Randal Crocker v. MARVIN T. RUNYON , Postmaster-General

*The Honorable Joseph H. McKinley, Jr., United States District
Judge for the Western District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0098P (6th Cir.)
File Name: 00a0098p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
R ANDAL C ROCKER,
Plaintiff-Appellant,
v.
M ARVIN T. R UNYON ,
Postmaster-General,
Defendant-Appellee.
;>

1
No. 98-5700
Appeal from the United States District Court
for the Eastern District of Tennessee at Greeneville.
No. 96-00151—Dennis H. Inman, Magistrate Judge.
Argued: September 21, 1999
Decided and Filed: March 22, 2000
Before: BOGGS and DAUGHTREY, Circuit Judges; and
McKINLEY,* District Judge.

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2 Crocker v. Runyon No. 98-5700
_________________
COUNSEL
ARGUED: W. Douglas Collins, EVANS & BEIER,
Morristown, Tennessee, for Appellant. Helen C.T. Smith,
UNITED STATES ATTORNEY, Greeneville, Tennessee, for
Appellee. ON BRIEF: W. Douglas Collins, EVANS &
BEIER, Morristown, Tennessee, for Appellant. Helen C.T.
Smith, UNITED STATES ATTORNEY, Greeneville,
Tennessee, for Appellee.
_________________
OPINION
_________________
BOGGS, Circuit Judge. Randal Crocker charges that the
United States Postal Service refused to hire him due to his
disability, in violation of the Rehabilitation Act of 1973.
Crocker pled both disparate treatment and disparate impact
causes of action below, arguing that he was able to perform
the essential functions of the position he sought despite his
disability. Because Crocker failed to offer medical evidence
contemporaneous with his nonhiring to contradict the
evidence upon which the Postal Service relied, we hold that
he did not meet his burden of proof for either cause of action.
Accordingly, we affirm both the district court’s dismissal on
summary judgment of the disparate treatment claim and its
post-trial dismissal of the disparate impact claim.
I
Mr. Crocker suffers from Reflex Sympathetic Dystrophy,
a neurological disorder that manifests itself in him as
excruciating pain in his right thigh from the knee to the groin
if he puts too much weight on his right foot. Though
expressing reservations, Postmaster William Dyer hired
Crocker contingent on his passing a pre-employment physical.
Dr. Hubert Hill, a physician under contract to do physicals for
the Postal Service, examined Crocker on November 29, 1994.
No. 98-5700 Crocker v. Runyon 11
impact theory, judgment was properly granted in favor of
the [Postal Service] on this claim.
Gantt, 143 F.3d at 1048 (discussing the problems associated
with applying a disparate impact analysis to an age
discrimination claim). The number of other disabled
individuals hired by the Postal Service, including one hired
for the other position open when Crocker applied, indicates
no singling out of disabled applicants. The fact that a number
of disabled people passed the Postal Service’s pre-
employment physical for various jobs also suggests that it was
not used as a means to exclude disabled people from
employment in jobs they were capable of performing. The
evidence is that Crocker was not hired because he would not
be able to perform the essential elements of the job he sought,
which is a permissible reason under the Rehabilitation Act.
IV
Because Crocker could not make a prima facie showing that
he was “otherwise qualified” for the position for which he
was not hired, the judgment of the magistrate judge is
AFFIRMED.

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10 Crocker v. Runyon No. 98-5700
In any event, a disparate impact theory is unavailable under
the facts of this case. A disparate impact framework involves
burden shifting, and this court has held that burden shifting is
inappropriate in Rehabilitation Act cases such as this where
the employer relies in part on the employee’s disability in
finding the employee not otherwise qualified for the job.
“[W]hen an employer admits (or the evidence establishes)
that its decision was based upon the employee’s disability,
direct evidence of discrimination exists [and] . . . application
of the McDonnell Douglas burden-shifting framework is
inappropriate.” Monette v. Electronic Data Systems Corp., 90
F.3d 1173, 1180 (6th Cir. 1996). The disputed factual
question in this and similar cases is whether the employee can
perform the essential functions of the job. The burden to
prove this rests on the employee and “can be resolved through
traditional methods of proof.” Id. at 1183. “Unlike Title VII
cases, where race or sex will almost never be an acceptable
reason for an employment decision adverse to a qualified
employee, the Rehabilitation Act permits an employer to
make a decision because of a handicap if the handicap is not
the sole reason for the decision.” Burns, 91 F.3d at 841.
Thus, a disparate impact analysis was inappropriate to apply
to this case, which should have been approached under the
framework elaborated in Monette and Burns. See Mitchell v.
Crowell, 975 F. Supp. 1440, 1446 (N.D. Ala. 1997) (applying
Monette and Burns in a Rehabilitation Act case to grant
summary judgment to the employer where the employee did
not prove that she was otherwise qualified for the position
from which she was terminated).
Even if a disparate impact claim were allowed, to establish
a prima facie case:
Plaintiff would have to support [his] claim by offering
“statistical evidence of a kind and degree sufficient to
show that the practice in question has caused the
[nonhiring of employees] ... because of their membership
in a protected group.” Abbott v. Federal Forge, Inc., 912
F.2d 867, 872 (6th Cir. 1990). Given [his] failure to
present any evidence at all to support [his] adverse
No. 98-5700 Crocker v. Runyon 3
Dr. Hill determined that Crocker failed the physical because
he could not walk without crutches. Dr. John Dougherty, a
neurologist, performed a second pre-employment physical on
Crocker on December 28, 1994. He likewise determined that
Crocker’s inability to walk without the use of crutches made
him unable to perform the essential functions of the letter
carrier position.
Based on the opinions of Drs. Hill and Dougherty, Dyer
decided not to hire Crocker after he failed the physical. The
Postal Service notified him of his nonhiring in a letter date-
stamped July 7, 1995. As it must for any veteran who has a
compensable disability, the Postal Service processed
Crocker’s nonhiring through the Office of Personnel
Management, a federal agency separate from the Postal
Service. The letter notifying Crocker of his nonhiring also
advised him of his right to submit supporting material to the
OPM regarding his automatic appeal within 15 days of
receiving the letter. It noted that “[t]he best evidence to
provide is an objective medical finding from a board certified
specialist in the field that deals with your particular problem.”
The OPM sent Crocker a letter date-stamped August 18, 1995
informing him that his nonhiring had been upheld, but
indicating that he should forward to that office any
“additional specific medical documentation that contradicts
these findings” about his capacity to work.
Rather than seek a contrary medical opinion when he
received either of these letters, Crocker filed a discrimination
complaint with the Postal Service. By law, such a complaint
had to be brought within 45 days of the July 7 letter informing
Crocker of his nonhiring. Crocker first contacted the Postal
Service about filing a complaint on November 4, 1995, 120
days after being notified of his nonhiring. Because the
complaint was filed in an untimely fashion, the Postal Service
rejected it in a letter to Crocker date-stamped January 4, 1996.
He filed the discrimination complaint at issue in this appeal
on April 3, 1996. The medical examinations Crocker used at
trial to argue his fitness for the letter carrier position took
place in December 1996 and April 1997. Those examinations

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4 Crocker v. Runyon No. 98-5700
cannot prove that Crocker was physically capable of
performing the job at the time he was not hired. Even if he
would have passed the physicals later, as he now contends,
that does not mean he should have passed the earlier ones.
Two years separate the two sets of evaluations, and,
significantly, Crocker changed the treatment for his RSD in
the intervening period. Crocker complains that he did not
have much time to seek a medical opinion supporting his case
after receiving the January 4, 1996 letter. That argument
ignores the fact that Crocker was on notice as of July 7, 1995
that he needed contrary medical evidence to dispute his
nonhiring.
Crocker filed suit in federal district court on April 3, 1996,
alleging that the Postal Service failed to hire him because he
was disabled. The parties consented below to the jurisdiction
of a United States Magistrate Judge with an appeal lying
directly to this court. See 28 U.S.C. § 636(c). The Postal
Service moved for summary judgment on the disparate
treatment claim and the magistrate judge granted the motion,
reasoning that Crocker was not otherwise qualified for the
position since he could not perform its essential functions and
that he had shown no proof of animus on the part of the Postal
Service. However, the magistrate judge discerned a separate
disparate impact claim in the complaint on which he
conducted a bench trial. Under this theory, the criteria used
by the Postal Service to assess physical abilities
disproportionately impact otherwise qualified persons with
RSD. After trial, the court dismissed the latter claim as well,
determining again that Crocker was not otherwise qualified
for the letter carrier position. We review a magistrate judge’s
decision to grant summary judgment de novo. In cases
referred to a magistrate judge by a district judge for decision
with consent of the parties under 28 U.S.C. § 636(c), we
review the magistrate judge’s findings of fact for clear error,
as we would the findings of a district judge. See Sherri A.D.
v. W.N. Kirby, 975 F.2d 193, 207 n.25 (5th Cir. 1992);
Proctor v. North Carolina, 830 F.2d 514, 517 (4th Cir.1987)
(“Ordinarily, then, in an appeal from a decision rendered by
a magistrate in a § 636(c) proceeding, the magistrate’s
No. 98-5700 Crocker v. Runyon 9
sub nom. Alexander v. Choate, 469 U.S. 287 (1985). This
court has recognized in an unpublished opinion that the Fifth
and Eleventh Circuits allow disparate impact causes of action
for discrimination under the Rehabilitation Act. See Cook v.
Hairston, No. 90-3437, 1991 WL 253302, at *6 (6th Cir.
Nov. 26, 1991), citing Georgia State Conf. of Branches of
NAACP v. Georgia, 775 F.2d 1403 (11th Cir. 1985), and
Prewitt v. United States Postal Serv., 662 F.2d 292 (5th Cir.
1981). The Choate court assumed without deciding that §504
prevented some kinds of disparate impact on the handicapped,
but then found no violation in the program at issue in that
case. See Choate, 469 U.S. at 299 (“While we reject the
boundless notion that all disparate-impact showings constitute
prima facie cases under §504, we assume without deciding
that §504 reaches at least some conduct that has an
unjustifiable disparate impact upon the handicapped”). Thus
it remains “an open question whether section 504 forbids
. . . ‘conduct that has an unjustifiable disparate impact’ on the
disabled.” Sandison v. Michigan High School Athletic Ass’n,
64 F.3d 1026, 1032 (6th Cir. 1995).
There is good reason to believe that a disparate impact
theory is not available under the Rehabilitation Act.
Although Title VII contains a provision allowing an overtly
discriminatory hiring criterion when it is a bona fide
occupational qualification, that provision has proven much
less expansive in practice than the Rehabilitation Act’s safe
harbor provision for nonhiring. Compare 42 U.S.C. § 2000e-
2(e), with 29 U.S.C. § 794. The Rehabilitation Act’s
“otherwise qualified” language specifically allows for
disabled people to be disparately affected by legitimate job
criteria, so a wholesale importing of Title VII’s disparate
impact cause of action into the Rehabilitation Act context
might be inappropriate. Cf. Mullin v. Raytheon Co., 164 F.3d
696, 700 (1st Cir. 1999) (noting the difficulties inherent in
transporting disparate impact analysis from Title VII into
cases brought under the Age Discrimination in Employment
Act following the Supreme Court’s decision in Hazen Paper
Co. v. Biggins, 507 U.S. 604 (1993)).

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8 Crocker v. Runyon No. 98-5700
§ 1630.2(r). Carrying heavy mail boxes and pushing a heavy
hamper down a loading ramp every day while hopping on one
leg, as Crocker proposes, would not be safe.
This case is not like Holiday v. City of Chattanooga, a
recent nonhiring case brought under the Americans with
Disabilities Act. There the applicant’s status as “otherwise
qualified” was also in dispute. See Holiday v. City of
Chattanooga, No. 98-5619, 2000 FED App. 0087P, (6th Cir.
March 10, 2000). In that case, the physician failed to
investigate whether Holiday’s HIV caused him any problems
that would affect his performance on the job, and his medical
opinion contradicted contemporaneous evidence of Holiday’s
ability to serve as a police officer despite having
asymptomatic HIV. See id., slip op. at 9-10. There was also
evidence of anti-HIV stereotyping by the hiring authority in
the case, creating a genuine issue of material fact as to the
employer’s “good-faith reliance” on the medical opinion
received. See id. at 12-13. None of those elements is present
here. The medical opinions of the two original examining
physicians determined that Crocker could not do the kinds of
physical activities required by the job, and there was no
evidence of any anti-RSD stereotype at work. The Postal
Service here relied in good faith on the two medical opinions
it received, and Crocker did not offer any contemporaneous
medical evidence to contradict those opinions. Crocker
therefore did not create a genuine issue of material fact, and
the magistrate judge’s granting of summary judgment to the
Postal Service on the disparate treatment claim was altogether
appropriate.
III
Crocker’s appeal of his disparate impact claim fails for
much the same reasons. Initially, however, it should be noted
that this circuit has not explicitly recognized the availability
of a disparate impact cause of action under the Rehabilitation
Act. One earlier effort to do so on a broad basis in Jennings
v. Alexander was rebuffed by the Supreme Court. See
Jennings v. Alexander, 715 F.2d 1036 (6th Cir. 1983), rev’d
No. 98-5700 Crocker v. Runyon 5
1If, as Crocker attests, his crutches truly do not “substantially limit
his major life activities,” then the magistrate judge erred in determining
that Crocker is disabled. See Sutton v. United Air Lines, Inc., 119 S. Ct.
2139 (1999) (holding that corrective measures must be taken into account
in judging whether an individual is disabled); Murphy v. United Parcel
Serv., Inc., 119 S. Ct. 2133 (1999) (holding that an employee did not have
a disability since the medication he took prevented his major life activities
from being substantially limited); Albertson v. Kirkinburg, 119 S. Ct.
2162 (1999) (holding that the existence of a disability must be determined
from the actual effect of the impairment on the life of the given
individual); See also Gilday v. Mecosta County, 124 F.3d 760, 767-68
(6th Cir. 1997) (presaging the holdings in these cases). Because we can
findings of fact are reviewed only to the extent of determining
whether such findings are clearly erroneous”); See generally
1 Steven A. Childress and Martha S. Davis, FEDERAL
S TANDARDS OF R EVIEW § 2.03(D) (3d ed. 1999). “A finding
is clearly erroneous when ‘although there is evidence to
support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed.’” United States v. Russell, 156 F.3d 687, 690 (6th
Cir. 1998), citing United States v. United States Gypsum Co.,
333 U.S. 364, 365 (1948).
II
To make out a claim under the Rehabilitation Act, a
plaintiff in a covered position must establish that he is: 1) an
individual with a disability under the Act, 2) otherwise
qualified for the job with or without a reasonable
accommodation, and 3) being discriminated against solely
because of his handicap. See Burns v. City of Columbus,
Dep’t of Pub. Safety, 91 F.3d 836, 841 (6th Cir. 1996), citing
Doherty v. Southern College of Optometry, 862 F.2d 570 (6th
Cir. 1985). It is not enough for the plaintiff to show that his
handicap contributed to the nonhiring, because the
Rehabilitation Act “does not forbid decisions based on the
actual attributes of the handicap.” Pesterfield v. Tennessee
Valley Auth., 941 F.2d 437, 443 (6th Cir. 1991), quoting
Anderson v. University of Wisconsin, 841 F.2d 737 (7th Cir.
1988). Assuming that the other elements are met,1 in a case

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6 Crocker v. Runyon No. 98-5700
affirm the district court’s finding that Crocker was not otherwise qualified
for the job, we need not reach this issue.
such as this where the defendant admittedly “made the
decision because of the handicap . . . the sole factual issue left
for resolution is an objective one — whether the plaintiff is
qualified for the position or program despite the handicap,
with or without reasonable accommodation.” Burns, 91 F.3d
at 842. The second and third elements of the claim collapse
into one question, because if a plaintiff can show that he is
otherwise qualified, it will be virtually impossible in these
circumstances for the employer to show that the nonhiring
was not solely due to the handicap.
Hence, for Crocker to show that he was otherwise qualified
for the position, he has to show that he could have met the
physical demands of the job. The Postal Service relied on the
opinions of two private physicians, including a neurological
specialist, in reaching its decision not to hire Crocker.
Crocker argues that the subsequent testimony of two other
evaluators who performed more elaborate examinations
renders reliance on the earlier medical opinions unreasonable.
Even if the earlier medical opinions were demonstrably
flawed, the Postal Service’s reasonable reliance upon them is
not discriminatory. See Severino v. North Myers Fire Control
Dist., 935 F.2d 1179, 1182 (11th Cir. 1991). So long as the
Postal Service relied on those opinions in good faith in
determining that Crocker could not do the job, the failure to
hire him was justified. See Pesterfield, 941 F.2d at 443.
Moreover, Crocker offered no proof that he was physically
capable of performing the job at the time he was not hired.
That he was aware of the option to obtain another medical
opinion when he was refused employment and chose not to
may mean he was not confident then about the outcome of
any such additional evaluation.
Crocker makes much of the fact that the job descriptions
sent to Drs. Hill and Dougherty were incomplete, and that
Human Resources Manager Charles Brantley sent Dr. Hill a
No. 98-5700 Crocker v. Runyon 7
letter prejudging Crocker’s fitness for the job. Taken
together, Crocker argues, these conditions preclude a claim of
good-faith reliance by the Postal Service on the earlier
medical opinions. As the lower court found, there is no
evidence that Crocker was not hired for any reason other than
failing the physicals. Indeed, Brantley’s letter notes that
Crocker “was using crutches and dragging his feet the last
time I saw him.” If anything, that serves as further
contemporaneous evidence that Crocker had not adapted as
well to his crutches at that time as he has now. The
incomplete job descriptions did not affect the medical finding
that Crocker could not walk without crutches relied upon by
the Postal Service.
Crocker also complains that the Postal Service did not offer
him any accommodation, but since Crocker did not suggest
until trial that he needed an accommodation, the Postal
Service had no legal duty to provide him one. See
Kaltenberger v. Ohio College of Podiatric Med., 162 F.3d
432, 437 (6th Cir. 1998); See also Gantt v. Wilson Sporting
Goods, 143 F.3d 1042, 1046 (6th Cir. 1998). When the lack
of an accommodation became an issue at trial, the Postal
Service offered Crocker an accommodation in the form of a
more sedentary job, which he refused. Crocker is not an
otherwise qualified individual once he rejects an offer of
reasonable accommodation. See Keever v. City of
Middletown, 145 F.3d 809, 811-812 (6th Cir. 1998).
Moreover, the failed physical indicated that no reasonable
accommodation was possible for the position Crocker sought.
The magistrate judge’s finding that there “does not appear to
be any reasonable way in which plaintiff’s disability could be
accommodated” is not clearly erroneous. In particular, the
trial court found that Crocker, at the time he applied for the
job, could not perform his duties without endangering the
safety of himself and others. Under 42 U.S.C. § 12113(b), a
finding that Crocker poses a direct safety threat to himself or
others renders him not otherwise qualified. A direct threat
entails “a significant risk of substantial harm to the health or
safety of the individual or others that cannot be eliminated or
reduced by reasonable accommodation.” 29 C.F.R.

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