BOARD OF DIRECTORS OF
OFFICE OF COMPLIANCE
John Adams Building, Room LA 200
110 Second Street, S.E.
Washington, DC 20540-1999
_________________________
JUANITA JOHNSON,
Appellee (Employee),
v. Case No. 99-AC-326(DA)
OFFICE OF THE ARCHITECT OF
THE CAPITOL,
Appellant
(Employing Office).
_________________________
Before the Board of Directors: Susan S. Robfogel,
Chair; Barbara L. Camens; Alan V. Friedman; Roberta L. Holzwarth;
Barbara Childs Wallace, Members.
DECISION OF THE BOARD
OF DIRECTORS
The Office of the Architect of the Capitol ("Appellant"),
appeals (1) from the Hearing Officer's
initial and supplemental Decisions and remedial order, dated March
19, and June 15, 2001, respectively, which concluded that the Office
of the Architect of the Capitol (Appellant) had discriminated against
Juanita Johnson ("Appellee") on account of her physical disability.
The Hearing Officer directed that the Appellee be reassigned to
another position, and that the Appellant award her: back pay, with
prejudgment interest; compensatory damages; attorney fees and costs;
and post-judgment interest on the foregoing monetary awards.
The Board has considered the decision and record
in light of the appeal and briefs, and has decided to affirm and
adopt the Hearing Officer's findings and conclusions, and remedial
order, except as modified in this decision.
(2)
I.
The facts, while fully explicated in the Hearing
Officer's initial decision, are summarized below.
Appellee has employed the Appellant for over
19 years as a custodial employee, charged with cleaning offices
and restrooms. The Appellee suffers from three medical conditions,
but principally asthma and Chronic Obstructive Pulmonary Disease
("COPD"), which affect her ability to breathe. In recent years the
Appellee's asthma has worsened and her ability to breathe has been
greatly reduced by exposure to such irritants as pollen, dust and
cleaning chemicals. Despite extensive reliance upon inhalers, pills
and other medical devices, the Appellee is physically challenged
when even climbing one flight of stairs, and is unable to go shopping,
do yard work, play with her grandchildren, wash dishes, vacuum,
or do other housework.
In October 1999, the Appellee experienced shortness
of breath and wheezing on the job due to abnormally dusty conditions.
She reported this to her supervisor but he was unresponsive. Subsequently,
Appellee's physician cautioned her to seek another assignment that
did not continue to expose her to environmental irritants. Thereafter,
the Appellee, both verbally and with her physician's supporting
letter, asked her second and third line supervisors for a reassignment
to preserve her health.. They declined by indicating that they had
no non-custodial positions for her. They neither suggested alternative
assignments nor referred the Appellee to anyone who could explore
such assignments with her.
On December 10, 1999, the Appellee became ill
on the job from carpet glue fumes and she received treatment at
a hospital emergency room. She returned to work a few days later
and informed her second line supervisor that she could not work
in the environment of carpet glue fumes. Her supervisor declined
to reassign the Appellee and sent her home. Based upon her physician's
advice, the Appellee did not return to work while she awaited reassignment
to a non-custodial position. Subsequently, her union representative
took the initiative to propose various reassignment options for
the Appellee. In early March 2000, the Appellant offered the Appellee
a temporary reassignment to a daytime subway operator
(3) position classified at the WG-3 level. The Appellee
has been working in that position, at her [lower] WG-2 level salary,
since March 15, 2000, with no adverse physical effects. The Appellant
permanently reassigned to a WG-3 level subway operator position,
in this time range, another WG-2 level employee, but one who had
suffered a compensable on-the-job injury. Like the Appellee, however,
the Appellant continued to compensate that employee at the WG-2
level.
II.
The Hearing Officer concluded that the Appellee
has a physical impairment that substantially limits her major
life activity of breathing. (4)
The Hearing Officer also found that the Appellee's impairment substantially
limited her major life activity of working in that it precludes
her from performing a class of custodial jobs that exists nationwide.
Accordingly, the Hearing Officer found that the Appellee qualified
as a person with a disability under the Americans with Disabilities
Act of 1990("ADA"), 42 U.S.C. §12101 et seq..
The Hearing Officer concluded that the Appellee was qualified for
any of the unencumbered nine subway operator positions. He also
found that the Appellee qualified for one or more of the 247 vacancy
announcements that the Appellant posted during calendar year 2000.
The Hearing Officer concluded that the Appellant
failed to reassign the Appellee to a position for which she qualified
and did not provide the Appellee with reasonable accommodation
as prescribed by the ADA. The Hearing Officer found that the Appellant
did not engage the Appellee in the interactive process, which
is a mandatory employer obligation once an employee gives notice
of the employee's disability and the desire for a reasonable accommodation.
The Hearing Officer held that the employer's special knowledge regarding
existing and soon forthcoming vacancies requires the employer to
explore reassignment with an employee without requiring the employee
to apply and compete as if the disability issue did not exist.
III.
Recently, the United States Supreme Court decided
that a protected disability under the ADA must be a physical or
mental impairment that substantially limits or restricts an individual
from doing activities that are of central importance to most people's
daily lives. Toyota Manufacturing Company, Inc., v. Ella Williams,
No. 00-1089, 2002 U.S. LEXIS 400 (S.Ct. 01/08/02) at Slip Opinion,
pp. 25-26. The Court explicitly withheld judgment on whether
working, itself, constitutes a major life activity
for purposes of ADA protection. Id., slip opinion, at p.
29. The Court, focusing on the major life activity of performing
manual tasks raised in that case, looked toward representative activities
such as tending to personal hygiene, carrying out household
chores, bathing and brushing one's teeth in assessing the existence
of a protected disability. Id., Slip Opinion, pp. 32-33.
The Hearing Officer found that the Appellee
had medical impairments that substantially limited her major life
activities of breathing and working. In respect to breathing, he
specifically concluded that the impairment had the following permanent
effects on the Appellee's daily life: Appellee is physically
challenged when even climbing one flight of stairs, and is unable
to go shopping, do yard work, play with her grandchildren, wash
dishes, vacuum, or do other housework. We believe that the Hearing
Officer identified the types of activities of central importance
to people's daily lives that the Supreme Court addressed in Toyota
Manufacturing Company, Inc. v. Ella Williams, supra. Accordingly,
we agree with the Hearing Officer that the Appellee is a person
with a disability within the meaning of the ADA.
(5)
Under the ADA, an employer may be required to
reassign an employee with a disability to a vacant position as a
reasonable accommodation, if the employee can no longer perform
the essential functions of her current position. 42 U.S.C. §12111(9)(B)
(identifying "reassignment" as an example of reasonable accommodation
which may have to be provided under the Act); Aka v. Washington
Hospital Center, 156 F.3d 1284, 1300-1305 (D.C.Cir.1998); Shiring
v. Runyon, 90 F.3d 827, 832 (3d Cir.1996) (Rehabilitation Act);
Gile v. United Airlines, Inc., 95 F.3d 492, 498 (7th Cir. 1996);
Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8th
Cir.1995); White v. York International Corp., 45 F.3d 357,
362 (10th Cir. 1995).
There are significant limitations upon an employer's
duty to reasonably accommodate an employee with a disability through
reassignment. For example, the ADA does not require reassignment
if no vacant position exists, 42 U.S.C. §12111(a); Aka v.
Washington Hospital Center, 156 F.3d at 1305, it does not require
an employer to "bump" other employees to create a vacancy, Gile
v. United Airlines, Inc., 95 F.3d at 499, nor does it require
an employer to create a new position in order to be able to reassign
an employee with a disability, White v. York International Corp.,
45 F.3d 357, 362 (10th Cir. 1995). An employee need not be reassigned
if she is not otherwise qualified for the position, 42 U.S.C. §
12112(b)(5)(A), Aka v. Washington Hospital Center, 156 F.3d
at 1300, or if reassignment would be an undue hardship on the operation
of the business of the employer, 42 U.S.C. §12112(b)(5)(A),
Aka v. Washington Hospital Center, 156 F.3d at 1300. Finally,
an employer is not required to provide an employee the accommodation
he or she requests or prefers, the employer need only provide some
reasonable accommodation. Aka v. Washington Hospital Center,
156 F.3d at 1300. Gile v. United Airlines, Inc., 95
F.3d at 499.
We agree with the Hearing Officer that these
limitations do not pose a bar to reassignment in this case. The
Appellant does not assert that Appellee is not qualified for the
subway operator position, nor assert that some other form of reasonable
accommodation should be provided. Although the Appellant argues
that the position is not vacant and objects to Appellee's request
for a permanent reassignment to it because the incumbent has a right
to reclaim the position, we agree with the Hearing Officer that
the Appellant may be ordered to continue the reassignment without
requiring that it be permanent. The evidence indicates that the
Appellant has a practice of making long-term "temporary" assignments
and perhaps this is the best the Appellant can do for Appellee at
the present time. In that event, the Appellant's continuing duty
to provide reasonable accommodation would require an inquiry as
to whether the Appellee could be reassigned to another position
if Appellee's temporary reassignment is terminated.
The Appellant also argues that the reassignment
violates its Career Staffing Policy's requirement that employees
and other applicants compete for higher graded positions.
(6) We recognize that an employer is not required to reassign
an employee with a disability in circumstances when such a transfer
would violate a legitimate, nondiscriminatory policy of the employer,
Aka v. Washington Hospital Center, 156 F.3d at 1305, but
find that Appellee's reassignment will not have such an effect.
The Appellant concedes that it makes exceptions to the Policy, and
it does not appear to have used a competitive process to make temporary
assignments to its subway operator positions.
However, we are concerned with the Hearing Officer's
decision to require the Appellant to reassign Appellee to the subway
operator position at the WG-2 pay grade. The Appellant has classified
the subway operator position as a WG-3 grade position, and the ADA
does not require an employer to promote an employee with a disability
to satisfy its duty of reasonable accommodation. Smith v. Midland
Brake, Inc., 180 F.3d 1154, 1170-78 (10th Cir.1999); Malabarba
v. Chicago Tribune Co., 149 F.3d 690, 699 (7th Cir. 1998); Shiring
v. Runyon, 90 F.3d 827, 832 (3d Cir.1996); 29 C.F.R. pt. 1630,
App. § 1630.2(o); EEOC Enforcement Guidance on Reasonable Accommodation
and Undue Hardship (3/1/99), Question 24. Although Appellee offered
to accept the subway operator position at a WG-2 pay grade rather
than a WG-3 pay grade, we have serious reservations about the appropriateness
of forcing an employer to reclassify a position in order to allow
for reassignment.
We are also concerned with that part of the
Hearing Officer's order which provides that "so long as she is occupying
a position which has been assigned to her by the Appellant as a
reasonable accommodation under the ADA, [Appellee] should continue
to be paid at her WG-2 pay level, regardless of the wage grade classification
of the position." (Decision, p..62.) This inadvertently may intimate
that the Appellant may relegate Appellee to a WG-2 grade subway
operator position for the remainder of her career with the Appellant,
effectively depriving her of the right to seek a transfer or promotion
to one of the other subway operator positions at the WG-3 compensation
level otherwise attributed to that position. Employees with disabilities
should not be required to forego future employment opportunities
as a condition of continued employment.
We need not decide whether these concerns render
Appellee's reassignment inappropriate, however, because of a material
change in the circumstances. Although neither party raised the matter,
(7) we understand that Appellee is a class member in a
lawsuit before Judge Emmet Sullivan that has been settled and is
presently at the remedy implementation stage (Patricia Harris,
et. al. v. Office of the Architect of the Capitol, Civil Action
No. 1:97CV01658, D.D.C.). One of the remedial provisions of the
settlement requires the Appellant to promote night-shift custodial
workers to the WG-3 level, retroactively as of the effective date
of the CAA, January 23, 1996.
IV.
Accordingly, we therefore vacate only that part
of the Hearing Officer's order that requires the Appellant to reassign
the Appellee to the subway operator's position at the WG-2 grade,
and remand the case for the Hearing Officer's determination of whether
her custodial position of record has been reclassified as a WG-3
grade position. The Hearing Officer, after hearing from the parties,
should then fashion a remedy consistent with this opinion, contingent
upon the Appellee's grade level and the availability of appropriate
permanent or, if necessary, existing temporary assignments for which
she qualifies.
It is so ordered.
Issued, Washington, D.C. February
25, 2002
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