Barth v. Gelb, Civ. A. No. 89-2967.
| Citation | 761 F. Supp. 830 |
| Decision Date | 24 April 1991 |
| Docket Number | Civ. A. No. 89-2967. |
| Parties | Donald BARTH, Plaintiff, v. Bruce S. GELB, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
David H. Shapiro, Katherine L. Garrett, Washington, D.C., for plaintiff.
Diane M. Sullivan, Asst. U.S. Atty., Washington, D.C., for defendants.
This is an action by a "qualified handicapped person" alleging discrimination in violation of the Rehabilitation Act, 29 U.S.C. § 791, 791(a), as amended. Plaintiff Donald Barth is an insulin-dependent diabetic. He is an engineer and is presently Chief of the Field Support Section, Computer Services Division of the Voice of America ("VOA"), a component of the United States Information Agency ("USIA"). In 1988, he decided to change from this domestic civil service job and sought placement in the permanent Foreign Service of the Department of State as a Foreign Service Specialist/Radio Engineer with VOA's overseas Radio Relay Station program. He was not selected, and the sole reason for his nonselection was his diabetic condition. Matters of first impression under the Act are presented by his discrimination claim, which has been vigorously contested. The case was tried to the Court over four days and post-trial briefs and proposed findings of fact and conclusions of law were submitted. The Court's findings of fact and conclusions of law follow.
VOA is the world-wide broadcasting arm of the United States government. It prepares programs in Washington, D.C., and broadcasts them world-wide by radio through a system of relay stations located around the world. The relay stations are managed by VOA Foreign Service Specialists.
In 1988, VOA had 12 overseas relay stations, located in Antigua; Belize; Botswana; Bangkok, Thailand; Colombo, Sri Lanka; Kavala, Greece; Liberia; Munich, Germany; the Philippines (3 sites); Quesada, Costa Rica; Rhodes, Greece; and Tangier, Morocco.
VOA's relay stations receive and transmit programs virtually 24 hours a day, 7 days a week, 52 weeks a year. They are staffed primarily by local citizens, known as Foreign Service Nationals. The entire corps of American relay station engineers overseas consists of approximately 70 Foreign Service Specialists spread over the twelve stations. These 70 employees staff five levels of positions at the various sites: station manager, deputy station manager, plant supervisor, assistant plant supervisor, and technician.
By the mid-1980s, there were many VOA station managers nearing retirement. Because of the highly specialized nature of these positions and the difficulties presented with prior classes recruited only from the VOA Civil Service who were unable to convert to the Foreign Service, VOA decided in 1988 to recruit technically qualified people directly into the Foreign Service and train them for four to six months at the VOA relay station in Greenville, North Carolina, before assigning them to overseas stations.
Mr. Barth, who was a VOA civil servant at the time, was one of 16 individuals selected from a larger group of applicants with a view to assignment overseas following the training period stateside. In addition to his technical training and VOA experience, he already had top security status. He was therefore qualified in all respects except that, like all applicants initially so selected, his selection was subject to medical clearance for himself and his wife. See 29 U.S.C. § 3901(a)(4); 3 State Department Foreign Affairs Manual § 684.7. As part of these standard medical clearance process, Mr. Barth underwent a physical examination performed by his own doctor, in this case his endocrinologist, Dr. Michael F. Ball.
Because Mr. Barth's health made him unable to satisfy the statutory requirement that he be available for world-wide foreign service, 22 U.S.C. § 3901(a)(4), the State Department Office of Medical Services ("State Med") denied him clearance automatically after a review of his condition by Dr. Sam Zweifel, then the Assistant Medical Director for Medical Clearances of the Department of State. Insulin-dependent diabetics are not considered available for world-wide service and State Department regulations apparently so provide.1
Mr. Barth does not challenge this initial denial of world-wide clearance (Tr. 6). Rather, he took advantage of a subsequent waiver process, and it is the VOA's denial of a medical waiver that is the bone of contention here.
Agencies such as VOA that employ Foreign Service personnel have established procedures for granting a waiver of medical clearance for entry into one of their specific programs to an individual denied world-wide medical clearance by State Med. A waiver panel is convened to consider each application. A State Med doctor advises the waiver panel, but VOA has authority to grant waivers even without the concurrence of State Med. The actual decision is made by VOA's personnel director after considering the recommendation of the waiver panel.
Mr. Barth's waiver application was processed with particular vigor on his part in an effort to offset the strong adverse views of State Med. He submitted letters from three treating physicians, including Dr. Ball. However, the acting personnel director, Janice Brambilla, denied Mr. Barth a waiver of medical clearance on October 21, 1988. Prior to this decision, a panel consisting of John Welch, then Chief, VOA Foreign Service Personnel and Policy Division; Richard Belt, VOA Foreign Service Personnel Adviser; Edward Kulakowski, VOA Personnel Operations Staff; Lorie Nierenberg, Assistant General Counsel, USIA; and Fred Adams, VOA Office of Engineering and Technical Operations, had unanimously recommended denial after considering the matter over a period of time. Dr. Zweifel gave medical advice to the panel based on the medical information supplied by Mr. Barth. David Sites, from VOA's Engineering Office, and Helen Murphy, from USIA's Equal Employment Opportunity Office, also aided panel deliberations but, like Dr. Zweifel, did not vote. Mr. Adams and Mr. Sites had each served at VOA relay stations abroad.
After exhausting all administrative review unsuccessfully, Mr. Barth filed this action.2
The Foreign Service is fully subject to the requirements of the Rehabilitation Act.3 The terms of section 791 of the Rehabilitation Act require each federal agency to maintain an affirmative action program for the hiring, placement and advancement of handicapped persons. The issues litigated in Rehabilitation Act cases turn largely not on this statutory provision but on the regulations issued thereunder, 29 C.F.R. sections 1613.701 et seq. Pursuant to the regulations, federal agencies must provide "reasonable accommodation" to "qualified handicapped persons" unless the agency can show that such accommodation would create "undue hardship" for the agency. See Carter v. Bennett, 840 F.2d 63 (D.C.Cir.1988).4 The parties have stipulated that Mr. Barth is insulin-dependent, which is a physical impairment within the meaning of 29 C.F.R. § 1613.702(b), i.e., a physiological condition affecting the endocrine system, and that he is a "qualified handicapped person" within the meaning of 29 C.F.R. § 1613.702(f), fully qualified if not for his handicap for a Radio Engineer Specialist position within the Foreign Service in the VOA Relay Station program.5
The issue is whether VOA, in refusing to hire Mr. Barth as a Foreign Service Specialist, failed to provide him with "reasonable accommodation" as required by the Rehabilitation Act.
Mr. Barth contends that the VOA mishandled his waiver application and failed to make an accurate assessment of his condition, which could have been to reasonably accommodated without undue burden. He seeks back pay, training and assignment, preferably to the Munich, Germany, station, plus attorney fees.6
VOA urges the contrary and supports its position.
The respective contentions of the parties must be considered against the facts and circumstances developed before the waiver panel as expanded or qualified by the trial record.
Mr. Barth has the ultimate burden of proof.7
In determining whether VOA failed to reasonably accommodate Mr. Barth, the crucial regulation is 29 C.F.R. § 1613.704:
The issue for the Court is whether VOA's waiver denial decision met these standards. However, the evidence in this case showed that, instead of citing this regulation, VOA acted with reference to the State Department's Foreign Affairs Manual, section 684.7-5, which sets the standard for considering a waiver of medical clearance without regard to whether the waiver applicant meets the Rehabilitation Act standard of a "qualified handicapped person." The Foreign Affairs Manual permits waiver where the responsible personnel officer determines that:
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Barth v. Gelb
...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 und......