An Appeal from the United States District Court For the Western District of Pennsylvania
D.C. No. CV-94-0593 Argued May 21, 1996
Before: Sloviter, Chief Judge, Sarokin, and Rosenn, Circuit Judges.
Opinion Filed July 26, l996
Terry Shiring, formerly employed as a mail carrier by the United States Postal Service, appeals from the decision of the United States District Court for the Western District of Pennsylvania, granting summary judgment for the Postal Service on Shiring's claim of discrimination in violation of the federal Rehabilitation Act of 1973. Shiring, whose medical problems made it impossible for him to continue at his job of postal carrier, contends that the Postal Service was obligated to find a new job for him that he was capable of performing within his physical limitations. Because Shiring made no showing that such a position exists, or that he properly applied for transfer, we will affirm the grant of summary judgment in favor of the Postal Service.
In 1984, the United States Postal Service hired Shiring as a part-time flexible (PTF) letter carrier. This position meant that Shiring was not guaranteed a regular route or a full forty-hour work week. The position is entry level, with the least amount of seniority of all postal employees. At Shiring's request, the Postal Service transferred him several times to different locations, employing him as a PTF carrier in each location. In 1987, Shiring was reassigned to the Oakmont, Pennsylvania Post Office.
In early 1990, Shiring began to experience severe foot pain when delivering the mail along his routes. In May of that year, he sought treatment from Dr. Lewis Stein. Dr. Stein diagnosed Shiring's condition as hallux rigidas limites and a possible sesemold bone fracture of his right foot. Stein fitted Shiring for protective orthopedic devices and informed him that he was restricted from excessive walking before the devices arrived. Shiring notified the Postal Service, which placed him on light duty work. The Postal Service assigned Shiring to "casing" mail, which meant sorting the mail before delivery. Normally, each letter carrier is responsible for casing the mail for his or her own route; however, during the period Shiring was on light duty, the Post Office had him case the mail for all eight carrier routes.
Also during this time, Shiring filed a claim with the Office of Workers' Compensation. He received compensation for the work-time he missed due to his disability.
After the orthopedic devices arrived, Shiring went back to work as a letter carrier. However, the devices failed to ease his condition, and, in December of 1990, Dr. Stein diagnosed Shiring as permanently disabled. Shiring was restricted from more than occasional walking, for a total of less than one hour in an eight-hour workday. The Oakmont Post Office put him back on the modified light duty position it had earlier created. However, in January of 1993, the Post Office determined that there was nothing more available for him at the time consistent with his limitations.
Shiring asserts that during the time before he was discharged, several postal positions became available that he could have performed within his physical limitations. He claims that the Postal Service refused to transfer him to one of these clerk or counterperson positions. The only proof, however, that Shiring asserts to support this contention is an excerpt from his own deposition in which he seems to state that he was transferred to a light duty position at the McKnight Road office, but was then released from that position because it was a job which the union was entitled to have open for bids.
Shiring remained unemployed, receiving worker's compensation at 75% of his regular salary, from January, 1993 until November of 1994. At that time, the Postal Service created a new position for him at its office in Pittsburgh, Pennsylvania. On December 12, Shiring accepted the position and began to work again.
However, in April of 1994, Shiring had filed the instant complaint, alleging that the Postal Service discriminated against him in violation of the Rehabilitation Act of 1973, 29 U.S.C. Section(s) 701 et. seq. Shiring alleged that he was an otherwise qualified disabled individual, who was capable of performing the essential functions of his office with reasonable accommodations, and that the Postal Service had failed to make reasonable accommodations for him. He further alleged that it had discharged him solely because of his handicap. Because Shiring ...