Jackson v. Veterans Admin.

• Decision Date: 06 June 1994
• Docket Number: No. 93-6375,93-6375
• Citation: 22 F.3d 277
• Parties: 3 A.D. Cases 483 Donald JACKSON, Plaintiff-Appellant, v. VETERANS ADMINISTRATION, Administrator of Veterans Affairs, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 277

22 F.3d 277

3 A.D. Cases 483

Donald JACKSON, Plaintiff-Appellant, v. VETERANS ADMINISTRATION, Administrator of Veterans Affairs Defendant-Appellee.

No. 93-6375.

United States Court of Appeals Eleventh Circuit.

June 6, 1994.

John L. Quinn, Birmingham, AL, for appellant.

Jack W. Selden, U.S. Atty., James G. Gann, III, D. Wayne Rogers, Jr., Birmingham, AL, for appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before BIRCH, Circuit Judge, RONEY and CLARK, Senior Circuit Judges.

RONEY, Senior Circuit Judge:

Plaintiff Donald Jackson challenges his termination from employment with the Veterans Administration. Jackson was given a temporary appointment as a housekeeping aide for the Veteran's Administration ("VA") at its Birmingham Hospital in January 1991. From the time he was hired on January 14, 1991 until April 16, 1991--a period of about two and a half months--Jackson was absent from work a total of six days. The VA terminated Jackson on April 17, 1991, for excessive absences.

Rejecting his claim that he was wrongfully fired under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 (1988) (the "Act"), because of a service-connected disability caused by rheumatoid arthritis, the district court granted summary judgment in favor of the VA. Jackson appeals. We affirm.

Section 504 of the Rehabilitation Act states in relevant part:

No otherwise qualified individual with handicaps ... shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

To prove discrimination under the Act, a plaintiff must show that he or she: (1) is "handicapped" within the meaning of the Act and relevant regulations, (2) is "otherwise qualified" for the position in question, (3) worked for a Program or activity that received federal financial assistance; and (4) was adversely treated solely because of his or her handicap. Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir.1993). cert. denied, --- U.S. ----, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994).

It is undisputed that Jackson is handicapped for purposes of the Act and that the VA receives federal funding. The question here is whether Jackson is an "otherwise qualified" person who has been denied employment solely because of his handicap.

A person is "otherwise qualified" if he or she is able to perform the essential functions of the job in question. School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n. 17, 107 S.Ct. 1123, 1131 n. 17, 94 L.Ed.2d 307 (1987); see Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1126 (11th Cir.1993); 38 C.F.R. Sec. 18.403(K)(1) (1993). Department of Veteran Affairs ("VA") regulations implementing Section 504 define a qualified handicapped individual as follows:

With respect to employment, a handicapped person who, with reasonable accommodation, can perform the essential functions of the job in question....

38 C.F.R. Sec. 18.403(K)(1) (1993).

As a housekeeping aide, Jackson's tasks include emptying trash cans, cleaning floors and bathrooms. The VA does not dispute that Jackson performs these tasks satisfactorily when he is at work. The VA argues, however, that for Jackson to fully satisfy the requirements of the job he must be on site. Therefore, Jackson's presence on a routine basis is also an essential element of the job that he has failed to satisfy.

The employee must be "able to meet all of a program's requirements in spite of his handicap." Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct 2361, 2367, 60 L.Ed.2d 980 (1979). Unlike other jobs that can be performed off site or deferred until a later day, the tasks of a housekeeping aide by their very nature must be performed daily at a specific location. Because Jackson was absent numerous times within the first few months of his probationary employment on a sporadic, unpredictable basis, he could not fulfill this essential function of his employment, that of being present on the job, and was not otherwise qualified. See e.g. Walders v. Garrett, 765 F.Supp. 303, 309 (E.D.Va.1991), aff'd without op., 956 F.2d 1163 (4th Cir.1992) ("[W]hile perfect attendance is not a necessary element of all jobs, reasonably regular and predictable attendance is necessary for many."); Wimbley v. Bolger, 642 F.Supp. 481, 485 (W.D.Tenn.1986), aff'd without op., 831 F.2d 298 (6th Cir.1987) ("one who does not come to work cannot perform any of his job functions, essential or otherwise"); Matzo v. Postmaster General, 685 F.Supp. 260 (D.D.C.1987), aff'd without op., 861 F.2d 1290 (D.C.Cir.1988) (plaintiff whose attendance at work is unreliable and sporadic failed to fulfill essential function of job). The district court correctly reasoned that Jackson has failed to prove he is an otherwise qualified individual because he has failed to satisfy the presence requirement of the job.

Jackson alleges that he could have satisfied this presence requirement with some accommodation. The federal regulations implementing Section 504 offer guidance regarding the federal employer's duty to accommodate. The VA is required to

make reasonable accommodation to the known physical or mental limitations of a handicapped ... employee if such accommodation would enable that person to perform the essential functions of the job unless the [federal agency] can demonstrate that the accommodation would impose an undue hardship on the operation of its program.

38 C.F.R. Sec. 18.412(a); see also Prewitt v. United States Postal Serv., 662 F.2d 292, 308 (5th Cir. Unit A Nov. 1981) (applying the relevant EEOC regulation regarding accommodation). "Such accommodations may include 'job restructuring, and parttime or modified work schedules....' " 38 C.F.R. Sec. 18.412(b).

Jackson sought the following accommodations: when he receives his bi-weekly treatment for arthritis, the VA could either schedule a regular off day or delay the start of Mr. Jackson's shift. In the event of a flare-up due to his condition, Jackson could swap off days with other employees, delay his shift start time, or defer more physically demanding and less time sensitive job duties until the next day.

Such accommodations do not address the heart of the problem: the unpredictable nature of Jackson's absences. There is no way to accommodate this aspect of his absences. Requiring the VA to accommodate such absences would place upon the agency the burden of making last-minute provisions for Jackson's work to be done by someone else. Such a requirement would place an undue hardship on the agency. See Guice-Mills v. Derwinski, 772 F.Supp. 188 (S.D.N.Y.1991), aff'd, 967 F.2d 794 (2d Cir.1992) (where nurse's attendance required, VA under no duty to accommodate unorthodox work schedule).

In terms of what would be considered a reasonable accommodation, Jackson cites two cases for the proposition that even absences in excess of allotted leave time may be subject to accommodation. See Kimbro v. Atlantic-Richfield Co., 889 F.2d 869 (9th Cir.1989), cert. denied, 498 U.S. 814, 111 S.Ct. 53, 112 L.Ed.2d 28 (1990), and Teahan v. Metro-North Commuter R.R. Co., 951 F.2d 511 (2d Cir.1991). But the issue here is not whether absences in excess of allotted leave are subject to accommodation. The VA concedes Jackson only used time allotted to him. Nor does the VA dispute that five of Jackson's six absences were disability related. Rather, the issue is whether the number of sporadic, unscheduled absences within the first few months of temporary employment can be reasonably accommodated. Under the circumstances of this case, there was no reasonable accommodation for Jackson's numerous unpredictable absences in the first few months of work as a temporary employee. The VA is entitled to prevail on summary judgment where the employee is not otherwise qualified and there exists no genuine issue of fact as to the availability of a reasonable accommodation. See Fitzpatrick, 2 F.3d at 1126.

Temporary employment is a method by which an employer can determine whether a person can meet the needs of the job, subject to what reasonable accommodation can be made for a disability. The district court correctly held that it was apparent that this temporary employee could not report to work consistently, a necessary part of the particular job he was hired to do.

Jackson's alternative argument that an accommodation may have been unnecessary is unsupported by the evidence available to the VA at the time of his discharge.

AFFIRMED.

BIRCH, Circuit Judge, dissenting:

I regret that I cannot join my brothers in their decision of this case. For the reasons that follow, I respectfully dissent.

I. Pertinent Facts

Jackson was hired by the VA in January, 1991, as a housekeeping aide at its Birmingham hospital. His employment was pursuant to a VA program wherein employees were to be veterans with a service-connected disability of thirty percent or more. Jackson suffers from degenerative rheumatoid arthritis and is rated at forty percent disabled. The VA was aware of Jackson's condition when he was hired since the program was targeted to disabled veterans. At the time, the VA stressed to Jackson that regular attendance at the hospital was important.

Jackson was dismissed from his position effective May 4, 1991, for his continued, irregular absences. He was absent six times over the three month period from mid-January to April 16, 1991. On a Friday in February and on March 15, 1991, he was absent as a result of adverse reactions to the bi-weekly treatment of his arthritis. He missed work April 3-5, 1991, because of a flare-up of his arthritic condition, although he claims to have reported to work on April 5 and been told to go home and return on Monday. On April 16, 1991, Jackson was forced to seek emergency medical treatment for an abscessed tooth. After the sixth unscheduled...