lack of fitness for unrestricted work as a mail handler.
The defendant's position has somewhat shifted over the lengthy course of this litigation, but can best be summarized as a contention that Trimble is not a "qualified" handicapped person within the meaning of the Rehabilitation Act. In rejecting the hearing officer's decision, Regional Postmaster General Edward Horgan, on behalf of defendant, disagreed with the hearing officer's conclusion that Trimble was qualified to perform the essential functions of a mail handler's position. In disagreeing, defendant first determined that Trimble was incapable of performing a mail handler's duties without modification or reasonable accommodation. Upon that premise, he concluded that Trimble was not qualified for the position he sought; hence was not a "qualified handicapped person" and was, therefore, not entitled to reasonable accommodation under 29 C.F.R. § 1613.704(a). Alternatively, defendant concluded that the Postal Service was correct in its refusal to provide "light" duty assignments because Trimble had been injured five times while performing such "light" duty assignments. (Exhibit B to Plaintiff's Complaint). Upon that conclusion, which finds no support in the record,
defendant further concluded that the Postal Service could not provide reasonable accommodation without endangering Trimble's safety.
While defendant still maintains that Trimble is not a "qualified handicapped person" within the meaning of the Rehabilitation Act and its implementing regulations, it has apparently dropped its contention that it cannot make reasonable accommodation for him without endangering his safety. Instead, defendant now argues that reasonable accommodation does not include reassignment, that Trimble's claim that he should have been allowed to perform "light" duties between December, 1979, and October, 1982, requires an interpretation of the collective bargaining agreement between the Postal Service and Trimble's union, and that Trimble's claim of a right to return to work requires an interpretation of the Federal Employee Compensation Act.
The latter two contentions are directed toward Trimble's implicit contention that since he was performing "light" duties under the collective bargaining agreement until December, 1979, and now performs "limited" duties under the OWCP rehabilitation program, he should have been allowed to continue to work, under the same conditions, during the time he was laid off and receiving compensation. The basis for plaintiff's contention is simply that these "light" duties and the "limited" duties also constitute reasonable accommodations to Trimble's recognized and admitted handicap. It is obvious from the record that, whether what Trimble is now doing is termed "light" or "limited" duties or a reasonable accommodation to his handicap, the work is actually a modification of the normal duties of a mail handler. Trimble is not seeking to assert either contract rights or rights under the Federal Employees Compensation Act because, simply spoken, his rights under the Rehabilitation Act can be vindicated by actions that are, in fact, identical to actions which might be taken under both the contract and the Compensation Act.
Defendant's arguments that Trimble is not "qualified" and that he is seeking reassignment as a reasonable accommodation to his handicap rest upon the assumption that the most essential function of a mail handler is the ability to lift at least seventy (70) pounds. It is evident that defendant insists that a person is not "qualified" unless he can perform all of the duties of the position in question without any type of modification thereof. While this argument may have merit in some contexts, we conclude that Trimble is asserting a claim for discrimination based upon "surmountable barriers". See, Prewitt v. U. S. Postal Service, 662 F.2d 292 (5th Cir. 1981). Thus, the Court is obliged to review the duties of a mail handler to determine whether Trimble can perform the essential functions of the position with "reasonable accommodation" to his physical limitations. If so, he is a "qualified handicapped person". 29 C.F.R. § 1613.702(f).
The mail handler position is described in Exhibit A to Defendant's Motion for Summary Judgment. Although the position does require a test of strength and stamina, and applicants with certain physical conditions must obtain a physician's approval before submitting to it, the description of the position and its qualifications does not specifically exclude those who may not be able to meet the usual strength and stamina requirements. Instead, persons with certain enumerated physical conditions are told that they will be given special instructions when notified to report for the strength test. Trimble, of course, would now fall into this category by reason of his knee injury.
It does not appear, and there is no evidence, that a new applicant with Trimble's present restrictions would automatically be precluded from a mail handler's position as long as he is "physically able to perform efficiently the duties of the position".
The duties and responsibilities of the mail handler's position as described in Exhibit A fall into six categories. Only a few enumerated duties within the categories, such as unloading mail received by trucks, delivering working mails for delivery to distribution areas, removing filled sacks from racks, picking up and loading filled sacks onto other trucks, appear to require the unrestricted ability to lift. Defendant has not demonstrated that those duties must be performed without equipment or that equipment to assist in those duties is not available. Therefore, the record does not establish that reasonable accommodation to the physical handicap suffered by Trimble is impractical, even if every mail handler must perform every function of the position.
Trimble's description of the duties he performed during the time he was given "light" duties under the collective bargaining agreement and the duties he is now performing under the rubric of "limited" duties, pursuant to the OWCP agreement, supply another obvious means of "reasonable accommodation". During his period of "light" duties in 1979, Trimble was limited to stripping mail from the letter sorting machine and was permitted to take a break every two hours in order to avoid prolonged standing. (H.T. at 16, 17). Presently, Trimble's duties are confined primarily to the "sacking" area where he separates defective sacks from good sacks, hangs empty sacks on racks and cleans empty equipment. (H.T. at 23). All of these duties fall within the restrictions imposed by Trimble's handicap but are also mail handler's duties according to defendant's Exhibit A.
Defendant's argument that Trimble is actually seeking a different position as a means of reasonable accommodation because his handicap constitutes an "insurmountable" barrier to his employment as a mail handler is without support in the record. Defendant never considered whether it could make a reasonable accommodation to Trimble's handicap which would enable him to fulfill the lifting functions of a mail handler's position. Moreover, there are many other essential functions of that position which Trimble can perform with little or no modification of the required duties.
Therefore, we conclude that the Rehabilitation Act provides a separate and distinct basis for his claim that he was unlawfully deprived of employment during the period December, 1979, to October, 1982. Trimble was then, and remains, a "qualified handicapped person" who can, with reasonable accommodation, perform the essential duties of the mail handler position with the Postal Service. Consequently, he is entitled to be compensated for loss of wages and benefits during the time he was unlawfully deprived of his position.
An appropriate order follows.
AND NOW, this 8th day of April, 1986, upon consideration of the parties' cross-motions for summary judgment and upon consideration of the entire record, IT IS ORDERED that defendant's motion for summary judgment is DENIED.
IT IS FURTHER ORDERED that plaintiff's motion for summary judgment is GRANTED and Judgment is entered in favor of the plaintiff and against the defendant in an amount to be calculated and determined by the parties and their counsel.