Fedro v. Reno

• Decision Date: 01 April 1994
• Docket Number: No. 93-1489,93-1489
• Citation: 21 F.3d 1391
• Parties: 64 Empl. Prac. Dec. P 42,989, 62 USLW 2636, 3 A.D. Cases 150, 4 A.D.D. 850, 5 NDLR P 1 Reginald D. FEDRO, Plaintiff-Appellant, v. Janet RENO, 1 Attorney General of the United States, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1391

21 F.3d 1391

64 Empl. Prac. Dec. P 42,989, 62 USLW

2636, 3 A.D. Cases 150,

4 A.D.D. 850, 5 NDLR P 1

Reginald D. FEDRO, Plaintiff-Appellant, v. Janet RENO, ¹ Attorney General of the United States, Defendant-Appellee.

No. 93-1489.

United States Court of Appeals Seventh Circuit.

Argued Oct. 27, 1993.

Decided April 1, 1994.

Bruce M. Davey (argued), Lawton & Cates, Madison, WI, for plaintiff-appellant.

Christa A. Reisterer, Asst. U.S. Atty. (argued), Madison, WI, for defendant-appellee.

Before CUMMINGS and ROVNER, Circuit Judges, and GRANT, District Judge. ²

GRANT, District Judge.

Plaintiff, Reginald Fedro, was employed in a GS-1811 position as a Criminal Investigator/Deputy Marshal for the United States Marshals Service when he contracted hepatitis-B through on the job contacts with an infected marshal, prisoner, and/or refugee. He was placed on disability status, and in February 1986 retired from the Service with full Workers' Compensation benefits. Mr. Fedro's condition subsequently improved, and in April 1989, he made a request for priority placement within the Department of Justice. When the Marshals Service failed to restore him to his original position or to place him in any of the alternative positions which he sought, Mr. Fedro filed suit under the Rehabilitation Act of 1973, 29 U.S.C. Sec. 701 et seq., alleging that he had been the victim of handicap discrimination. The jury ultimately returned a verdict for the defendant, and this appeal followed.

I. BACKGROUND

Mr. Fedro addressed his request for priority placement to Harry Flickinger, an Assistant Attorney General, who in turn referred Fedro to the Personnel Officer for the Marshals Service, Kenneth Holecko. Holecko advised Mr. Fedro that before he could be considered for any available positions within the Department of Justice, the Department needed a complete medical report from his personal physician, Dr. John Morrissey.

Dr. Morrissey obliged by letter dated June 5, 1989, in which he stated:

It is my opinion that [Fedro] has a mild chronic hepatitis B ... This condition has not significantly affected his health over a period of many years and in my opinion is unlikely to significantly affect it in the future.

I have reviewed the qualifications for federal marshal and believe that from a physical standpoint he meets all the qualifications. However, I believe he represents a risk to others should he be involved in an altercation which resulted in contamination of others with his blood. With the limitation you have indicated I feel he is qualified to serve as a U.S. Marshal. I would recommend he be assigned to duties where the likelihood of him being involved in a violent physical altercation is very low. (Emphasis added).

Based on Dr. Morrissey's letter and his working knowledge of the demands of the job, Holecko concluded that Mr. Fedro could not be placed in a law enforcement job in which there would not be a likelihood of violent confrontation. He accordingly notified Mr. Fedro by letter dated July 5, 1989, that he had no right to restoration. Holecko advised Fedro, however, that the agency would make every effort to place him in a position for which he was qualified, and enclosed registration forms for the Department of Justice Priority Placement and Referral System Program.

Mr. Fedro indicated on the registration form that he would like to be placed in a full-time position at a GS-11 level as either a Criminal Investigator for the Office of Inspector General or a Criminal Investigator for the Federal Law Enforcement Training Center. Both are GS-1811 positions. He subsequently amended his request to include Washington, D.C. as one of his preferred locations, and to add a full-time GS-1810 General Investigator position to the list of positions for which he wished to be considered. ³

Although Mr. Fedro was placed on the priority placement list for all full-time 1810 and 1811 positions at numerous locations, no offers were forthcoming. The Department contends that the GS-1811 positions which became available while Mr. Fedro was on the list were not offered to him because Holecko had previously determined that physical confrontation was likely to occur in those positions and that Mr. Fedro posed an unacceptable risk of infecting others with hepatitis-B should he be involved in such a confrontation. It contends that it did not place Mr. Fedro in a full-time GS-1810 General Investigator position because under its existing staffing policies all 1810 positions were being staffed with part-time employees, were located in Arlington, Virginia, and had an entry grade level below GS-11. The Department did, however, ultimately offer Mr. Fedro a part-time 1810 job. Its offer was rejected.

Mr. Fedro did not agree with Holecko's decision, and registered a complaint with his Congressman, who, in turn, directed Mr. Fedro's complaint and a copy of Dr. Morrissey's letter to Raleigh Neville, a Program Manager for the Office of Personnel Management ("OPM"). In that capacity, Mr. Neville oversees a number of programs focusing on federal employee benefits, including the restoration rights of people who have been injured on the job. Mr. Neville responded to the Congressman's inquiry by letter dated July 14, 1991, in which he wrote:

[T]he only issue here, is can Mr. Fedro safely and efficiently perform the essential duties of his job? The answer appears to be yes ...

--In our view, the likelihood of a U.S. Marshal being involved in an altercation in which there was an exchange of blood is practically nil ...

--Testing positive for hepatitis is not, by itself, disqualifying under the medical standard for U.S. Marshal positions.

* * * * * * --The fact that the Justice Department enrolled Mr. Fedro under its reemployment priority list (RPL) for law enforcement officer positions suggests that he should be considered fully recovered. An employee is not eligible for the RPL if he has residual disabilities that would be considered disqualifying.

Although Neville authored the letter, it was signed by Edward McHugh, Chief of the Staffing Policy Division. More than a year later, Phil Spottswood, another OPM employee, contacted three physicians regarding the risk Mr. Fedro's condition might pose to others. Mr. Spottswood prepared written summaries of his conversation with the physicians in which he reported that all agreed that the risk of infecting other individuals as a result of a physical confrontation was slight.

Mr. Fedro filed suit against the Marshals Service and the Department of Justice in April 1992, seeking among other things reinstatement to a GS-1811 position or placement in a full-time 1810 position. ⁴ He contends that he is qualified for both positions despite his disability; that the risk of infecting others with hepatitis-B is "nil"; and, that the Department was therefore required as a matter of law under the Rehabilitation Act to place him in the first available 1811 position or, alternatively, to "restructure" the existing 1810 positions to accommodate his request for full-time employment at a GS-11 salary grade level.

In support of his claim, Mr. Fedro sought to introduce at trial Raleigh Neville's testimony regarding Fedro's eligibility for an 1811 position, the medical opinions obtained by Mr. Spottswood, and the testimony of Kay McWhirter, a classification specialist for the Marshals Service, and Steven Weigert, a vocational expert, concerning the feasibility of combining two part-time 1810 positions into one full-time position. The district court concluded that Mr. Neville was not an expert within the meaning of Fed.R.Evid. 702 and that Mr. Spottswood's summations of the medical opinions offered by others was inadmissible hearsay, and accordingly granted the defendant's pretrial motion to exclude that evidence. The court also denied Mr. Fedro's request to compel production of information pertaining to the availability of 1810 positions. In its order of December 9, 1992, the court stated:

The Court is of the opinion that the 1810 positions are not full time and that the plaintiff is pursuing full time employment. His novel argument that the government should be required to combine several part time positions to reach a full time position does not persuade the Court that this is the relief which is envisioned by that cause of actions pursued by plaintiff.

The district court excluded the testimony of Mr. Weigert and Ms. McWhirter on similar grounds.

II. DISCUSSION

A. The 1810 Positions

Mr. Fedro asks this court to determine as a matter of law whether the Rehabilitation Act and its implementing regulations impose upon employers a duty to find a new position for employees who are no longer able to perform the essential functions of their job due to a handicap. The district court held that it did not, and we agree.

The Rehabilitation Act requires federal employers to make "affirmative efforts to overcome the disabilities caused by handicaps." Southeastern Community College v. Davis, 442 U.S. 397, 410, 99 S.Ct. 2361, 2369, 60 L.Ed.2d 980 (1979). Federal agencies are thus required to "give full consideration to hiring, placement, and advancement of qualified mentally and physically handicapped persons ..." 29 C.F.R. Sec. 1613.703. In furtherance of that policy federal regulations require that:

(a) An agency shall make reasonable accommodation to the known physical or mental limitation 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 to: (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...