district court was that the postal service rejected Prewitt's application for employment because it felt, on the basis of the medical records supplied to it, that Prewitt could not perform the "arduous" duties of the position. In view of the undisputed fact that Prewitt had satisfactorily performed a similar postal job in 1970 despite his physical handicap, as well as of his uncontradicted affidavit that his physical condition was substantially unchanged since then, Prewitt raised a genuine issue of material fact as to whether the postal service's physical standards for employment are sufficiently "job related" to justify the employer's refusal to hire him. Under the applicable legal principles earlier set forth, therefore, the postal service is not shown under the facts thus far educed to have been justified as a matter of law in denying Prewitt's application. The summary judgment must therefore be reversed.
We should note that the postal service contends that the postal service rejected him because he refused its request that he take a current physical examination to establish his medical suitability for employment. This contention is based upon the showing that, after Prewitt was found medically unsuitable for employment, he was informally advised by the local postmaster that he would be reconsidered if he secured a new medical examination.
However, the record reveals that Prewitt's application was rejected because he was found to be medically unsuitable (without notifying Prewitt of the specific medical reasons), not because he refused to furnish any further or more current medical information. See text supra at notes 4-7. Indeed, Prewitt's essential position was that his physical condition and the effect of his disability was unchanged since 1970 and that, even accepting the disability reflected by the VA medical reports upon which the postal service relied, he was physically qualified to perform the duties of the position for which he applied, as instanced by his earlier satisfactory performance of the duties of a similar postal position.
On the Remand
On the basis of the factual showing thus far made, we reverse the summary judgment dismissing Prewitt's handicap-discrimination claim. We remand for further proceedings in accordance with the views set forth in this opinion. To summarize:
(1) Prewitt, the disabled claimant, may establish a prima facie case of unlawful discrimination by proving that: (a) except for his physical handicap, he is qualified to fill the position; (b) he has a handicap that prevents
(2) Once the prima facie case of handicap discrimination is established, the burden of persuasion shifts to the federal employer to show that the physical criteria offered as justification for refusal to hire the plaintiff are "job related," i. e., that persons who suffer from the handicap plaintiff suffers and who are, therefore, unable to meet the challenged standards, cannot safely and efficiently perform the essentials of the position in question. If the issue of reasonable accommodation is raised, the agency must then be prepared to make a further showing that accommodation cannot reasonably be made that would enable the handicapped applicant to perform the essentials of the job adequately and safely; in this regard, the postal service must "demonstrate that the accommodation would impose an undue hardship on the operation of its program," 29 C.F.R. § 1613.704(a), taking into consideration the factors set forth by 704(c) of the cited regulation.
(3) If the employer proves that the challenged requirements are job related, the plaintiff may then show that other selection criteria without a similar discriminatory effect would also serve the employer's legitimate interest in efficient and trustworthy workmanship. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977); Johnson v. Uncle Ben's, Inc., 657 F.2d 750, 752 (5th Cir. 1981). When the issue of reasonable accommodation is raised, the burden of persuasion in proving inability to accommodate always remains on the employer; however, once the employer presents credible evidence that reasonable accommodation is not possible or practicable, the plaintiff must bear the burden of coming forward with evidence that suggests that accommodation may in fact be reasonably made.
We of course express no opinion as to the merits of Prewitt's claim. If he is unable to perform the essentials of the position for which he has applied, with or without reasonable accommodation, the postal service need not hire him. The ultimate test is whether, with or without reasonable accommodation, a handicapped individual who meets all employment criteria except for the challenged discriminatory criterion "can perform the essential functions of the position in question without endangering the health and safety of the individuals or others." 28 C.F.R. § 1613.702(f). Since a disputed issue of material fact is shown as to this issue, the summary judgment granted by the district court must be REVERSED.
SUMMARY JUDGMENT REVERSED; STRIKING OF CLASS ACTION ALLEGATIONS VACATED.
Duties of Letter Carrier:
The present complaints by Prewitt involve alleged "disparate impact" and a "surmountable barrier" handicap-discrimination.
The Title VII jurisprudence is, we believe, for the most part applicable to intentional social-bias discrimination against handicapped persons. See Texas Department of Corrections v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Likewise, as will be noted in the text, the Title VII disparate impact decisions are relevant in the determination of disparate impact handicap discrimination. Surmountable and insurmountable barriers raise issues that for the most part are peculiar to handicap discrimination.
The Hardison principles are not applicable in the federal-employer handicap discrimination context. Congress clearly intended the federal government to take measures that would involve more than a de minimis cost. As the debate over the McClure amendment shows, Congress was even unwilling to approve language that would have limited the government's duty to make reasonable accommodation to instances in which the cost of accommodation does not "disproportionately exceed actual damages." See text at note 17 supra.
Therefore, if on the remand the postal service raises this issue by credible evidence, Prewitt will have the burden of persuasion that he does not suffer from substantial and disabling pain when lifting — a matter peculiarly within his knowledge, evidence as to which is more available to him than to the employing agency. However, a failure of Prewitt to meet this burden is not necessarily fatal to his case. While Prewitt denies suffering pain when lifting, he also argues in the alternative that reasonable accommodation is possible through an inexpensive mechanical device (a transferable handle); if the pain-causation is proved and the issue of reasonable accommodation arises, then as in other accommodation cases (see text supra), the postal service will have the burden of persuasion that such accommodation is not feasible or reasonable.