Arneson v. Heckler, 88-1712

• Decision Date: 14 July 1989
• Docket Number: No. 88-1712,88-1712
• Citation: 879 F.2d 393
• Parties: 50 Fair Empl.Prac.Cas. 451, 50 Empl. Prac. Dec. P 39,138, 1 A.D. Cases 1497 Stephen A. ARNESON, Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 393

879 F.2d 393

50 Fair Empl.Prac.Cas. 451,

50 Empl. Prac. Dec. P 39,138, 1 A.D. Cases 1497

Stephen A. ARNESON, Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Appellee.

No. 88-1712.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 14, 1988.

Decided July 14, 1989.

Michael J. Hoare, St. Louis, Mo., for appellant.

Joseph B. Moore, St. Louis, Mo., for appellee.

Before McMILLIAN and BEAM, Circuit Judges, and WHIPPLE, ^* District Judge.

BEAM, Circuit Judge.

Steven A. Arneson appeals the dismissal of his claim against his former federal employer under the Rehabilitation Act of 1973. We remand.

I. Background

Steven A. Arneson was employed by the Social Security Administration (SSA) from March of 1968 through January of 1983. In 1975, he learned that he suffers from a neurological disorder known as apraxia. Arneson, the holder of Bachelor of Arts and Masters of Business Administration degrees from the University of Iowa, as a result of the disorder, is very easily distracted by activity around him and has an impaired ability to concentrate and to simultaneously perform motor and cognitive tasks. He also has difficulty with comprehending spoken and written language and difficulty in acquiring and processing data. In addition, he has poor handwriting skills, poor reading skills and poor organizational skills.

While employed by the SSA, Arneson worked as a claims representative. The majority of his time was spent interviewing claimants to obtain information for applications for Social Security benefits, advising claimants of their eligibility for benefits, gathering work and medical histories and assisting in determining a claimant's entitlement to Social Security benefits.

Until September of 1980, Arneson worked at the SSA office in Clayton, Missouri. As a result of his diagnosis and the recommendation of a psychologist who evaluated Arneson, certain accommodations were made to provide Arneson with a work area where he could be most productive. His desk was relocated from the large area where he had worked with the other claims representatives to a three-sided room which had previously been used as a stock room. Arneson was also given a telephone headset to allow him to have both hands free while he talked on the phone as well as assistance in organizing his work. As a result of these accommodations, the quality of his work improved.

In September of 1980, Arneson voluntarily took reassignment to a new branch office in Maryland Heights, Missouri. At the Maryland Heights office Arneson's desk was placed in a large room with the other claims representatives. To provide some accommodation, his desk was placed in the back of the room where it was thought there would be less distraction. In addition, he was given a telephone headset similar to the one he used in the Clayton office and, again, received organizational assistance.

From the period of October 1, 1980, to September 30, 1981, Arneson received "satisfactory" ratings on his Employee Appraisal and Performance Rating Certification. However, on January 21, 1982, Arneson's immediate supervisor, Russell Hudson, wrote to Arneson informing him that his work was unsatisfactory. At Arneson's Performance Review on July 23, 1982, Hudson again told Arneson that his work was unsatisfactory. On October 5, 1982, Hudson and the branch manager met with Arneson and advised him to apply for voluntary disability retirement. They told Arneson they would initiate removal proceedings if he did not do so.

On November 30, 1982, the SSA issued its proposal to remove Arneson, citing approximately 75 instances of unsatisfactory performance. Arneson was terminated effective January 21, 1983.

On January 18, 1984, Arneson applied for and was granted disability retirement under the Civil Service Retirement System.

On October 31, 1984, Arneson filed this action under the Rehabilitation Act of 1973, 29 U.S.C. Sec. 791 et seq., seeking reinstatement and back pay. Following a trial, the district court entered judgment in favor of the SSA. Arneson appeals.

II. Discussion

It is Arneson's contention that he is an "otherwise qualified handicapped individual" within the meaning of the Rehabilitation Act and that the SSA failed to make the reasonable accommodations necessary to enable Arneson to do his job satisfactorily as required by the Act. He claims that had reasonable accommodations been made, he would have been able to perform his job. However, before we can deal with the substantive portion of Arneson's appeal, we must first determine whether his claim is barred because of his retirement from federal service.

A. Retirement from federal service

Upon termination, Arneson became eligible for disability retirement from the federal service. However, to secure those benefits, he had to file an application for a disability annuity within one year of the date of his separation. 5 C.F.R. Secs. 831.501 and 831.502. Nearly a year after his discharge Arneson filed the necessary application and began receiving monthly benefits. The district court held that this action bars his claim under the Rehabilitation Act. "[B]y accepting retirement, the [federal] employee has voluntarily surrendered all claims to his former position." Brown v. United States, 2 Cl.Ct. 586, 587 (1983), affirmed without opinion, 732 F.2d 167 (Fed.Cir.1984).

In reviewing "the right of a retired employee to reinstatement and back pay * * * '[t]he focus of our consideration must be the voluntariness of plaintiff's retirement * * *. If that choice was freely made, he had no right after that event to further employment by the Federal Government.' " Taylor v. United States, 591 F.2d 688, 690, 219 Ct.Cl. 86 (1979) (quoting Roskos v. United States, 549 F.2d 1386, 1388, 213 Ct.Cl. 34 (1977)). While it is true that Arneson was faced with making the difficult decision of either losing his retirement benefits or losing his ability to pursue his claim for reinstatement, "the fact that an employee * * * has to chose between two unpleasant alternatives does not make the resulting action involuntary." Taylor, 591 F.2d at 692.

However, the Court of Claims in Roskos held that the plaintiff's retirement was involuntary because the court found that the transfer, which precipitated the retirement, was unlawful. "An action is not voluntary if it is produced by government conduct which is wrongful." Roskos, 549 F.2d at 1389-90 (citations omitted).

Because Arneson's termination may have been unlawful, i.e., in violation of the Rehabilitation Act, we cannot say that his retirement bars his claim for back pay and reinstatement. If his termination was unlawful, then he has the right to seek this remedy regardless of his retirement. Consequently, we consider Arneson's claim under the Rehabilitation Act.

B. Otherwise qualified handicapped individual

Section 504 of the Rehabilitation Act provides:

No otherwise qualified individual with handicaps * * * shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity * * * conducted by any Executive agency * * *.

29 U.S.C. Sec. 794 (Supp. IV 1986). "Section 501(b), 29 U.S.C. Sec. 791(b), requires the federal government as an employer to develop and implement affirmative action plans on behalf of handicapped employees." Gardner v. Morris, 752 F.2d 1271, 1277 (8th Cir.1985). The district court found that Arneson was a handicapped individual within the meaning of the Rehabilitation Act but found that he was not an otherwise qualified handicapped individual within the meaning of the Act. An otherwise qualified handicapped individual is one who, with reasonable accommodation, "can perform the essential functions of the position in question without endangering the health and safety of the individual or others." 29 C.F.R. Sec. 1613.702(f) (1988).

Arneson claims that the district court was incorrect in finding that he had "the initial burden of establishing that he is an 'otherwise qualified handicapped individual,' that is, one, who with reasonable accommodations, is able to perform the requirements of his job despite his handicap." Arneson v. Heckler, No. 84-2552C(3), slip op. at 12, 1988 WL 42351 (E.D.Mo. Mar. 30, 1988). We agree. Arneson is only required to provide evidence sufficient to make "at least a facial showing that reasonable accommodation is possible." Gardner v. Morris, 752 F.2d at 1280. At that point, the burden shifts to the SSA to prove that it is unable to accommodate Arneson. "Once it has been established that (1) the employee has been denied employment on the basis of his handicap and (2) the particular handicap would impair job performance unless job requirements are modified, the dispute focuses on whether the employer can reasonably accommodate the handicapped employee." Id. at 1279-80. It is undisputed that Arneson was terminated because of poor job performance, which performance was due to the effects of apraxia. It is also undisputed that some modifications of his job requirements are necessary to enable him to perform his job. Therefore, we must focus on what kinds of accommodations will be required and whether these are reasonable.

Arneson claims that accommodations can be made which will enable him to satisfactorily perform his job as a claims representative. The SSA argues that it has made reasonable accommodations and Arneson's work performance has not improved sufficiently. Further accommodations, the SSA contends, would be beyond the requirements of the Rehabilitation Act.

Arneson contends, based upon his consultations with a variety of psychological and occupational experts, that he could improve the performance of his job if he had the following: (1) a telephone headset to free his hands; (2) a quiet workspace to diminish distractibility; and (3) clerical assistance to check his work. In addition, it has been...