2 F.3d 1180 (D.C. Cir. 1993), 91-5199, Barth v. Gelb

Docket Nº:91-5199.
Citation:2 F.3d 1180
Party Name:Donald BARTH, Appellant, v. Bruce S. GELB, Director, United States Information Agency, et al.
Case Date:August 27, 1993
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1180

2 F.3d 1180 (D.C. Cir. 1993)

Donald BARTH, Appellant,


Bruce S. GELB, Director, United States Information Agency, et al.

No. 91-5199.

United States Court of Appeals, District of Columbia Circuit

August 27, 1993

Argued Nov. 2, 1992.

Page 1181

Michael J. Kator, Washington, DC, argued the cause, for appellant. With him on the brief were David H. Shapiro and Katherine L. Garrett, Washington, DC.

Diane M. Sullivan, Asst. U.S. Atty., Washington, DC, argued the cause, for appellees. With her on the brief were Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, DC.

Page 1182

Before SILBERMAN, BUCKLEY, and D.H. GINSBURG, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Donald Barth, a severe diabetic, appeals a judgment in favor of his employer, the Voice of America, on his claim that the VOA illegally discriminated on the basis of handicap by failing to clear him for service at the VOA's overseas radio relay stations. The district court found that the agency was justified in denying Mr. Barth an overseas assignment because the special arrangements required to accommodate his medical condition would have imposed an undue burden on its operations. Mr. Barth's principal challenge is directed to the court's allocation to him of the ultimate burden of proof on that issue. Because a claim of undue burden is an affirmative defense in actions under the Rehabilitation Act of 1973, we find that the burden of proving it should have been placed on the VOA. But because we also find that this error was harmless, we affirm the district court's judgment.


Donald Barth is a Washington-based computer specialist and employee of the VOA who decided he wanted a change in assignments and a chance to see the world. Accordingly, in 1988, he applied for admittance into the permanent Foreign Service, out of which engineering positions at the VOA's twelve overseas radio relay stations are staffed. Mr. Barth passed all requirements for admittance into the Service, except that he failed a State Department medical clearance examination designed to assess his availability for worldwide service. Mr. Barth suffers from an advanced and degenerative form of diabetes requiring the care of a skilled endocrinologist to control the diabetes, plus an array of other specialists (in ophthalmology, for example) to control its complications. The State Department found that Mr. Barth could not serve worldwide, but only in locations with advanced medical facilities.

After the denial of the medical clearance, Mr. Barth requested a medical waiver from the VOA. His particular suggestion was that the VOA grant a limited waiver restricting his assignments to posts with suitable medical facilities. After protracted deliberations, the VOA denied Mr. Barth's waiver request without a written statement of reasons. Upon exhausting his administrative remedies, Mr. Barth brought suit under the Rehabilitation Act of 1973, as amended, 29 U.S.C. Sec. 701-796i (1988), asking the court to order his assignment to a suitable overseas relay station position and to award him backpay.

After a four-day bench trial, the district court found that Mr. Barth's diabetic condition was the sole reason for his exclusion from the VOA's Overseas Radio Relay Station Program and that, although the waiver panel had not recorded its findings, it had focused on whether a reasonable accommodation could be made to his handicap. The court noted that the entire corps of American overseas relay station engineers consists of only seventy persons divided among the twelve stations, most of which were located in remote, sparsely populated areas. It found that Mr. Barth "could function at only three or four posts" and that

[t]he thin staffing at each post required flexibility of assignment, put a premium on workers not subject to serious health risks, and offered few options for initial assignment of Mr. Barth. Accepting applicants who could basically only work at a few non-hardship posts would be considered unfair to other Specialists and detrimental to morale and success of the program.

Barth v. Gelb, 761 F.Supp. 830, 837-38 (D.D.C.1991) ("Mem. op."). The court concluded "as a matter of law" that accommodating Mr. Barth by limiting his assignments would "place an undue burden on the VOA program," and it granted judgment in favor of the agency. Id. at 837-38. This appeal followed.


  1. The Burden of Proof

    Mr. Barth's principal claim is that he was improperly assigned the burden of proving that the requested accommodation would

    Page 1183

    not constitute an undue hardship. Specifically, he objects to the court's holding, in reliance on our decision in Carter v. Bennett, 840 F.2d 63, 65-66 (D.C.Cir.1988), that "Mr. Barth has the ultimate burden of proof." Mem. op. at 833. The court explained its allocation of the burden in the following footnote:

    The Court of Appeals has stated that in a Rehabilitation Act case claiming wrongful denial of a federal job, the plaintiff has the initial burden to make a prima facie showing that reasonable accommodation of his handicap was possible. The burden then shifts to the defendant to show inability to accommodate. Credible evidence in that regard shifts the burden back to the plaintiff. Carter v. Bennett, 840 F.2d at 65.

    Id. at 833 n. 7.

    Mr. Barth claims that, Carter notwithstanding, this allocation runs afoul of our recent decision in Langon v. Department of Health & Human Services, 959 F.2d 1053 (D.C.Cir.1992). He argues that, under Langon, the burden of proving undue hardship rests with the agency. See Langon, 959 F.2d at 1060 ("The burden of showing undue hardship was on [the government agency].") Although the apparent contradiction between these two cases is easily explained (the language cited in Carter dealt with the burden of production; that in Langon, with the burden of persuasion), Mr. Barth's objection to the district court's assignment of the burden in this case is well taken.

    Because of the ambiguities in the precedent of this and other circuits on the burdens of proof in Rehabilitation Act cases, we will begin with a review of the applicable law. We will then address the allocation of those burdens in this case.

    1. Statutory Framework

    The Rehabilitation Act of 1973 governs employee claims of handicap discrimination against the Federal Government. Its basic tenet is that the Government must take reasonable affirmative steps to accommodate the handicapped, except where undue hardship would result.

    As originally enacted, section 501 of the Act simply spurred governmental efforts to employ the handicapped through such measures as affirmative action plans and review committees. See 29 U.S.C. Sec. 791. Section 504 of the Act prohibited discrimination against the handicapped by recipients of federal funds. See id. Sec. 794.

    In 1978, however, Congress decided that stronger measures were needed on behalf of persons subjected to handicap discrimination by government agencies; and it enacted several provisions to supply them. Among these was section 505(a)(1), 29 U.S.C. Sec. 794a(a)(1), which allows private litigants to enforce rights under section 501 in suits employing the "remedies, procedures, and rights set forth in section 717 of the Civil Rights Act of 1964 (42 U.S.C. Sec. 2000e-16)." That section appears in Title VII of the Civil Rights Act of 1964, which is entitled "Equal Employment Opportunity."

    At the same time, Congress expanded section 504 to cover federal agencies as well as recipients of federal funds and revised it to require the promulgation of regulations "to carry out" the amendments. See Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub.L. No. 95-602, Sec. 119, 92 Stat. 2955, 2982 (1978). Congress also added section 505(a)(2), 29 U.S.C. Sec. 794a(a)(2), which provides that the "remedies, procedures, and rights" set forth in Title VI ("Nondiscrimination in Federally Assisted Programs") of the Civil Rights Act be available in connection with complaints under section 504. Because these statutes are duplicative, some courts have limited claims against the Government as employer to actions brought under section 501, while others have allowed litigants to proceed under either provision. See Milbert v. Koop, 830 F.2d 354, 357 (D.C.Cir.1987) (collecting cases). We have "strongly suggest[ed]" that litigants proceed under section 501, see id. at 357; and Mr. Barth has complied with this suggestion.

    A principal issue under the Act is whether the rights Congress so clearly enacted are to be enforced through the adaptation of civil rights law or through the promulgation of administrative regulations. In light

    Page 1184

    of section 505(a)(1)'s terse command that the "remedies, procedures, and rights set forth in section 717 of the Civil Rights Act" be made available in connection with complaints brought under section 501, it would seem reasonable for courts to look to the body of law developed under Title VII for guidance in enforcing comparable rights protected under the Rehabilitation Act. See Milbert, 830 F.2d at 356 (section 501 "incorporate[s]" Title VII provisions); Judd v. Billington, 863 F.2d 103, 105 (D.C.Cir.1988) (same).

    Section 717 of the Civil Rights Act, 42 U.S.C. Sec. 2000e-16, prohibits discrimination in Federal employment on the basis of "race, color, religion, sex or national origin." Under section 2000e-16, the closest analogy to discrimination on the basis of handicap is discrimination on the basis of religion. Whereas race, color, sex, and national origin are nearly always irrelevant to an employee's ability to perform a federal job, handicaps, like religious beliefs, are of a great variety and are often relevant to an employee's job performance. Under Title VII,...

To continue reading