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McLean v. Runyon, 222 F.3d 1150 (9th Cir. August 25, 2000)

Keywords: Rehabilitation Act (reasonable accommodation, transfer to vacant position; damages, collateral source rule)

Introduction: Rodney McLean sued the Postal Service under the Rehabilitation Act for denial of a reasonable accommodation. A jury found in favor of McLean. The district court granted judgment as a matter of law for the Postal Service. The Ninth Circuit reverses.

Facts: McLean was a Mark-Up Clerk, which is classified as a "Postal Service" craft, level 4 (PS-4) position. His salary was $34,473.

Although McLean identified several vacant positions, the one the Court focuses on is an "executive appointment scheduled" (EAS) level 11 position. The salary range was from $29,630 to $36,390. The position was in Salem, Oregon -- which was within commuting distance of McLean's current location.

A personnel specialist for the Postal Service testified that McLean's PS-4 position is the equivalent of an EAS level 10 position. In other words, the transfer McLean sought would have been a promotion and the Postal Service is not required to give an employee a promotion as a reasonable accommodation.

Law:

1.  Duty to transfer

A.  Transfer to a vacant position can be a reasonable accommodation under the Rehabilitation Act where the employee can no longer perform the essential functions of his or her job even with reasonable accommodation.

B.  However, the vacant position must be located in the same commuting area. The position must also be at the "same [or lower] grade or level."

C.  The Court holds that the same grade or level means the same level of pay unless there is some objective difference between the position held and the position desired -- such as status or benefits.

D.  This decision is consistent with the Third Circuit's decision in: Shiring v. Runyon, 90 F.3d 827 (3d Cir. 1996).

E.  In this case, the EAS level 11 position was at the same pay level and there was no evidence submitted of objective differences. Therefore, the Court reverses the district court's grant of the motion for judgment as a matter of law.

2.  Offset of front and back pay damages by amount received in FECA workers' compensation benefits

A.  McLean argues that the district court abused its discretion in making this offset because it violates the collateral source rule.

B.  But these workers' compensation benefits are ultimately paid entirely by the Postal Service and thus are not derived from a collateral source. Therefore, the district court did not abuse its discretion.

C.  Also, see footnote 7 of the opinion for a discussion of the application of the collateral source rule to Title VII in the Ninth Circuit and in other Circuits.

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