**BEFORE THE SYMPOSIUM ON EMPLOYEE AND LABOR RELATIONS**

**RECENT DEVELOPMENTS IN DISABILITY DISCRIMINATION CASE LAW**[^1]

**Prepared By Mark Maxin**

**Counsel for Employment Law and**

**Labor Relations, U.S. Department of Labor**

**June 12, 2000**

**A. Individual with a Disability**

**Court Cases**

***Sutton v. United Air Lines***, 1999 WL 40788 (U.S.), petitioners with
uncorrected visual acuity of 20/200 or worse, but who could see
perfectly well with corrective measures (glasses)**,** were not
individuals with a disability within the meaning of the Americans with
Disability Act. The petitioner\'s were not subjected to disability
discrimination when their applications for commercial pilots were
rejected when they failed to meet respondent\'s minimum requirement of
uncorrected visual acuity of 20/100 or better. Three separate ADA
provisions, read in concert, lead to the conclusion that the
determination of whether an individual is disabled should be made after
considering whether measures, such as eyeglasses or contacts mitigate
the individual\'s impairment, and that the approach adopted by the
EEOC\'s guidelines is an impermissible interpretation of the ADA. First,
because the phrase \"substantially limits\" appears in Subsection (A) in
the present indicative verb form, the language is properly read as
requiring that a person presently\--not potentially or hypothetically\--
substantially limited in order to demonstrate a disability. A disability
exists only where an impairment substantially limits a major life
activity, not where it might, could or would be substantially limiting
if corrective measures were not taken. Second, because subsection (A)
requires that disabilities be evaluated \"with respect to an
individual\" and be determined based on whether an impairment
substantially limits the individual\'s major life activities, the
question whether a person has a disability under the ADA is an
individualized inquiry. The EEOC\'s guidelines directive that persons be
judged in their uncorrected or unmitigated state runs directly counter
to this mandated individualized inquiry. The former would create a
system in which persons would often be treated as members of a group
having similar impairments, rather than as individuals. It could also
lead to the anomalous result that courts and employers could not
consider the any negative side effects suffered by the individual
resulting from the use of mitigating measures, even when those side
effects are very severe. Finally, and critically, the Congressional
finding that 43 million Americans have one or more physical or mental
disabilities, see section 1201(a)(1), requires the conclusion that
congress did not intend to bring under the ADA\'s protection all those
whose uncorrected conditions amount to disabilities. That group would
include more than 160 million people. Because petitioner\'s allege that
with corrective measures their vision is 20/20 or better, they are not
actually disabled under subsection (A).

***Albertson\'s, Inc. v. Kirkingburg***, 1999 WL 407456 (US) applicant
for a truck driver\'s job, who was examined to see if he met the
Department of Transportation\'s basic vision standards for commercial
truck drivers, which required corrected distant visual acuity of at
least 20/40 in each eye was not an individual with a disability under
the ADA , despite his amblyopia which left him with uncorrectable vision
of 20/200 in one eye\--in effect monocular vision, since he failed to
show that the impairment substantially limited his major life activity
of seeing. First, petitioner\'s impairment did not constitute a
\"significant restriction\" in his ability to see. The court below found
only that there was a \"difference\" between the manner in which
petitioner sees and the manner in which most people see. Second, the
court below improperly appeared to suggest that it need not account of a
monocular individual\'s ability to compensate for the impairment, eve
though it acknowledged that petitioner\'s brain had subconsciously done
just that. Mitigating measures, however, must be taken into account in
judging whether an individual has a disability, whether the measures are
artificial aides like medications and devices, or with the body\'s own
systems. Some impairments may invariably cause a substantial limitation
of a major life activity, but monocularity is not one of them, for that
category embraces a group whose members vary by, e.g., the degree of
visual acuity in the weaker eye, the extent of their compensating
adjustments, and the ultimate scope of the restrictions on their visual
abilities.

***Murphy v. United Parcel Service***, 1999 WL 407472 (US),
petitioner\'s hypertension was not a disability because his doctor
testified that when medicated petitioner functions normally in everyday
activities. He was not regarded as disabled because the employer did not
terminate him on an unsubstantiated fear that he would suffer a heart
attack or stroke, but because his blood pressure exceeded the Department
of Transportation\'s requirements for commercial vehicle drivers.

***Cleveland v. Policy Management Systems Corporation***, 119 S.Ct. 1597
(1999), claims for Social Security Disability Insurance (SSDI) benefits
and for damages under the ADA do not inherently conflict to the point
where courts should apply a special negative presumption that receipt of
SSDI benefits estops the recipient from pursuing an ADA claim. SSDI does
not take into account the possibility of \"reasonable accommodation\" in
assessing claims.

***Bragdon v. Abbott***, 118 S.Ct. 2196 (1998) patient infected with the
human immunodeficiency virus (HIV) brought an action under the ADA
against a dentist who refused to treat the patient in his office. The
Supreme Court, in a 5-4 decision held that HIV infection is a disability
under the ADA, even when the infection has not yet progressed to the
so-called symptomatic phase, as a physical impairment which
substantially limits the major life activity of reproduction. The Court
rejected the petitioners argument that Congress only intended the ADA to
cover those aspects of a person\'s life which have a public, economic,
or daily character. Rather, the test is whether the impairment
substantially affects a \"major\" life activity. The Court found that
reproduction could not be regarded as any less important than the major
life activities of working and learning than are listed in the
regulations. The Supreme Court remanded the case, however, for a
determination of whether treatment of the disabled plaintiff created a
\"direct threat\" to the health and safety of others (see Direct Threat
section of this outline for more detail concerning this aspect of the
opinion).

***Criado v. IBM*** Case Nos. 97- 1341 and 1342 (1st Cir. June 5, 1998)
employee suffering from depression was an individual with a disability
where stress and anxiety was making it difficult to perform her job and
her sleep deprivation was affecting her timeliness and ability to report
to work. Thus her depression adversely affected her ability to work,
sleep and relate to others. That she had been treated successfully for
her depression for 7 years and is expected to be treated successfully in
the future does not affect her status as an individual with a
disability. ***But see Soileau* v. *Guilford of Maine, ***105 F.3d 12,
15 (1st Cir. 1997) (finding episodic depression did not substantially
limit any major life activities).

***Sherrod v. American Airlines***, Case No. 97-10011 (5th Cir, January
28, 1998) flight attendant with neck injury who was medically
disqualified from her position because she could only lift 45 pounds
occasionally and 25 pounds frequently was not a disabled employee. She
was only precluded from working in a particular job, not a class of jobs
and did not have a record of a disability and was not regarded as
disabled.

***Burgard v. Super Value Holdings Inc**.,* 1997 U.S. App. Lexis 12228
(10th Cir. 1997), warehouse worker with back impairment who was
restricted from lifting 25 pounds frequently and 50 pounds occasionally,
was not an individual with a disability, because such lifting
restrictions did not substantially limit the employee=s life activities.
His back impairment prevented him from only performing a narrow range of
warehouse jobs, not a class of jobs or broad range of jobs in various
classes.

***Sieman v. AT&T***, 1997 U.S. App. Lexis 11785 (10th Cir. 1997),
employee who suffered from severe depression and anxiety was not
disabled because the impact of his mental impairment prohibited him only
from working under the immediate chain of command of his supervisors, in
which he had a stress provoking work relationship. His impairment did
not preclude him from working in a broad range of jobs, particularly
when he alleged could perform the same job outside of this chain of
command.

***Foreman v. Babcock and Wilcox Co.***, 1997 U.S. App. Lexis 11977 (5th
Cir. 1997), employee with heart condition was not Asubstantially
limited@ in a major life activity and therefore not disabled because his
impairment only adversely impacted his ability to perform his job of
Aexpeditor@, responsible for delivering materials and supplies necessary
to expedite the manufacturing process and not a class of jobs. Nor was
the employee regarded by the employer as disabled since he was not
perceived by the employer to be generally foreclosed from the type of
employment involved.

***McKay v. Toyota Motor Manufacturing***, 110 F.3d 369 (1997),
inability to lift more than 10 pounds was not a disabling condition
since it only prevented her from performing a narrow range of
manufacturing jobs and would not significantly restrict her ability to
perform a broad range of jobs in various classes.

***Lowe v. Angelo=s Italian Foods, Inc.***, 87 F.3d 1170, 1174 (1996),
lifting is a major life activity

and that inability to lift more than 15 pounds creates genuine issues of
material fact as to whether the impairment substantially limits the
ability to lift.

***Weiler v Household Finance Corp***., 101 F.3d 519 (7th Cir. 1996),
plaintiff did not prove that her anxiety and depression substantially
limited her in any major life activities enumerated in the regulations.
Further, plaintiff=s inability to get along with her particular
supervisor is not a substantial limitation of the major life activity of
working because it only precludes the plaintiff in performing in a
single job and not a broad range or class of jobs.

***Kelly v. Drexel University***, 94 F.3d 102 (3rd Cir. 1996), plaintiff
who suffered from severe post-traumatic degenerative joint disease of
the right hip, could not walk more than a mile, could not jog and had to
pace himself slowly was not disabled because he was not substantially
limited in his ability to walk.

***Pritchard v. Southern Company Services, Inc.***, 92 F.3d. 1130 (11th
Cir. 1996), the employee was not substantially limited in the major life
activity of working where she could work in any position not involving
nuclear work. This was not a limitation on her ability to work in a
broad range of jobs. However, the court allowed the issue of whether the
depression and dysautonomia substantially limited her in a major life
activity to go to the jury where she had symptoms such as profound
fatigue, difficulty sleeping and communicating, difficulty concentrating
and experiencing suicidal thoughts.

**MSPB Cases**

***Shestak v. Social Security Administration***, 1999 WL 1029155
(November 1, 1999) the MSPB upheld the decision of an arbitrator to
sustain the demotion of a GS-11 Claims Representative (CR) position to a
GS-8 Contract Representative position with pay retention based upon her
inability to perform all of the essential functions of her job because
of her medical condition (post traumatic stress disorder and
depression). The arbitrator found that she was unable, because of her
medical condition, to perform an essential function of the CR position
namely, face to face interviews. The arbitrator found that the employee
was not disabled because, when taking into consideration the medications
she was taking, the impairment did not substantially limit a major life
activity. The MSPB found this analysis consistent with ***Sutton v.
United Airlines***, 119 S.Ct. 2139, 2143-2146 (1999) and ***Murphy v.
United Parcel Service Inc.,*** which provide that measures that mitigate
the affects of the individuals impairment, such as medication, should be
considered when assessing whether the impairment has a substantial
affect on a major life activity. The appellant also complained that the
agency did not bear the burden of proving that the ability to engage in
face to face interviews was an essential function of the job. The MSPB
found that there was a split in the courts and no direct EEOC guidance
on who has the burden of proving what the essential functions of the job
are and since this was an arbitration award they would not disturb it
because there was no evidence of clear legal error.

***Bond v. Department of Energy***, 82 MSPR 534 (1999) employee who
suffered from gastroesophageal reflux disease (GED) failed to show that
his impairment, or the medication he took for it, Prilosec,
substantially limited a major life activity, so as to render him
disabled, and (2) penalty of removal for sleeping while on duty would be
mitigated to a 60 day suspension, where the employees medical condition
and the side effects of the prescription drug he was taking for his
condition played a part in the charged misconduct of AWOL and sleeping
on the job.

***Fox v. United States Postal Service,*** 81 MSPR 522 (1999) the agency
reduced the appellant in grade from a PS-9 Electronics Technician to a
PS-3 Custodian when he was unable to attend required training at a
particular training center due to his medical condition (hypertension)
which prevented him from sitting fro prolonged periods of time in a car,
plane or classroom. The AJ erred when he denied the appeal by making no
findings of whether the employee was an individual with a disability and
by failing to address whether he could have been reasonably accommodated
by deferring his training requirement and/or offering him a position at
a higher grade level. It was not clear why the AJ concluded the employee
was not an individual with a disability or why he considered the penalty
appropriate.

***Pugh v. United States Postal Service,*** 81 MSPR 313 (1999) OWCP
claimant who suffered from a psychiatric disorder applied for
restoration, the employee was entitled to the restoration rights of an
employee who was fully recovered from a compensable injury; the agency
did not accord the employee the priority consideration to which he was
entitled as a fully recovered employee; the employee failed to prove he
was regarded as being disabled; and the agency\'s offer to assign the
employee to a PS-03 custodian position as part of settlement
negotiations did not amount to an offer to restore the employee. The
employee was not regarded as disabled. He failed to show that the agency
viewed him as having an impairment that constituted a significant
barrier to employment in that it generally foreclosed the type of
employment involved. It was not enough to show that the agency regarded
the appellant as foreclosed from a particular job, or from a particular
place: the agency must regard the impairment as substantially limiting
his employment generally.

***Browder v. Department of the Navy***, 81 MSPR 71 (1999) the disorder
of telephone scatologia, which was a form of paraphilia, did not meet
the definition of a disability under the Act since such sexual behavior
disorders were expressly excluded under the Act (employee was removed
for making harassing calls to various dependent wives residing on the
base).

***Coronia v. Department of Justice***, 78 MSPR 201 (May 8, 1998)
removal of Supervisory Security Officer, charged with bringing an
unauthorized firearm and ammunition onto the grounds of a correctional
facility was mitigated to a 30 day suspension. The second charge of
conduct unbecoming an officer when appellant communicated to two
coworkers that he had previous thoughts of killing his supervisor, was
not sustained. The agency had not charged the appellant with \"Making
Statements to Co-workers that Resulted in Anxiety and Disruption in the
Workplace\" as provided in *McCarthy v. Department of the Navy*, 67 MSPR
177, 182 (1995) so they could not now argue that the statements caused
anxiety or disruption in the workplace. Moreover, the evidence proved
that it was not the statements of the appellant that caused any
disruption but the embellished retelling of the conversations by the
supervisor. The appellant did not mean the statements as a threat but
the agency embellished the statements to interpret them as a threat.

The MSPB found that it was the agency\'s knowledge of appellant\'s
depression coupled with the statements was the reason for the removal.
Although appellant suffered from depression he would not be considered
disabled because his mental impairment was temporary in nature, as
supported by the expectation of his full recovery and his doctors
releasing him to return to work. However, the appellant was covered
under the Rehabilitation Act as an individual with a disability because
the agency erroneously \"regarded\" the appellant as disabled and
impermissibly relied on his condition when deciding to remove the
employee. Thus, the agency engaged in discrimination when it removed the
appellant. After a detailed mixed-motive analysis, the Board found that
the employee had engaged in misconduct by bringing a firearm on the
premises, even if the misconduct was unintentional, and a 30 day
suspension was an appropriate penalty. Vice Chair Slave concurred in
part and dissented in part. Her dissent was based upon a conclusion that
since the removal was impermissibly based upon the agency erroneously
regarding the appellant as disabled such discrimination required that
the employee be made whole and not be suspended at all.

***Patterson v. Department of the Air Force***, 74 MSPR 648 (1997), in
determine whether an appellant is substantially limited in a major life
activity, the major life activity of working should be examined last,
and only in the event that the individual is not substantially limited
with respect to any other major life activity. If an individual is
substantially limited in any other major life activity, no determination
need be made regarding whether the individual is substantially limited
in working. Thus, an employee suffering from depression, who was
substantially limited in her ability to think, concentrate and make
decisions, was an individual with a disability.

***Stevens v. Department of the Army***, 73 MSPR 619 (1997) appellant, a
W.G.-5 Materials Handler, who suffered a brain injury which made it
difficult to learn and retain information, was an individual with a
disability. Both the agency and the AJ improperly concluded that
appellant was not disabled because his performance was satisfactory. The
Board reversed. It found that there was a nexus between appellant=s
learning impairment and his AWOL. Specifically, appellant=s doctor
testified that his impairment adversely affected appellant=s ability to
maintain an orderly accounting of time in his own mind and that he would
therefore be unable to remember and follow, on a consistent basis,
agency leave procedures at issue. The Board held that the appellant was
disabled because he was substantially limited in his ability to care for
himself and in his ability to think, concentrate and make decisions. The
Board also concluded that appellant was disabled because he was
substantially limited in his ability to perform the life activity of
Aworking@. For the life activity of Aworking@ the term Asubstantially
limited@ means that an individual is generally foreclosed by his
impairment from the type of employment involved. **See 29 C.F.R. 1630.2
(j)**. More generally, the term means (at a minimum) that an
individual=s impairment significantly restricts him/her with respect to
the condition, manner or duration under which he can perform a
particular life activity, as compared to the condition, manner or
duration under which an average person in the general population can
perform the same activity. The appellant was unable to adhere to a
regular work schedule as a result of his learning and memory
impairments. Since the ability to adhere to a regular work schedule is
essential to almost every government position, appellant was generally
foreclosed from the kind of employment involved in this case and is
disabled from the kind of employment involved her and is disabled from
the major life activity of working. Therefore, the appellant was a
disabled employee.

***Spencer v. Department of the Navy***, 73 M.S.P.R. 15 (1997),
appellant suffering from sleep apnea was disabled, despite insufficient
evidence that his medical condition substantially affected his work or
other life activity, when he proved that the agency Aregarded@ him as
disabled. Specifically appellant proved that the agency viewed him as
having an impairment that constituted a significant barrier to
employment that it generally foreclosed the type of employment involved.

***Baker v. United States Postal Service,*** 71 M.S.P.R. 680 (1996),
appellant with permanent toe condition which prevented him from lifting
more than 20 pounds, walking for more than two hours a day, pushing or
lifting heavy objects or standing for prolonged periods was a disabled
employee. His toe condition substantially limited the major life
activities of walking and standing. Furthermore, he is foreclosed
generally from the type of employment involved, namely, manual labor.
His restrictions do not allow him to perform unskilled labor requiring
him to be on his feet all day or to carry things.

***Yates v. U.S. Postal Service*,** 70 M.S.P.R. 172 (1996), appellant=s
temporary knee condition would have permitted him to return to work in
approximately 3-6 months would not ordinarily have met the definition of
an individual with a disability. However, appellant was regarded as
disabled when he was removed for inability to perform his job. The
agency=s view that appellant, a mail carrier, could not perform an
entire class of sedentary jobs, such as window clerk, mail handler and
mail processor, was disabled, because the agency erroneously believed
the appellant was significantly restricted performing an entire class of
jobs.

***Groshans v. Department of the Navy**,* 67 M.S.P.R. 629 (1995)
appellant, a GM-13 Contract Specialist was not a disabled employee,
despite suffering the medical condition anaphylaxis, which caused her to
experience difficulty in breathing when she was exposed to diesel fumes,
any type or form of alcohol or certain strong odors. Appellant suffered
severe attacks at her workplace and her physician advised the agency
that a future allergic reaction could be fatal. The agency removed
appellant for medical inability to perform, finding that the nature of
her job required her to be present in the particular building. The Board
upheld the AJ=s finding that appellant was not disabled. The Board found
that appellant suffered from a respiratory impairment but that this did
not rise to the level of a disability. The Board explained that an
inquiry as to whether an employee is disabled for work is an
individualized one focusing on whether the particular impairment
constitutes for the particular person a significant barrier to
employment; the impairment must generally foreclose the type of
employment involved. Relevant to this inquiry are the number and types
of jobs from which the impaired employee is disqualified , the
geographic area to which the employee has reasonable access, and the
employee=s job expectations and training. An inability to perform a
particular job by a particular employee is not sufficient to establish a
disability; the impairment must substantially limit employment
generally. Appellant had not shown that her condition affects her in a
more limited way, either in breathing or working. Thus, it did not
affect her ability to exercise and she engaged in scuba diving and
swimming. Moreover, appellant was able to perform in other building
locations on the base. Thus, she did not prove that she was generally
foreclosed from employment as a result of her disability. Moreover, the
agency did not regard the appellant as disabled merely because it
removed her for medical inability to perform or used the phrase
Areasonable accommodation@ in correspondence between the agency and the
appellant. The agency was merely responding to appellant=s
self-identified respiratory impairment. Thus, appellant was not disabled
and was properly removed from her position by the agency.

***Sublette v. Department of the Army***, 68 M.S.P.R. 82 (1995),
appellant, suffering from major depression and post traumatic stress
disorder (PTSD) was not disabled because he did not show that these
conditions substantially impaired his ability to perform his work. To
the extent that he did show such an impairment, it was the stresses of
his particular work environment, rather than the supervisory nature of
the position, that contributed to his purported condition. Appellant was
not disabled because he only established that his impairment precluded
him from meeting the demands of a particular job, and not that he was
foreclosed generally from a type of employment.

***Little v. U.S. Postal Service,*** 66 M.S.P.R. 574 (1995), drug
addicted appellant was not entitled to protections of the Rehabilitation
Act, since the American with Disabilities Act amended the Rehabilitation
Act to exclude current illegal drug users from the definition of an
individual with a disability.

***Manuel v. Department of Veteran=s Affairs***, 58 MSPR 424, 428
(1993), appellant with PTSD was not disabled despite proving that she
could not return to work unless reassigned or returned to former
position after supervisors and co-workers were given sensitivity
training, because she could not have established that her psychological
impairment foreclosed her generally from the type of employment she had
performed, only that it precluded her from meeting the demands of her
particular job.

**EEOC Cases**

***Bailey v. Runyon, Postmaster General, U.S. Postal Service***,
complainant with mild shoulder condition was not disabled, even though
he had a 30% service-connected disability, since he was unable to show
that his impairment substantially limited a major life activity.

***Benitez v. West***, 96 FEOR 3023 (1996), GS-3 Data Transcriber
suffering from Major Depression was disabled. AThe Commission notes that
stress and depression are conditions that may or may not be considered
impairments, depending upon whether or not a person=s impairment
substantially impairs a major life activity. The commission recognized
three factors which should be considered in determining whether or not a
person=s impairment substantially limits a major life activity. They are
the duration of the impairment, the severity of the impairment, and its
permanent and long- term impact A Petitioner had been treated for a two
year period of time, and she had been hospitalized for the condition.
The psychiatrist also recommended ongoing treatment and voiced concern
that the employee had suicidal tendencies. Thus, the employee was
disabled.

***Curry v. West, Secretary, Department of the Army***, 96 FEOR 1100
(1995), applicant=s knee and back injuries were not sufficiently severe
to be considered disabling conditions. However, the employee was
protected by the Rehabilitation Act because he was *regarded* as
disabled by the agency as disabled where the agency erroneously believed
that because of his medical condition he could not perform the essential
function of the position of GS-11 Electronics Mechanic.

***Kinsley v. Runyon, Postmaster General, U.S. Postal Service***, 95
FEOR 1251 (1995), employee with insulin dependent diabetes was not
disabled. He failed to show that his diabetes substantially limited one
or more of his major life activities at the time of his removal.

***Dimick v. Runyon, Postmaster General, U.S. Postal Service***, 95 FEOR
1146 (1995) , the EEOC found that an epileptic employee was disabled
despite the fact that he could perform perfectly well on the job. The
agency discriminated against him when it did not grant the accommodation
of altering his work schedule. The agency feared that a flood of
alternative schedule requests would be made if they granted appellant=s
request. However, an agency may not decline an accommodation based upon
its aversion to setting a bad precedent

***Dunn v. Runyon, Postmaster General, U.S. Postal Service***, 94 FEOR
3178 (1993), employee with herniated disc in his neck was not disabled
when his doctor indicated that his impairment was of temporary duration,
i.e. her work restrictions were only in effect for 30 days and the
employee would be able to return to full duty within a few weeks to two
months.

**B. Qualified Individual with a Disability** **and Reasonable
Accommodation**

**Court cases**

***Brickers v. Cleveland Board of Education***, case No. 97-3364 (6th
Cir, July 16, 1998) bus driver was not a qualified disabled person when
she was unable to perform as a bus driver and was not entitled to be
reassigned as a bus attendant where she could not perform the essential
function of lifting. Although this lifting requirement rarely was
required on a day to day basis, it was important in the event of an
emergency or to care for certain disabled riders.

***Criado v. IBM*** Case Nos. 97- 1341 and 1342 (1st Cir. June 5, 1998)
granting an employee a one month leave of absence for their depression
was a reasonable request for accommodation and IBM discriminated against
the employee when it denied the request and fired him. IBM argued that
there was a miscommunication between the employee\'s doctor and the
company and that it removed the employee solely on the basis of his
absence from work. However, if the termination was based upon a mistake,
the employee should have been reinstated once the employee provide
medical evidence clarifying the need for a temporary absence *citing
**Bultemeyer v. Fort Wayne Community Schools*** 100 F.3d 1281, 1286 (7th
Cir. 1996)(holding that although a doctor\'s letter requesting an
accommodation came after a decision to terminate the employer should
have reconsidered the decision to terminate).

***Hypes v. First Commerce Corporation, Case No. 96-31133*** (5th Cir.,
Feb.12, 1998)

Hypes was hired by FCC in February of 1993, as a Loan Review Analyst
assigned to a Consumer Assessment Team in the Independent Review
Services Division. He worked in that position until April 27, 1994, when
he was reassigned to a Commercial Portfolio Team. Hypes was not
\"otherwise qualified\" for his job because: 1) as the district court
correctly concluded, it was an essential function of his job, as a
member of a team, that Hypes be in the office, regularly, as near to
normal business hours as possible, and that he work a full schedule; and
2) even with the requested flex‑time accommodation, Hypes could not
arrive at work early enough or often enough to perform the essential
functions of the job. The evidence demonstrates that this was not the
sort of job which could be done at home. Hypes\' job required him to
review various confidential loan documents, which could not be taken
from the office. \"An employer is not required to allow disabled workers
to work at home, where their productivity inevitably would be greatly
reduced.\" Vande Zande v. State of Wis. Dept. of Admin., 44 F.3d 538,
544 (7th Cir.1995). Furthermore, he was a part of a team and the
efficient functioning of the team necessitated the presence of all
members. \"\[T\]eam work under supervision generally cannot be performed
at home without a substantial reduction in the quality of the
employee\'s performance.\" Id. at 544. Therefore, it was critical to the
performance of his essential functions for Hypes to be present in the
office regularly and as near as possible to normal business hours. Other
courts are in agreement that regular attendance is an essential function
of most jobs. ***Rogers v. International Marine Terminals, Inc.***, 87
F.3d 755, 759 (5th Cir.1996) (\"\[a\]n essential element of any
government job is an ability to appear for work \... and to complete
assigned tasks within a reasonable period of time\") (quoting ***Carr v.
Reno***, 23 F.3d 525, 530 (D.C.Cir.1994)). See also ***Tyndall v. Nat\'l
Educ. Centers, Inc. of Cal***., 31 F.3d 209, 213 (4th Cir.1994) (\"a
regular and reliable level of attendance is a necessary element of most
jobs\"); ***Law v. United States Postal Serv***., 852 F.2d 1278, 1279‑80
(Fed.Cir.1988) (holding that \"an agency is inherently entitled to
require an employee to be present during scheduled work times, and,
unless an agency is notified in advance, an employee\'s absence is
disruptive to the agency\'s efficient operation\"); ***Walders v.
Garrett***, 765 F.Supp. 303, 309‑10 (E.D.Va.1991) (holding that
\"employees cannot perform their jobs successfully without meeting some
threshold of both attendance and regularity\[;\] the necessary level of
attendance and regularity is a question of degree depending on the
circumstances of each position, \... however, \... some degree of
regular, predictable attendance is fundamental to most jobs\"), aff\'d,
956 F.2d 1163 (4th Cir.1992); ***Santiago v. Temple Univ***., 739
F.Supp. 974, 979 (E.D.Pa.1990) (\"attendance is necessarily the
fundamental prerequisite to job qualification\"), aff\'d, 928 F.2d 396
(3d Cir.1991).

***Terrell v. U.S. Air,*** Case No. 96‑2345, (11th Cir. January 6,
1998), employer had no duty to create part‑ time airline reservations
agent position in order to accommodate employee\'s

Carpel Tunnel Syndrome (CTS). Employer did not fail to accommodate
employee\'s carpal tunnel syndrome (CTS), and thus did not violate ADA,
when it failed to provide her with full‑time use

of drop keyboard until 13 months after she requested it, where she was
on medical leave for ten of those months, she was not placed on medical
leave because of lack of drop keyboard, she had some access to drop
keyboard during those three months, and she was not required to type
when she had no access. Employee does not satisfy his or her initial
burden under ADA of identifying reasonable accommodation by simply
naming a preferred accommodation, even one mentioned in ADA or
regulations; employee must show that accommodation is reasonable given
his or her situation. In ADA action, burden of identifying accommodation
that would allow qualified employee to perform the job rests with that
employee, as does ultimate burden of persuasion with respect to
demonstrating that such accommodation is reasonable. To reasonably
accommodate disability as required by ADA, employer is required only to
provide alternative employment opportunities reasonably available under
its existing policies.

***Kralik v. Durbin***, Case No. 97‑3106 (3rd Cir. 1997) employee\'s
request to be

relieved of forced overtime was not reasonable accommodation. Relieving
state employee of forced overtime would have required employer to
infringe seniority rights of other employees under collective bargaining
agreement and, thus, was not reasonable accommodation under ADA or
Rehabilitation Act. The court quoted ***Shea v. Tisch***, 870 F.2d 786,
790 (1st Cir.1989) for the proposition that \"an accommodation that
would result in other employees having to work\[ \] harder or longer
hours is not required.\"

***Barber v. Nabors Drilling U.S.A.*** , Case No. 20102 (5th Cir. 1997),
evidence that employee with back injury was capable of performing
essential functions of job as toolpusher on oil drilling rig, for
purposes of determining whether he was \"qualified individual with a
disability\" under ADA, was sufficient for submission to jury; jury
could have reasonably concluded that emergency functions requiring heavy
lifting were marginal functions of job. ADA does not require employer to
transfer from disabled employee any essential functions of his or her
job in order to make reasonable accommodation for disability.

***Lyons v. Legal Aid Society***, 68 F.3d 1512 (2nd Cir. 1995) the
reasonableness of an accommodation depends upon a common sense balancing
of the costs and benefits to both employer and employee. An
accommodation may not be considered unreasonable merely because it
requires the employer to assume more than a de minimis cost or because
it will cost more to obtain the same overall performance from a disabled
employee.

***Foreman v. Babcock and Wilcox Co., supra***, a disabled employee must
be able to perform the essential functions of the position in question
before he is able to be considered a qualified individual with a
disability and be covered by the ADA. Plaintiff was not a qualified
disabled employee because he was unable to carry materials into the shop
area which was an essential function of his job.

***Feliberty v. Kemper Corporation***, 98 F.3d 274 (7th Cir. 1996),
although an employee with a disability has a Asubstantial
responsibility@ for identifying the reason for a reasonable
accommodation, an employer is not totally relieved of responsibility to
determine appropriate accommodations.

***Monette v. EDS Corporation***, 90 F.3d 1173 (6th Cir. 1996),
determining whether a proposed accommodation is reasonable requires a
factual determination of reasonableness (perhaps through a cost-benefit
analysis or examination of the accommodations undertaken by other
employers) untethered to the defendant employer=s particularized
situation. Once a determination is made that a proposed accommodation
is, in a sense Agenerally reasonable@ the defendant-employer then bears
the burden of showing that the accommodation poses an undue hardship
upon it.

***Hudson v. MCI Telecommunications Corp.,*** 87 F.3d 1167 (10th Cir.
1996), unpaid leave of indefinite duration does not constitute a
reasonable accommodation. ***See Monette, supra***.

***Beck v. University of Wisconsin Board of Regents***, 75 F.3d 1130,
1135-37 (7th Cir. 1996), once an employer knows of an employees
disability and the employee has requested reasonable accommodations, the
ADA and its implementing regulations require that the parties engage in
an interactive process to determine what precise accommodations are
necessary. Both parties bear responsibility for determining what
accommodation is necessary. In the event the interactive process fails,
the court shall determine which party is responsible for the breakdown
and then assign responsibility for the failure in deciding whether the
employer=s decision to deny the accommodation was warranted.

***Willis v. Conopco Inc.***, 108 F.3d 282 (11th Cir. 1997), employee in
spare parts department was properly removed from his position because
his chemical sensitivity prevented him from coming in contact with any
chemically toxic substances in the plant. Plaintiff argued that he was
improperly removed and that the employer made no effort to explore
possible accommodations for the employee. The court found that where the
employee failed to satisfy his burden of articulating a reasonable
accommodation, the employer=s lack of investigation into potential
reasonable accommodations is unimportant. The ADA was not intended to
punish employers for acting callously for failure to engage in the
Ainteractive process@ as discussed in ***Beck, supra,*** if no
accommodation for the employee=s disability could reasonably have been
made.

***Bultemeyer v. Fort Wayne Community Schs.,*** 100 F.3d 1281, 1285 (7th
Cir. 1996) citing *Beck*, the Court of Appeals recognized that the
interactive process may be particularly difficult in the case of an
individual with a mental illness who may not have the means or ability
to request an accommodation. In such a case the employer must do what it
can to help even if the employee has not specifically asked for an
accommodation**.**

***Henricks-Robinson v. Excel,*** Case No 94-3156 (D.C.D. Ill. 1997),
the employer=s obligation is to grant a reasonable accommodation. It is
not obligated to reassign the employee to a better position than he
normally would be entitled to because of his/her disability.

**MSPB Cases**

***Laniewicz v. Department of Veterans Affairs***, 83 MSPR 477 (1999),
removal of medical center operator, who suffered from depression and
bipolar disorder, was sustained when she directed a code blue team to
the wrong location, and who was abusive and discourteous to a volunteer
during the same incident. The Board held that an agency has a duty to
provide accommodation only to \"otherwise qualified\" employees and that
as a result of the misconduct appellant could not be considered
\"otherwise qualified\". The Board cited to many cases supporting the
proposition that no accommodation is necessary where the employee
committed misconduct which is job-related and inconsistent with business
necessity, and the employer does not excuse similar misconduct from
non-disabled employees. The Board upheld the penalty of removal. It
found that if an employee\'s medical condition played a part in the
misconduct, that fact is entitled to considerable weight as a mitigating
factor. However, the appellant testified that her disability played no
role in her misconduct, accordingly the removal was sustained.

***Robinson v. Department of the Air Force***, 77 MSPR 486 (1998), in
establishing a prima facie case of disability discrimination, the
employee is not required to prove conclusively that specific job
accommodations are reasonable, but must only make a facial showing that
her disability can be reasonably accommodated. The bare assertion of an
employee in an Editorial Assistant position suffering from cervical
spondylosis that the agency \"did not take precautions to make my
working area safer to enable me to perform\" and \"at no time made
preventions, after my job injury, to make the environment safer to
alleviate my pain\" did not constitute an articulation by the employee
of a reasonable accommodation under which she could perform the
necessary duties of her Editorial Assistant position. Appellant did
articulate a reasonable accommodation when she stated that she could
have been reassigned or placed back to her former position of GS-5
secretary position.

***Patterson v. Department of the Air Force***, 74 MSPR 648 (1997)**,**
appellant suffering from depression, was not a qualified disabled
employee since she was unable to perform the essential functions of her
GS-5 Computer Specialist GS-5 position. The appellant had difficulty in
the job from the time of her appointment which led to her dispute that
culminated in her emotional breakdown. Further her medical evidence did
not affirmatively state that she could perform her job but recommended
instead a \"friendly approach\" on the job, with possible retraining, as
if for the first time, and then proceeding in a step by step working
relationship to determine \"once and for all that she either is capable
of learning the job with proper training or in fact cannot do it.\" Thus
appellant had not established that, even with the accommodations of
being granted leave and being retrained, she could perform the essential
functions of her computer specialist position. Finally, reassignment was
not an option because the agency was undergoing a RIF and there were no
vacant positions available. Finally, in reaching the decision of whether
the appellant was a qualified disabled person, the MSPB distinguished
the case of ***Randel v. Department of the Navy***, 72 MSPR 288 (1996),
upholding the EEOC\'s decision in ***Randel v. Dalton,*** 96 FEOR 3230
(1996)(discussed below) where the depressed appellant was deemed
qualified based upon his long history of satisfactory performance in the
job.

***Clark v. United States Postal Service,*** 74 M.S.P.R. 552 (1997),
citing *Beck supra* held that an employee is required to make a good
faith effort to work with the agency to determine what constitutes a
reasonable accommodation.

***Stevens v. Department of the Army, supra,*** appellant suffering from
learning and memory disabilities which caused appellant to be AWOL on 5
separate occasions, was improperly removed from his W.G.-5 position,
when he was able to articulate a plausible reasonable accommodation:
permit appellant=s sister to be responsible for arranging appellant=s
leave and attendance, and the agency failed to show that such an
accommodation would cause it an undue hardship. The MSPB explained that
where a mechanism has been suggested that would limit the job-related
effects of an appellant=s disability, it will look with some skepticism
on an agency=s claim that it could not afford to Arisk allowing a
**trial** of that mechanism.@

***Baker v. United States Postal Service, supra,*** an agency must
restructure a position to accommodate a disability by removing
nonessential functions the employee cannot perform, but such
restructuring is not required if tasks the employee is unable to perform
are essential to the job. Thus, the agency was not obligated to
restructure a Mailhandler position where lifting heavy objects, pushing
carts and standing and walking all day\--things appellant cannot do
because of his toe condition\--are at the heart of the position and not
incidental to it.

***McCray v. Department of Defense,*** 68 M.S.P.R. 186 (1995 ),
appellant was removed for unacceptable performance. He alleged that his
stipulated disability of depression and Post Traumatic Stress Disorder
caused his unacceptable performance and the agency discriminated against
him when it did not grant his requested accommodation of permitting him
to use his accumulated annual and sick leave in lieu of removal. The AJ
upheld the removal but in doing so excluded relevant witnesses relevant
to the issues of causation, agency knowledge of appellant=s disability
and reasonable accommodation. The AJ further concluded that the agency=s
prior efforts to refer the appellant to the Employee Assistance program
(EAP) satisfied the agency=s obligations under the Rehabilitation Act.
The Board remanded the case and instructed the AJ that while an agency
need not consider every possible accommodation *ad infinitum* where it
has reasonably given consideration to the matter, it should,
nonetheless, take actions as necessary to bring fruitful results in
order to actually effect an accommodation that enables an employee to
perform. Prior accommodation efforts are only relevant insofar as they
might indicate that future efforts to accommodate will likely be
unsuccessful or that the cumulative efforts of the agency have placed an
undue burden upon it at which point further accommodation becomes
unreasonable.

***Moon v. Department of the Army,*** 63 M.S.P.R. 412 (1994),
restructuring appellant=s Engineering Technician position so that she
was only required to calibrate smaller items was not a reasonable
accommodation where the essential functions of her job required her to
calibrate a wide variety of equipment of various weights and sizes and
restricting appellant to working on smaller items would essentially be
assigning her lower graded GS-4 duties. Moreover, the agency is not
required to create a new position in order to accommodate an employee=s
disability.

***Bolstein v. Department of Labor,*** 55 MSPR 459 (1992), appellant was
properly demoted when he could not perform the essential functions of
his GS-14 attorney position. The agency demonstrated that the GS-14
attorney position required the appellant to perform the most complex
legal work with little or no supervision. Appellant=s psychiatrist
recommendations more structure work with closer supervision. Such an
accommodation could not be granted without significantly altering the
essential functions of the job.

**EEOC Cases**

***Purcell v. West, Secretary, Department of Veterans Affairs***, 1999
WL 448126 (EEOC), alcoholic employee was properly removed from the
agency for poor performance. Agency was not obligated to provide a firm
choice between treatment and removal. Further, appellant did not inform
the agency of her poor performance until after she received the
performance appraisal. The request for a firm choice amounted to a
\"retroactive excuse\" for her poor performance. Even though the agency
had reason to suspect that the employee was an alcoholic, it is the
responsibility of the individual with a disability to request the
accommodation. An employer is only obligated to initiate discussion of
reasonable accommodation when (1) it knows the employee has the
disability; (2) it knows or has reason to know that the employee is
experiencing workplace problems because of the disability; and (3) it
knows or has reason to know that the disability prevents the employee
from requesting accommodation. Notwithstanding that the agency suspected
the existence of a disability, the conditions which would have triggered
a further duty to inquire were not met. Further, reasonable
accommodation is always prospective, meaning that even once appellant
disclosed her disability and requested reasonable accommodation, she was
entitled to accommodation only from the date of such disclosure and
request forward. Moreover, an employer is not required to excuse an
employee from meeting conduct and performance standards that are
uniformly applied , job-related, and consistent with business necessity,
although the employer must make reasonable accommodation to help the
employee meet the standards in the future if the employee is retained
following a violation of such standard.

***Christian v. Henderson, Postmaster General, U.S. Postal Service,***
99 FEOR 1124 (March 10, 1999) the overturned an EEOC AJ decision and
found that the agency improperly terminated a probationary employee with
a learning disability where the disability adversely affected his
performance as a part-time flexible mail carrier. The supervisor learned
from the employee that his disability was adversely affecting his
performance just prior to taking the performance action. (The supervisor
asked the employee why he was so slow delivering the mail and frequently
returned undelivered mail to the post office. The employee responded
\"IF have a learning disability.\" The supervisor responded \"You do?\"
The employee responded in the affirmative. Further six days prior to his
termination he informed his supervisors that he was a very slow
learner.) Rather than explore reasonable accommodation the agency fired
the employee. \"If the agency questioned the validity of the
appellant\'s statements concerning his disability, they then had an
affirmative obligation to ask appellant for a reasonable documentation
about his disability and functional limitations and/or refer appellant
for a fitness for duty examination, *EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act (March 1, 1999)*. The record evidence shows that the
agency officials did neither.\" The only way that the agency could show
that it was not obligated to provide a reasonable accommodation is to
show that the needed accommodation, more time to deliver his routes or
on the same routes for six months and then add more-constituted an undue
hardship. The agency did not provide evidence of undue hardship.
Therefore reinstatement was ordered seven years after the fact.

***Patterson v. Widnall, Secretary, Department of the Air Force*** 98
FEOR 3136 (1998) the EEOC differed from the MSPB and found disability
discrimination when the agency failed to accommodate her mental
condition (depressive disorder) by granting her request for leave or by
trying to fulfill her request for reassignment. The employee had
submitted several doctors notes to support a two week leave of absence
which the agency felt were insufficient to support the request for
leave. Regarding reassignment, there was no \"systematic search for
vacant positions\", therefore the agency did not satisfy its duty to
reasonably accommodate appellant.

***Smith v. Herman, Secretary, Department of Labor,*** EEOC Petition No.
03970145 (December 12, 1997) the EEOC upheld the MSPB\'s decision
finding no discrimination, when the agency separated the appellant from
her GS-12 training position. The appellant suffered from depression and
alleged she was unable to perform her job in the office. The agency had
offered alternative accommodations, such as a flexible work schedule and
a part-time position, which the appellant rejected. The EEOC ruled that
an employee is entitled to a reasonable accommodation, not an
accommodation of choice. A reasonable accommodation must always take
into consideration two unique factors: the specific abilities and
limitations of a particular employee with a disability; and the specific
functional requirements of a particular job. In this case the
appellant\'s position required that she be at the work site and the
agency had offered reasonable accommodations which the appellant
rejected, therefore the removal was sustained.

***Saunders v. Dalton, Secretary, Department of the Navy**,* 97 FEOR
3126 (1997)(EEOC remanded removal case back to the MSPB to determine, in
part, whether the duties appellant could not perform were non-essential
duties and whether his job could be restructured to eliminate those
duties);

***Luellan v. Runyon, Postmaster General, U.S. Postal Service,*** 97
FEOR 3070 (1996) , appellant=s disability prevented him from being
exposed to noise levels greater than 50 decibels and the agency
discriminated when it failed to measure the noise level in his newly
assigned area to meet his restrictions. The EEOC recognized that it is
Athe responsibility of an appellant to cooperate in an agency=s efforts
to reasonably accommodate the appellant=s disability.@ The evidence was
conflicting regarding the appellant=s willingness to cooperate. However,
there was no explanation as to why, given that it was on notice of the
noise restriction levels of appellant, that it did not attempt to
measure the noise level in the room to which he was assigned or to make
any accommodation efforts. ***But See Edward v. Runyon***, 96 FEOR 1075
(1995) the agency discriminated when it did not show that the creation
of a light duty position would have caused an undue hardship.

***Meyer v. West, Secretary, Department of the Army***, 96 FEOR 3234
(1996), the agency violated the Rehabilitation Act when it failed to
explore restructuring complainant=s current position or reassignment as
a reasonable accommodation. The agency ignored the recommendations of
complainant=s doctor and the EEOC opined that the agency=s system for
identifying and accommodating disabled employees was inadequate. Various
offices within the agency responsible for considering reasonable
accommodations failed to communicate with each other or the
complainant=s supervisors.

***Randel v. Dalton,*** 96 FEOR 3230 (1996), wherein the EEOC reversed
the MSPB and found that an employee who suffered from depression and had
difficulty thinking and concentrating was an individual with a
disability and was a qualified individual with a disability based upon
his ability to perform in the job successfully for several years.
Despite medical evidence that appellant suffered from depression, the
supervisor concluded that the employee was not depressed and did not
meaningfully consider the requested accommodations of leave and
reassignment in violation of the Rehabilitation Act..

***Benitez v. West***, 96 FEOR 3023 (1996), a GS-3 Data Transcriber
suffering from depression was not a qualified disabled employee when he
requested that her standards be lowered and that she retrained by
another supervisor. ABy lowering her standards, petitioner is asking
that one of her essential functions of her position be eliminated, and
such action is not required under the Rehabilitation Act. Nor is the
agency obligated to provide petitioner with every accommodation she may
request.@

***Wilson v. Chater, Acting Director, Social Security Administration***,
96 FEOR 1209 (1996), the agency violated the Rehabilitation Act when it
did not carefully follow the recommendations of a work evaluation
specialist (WES) concerning complainant=s Carpel Tunnel Syndrome. The
EEOC did, however, uphold the decision of the agency not to provide the
complainant with an upgraded computer, which appellant proposed to
reduce his keystrokes. The EEOC found that this recommendation by the
WES was not based upon the WES= personal observations and professional
expertise.

***White v. Brown, Secretary, Department of Veterans Affairs***, 95 FEOR
1142 (1995) , the agency has dual obligations under the rehabilitation
Act. Agencies shall not discriminate against a qualified individual with
a physical or mental disability. Furthermore, agencies shall make
reasonable accommodations to the known physical or mental limitations of
an applicant or employee who is a qualified individual with a
disability. Employee with post concussion syndrome and PTSD was not
entitled to accommodation of his choice, only a reasonable
accommodation.

**C. Reassignment of Disabled Employees**

**Court Cases**

***Keever v. Middletown,*** Case No. 97-3078 (6th Cir., May 29 1998)
city\'s offer of a desk position with similar pay and benefits but
significantly reduced police officers physical and mental
responsibilities was reasonable under the ADA despite the officer\'s
preference for another position where desk position would allow the
officer to have frequent absences without disrupting the department,
officer\'s routine duties on street exacerbated his injuries and the
officer had lifting restrictions which could be accommodated in the desk
job.

The ADA requires reassignment to a vacant position when the employee is
no longer able to perform the essential functions of her employment,
even with a reasonable accommodation, and the employee is qualified for
the vacant position. We circumscribed the employer\'s obligation to
reassign a disabled employee, however. An employer need only provide a
reasonable accommodation, not necessarily the accommodation the employee
requests. An employer is not obligated to \"bump\" another employee in
order to create a vacancy for the disabled employee. And the employer
does not have to create a new position for the disabled employee. The
plaintiff bears the burden of showing that a vacant position exists and
that the plaintiff is qualified for that position. See ***Stewart v.
Happy Herman\'s Cheshire Bridge, Inc.***, 117 F.3d 1278, 1286 (11th
Cir.1997); ***Mengine v. Runyon***, 114 F.3d 415, 419 (3d Cir.1997);
***Miller v. Department of Corrections of the State of Illinois***, 916
F.Supp. 863, 870 (C.D.Ill.1996), aff\'d, 107 F.3d 483 (7th Cir.1997).
Here McCreary needed to show that a vacant position in quality control
was available at the time LOF fired him. See ***Weiler v. Household Fin.
Corp***., 101 F.3d 519, 524 (7th Cir.1996) (holding that the relevant
time is the time of the employment decision). He has not done so.
McCreary has not put forth any evidence that a vacant position in
quality control was available. Rather, he testified that he sometimes
worked in the quality control department but only when there was no work
in the soldering department for some reason. This is insufficient.
Occasional opportunities to work in another department are not
equivalent to a vacancy for a permanent position. Pointing to a current
vacancy is required because \"Congress did not intend that other
employees lose their positions in order to accommodate a disabled
coworker.\" ***Eckles v. Consolidated Rail Corp***., 94 F.3d 1041, 1047
(7th Cir.1996), cert. denied, ‑‑‑ U.S. \*1166 ‑‑‑‑, 117 S.Ct. 1318, 137
L.Ed.2d 480 (1997). McCreary has not identified a genuine issue of
material fact regarding the possibility of reassignment. As such, the
district court properly granted summary judgment on the reasonable
accommodation claim.

***Woodman v. Runyon***, Case No. 96-4104 (10th Cir. 1997) employee
bears burden of production with respect to plausibility of reasonable
accommodation. This burden is not a heavy one; employee met burden of
making facial showing that reasonable accommodation through permanent
reassignment was plausible. Under Rehabilitation Act, employers are not
required to initiate inquiry into whether employee with disability can
be accommodated. Once the employee initiates, however, the
Rehabilitation Act requires interactive process whereby federal
employers investigate in good faith the availability of positions to
which disabled employees could be reassigned. To meet its burden under
Rehabilitation Act, employer may not merely speculate that suggested
accommodation is not feasible; when accommodation is required to enable
employee to perform essential functions of job, employer has duty to
gather sufficient information from employee and qualified experts as
needed to determine what accommodations are necessary to enable employee
to perform job. To initiate interactive process required by
Rehabilitation Act, it is enough for the employee to notify employer of
nature of his or her disability and specifically request information
about possible reassignment, and at that point, the employer is obliged
to assist in effort to identify an available job; however, the employee
may be given other duties as interactive process unfolds. Here the
employee met her burden under Rehabilitation Act by requesting
reasonable accommodation and making facial showing that reasonable
accommodation through permanent reassignment was plausible, where she
contended that certain position she had performed without difficulty
could become her permanent job, she repeatedly and specifically
requested that employer assist her in locating other jobs she might do,
and she underwent several arduous functional capacity evaluations.

***Schmidt v. Methodist Hospital***, 89 F.3d. 342 (7th Cir. 1996), an
employer is not obligated to provide an employee the accommodation he
requests or prefers, if an alternative reasonable accommodation is
offered. If an employee requests reassignment and the employer offers a
reasonable accommodation in his current job, the employer need not agree
to reassign the employee.

***Wernick v. Federal Reserve Bank***, 91 F.3d 379 (2nd Cir. 1996), not
every request for an accommodation is reasonable. The employee requested
a new manager to alleviate the stress caused by their relationship. The
agency refused the reassignment, but offered ergonomic accommodations to
permit the employee with a back impairment to perform her job. The court
held that the agency attempted to reasonably accommodate the employee
and the employer was not required to make a supervisory switch merely to
accommodate the employee=s preference in managers.

**MSPB Cases**

***Fox v. United States Postal Service***, 81 MSPR 522 (1999), case was
remanded to determine whether employee was properly demoted because he
was unable to attend training at a certain training center due to his
medical condition, hypertension, which prevented him from sitting for
long periods of time in a car, plane or classroom. The case was remanded
to determine whether the employee was disabled and whether attending the
training constituted an essential function of his job reasonable
accommodation when an employee becomes unable to perform the essential
functions of his position even with reasonable accommodation due to a
disability, an agency shall offer to reassign the employee to a funded
vacant position that the employee will be able to perform with or
without reasonable accommodation. In the absence of a position at the
same grade or level, an offer of reassignment to a vacant position at
the highest level available grade or level below the employee\'s current
grade or level is appropriate. An involuntary demotion does not
constitute a reasonable accommodation.

***Jackson v. United States Postal Service***, 79 MSPR 46 (1998)
although the agency violated its obligation under the Rehabilitation Act
to identify vacant funded positions in the same commuting area, at or
below the disabled employee\'s grade level for which she could have been
reassigned, this violation was not harmless since there were no such
positions available.

***Robinson v. Department of the Air Force***, 77 MSPR 486 (1998), an
agency\'s obligation to accommodate includes reassignment to a vacant
position at the same grade or level the essential functions of which the
employee can perform, and if such a position is not vacant, an offer of
reassignment to the highest available grade or level below the
employee\'s current grade is required. An agency is not, however,
obligated to accommodate a disabled employee by permanently assigning
him to light-duty tasks when those tasks do not comprise a complete and
separate position. In establishing a prima facie case of disability
discrimination, the employee is not required to prove conclusively that
specific job accommodations are reasonable, but must only make a facial
showing that her disability can be reasonably accommodated. The employee
articulated a reasonable accommodation when she requested that she
either be reassigned from her GS-5 Editorial Assistant position or
placed back in her former GS-5 Secretary position which she had no
problems fulfilling or performing for 9 years. The case was remanded to
determine whether she could meet her burden to show that she was
qualified to perform the essential functions of any one of the vacant
positions including her former Secretary position. While it could be
inferred that employee could perform her previous position the employee
presented no direct evidence that she could in fact perform this
position.

***Jackson v. United States Postal Service*,** 73 MSPR 512 (1997),
appellant, a Custodial Laborer, PS-3, at the U.S. Postal Service, was
improperly removed from her position on a charge of failure to meet the
physical requirements of her position. Appellant, who suffered from
dermatitis and a heightened sensitivity to chemicals, was medically
unable to perform her job because it exposed her skin to chemicals that
adversely effected her health. The Board reversed the removal, finding
that the appellant had made a facial showing that her disability could
be accommodated when her doctors recommended that she be reassigned to a
position with no contact with chemicals. It was then the agency=s burden
to prove that such a reassignment would cause an undue hardship. Since
the agency mistakenly concluded, based on its review of the medical
evidence, that appellant could not perform anywhere in the main
post-office building and improperly interpreted the collective
bargaining agreement to preclude reassignment of the appellant, it never
made an effort to determine whether the appellant could be reassigned to
funded vacant positions located in the same commuting area, serviced by
the same appointing authority, at the same grade or level for which she
was qualified. Accordingly, the agency action was reversed. ***Compare
McAlpin v. National Semiconductor Corp.,*** 921 F.Supp. 1518 (N.D. Tex.
1996); ***Guillory v. Department of the Navy***, 50 M.S.P.R. 244, 252
(1991).

***Baker v. United States Postal Service, supra,*** the agency did not
discriminate against the appellant when it did not reassign him to a
vacant position when the appellant did not even identify a type of job
in which he believed he could have been accommodated.

***O\'Connell v. United States Postal Service*,** 69 M.S.P.R. 438
(1996), appellant raised a non-frivolous allegation of coerced demotion
when he alleged that the agency would not accommodate his disability. An
agency\'s obligation to accommodate an employee with a disability
includes reassignment to a vacant position at the same grade or level
the essential functions of which the appellant can perform. If a
position at the same grade is not vacant, an offer of reassignment to
the highest available grade below the employee\'s current grade is
required.

***Phillips v. Department of the Navy***, 67 M.S.P.R. 74 (1995),
appellant was removed for physical inability to perform which was upheld
by the AJ. The appellant appealed arguing that the agency failed to
reassign him to a suitable vacant position. The Board remanded the case
back to the AJ to gather a complete record regarding vacant funded
positions for which the appellant was qualified. The appellant
articulated reassignment as a plausible reasonable accommodation. The
agency is expected to no more than the appellant about the availability
of positions that could be filled by employees with certain medical
restrictions. Accordingly, the agency had a duty to explore reassignment
of appellant to a funded vacant position located in the same commuting
area and serviced by the same appointing authority, and at the same
grade or level, the essential functions of which the appellant would be
able to perform with reasonable accommodation unless the agency could
show the reassignment would cause it an undue hardship. If there were no
positions at the same grade it was responsible for searching for vacant
positions at the highest grade below appellant=s current grade. See 29
C.F.R. 1614. 203 (g). The agency did not enter into evidence the list of
positions it considered when deciding where it could reassign the
appellant. The personnel specialist who actually did the search for
vacant positions did not testify, and those individuals that did testify
for the agency did not have first hand knowledge of the search and were
not familiar with the scope and extent of the search. Thus, the evidence
on the sufficiency of the search for vacant positions was inconclusive
and warranted a remand.

***Sheehan v. Department of the Navy*,** 66 M.S.P.R. 490 (1995), as a
general rule, a disabled employee is not entitled to an accommodation
which affords him/her rights superior to those enjoyed prior to the
onset of his/her condition or to those of other non-disabled employees.
However, the MSPB reversed an agency when it refused to offer an
employee a vacant position he was well qualified for and which had
promotion potential to a higher grade than the position the appellant
held in the agency.

***Joe v. Department of the Army,*** 62 M.S.P.R. 408 (1994), appellant
was removed for inability to meet the physical requirements of her GS-5
Medical Data Technician position. In this case, despite an agency search
there were no vacant positions at appellant=s grade level which were
available. The agency did not search for lower grade positions, which
would have constituted a reasonable accommodation, because the appellant
had informed her supervisor that such a demotion would have been
unacceptable. The Board found, that the agency was not obligated to
search for lower graded positions it knew appellant would reject. It
also ruled that while the existence of an agency hiring freeze does not
necessarily relieve the agency of its obligation to accommodate by
reconsidering reassignment, it may constitute evidence of undue
hardship. The Board remanded the case for reconsideration of what were
at the time new 29 C.F.R. 1614.203 (g) regulations concerning
reassignment.

**EEOC Cases**

***Kitaura v. Henderson, Postmaster General, U.S. Postal Service***, 99
FEOR 3200 (1999), the EEOC remanded the case back to the MSPB to
properly consider reassignment. The EEOC agreed that because of
appellant\'s wrist injury he could no longer perform the essential
functions of a Distribution Clerk because he was medically limited to
three hours of grasping per day. However, there was insufficient
evidence to determine whether the appellant could have been reassigned
to another vacant position for which he was qualified. The EEOC noted
that the only evidence of record were the managers of the specific
facility testifying that there were no funded vacant positions available
for which he qualified. The EEOC held: \"There is no objective evidence
to support this determination, nor is there any evidence that a search
for vacant positions at other facilities where petitioner could
reasonably be reassigned was actually conducted.\" In footnote 2 of this
decision the EEOC held that the 1992 Amendments to the Rehabilitation
Act require that the federal regulations set forth at 1614.203 be
interpreted in a manner consisted with the ADA and therefore the limited
reassignment provisions of 1614.203(g) should not be employed in favor
of the more liberal ADA standards which require, as set forth in the
*EEOC\'s Enforcement Guidance on Reasonable Accommodation and Undue
Hardship* consideration of nationwide reassignment. In ***Kitaura v.
United States Postal Service,*** 83 MSPR 270 (1999) the MSPB remanded
the case back to the AJ as directed by the EEOC. However, in a
concurring opinion, member Beth S. Slave makes note the EEOC\'s order is
contrary to many court decisions and places the burden on the agency to
prove the nonexistence of a vacant position as opposed to the burden on
the employee to prove the existence of a vacant funded position to which
the employee is qualified.

***Patterson v. Widnall, Secretary, Department of the Air Force*** 98
FEOR 3136 (1998) the EEOC differed from the MSPB and found disability
discrimination when the agency failed to accommodate her mental
condition (depressive disorder) by granting her request for leave or by
trying to fulfill her request for reassignment. The employee had
submitted several doctors notes to support a two week leave of absence
which the agency felt were insufficient to support the request for
leave. Regarding reassignment, there was no \"systematic search for
vacant positions\", therefore the agency did not satisfy its duty to
reasonably accommodate appellant.

***Bassingthwaithe v West, Secretary, Department of the Army,*** 98 FEOR
3041 (1997) once the agency informs petitioner that attempts at
reassignment were unsuccessful, petitioner has the burden of pointing to
specific, vacant positions for which he was qualified.

***Martin v. Runyon, Postmaster General, U.S. Postal Service,*** 98 FEOR
3031 (1997) the agency had no obligation to accommodate the appellant
because he failed to establish a connection between his HIV status and
the absences which led to his termination.

***Doss v. Carlin, Archivist of the United States, National Archives and
Records Administration***, 98 FEOR 3030 (1997), the agency was not
required to create a light duty position prior to terminating the
complainant when she was unable to perform the essential duties of her
position as a GS-3 Archives Aid, due to a back injury.

***Cole v. Runyon, Postmaster General, U.S. Postal Service***, 97 FEOR
3095 (1997), an agency does not have to create a light duty position for
an employee with a disability as a reasonable accommodation. Appellant
was on light duty while on Workers Compensation. His compensation claim
subsequently ended. He would have to file for a new OWCP claim. The
agency determined that it did not have a regular and continuing light
duty job and sent him home. Although the agency created a limited light
duty position for the petitioner and kept him in that position while he
had an active workers= compensation claim, the EEOC found that the
agency was not required to maintain the position. The light duty
position was not a regular agency position, but was one developed solely
to provide work for him because he otherwise would have been entitled to
compensation without employment. The agency did not have to create or
maintain a light duty job solely for the appellant=s benefit.

***Randel v. Dalton, Secretary, Department of the Navy,*** 96 FEOR 3230
(1996) , the agency violated the Rehabilitation Act when it removed
appellant who suffered from Major Depression from his GS-11 Computer
Specialist position. The employee had been AWOL for failure to submit
adequate medical documentation to support his absence. The removal was
upheld by the MSPB but reversed by the EEOC. Unlike the Board, the EEOC
found that he was disabled. Thee EEOC also found that the employee, who
was having problems concentrating and relating to his supervisor, was
removed without first conducting a Asystematic search for vacant
positions based upon petitioner=s qualifications and his medical
restrictions.@

**D. Knowledge of Agency**

**Court cases**

***Taylor v. Principal Financial Group, Inc.***, 93 F.3d. 155 (5th Cir.
1996), affirmed a grant of summary judgement to the employer on the
grounds that plaintiff did not appraise his employer of any limitations
resulting from his disability or any need for a reasonable
accommodation. The plaintiff was the manager of the employer=s El Pass,
Texas office. He has been placed on probation and was given an annual
appraisal that was critical of his failure to recruit a sufficient
number of new agents. He had told his employer that he suffered from
bipolar disorder but had not requested a specific accommodation. He was
subsequently hospitalized and never covered enough to return to work.
The court held Ait is incumbent upon the ADA plaintiff to assert not
only a disability, but also any limitations resulting therefrom. The
plaintiff has a duty to request

an accommodation. If the employee does not request an accommodation, the
employer cannot be held liable for failing to provide one. An employee
cannot remain silent and expect the employer to bear the initial burden
of identifying the need for and suggesting an appropriate accommodation.
AWhen dealing in the amorphous world of mental disability, we conclude
that health-care providers are best positions to diagnose an employee=s
disabilities, limitations, and possible accommodations.@ Here there was
only a vague request for a lessening of pressure and lowering of
objectives by the plaintiff. This was not enough to create a genuine
issue of material fact for trial.

***Burns v. City of Columbus,*** 91 F.3d 836 (6th Cir. 1996), under
Section 504 of the rehabilitation Act, plaintiff did not establish an
element of his prima face case that he was terminated from his position
during his training period on the police force because he suffered form
the disability of Areflex sympathetic dystrophy.@ Plaintiff had been
injured during his training, but was not diagnosed with his condition
until after his termination was recommended, at the end of his training
period. The Board that recommended his termination did so because of his
inability to perform the basic duties of an officer and a tendency to
abuse official power. Plaintiff could not establish that the City knew
or believed that he was disabled when it made the decision to terminate
him, and therefore summary judgement was appropriate.

***Miller v. National Casualty Co.***, 61 F.3d 627 (8th Cir 1995), the
court affirmed a grant of summary judgement to an employer that was not
told by the plaintiff that she suffered from a mental impairment.
Plaintiff was absent for two weeks before being terminated. She
indicated to her supervisor that she was under stress, had a nurse
practitioner send a note diagnosing her as having Asituational stress
reaction@ and her sister informed the employer that the plaintiff was
Afalling apart@. None of the employee=s applications revealed that she
suffered from a mental impairment and she failed to disclose prior
treatment of manic depression. The court held that the agency was not
aware of the plaintiff=s manic depressive condition until a week after
her dismissal. The earlier statements were insufficient to place the
defendant on notice that she was disabled. The defendant did not have
any indication that plaintiff suffered from a mental illness. The need
for accommodation was not obvious, and therefore the defendant could
reasonably have required documentation of her need for accommodation. 29
C.F.R. 1630.9 (1996).

***Hedberg v. Indiana Bell Telephone Co.,*** 47 F.3d 928 (7th Cir.
1995), an employer who is unaware of an employee=s disability generally
cannot be held liable under the ADA. The ADA Adoes not require
clairvoyance@. Seeing the effect of some of the symptoms and taking into
account performance-related behaviors is not acting based on knowledge
of a disability.

**MSPB Cases**

***Schultz v. United States Postal Service***, 78 MSPR 159 (1998)
although the agency had reason to believe that the employee might have a
mental impairment, the agency did not discriminate against him for
failure to meet attendance requirements, since the employee never
clearly explained to the agency the nature and extent of his medical
condition and what form of accommodation was needed.

***McCray v. Department of Defense**,* 68 MSPR 186 (1995) *citing*
*Donolin v. Department of Labor*, 95 FEOR 3182 (1995), the MSPB held
that an agency=s obligation to accommodate arises only when the
disability is known. A Aknown@ disability is one which in which relevant
agency officials have actual, rather than imputed, knowledge or notice.

***Sublette v. Department of the Army**,* 68 MSPR 82 (1995), appellant
was properly removed for engaging in nine instances of improper
misconduct, including violations of the command=s policies on sexual
harassment, obscene language, discrimination, and offensive comments.
The agency proposed his removal. At the oral reply, the agency learned
for the first time that appellant allegedly suffered from Post Traumatic
Stress Depression and Major Depression which he asserted caused his
misconduct. The MSPB held that as part of his prima facie case,
appellant had to show that the agency knew about the disability *and*
that the action appealed was based upon his disability. Since the agency
learned of the appellant=s purported impairment/disability after it
proposed his removal, but before a final agency decision was rendered,
it did have knowledge of the alleged disability. However, the appellant
did not show that the removal was based upon the alleged disability. The
agency asked that appellant to provide medial evidence to support his
assertion. The report reflected that appellant did not meet all the
criteria of PTSD and that while he did suffer from depression, his
depression did not cause the misconduct. Thus, the removal was not based
upon appellant=s disability and it was properly sustained by the MSPB
Administrative Judge.

**EEOC Cases**

***Huxster v. Runyon,*** EEOC Appeal No. 01960997 (January 29, 1998)
appellant failed to present

evidence that the agency was aware of appellant\'s mental disability.
***See*** ***Stallworth v. Department of Veterans Affairs***, EEOC
Request No. 05900416, (August 2, 1990); ***Landefeld v. Marion General
Hospital***, Inc., 994 F.2d 1178 (6th Cir. 1993). While appellant
asserts that the agency failed to present documentation concerning its
awareness of his condition, the prima facie burden lies with the
appellant to present sufficient evidence of the agency\'s knowledge. The
mere assertion that appellant is \"mentally challenged\" is not enough.

***Martin v. Runyon, Postmaster General, U.S. Postal Service,*** 98 FEOR
3031 (1997) the agency did not discriminate against the complainant when
it terminated him for excessive absences when it was unaware that he
suffered from HIV.

***Rodgers v. Widnall, Secretary, Department of the Air Force***, 96
FEOR 3151 (1996), the EEOC reversed itself and found that the agency was
aware that complainant was suffering from a mental illness which caused
his poor performance and misconduct. Complainant suffered from
Aschizophrenia-paranoid type, chronic with acute exacerbation. The
agency had no express knowledge of his medical condition. The EEOC found
overwhelming evidence, however, that appellant suffered from a mental
illness given the sudden dramatic decline in her job performance and
sudden bizarre behavior. The EEOC remanded the case for further
investigation to determine whether the agency had satisfied its
obligation to reasonably accommodate the complainant.

***Gibson v. Dalton, Secretary, Department of the Navy***, 96 FEOR 1008
(1995), although the appellant claimed that the agency failed to
reasonably accommodate her asthma when it suspended her for refusing to
work on an ordered cleaning detail, the EEOC found no discrimination
because the agency was unaware of her specific medical restrictions and
she did not request an accommodation.

***Donlin v. Reich***, ***Secretary, Department of Labor,*** 95 FEOR
3182 (1995), appellant, a GS-12 Senior Claims Examiner in the Black Lung
Program, Employment Standards Administration, who suffered from
hypoglycemia and sleep disorder was demoted to a GS-9 Claims Examiner
for poor performance. Appellant raised his medical conditions for the
first time during the oral reply. The EEOC, upholding the MSPB, held
that an agency=s accommodation obligation arises only at the time the
disability obligation is known. A known disability is one in which
relevant agency officials have actual, rather than imputed, knowledge or
notice. The EEOC focused on the decision available to the decision-maker
at the time of his decision, as opposed to any information submitted to
into the record during the processing of the appeal. The EEOC noted that
the agency can hold a person with a disability to the same standard of
performance as a person who is not disabled. The EEOC therefore upheld
the demotion of appellant and concluded that the appellant had not set
forth a prima facie case because he had not shown that the agency had
knowledge of the disability prior to proposing its removal.

**E. Causation**

**Court Cases**

***Williams v. Widnall,*** 79 F.3d 1003 (10th Cir. 1996), ADA does not
require the agency to tolerate egregious behavior of a disabled employee
caused by his disability where it does not tolerate similar misconduct
from non-disabled employees.

***Despears v. Milwaukee County***, 63 F.3d 635 (7th Cir. 1995) the
employer does not have to overlook crimes caused by the employee because
they were caused by the employee=s disability.

***Schutts v. Bentley Nevada Corp.,*** 966 F. Supp 1549 (D.C. Nev. 1997)
citing cases from the First, Third, Fourth, Sixth, Seventh, Ninth and
Tenth Circuits for the proposition that an employer may
discipline/remove an employee for misconduct even if the misconduct is
caused by the disability.

**MSPB Cases**

***Hunter v. Department of the Air Force***, 77 MSPR 589 (1998) the MSPB
upheld the award of an arbitrator which mitigated the removal of a
W.G.-10 Sheet Metal Mechanic (Aircraft) for making threatening
statements that he was suicidal and that he would physically harm
certain management officials by saying he would \"get\" these officials.
The arbitrator found that the appellant was a disabled employee based
upon his metal illness and that \"management officials\' reactions to
his statements were caused by his mental illness\" but that \"the
specific reason for his termination was not his disability\" but his
misconduct. The MSPB upheld the arbitrator\'s findings as well as his
decision to mitigate the removal to keeping the appellant in a non-pay
status with no back pay pending a finding by a board certified
psychiatrist that he was fit for duty.

***Roseman v. Department of the Treasury**,* 76 MSPR 334 (1997),
employee, a Treasury Department Revenue Officer, failed to show
sufficient causal connection between his back disability and the charged
misconduct of failing to follow directive that he access IDRS computer
system, and thus failed to establish disability discrimination. While
employee stated he did not access the computer system because of his
long injury-related absence from duty and because he needed further
training, evidence established that he received training while on duty
and that he could have accessed the system if he had chosen to do so. He
further failed to establish a causal connection between his alleged
disability and the directive that he make a minimum number of specified
field office calls. While the employee argued that he could not drive
safely as a result of side affects of medications, there was evidence
that he made at least four field call specified in one of the directives
and drove at least part of the way on a trip from his home to Florida
during the time in question. Finally there was no causal connection
between his back impairment and the charged misconduct of failing to
follow directive that he spend a certain amount of time on particular
work-related activities.

***Vannoy v. OPM***, 75 MSPR 170 (1997) even if prospective employee
could establish that he was disabled, based upon posttraumatic stress
disorder (PTSD), at the time of his misconduct involving theft of
materials he was charged with disposing, and that his PTSD caused his
criminal misconduct, his misconduct still disqualified him from Federal
employment; prospective employee\'s criminal misconduct of concealment
of stolen government property, hazardous waste materials that he was in
charge of disposing, struck at the core of his job (particularly given
his position as a supervisor) and the agency\'s mission, and was so
egregious that it barred him from federal employment.

***McCray v. Department of Defense***, 68 MSPR 186 (1995) , the case was
remanded to determine whether appellant=s poor performance was caused by
his post traumatic stress disorder, cyclothymic disorder and depression.
The judge erred when he denied the testimony of appellant=s former
supervisor and union steward since these persons were knowledgeable
about employee=s performance and mental condition.

***Sublette v.*** ***Department of Army***, 68 MSPR 82 (1995), appellant
did not establish that his misconduct was caused by his mental
impairment (major depression) While his condition could cause an
outbreak of anger, irritability, inappropriate remarks, some profanity
and abusive statements, the misconduct he engaged in was not necessarily
the kind of aggressive or irritable outburst spoken of by appellant and
his psychiatrist. In fact there was no evidence that appellant was even
hyper when some of the incidents arose. For example, when he made the
statement :@boy we have some hot mamas in here today@ as he ran his hand
along back atop her bra strap, or when he referred to the colonel as a
Asmart nigger@ and referred to an employee as a Alittle nigger@ there
was no evidence that he was feeling the effects of his disability.  

**EEOC Cases**

***Waterstrat v. Barram, Administrator, General Services
Administration,*** 98 FEOR 3023 (1997) the agency did not discriminate
against the employee for his claimed disability of depression, when it
terminated him for poor performance or tardiness. The medical evidence,
which consisted of the employee\'s family physician states only that his
depression \"can be severe enough to cause disability and to interfere
in the performance of his job. A subsequent letter reflects only that
the employee shows \"signs\" of \"depression, anxiety and obsessional
thoughts\" and that on 4 occasions when he met with his patient \"there
were not overt signs of a formal thought disorder.\" **The EEOC further
clarified, however, that even if there was a causal connection between
his removal and his disability there would be no liability on the part
of the agency.** **Despite the agency\'s best efforts, petitioner
essentially refused to cooperate by failing to provide any information
regarding his medical condition until after the agency had issued the
notice of proposed removal. Citing *EEOC=s Enforcement Guidance on the
Americans with Disabilities Act and Psychiatric Disabilities,* EEOC
Notice No. 915.002 (March 25, 1997) the EEOC held that because an
employer may hold all employees to the same performance and conduct
standards and because reasonable accommodation is always prospective,
the agency was not required to excuse the employee\'s past performance
deficiencies and tardiness.** Thus, the EEOC upheld the MSPB\'s decision
to sustain the employee\'s removal.

***Maes v. Runyon, Postmaster General, U.S. Postal Service,*** 98 FEOR
1065 (1997) supervisor, who suffered from Bipolar disorder, and created
a hostile and stressful working environment for his subordinates, by
threatening them, pushing equipment towards them, yelling and screaming
at them and changing work schedules after confrontations with employees,
was properly demoted for his misconduct despite his disability. Citing
the *EEOC=s Enforcement Guidance on the Americans with Disabilities Act
and Psychiatric Disabilities,* EEOC Notice No. 915.002 (March 25, 1997),
the EEOC found that even if the disability caused his misconduct, the
agency was under no obligation to excuse it. The agency did consider his
medical condition when deciding to mitigate his removal to demotion.
Thus the EEOC upheld the decision of the MSPB to sustain the agency\'s
decision to demote.

***Clennon v. Cohen***, ***Secretary, Department of Defense,*** 98 FEOR
1064 (1997), the employee , a teacher, engaged in disruptive behavior
and received a letter of caution (LOC). The LOC informed appellant that
if he wanted the agency to consider his disability when it made
decisions affecting his employment, then he should provide certain
detailed medical information, such as a diagnosis and prognosis from his
physician and any recommendations for a reasonable accommodation. The
employee did not comply with this request. The employee had informed the
employer that he had a mental illness which sometimes cause him to be
\"out of control\", that he was taking lithium and was under a
psychiatrist\'s care but did not comply with the request for medical
documentation. Subsequently, the employee engaged in additional
disruptive behavior and received a written reprimand. The employee filed
an EEO complaint alleging disability discrimination. During the
investigation, almost one year after the misconduct, the employee
submitted the detailed medical documentation originally requested by the
employer. The EEOC found that the employee\'s failure to provide the
medical information in a timely manner prevented the agency from
determining whether he was entitled to reasonable accommodation and what
that accommodation might be. Therefore, the agency did not discriminate
when it disciplined the employee for his disruptive behavior. Moreover,
citing the *EEOC=s Enforcement Guidance on the Americans with
Disabilities Act and Psychiatric Disabilities,* EEOC Notice No. 915.002
(March 25, 1997), it held that since such discipline would have been
imposed on non-disabled the employee was properly disciplined for his
misconduct.

***Smith v. Shalala, Secretary, Department of Health and Human
Services***, 97 FEOR 3201 (1997), the EEOC concurred with the MSPB=s
determination that the petitioner=s removal was not the result of
disability discrimination. Appellant failed to establish that he
suffered from a seizure disorder as he claimed, and even if he was an
individual with a disability, he did not show that his condition was the
cause of the disorderly conduct and threats that led to his removal.

***Dixon-Smith v. Runyon, Postmaster General, Unites States Postal
Service,*** 97 FEOR 3154 (1997), the employee was demoted for failure to
maintain proper security for the agency. Appellant left the safe he was
responsible for unlocked , and requested that a subordinate remove
certain stock from the safe in violation of security procedures. An
audit of main stock accountability found a shortage of \$ 4,877.58.
Appellant was mentally disabled (depression, dissociative identity
disorder and other mental illnesses). She asserted that her medical
condition caused her to be forgetful but offered no meaningful medical
evidence between her mental disabilities and her misconduct. The EEOC
went on to say, however, that even assuming a nexus between her
misconduct and her disability, the agency did not discriminate against
her when it demoted her. Citing the *EEOC=s Enforcement Guidance on the
Americans with Disabilities Act and Psychiatric Disabilities,* EEOC
Notice No. 915.002 (March 25, 1997) the EEOC held Aan employee may
discipline an employee with a disability for engaging in . . .
misconduct if it would impose the same discipline on the employee
without a disability.@ If the conduct standard were not job-related and
consistent with business necessity, or applied inconsistently, the
employer=s actions against an individual with a disability could be
violative of the Rehabilitation Act. This was not the case in this
instance thus the demotion was sustained.

***Morgan v. Runyon, U.S. Postal Service,*** Citing its recently issued
*Enforcement Guidance on the Americans with Disabilities Act and
Psychiatric Disabilities,* EEOC Notice No. 915.002 (March 25, 1997) the
EEOC found that the petitioner failed to show that his removal was
harsher treatment than would have been received by nondisabled employees
who, like petitioner, removed checks from the mailstream to convert to
their personal use.

***Ferrell v. West,*** 1997 FEOR 3127 (1997) employee who engaged in
threatening conduct was properly removed from his computer specialist
position. The employee=s mental disability did not shield him from the
consequences of his misconduct. The EEOC held that one who engages in
abusive and threatening misconduct is not a qualified disabled employee.
Citing the *EEOC=s Enforcement Guidance on the Americans with
Disabilities Act and Psychiatric Disabilities,* EEOC Notice No. 915.002
(March 25, 1997) the EEOC sustained the removal.

***Starling v. Runyon, Postmaster General, U.S. Postal Service***, 97
FEOR 3082 (1997), employee suffering from diabetes did not establish a
nexus between her diabetes and absence from the workplace or any of the
agency=s actions. The employee did establish a nexus between her major
depression and her absence in the workplace and the decision of the
agency to order a fitness for duty examination. There was no
discrimination, however, since the agency did not treat complainant less
favorable than other employees in this case.

***Dougherty v. West, Secretary of Army***, 96 FEOR (1996), the EEOC
upheld the decision of the MSPB and ruled that appellant=s removal was
for good cause and did not constitute

disability discrimination. The EEOC found no nexus between appellant=s
mental disabilities (generalized anxiety disorder, personality disorder,
major depression/dysphemia) and the misconduct that was the basis for
her removal. It also rejected her argument that the misconduct was
caused by the different medications she was taking.

***Davidson v. Perry, Secretary, Department of Defense, Office of
Dependents Education***, 96 FEOR 3028 (1995), complainant must establish
a nexus between her disability (Asthma) and her unacceptable
performance. Complainant failed to show that there was any reasonable
accommodation which would have permitted her to perform the essential
duties of her teacher position. The accommodations complainant sought,
assistance of an aide and suspension of bus driver duty, were
speculative and there was no basis to believe that his performance would
have improved with these accommodations.

**F. Undue Hardship**

**Court cases**

***Willis v. Conocopo Co.*** 108 F.3d 282, 286 n.2 (11th Cir. 1997), the
two issues, reasonable accommodation and undue hardship are not the
same. The question of whether an accommodation is reasonable, (though it
must be determined in a given set of specific facts) is more of a
\"generalized\" inquiry than the question of whether a resulting
hardship for the employer is \"undue\".

***Borkowski v. Valley Central School District,*** 63 F.3d 131 (2nd Cir.
1995), for purposes of the Rehabilitation Act, the term \"undue
hardship\" is a relational term; as such it looks not merely at the cost
the employer is asked to assume, but also to benefits to others that
will result; thus the burden is on the employer to engage in a
cost-befit analysis, considering factors listed in the regulations,
which includes consideration of the industry which the employer is
involved, as well as the individual characteristics of the employer.

***Bryant v. Better Business Bureau of Maryland***, 923 F.Supp. 720 (D.
Md. 1996), although an employer is Anot required to determine with
mathematical certainty@ that an accommodation would cause an undue
hardship, an employer must have a sufficient factual basis in order to
succeed in establishing an undue hardship defense.

**MSPB Cases**

***Schrodt v. United States Postal Service***, 79 MSPR 609 (1998) a
proposed accommodation may constitute an undue hardship if it requires
the agency to violate a non-discriminatory term of the collective
bargaining agreement. In this case, the request for a reassignment to a
light duty assignment did not violate the contract.

**EEOC Cases**

***Taylor v. Daley, Secretary of Commerce***, 97 FEOR 1323 (1997), the
EEOC found that the proposed accommodation of the disabled employee
(incomplete paralysis) to build a level covered passage between two
buildings would cause an undue financial burden on the agency. The cost
of the project was \$500,000.00 and the agency was already over its
building construction/maintenance budget.

***Feris v. Browner, Administrator, Environmental Protection Agency,***
97 FEOR 3021 (1997), the agency discriminated against the complainant
based upon his disability (deafness) when it did not ensure he had an
interpreter for all important work-related meetings. The employee had
proved that the need for an interpreter on short notice was necessary
for him and others to perform their job. The agency had argued it would
have caused an undue hardship to hire a permanent interpreter based upon
a budget freeze and budget shortfalls. The EEOC questioned the validity
of this budget shortfall. It further concluded, given the overall size
of the agency that the cost of hiring a full-time interpreter would not
be an undue hardship. ACongress. . . clearly intended the federal
government to undertake measures that would involve more than a de
minimis cost on behalf of disabled employees.

**G. Persons Addicted to Drugs or Alcohol**

**EEOC Cases**

***Johnson v. Babbitt***, 96 FEOR 3123 (1996) the EEOC shall not require
agencies to provide a firm choice between treatment and removal prior to
taking an adverse action. The EEOC held that the Rehabilitation Act
Amendments of 1992 required that Federal employers apply the same
standards as private sector employers under the Americans with
Disabilities Act (ADA) of 1990. The ADA, and the EEOC\'s implementing
regulations provide that an employer may hold alcoholic employees to the
same requirements for acceptable conduct and performance as it holds
non-disabled employees. Therefore, the EEOC reasoned that while the
agency was bound to consider reasonable accommodations, there could be
no requirement for agencies to excuse misconduct or poor performance by
alcoholic employees by requiring a firm choice between treatment and
removal prior to taking an adverse action.

***Hill v. Runyon, Postmaster General, U.S. Postal Service***, 97 FEOR
3207 (1997) the EEOC concurred with the MSPB=s decision that the
petitioner=s removal was not based on disability discrimination. It
noted that individuals such as the petitioner, who are currently engaged
in the illegal use of drugs, are specifically excluded from the
protections of the Rehabilitation Act.

**MSPB Cases**

***Humphrey v. Navy***, 76 MSPR 519 (1997) employee\'s 31 day suspension
was reversed where the agency violated its own regulations which
required abeyance and firm choice rather than discipline. Where
alcoholic employee shows that he has a right to accommodation under
agency\'s own rules, collective bargaining agreements, or policy, and
such right has been denied, he has proven a claim of harmful procedural
error rather than disability discrimination.

***Walsh v. Postal Service***, 74 MSPR 627 (1997), appellant, an
alcoholic employee, was removed for throwing away over 1,000 pieces of
mail. The MSPB reiterated that it was no longer required to provide a
firm choice between treatment and removal and upheld the removal despite
the fact that appellant had placed himself in a detoxification program
after engaging in his misconduct. The MSPB decided to uphold the removal
because of the seriousness of the offense. The MSPB did indicate,
however, that it will consider mitigating a penalty where an alcoholic
employee or other employee with a physical or mental impairment which
causes misconduct, shows potential for rehabilitation by seeking
treatment.

***Kimble v. Department of the Navy*,** 70 M.S.P.R. 617 (1996), The MSPB
agreed with the EEOC=s decision in *Johnson, supra. **See*** ***Coates
v. Department of the Navy**, 74 MSPR 362 (1997); **Bland v. Department
of the Navy***, 71 M.S.P.R. 388 (1996); ***Todd v. Department of
Justice*,** 71 M.S.P.R. 326 (1996).

***Schulte v. Department of the Navy,*** 72 MSPR 466 (1996) current
illegal drug use is no longer covered as a disability under the
Rehabilitation Act.

**Court cases**

***Burch v. Coca Cola Co.***, 119 F.3d 305, 320 n.14 (5th Cir. 1997),
ADA does not require employers to excuse violations of uniformly‑applied
standards of conduct by offering alcoholic employee a firm choice
between treatment and discipline. \"\[A\] \'second chance\' or a plea
for grace is not an accommodation as contemplated by the ADA.\"
Employers are under no obligation to accommodate misconduct that is the
product of an employee\'s alcoholism. Section 12114(c)(4) of the ADA,
unlike the pre‑1992 Rehabilitation Act, does not require employers to
excuse violations of uniformly‑applied standards of conduct by offering
an alcoholic employee a \"firm choice\" between treatment and
discipline. Compare Fuller v. Frank, 916 F.2d 558, 562 (9th Cir.1990)
(discussing firm‑choice rule); Rodgers v. Lehman, 869 F.2d 253, 259 (4th
Cir.1989) (same), with Johnson v. Babbitt, EEOC No. 03940100, 1996 WL
159072 (EEOC Mar. 28, 1996) (finding 1992 amendment to Rehabilitation
Act, 29 U.S.C. S. 791(g), which incorporated section 12114(c)(4),
eliminated the requirement that an employer provide a \"firm choice\" as
an accommodation. But cf. Office of the Senate Sergeant at Arms v.
Office of Senate Fair Employment Practices, 95 F.3d 1102 (Fed.Cir.1996)
(finding that amended Rehabilitation Act obliged employer to provide
leave for treatment to a disabled alcoholic as a reasonable
accommodation, but did not require a \"retroactive accommodation\" by
excusing misconduct).

***Office of the Senate Sergeant at Arms v. Office of Senate Fair
Employment Practices*,** 95 F.3d 1102 (Fed Cir. 1996) an employee in the
Office of the Senate Sergeant of Arms covered under the Government
Employee Rights Act (GERA) who had abused leave procedures caused by his
alcoholism was disciplined and unilaterally placed on a last chance
agreement which provided for the employee to receive treatment for his
disease. The agency did not, however, expunge his disciplinary record.
The appellant argued that his record should have been expunged and that
he should have been given a \"fresh start.\" The Federal Circuit
disagreed. It found, without reference to *Johnson* or *Kimble* that
under the Americans with Disabilities Act (ADA) an agency is permitted
to hold an employee who is an alcoholic to the same standards as
non-alcoholic employees. Thus, the discipline was appropriate. The
Federal Circuit also held, however:

> . . . .provision of a firm choice between treatment and discipline is
> consistent with the statutory requirement of a reasonable
> accommodation of an individual with a disability. Treatment would seem
> to be essential to any accommodation for alcoholism. If an individual
> refuses treatment when offered, then discipline is appropriate. Singer
> was entitled to a reasonable accommodation consisting of a prospective
> opportunity to be rehabilitated.

*Id*. at 1107. The Federal Circuit held that the OSSA provided the
employee with such an accommodation when it advanced him leave to obtain
in-patient treatment, and it allowed him to perform his job on a
restricted-duty status while he continued his recovery. While the
employee was entitled to receive a \"prospective opportunity to be
rehabilitated\", he was not entitled to a \"retroactive accommodation\"
that is a clean disciplinary record or \"fresh start.\" Thus, the court
upheld the agency\'s action.

**H. Medical Inability to Perform/Direct Threat**

**Court cases**

***Bragdon v. Abbott,*** 118 S.Ct 2196 (1998) patient infected with HIV
brought an action under the ADA against a dentist who refused to treat
her in his office. The district court and the First Circuit Court of
Appeals granted summary judgement in favor of the plaintiff, finding her
disabled but concluded as a matter of law that she did not pose a
\"direct threat\" to the dentist. The Supreme Court found that the
plaintiff was an individual with a disability but remanded the case to
the lower courts for further fact finding on the issue of \"direct
threat\".

The ADA defines a direct threat to be a medical condition which poses a
\"significant risk to the health or safety of others that cannot be
eliminated by a modification of policies, practices, or procedures or by
the provision of auxiliary aids or services\" 28 U.S.C. 12182(b)(3).
Because few, if any, activities in life are risk free, the ADA does not
ask whether a risk exists, but whether it is significant. The existence,
or nonexistence of a significant risk must be determined from the
standpoint of the person who refuses to give the treatment or make the
accommodation. But that risk assessment must be based upon medical or
other objective evidence. As a health care professional, the dentist had
the duty to assess the risk of infection based on the objective,
scientific information available to him and others in his profession.
His belief that a significant risk existed, even if maintained in good
faith, did not relieve the dentist from liability.

The court must decide whether the dentists action to deny treatment at
his office was reasonable in light of the available medical evidence. In
assessing the reasonableness of his actions, the views of the U.S.
Public Health Service, Center for Disease Control, and the National
Institutes of Health, are of special weight and authority. The views of
these organizations are not conclusive, however. A health care
professional who disagrees with the prevailing medical consensus may
refute it by citing a credible scientific basis for deviating from the
accepted norm.

The court\'s reliance on the CDC Dentistry Guidelines and American
Dental Association Policy on HIV was not definitive. The CDC Dentistry
Guidelines do not definitively state that routine dental care for HIV
patients is safe. The American Dental Association is a professional
organization, not a public health authority. Efforts to clarify the
dentists\' ethical obligations and to encourage dentists to treat
patients with HIV may be commendable but the question under the ADA is
one of statistical likelihood, not professional responsibility.

The petitioner dentist, however, also has provided questionable evidence
to support his position. His medical expert was unable to set forth
substantial medical evidence to support his case. While seven dental
workers have possible occupational transmission of HIV the CDC was
unable to ascertain the precise cause of their infections and whether it
was caused by their contact with HIV patients in the course of providing
treatment. Thus, the Supreme Court decided to remand the case for
further exploration of the facts to ascertain the significance of the
risk associated with dentists treating HIV patients. The remand does not
foreclose the possibility that the Court of Appeals may reach the same
conclusion it did earlier.

***Equal Employment Opportunity Commission v. Amego Inc.,*** 110 F.3d
135 (1st Cir. 1997), medical professional who improperly dispensed
medications to her patients constituted a direct threat to the health
and safety of her patients. Even under a Adirect threat@ analysis, the
employee retains at all times the burden of persuading the jury either
that he was not a direct threat or that reasonable accommodations were
available.

***Moses v. American Nonwovens, Inc***., 97 F.3d 446 (11th Cir. 1996),
[cert]{.underline}. [denied]{.underline}, 117 S. Ct. 964 (1997), upheld
the removal of a former employee who had epilepsy because the employee=s
continued employment would have posed a direct threat. The former
employee did not dispute that there was a significant risk that he would
have had seizures on the job. The court found that there was a
substantial risk that the employee would be injured because his job was
performed in the vicinity of heavy machinery.

***EEOC v. Chrysler Corporation,*** 917 F.Supp. 1164 (E.D.Mich. 1996),
Chrysler=s policy of excluding from employment any individual with a
blood sugar level of greater than 140 mg/dl. was found to violate the
ADA. Chrysler failed to make the requisite individual assessment of an
applicant=s qualifications when it imposed this exclusionary policy.

**MSPB Cases**

***Schrodt v. United States Postal Service***, 79 MSPR 609 (1998), in
removing an employee for physical inability to perform, an agency may
not rely solely upon a showing that he has a physical disability;
rather, it must establish a nexus between the employee\'s medical
condition and observed deficiencies in his performance or conduct, or a
high probability of hazard that his condition may result in injury to
himself or others. The agency did not prove that employee suffering from
patellar chondromalacia in both knees was physically unable to perform
the duties of distribution clerk; medical evidence failed to relate
employee\'s medical condition to specific duties of his position, and
the agency never documented insufficient performance or deficiencies by
the employee in performing his job. To exclude an employee from
employment for risk of possible future injury, there must be a
reasonable possibility of substantial harm, which is determined in light
of the employee\'s work history and medical history; such a
determination cannot be based merely on an employer\'s subjective
evaluation, or, except in cases of a most apparent nature, merely on
medical reports. The agency did not establish that the employee\'s knee
condition which required that he walk with a cane posed a safety risk;
there was no evidence, apart from the supervisor\'s subjective
assessment, that alleged congestion in the work area, or supposed
strings and rubber bands on the floor, constituted a serious threat to
the employee\'s safety; moreover, the possibility that the employee
might find it difficult to climb down stair to evacuate the building was
speculative, inasmuch as his physical restrictions, which precluded
climbing, did not preclude descending stairs.

***Robinson v. Department of the Air Force***, 77 MSPR 486 (1998), the
agency removed appellant from her GS-5 Editorial Assistant position for
\"being unable to perform the duties of her position because of medical
restrictions.\" The agency asserted that the permanent medical
restrictions at issue \-- inability to remain in a sitting position with
head/neck in a fixed position for greater than 15 minutes at a time, and
restricted repetitive use of the right arm\--prevented her from
performing several duties necessary to meet the minimum requirements of
her position description. The employee articulated a reasonable
accommodation when she requested that she either be reassigned from her
GS-5 Editorial Assistant position or placed back in her former GS-5
Secretary position which she had no problems to fulfill and perform for
9 years. Therefore the agency established a prima facie case of
disability discrimination. The agency, however, produced a list of jobs,
including her former position, and eliminated them from reassignment
consideration because of her disability. If the employer claims that the
appellant is unable to perform these jobs, the burden is on the disabled
employee to prove that she is capable of performing the essential
functions of the position in question. An agency\'s obligation to
accommodate includes reassignment to a vacant position at the same grade
or level the essential functions of which the employee can perform, and
if such a position is not vacant, an offer of reassignment to the
highest available grade or level below the employee\'s current grade is
required. An agency is not, however, obligated to accommodate a disabled
employee by permanently assigning him to light-duty tasks when those
tasks do not comprise a complete and separate position. Here, the case
was remanded to determine whether appellant was qualified to perform the
essential functions of vacant position including her former Secretary
position. While it could be inferred that employee could perform her
previous position the employee presented no direct evidence that she
could in fact perform this position.

***Cole v. Department of Veterans Affairs***, 77 MSPR 434 (1998) agency
properly removed an employee with the disabling condition of arthritis,
who was on LWOP for 2 years and intended to continue as such
indefinitely.

***Ellshoff v. Department of the Interior,*** 76 MSPR 54 (1997), the
charge of medical inability to perform duties is distinct from the
charge of unsatisfactory performance, and unlike the latter, requires
medical evidence showing that the employee is incapacitated for
particular duties due to a medical condition. In this case, the agency
failed to prove its charge of medical inability to perform job duties
due to depression, even if the employee did not adequately perform her
job duties in six weeks prior to her removal and had been medically
incapacitated during that time, since pre-removal medical evidence,
including reports of her treating psychiatrist and of the agency\'s
medical officer, showed that the employee was not incapacitated for work
at the time of her removal, and the psychiatrist submitted additional
post-removal medical evidence that reaffirmed his prior opinion.

***Clark v. United States Postal Service***, 74 MSPR 552 (1997) postal
service employee with back impairment was improperly removed from his
mail processor position for physical inability to perform the duties of
his position. The MSPB found that there were reasonable accommodations
which would have permitted the employee to perform his job that would
not have caused an undue hardship. Because he couldn=t bend, the
appellant asked that his mail cart be raised a bit by adjusting the
height of the cart legs and/or that the mail trays be placed on the top
shelf, with the bottom weighed down by telephone books. The agency
denied this simple request and the removal was reversed.

***Spencer v. Department of the Navy,*** 73 MSPR 15 (1997) the appellant
was improperly removed for medical inability to perform his position of
GS-5 supply clerk due to his physical impairment of Asleep apnea@.
Appellant=s own doctor concluded in a letter that appellant=s Acondition
contributes to his day-time sleeping@ and Acould indeed be a hazard to
his health as well as occupational responsibilities.@ The AJ upheld the
removal finding that his medical condition frequently caused him to
sleep at work, an impairment which the AJ found inherently dangerous.
The Board, however, reversed the removal. **To remove an employee for
medical inability to perform the duties of his/her position, the agency
must establish either a nexus between his/her medical conditions and
observed deficiencies in his/her performance or conduct, or a high
probability of hazard when his/her condition may result in injury to
himself or others because of the kind of work he or she does.** The
agency failed to satisfy either test. There was insufficient evidence of
observed performance or conduct deficiencies because the agency had
failed to prove that appellant had in fact slept on duty and his
performance had been previously satisfactory. Moreover, the agency had
not proven appellant=s continued employment would result in a high
probability of hazard. An employee=s ability to perform his/her full
duties without incident, is a significant factor in determining whether
there is a high probability of hazard. Further, the doctor=s report was
not sufficiently detailed in that it did not support his opinion with
any references to the specific duties of appellant=s position. Finally,
while appellant=s physician did discuss appellant=s medical
restrictions, he did not expressly bar the appellant from his supply
clerk position. Thus, there was insufficient evidence to sustain the
removal.

***Yates v. U.S. Postal Service***, 70 M.S.P.R. 172 (1996) to meet its
burden of showing that appellant was not physically able to perform his
duties, the agency must establish a nexus between his medical condition
and observed deficiencies in his performance or conduct, or a high
probability of hazard when his condition may result in injury to him or
others because of the kind of work he does.

**EEOC Cases**

***Henry v. Henderson, Postmaster General, U.S. Postal Service,*** 99
FEOR 3254 (1999) agency subjected the appellant to disability
discrimination when it found him medically unsuitable for his position
without conducting an individualized assessment of his capabilities or
considering whether he could be accommodated, and when it offered him a
choice between disability retirement and termination. The EEOC found
that appellant\'s severe degenerative arthritis in his knee rendered him
an individual with a disability. It found that he was qualified to
perform the job at the time of his nonselection and was therefore a
qualified individual with a disability. The agency focused almost
entirely on appellant\'s climbing restrictions, finding it would make
him a danger to himself or others. However, this finding was based upon
a speculative fear and was unsupported by the specific evidence in the
record. The agency failed to conduct an individualized assessment of the
appellant\'s capabilities without making an effort to determine whether
the employee could be accommodated. When an employer makes a decision
based upon the likelihood of future injury of the employee on himself or
others a \"direct threat\" analysis must be employed. An employer does
not have to retain an employee that causes a direct threat to the
workplace. (29 C.F.R. 1630.15(b)(2). A direct threat is a \"significant
risk of substantial harm\" which cannot be eliminated or reduced by
reasonable accommodation. (29 C.F.R. 1630.2(r)). A determination as to
whether an individual poses a direct threat cannot be based upon an
employer\'s subjective evaluation or speculation, but must rely on
objective, factual evidence, including the individual\'s experience in
previous positions, and the opinions of medical doctors. See Appendix to
29 C.F.R. 1630. In this case there was no consideration of any
reasonable accommodations. No consideration of restructuring the job
(e.g. no consideration of substituting high bay cleaning with other
duties to eliminate the health risk or continued light duty) and no
consideration of reassignment from his current position. Regarding
reassignment, an agency has no duty to create a new position for an
employee, however, it must consider reassignment to a vacant position
for which the employee is qualified to perform. In this case, the agency
made any attempt to find whether he could be reassigned to another job.
Thus, the EEOC ordered reinstatement and remanded the case to determine
the appropriate amount of compensatory damages in this case.

***Nori v. Henderson, Postmaster General, U.S. Postal Service***, 99
FEOR 3003 (1998) appellant was properly terminated because he
constituted a direct threat to the safety of the workplace. Appellant
had a \"delusional disorder with grandiose and persecutory features.\"
The psychiatrist found he was not fit for duty because he could not
carry a weapon due to his potential for unpredictable and violent
behavior. The psychiatrist continued that he could not be placed in a
non-police position because he still could engage in violent behavior.
The psychiatrist further held that appellant\'s prognosis was poor
because he did not believe he had a mental condition that required
treatment.

***Maxwell v. West, Acting Secretary, Department of Veterans Affairs***,
98 FEOR 3224 (1998) employee with heart condition posed a direct threat
because he could not perform his job as a dental technician without
endangering himself. Specifically, the employees doctor indicated that
because of an implanted defibrillator implanted in his heart, he could
receive a shock while working with dangerous equipment. An Industrial
Hygienist and Safety Specialist were call in to examine if there was
some way to accommodate appellant in a matter which would permit him to
perform his job safely but could find none. They could find no jobs at
his current level and offered him another job at the lower level but the
appellant rejected the offer. Thus the agency satisfied its reasonable
accommodation obligations.

***Coogle v. Runyon, Postmaster General, U.S. Postal Service***, 97 FEOR
1096 (1997), the agency discriminated against the complainant, an
applicant for the position of Letter Sorter Machine Operator Trainee,
when it failed to conduct an individualized assessment of whether he
could perform the position he sought in spite of his ankle injury.

***Flynn-Banigan v. Reno, Attorney General, Department of Justice***, 96
FEOR 3104 (1996) (refusal to hire an applicant for Border Patrol Agent
solely because he did not meet the medical standard of 20/70 uncorrected
vision was remanded for further investigation to determine, in part,
whether such a standard which established a Ablanket exclusion@, was
job- related.

***Curry v. West, Secretary, Department of the Army***, 96 FEOR 1100
(1995), the agency violated the Rehabilitation Act when it regarded
appellant as disabled do to his knee and back injuries. a decision not
to hire because of a predicted future injury must be based upon more
than an elevated risk of injury, but on a reasonable probability of
substantial harm if the employee performs the job. There must be an
individualized assessment of appellant=s condition , taking into account
the nature and duration of the risk, its severity (i.e. potential harm)
and the probability of it occurring. The imminence of the risk should be
considered as part of assessing its probability. The agency failed to
prove a reasonable probability of substantial harm and therefore
discriminated against the appellant.

**I. Enforced Leave/Constructive Discharge or Suspension**

***Dancy Butler v. Department of the Treasury***, 80 M.S.P.R. 421
(1998),If an employee who initiated his own absence requests to return
to work within certain medical restrictions, and if the agency is bound
by the rehabilitation Act to accommodate the medical condition and to
allow the employee to return, the agency\'s failure to reasonably
accommodate becomes a constructive discharge. When the agency does not
make an express decision to suspend an employee for more than 14 days,
the time in which the employee may file a timely appeal of constructive
suspension begins to run when the employee has been absent for more than
14 days. An employee is not entitled to her appeal rights from a
presumably voluntary employee-initiated action until she puts the agency
on notice that she considers the action to be involuntary, or the
circumstances show that the agency knew or should have known facts
indicating that the action was involuntary.

***Conover v. Department of the Army***, 78 MSPR 605 (1998) employee
raised non-frivolous allegation that her resignation was involuntary
because of disability discrimination; the employee alleged that the
agency\'s failure to accommodate her stress related disorders by putting
an end to harassing treatment by a coworker, relocating her work
station, or reassigning her, led her to resign. In cases where the
employee has alleged that intolerable working conditions led to her
resignation or retirement, the appropriate test for involuntariness is
whether under all of the circumstances working conditions were made so
difficult by the agency that a reasonable person in the employee\'s
position would have felt compelled to resign or retire. An employee is
entitled to notice of Board appeal rights from a presumptively voluntary
action like a resignation if the employee placed the agency on notice
that he considered the presumptively voluntary action to be involuntary,
or if the agency was or should have been aware of facts indicating that
the resignation was involuntary.

***Schultz v. United States Postal Service***, 78 MSPR 159 (1998),
regardless of the status of an agency\'s inquiry concerning an
employee\'s ability to perform, the employee has been constructively
suspended if his absence is involuntary, i.e. at the direction of the
agency.

***Lohf v. United States Postal Service***, 71 M.S.P.R. 81 (1996), an
agency=s placement of an employee on enforced leave for more than
fourteen days, based on alleged physical or mental disability,
constitutes a constructive suspension appealable to the Board. The key
question in enforced suspension case is whether the agency or the
appellant initiated the leave. Here the agency, after giving appellant a
fitness for duty exam, placed the appellant on enforced leave and
prevented him from returning to duty until he completed a ninety-day
inpatient treatment program for PTSD.

***Baker v. U.S. Postal Service, supra,*** appellant, while performing
as a Reservist in the U.S. Army injured his toe in a manner which
prevented him from carrying out the essential functions of his Postal
Service position of Mailhandler. In accordance with 38 U.S.C. 4304(d)
where the appellant was unable to perform his prior position, but was
qualified to perform another position, upon his request, he was entitled
to perform another position he was qualified for and was within his
medical restrictions. Appellant made a non-frivolous allegation that he
was able and willing to return to work within certain medical
restrictions. Once he did so the burden of production shifted to the
agency to show either that there was no work available within
appellant=s medical restrictions or that it offered such work and he
declined it. If the agency produces such evidence the appellant must
then present sufficient rebuttal evidence to meet his overall burden of
persuasion. The agency did not carry its burden of production.
Appellant=s supervisor testified that she did not know whether there was
work within appellant=s medical restrictions and the agency did not
offer to allow appellant to return to work. Accordingly, the case was
remanded to determine whether the agency constructively suspended the
appellant.

**J. Medical Evidence**

**Court of Appeals Cases**

***McCreary v. Libbey-Owens-Ford Co.,*** (7th Cir., February 6, 1998),
plaintiff\'s representations to Social Security Administration are not
irrelevant to determining whether he is qualified individual with a
disability under ADA, but are some evidence of plaintiff\'s ability to
perform essential functions of job; to establish genuine issue of
material fact, plaintiff must come forward with evidence, other than
those representations, that tends to show that plaintiff can, with or
without reasonable accommodation, perform essential functions of job.

***McConathy v. Dr. Pepper/Seven Up Corporation,*** Case No. 97-10037
(5th Cir. January 7, 1998) employee was judicially estopped, by her
statement in application for social security disability benefits, from
arguing that she was qualified person with a disability.

**MSPB Cases**

***Ellshoff v. Department of the Interior,*** 76 MSPR 54 (1997), in
determining whether the employee was incapacitated for work due to
depression at the time of her removal on the charge of medical inability
to perform, the opinion of the agency\'s medical officer had to be
interpreted in the context of the treating psychiatrist\'s reports,
since the medical officer did not examine or treat the employee but was
merely interpreting the reports of the treating psychiatrist. Any
ambiguity in the medical report would be construed against the agency
since the agency bears the burden of proving the charge of medical
inability to perform. In this case, the pre-removal medical evidence
showed that the appellant was not incapacitated for work due to
depression at the time of her removal. The appellant also introduced
post-removal medical evidence from his doctor, reaffirming his prior
opinion that he was medically able to perform his job. Post-removal
evidence may be considered by the Board in reviewing a charge of medical
incapacity, to the extent that it \"sheds light on the circumstances at
the time the agency act.\" The Board will even consider evidence of
medical recovery that occurs after the employee\'s removal.

***Jackson v. U.S. Postal Service***, 73 MSPR 619 (1997), the agency
erred when it removed a custodian because of his severe allergies to
certain chemicals. It misinterpreted medical evidence submitted by her
physician and had not made a meaningful effort to reassign the
appellant. The medical evidence reflected that appellant could not
perform in custodial jobs because she would come in contact with certain
chemicals which would adversely affect her health. The medical evidence
did not conclude, however, that she required an environment free from
chemicals. In this case appellant suffers from *dermatitis* which
prohibited her from touching certain chemicals. She has no allergic
reaction inhaling such cleaning chemicals when normally used in an the
office environment. Therefore, she could have performed the jobs of Mail
Processor or other noncustodial positions. The agency never meaningfully
explored reassignment to such positions and therefore violated the
Rehabilitation Act of 1973.

***Flanagan v. United States Postal Service***, 56 MSPR 134 (1992) the
medical documentation did not support that the appellant was a qualified
disabled person. The conclusion that he would not harm himself or others
because of his paranoid schizophrenia was based upon a general analysis
of his work history and did not reference or explain appellant=s recent
assault of his supervisor.

***Fuentes v. United States Postal Service***, 54 MSPR 4 (1992)
appellant submitted many letters from his physician documenting that
appellant suffered from chronic schizophrenia, paranoid type. The doctor
recommended that appellant be placed in an environment free from work
pressures and away from the public. The MSPB gave these letters little
weight since they did not indicate that appellant=s condition
substantially limited a major life activity, did not provide a prognosis
and contained little objective analysis of the condition.

**EEOC Cases**

***Coogle v. Runyon, Postmaster General, U.S. Postal Service***, 97 FEOR
1096 (1996) the agency violated the Rehabilitation Act because it did
not base its decision to reject complainant=s application on substantial
information about the individual=s work and medical history, and it may
chose instead to rely on its own incomplete and subjective evaluation.
The medical officer recommending that the complainant could not perform
the position because of his ankle injury, had no knowledge of how
frequently and for what lengths of time appellant would be required to
stand, walk, or lift when performing the Letter Sorter Position. When
complainant=s doctor submitted a medical report reflecting he could
perform the job, no one contacted the doctor to clarify why the
difference in opinion existed. They also rejected appellant=s suggestion
for a third medical examination.

***Hilton v. Runyon, Postmaster General, U.S. Postal Service,*** 94 FEOR
3082 (1993) the EEOC remanded to determine whether the agency
discriminated against an appellant suffering from epilepsy when it
insisted that appellant sign a general release of all medical records
relating to her seizure disorder and removed her when she failed to sign
it. Appellant had what appeared to be a clerical position. The agency
claimed that the job required climbing and exposure to hazardous
equipment. Appellant asserted it was a desk job with only occasional
trips to the shop and work area. The EEOC remanded for further
investigation but clearly sent the message that if the position was
predominantly a desk job they would find discrimination. They remanded
to determine precisely why the medical officer determined he had to have
the general release signed, what the job entailed, information regarding
the specific machinery appellant would come in contact with, the
frequency of such contact, the configuration of the office and proximity
to dangerous equipment, the degree to which appellant=s disability would
impact on the safety of others and the basis for concluding that the job
required climbing.

**K. Compensatory Damages**

***Barber v. Nabors Drilling U.S.A.***, Case No. 20102 (5th Cir. 1997),
good faith dispute existed as to whether full medical release would be
necessary for employee to perform essential functions of his job, and
employer\'s insistence that employee obtain full medical release before
returning to work thus was not evidence of malice or reckless
indifference that could form basis for punitive damages instruction in
ADA action.

***Lilian v. Runyon, Postmaster General, U.S. Postal Service,*** 97 FEOR
3070 (1996) appellant=s disability prevented him from being exposed to
noise levels greater than 50 decibels and the agency discriminated when
it failed to measure the noise level in his newly assigned area to meet
his restrictions. However, the EEOC determined that appellant was
entitled to no compensatory damages because the agency made a good faith
effort to accommodate the appellant.

***Spencer v. Department of the Navy***, 82 MSPR 149 (1999) employee
erroneously regarded as disabled was not entitled to compensatory
damages as a matter of law because no accommodation was required.

**L. Mitigation**

***Bond v. Department of Energy***, 82 MSPR 534 (1999) employee who
suffered from gastroesophageal reflux disease (GED) failed to show that
his impairment, or the medication he took for it, Prilosec,
substantially limited a major life activity, so as to render him
disabled, and (2) penalty of removal for sleeping while on duty would be
mitigated to a 60 day suspension, where the employees medical condition
and the side effects of the prescription drug he was taking for his
condition played a part in the charged misconduct (10 specifications of
AWOL and 9 specifications of sleeping on the job), and prior
disciplinary actions were recent and based upon the same type of
misconduct. The Board found that the misconduct was caused largely by
his medication which made him sleepy. Right before his removal was
proposed he moved to within ten minutes of the agency and he is now
taking a new medication that does not cause sleepiness. The Board found
that appellant\'s seeking treatment for his medical problems indicates a
potential for rehabilitation. The Board also concluded that because
appellants medical conditions were present during earlier misconduct
that it did not qualify as an aggravating factor under the particular
circumstances of this case.

***Hunter v. Department of the Air Force***, 77 MSPR 589 (1998) the MSPB
upheld the award of arbitrator which mitigated the removal of a W.G.-10
Sheet Metal Mechanic (Aircraft) for making threatening statements that
he was suicidal and that he would physically harm certain management
officials by stating he would \"get\" these officials. The arbitrator
found that appellant was in need of medical care but that neither party
provided sufficient evidence of whether he could be accommodated. He
found that the appellant was not fit for duty in October of 1995 around
his removal but directed the agency to reinstate the appellant to his
previous employment status with attendant rights and benefits as of the
date of his removal. However, the arbitrator instructed the agency not
to return him to work until he was certified fit for duty by a qualified
or board certified psychiatrist. The arbitrator ruled that the appellant
would not be entitled to back pay because he would not be considered fit
for duty between the date of his removal and the date a certified
psychiatrist stated that he was fit for duty. The Board upheld this
decision, finding that the arbitrator properly considered the Douglas
factors in considering the appropriateness of the penalty.

***Roseman v. Department of the Treasury,*** 76 MSPR 334 (1997)**,**
evidence that employee\'s medical condition played a part in charged
conduct is ordinarily entitled to considerable weight as a mitigating
factor. Even if the employee\'s medical condition does not rise to the
level of a disability, if agency knew about it before taking the action
at issue, the Board may consider the in determining the appropriate
penalty. Here there was no evidence of a causal connection between the
employee\'s back impairment and his insubordinate misconduct.

***Walsh v. Postal Service***, 74 MSPR 627 (1997), appellant, an
alcoholic employee, was removed for throwing away over 1,000 pieces of
mail. The MSPB reiterated that it was no longer required to provide a
firm choice between treatment and removal and upheld the removal despite
the fact that appellant had placed himself in a detoxification program
after engaging in his misconduct. The MSPB decided to uphold the removal
because of the seriousness of the offense. The MSPB did indicate,
however, that it will consider mitigating a penalty where an alcoholic
employee or other employee with a physical or mental impairment which
causes misconduct, shows potential for rehabilitation by seeking
treatment.

***Sublette v. Department of the Army***, 68 MSPR 82 (1995), mitigation
of penalty of removal to demotion to highest available nonsupervisory
position was justified in the case of a supervisor who engaged in
misconduct, including sexual harassment, obscene language,
discrimination, and offensive comments. Although the employee failed to
show that he was mentally disabled, he did show that the agency was
aware before removing him that he had some degree of mental impairment,
the employee had over 26 years of satisfactory service, he showed
potential for rehabilitation in that he embarked on a treatment program
of antidepressants and psychotherapy, and the agency failed to apply any
progressive discipline.

**M. Post-Removal Evidence of Recovery**

***Ellshoff v. Department of the Interior,*** 76 MSPR 54 (1997),
post-removal evidence may be considered by the Board in reviewing a
charge of medical incapacity, to the extent that it \"sheds light on the
circumstances at the time the agency act.\" The Board will even consider
evidence of medical recovery that occurs after the employee\'s removal.

***Castillas v. Department of the Air Force***, 64 M.S.P.R. 627 (1994),
the MSPB will consider evidence of an employee\'s medical recovery that
first came into existence subsequent to the removal action and was not
considered by the agency in effecting the removal, since removal of a
fully recovered employee would not promote the efficiency of the
service. However, absent clear evidence of complete recovery, the
appellant shall not be returned to duty. **See *Morgan v. U.S. Postal
Service,*** 48 M.S.P.R. 607 (1991); ***Day v. Department of the Army*,**
47 MSPR 617 (1991); ***Street v. Department of the Army***, 23 MSPR 335
(1984).

**N. The MSPB Has The Authority to Order a Medical Examination**

***Hasler v. Department of the Air Force,*** 79 MSPR 415 (1998) (Member
Slave dissenting) overruling ***Brumley v. Department of
Transportation***, 46 M.S.P.R. 666 (1991), the MSPB reversed itself and
found that the Board has the authority to order a mental examination
where it meets the requirements of Rule 35 of the Federal Rules of Civil
Procedure. Thus, the Board held that where an employee requested
500,000.000 for emotional distress, a Rule 35 ordered mental or physical
examination is an appropriate method of discovery. See also ***Carpenter
v. Glickman***, 95 FEOR 3229 (1995) in which the EEOC remanded a
disability discrimination case back to the agency to conduct a
supplemental investigation to review all relevant medical records
concerning the complainant=s claim for compensatory damages.

[^1]: This represent\'s Mr. Maxin\'s own views and does not necessarily
    reflect the views of the U.S. Department of Labor.