Hansen, Steve R. v. Henderson, William J ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3952
Steve R. Hansen,
Plaintiff-Appellant,
v.
William J. Henderson, Postmaster General,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 97 C 3672--Matthew F. Kennelly, Judge.
Argued August 9, 2000--Decided November 15,
2000
Before Posner, Ripple, and Williams,
Circuit Judges.
Posner, Circuit Judge. Hansen, a mail
carrier working out of the Glenview,
Illinois post office, sued the Postal
Service for failure to accommodate his
disability, in violation of the
Rehabilitation Act, 29 U.S.C. sec.sec.
701 et seq. A bench trial resulted in a
judgment for the defendant.
Hansen’s work involved first sorting
mail for about 4 hours while standing and
bending over to pick up the mail to be
sorted from piles on the floor or on low
shelves; then placing the mail in cases
or trays weighing 10 to 15 pounds each
and wheeling or carrying the cases to a
mail truck and loading them onto the
truck; and finally delivering the mail:
sometimes by parking at the end of a
block and walking from house to house
carrying the mail for the block in a sack
(this is called "park and loop"
delivery); sometimes by driving the truck
to the entrance of a business and either
leaving the mail for the business there
or wheeling or carrying it inside
("dismount" delivery); and sometimes by
placing the mail in mailboxes located
along the road, without having to get out
of the truck at all ("curbline"
delivery).
A herniated disc conceded to be a
disabling injury within the meaning of
the Rehabilitation Act prevented Hansen
from doing his job. Hansen asked his
postmaster, Slickenmeyer, for a job that
would not require him to walk. The
Glenview post office does have a few such
jobs, but they were filled and Hansen
does not claim that his disability
entitled him to bounce any of the
incumbents from their jobs. Slickenmeyer
inquired of the other post offices in his
district on Hansen’s behalf but they had
no vacancies in nonwalking jobs either.
He also inquired of Hansen’s union but it
had no suggestions and so Hansen, unable
by his own account to perform a mail
carrier’s duties as configured by the
Postal Service, was let go.
He complains that Slickenmeyer should
have explored with him the possibility of
restructuring his existing job so that it
would not involve walking, bending, or
heavy lifting. For example, if all he had
had to do was case (not sort or load) the
mail and deliver it curbside, he would
not have had to do any significant
walking or lifting. He argues that
Slickenmeyer had created such light-duty
jobs for other disabled workers and that
Slickenmeyer should have done that for
him too. The district judge found
Slickenmeyer to be an entirely credible
witness, and concluded that Slickenmeyer
had done everything reasonably possible
to find a job for Hansen in the Postal
Service that Hansen could perform, given
his back problem.
When as in this case the disabled worker
has communicated his disability to his
employer and asked for an accommodation
so that he can continue working, the
employer has the burden of exploring with
the worker the possibility of a
reasonable accommodation. E.g., Gile v.
United Airlines, Inc., 213 F.3d 365, 373
(7th Cir. 2000); Taylor v. Phoenixville
School District, 184 F.3d 296, 311-20 (3d
Cir. 1999). Failure to engage in this
"interactive process" cannot give rise to
a claim for relief, however, if the
employer can show that no reasonable
accommodation was possible. E.g., Rehling
v. City of Chicago, 207 F.3d 1009, 1016
(7th Cir. 2000); Donahue v. Consolidated
Rail Corp., 224 F.3d 226, 233-35 (3d Cir.
2000); Willis v. Conopco, Inc., 108 F.3d
282, 285 (11th Cir. 1997) (per curiam).
For then the breakdown of the interactive
process would be academic. That is what
the Postal Service tried to show here,
and the district judge, whose findings we
can reverse only if we find them to be
clearly erroneous, concluded that the
Service had carried its burden of
persuasion.
Slickenmeyer had indeed created "light
duty" jobs in the Glenview post office
for several other disabled employees.
Apparently these are jobs that Hansen
could have performed notwithstanding his
disability, and apparently there were
similar jobs in other post offices. And
reassignment of a disabled worker to a
job on the employer’s roster that the
worker’s disability does not prevent him
from performing is a legitimate form of
accommodation, as we noted in our recent
decision in EEOC v. Humiston-Keeling,
Inc., No. 99-3281, 2000 WL 1310519 (7th
Cir. Sept. 19, 2000). But all those jobs
were filled. There were no vacancies in
the district, and Hansen does not contend
that he would have been willing to move
out of the district to find a suitable
postal job. The Postal Service was not
required to bounce one of the incumbents
in the light-duty jobs to make way for
Hansen, whether or not the incumbents
were as disabled as Hansen, or for that
matter disabled at all, e.g., Pond v.
Michelin North America, Inc., 183 F.3d
592, 595 (7th Cir. 1999); Baert v. Euclid
Beverage, Ltd., 149 F.3d 626, 632 (7th
Cir. 1998); Willis v. Pacific Maritime
Ass’n, 162 F.3d 561, 567 (9th Cir. 1998),
unless they had been put into those jobs
to block Hansen, which is not argued.
Firing a worker to make a place for a
disabled worker is not a reasonable
accommodation of the worker’s disability.
Wooten v. Farmland Foods, 58 F.3d 382,
386 (8th Cir. 1995). Nor must the
employer manufacture a job that will
enable the disabled worker to work
despite his disability. E.g., Baert v.
Euclid Beverage, Ltd., supra, 149 F.3d at
632; Gile v. United Airlines, Inc., 95
F.3d 492, 499 (7th Cir. 1996); Smith v.
Midland Brake, Inc., 180 F.3d 1154, 1174
(10th Cir. 1999). That is, redundant
staffing is not a reasonable
accommodation. See Sieberns v. Wal-Mart
Stores, Inc., 125 F.3d 1019, 1022 (7th
Cir. 1997); Fjellestad v. Pizza Hut of
America, Inc., 188 F.3d 944, 950 (8th
Cir. 1999). This implies, though we
cannot find a case, that the worker
cannot demand that his employer give him
a job for which there is no vacancy
without shifting the worker who has that
job to another job in order to create a
vacancy for the disabled worker.
The job that Hansen would like would be
a job in which another worker does the
sorting, then gives Hansen the mail to
case, and then when Hansen has done that
carries the cases to the truck, and
Hansen then makes just curbside
deliveries. (Presumably, then, the
sorting would involve sorting only mail
for curbside delivery into Hansen’s mail
cases.) Two new jobs would have to be
manufactured, one for Hansen and one for
his helper. The Act does not require
that. All it requires, so far as bears on
this case (and setting aside the
possibility of reassignment to a lighter
job not here available), is that the
employer either clear away obstacles to
the disabled worker’s doing his job or
provide facilities (such as wheelchair
access) that enables the worker to do the
job. When thus accommodated the worker
must be able to do the job as configured
by the employer, not his own conception
of the job. See, e.g., Malabarba v.
Chicago Tribune Co., 149 F.3d 690, 698-
700 (7th Cir. 1998); Sieberns v. Wal-Mart
Stores, Inc., supra, 125 F.3d at 1022;
Cochrum v. Old Ben Coal Co., 102 F.3d
908, 913 (7th Cir. 1996); Fjellestad v.
Pizza Hut of America, Inc., supra, 188
F.3d at 950; Moritz v. Frontier Airlines,
Inc., 147 F.3d 784, 788 (8th Cir. 1998).
The design of the job is a prerogative of
management; the law "does not require a
lowering of standards." Fink v. New York
City Dept. of Personnel, 53 F.3d 565, 567
(2d Cir. 1995). Having credited
Slickenmeyer’s testimony that there were
no vacancies in jobs that Hansen could
perform, the district judge could not
have gone on to find that Hansen had
rebutted this testimony by inventing a
job that he could have performed for the
Postal Service. That is not proper
rebuttal. The judgment in favor of the
defendant must therefore be
Affirmed.