Morris v. Henderson ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROGER D. MORRIS, SR.,
Plaintiff-Appellant,
v.
No. 99-1051
WILLIAM J. HENDERSON, Postmaster
General, United States Postal
Service,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Max O. Cogburn, Magistrate Judge.
(CA-97-328-4-C)
Submitted: June 29, 1999
Decided: September 23, 1999
Before ERVIN,* NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
David R. Payne, DAVID R. PAYNE, P.A., Asheville, North Carolina,
for Appellant. Mark T. Calloway, United States Attorney, Deborah A.
_________________________________________________________________
*Judge Ervin participated in this case but died prior to the time the
decision was filed. The decision is filed by a quorum of the panel pursu-
ant to 28 U.S.C. § 46(d).
Ausburn, Assistant United States Attorney, Asheville, North Carolina;
R. Andrew German, Managing Counsel, Lori J. Dym, UNITED
STATES POSTAL SERVICE, Washington, D.C., for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Roger Morris appeals the district court order awarding summary
judgment against him on his claims under the Rehabilitation Act of
1973, 29 U.S.C.A. §§ 701-797b (West 1985 & Supp. 1996). We
affirm.
This court reviews grants of summary judgment de novo. See
Evans v. Technologies App. & Serv. Co., 80 F.3d 954, 958 (4th Cir.
1996). Summary judgment is appropriate when there is no genuine
issue of material fact and the movant is entitled to judgment as a mat-
ter of law. See Hughes v. Bedsole, 48 F.3d 1376, 1381 (4th Cir. 1995).
Morris, a former employee of the United States Postal Service
("Postal Service"), claims that the Postal Service violated his rights
under the Rehabilitation Act by denying his request to transfer from
Tampa, Florida, to Asheville, North Carolina. The record shows that
the Postal Service creates "modified carrier" positions as an accom-
modation to employees who are injured on-the-job and are no longer
capable of performing their duties as a mail carrier. The positions are
created on a case-by-case basis, generally at the facility where the
injured employee is currently working. Occasionally, if the facility
where the employee works is too small to sustain a modified carrier
employee, the employee may be required to accept employment at a
larger facility.
The Rehabilitation Act of 1973 provides that "[n]o otherwise quali-
fied individual with disability in the United States. . . shall, solely by
2
reason of her or his disability, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination under any
program or activity . . . conducted by any Executive agency or the
United States Postal Service." 29 U.S.C. § 794(a) (1994). In general,
the Act requires employers to make a "`reasonable good-faith effort
to adjust its legitimate needs to a handicapping condition' that
requires a reasonable accommodation in order for the employee to
perform the essential functions of the position." Gaines v. Runyon,
107 F.3d 1171, 1178 (6th Cir. 1997). To that end, federal regulations
require that an "agency shall make reasonable accommodation to the
known physical or mental limitations of an applicant or employee
who is a qualified individual with handicaps unless the agency can
demonstrate that the accommodation would impose an undue hard-
ship on the operation of its program." 29 C.F.R.§ 1613.203(c)(1)
(1997). The Act, however, does not mandate preferential treatment of
an employee by virtue of his handicap and does not impose a duty to
provide every accommodation requested. See Gaines, 107 F.3d at
1178. Thus, the Act "has never been interpreted to require an
employer to create alternative employment opportunities for a handi-
capped employee." Fedro v. Reno, 21 F.3d 1391, 1395 (7th Cir.
1994).
Accordingly, we find that the Rehabilitation Act did not require the
Postal Service to create a modified carrier position for Morris in the
Asheville area. Morris may be correct in his assertion that the Postal
Service's current practice of creating modified carrier positions for
employees injured on-the-job in the local area where that employee
works makes it highly unlikely that a modified mail carrier will be
able to obtain a transfer. Unfortunately for Morris, however, this prac-
tice satisfies the Postal Service's obligations under the Rehabilitation
Act.
We therefore affirm the district court's order awarding the Postal
Service summary judgment on Morris' claims. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
3