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June 11, 1987

Robert J. Davis, Plaintiff
United States Postal Service and Robert Tisch, Postmaster General of the United States, Defendants

The opinion of the court was delivered by: NEALON

 Chief Judge William J. Nealon

 Plaintiff filed this Complaint on November 17, 1983 alleging violations of the Rehabilitation Act of 1973 §§ 501 and 504, 29 U.S.C. §§ 791 and 794. Plaintiff voluntary dismissed Counts V, VI, VII and VIII of the Complaint by Stipulation dated October 15, 1986. *fn1" On that same date a Stipulation of Facts was submitted by the parties. See Document 47 of the Record. In addition, plaintiff filed a Statement of Undisputed Facts in a Preliminary Pretrial Memorandum filed on May 30, 1985. See Document 33 of the Record. Presently pending before the court are both parties' Motions for Summary Judgment. It is agreed by the parties that the case should be decided on the motions and that no further proceedings on the merits are necessary. All briefs having been filed, the motions are ripe for disposition. For the reasons set forth below, the court will deny plaintiff's Motion for Summary Judgment as it pertains to the claim of job reassignment; grant plaintiff's motion as it relates to the claim of disparate pay; grant defendants' Motion for Summary Judgment concerning job reassignment and deny defendants' motion relating to disparate pay.


 Plaintiff, Robert J. Davis (Davis), claims that Defendant's, United States Postal Service (Postal Service), policy of recognizing three (3) entry level positions of employment requiring stamina, exertion and/or dexterity, bars the hiring, placement and advancement of otherwise qualified physically handicapped persons for positions that exist in the Postal Service. Document 1 of the Record -- Count I. According to plaintiff, the Postal Service placed plaintiff in a hazardous and ill-suited position and then refused to modify the employment by eliminating the hazardous component or transferring plaintiff to appropriate employment. Id. -- Count II. In Counts III and IV of the Complaint, plaintiff maintains that he improperly was paid one-half (1/2) the wages paid to non-handicapped persons hired the same day, performing the same work and to whom identical performance standards were applied. Id. -- Counts III and IV. These actions are said to violate Sections 501 and 504 of the Rehabilitation Act, 29 U.S.C. §§ 791 and 794 and the Due Process and Equal Protection Clause of the Fifth Amendment. *fn2"

 By Stipulation, the parties agreed to the vast majority of facts necessary to decide the instant matter. As stated, it is conceded that the case can be decided on the basis of the factual background presented. See Letter to the Court dated January 19, 1987. In light of the stipulations filed by the parties and the briefs submitted, the following factual background emerges.

 Davis suffers the effects of moderate to severe hemophilia, with clotting factor VIII deficiency. Davis has chronic arthritis associated with chronic hemophilia. The Postal Service is a quasi-independent agency of the United States Government employing over 700,000 people. Of these 700,000 people, approximately 617,000 are in entry-level positions such as clerk, carrier, mail handler, vehicle operators, rural carriers and various maintenance positions. The majority of postal employees enter the work force based on open competitive examinations.

 The severely handicapped program of the Postal Service is developed around the ability to hire casual employees within the supplemental work category who are permitted to have two (2) ninety (90) day appointments. The Postal Service, given the restrictions of the contractual definition of supplemental work force in the Agreement with the Unions, designed a handicapped program using noncompetitive hiring procedures and providing what is called a work sample, in contrast to an open competitive examination. The Pennsylvania Bureau of Vocational Rehabilitation or the Veterans Administration are used to refer individuals to the Postal Service who the state believes can perform the duties of the job that is available and, in fact, certifies that this individual should be considered for appointment. This so called special recruitment program provides that an individual perform service for a period not to exceed two (2) ninety (90) day appointments before a decision is rendered to convert to career status and become a part of the regular work force. These appointments serve as a work sample to determine the applicant's ability to perform the essential functions of the job, in contrast to an applicant who is screened for employment consideration by taking a competitive examination and waiting for hiring consideration based on his test score and register standing.

 Davis received a B.S. degree from the University of Scranton in Political Science with a minor in business administration with emphasis in accounting and financial planning/policy analysis in 1979. In 1983, Davis was awarded a master's degree from Marywood College in Public Administration. Davis also was trained in an Emergency Medical Technician Program by the Pennsylvania Department of Health in 1976 and 1979. He completed a similar program offered by the New York State of Health in 1979. Davis worked as a volunteer from April 1976 until January 1982 as treasurer/auditor of the Throop Community Ambulance Association. In the summers of 1976 and 1977, he was employed as an emergency medical technical dispatcher for local government units and in the summer of 1978, he worked with a paramedic training squad in a training position providing emergency health care. Similarly, from January to June 1979, he was employed as a health care specialist, providing emergency health care for Lackawanna County. Finally, from July to October 1979 he served as a health planning analyst.

 In October 1979, Davis was selected from a postal service register and hired by defendant at the Scranton Post Office as a "casual employee" to be a manual clerk. It appears that plaintiff was not hired under the plan to assist handicapped applicants. He began service with the Post Office on November 17, 1979 and voluntarily resigned on November 30, 1979 to accept other employment as a restaurant manager for P.S.I. Systems, Inc., from November 1979 until December 1980.

 During the period from September 1980 to June 1982 Davis sought employment again with the Postal Service. Despite these efforts, Davis remained unemployed from December 1980 until July 1982, except for his paid internship with the Clerk of Judicial Records Office in Lackawanna County from January to July 1982.

 In accordance with the Postal Reorganization Act (PRA), wages and salaries for bargaining unit employees are subject to the terms and conditions of a collective bargaining agreement as well as employee classifications. Article VII Section 1 of the Agreement between the Postal Service and the American Postal Workers Union, AFL-CIO and National Association of Letter Carriers, AFL-CIO (Agreement) provides:



 Section 1. Definition and Use

A. Regular Work Force. The regular work force shall be comprised of two categories of employees which are as follows:
2. Part-Time. Employees in this category shall be hired pursuant to such procedures as the Employer may establish and shall be assigned to regular schedules of less than forty (40) hours in a service week, or shall be available to work flexible hours as assigned by the Employer during the course of a service week.
B. Supplemental Work Force.
1. The supplemental work force shall be comprised of casual employees. Casual employees are those who may be utilized as a limited term supplemental work force, but may not be employed in lieu of full or part-time employees.
2. During the course of a service week, the Employer will make every effort to insure that qualified and available part-time flexible employees are utilized at the straight-time rate prior to assigning such work to casuals.
3. The number of casuals who may be employed in any period, other than December, shall not exceed 5 % of the total number of employees covered by this Agreement.
4. Casuals are limited to two (2) ninety (90) day terms of casual employment in a calendar year. In addition to such employment, casuals may be reemployed during the Christmas period for not more than twenty-one (21) days.

 In 1981, Davis took the Postal Service Examination and was placed on all open registers at the Scranton Post Office with the following scores and positions:

Mail Handler -- Score 79.2 -- 483 on Register.
Clerk-Carrier -- Score 78.8 -- 166 on Register.
MPLSM Clerk -- Score 81.7 -- 501 on Register.

 Clerk Carriers must be physically able to perform efficiently the duties of the position which requires prolonged standing, walking and reaching and may also involve the handling of heavy sacks of mail. Similarly, mail handlers are required to be able to lift and shoulder seventy (70) pounds. By letter dated September 16, 1981, the Postal Service advised Davis that the position of Multiple Letter Sorting Machine (MPLSM) operator, "is one which may be hazardous to you due to your handicap of having hemophilia."

 In addition to being on the Scranton Post Office register, Davis was certified by the Pennsylvania Bureau of Vocational Rehabilitation as a "severely handicapped" individual. This certification allowed Davis to be eligible for hiring under the Postal Service Severely Handicapped Program. The Bureau of Vocational Rehabilitation certified Davis to be a Mail Handler, Distribution Clerk, Clerk Carrier and MPLSM operator by certification dated October 15, 1980.

 On June 7, 1982, the Postal Service sent Davis a Call In Notice Form 2550, to be considered for employment as an MPLSM clerk -- part-time flexible. *fn3" Davis reported to the Scranton Post Office for a preemployment orientation/training test on June 17, 1982. Davis took 18 hours off the clock uncompensated training on the MPLSM and was qualified on or about July 6, 1982. All prospective MPLSM operators ...

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