840 F.2d 63 (D.C. Cir. 1988), 87-5098, Carter v. Bennett

Docket Nº:87-5098.
Citation:840 F.2d 63
Party Name:Harold E. CARTER, Appellant, v. William BENNETT, Secretary, U.S. Department of Education.
Case Date:February 19, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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840 F.2d 63 (D.C. Cir. 1988)

Harold E. CARTER, Appellant,

v.

William BENNETT, Secretary, U.S. Department of Education.

No. 87-5098.

United States Court of Appeals, District of Columbia Circuit

February 19, 1988

Argued Nov. 25, 1987.

As Amended .

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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

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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...

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