752 F.2d 1271 (8th Cir. 1985), 83-1458, Gardner v. Morris

Docket Nº:83-1458, 83-2011 and 83-2196.
Citation:752 F.2d 1271
Party Name:Thomas L. GARDNER, Appellee/Cross-Appellant, v. John W. MORRIS, Lieutenant General, Chief of Engineers, Corps of Engineers, Department of the Army, Appellants/Cross-Appellees. Walter C. Bell, Colonel, District Engineer, Corps of Engineers, Department of the Army.
Case Date:January 14, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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752 F.2d 1271 (8th Cir. 1985)

Thomas L. GARDNER, Appellee/Cross-Appellant,

v.

John W. MORRIS, Lieutenant General, Chief of Engineers,

Corps of Engineers, Department of the Army,

Appellants/Cross-Appellees.

Walter C. Bell, Colonel, District Engineer, Corps of

Engineers, Department of the Army.

Nos. 83-1458, 83-2011 and 83-2196.

United States Court of Appeals, Eighth Circuit

January 14, 1985

Submitted May 17, 1984.

Rehearing Denied Feb. 15, 1985.

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[Copyrighted Material Omitted]

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Jenny Sternbach, J.D., Washington, D.C., for appellants/cross-appellees.

Michael Hoare, St. Louis, Mo., for appellee/cross-appellant.

Before HEANEY, ROSS and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

The Army Corps of Engineers (the Corps) appeals from a final judgment entered in the District Court for the Eastern District of Missouri after a non-jury trial 1 granting Thomas L. Gardner monetary and injunctive relief for injuries sustained as a result of discrimination on the basis of his handicap in violation of the Rehabilitation Act of 1973, as amended in 1978, 29 U.S.C. Sec. 701 et seq. (Rehabilitation Act or the Act), and the regulations promulgated thereunder. For reversal the Corps argues that the district court erred in finding that (1) Gardner properly exhausted his administrative

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remedies pertaining to his 1981 and 1982 applications for overseas assignment and (2) the Corps could have safely and reasonably accommodated Gardner in Al Batin in 1978. For the reasons discussed below, we reverse the judgment of the district court.

FACTS 2

Since October 1961, Gardner has been a civilian employee with the United States Army Corps of Engineers in St. Louis, Missouri. He began as a structural engineering draftsman, a GS-5 position, and has received numerous promotions. At the time of this lawsuit Gardner was classified as a civil engineering technician, a GS-11 level position, the maximum level that could be obtained in the St. Louis district.

In 1973 Gardner was diagnosed as a manic depressive. An individual suffering from this disorder can experience bi-polar episodes of the illness--mania and depression. During a manic episode a person exhibits euphoria, rapidity of thought and speech, hyperactivity, paranoia, impaired judgment, impaired social and work habits, hypersexuality, and a tendency to sleep less than normal. During a depressive episode a person experiences diminished motor capacity, sadness, crying, inability to sleep or excessive sleep, loss of interest, hopelessness, and thoughts of suicide. An individual afflicted with manic depressive syndrome may be unable to communicate his or her problems to others during an episode and may resist necessary medical attention.

Gardner has experienced only manic episodes, his first in 1973. His treatment requires a daily dosage of 1,800 milligrams 3 of lithium carbonate, a prescription drug that helps stabilize a chemical imbalance in his system. Lithium toxicity, which can be fatal, occurs when a patient gets a higher concentration of lithium in his blood stream than is desirable. To insure that the blood serum lithium levels are properly maintained, a blood sample must be drawn and tested every three to four months. The danger of lithium toxicity is heightened in warm climates because the concentration of lithium in the blood stream increases as salt and water are lost through increased perspiration. This problem can be combatted with an increased consumption of fluids and salt. Manic depressive episodes can occur even when a patient is stabilized on lithium, although the medication makes an episode less likely to occur.

The Corps has been involved in several major construction projects in Saudi Arabia since 1951. On April 18, 1977, Gardner applied for a position as a civil engineering technician in Saudi Arabia. In St. Louis Gardner was classified as a civil engineering technician at a GS-11 level, the maximum level attainable for that position in St. Louis at that time. An assignment to Saudi Arabia would provide Gardner with a promotion to a GS-12 level, a salary increase and an additional living allowance. His application for overseas assignment included the following question:

Do you ... have any chronic or recurring physical or mental impairment or allergy which requires availability of general medical care, the services of a specialist, maintenance of prosthesis, medications, hospitalization, or special food? (This question is asked so that you will not be assigned where your special needs could not be met.)

In response, Gardner stated:

I have been diagnosed as a Manic Depressive. The first and last manic episodes occurred in August and November 1973, respectively. I take 1,500 [milligrams] of Lithium Carbonate per day. No re-occurrence since I began taking Lithium in 1973. Laboratory blood work is required every 4 months to assure that the proper Lithium level is being maintained. After the doctor has seen the

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laboratory report, he writes new prescriptions to cover the next 4 month period. The daily amount of Lithium required has not changed since 1973.

On September 22, 1977, the Corps advised the St. Louis District Engineer that Gardner had been tentatively chosen for an overseas assignment to Saudi Arabia as a civil engineering technician. Gardner's tentative assignment was a brief tour in Riyadh, Saudi Arabia, with subsequent relocation to Al Batin, Saudi Arabia.

Corps personnel seeking assignments in Saudi Arabia in 1977 were required to undergo complete medical examinations and were evaluated according to the standards set forth in the Certificate of Medical Examination:

Examining physician is advised that the medical facilities in Saudi Arabia are extremely limited with no capability for complicated medical situations. If employee or dependents have continuing/chronic illness or serious past medical history, qualification for assignment must be addressed carefully.

Dr. Ijaz Jatala, a board certified psychiatrist at the Sutter Clinic in St. Louis, Missouri, conducted Gardner's physical (not psychiatric) examination. At that time Gardner had not completed the portion of the certificate of medical examination which inquired whether he had a disorder that would interfere with his work duties. Apparently this omission was inadvertent. Furthermore, Dr. Jatala was not advised by Gardner or by anyone else that Gardner was a manic depressive or that he was on lithium. Based on the information that he had and his examination of Gardner, Dr. Jatala concluded that Gardner satisfied the Corps' medical requirements for the position in Saudi Arabia. Dr. Jatala indicated that he found nothing abnormal about Gardner's neurological and mental health. In October 1977, Gardner officially received the overseas position for which he had applied. On November 2, 1977, travel orders were issued--assignment to Riyadh with relocation to Al Batin.

The climate in Al Batin can be brutal with temperatures ranging from a low of 30? F on winter evenings to a high of 132? F on summer days. Typically, however, the average temperature on a summer day reaches 115? F with relatively low humidity. The constant blowing breeze occasionally develops into a sandstorm lasting three to four hours, during which all aircraft are grounded. In Riyadh the climate is dry but the temperatures are more extreme.

In December 1977, a clinic was maintained by a British support contractor at Al Batin. The clinic was staffed by a nurse and was designed to treat only ordinary maladies or traumas. There was no doctor at the clinic. Seriously ill persons would be stabilized until they could be moved to Riyadh or Dhahran. It was not until the spring of 1980, when a 100 bed hospital was opened in Al Batin, that there existed a facility in which blood analysis could be performed. Medical facilities available to Corps personnel in Riyadh in 1977 consisted of a clinic staffed by three physicians. In 1977 there were two hospitals in Riyadh available to Corps employees, but the hospitals did not meet western medical standards.

In 1977 it took one hour to fly or thirteen hours to drive from Al Batin to Riyadh. Radio communication between the two cities at that time was very poor. Each day communication was lost for approximately three to four hours. Evacuation to the nearest American MEDIVAC station in West Germany took between two to seven days depending on the communications, weather and availability of airplanes.

Gardner discussed the Saudi Arabia assignment privately with Dr. Ronald L. Martin, then Gardner's personal physician. Dr. Martin gave Gardner the names, but not the addresses, of two psychiatrists in Saudi Arabia with whom Gardner could consult. Both psychiatrists had completed their residency training at Washington University Medical School in St. Louis with Dr. Martin. Gardner was also given a six-month supply of lithium. Dr. Martin thought that the Saudi Arabia assignment was feasible

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for Gardner if he remained under medical or psychiatric scrutiny.

On December 5, 1977, Gardner departed St. Louis for a three-day orientation session in Columbia, Maryland. Gardner had some difficulty locating the motel at which the orientation session was held. When he finally reached the motel, he became agitated, confused, and violent. The police were called to take him to St. Agnes Hospital in Baltimore, Maryland. He was diagnosed as suffering from an acute manic episode. Gardner was sedated for aggression, hostility and explosive behavior. He was transferred to Spring Grove Hospital Center in Baltimore, a state mental facility. During his week-long stay at the facility, Gardner was restless, hyperactive, and irritable despite sedation...

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