Carter v. Bennett

Decision Date19 February 1988
Docket NumberNo. 87-5098,87-5098
Citation840 F.2d 63,268 U.S.App.D.C. 183
Parties46 Fair Empl.Prac.Cas. 1, 45 Empl. Prac. Dec. P 37,788, 268 U.S.App.D.C. 183, 56 USLW 2495, 1 A.D. Cases 1205 Harold E. CARTER, Appellant, v. William BENNETT, Secretary, U.S. Department of Education.
CourtU.S. Court of Appeals — District of Columbia Circuit

John L. McGann, Arlington, Va., for appellant.

Daniel Bensing, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth (at the time the brief was filed) and R. Craig Lawrence, Asst. U.S. Attys., and William Haubert, Atty., Dept. of Educ., Washington, D.C., were on the brief, for appellee.

Before WALD, Chief Judge, BORK *, Circuit Judge, and GASCH **, Senior District Judge, United States District Court for the District of Columbia.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

Harold E. Carter brought this action against the Department of Education (DOE or Department) in the District Court for the District of Columbia. Carter alleged that the Department did not reasonably accommodate his handicap (blindness) as required by the Rehabilitation Act of 1973, 29 U.S.C. Sec. 701 et seq., and that it retaliated against him for filing an Equal Employment Opportunity (EEO) complaint, in violation of Title VII of the Civil Rights Act of 1964, Sec. 704(a), 42 U.S.C. Sec. 2000e-3(a). The district court, after a two-day trial, found in favor of the Department on both counts. We affirm the district court.

I. BACKGROUND

The facts as found by the district court are as follows. In May 1977, Carter, who is legally blind, was hired by the then Department of Health, Education and Welfare (HEW) as a public affairs assistant with the Office of Civil Rights (OCR). When certain functions of HEW were moved to the newly established Department of Education in 1980, Carter was transferred to the same position in the new Department; there he became part of the Special Concerns Staff within the OCR. See Transcript (Tr.) at 76. Although Carter was originally hired primarily to transcribe printed matter into Braille, he was given different responsibilities upon his transfer; from late 1981 until his termination in August 1982, Carter's duties consisted of analyzing and answering correspondence directed to the OCR from members of Congress and the public. See Carter v. Bennett, 651 F.Supp. 1299, 1300 (D.D.C.1987).

In May 1981, Carter filed an EEO complaint alleging that the DOE had not reasonably accommodated his handicap as required by the Rehabilitation Act of 1973, 29 U.S.C. Sec. 701 et seq. In March 1982, Carter received a notice from his supervisor stating that his job performance and attitude were unsatisfactory and advising him that he had 30 days to improve or face termination. Four months later, Carter received a notice of "Decision to Remove." In June and July of 1982 appellant filed another three complaints with the Department's EEO office, alleging that the Department had violated Title VII of the Civil Rights Act, 42 U.S.C. Sec. 2000e-3(a), by retaliating against him for filing his original discrimination complaint. In October 1985, appellant filed suit in the district court regarding his four complaints. The district court found that Carter was provided reasonable accommodations for the performance of his duties and that he was discharged for nondiscriminatory reasons. This appeal followed. See Appellee's Brief at 1-2.

II. STANDARD OF REVIEW

Although this Court is bound by the "clearly erroneous" standard of Federal Rule of Civil Procedure Rule 52 in reviewing the district court's findings of fact, the ultimate question of whether the government provided "reasonable accommodation" to the appellant's handicap is not a question of pure fact but a mixed question of law and fact. In Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982), the Supreme Court described "questions in which ... the issue is whether the facts satisfy the statutory standard" as mixed questions of law and fact. Id. at 289 n. 19, 102 S.Ct. at 1790-91 n. 19; cf. Southern Ry. v. Tift, 206 U.S. 428, 429, 27 S.Ct. 709, 709, 51 L.Ed. 1124 (1907) (whether a rate is reasonable is a question of "fact mixed with law"); United States v. Nates, 831 F.2d 860, 862 (9th Cir.1987) (Fourth Amendment "reasonable cause" is a mixed question of law and fact); Kennedy v. Josephthal & Co., 814 F.2d 798, 803 (1st Cir.1987) (citing Cook v. Avien, Inc., 573 F.2d 685 (1st Cir.1978)) (question of reasonable diligence is factually based but gives rise to mixed question of law and fact); Blitz v. Donovan, 740 F.2d 1241, 1244 (D.C.Cir.1984) (district court determination in EAJA case regarding reasonableness of government's litigation position is subject to de novo review). In the present case, we are reviewing not just the district court's factual findings as to the nature of Carter's job and the particular accommodations provided him but its conclusion of law that those accommodations were "reasonable" under the Rehabilitation Act. While the district court's factual determinations may not be set aside unless "clearly erroneous," the legal conclusion that the Department's actions were adequate to satisfy the mandate of the Act is subject to more rigid appellate scrutiny. See, e.g., Pullman-Standard, 456 U.S. at 287, 102 S.Ct. at 1789; Inwood Labs. v. Ives Labs., 456 U.S. 844, 855 n. 15, 102 S.Ct. 2182, 2189 n. 15, 72 L.Ed.2d 606 (1982); United States v. Weisz, 718 F.2d 413, 429 (D.C.Cir.1983), cert. denied, 465 U.S. 1027, 104 S.Ct. 1285, 79 L.Ed.2d 688 (1984).

III. THE LAW

Federal employers are obliged by Sec. 501(b) of the Rehabilitation Act, 29 U.S.C. Sec. 791(b), to provide reasonable accommodation for the handicapped. See Prewitt v. United States Postal Service, 662 F.2d 292, 307 (5th Cir.1981). Indeed, the legislative history of Sec. 501 "demonstrates that Congress intended that the federal government be a model employer of the handicapped." Gardner v. Morris, 752 F.2d 1271, 1280 (8th Cir.1985) (citing 29 C.F.R. Sec. 1613.703). As the Supreme Court has noted, Sec. 501 "expressly requires federal employers to develop affirmative action programs on behalf of handicapped persons." Id. (citing Southeastern Community College v. Davis, 442 U.S. 397, 410, 99 S.Ct. 2361, 2369, 60 L.Ed.2d 980 (1979)). More specifically, Sec. 501 of the Rehabilitation Act imposes on federal agencies "an affirmative duty 'to structure their procedures and programs so as to ensure that handicapped individuals are afforded equal opportunity in both job assignment and promotion.' " Id. (quoting Ryan v. Federal Deposit Ins. Corp., 565 F.2d 762, 763 (D.C.Cir.1977)). The Rehabilitation Act, however, contains a caveat: the 1978 amendments expressly provide that the district courts may "take into account the reasonableness of the cost of any necessary work place accommodation" in fashioning remedies for violations of Sec. 501. 29 U.S.C. Sec. 794a(a)(1).

The EEOC promulgated extensive regulations to guide federal employers in making reasonable accommodations for handicapped persons.

(a) An agency shall make reasonable accommodation to the known physical or mental limitations of a qualified handicapped applicant or employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program.

(b) Reasonable accommodation may include, but shall not be limited: (1) making facilities readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions.

29 C.F.R. Sec. 1613.704 (1986).

In cases in which a handicapped plaintiff sought but was denied a position with the federal government, courts have held that the initial burden is on the plaintiff to make a prima facie showing that reasonable accommodation of his handicap is possible. Once the plaintiff makes such a showing, the employer bears the burden of demonstrating inability to accommodate. Credible evidence that reasonable accommodation is not possible or would be unduly burdensome shifts the burden back to the plaintiff to rebut the employer's evidence. See Gardner, 752 F.2d at 1280; Treadwell v. Alexander, 707 F.2d 473, 478 (11th Cir.1983); Prewitt, 662 F.2d at 308 (citing Note, Accommodating the Handicapped, 80 Colum.L.Rev. 171, 187-89 (1980)).

The situation here is somewhat different. The plaintiff in this case was not denied a job he sought; rather, the government not only hired Carter initially but made the decision to transfer him to the new position from which it subsequently discharged him for failing to perform adequately. Of course the government might have, but did not, show(n) that it had assigned Carter to his new job when his old one was abolished, only after finding that there were no suitable alternative jobs to which he could be transferred; in this case, the government would not have a duty to prove that the plaintiff's new job was suitable for a handicapped person. In the absence of such a showing, it is the government's burden to prove that Carter's new job could have been performed by a person with his handicap, if reasonably accommodated, and that such accommodation was in fact provided.

IV. THE LAW APPLIED IN THIS CASE
A. Whether Carter's Handicap Could Have Been Reasonably Accommodated In His New Job

The district court concluded that the Department "has met its burden of persuasion with evidence that it reasonably accommodated plaintiff's handicap." Carter, 651 F.Supp. at 1301. Implicit in this conclusion is the factual finding that the Department did not assign Carter to a position in which it was impossible to reasonably accommodate a visually handicapped person. We review this finding under the clearly erroneous...

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