$05:Civil Money Penalty
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Department of Health and Human Services,
- v.-
Cerebral Palsy Center of the Bay Area, Respondent.
DATE: August 5, 1994
Docket No. 93-504-2
Decision No. CR325
DECISION ON REMAND
In a Notice of Opportunity for Hearing (Notice) dated February 1,
1993, the United States Department of Health and Human Services
(Department) charged Respondent, Cerebral Palsy Center of the Bay
Area (Respondent or CPCBA), with violating section 504 of the
Rehabilitation Act of 1973 (Act), as amended, 29 U.S.C. 794, and
its implementing regulation at 45 C.F.R. Part 84. The Department
charged specifically that Respondent subjected an allegedly
qualified handicapped person (the Complainant) to discrimination in
employment, and further denied him an employment opportunity based
on the need to make reasonable accommodation, thereby violating
section 504 of the Act and 45 C.F.R. Part 84. The Department
charged also that Respondent's employment application form was
discriminatory. 1/ The Department sought as a remedy termination
of all Departmental federal financial assistance to Respondent
until Respondent came into compliance with section 504 by providing
appropriate relief for the Complainant (which relief must include
reinstatement, back pay, and any other monetary loss to the
Complainant resulting from Respondent's discriminatory practices)
and by revising its employment application.
Respondent requested a hearing. On December 10, 1993, I issued a
Decision in which I concluded that I was without authority to
adjudicate the issue of whether Respondent discriminated against
the Complainant by subjecting him to discrimination in employment
and denying him an employment opportunity based on the need to make
reasonable accommodation. Specifically, I found that although
Respondent received federal financial assistance during the period
of the Complainant's employment, based on my interpretation of the
Supreme Court's decision in United States Department of
Transportation v. Paralyzed Veterans of America, 477 U.S. 597
(1986), Respondent was not a "recipient" of federal financial
assistance within the meaning of section 504. I found that, to be
a "recipient" of federal financial assistance, an entity must know
it is receiving federal funds and be in a position to accept or
reject the obligations of section 504 as part of the decision
whether or not to receive those funds. I concluded that the
Department had not proved that Respondent was aware that it was in
receipt of federal funds from the Medicaid waiver program and that,
therefore, Respondent was not in a position to make a knowledgeable
decision to accept or reject the section 504 obligations attendant
upon receipt of those funds.
Following issuance of my December 10, 1993 Decision, the Department
filed exceptions with the Civil Rights Reviewing Authority (CRRA)
regarding four of the Findings of Fact and Conclusions of Law
(Finding(s)) I made in that Decision, which Findings bore on my
conclusions that 1) Respondent was not a "recipient" of federal
financial assistance, and 2) that I lacked jurisdiction to hear the
Department's charges of employment discrimination. Respondent also
excepted to several of my Findings which were favorable to the
Department on related jurisdictional issues. In its March 22, 1994
Decision (CRRA Decision at (page)), the CRRA agreed with my
conclusion that Respondent was receiving federal financial
assistance under the Medicaid waiver program. However, the CRRA
determined that Respondent also was a "recipient" of federal
financial assistance within the meaning of section 504 and
Departmental regulations. In light of the CRRA's determination
that Respondent was a "recipient" of federal financial assistance
within the meaning of section 504 and Departmental regulations, the
CRRA remanded the case to me to consider the Department's charges
of employment discrimination on their merits. The CRRA further
directed me to: 1) clarify my jurisdictional findings consistent
with the CRRA's analysis; and 2) reexamine the accuracy of Findings
24, 28, and 57 in light of Respondent's exceptions. CRRA Decision
at 20. As directed, I have revised such findings consistent with
the CRRA's decision. 2/
With regard to the Department's charge that Respondent subjected
the Complainant to discrimination in employment and further denied
him an employment opportunity based on the need to make reasonable
accommodation, I have carefully considered the applicable law, the
evidence developed at the hearing, the posthearing briefs, the
proposed findings and conclusions submitted by the parties, and the
CRRA's March 22, 1994 Decision. I conclude that the Department has
proved within the meaning of section 504 of the Act and its
implementing regulations that: 1) Respondent is a recipient of
federal financial assistance; 2) the Complainant is a qualified
handicapped person; 3) Respondent failed to provide the Complainant
with reasonable accommodation for his handicap so that he could
perform the essential functions of his position; 4) Respondent
failed to prove such accommodation would impose an undue hardship
on its operations; 5) Respondent unlawfully terminated the
Complainant; 6) Respondent's compliance cannot be secured through
voluntary means; and 7) the Department is authorized to terminate
or refuse to grant or continue all Departmental federal financial
assistance to Respondent until Respondent comes into compliance
with section 504 and its implementing regulations.
ISSUES
The issues remaining in this case are whether:
1. Respondent discriminated against the Complainant
by subjecting him to discrimination in
employment and denying him an employment
opportunity, based on the need to make
reasonable accommodation;
2. Respondent is in noncompliance with section 504;
3. Respondent's compliance with section 504 can be
secured through voluntary means; and
4. There exists a basis upon which to terminate
Respondent's federal financial assistance.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. The following Findings are from my Decision of December 10,
1993, and, as set out here, have either been affirmed by the CRRA
or modified or clarified by me at the direction of the CRRA. 3/
1. Respondent is a California non-profit corporation, which
provides programs and services to individuals with developmental
disabilities, primarily cerebral palsy, in order to assist these
individuals in activities of daily living, such as obtaining and
maintaining employment. DHHS Ex. 12; Tr. 112, 525, 526; R. Br. 1.
4/
2. During the spring or summer of 1989, the Department's Office
for Civil Rights (OCR) received a complaint against Respondent
concerning the Complainant's employment with Respondent, which
employment began in April 1988 and terminated in March 1989. Tr.
90, 216; DHHS Ex. 1 at 1, 20 at 1; R. Ex. 6 at 1.
3. The Complainant alleged that Respondent had discriminated
against him on the basis of his disability, athetoid cerebral
palsy, by failing to provide him with reasonable accommodation to
enable him to perform the essential functions of his position as
supervisor of Respondent's Adult Development Program and that this
failure resulted in Respondent terminating his employment. DHHS
Ex. 1 at 19; 5 at 1 - 3; 20 at 1; Tr. 139, 216.
4. OCR alleged that the Department had jurisdiction to
investigate and sanction Respondent under section 504 of the Act
because Respondent was a sub-recipient of Departmental funds
through the California Department of Developmental Services (DDS).
DHHS Ex. 20 at 1; Tr. 90.
5. Section 504 prohibits discrimination against handicapped
persons in any program or activity receiving federal financial
assistance. Act, section 504.
6. Under the regulations, "federal financial assistance" is
defined as any grant, loan, contract (other than a procurement
contract or a contract of insurance or guaranty), or any other
arrangement by which the Department provides or otherwise makes
available assistance in the form of, among other things, funds.
45 C.F.R. 84.3(h).
7. The regulations state that service providers whose only source
of federal financial assistance is Medicaid should be regarded as
recipients under the statute and regulation and should be held
individually responsible for administering services in a
non-discriminatory fashion. 45 C.F.R. Part 84, appendix A,
sub-part A, definition 1.
8. Under the regulations, a "recipient" of federal financial
assistance is defined as any State or its political subdivision,
any instrumentality of a State or its political subdivision, any
public or private agency, institution, organization, or other
entity, or any person to which federal financial assistance is
extended directly or through another recipient, including any
successor, assignee, or transferee of a recipient, but excluding
the ultimate beneficiary of the assistance. 45 C.F.R. 84.3(f).
9. Under the regulations, "Department" is defined as the
Department of Health and Human Services. 45 C.F.R. 84.3(d).
10. To be a recipient of federal financial assistance, an entity
need not be in a position to accept or reject the obligations of
section 504 as part of the decision whether or not to receive
federal funds. Department of Health and Human Services v. Cerebral
Palsy Center of the Bay Area, DAB 1468 (1994).
11. An entity can be a "recipient" of "federal financial
assistance" whether or not the entity knows it is receiving federal
funds. Finding 10.
12. An entity's receipt of Medicare or Medicaid payments
constitutes federal financial assistance for the purposes of
section 504, as the purpose behind these programs is to subsidize
payments to providers of medical services for the care of the
beneficiaries of those programs. Furthermore, Congress intended
these programs to constitute federal financial assistance for the
purposes of coverage under section 504. United States v. Baylor
University Medical Center, 736 F.2d 1039 (5th Cir. 1984), cert.
denied, 469 U.S. 1189 (1985); Frazier v. Board of Trustees of
Northwest Mississippi Medical Center, 765 F.2d 1278 (5th Cir.
1985), cert. denied, 476 U.S. 1142 (1986); Jacobson v. Delta
Airlines, Inc., 742 F.2d 1202 (9th Cir. 1984), cert. dismissed, 471
U.S. 1062 (1985); 45 C.F.R. Part 80, appendix A, paragraph 121; 45
C.F.R. Part 84, appendix A, sub-part A, definition 1.
13. Respondent did not object to the Department's jurisdiction
during OCR's investigation. Tr. 904.
14. An OCR investigational office record made by Michael Aguirre
(MA), then an OCR investigator, noted that on August 8, 1989, MA
allegedly had a phone contact with Respondent's Executive Director,
James Gallagher (JG). The note reflects that JG allegedly
confirmed that Respondent received federal funds from two
California State agencies, DDS and the Department of Rehabilitation
(DR). Also, MA noted that Respondent received $422,000 in funding
from the Department's Office of Human Development Services (OHDS)
through DDS. DHHS Ex. 28.
15. Respondent, through the declaration and testimony of its
Executive Director, JG, has denied that JG advised OCR in August
1989 that Respondent had received federal funds during 1988 and
1989 or that it ever applied for any federal program development
grant funds during this period. R. Ex. 15; Tr. 904 - 908.
16. There is no evidence of record showing that, during the
investigation, OCR made any effort to verify the factual basis
supporting its alleged jurisdiction over Respondent through
documentary evidence, or sought a written admission by Respondent.
17. OCR investigated the complaint and found that Respondent had
discriminated against the Complainant by failing to provide him
with reasonable accommodation and by terminating his employment.
DHHS Ex. 20 at 1; Tr. 90, 91.
18. OCR was unable to negotiate a voluntary settlement with
Respondent. Notice 6 - 8; Answer 4, 5; Tr. 91.
19. On February 1, 1993, the Department initiated enforcement
proceedings against Respondent by issuing the Notice.
20. The Notice alleged that Respondent received federal financial
assistance from the Department via DDS, and that DDS received these
funds from the Department's OHDS. The Department specifically
alleged that, in 1989, the period during which the Department
alleged the discrimination occurred, Respondent received $422,000
in Departmental funds. Notice 4.
21. The jurisdictional allegation in the Notice contains the
identical factual basis that was developed during OCR's
investigation of Respondent. Findings 14, 20.
22. In its Answer, Respondent admitted that it had received the
federal financial assistance alleged in the Notice. Answer 2.
23. Based on subsequent investigation regarding the basis of the
Department's jurisdiction, on the first day of the hearing
Respondent raised a jurisdictional issue concerning its receipt of
federal financial assistance, and on the second day of the hearing
it moved to withdraw its admission regarding its receipt of federal
financial assistance. Tr. 223 - 224, 226, 230 - 231.
24. Lack of subject matter jurisdiction:
a. May be raised at any time during a proceeding,even on
appeal and even by the party who invoked thefederal jurisdiction in
the first place;
b. Cannot be cured;
c. Requires dismissal of the action.
Fed. R. Civ. P. 12(h)(3); American Fire & Casualty Co. v. Finn,
341 U.S. 6, 16 - 18 (1951); May Dept. Store v. Graphic Process Co.,
637 F.2d 1211, 1216 (9th Cir. 1980); Insurance Corp. of Ireland,
Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).
25. Respondent's admission regarding its receipt of federal
financial assistance (the basis of the Department's subject matter
jurisdiction) could be withdrawn at any time during this
proceeding. Findings 22, 24.
26. During the May 6, 1993 hearing, it was alleged by a former DR
employee that Respondent received Departmental funds when DR
reimbursed Respondent under the Career Opportunity Development
(COD) program for part of the Complainant's training at CPCBA. The
employee alleged that the COD program received federal matching
funds. Tr. 730, 731, 747 - 750; DHHS Ex. 1 at 29.
27. During the June 2, 1993 hearing, the Department admitted that
the federal matching funds under the COD program came from the
Department of Education (ED), not from the Department. The
Department further conceded that, based upon review of the federal
financial assistance received by Respondent during the period of
the alleged discrimination, the jurisdictional amount set forth in
the Notice was incorrect. Tr. 840 - 842, 844.
28. During the June 2, 1993 hearing, the Department
amended the jurisdictional allegation in the Notice by offering
evidence to support its contention that other federal financial
assistance was provided to Respondent. Specifically, the
Department alleged that, during the time the Complainant was
employed, Respondent was a recipient of certain State funding, 50
percent of which funding was reimbursed for eligible individuals
under the Medicaid waiver program. Tr. 840 - 841, 844; DHHS Ex. 24
at 10.
29. A Medicaid waiver is an optional benefit for which a State may
apply in order to obtain federal funds. Tr. 868; Social Security
Act, section 1915(c).
30. Section 1915(c) of the Social Security Act authorizes the
Secretary to waive certain Medicaid statutory limitations in order
to enable states to provide a broad array of approved home and
community-based services (except for room and board) to individuals
who, without these services, would require the level of care
provided in a hospital or a nursing or intermediate care facility.
Social Security Act, section 1915(c); DHHS Ex. 24 at 4.
31. On November 1, 1982, California's request to provide home and
community-based services to individuals with developmental
disabilities was approved by the Department, effective retroactive
to July 1, 1982. DHHS Ex. 24 at 4.
32. Respondent receives 66 to 70 percent of its funding as
fee-for-services from DDS and DR, primarily via the Regional Center
of the East Bay (RCEB), a non-profit corporation set up under the
Lanterman Act. R. Br. 1; Tr. 437, 438.
33. The Lanterman Act embodies California's statutory scheme for
the provision of services to developmentally disabled persons. Its
purpose is to provide a single point of coordination for services
to California residents with developmental disabilities. Tr. 864;
R. Rep. Br. 1.; Cal. Welf. & Inst. Code, 4500 et seq. and 4600
et seq.
34. The Lanterman Act requires that California establish regional
centers to carry out its responsibilities to the developmentally
disabled and that it contract with private, nonprofit community
agencies to provide these services. Cal. Welf. & Inst. Code,
4620.
35. DDS is the State agency charged with carrying out this
legislative mandate. DDS contracts annually with 21 regional
centers (which are private, non-profit corporations, not State
agencies) throughout California, which regional centers include the
RCEB. Tr. 862 - 865; R. Rep. Br. 2.
36. The regional centers submit monthly invoices to DDS so that
the centers can pay both their own overhead and the vendors with
whom they contract to provide services to handicapped individuals.
Tr. 863, 865, 874.
37. The regional centers perform an in-depth assessment of each
client to determine the client's needs. During this assessment,
the regional center makes a determination as to whether a client is
eligible for the Medicaid waiver program. DHHS Ex. 24 at 2, 8.
38. The regional centers must provide individual program plans for
each of their clients. The regional centers may contract with
other agencies to provide program coordination, and may also
contract with other agencies to provide other client services.
Cal. Welf. & Inst. Code, 4646, 4648.
39. DDS keeps a master eligibility file of those individuals whom
the regional centers have found to be eligible for the Medicaid
waiver program. Tr. 871.
40. When DDS receives an invoice from a regional center, it
extracts the cost of the Medicaid waiver services associated with
those identified individuals and creates an invoice to California's
Department of Health Services (DHS), the State agency responsible
for administering the Medicaid program in California. Tr. 871,
872; DHHS Ex. 24 at 8.
41. DHS checks the individual clients against its master
eligibility file. DHS then puts this information into a claims
schedule which goes to the California State Controller for payment.
The Controller issues a check to DDS. Tr. 872; DHHS Ex. 24 at 8.
42. The check issued to DDS is a draw-down from the DHS health
care deposit fund and constitutes federal reimbursement under the
Medicaid waiver program for 50 percent of a regional center's
invoice for eligible individuals. Tr. 873 - 875.
43. The other 50 percent of DDS' reimbursement on a regional
center's invoice comes from the State general fund. Tr. 874.
44. DDS pays the regional centers. Tr. 873, 874.
45. From 1987 through 1989, DDS could submit claims under the
Medicaid waiver program for 3,360 individuals only. During these
years, the regional centers identified a greater number of
otherwise eligible individuals, but DDS could not accommodate all
of them. Tr. 875, 876.
46. RCEB contracts with vendors to provide services to its
clients, who are developmentally disabled individuals. Tr. 865,
866; Findings 33 - 36, 38.
47. DDS does not contract with the vendors who provide services to
RCEB's clients. Tr. 867.
48. Since January 1, 1976, Respondent has been an RCEB vendor
providing services to RCEB's handicapped clients. DHHS Ex. 25.
49. The California State fiscal year covers the period of July 1
through June 30. During the State fiscal years 1987 through 1989,
Respondent received $117,573.57 from RCEB under the Medicaid waiver
program. Half of this amount, $58,786.79, was reimbursed by the
Department. DHHS Ex. 24 at 3, 10.
50. During the term of the Complainant's employment by Respondent,
RCEB billed DDS for the Medicaid waiver program eligible clients to
whom Respondent provided services. Tr. 877; DHHS Ex. 24 at 10.
51. DDS reimbursed RCEB for these services. Half of the
reimbursement for the Medicaid waiver program eligible clients came
from the federal Medicaid funds DDS received. Tr. 880 - 886; DHHS
Ex. 24 at 2, 3, 10 - 26.
52. During the term of the Complainant's employment by Respondent,
if DDS did not receive the federal matching funds under the
Medicaid waiver program, it would not have to pay RCEB the entire
amount of RCEB's invoice for the services it purchased for its
Medicaid waiver program eligible clients. Tr. 887 - 888.
53. During the term of the Complainant's employment by Respondent,
the contracts between RCEB and vendors providing services to RCEB's
handicapped clients did not refer to Medicaid eligibility or to
possible federal reimbursement. Tr. 919, 920; R. Ex. 16.
54. Prior to 1992, vendors providing services to RCEB did not have
to sign a Medi-Cal (the California Medicaid program) provider
agreement claims certification. Respondent did not sign such a
certification agreement until July 31, 1992. Tr. 886; DHHS Ex. 26,
27.
55. In the claims certification, the provider acknowledges, among
other things, that payment will be from "federal and/or state
funds", "services are offered and provided without discrimination
based on race, religion, color, national or ethnic origin, sex,
age, or physical or mental disability" and it will be an "enrolled
Medi-Cal provider of home and community based waivered services."
DHHS Ex. 26, 27.
56. Since all Medicaid waiver program eligibility determinations
and billings are handled through the regional centers, until the
time that service providers were required to sign the certification
agreement in 1992, service providers such as Respondent were not
necessarily aware that their clients were in the Medicaid waiver
program or that federal funds were providing one- half of the
reimbursement for the cost of their services. Tr. 893 - 895, 919
- 921; DHHS Ex. 24 at 2; R. Ex. 16 at 2.
57. The Medicaid waiver program was intended by Congress to be
federal financial assistance and thus subject to section 504 of the
Act. Findings 6, 12, 29, 30.
58. Since Respondent received federal financial assistance in the
form of Medicaid waiver program funds, such funds do not constitute
the proceeds of a procurement contract with RCEB. Finding 57.
59. The Department has not proven that Respondent knew that, prior
to July 1992, it was in receipt of any federal funds. Respondent
reasonably could have assumed that its reimbursement for services
from RCEB and DDS consisted solely of funds from California. Tr.
904 - 908; R. Ex. 15; Findings 53 - 56.
60. Respondent is a recipient of Medicaid waiver program funds as
defined in 45 C.F.R. Part 84, appendix A, sub-part A. Findings 7,
8, 50, 51.
61. The Department did not prove Respondent knew that: 1) it was
to be paid for its services with federal Medicaid waiver program
funds; and 2) it was therefore in a position to accept or reject
the obligations of section 504 as part of its decision whether or
not to receive federal funds.
62. Proof that Respondent knew that it was in receipt of federal
financial assistance is not required to establish that Respondent
is a "recipient" of federal financial assistance. Findings 1 - 61.
63. Respondent is a "recipient" of federal financial assistance.
Findings 1 - 62.
64. As Respondent is a "recipient" of federal financial
assistance, I have jurisdiction to adjudicate the Department's
allegation of discrimination.
65. After July 31, 1992, Respondent knew it was in receipt of
Departmental funds and was in a position to accept or reject the
obligations of section 504 as part of the decision whether or not
to receive federal funds. Findings 54, 55.
II. The following Findings relate to the legal standard that must
be met to prove discrimination under section 504.
66. This case is governed by section 504 of the Rehabilitation Act
of 1973, 29 U.S.C. 794(a), and by regulations contained in 45
C.F.R. Parts 81 and 84.
67. It is unlawful under section 504 of the Act for a program or
activity receiving federal financial assistance to discriminate
against an otherwise qualified individual with a handicap, solely
on the basis of his or her handicap. 29 U.S.C. 794(a).
68. There are four elements which an employee must show in order
to establish a prima facie case of discrimination under section 504
of the Act. The employee must show: 1) that he or she is a
handicapped person; 2) that he or she is otherwise qualified for
the job; 3) that he or she has been discriminated against on the
basis of handicap; and 4) that the discrimination took place in a
program or activity which receives federal financial assistance.
29 U.S.C. 794(a); 45 C.F.R. Part 84; See Southeastern Community
College v. Davis, 442 U.S. 397 (1979); Alexander v. Choate, 469
U.S. 287 (1985); School Board of Nassau County, Florida v. Arline,
480 U.S. 273 (1987).
69. Departmental regulations implementing section 504 provide that
no qualified handicapped person shall, on the basis of handicap, be
subjected to discrimination in employment under any program or
activity which receives federal financial assistance from the
Department of Health and Human Services or receives benefits from
such assistance. 45 C.F.R. 84.4, 84.11(a)(1).
70. Section 84.11(b) of Title 45 of the Code of Federal
Regulations describes the specific practices prohibited under
section 84.11(a), which include termination of employment as set
forth in 45 C.F.R. 84.11(b)(2).
71. The regulations define a handicapped person as any person who:
1) has a physical or mental impairment which substantially limits
one or more major life activities; 2) has a record of such an
impairment; or 3) is regarded as having such an impairment. 45
C.F.R. 84.3(j)(1).
72. The regulations define a qualified handicapped person with
respect to employment to be a handicapped person who, with
reasonable accommodation, can perform the essential functions of
the job in question. 45 C.F.R. 84.3(k)(1).
73. The regulations state that a recipient shall make reasonable
accommodation to the known physical or mental limitations of an
otherwise qualified handicapped applicant or employee unless the
recipient can demonstrate that the accommodation would impose an
undue hardship on the operation of its program. 45 C.F.R.
84.12(a).
74. Examples of reasonable accommodation are set forth in 45
C.F.R. 84.12(b) and may include: 1) making facilities used by
employees 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, the provision
of readers or interpreters, and other similar actions.
75. The regulations list factors to be considered in determining
whether reasonable accommodation(s) would impose an undue hardship
on a recipient's operation of its program pursuant to section
84.12(a). These factors include: 1) the overall size of the
recipient's program with respect to the number of employees, number
and type of facilities, and size of budget; 2) the type of the
recipient's operation, including the composition and structure of
the recipient's workforce; and 3) the nature and cost of the
accommodation needed. 45 C.F.R. 84.12(c).
76. The regulations provide that a recipient of federal financial
assistance cannot deny an employment opportunity to a qualified
handicapped employee, if the basis for the denial is the need to
make reasonable accommodation to the employee's physical
limitations.
45 C.F.R. 84.12(d).
77. Once it has been determined that a disabled employee can
perform the essential functions of his position with reasonable
accommodation, the burden of proof is on the employer to
demonstrate that such accommodation will constitute an undue
hardship to the employer. See Southeastern Community College v.
Davis, 442 U.S. 397 (1979); Pushkin v. Regents of University of
Colorado, 658 F.2d 1372 (10th Cir. 1981); School Board of Nassau
County, Florida v. Arline, 480 U.S. 273 (1987).
III. The following Findings relate to the factual circumstances
surrounding the Complainant's employment, which circumstances led
to the Department's charging Respondent with discriminating against
the Complainant by subjecting him to discrimination in employment,
and by denying him an employment opportunity based on the need to
make reasonable accommodation.
78. Respondent operates day programs for approximately 75 to 85
developmentally disabled clients (most of whom have cerebral
palsy). These programs consist of a sheltered workshop (where
individuals can participate in paid work) and an Adult Development
Program (where Respondent provides varied programming to meet a
broad range of its clients' physical and mental capabilities). Tr.
112, 445; DHHS Ex. 1 at 62.
79. During the term of the Complainant's employment, Respondent
did not maintain a written policy on reasonable accommodation for
its employees. Tr. 206, 525, 621 - 622.
80. The Complainant's athetoid cerebral palsy affects his ability
to walk, speak, and perform manual tasks. Notice 4; Answer 2; DHHS
Ex. 5 at 1 - 2, 6 at 1 - 2; Tr. 139 - 140.
81. Respondent admits that the Complainant is a handicapped person
as defined by 45 C.F.R. 84.3(j). Answer 2.
82. The Complainant applied for the job of Supervisor of
Respondent's Adult Development Program on January 28, 1988. DHHS
Ex. 1 at 4.
83. The Complainant was a DR client when he applied for the job of
Supervisor of the Adult Development Program. Tr. 160, 166.
84. DR was not involved in finding the job opening of Supervisor
of Respondent's Adult Development Program for the Complainant. Tr.
at 114 - 116, 122 - 123, 160 - 161.
85. The Complainant learned that the position of Supervisor of the
Adult Development Program was open through the individual who was
then Respondent's Program Counselor. Tr. 111, 115 - 116, 151 -
152.
86. The "job specifications" for the position of the Supervisor of
the Adult Development Program stated that, under the general
supervision of the Assistant Executive Director, the Supervisor was
to plan, organize, coordinate, and implement an Adult Development
Program for cerebral palsied and other developmentally disabled
adults, and perform related work as required.
DHHS Ex. 1 at 62; Tr. 260.
87. Specifically, the job specifications reflect that the
Supervisor of the Adult Development Program was responsible for the
detailed planning and implementation of the Program. The
Supervisor was to direct the activities of the Program's
instructors, associates, assistants, interns, and volunteers by,
for example: 1) evaluating and selecting varied developmental
activities suitable for an adult group with a broad range of
cognitive abilities; 2) scheduling a program of adult development
and arranging for, and assisting in, the set-up of appropriate
instructional areas; 3) administering a tracking system to monitor
individual client progress and providing for accurate and timely
reporting on selected client objectives each month; 4)
participating in the admissions process, proposing an individual
service plan for a new client, and representing the department at
annual individual program plan meetings; 5) evaluating class
effectiveness and proposing adjustments accordingly; 6) scheduling
and chairing regular Adult Development Program staff meetings,
coordinating efforts with other professional staff, and arranging
for in-service training; 7) supervising all Adult Development
Program staff, including interns and volunteers; and 8) overseeing
client advocacy training and implementation, including appropriate
special activities away from the CPCBA building for program
participants. DHHS Ex. 1 at 62; Tr. 161.
88. The position of Supervisor of the Adult Development Program
did not require an applicant to meet any physical standards.
89. The position of Supervisor of the Adult Development Program
required the preparation of reports, evaluations of staff and
clients, curriculum development plans, and other paperwork. Tr.
261 - 271.
90. Evaluating and selecting varied developmental activities
suitable for an adult group with a broad range of cognitive
abilities required paperwork to be done. Tr. 261.
91. Scheduling a program of adult development and arranging for
and assisting in the set-up of appropriate instructional areas
required the production of paperwork, such as a calendar of events.
Tr. 263.
92. Administering a tracking system to monitor individual client
progress and providing for accurate and timely reporting on
selected client objectives each month required paperwork. Tr. 263
- 264.
93. Participating in the admissions process and proposing an
individual service plan for a new client required some paperwork.
Representing the department at annual individual program plan
meetings did not require paperwork, it required oral reports. Tr.
264 - 267.
94. Evaluating class effectiveness and proposing adjustments
required only minimal paperwork, as it principally involved direct
observation. Tr. 267.
95. Scheduling and chairing regular Adult Development Program
staff meetings, coordinating efforts with other professional staff,
and arranging for in-service training required only minimal
paperwork, as such work was generally done over the phone and
involved scheduling. Tr. 267 - 268.
96. Supervising all Adult Development Program staff, including
interns and volunteers, required paperwork in the form of annual
evaluation reports. Tr. 268.
97. Overseeing client advocacy training and implementation,
including appropriate special activities away from the CPCBA
building for program participants, required only minimal paperwork,
consisting of correspondence with recreational or educational
institutions providing special activities. Tr. 269.
98. While the job specifications for Supervisor of the Adult
Development Program did indicate the need for the generation of
certain types of reports or evaluations, they did not contain any
reference to the need for typing or dictation skills or proficiency
in the use of computers. DHHS Ex. 1 at 62 - 63.
99. The educational requirements for the position of Supervisor of
the Adult Development Program included graduation from college with
a major in developmental psychology, special education (a
credential is required), or experience in a closely allied field.
DHHS Ex. 1 at 63.
100. The Complainant has a bachelor's degree in elementary
education and a master's degree in guidance and counseling. DHHS
Ex. 1 at 9.
101. The work experience required for the position of Supervisor
of the Adult Development Program includes at least three years
working with adults with cerebral palsy or other developmentally
disabled adults, and at least two years direct supervision of staff
working with developmentally disabled adults, or similar
experience.
102. At the time he applied for the job of Supervisor of
Respondent's Adult Development Program, the Complainant had worked
in a variety of jobs involving the developmentally disabled for
over 10 years and was a developmentally disabled adult himself.
DHHS Ex. 1 at 8, DHHS Ex. 7.
103. Respondent never argued that the Complainant's educational
background and work experience did not qualify him for the position
of Supervisor of the Adult Development Program.
104. The Adult Development Program provided services for
approximately 60 to 70 clients. There was a turnover of
approximately 10 clients per year. For each new client, the
Supervisor of the Adult Development Program was required to prepare
a written assessment, a program schedule, and an individual service
plan. DHHS Ex. 1 at 62; Tr. 443 - 450.
105. JG estimates paperwork constitutes 50 percent of the job
duties of the Supervisor of the Adult Development Program,
although, other than confidential reports (which he believed the
Complainant would do on his computer), JG did not expect the
Complainant to type his own reports. Tr. 354, 443, 447 - 450, 490.
106. The Supervisor of the Adult Development Program is
accountable on paper to the State agencies which partially fund the
Program. Tr. 444.
107. The essential functions of the job of Supervisor of the Adult
Development Program are principally professional. They are to
plan, organize, coordinate, and implement an adult development
program. The paperwork involved in carrying out these functions,
while essential to getting the job done, is a clerical function
(the physical action of memorializing the thoughts of the
Supervisor in a written or typed form) which is subordinate to the
professional functions (the creation of the substance of the
written or typed document) of the position. Findings 86 - 106.
108. Respondent provides clerical support for its professional
staff, including clerical support for the position of Supervisor of
the Adult Development Program. Tr. 191 - 192, 354, 404 - 406; DHHS
Ex. 23 at 23.
109. During the term of the Complainant's employment, Respondent
maintained three clerical positions. There was a program records
clerk (Ernestine Britt (EB)) who handled all the paperwork and case
files for clients; a general clerk (Marge Thompson (MT)) who
handled CPCBA's correspondence, filing, reports and billings; and
a supervising clerk (first Elaine Van Buren (EVB) and then Mary
Nordseth (MN)), who supervised the program records clerk and the
general clerk. All three clerical positions were responsible for
answering the telephone. Tr. 189 - 190, 404, 689.
110. The clerical staff served the clerical needs of eight people
and were very busy. 191 - 192.
111. In September or October 1988, the supervisor of the clerical
staff, EVB, (who gave assignments to the other two clericals)
became ill, and Respondent had only two full-time clerical staff to
serve all of CPCBA's clerical needs. Tr. 190 - 191, 495.
112. From approximately September 1988 to January 1989, Respondent
had no supervising clerk, and only two full-time clerical employees
were available to assist the professional staff at CPCBA. Tr. 189
- 191, 494 - 495.
113. A new supervising clerk, MN, was hired and worked from
January 16, 1989 until February 23, 1989. Between February 23,
1989 and Respondent's termination on March 16, 1989, there was no
supervising clerk at CPCBA, and only two full-time clerical
employees were available to assist the professional staff. Tr.
404, 495.
114. The Complainant's first interview for the position of
Supervisor of Respondent's Adult Development Program occurred on
February 17, 1988. JG interviewed him. DHHS Ex. 1 at 10; Tr. 155.
115. The Complainant was interviewed next on March 4, 1988, by
both JG and Marilyn Russell (MR), Respondent's Executive Director.
DHHS Ex. 1 at 10, 11; Tr. 155.
116. JG was aware that the Complainant had a disability prior to
recommending that he be hired. Specifically, JG knew the
Complainant was a wheelchair user, had limited manual dexterity,
and a speech impairment. JG knew the Complainant's writing
abilities were limited. DHHS Ex. 1 at 10, 12; Tr. 156 - 157, 351,
353.
117. During the interview process, JG discussed the duties of the
position of Supervisor of the Adult Development Program with the
Complainant and also provided the Complainant with a copy of the
position description. Tr. 351; DHHS Ex. 1 at 62 - 63.
118. During the interview process, JG and MR discussed with the
Complainant what accommodation for his disability would be
necessary for him to perform the job of Supervisor of the Adult
Development Program. DHHS Ex. 1 at 10; Tr. 157, 159 - 160, 355 -
356, 779, 786 - 789.
119. During the interview process, the Complainant discussed with
JG and MR the volume of paperwork required for him to perform the
job of Supervisor of the Adult Development Program. DHHS Ex. 1 at
10; Tr. 157, 159, 163, 366.
120. During the interview process, the Complainant indicated to JG
and MR that he could do the paperwork required, with the aid of a
computer. The possibility of using a dictaphone and existing
clerical staff for transcription was discussed. The subject of an
employment aide was not discussed during the interview process.
DHHS Ex. 1 at 10, 23 - 28, 33 - 35; Tr. 157, 159, 163, 354 - 355,
360, 366, 779, 787.
121. In a memo of March 18, 1988, from JG to MR, JG specifically
mentioned the need to discuss with the Complainant his expectations
of "reasonable accommodation." DHHS Ex. 1 at 16.
122. Respondent acknowledges that the Complainant was not
precluded from asking for an employment aide simply because the
issue was not raised during the interview process. Tr. 364 - 366,
788 - 789.
123. Respondent was aware from the beginning of the Complainant's
employment that he would need some form of "reasonable
accommodation." Findings 116, 118 - 121.
124. The accommodation JG considered the Complainant needed to do
the job included the physical set-up at CPCBA, i.e., suitably
configured bathroom facilities, a speakerphone, and a computer
provided by DR to do paperwork. Tr. 355 - 356.
125 On JG's recommendation, MR authorized hiring the Complainant
for the position of Supervisor of the Adult Development Program.
Tr. 350 - 351, 791.
126. Effective April 4, 1988, Respondent employed the Complainant
as Supervisor of its Adult Development Program. DHHS Ex. 1 at 17,
22.
127. The Complainant's letter of employment confirmation indicated
that the Complainant would be on probation for one year. The
Complainant read the letter and an employee handbook explaining the
probationary status of Respondent's new employees. The Complainant
understood that he would be serving at the discretion of
Respondent's Board of Directors. DHHS Ex. 1 at 17; Tr. 250 - 252.
128. As Supervisor of the Adult Development Program, the
Complainant supervised three staff employees, whom he was required
to evaluate annually (twice a year for new employees). Tr. 499,
777, 786.
129. The Complainant requested that DR provide him with an
employment aide to assist him at CPCBA. Tr. 160, 166, 734.
130. Under a Career Opportunities Development Program grant, DR
reimbursed Respondent for the first three months of the
Complainant's salary and benefits. With general funds, DR provided
the Complainant with an employment aide 15 hours a week for four
months, a specially equipped van, insurance, upkeep for the van,
and rehabilitation engineering services, which services included a
computer, specific software, computer training, and a revamped
telephone. DHHS Ex. 1 at 29 - 33; Tr. 160, 167, 169 - 171, 360 -
361, 731, 733 - 734.
131. DR informed the Complainant that the employment aide was a
temporary measure to help the Complainant adjust to his new job.
The computer equipment and training were intended to permit the
Complainant to do his job independently. Tr. 736 - 737.
132. Respondent made it clear to DR that they could not afford to
hire a second person to help the Complainant do his job. Tr. 735
- 736.
133. The DR computer was not delivered to the Complainant until
either November 1988 or January 1989, and was not fully programmed
prior to the Complainant's termination. The Complainant was not
fully trained on the computer prior to his termination. DHHS Ex.
1 at 46, 56; Tr. 184 - 186, 316 - 317.
134. The Complainant typed on the computer with a head wand,
utilizing a "peck and poke" system. Tr. 184 - 185.
135. Respondent would not have entered into an agreement in which
DR would reimburse Respondent for the Complainant's first three
months of salary if Respondent knew ultimately it would be
obligated to provide the Complainant with an employment aide --
thereby requiring Respondent to hire two people for one job. Tr.
735 - 736, 744 - 746.
136. At the time he was hired, the Complainant was to be paid
$1538 per month. DHHS Ex. 1 at 17.
137. JG was the Complainant's direct supervisor. Tr. 343.
138. Jim Shubert (JS) was the Complainant's first employment aide.
The Complainant chose JS as his employment aide. DR paid JS. JS
worked 15 hours a week from 9:00 a.m. to noon, Monday through
Friday, and was paid approximately $7 an hour. Tr. 167.
139. JS worked as the Complainant's employment aide for three
weeks, then left due to a personal injury. Tr. 169.
140. Melanie Hoffman (MH) was the Complainant's second employment
aide. The Complainant chose MH as his employment aide, and DR paid
MH. MH worked 15 hours a week and was paid approximately $7 to
$7.50 per hour. DHHS Ex. 6; Tr. 169 - 170.
141. MH began working as Respondent's employment aide in May 1988
and worked as the Complainant's employment aide until July 21,
1988. DHHS Ex. 6 at 1; Tr. 170.
142. MH had to leave because the contract with DR expired and DR
would no longer pay MH's salary. Tr. 171.
143. Respondent hired MH for two days in December 1988, to assist
the Complainant in organizing Respondent's Christmas party. DHHS
Ex. 6 at 3.
144. MH worked as the Complainant's employment aide only as a
favor to the Complainant. MH did not want to perform this job.
Tr. 338.
145. The Complainant's employment aides' duties were filing,
making copies, filling out forms under the Complainant's direction,
taking handwritten dictation, assisting the Complainant on the
telephone, setting up tables and chairs, keeping the Complainant's
appointment book, creating visual aids under the Complainant's
direction, and keeping the Complainant's office neat and organized.
DHHS Ex. 6; Tr. 167 - 168, 170.
146. Beginning in May 1988, the Complainant requested that
Respondent provide him with an employment aide. DHHS Ex. 1 at 23
- 24, 26; Tr. 178 - 180, 203 - 204, 416, 737, 772.
147. Respondent denied the Complainant's request, claiming CPCBA
had no existing policy under which to hire an employment aide and
that when the Complainant was hired he was not promised a clerical
assistant. DHHS Ex. 1 at 26 - 28, 34; Tr. 178 - 179, 204 - 205,
364 - 365, 367 - 368, 370 - 371, 374.
148. On June 30, 1988, JG informed DR that the Complainant had
assumed the position of Supervisor of the Adult Development Program
with an attitude of responsibility, and had been open to learning
procedures. The only difficulty noted by JG was a misunderstanding
regarding the employment aide. JG rated (on an "A" to "F"
scale)
the Complainant's curriculum development, program evaluation, and
client evaluation skills an "A" and his personnel administration
skills a "B." JG further answered "yes" to a question concerning
whether the Complainant had the talent, personality, education, and
other qualifications necessary to succeed. JG had no
recommendations for improving the Complainant's performance and did
not believe the Complainant needed more time to complete his
training. DHHS Ex. 1 at 33.
149. On July 15, 1988, the Complainant wrote a memo to JG stating
that he understood that Respondent would not provide him with an
employment aide. DHHS Ex. 1 at 35.
150. Respondent resisted the Complainant's attempts to get CPCBA
to provide him with the assistance of an employment aide. The
perception that a strain was occurring in the relationship between
himself and JG, due to his attempts to secure an employment aide,
caused the Complainant to write his July 15, 1988 memo. DHHS Ex.
4; Tr. 180 - 182.
151. From approximately the beginning of September 1988, until the
beginning of December 1988, the Complainant was able to utilize the
services of Alma Schawver (AS). Initially, AS was a CPCBA
volunteer, whom MR later hired and Respondent paid to fill in
temporarily for a clerical employee who was ill. AS assisted the
Complainant 15 hours per week. Tr. 174 - 175, 398 - 399.
152. AS's duties were the same as those of the Complainant's two
employment aides. Finding 145; Tr. 175.
153. The Complainant found it difficult to work with AS, because
AS had a significant hearing loss. It took twice as long to get
the Complainant's work done, because the problem with AS's hearing
was compounded by the Complainant's unusual speech. Tr. 175, 399
- 400.
154. AS worked with the Complainant in his office. Tr. 400.
155. AS was not designated to work on confidential client
information. Tr. 414.
156. When AS left, the Complainant was expected to use his
computer and existing clerical staff, when available, to produce
paperwork. Tr. 400 - 401.
157. Respondent refused to hire a permanent part-time employment
aide for the Complainant. Findings 146 - 147, 150, 156.
158. The Complainant's position required him to produce
confidential evaluations of clients and staff. Tr. 411.
159. The Complainant had difficulty completing paperwork without
an employment aide. DHHS Ex. 1 at 41 - 42; Tr. 205 - 206.
160. The program records clerk, EB, was the CPCBA clerical
employee authorized to handle confidential client information, as
opposed to staff evaluations. Tr. 201 - 203, 414.
161. Only the supervising clerk could handle confidential staff
evaluations, as opposed to client evaluations. After EVB left and
before MN was hired and after she left, there was no supervising
clerk to assist the Complainant with staff evaluations. Tr. 497 -
498; DHHS Ex. 1 at 54.
162. JG and MR testified that they directed the clerical staff to
provide as much assistance as they could to the Complainant. MR
testified that she requested that EB assist the Complainant after
3:00 or 4:00 p.m. each day. Tr. 398, 691, 773 - 774. MR did not
specify how long the work day was, or how long EB actually helped
the Complainant each day.
163. The Complainant specifically requested that JG ask the
clerical staff to assist the Complainant, as their time permitted,
to accomplish "all [the] performance duties and objectives dictated
by [his] employment contract." DHHS Ex. 1 at 35; Tr. 192.
164. The Complainant does not recall that JG ever assigned anyone
to help him specifically. The Complainant was left confused about
who on the clerical staff he should ask for clerical assistance, as
JG never informed the Complainant which clerical staff person to
ask for assistance Tr. 189, 192.
165. JG never intervened effectively on the Complainant's behalf
with the clerical staff. JG's view was that it was up to the
Complainant to request assistance from the clerical staff. Tr.
401.
166. Respondent otherwise provided the Complainant with access to
the same clerical resources available to other professional staff
at CPCBA. Tr. 405 - 406; DHHS Ex. 23 at 23.
167. The Complainant asked the clerical staff for assistance in
dictation, filing, interpreting initial phone calls (until a caller
became familiar with the Complainant's speech), and retrieving
documents from files. Tr. 194.
168. The clerical staff had to remain in their office to answer
phone calls. The Complainant had to go to the clerical staff's
office to orally dictate confidential information. The office was
above the parking lot and noisy. Tr. 195, 197 - 199, 272.
169. To get to the office where the clerical staff was located,
the Complainant had to leave his office, pass through double doors,
and travel through the lobby. The location of the clerical staff's
office was not convenient to the Complainant's office. Tr. 121,
196 - 197.
170. Due to the noise, distance from the Complainant's office,
distractions from phone calls, and lack of confidentiality, the
clerical staff's office did not provide a professional environment
for taking dictation, especially any containing confidential
information. Findings 168 - 169; Tr. 198 - 200, 208 - 209, 413.
171. EB preferred to take direct dictation and not to use a
dictaphone. EB transcribed most of the Complainant's dictation, as
his dictation was of a confidential nature. Tr. 195.
172. The Complainant attempted to arrange for specific times for
the clerical staff to assist him. The Complainant was somewhat
successful in getting EB to help him, but it was not under ideal
conditions. Tr. 192, 195; Findings 170 - 171.
173. After December 1988, when AS left, Respondent did not
effectively direct or assign any clerical staff person to assist
the Complainant exclusively on a regular basis. Tr. at 129, 188 -
189, 192 - 196, 316, 402 - 403.
174. Professional staff of the Adult Development Program were
asked, either by the Complainant, JG, or MR, but at MR's direction,
to assist the Complainant by giving up 30 minutes to one hour of
their own office time to help the Complainant with clerical
functions. Tr. 192 - 194, 662, 677.
175. The Complainant did not believe it was professional to ask
his Adult Development Program staff to assist him with paperwork.
Tr. 193 - 194.
176. At least one member of the Complainant's Adult Development
Program staff felt it was unfair to be asked to assist the
Complainant, as it would not leave enough office time to complete
that staff member's own paperwork. Tr. 670 - 671.
177. The Adult Development Program staff provided assistance to
the Complainant for approximately the first four months of his
employment. Tr. 664, 668, 677.
178. As a probationary employee, the Complainant was evaluated by
JG for the period April 1988 to September 1988, Respondent's first
six months of employment. DHHS Ex. 1 at 37 - 39.
179. In a Report of Performance written by JG and signed by JG,
MR, and the Complainant on October 28, 1988, the Complainant
received a "very good" performance rating (a score of "7"
on a
scale from "1" to "9" where "1" is unsatisfactory
and "9" is
excellent). DHHS Ex. 1 at 37.
180. The Complainant received a "very good" performance rating on
the following rating elements: Attitude, Knowledge of Job,
Dependability, and Employee and Public Contacts. He received a
"good" performance rating on rating elements pertaining to Work
Habits and Quality of Work. DHHS Ex. 1 at 37.
181. In rating the Complainant's "Attitude," JG stated that the
Complainant had: 1) accepted the many facets of his position with
a strong sense of responsibility and enthusiasm; 2) adapted to
changing circumstances such as special events, the unique needs of
individual clients, and the heavy load of paperwork generated by
his department; and 3) shown a strong desire to lead his
department. DHHS Ex. 1 at 38.
182. In rating the Complainant's "Knowledge of [his] Job," JG
stated that the Complainant had adapted his previous training and
experience to the clients and staff at CPCBA, and had "brought . .
. his own convictions about the quality of life for the clients and
how they can advocate for themselves." JG questioned only the
Complainant's ability to perform tasks requiring manual dexterity
and his occasional time away from the office. DHHS Ex. 1 at 38.
183. In rating the Complainant's "Work Habits," JG stated: 1)
that the Complainant had demonstrated his willingness and ability
to accept a project, plan a strategy, then implement and evaluate
the results; 2) that the Complainant continued to deal with the
constant flow of paperwork across his desk and that CPCBA would
continue to dialogue with him about clerical support (emphasis
added); 3) that the Complainant conducted himself in a professional
manner, observed CPCBA's policies and procedures, and maintained
good communication with his staff and other CPCBA employees; and 4)
that the Complainant had a commendable awareness of the importance
of staff development. DHHS Ex. 1 at 38.
184. In rating the Complainant's "Quality of Work," JG noted that
the Complainant wanted more promptness and precision in his work,
but that circumstances beyond the Complainant's control may have
prevented that. Further, JG noted the problems with regard to
clerical support for the Complainant. Although JG noted his hope
that the new computer would facilitate a resolution of the clerical
support problem, JG stated that an objective for the next few
months of the Complainant's employment should include a job
analysis which will document any tasks the Complainant observes as
needing "accommodation" (emphasis added). DHHS Ex. 1 at 39.
185. In rating the Complainant's "Dependability," JG noted that
the Complainant had demonstrated a consistent follow-through when
asked to do something. JG further noted that the Complainant was
able to handle the stresses and demands of his job, although the
demands might, on a particular day, deplete his energy. Finally,
JG noted that the Complainant was sensitive to staff relations in
his department and throughout CPCBA. DHHS Ex. 1 at 39.
186. In rating the Complainant's "Employee and Public Contacts,"
JG noted that the Complainant understood CPCBA's linkage with the
larger community and fostered contacts to benefit clients and
staff. To that end, JG stated that the Complainant should utilize
his role as an employee representative to get a sense of all the
departments and staff members at CPCBA. DHHS Ex. 1 at 39.
187. The Complainant received an increase in pay as of October 15,
1988. DHHS Ex. 1 at 36.
188. In January 1989, JG assured DR that the Complainant was
performing his job satisfactorily. Based on this assurance, DR
closed the Complainant's file. Tr. 712 - 713.
189. For the first six months of his employment, the Complainant
was successfully performing the essential functions of his
position. Tr. 394; Findings 178 - 188.
190. During the second six months of the Complainant's employment,
the Complainant had a heavier workload. Tr. 473 - 474.
191. During most of the first six months of the Complainant's
employment, while the Complainant was performing in a manner
Respondent termed "very good," the Complainant had a part-time
employment aide, access to a pool of three clericals, and the
occasional help of his Adult Development Program staff, to assist
him with the clerical functions of his job. Findings 108 - 113,
130, 138 - 145, 151 - 152, 162, 166 - 167, 172, 174, 177.
192. From September 1988 until January 1989, there was no clerical
employee on staff to assist the Complainant with confidential staff
evaluations. Tr. 498 - 499.
193. From September 1988 until either November 1988 or January
1989, the Complainant had no computer at CPCBA on which to produce
confidential staff evaluations. Further, as of his termination,
the Complainant was not fully trained on this computer. Finding
133; Tr. 498 - 499;
194. By early February 1989, three of the Complainant's
confidential staff evaluations had become overdue. Tr. 416; DHHS
Ex. 1 at 54.
195. After MN left CPCBA in February 1989, there was no CPCBA
clerical employee to assist the Complainant with confidential staff
evaluations. Finding 113; DHHS Ex. 1 at 54.
196. In March 1989, the Complainant told JG that he was unable to
complete the overdue paperwork using only the computer. Tr. 488.
197. The cabinetry in the Complainant's office made it difficult
for him to maneuver and prevented him from meeting in his office
with more than one student at a time. Tr. at 186 - 187.
198. The Complainant requested that Respondent enlarge his office.
Tr. at 187, 417 - 418, 542 - 543; DHHS Ex. 1 at 59.
199. Respondent refused to remove the cabinetry in the
Complainant's office, based on evidence that the Complainant had
seen his office prior to his employment and did not object to it.
DHHS Ex. 1 at 59; Tr. 418, 542 - 543.
200. JG was required to submit an evaluation of the Complainant no
later than two weeks prior to the expiration of the Complainant's
one-year period of probation. DHHS Ex. 1 at 43.
201. In a March 2, 1989 memo to MR, JG stated that he would submit
the Complainant's performance evaluation to the Complainant by
March 21, 1989. DHHS Ex. 1 at 43.
202. Prior to the Complainant's termination, JG did not submit a
formal performance evaluation (as he did in October 1988 (see
Findings 178 - 179)) covering the period October 1988 through March
1989. DHHS Ex. 1 at 54; Tr. 797 - 802.
203. On March 1, 1989, JG prepared an informal assessment, in
which JG advised the Complainant of deficiencies in his
performance. DHHS Ex. 1 at 41 - 42.
204. In this March 1, 1989 memo, JG stated his concern with the
Complainant's work habits and quality of work. JG referenced
meetings in February, at which he requested that the Complainant
turn in reports and staff evaluations. JG indicated that he and
the Complainant discussed the DR computer's limitations with regard
to generating reports and evaluations. JG indicated the
Complainant agreed to explore dictation to complete these reports
and evaluations. DHHS Ex. 1 at 41.
205. The Complainant had been told by EB that she preferred direct
dictation to use of a dictaphone. Tr. 195; Finding 171.
206. In this March 1, 1989 memo, JG indicated that, on February 8,
1989, he discussed the Complainant's overdue paperwork with the
Complainant. JG then indicated that, by six or seven days after
February 8, 1989, the Complainant had completed three client
assessments and scheduled a fourth for delivery. However, JG
stated that the Complainant then informed him that three staff
evaluations would not be ready by the deadline, February 28, 1989.
JG agreed to reschedule those for March 3, 1989. DHHS Ex. 1 at 41.
207. In this March 1, 1989 memo, JG indicated that on February 28,
1989, the Complainant stayed home to complete another overdue
report. JG indicated that he understood it was easier for the
Complainant to get help at home, but he did not understand why the
Complainant later came to the CPCBA building when other paperwork
needed attention. JG did not recall the Complainant's informing
him that he was to ride the bus that day in support of an effort to
use more public transportation. JG indicated it was unacceptable
for the Complainant to come in at noon and, further, two of the
Complainant's staff did not know about the delay. DHHS Ex. 1 at 41
- 42.
208. In this March 1, 1989 memo, JG stated that he never
authorized the Complainant to work at home during regular hours, or
to choose his time of arrival without prior notice. DHHS Ex. 1 at
42.
209. In this March 1, 1989 memo, JG informed the Complainant that,
based on his concern about the reports and about the Complainant's
absence from work without sufficient explanation, JG concluded that
he could not rate the Complainant's job performance as
satisfactory. DHHS Ex. 1 at 42.
210. In this March 1, 1989 memo, JG told the Complainant that, at
the end of his probation (April 4, 1989), JG was required to
prepare a performance evaluation determining the Complainant's
status as an employee. JG indicated he would need to see
demonstrable signs of improvement to rate the Complainant's work
differently. Specifically, JG wanted all personnel and client
evaluations completed by March 10. Further, the Complainant would
be expected to monitor his staff's compliance with procedures for
tracking client progress. Finally, the Complainant was to prepare
a report on the effectiveness of current classes and his plan for
class changes. DHHS Ex. 1 at 42, 47.
211. In this March 1, 1989 memo, JG did not offer to direct
specific clerical help to assist the Complainant. Nor did he
acknowledge that there was no clerical staff person who could
assist the Complainant with confidential staff evaluations, forcing
the Complainant to rely solely on his personal computer and help at
home.
212. The Complainant responded to JG's memo with a request for a
hearing, addressed to CPCBA's Personnel Services Committee, and
with a request for the assistance of the Employee Relations
committee. In this memo, the Complainant requested "reasonable
accommodation" with regard to the paperwork involved in his job.
DHHS Ex. 4.
213. Respondent's Personnel Committee is a subcommittee of
Respondent's Board of Directors. The Personnel Committee
recommends suggested personnel practices, policies, and procedures
to the Board of Directors and, if approved by the Board of
Directors, the Personnel Committee sees to their implementation.
Tr. 611.
214. Generally, the Personnel Committee becomes involved in the
termination of an employee only if that employee (once the employee
is a regular, not a probationary employee) has a complaint about
the policy under which the employee was terminated. Tr. 611.
215. By March 14, 1989, JG acknowledged that the Complainant had
completed the staff and client performance evaluations, met with
his staff regarding their inefficiency and weaknesses in
monitoring, was to submit a report to JG on the classes, and had
dictated a report on tape to JG. DHHS Ex. 1 at 47, 54.
216. JG did not respond to the Complainant in written form.
Instead, JG proposed to MR, and to William J. Stephens (WS) the
Chair of Respondent's Personnel Committee, to extend the
Complainant's one-year probation and to provide him with a clerical
aide two hours a day. JG testified he wanted to evaluate whether,
with an aide, the Complainant could perform the essential functions
of his job. DHHS Ex. 1 at 43 - 45, 54; Tr. 423.
217. JG indicated that the Complainant's problem with paperwork
was his failure to find the right combination of his own resources
and additional clerical support to do the job. JG noted that
"clerical support" for the Complainant meant assistance with
"dictation, filing and computer entry." JG acknowledged that such
requests were legitimate in light of the Complainant's handicap.
DHHS Ex. 1 at 44.
218. On March 14, 1989, JG prepared a memorandum to Respondent's
Executive Committee, passing along the Complainant's request for an
employment aide 12 hours a week at $7 an hour. If the Executive
Committee agreed to this request, JG indicated that the Chairman of
the Personnel Committee, WS, suggested the Complainant's employment
be extended for five more months and then be re-evaluated. DHHS
Ex. 1 at 46 - 48.
219. JG estimated that each week the Complainant's employment aide
would do two hours of computer entry, four hours of dictation, five
hours of administrative requests dealing with client related
written material and sorting of mail, and one hour of phone
interpretation for initial telephone contacts. DHHS Ex. 1 at 48.
220. MR signed the memorandum JG prepared, because JG wanted her
to. MR did not want to give the Complainant an employment aide.
MR believed that the Complainant only wanted Respondent to give a
job to MH, his second employment aide, whom the Complainant later
married. Tr. 788 - 789, 803 - 806.
221. MR did not think providing an employment aide for the
Complainant was a reasonable request, since she believed the
Complainant had not utilized the assistance Respondent offered.
Tr. 785, 789.
222. The Personnel Committee recommended against extending the
Complainant's probation. Tr. 612.
223. MR, but not JG (who, in effect, was advocating for the
Complainant and willing to explore avenues of reasonable
accommodation), attended the meeting of the Personnel Committee.
Tr. 802, 808.
224. The basis for the Personnel Committee's decision not to
extend the Complainant's probation was that extending the
Complainant's probation would set a bad precedent and show special
favor toward one employee. Tr. 612.
225. The Personnel Committee determined that extension of the
Complainant's probation would constitute an undue hardship, as it
would violate Respondent's rules and regulations and set up
specific rules for individuals rather than for the organization as
a whole. Tr. at 613 - 614.
226. The Personnel Committee did not consider Respondent's
finances in turning down JG's request for an extension of the
Complainant's probation. Tr. 613, 616.
227. JG did not believe that it would be a hardship for Respondent
to have extended the Complainant's probation. Tr. 436.
228. During a March 15, 1989 meeting, Respondent's Board of
Directors, based on the joint recommendation of Respondent's
Personnel and Executive Committees (which had met to discuss the
extension of the Complainant's employment), rejected the extension
of the Complainant's probationary period. The Board of Directors
was told that the Committees had decided that, since the regular
probationary period for staff is one year, that should be
sufficient time to determine an employee's performance. The Board
noted that this is stated in the Employee Handbook, of which the
Complainant had a copy. The Board accepted the Committees'
recommendation not to extend the probationary period and concurred
with their determination to terminate the Complainant, as his
employment had been less than satisfactory. DHHS Ex. 1 at 49.
229. Respondent terminated the Complainant from his position on
March 17, 1989. DHHS Ex. 1 at 50.
230. On April 12, 1989, the Complainant requested a hearing
concerning his termination. DHHS Ex. 1 at 51.
231. Respondent's Board of Directors, stating that it wanted to be
fair to the Complainant, granted the Complainant a hearing before
a special committee of three board members, Joseph Ratto (JR), WS,
and Joseph White (JW). The grievance procedure under which the
Complainant's hearing was granted generally does not apply to
probationary employees. DHHS Ex. 1 at 52, 57; Tr. 210.
232. Respondent's Board of Directors is not involved in its day to
day activities. The Board's primary purpose is general management
through policy making regarding Respondent's procedures and
practices. Tr. 609.
233. JG summarized the Complainant's employment for the special
committee meeting. In this memo, JG noted the Complainant's fine
qualities and the contributions he made to CPCBA. JG noted the
value of the Complainant's sharing his life experience with CPCBA's
clients and staff. JG noted that the Complainant advocated for
clients striving to better their quality of life, and worked hard
to include all Adult Development Program staff members in the
promotion of the clients' needs. Further, JG noted that the
Complainant took seriously the revision of the curriculum. DHHS
Ex. 1 at 53 - 54.
234. JG did note that he had a concern about the Complainant's
work habits (which he indicates was unrelated to the issue of
clerical help). JG stated that the Complainant did not organize
his work and time well. JG questioned whether the Complainant's
work habits and quality of work were up to the task of fulfilling
the administrative duties of a supervisor. DHHS Ex. 1 at 55.
235. Prior to participating in the termination hearing, JW was not
familiar with the facts of the Complainant's termination. Tr. 603.
236. At this hearing, the Complainant changed his request for an
employment aide from 12 to 20 hours a week. Tr. 211, 313 - 314,
530 - 531.
237. The Complainant changed his request to 20 hours per week
because he wanted to make sure he had sufficient assistance. The
Complainant intended to diminish the assistance at specific times
according to his needs. Tr. 211, 313 - 314.
238. The special committee determined that without the assistance
of an employment aide, the Complainant was unable to perform all
the functions of his position as Supervisor of the Adult
Development Program. The committee found further that this failure
principally involved the Complainant's inability to perform
clerical functions within a parameter of reasonable accommodation.
DHHS Ex. 1 at 57.
239. The major reason the special committee found the
Complainant's termination proper was because they found that the
expense of hiring an employment aide for the Complainant was not
reasonable. DHHS Ex. 1 at 57 - 59; Tr. 603.
240. The special committee concluded that to provide the
Complainant with an employment aide for 20 hours a week would cost
not less than $630 a month and that such an expenditure was beyond
the range of reasonable accommodation. DHHS Ex. 1 at 58.
241. The special committee made its determination that providing
the Complainant with an employment aide was beyond the range of
reasonable accommodation because it viewed hiring an employment
aide as putting two people in one job. Tr. 536 - 537, 632 - 633.
242. Also, the special committee rejected the Complainant's
request that the physical layout of his office was inadequate and
needed to be enlarged, based upon evidence that the Complainant had
seen his office and did not raise objections prior to his
employment.
DHHS Ex. 1 at 59.
243. The special committee was unable to agree that there may have
been other grounds (personal work habits) which would support the
termination of the Complainant since they were "too closely
entwined with the inability to perform the necessary clerical
functions required by the job description." DHHS Ex. 1 at 59.
244. Respondent would not have terminated the Complainant if an
entity other than Respondent had paid for an employment aide for
the Complainant. R. Ex. 8 at 1; Tr. 542.
245. In 1989, providing an aide for the Complainant would have
cost between $602 and $630 per month, plus Social Security. Tr.
432 - 434; DHHS Ex. 1 at 58.
246. DR reimbursed Respondent for the first three months of the
Complainant's employment with Respondent. DHHS Ex. 1 at 29;
Finding 130.
247. Had the Complainant received a directive from his superiors
at CPCBA with regard to obtaining sufficient clerical staff on a
fixed schedule and directives on how to utilize that staff, the
Complainant could have adjusted his working habits and schedule to
work with that person. The Complainant never got that directive.
Tr. 313 - 322.
248. Respondent's fiscal year runs from July 1 to June 30. DHHS
Ex. 8.
249. In fiscal year 1989, Respondent had an excess of public
support (grants from the Mary Valle Foundation for the Cerebral
Palsied (Mary Valle Foundation), contributions, and the proceeds of
special events) and revenue (membership dues, program receipts
(including production income, rehabilitation service fees, and
donated services), interest earned, worker's compensation dividend
and miscellaneous)) over expenses (program services for
rehabilitation (adult development and work activity center),
production, and support services (management and general)), in the
amount of $48,074. DHHS Ex. 8 at 5; Tr. 435 - 436.
250. The Mary Valle Foundation is a nonprofit corporation located
in Oakland, California. DHHS Ex. 13.
251. The Mary Valle Foundation was earlier known as the Cerebral
Palsy Foundation of Alameda County, Inc. DHHS Ex. 13.
252. The primary purpose of the Mary Valle Foundation is to own
buildings for the care, training, education, and entertainment of
persons afflicted with cerebral palsy and other multiple handicaps;
to furnish these buildings with adequate equipment and other
tangible articles of a personal nature; and to establish and
maintain an endowment fund for the purpose of funding charitable
programs for individuals with cerebral palsy or multiple handicaps
residing in the Oakland/San Francisco Bay area. DHHS Ex. 13 at 5,
21.
253. The Mary Valle Foundation provides grants to Respondent.
DHHS Ex. 14 at 5, 15 at 5; Tr. 559.
254. Historically, the Mary Valle Foundation has provided grants
only to Respondent. Tr. 560; DHHS Ex. 14 at 9, 15 at 9.
255. In 1988 - 1989, all the members of the Mary Valle
Foundation's Board of Directors also were members of Respondent's
Board of Directors. Tr. 548 - 554; R. Ex. 10 at 17.
256. The Mary Valle Foundation owns the building where Respondent
is located. Tr. 441, 547 - 548.
257. Respondent pays rent to the Mary Valle Foundation. DHHS Ex.
8 at 8; Tr. 441, 547 - 548.
258. Respondent pays this rent to the Mary Valle Foundation to
establish the real cost of operating its program in order that the
State payment to Respondent reflect that cost. Tr. 555 - 556.
259. Respondent makes an annual request to the Mary Valle
Foundation for funding. Tr. 442, 561.
ECNT The Mary Valle Foundation's fiscal year runs from May 1 to
April 30. DHHS Ex. 13 at 1.
261. For the fiscal year ending April 30, 1988, the Mary Valle
Foundation made a grant to Respondent in the amount of $158,529.
DHHS Ex. 14 at 5.
262. For the fiscal year ending April 30, 1989, the Mary Valle
Foundation made a grant to Respondent in the amount of $220,007.
DHHS Ex. 15 at 5.
263. The Mary Valle Foundation can make individual grants,
provided that the grants assist individuals with cerebral palsy or
multiple handicaps in the Oakland/San Francisco Bay area. Finding
252; Tr. 558.
264. Respondent did not make a request to the Mary Valle
Foundation asking that it provide funding for an employment aide
for the Complainant. Tr. 573.
265. Respondent did not suggest to the Complainant that he ask the
Mary Valle Foundation to provide funds for an employment aide.
266. The income from dividends, interest, contributions, and
direct and indirect public support to the Mary Valle Foundation is
available for distribution at the direction of the Foundation. Tr.
564, 594; DHHS Exs. 14, 15.
267. The Board of Directors of the Mary Valle Foundation could
direct funds not needed in the operation of the Foundation into its
endowment fund. The income, but not the capital, from the
endowment fund is available for distribution. Tr. 595 - 597.
268. Any income to the Mary Valle Foundation not directed into its
endowment fund is available for distribution. Tr. at 595.
269. For the fiscal year ending April 30, 1988, the Mary Valle
Foundation had dividends and interest from securities in the amount
of $292,324; contributions, direct public support, and indirect
public support in the amount of $135,154; an excess of support and
revenue over expenses of $340,328; and a fund balance or net worth
of $5,207,735. DHHS Ex. 14 at 4.
270. For the fiscal year ending April 30, 1989, the Mary Valle
Foundation had dividends and interest from securities in the amount
of $358,080, contributions, direct public support, and indirect
public support in the amount of $47,191, an excess of support and
revenue over expenses of $664,142, and a fund balance or net worth
of $5,871,877. DHHS Ex. 15 at 4.
271. Respondent has not proved that employing additional clerical
personnel would put its State funding in jeopardy. R. R. Br. 23;
R. Findings at 10.
272. The Complainant could perform the essential functions of his
job with any of the following types of reasonable accommodation:
1) the assignment to the Complainant of existing CPCBA clerical
personnel for prescribed periods according to a specified schedule,
at a location conducive to private dictation; 2) the aid of a
computer and the more limited assistance of existing CPCBA clerical
personnel for prescribed periods according to a specified schedule;
3) the aid of a computer and the assistance of an employment aide
less than 20 hours a week; 4) an employment aide between 10 to 20
hours a week, depending on the Complainant's needs at the time; or
5) an employment aide 20 hours a week. Findings 1, 66 - 271.
273. Respondent has not met its burden of proving that any of the
accommodations identified (Finding 272) will impose an undue
hardship on its operation. Findings 73 - 77.
274. Giving the Complainant the reasonable accommodation of
assigning existing clerical personnel to him would not constitute
an undue hardship on Respondent's operation, as it would not
involve excess cost to Respondent. Finding 247.
275. Giving the Complainant the reasonable accommodation of a
computer and either existing clerical personnel for prescribed
periods according to a specified schedule or an employment aide
would not constitute an undue hardship on Respondent's operation,
as Respondent was in a position to bear the cost of providing this
aid. Findings 248 - 263, 266 - 271.
276. Giving the Complainant the reasonable accommodation of an
employment aide 10 to 20 hours per week would not constitute an
undue hardship on Respondent's operation, as Respondent was in a
position to bear the cost of employing that aide. Findings 248 -
263, 266 - 271.
277. Giving the Complainant the reasonable accommodation of an
employment aide 20 hours per week would not constitute an undue
hardship on Respondent's operation, as Respondent was in a position
to bear the cost of that aide at the time of the Complainant's
termination. Findings 248 - 263, 266 - 271.
IV. The following Findings concern my conclusion that Respondent's
conduct constituted discrimination under section 504 and its
implementing regulations.
278. Respondent is a recipient of federal financial assistance.
Findings 60, 63.
279. The Complainant is a handicapped person within the meaning of
section 504 and its implementing regulations. Findings 71, 80 -
81.
280. The Complainant is a qualified handicapped person within the
meaning of section 504 and its implementing regulations because,
with reasonable accommodation, the Complainant can perform the
essential functions of his position as Supervisor of Respondent's
Adult Development Program. Finding 272.
281. Providing reasonable accommodation to the Complainant would
not impose an undue hardship on Respondent's operation. Findings
273 - 277.
282. Respondent failed to provide the Complainant with reasonable
accommodation for his handicap in violation of section 504 and its
implementing regulations. Findings 66 - 277.
283. Respondent terminated the Complainant in violation of section
504 and its implementing regulations, thus discriminating against
him on the basis of his handicap. Findings 66 - 282.
284. Respondent discriminated against the Complainant by
subjecting him to discrimination in employment and denying him an
employment opportunity. Findings 1 - 283.
285. Respondent has so far been unwilling to comply with section
504 and Departmental regulations.
286. Respondent's compliance with section 504 cannot be secured
through voluntary means. 45 C.F.R. 80.8(c).
287. The Department is authorized to terminate or refuse to grant
or continue all federal financial assistance to Respondent until
such time as Respondent satisfies responsible Departmental
officials that it is in compliance with section 504 and its
implementing regulations. Findings 1 - 286; 45 C.F.R. 80.8(a).
DISCUSSION
The purpose of section 504 of the Act is to ensure that no federal
funds be used to support discrimination. Here, the Department's
principal allegation is that Respondent (a recipient of federal
financial assistance under the Medicaid waiver program), an
organization whose mission is to assist developmentally disabled
individuals, primarily those with cerebral palsy, in their lives
and in their employment, has discriminated against a
developmentally disabled employee with cerebral palsy (the
Complainant), by denying him the reasonable accommodation necessary
to maintain his employment.
This is a serious allegation, raising significant legal and factual
issues. The allegation is particularly egregious, however, because
it has been leveled against an organization whose very reason for
existence is to help individuals such as the Complainant live more
independently and maintain their employment. For years, Respondent
has been in the business of dealing with people disabled by
cerebral palsy. One would think that such an organization would be
in the forefront of providing accommodation to support such
employment, advocating for such accommodation for their clients,
or, at the least, recognizing the absolute necessity of their own
responsibility to provide such support for their disabled staff
members. More than any employer, Respondent should have known
precisely the forms of accommodation the Complainant would need to
do his job and the cost of providing such accommodation.
Respondent, if any organization, should have known better.
Respondent appears to have hired the Complainant precisely because
of his perspective as a disabled person, combined with his relevant
education and work experience. JG, in an outline of his initial
interview with the Complainant, noted that the Complainant "has
lived and is living a life which demonstrates the ideas often heard
about in the world of rehabilitation or habilitation. He has
pursued a professional career, is a parent and travels
independently though a wheelchair-user. His presence models a
'can-do' spirit." DHHS Ex. 1 at 10. Another CPCBA interviewer
noted that the Complainant's "perspective as a disabled person,
combined with his background in education, could greatly enrich the
Adult Development Program." DHHS Ex. 1 at 13. What is shocking
here is that, once having hired the Complainant, instead of
supporting the Complainant and helping to ensure his success in his
position, Respondent appears to have acted almost with callous
disregard for the Complainant, essentially expecting him to make
his own accommodations for the clerical, manipulative, and
paperwork aspects of his position. Respondent did not even give
its own clerical staff (to whom, it appears, any professional staff
at CPCBA had the same access as the Complainant) effective orders
about how to help him.
Rather than providing the necessary assistance, Respondent relied
on the simplistic argument that to do so would mean it would have
to hire two people to do the job of one person. This argument is
the principal basis used by Respondent to support the Complainant's
termination. The additional person Respondent claims it would need
to hire only has to possess the clerical abilities that the
Complainant lacks due to his disability. Only the Complainant
possesses the life experience, education, training and knowledge
regarding cerebral palsy, those unique qualities Respondent
recognized when it hired him. Moreover, hiring a clerical person
to assist the Complainant does not equate to hiring a second person
to perform the job for which the Complainant was hired. Rather,
supplying some type of accommodation to the Complainant to gain his
insight and skills is a small but necessary price for Respondent to
pay. Moreover, absent a showing of undue financial hardship, such
accommodation is required by law.
Respondent's disregard for the Complainant is reflected in its
response to the Complainant's request for more effective clerical
assistance to handle the increasing backlog of paperwork piling up
due to the absence of such effective assistance. Respondent
asserts that the Complainant knew during his interviews for the
position of Supervisor of Respondent's Adult Development Program
that Respondent would not provide him with an employment aide.
Respondent asserts that both Respondent and the Complainant assumed
that the Complainant could do the job with the assistance of a
computer and Respondent's existing clerical staff. In essence,
Respondent is arguing that its responsibility to provide reasonable
accommodation under section 504 is somehow determined by what
resources the handicapped employee sought when he or she was hired,
and that if the Complainant needed some other accommodation (such
as an employment aide) it was up to the Complainant to provide such
assistance for himself. See Tr. 633. Respondent asserts further
that the Complainant's belief at the time he was being terminated
(that he needed the accommodation of an employment aide for 20
hours per week to make up for the deficiencies cited by his
Supervisor) supports Respondent's argument that such accommodation
is the only accommodation that will allow the Complainant to
perform the essential functions of his position and precludes my
consideration of other accommodation which might allow the
Complainant to perform the essential functions of his job.
The record demonstrates, however, that Respondent's arguments are
not supportable. There are forms of reasonable accommodation other
than a 20-hour-a-week employment aide that will permit the
Complainant to perform the essential functions of his position.
Moreover, Respondent has failed to prove that any of the forms of
reasonable accommodation described in the Findings, including the
provision of a 20-hour-a-week employment aide, will result in an
undue hardship to Respondent's operation.
As a result of Respondent's alleged discrimination, the Department
has requested that all Respondent's Departmental federal financial
assistance be terminated until such time as Respondent comes into
compliance with section 504 and Departmental regulations. To
justify such termination, the Department must establish a prima
facie case pursuant to section 504, proving that: 1) the
Complainant is a handicapped person; 2) the Complainant is
otherwise qualified for the job; 3) Respondent discriminated
against the Complainant on the basis of handicap; and 4) the
discrimination took place in a program or activity receiving
federal financial assistance. Finding 68. Respondent concedes
that the Complainant is, in fact, a handicapped person. Finding
81. Further, it has been established that Respondent is a
"recipient" of federal financial assistance under the Medicaid
waiver program. Finding 278.
My discussion below will focus principally on my Findings that the
Complainant was otherwise qualified for his position as Supervisor
of the Adult Development Program and that Respondent discriminated
against him on the basis of his handicap, cerebral palsy. My
discussion below will focus also on my determination that
Respondent has failed to comply with section 504 and its
implementing regulations, because of my Findings that Respondent
discriminated against the Complainant by subjecting him to
discrimination in employment and by denying him an employment
opportunity in violation of section 504 and its implementing
regulations.
I. Set forth below is the legal predicate to my Findings that
Respondent discriminated against the Complainant in this case.
A. Section 504 and its implementing regulations
Section 504 prohibits discrimination, on the basis of disability,
by a recipient of federal financial assistance. The Act provides
specifically that
No otherwise qualified individual with handicaps ...shall,
solely by reason of her or his handicap, be
excluded from the participation in, be denied thebenefits of,
or be subjected to discrimination under
any program or activity receiving Federal financialassistance
. . . .
29 U.S.C. 794(a) (1988).
The Departmental regulations prohibiting discrimination in
employment practices similarly provide that
No qualified handicapped person shall, on the basis
of handicap, be subjected to discrimination in
employment under any program or activity to which
this part applies.
45 C.F.R. 84.11(a).
The specific practices prohibited by Departmental regulations
include the discriminatory termination of employment. 45 C.F.R.
84.11(b)(2).
Departmental regulations define the terms "handicapped person," and
"qualified handicapped person." A "handicapped person" is
[A]ny person who (i) has a physical or mental
impairment which substantially limits one or
more major life activities, (ii) has a record
of such an impairment, or (iii) is regarded as
having such an impairment.
45 C.F.R. 84.3(j)(1). With respect to employment, a "qualified
handicapped person" is
[A] handicapped person who, with reasonable
accommodation, 5/ can perform the essential functions
of the job in question.
45 C.F.R. 84.3(k)(1).
The scope of the "reasonable accommodation" necessary to enable a
handicapped individual to perform the essential functions of a job
is described at 45 C.F.R. 84.12. Specifically, section 84.12(a)
states that
A recipient shall make reasonable accommodation tothe known
physical or mental limitations of an
otherwise qualified handicapped applicant or
employee unless the recipient can demonstrate
that the accommodation would impose an undue
hardship on the operation of its program.
Examples of reasonable accommodation are set forth at section
84.12(b) and may include:
(1) Making facilities used by employees
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, the provision
of readers or interpreters, and other similar
actions.
Factors to be considered in determining whether a form of
reasonable accommodation would impose an undue hardship on the
operation of a recipient's program are set forth at section
84.12(c) and include:
(1) The overall size of the recipient's program with
respect to number of employees, number and type of
facilities, and size of budget; (2) The type of the
recipient's operation, including the composition and
structure of the recipient's workforce; and (3) The
nature and cost of the accommodation needed.
B. Prima Facie Case and the Burden of Proof
As stated above, in order for an employee to prevail under section
504, the employee must establish a prima facie case showing that he
or she is a handicapped person, is otherwise qualified for the job,
has been discriminated against on the basis of handicap, and that
the discrimination took place in a program or activity receiving
federal financial assistance. Here, my inquiry is limited to
deciding whether the Complainant is otherwise qualified for his
position and has been discriminated against on the basis of his
handicap.
Whether the Complainant is a "qualified handicapped person"
encompasses several elements of proof. As explained more fully
below, the Department first must show that with "reasonable
accommodation" the Complainant can perform the "essential functions
of his position." To do this, the essential functions of the
Complainant's position must be defined. Second, the Department
must identify the type of reasonable accommodation needed to allow
the Complainant to perform satisfactorily the essential functions
of his position. The Respondent has the burden of showing that the
proposed reasonable accommodation will impose an "undue hardship"
on its operations. If Respondent meets this burden, then the
burden shifts to the Department to demonstrate that such
accommodation is not burdensome. Thus, absent a showing of undue
hardship, failure by Respondent to provide the Complainant with
reasonable accommodation to allow him to perform the essential
functions of his position will be the basis for a finding of
discrimination under section 504.
However, the Department has argued that, similar to other civil
rights statutes, section 504 involves a shifting of the burden of
proof. Specifically, the Department alleges that, once a recipient
denies that an employee's termination resulted from its failure to
reasonably accommodate the employee's handicap, a prima facie case
may be established based on facts that give rise to an inference
that the employee was terminated based on discrimination. The
Department cites as support for this proposition the case of Smith
v. Barton, 914 F.2d 1330, 1338 (9th Cir. 1990), cert. denied, 111
S.Ct. 2825 (1991). DHHS Br. at 28 - 29. I disagree with the
Department's analysis, finding the Smith case to be distinguishable
from the case here.
In Smith, the management positions of two blind employees of the
Idaho Commission for the Blind (Commission) were consolidated
during a reorganization of their department. Although these
employees applied for the consolidated position, neither was
selected. Instead, these two employees were retained in staff
positions. The employees then alleged that the reorganization
eliminating their old positions and their non-selection for the new
position violated both section 504 of the Act and 42 U.S.C.
1893. 6/
The court, in discussing the elements of proof in a section 504
case, noted that the only contested issue was whether the employees
were excluded from selection for the new position based solely on
their handicap. Whether the employees were "otherwise qualified"
for their positions or whether the Commission failed to provide
"reasonable accommodation" (the issues in the instant case) were
not issues in dispute. The Smith court noted that
[t]he method of analysis and allocation of burdensof proof and
production differ depending on whattype of discrimination is at
issue, andon whetherthe employer denies or acknowledges reliance on
theplaintiff's handicap as a basis for its employment
decision.
Smith at 1339. The court concluded that, where plaintiffs seek no
special accommodation and, instead, allege discrimination based on
discriminatory intent, and where defendants disavow any reliance on
the plaintiffs' handicap, the analytic framework employed in Title
VII civil rights cases should apply. The court, relying on Doe v.
New York University, 666 F.2d 761 (2d Cir. 1981), held that in
those circumstances, a prima facie case could be established by
proving that a plaintiff applied for a position for which he was
qualified and was rejected under circumstances indicating
discrimination was the basis for the non-selection. Under such
circumstances, the burden shifts to the defendant to rebut the
presumption of discrimination by coming forward with evidence that
the plaintiff was rejected for a legitimate, nondiscriminatory
reason. If the defendant makes such a showing, the burden then
shifts to the plaintiff to demonstrate that the proffered reason
was not the true reason or that it encompassed unjustified
consideration of the handicap itself.
The Department argues that such burden shifting analysis applies
here because Respondent denies that the Complainant's termination
resulted from its failure to reasonably accommodate his handicap.
The Department's reliance on Smith, however, is misplaced. The
special circumstances cited in Smith for using the shifting burden
analysis utilized in section 1893 civil rights cases are not
present here. Unlike in Smith, the issues here are: 1) whether
the Complainant was "otherwise qualified" for his position; and 2)
whether Respondent discriminated on the basis of the Complainant's
handicap by its failure to provide "reasonable accommodation."
Thus, the factual circumstances underpinning this case do not
support application of the burden shifting analysis. Instead, the
Act and its implementing regulations establish the parties'
relative burdens of proof.
In Pushkin v. Regents of University of Colorado, 658 F.2d 1372
(10th Cir. 1981), the court, relying on the Supreme Court's opinion
in Southeastern Community College v. Davis, 442 U.S. 397 (1979),
indicated that the appropriate standard of proof for a prima facie
case under section 504 is: 1) a showing that the plaintiff was an
otherwise qualified handicapped person apart from his handicap, and
was rejected under circumstances which gave rise to the inference
that his rejection was based solely on his handicap; and 2) once
the plaintiff establishes the prima facie case, the defendant has
the burden of going forward and proving that the plaintiff was not
an otherwise qualified handicapped person, or that the rejection
was based on reasons other than the handicap. Pushkin, 658 F.2d at
1387. Accord, Lucero v. Papp, 915 F.2d 1367, 1371 (9th Cir. 1990).
Here, Respondent admits that the Complainant was a handicapped
person, but contends that: 1) even with reasonable accommodation
he could not meet the essential functions of his position; 2) he
was provided reasonable accommodation through allocation of
existing staff personnel, but did not utilize those resources; and
3) any other accommodation, such as hiring a personal employment
aide, would impose an undue hardship on Respondent's operations.
The Department has the burden of establishing that the Complainant
is a qualified handicapped person (i.e., that the Complainant can
perform the essential functions of his position with reasonable
accommodation). If the Department establishes that the Complainant
can perform the essential functions of his position with reasonable
accommodation, and Respondent is unable to prove the contrary, then
the burden falls on Respondent to show that such accommodation
would impose an undue hardship on its operations. If Respondent
cannot prove such undue hardship, a finding of discrimination will
follow.
C. Affirmative obligations and reasonable
accommodation
Departmental regulations define a qualified handicapped person as
one who, with reasonable accommodation, can perform the essential
functions of the job in question. 45 C.F.R. 84.3(k).
Respondent cites Davis for the proposition that the Court, in
defining the term "otherwise qualified person" under section 504 of
the Act, did not impose an affirmative action requirement on an
employer to alter its program in order to employ handicapped
persons. R. Br. 28. In essence, Respondent references Davis to
argue that employing a part-time aide as a reasonable accommodation
to allow the Complainant to perform his job would amount to
affirmative action of the type rejected by the Court in Davis. I
find, however, that Davis does not support Respondent's position.
To the contrary, when considered in terms of the Departmental
definitions of "qualified handicapped person" and "reasonable
accommodation," Davis supports the imposition of accommodations
that will allow disabled individuals to perform the essential
functions of a job if such accommodations do not substantially
compromise the integrity of an employer's operations. Further, the
Court concluded that the Secretary's regulations implementing
section 504 provide the proper framework for determining whether
Respondent's treatment of the Complainant amounts to discrimination
prohibited by the Act. Such regulations, when consistent with the
purposes of the Act, are entitled to judicial deference. Davis,
442 U.S. 397 at 411.
Davis was the Court's first opportunity to interpret the
obligations on recipients of federal funds imposed by section 504
of the Act. Davis was not an employment practices case (pertaining
to Subpart B of Departmental regulations) but a case involving
access to postsecondary education (Subpart E of Departmental
regulations). 7/ Ms. Davis, a licensed practical nurse, sought
admission to a training program for registered nurses offered by
Southeastern Community College (Southeastern). Ms. Davis had
bilateral, sensori-neural hearing loss which was not subject to
correction by use of hearing aids. As a result, she could not
discriminate among sounds and had to rely on lip reading for
effective communication. Southeastern rejected her from its
training program because: 1) her existing hearing loss made it
unsafe for her to participate in the normal clinical training
program for registered nurses; 2) her hearing loss would make it
unsafe for her to care for patients; and 3) any modification of the
training program to allow her to participate would deny her the
full benefits of the program. The district court upheld her
rejection, but the Court of Appeals for the Fourth Circuit reversed
on the grounds that "otherwise qualified" under section 504 meant
that Ms. Davis had to be considered for the training program
without consideration of her handicap, and that only her academic
and technical qualifications should be considered. The Fourth
Circuit further opined that section 504 required affirmative
conduct by Southeastern to modify its program to accommodate Ms.
Davis' disabilities, even if it was expensive to do so.
On review, the Court held that an "otherwise qualified individual"
protected by section 504 still had to be able to meet the
legitimate physical requirements of an educational program. 8/
Moreover, the Court concluded that, in order to complete
successfully the clinical training portion of the program, the
applicant needed the ability to understand speech without reliance
on lipreading. This ability was considered indispensable to many
of the functions a registered nurse had to perform. Further, the
Court rejected Ms. Davis' argument that Southeastern had to take
affirmative action to alter its training program so that effective
oral communication was not a necessary requirement. 9/ The Court
based its reasoning on 45 C.F.R. 84.44(d)(2), the regulation
implementing section 504 with regard to discrimination in
postsecondary schools. The Court noted that this section of the
regulations excluded "devices or services of a personal nature"
from the types of aids that a school had to provide handicapped
students. The trial record indicated that Ms. Davis would need
close, individual attention by a nursing instructor to ensure
patient safety when she participated in clinical training -- the
type of action proscribed by the Department's own regulations
interpreting section 504. Similarly, the Court concluded that
section 84.44(a) does not require the kinds of curricular
"modifications," such as the elimination of clinical courses, that
would be necessary to accommodate Ms. Davis in the nursing program.
Moreover, the Court opined that:
[i]f these regulations were to require substantial
adjustments in existing programs beyond thosenecessary to
eliminate discrimination against
otherwise qualified individuals, they would do
more than clarify the meaning of 504.
Instead, they would constitute an unauthorized
extension of the obligations imposed by that
statute. The language and structure of the
Rehabilitation Act of 1973 reflect a recognition
by Congress of the distinction between the
evenhanded treatment of qualified handicapped
persons and affirmative efforts to overcome the
disabilities caused by handicaps.
442 U.S. at 410.
To support further its view that affirmative action was not
required by section 504, the Court examined other provisions of the
Act (specifically sections 501(b) and 503(a) which govern,
respectively, the federal government and federal contractors, and
contain affirmative action requirements) and contrasted them to
section 501(c) of the Act, which pertains to State agencies, such
as Southeastern, which have no "affirmative action" requirement in
employment. The Court concluded that the absence of the term
"affirmative action" in section 504 demonstrated a congressional
intent to impose a lesser standard. The Court did observe that
section 504 was amended in 1978 to permit grants to State
educational entities for the purpose of providing information and
technical assistance, including interpreters for the deaf, to
enable such entities to comply with the requirements of section
504. Despite this amendment, the Court, while recognizing that the
elimination of discrimination might involve costs, was not
persuaded that Southeastern's failure to make substantial changes
to its nursing program itself constituted discrimination prohibited
by section 504. Consequently, the Court held, "neither the
language, purpose, nor history of 504 reveals an intent to
impose an affirmative-action obligation on all recipients of
federal funds." Davis, 442 U.S. at 411.
The Court recognized that the line between a refusal to extend
affirmative action and illegal discrimination against handicapped
persons is cloudy. However, based on the record, it held that
Southeastern's "unwillingness to make major adjustments in its
nursing program" did not constitute discrimination. Id. at 413.
In order to permit Ms. Davis to participate in its nursing program,
Southeastern would have had to lower or modify its educational
standards substantially. The Court concluded that section 504 does
not impose such a requirement.
There are a number of factual differences between Respondent's
actions with regard to the Complainant's employment and the
circumstances in Davis. First, the regulations pertaining to
employment practices are different from those implementing the
prohibition of discrimination in admission to postsecondary school
education. "Reasonable accommodation" is required by section
84.12(a) to the known physical or mental limitations of an
otherwise qualified handicapped applicant or employee unless it
would impose an undue hardship on the employer's operations.
Conversely, "adjustments" or "modifications" of academic
requirements by postsecondary educational institutions are required
by section 84.44(a) to prevent discrimination against handicapped
applicants or students. Section 84.44(a) specifically indicates
that certain types of requirements in academic programs -- those
essential to the program of instruction or to licensing
requirements -- need not be modified. Section 84.44(d)(2) excludes
from auxiliary aids that should be provided the use of personal
attendants. The Court relied, in part, on these provisions in
concluding that section 504 did not require affirmative action.
While section 84.12(b) specifies certain types of accommodation
that may be provided, such as modifying physical facilities to make
them accessible to and usable by handicapped persons, job
restructuring, acquisition or modifications of equipment, and the
provision of readers or interpreters, there are no specific types
of reasonable accommodation precluded by section 84.12(c) other
than those which are shown to impose an undue hardship on an
employer. Once a form of accommodation is identified that will
allow an employee to perform the essential functions of the
position, then the burden is on the employer to demonstrate that
such accommodation is unduly burdensome. Such regulations impose
an affirmative obligation on employers to accommodate the needs of
handicapped employees or applicants as long as they do not impose
an undue hardship on their business operations. 10/ This
regulatory scheme is quite different from that imposed on
postsecondary educational institutions.
More importantly, it is evident that, in Davis, the Court was
persuaded that a severely hearing-impaired person who could not be
helped with amplification aids could not perform successfully as a
registered nurse and that the modifications sought in the academic
requirements were so substantial as to render the training
substandard. Consequently, such person was not "otherwise
qualified" within the meaning of section 504 of the Act.
Respondent has not shown that the accommodation needed for the
Complainant would result in his inability to meet the essential
functions of his position of Supervisor of the Adult Development
program and that he, thus, would not be "otherwise qualified."
Moreover, I agree with the Department that Respondent's
interpretation of Davis
regarding the prohibition of affirmative action would eliminate the
concept of "reasonable accommodation" in section 504 cases. Rather
than eliminate "reasonable accommodation," the Court placed limits
on the breadth of section 504 where proposed "accommodations" or
"adjustments" would render the federally funded program
meaningless. Thus, under section 504, the line between prohibited
discrimination and actions that would render a handicapped person
not "otherwise qualified" (and, therefore, non-discriminatory) must
be discerned against the facts of each case.
The Court subsequently revisited its interpretation of section 504
in the case of Alexander v. Choate, 469 U.S. 287 (1985). Choate
involved an action taken by the State of Tennessee to lower the
durational limit on the number of reimbursed hospital days per year
from 20 to 14 for Medicaid patients, as a means to reduce its
overall Medicaid cost. Medicaid recipients brought a class action
seeking declaratory and injunctive relief, contending that such
action imposed a disparate impact on disabled persons resulting in
a prima facie violation of section 504 of the Act. The Court held
that such action did not violate section 504. The Court noted that
[t]he balance struck in Davis requires that an
otherwise qualified handicapped individual must
be provided with meaningful access to the benefit
that the grantee offers. The benefit itself, of
course, cannot be defined in a way that effectively
denies otherwise qualified handicapped individuals
the meaningful access to which they are entitled;
to assure meaningful access, reasonable
accommodations in the grantee's program or benefit may have
to be made.
Choate, 469 U.S. at 301. 11/
The Court recognized that the ultimate question in all cases under
section 504 is the "extent to which a grantee is required to make
reasonable modifications in its programs for the needs of the
handicapped. 469 U.S. at 299 n.19. The Court observed further
that its statement in Davis, that section 504 does not "impose an
affirmative action obligation on all recipients of federal funds"
(442 U.S. at 411), had been criticized for failing to appreciate
the difference between affirmative action and reasonable
accommodation. 469 U.S. at 300 n.20. The Court went on to clarify
Davis, indicating that the term "affirmative action" referred to
those "changes," "adjustments," or "modifications"
to existing
programs that would be "substantial," or that would constitute
"fundamental alteration[s] in the nature of a program . . .,"
rather than to those changes that would be reasonable
accommodations. Id.
The Court had the opportunity to interpret section 504 in an
employment context in School Board of Nassau County, Florida v.
Arline, 480 U.S. 273 (1987). In Arline, a teacher, who was
terminated from her job because she was afflicted with a
susceptibility to tuberculosis, brought an action under section
504, alleging that her dismissal was discriminatory. The Court
affirmed a finding that she was a "handicapped person" under the
Act. The Court remanded her case to the district court to
determine whether, considering her condition, she was "otherwise
qualified" under the Act and, if so, whether any "reasonable
accommodation" could be made. In providing guidance in determining
whether a handicapped person is "otherwise qualified" in an
employment context, the Court stated that an "otherwise qualified"
handicapped person is an individual who can perform the essential
functions of the job with the employer providing "reasonable
accommodation," if necessary, to allow the individual to do the
essential functions of the job. 12/ However, such accommodation
would not be considered "reasonable" where it imposed "undue
financial and administrative burdens," or required "a fundamental
alteration in the nature of [the] program." 480 U.S. at 287 n.17.
The Court referred also to the factors listed at 45 C.F.R.
84.12(c) for determining undue hardship. In sum, the Court
advised:
[W]here reasonable accommodation does not overcome
the effects of a person's handicap, or where
reasonable accommodation causes undue hardship to the
employer, failure to hire or promote the handicapped
person will not be considered discrimination.
480 U.S. at 287 n.17.
The Court's analysis in the cases cited above supports the
existence of an affirmative duty on employers to provide reasonable
accommodation where it is necessary to allow handicapped persons to
perform the essential functions of their positions. Such cases
demonstrate also that Respondent's attempt to use the affirmative
action requirement placed on the federal government and federal
contractors under sections 501 and 503 of the Act did not indicate
a congressional intent to eliminate imposition of a similar
requirement on employers under section 504. The "affirmative
action" analysis proffered by Respondent is inapposite, because the
focus of inquiry under section 504 is to determine whether a
handicapped person is "otherwise qualified," utilizing the
"reasonable accommodation" necessary to permit that person to
perform the essential functions of his or her position. In
determining whether an identified type of accommodation is
reasonable, the focus of the examination is not on whether it is
affirmative action, but on whether such accommodation will permit
the person to perform the essential functions of the job, and, if
it will, whether such accommodation will constitute an undue
hardship on the employer's operation. This determination is a
fact-specific inquiry.
As the Court of Appeals stated in Arline v. School Board of Nassau
County:
[t]he court is obligated to scrutinize the evidence
before determining whether the defendant's
justifications reflect a well-informed judgment
grounded in a careful and open-minded weighing of
the risks and alternatives, or whether they aresimply
conclusory statements that are being used to
justify reflexive reactions grounded in ignorance
orcapitulation to public prejudice.
772 F.2d 759, 764 - 765 (11th Cir. 1985); see also, Hall v. United
States Postal Service, 857 F.2d 1073, 1079 (6th Cir. 1988).
II. Respondent's actions meet the legal predicate to my finding
that Respondent discriminated against the Complainant in this case.
A. Otherwise qualified handicapped person
An otherwise qualified handicapped person is one who, with
reasonable accommodation, can perform the essential functions of a
job. As I stated above, to determine whether the Complainant can
perform the essential functions of his job, those essential
functions must first be defined. It is only after the essential
functions of his job have been defined that I will be able to
determine whether some reasonable accommodation to be provided by
the Respondent will allow the Complainant to perform those
essential functions. If such reasonable accommodation is
identified, it is then up to Respondent to show that such
accommodation will impose an "undue hardship" on its operations.
Absent such a showing, failure by Respondent to provide the
Complainant with reasonable accommodation to allow him to perform
the essential functions of his job will be the basis for a finding
of discrimination under section 504. Accordingly, my inquiry first
must focus on identifying the essential functions of the
Complainant's position.
1. Essential functions of the position
of Supervisor of Respondent's Adult
Development Program
In the case of Nelson v. Thornburgh, 567 F. Supp. 369 (E. D. Pa.
1983), aff'd, 732 F.2d 146 (3rd Cir. 1984), cert. denied, 469 U.S.
1188 (1985), the court examined the question whether blind income
maintenance workers for the State of Pennsylvania, who, with the
assistance of readers, met the requirements of their position as
well as their sighted colleagues, were otherwise qualified
handicapped individuals under the Act, such that the State was
required to provide and absorb the expense of reasonable
accommodation for their disability absent a showing of undue
hardship. There, as here, the court first had to examine what the
essential functions of the plaintiffs' position were. The court
determined that the position of income maintenance worker was a
professional-level position with significant responsibilities. The
court acknowledged that the capacity to read without aid is helpful
in carrying out the duties of the job, as were the abilities to
hear or move without help. However, the essential qualifications
for the career were dedication to the work, sufficient judgment and
life-experience to enable the worker to assess accurately the
legitimate needs of clients, and the ability to work effectively
under the pressure of competing demands from clients and
supervisors. Nelson 567 F. Supp at 372. Thus, in Nelson, the
physical aspects of carrying out the professional-level job were
not essential.
Applying a similar analysis here, an examination of the job
specifications for the position of Supervisor of Respondent's Adult
Development Program leads me to conclude that the essential
functions of this position are primarily professional, not
clerical. The definition of the job is for a Supervisor to plan,
organize, coordinate, and implement an adult development program
for cerebral palsied and other developmentally disabled adults, and
to perform related work as required. There are no clerical
functions included in the job specifications. The educational
requirements for the job include graduation from college with a
major in developmental psychology, special education, or experience
in an allied field. The Supervisor must have worked with adults
with cerebral palsy or developmental disabilities for at least
three years, and must have at least two years of related
supervisory experience. Examples of work performed by the
Supervisor include evaluating and selecting developmental
activities, scheduling a program of adult development,
administering a tracking system to monitor client progress,
participating in the admissions process, evaluating class
effectiveness, scheduling and chairing staff meetings, supervising
staff, and overseeing client advocacy training. DHHS Ex. 1 at 62
- 63; Findings 86 - 88, 98 - 99, 101.
Respondent has not contested that the Complainant's professional
credentials (i.e., his educational background and related work
experience) qualify him for the position of Supervisor of the Adult
Development Program. Instead, Respondent is contending that the
Complainant cannot perform the paperwork function attendant to his
position. It is contended that such paperwork is a component of
"related work as required."
The performance of the professional function of the Complainant's
position as Supervisor of the Adult Development Program requires
him to generate paperwork. Findings 89 - 98, 104 - 107.
Respondent has argued that this paperwork function is an essential
function of the job of Supervisor of its Adult Development Program,
that it constitutes 50 percent of the Supervisor's workload, and
that, without an employment aide 20 hours a week (which Respondent
argues it cannot afford), the Complainant is unable to perform the
essential paperwork functions of the job. 13/ Thus, as the
Complainant was unable (or unable timely) to complete his
paperwork, he was terminated in a non-discriminatory manner. R.
Br. 28 - 29.
I agree with Respondent that the generation of paperwork arises
from the performance of the essential functions of the
Complainant's position as Supervisor of the Adult Development
Program. Finding 107. However, it is not in itself an essential
function of the Complainant's position. It is the Supervisor of
the Adult Development Program's responsibility to see that the
paperwork (i.e., the reports, evaluations of staff and clients,
curriculum development plans, and other associated documentation)
attendant to carrying out the Supervisor's job description of
planning, organizing, coordinating, and implementing the Adult
Development Program is carried out. The physical preparation of
this paperwork is not, however, an essential function of the
position. 14/ It is a manual task, which can be delegated to
others - as are the secretarial chores of any professional who
might be unable to type. The essential function of the
Complainant's position in this regard is his ability to communicate
his thought processes, for example, in the area of work output, to
others who have responsibility to record such output. The former
is a professional task, the latter clerical. Due to the
Complainant's handicap, he lacks the manual dexterity and speech
clarity to transmit his work output readily to others. Moreover,
efforts by DR to assist him in this regard by providing him with a
computer programmed to correlate with his manual limitations were
unsuccessful during the time the Complainant was employed by
Respondent. Finding 133. Consequently, it is with these functions
of his position that the Complainant requires "reasonable
accommodation" from Respondent. The inquiry now focuses on
whether: 1) there are types of "reasonable accommodation" that
will permit the Complainant to communicate his work product
effectively to clerical staff to generate the paperwork that is
required in the performance of the essential functions of his
position; and 2) such accommodation would impose an undue hardship
on Respondent's operations. The Department has the burden of proof
regarding item 1 and Respondent has the burden of proof as to item
2.
2. Reasonable accommodation for the essential
functions of the job
Respondent has argued that this case essentially presents only one
issue, that where a handicapped person is unable to perform the
essential functions of a job with the help of existing staff, it is
not reasonable to require an employer to accommodate him by hiring
a half-time employment aide whose only function is to compensate
for that person's disability. R. Br. at 32 - 33. This is a very
narrow view of the reasonable accommodation that would allow the
Complainant to do his job and one that I do not believe fits the
facts of this case. I find that there is more than one possible
accommodation which would allow the Complainant to perform the
essential functions of his job, and that only one of those
accommodations would involve hiring an employment aide specifically
for the Complainant 20 hours a week.
When the Complainant was hired, it was clear to Respondent that he
would be unable to perform, or at least would have difficulty in
performing, many manual functions, including certain clerical
functions integral to the generation of paperwork. Findings 116 -
121, 123 - 124. The Complainant's disability left him unable to do
such clerical functions as filing, making copies, filling out forms
by hand, taking handwritten dictation, setting up tables and chairs
for meetings, keeping an appointment book, creating visual aids
without a computer, or keeping his office neat and clean. Finding
145. Further, due to his unusual speech, the Complainant needed
help with initial telephone contacts.
Respondent understood when the Complainant was hired that some
accommodation would be necessary to allow Respondent to do his job.
Finding 123. Respondent apparently believed that handicapped
bathrooms, use of a personal computer provided by DR, and the
clerical resources available to all of its employees, would allow
the Complainant to perform the essential functions of his job.
Findings 120, 124. Respondent argues that the Complainant did not
fully utilize the resources available at CPCBA, and the fact that
he did not take sufficient advantage of them does not render them
inadequate. R. Br. 31.
In essence, Respondent is arguing that it was up to the Complainant
to accommodate his handicap to the resources available at CPCBA and
that, if those resources were not sufficient, the Complainant
needed to find some entity other than CPCBA to provide the
accommodation to allow him to do his job. Respondent apparently
believes that because the Complainant, during the interview
process, initially believed that he could handle paperwork with the
aid of a computer, and did not request an employment aide or any
special clerical help (Finding 120), Respondent somehow would be
absolved of its responsibility to provide other accommodation.
Respondent argues that hiring two people for one job would defeat
the Act's goal of encouraging the hiring of the handicapped
because, faced with the added expense, employers would find any
pretext not to hire the handicapped. R. Br. 34. This argument is
without merit. Employers are not bound by law to provide
accommodation which imposes undue hardship; additional expenses to
provide legally required accommodation should not discourage
responsible employers from hiring the disabled. Further,
Respondent argues that hiring an employment aide for the
Complainant would defeat the goal of the DR program under which he
was hired. R. Br. 33 - 34. I find this argument equally
unpersuasive. DR's role is to assist the impaired person in
preparing for employment, either through training or the provision
of employment aids (such as DR's provision to the Complainant of a
motorized van, a computer, and the assistance of an employment aide
for a period of months). Here, Respondent advised DR in January
1989 that the Complainant was performing his job satisfactorily,
which action led DR to close his case. Finding 188. Respondent
subsequently changed its view of the Complainant's performance but
never advised DR. It is possible that greater assistance could
have been provided by DR if it had been notified of Respondent's
ultimate view of the Complainant's performance. Providing
additional assistance would not defeat DR's goal of increasing
employment opportunities for disabled persons. The DR program is
not a substitute, as Respondent apparently argues, for the
reasonable accommodation required by section 504 of the Act.
Respondent's arguments reflect Respondent's apparent belief that
section 504 does not require an entity to expend funds for the
disabled. This view clearly does not comport with Respondent's
obligations under the Act. Further, not all entities covered by
section 504 share Respondent's narrow view of their obligations
under the Act. Again, Respondent's unduly restrictive
interpretation of section 504 appears inconsistent with its stated
goal of advocating employment opportunities for developmentally
disabled persons with cerebral palsy. Moreover, I am surprised
that an organization whose role is to advocate for the rights of
disabled individuals would argue that companies would not hire
disabled employees due to the cost of reasonable accommodation.
Respondent also argues that, because Respondent had not budgeted to
hire a second person and was concerned about staffing ratios, it
was not required under its own employment policies and section 504
to take affirmative action to change those policies to accommodate
the Complainant. R. R. Br. 23. I disagree. As will be shown
below, the evidence of record does not support Respondent's
arguments.
It is Respondent's responsibility to provide any accommodation that
will allow the Complainant to perform the essential functions of
his job, so long as it does not constitute an undue hardship to
Respondent's operation. Below, I will explore in detail the
Complainant's actual experience at CPCBA, the accommodation he was
given (by both Respondent and DR), his performance in his job with
varying levels of accommodation, and what accommodation on
Respondent's part might allow him to perform the essential
functions of his job.
The Complainant began his employment as the Supervisor of the Adult
Development Program at CPCBA with the assistance of an employment
aide 15 hours a week (provided by DR), a pool of three clericals to
draw from (provided by Respondent), and the occasional help of his
Adult Development Program staff to assist him with the clerical and
manipulative functions of his job. Finding 191. This assistance
essentially provided the Complainant with the hands he couldn't
utilize to file documents, make copies, fill out forms, set up
tables and chairs for meetings, keep his appointment book, create
visual aids, keep his office neat and organized, and reduce his
thought processes to written form. Also, it provided the
Complainant with a clear voice, assisting him with initial
telephone contacts. With this assistance, even Respondent admits
the Complainant performed the essential functions of his job.
Findings 179, 189.
Evidence that the Complainant was performing the essential
functions of his job includes: 1) JG's assurance to DR in June
1988 that the Complainant was working out so well JG had no
recommendations to improve the Complainant's performance and did
not believe the Complainant needed more time to complete his
training (Finding 148); 2) JG's October 28, 1988 performance
evaluation which gave the Complainant a "very good" performance
rating (Finding 179); 3) the Complainant's receipt of an increase
in pay as of October 15, 1988 (Finding 187); and 4) JG's assurance
to DR in January 1989 (upon which assurance DR closed its file on
the Complainant) that the Complainant was performing satisfactorily
(Finding 188).
However, the Complainant did not continue to receive this level of
assistance. In July 1988, Respondent
lost his employment aide. Findings 141 - 142. There is testimony
Respondent's Adult Development Program staff gave their time to him
only for a few months and even that assistance was given somewhat
begrudgingly. Findings 174 - 177. In the early fall of 1988,
Respondent's supervising clerk, EVB, became ill, leaving Respondent
with a clerical staff of only two full-time persons. 15/ Finding
111. In September 1988, Respondent hired AS on a temporary basis
to assist the clerical staff and the Complainant. However, AS's
hearing disability made it difficult for her to work with the
Complainant. Findings 151 - 153. AS left CPCBA in December 1988.
Finding 151. While the Complainant's computer was delivered in
either November 1988 or January 1989, the Complainant was not
trained on it at the time he was terminated. Finding 133. In
January 1989, Respondent hired a new supervising clerk, MN.
However, MN left in February. Finding 113. Respondent asserts it
specifically tried to make EB available to the Complainant in the
afternoons. Finding 162. EB, however, had telephone duty, and
needed to take dictation in a noisy office where the other clerical
staff worked, which office was not convenient to the Complainant's.
Findings 167 - 172. Thus, as the Complainant moved into his second
six months of employment, his clerical assistance dwindled away.
Just as the Complainant's clerical assistance declined, the
quantity of his work, especially his paperwork, increased. Finding
190. JG first began to pressure the Complainant to turn in
reports, evaluations, and other documentation in February of 1989.
Finding 204. At this time, the Complainant had no employment aide,
the clerical staff was down to two, as MN had left, the Complainant
was not trained to use his computer, and the clerical support
tendered by Respondent apparently consisted of EB in the afternoon
in an office not conducive to dictation, and MT on the same basis
as other CPCBA employees utilized her. Moreover, no clerical staff
were available to assist the Complainant in the preparation of
three confidential staff evaluations. 16/ Finding 211.
This is the point at which, on March 1, 1989, JG wrote his informal
assessment of the Complainant's work, stating his concern with the
Complainant's work habits and quality of work, and informing the
Complainant that he could not rate his job performance as
satisfactory. Findings 203 - 204, 206 - 211. In this memo, JG
asked the Complainant to turn in certain evaluations and reports by
March 10, 1989. JG did not offer to direct specific clerical help
to assist the Complainant to accomplish this (and even acknowledged
that it was easier for the Complainant to get help at home with his
paperwork). Finding 211. However, in a memo of March 14, 1989 to
Respondent's Executive Committee, JG indicated that the Complainant
had completed these tasks. Finding 215; DHHS Ex. 1 at 47.
Apparently, the Complainant completed this work either at home or
with the limited resources available to him at CPCBA.
Evaluating this evidence, I find that, with sufficient assistance
to overcome his problems with manual dexterity (and some help with
initial phone contacts), which assistance the Complainant received
during his initial tenure at CPCBA, the Complainant was performing
the essential functions of his job. In addition, during his
initial months of employment, the Complainant had sufficient
clerical assistance to allow him to meet the nonessential attendant
paperwork demands of his position. Thus, as he was performing the
essential functions of his job, he was a qualified handicapped
employee. Moreover, it was only when almost all effective clerical
assistance was withdrawn that the Complainant apparently began to
have difficulties generating the necessary reports and evaluations
required of his position.
With regard to the assistance the Complainant needs to do his job,
however, I am not convinced based on the record as a whole (which
includes my evaluation of the Complainant's tenure at CPCBA) that
the only reasonable accommodation for the Complainant's disability
is to have Respondent hire a 20-hour-a-week employment aide for the
Complainant. The record supports, and the Complainant recognizes,
that what he needs is regular, specific, directed assistance. The
Complainant testified that, had he received a directive from his
superiors at CPCBA with regard to obtaining sufficient clerical
staff on a fixed schedule and directives on how to utilize that
staff, he could have adjusted his work habits and schedule to
accommodate that person. Finding 247. The Complainant never
received that help. Thus, there might be times the Complainant
needs 20 hours a week in clerical help and other times he might
need less. It is possible that such assistance can be achieved
without requiring Respondent to hire additional staff. 17/
Accordingly, I have identified several levels of assistance which
might constitute reasonable accommodation for the Complainant.
Such accommodation includes: 1) the assignment of existing
clerical personnel to the Complainant for prescribed periods
according to a specified schedule at a location conducive to
private dictation; 2) the Complainant's use of a computer (assuming
that the Complainant is fully trained on it) with the more limited
assistance of existing clerical personnel for prescribed periods
according to a specified schedule in a location conducive to
private dictation; 3) the Complainant's use of a computer (assuming
the Complainant is fully trained on it) with the assistance of an
employment aide, whose hours would depend on the Complainant's
clerical needs at that time; 4) the hiring of an employment aide
between 10 and 20 hours a week, depending on the Complainant's
clerical needs at that time; or 5) hiring an employment aide for
the Complainant 20 hours a week. With such accommodation, I
believe that, as the Complainant demonstrated during his first six
months of employment, 18/ with sufficient clerical assistance the
Complainant is capable of performing the essential functions of his
job. Thus, the Complainant is a qualified handicapped employee.
Given that I find the Complainant to be a qualified handicapped
employee with one or a mixture of the alternative forms of
reasonable accommodation described above, it is Respondent's
responsibility to provide such accommodation, unless the provision
of such accommodation constitutes an undue hardship to Respondent's
operation. 19/
3. Reasonable accommodation and undue hardship
As a recipient of federal financial assistance, it is Respondent's
responsibility under section 504 to provide reasonable
accommodation to its employees to enable them to perform the
essential functions of their jobs, absent a finding of undue
hardship. Further, once it has been determined that, with
reasonable accommodation, an employee is a qualified handicapped
employee, it is Respondent's burden to prove that it would be an
undue hardship on its operation to provide that reasonable
accommodation. 20/ Finding 77.
Respondent asserts that, due to the nature of its funding, it
operates at a deficit. Specifically, in 1988 and 1989, Respondent
asserts that its State payment was insufficient to cover its
expenses and that it had to rely on other sources to meet those
expenses. R. Br. 35 - 36. Respondent asserts further that the
bulk of this shortfall was made up by grants from the Mary Valle
Foundation, an independent, California non-profit corporation. R.
Br. 37. Respondent estimates that the cost of hiring an employment
aide for the Complainant would be at least $9000 a year, and that
such a financial burden would be an undue hardship on Respondent.
R. Br. 37. Respondent contends that section 504 does not compel
recipients of federal financial assistance to make substantial
modifications in their operations or incur undue economic burdens
and financial costs to employ the disabled. Respondent contends
further that, because it operated at a deficit (absent the Mary
Valle Foundation funds), the additional burden of hiring an
employment aide for the Complainant is not required under section
504. R. Br. 37. Respondent argues also that hiring a second
individual to assist the Complainant would alter its staffing
ratios to a level such that the funds it receives from the State of
California would be jeopardized. R. R. Br. 23.
Respondent admits that, if some other entity had paid for an
employment aide for the Complainant, Respondent would not have
terminated him. Finding 244. Respondent's primary reason for
terminating the Complainant was that it asserted that it could not
afford to pay for a 20-hour-a-week employment aide for the
Complainant and that it believed hiring such an employment aide
constituted hiring two people for one job and that such action was
beyond the scope of reasonable accommodation. 21/ Findings 239 -
241. For guidance in determining whether providing the reasonable
accommodation I have outlined (Finding 272) would constitute an
undue hardship to Respondent's operation, I turn to the
regulations.
Section 84.12(c) of Title 45 of the Code of Federal Regulations
lists factors to be considered in determining whether reasonable
accommodation would impose an undue hardship on a recipient's
operation of its program pursuant to section 84.12(a). These
factors include: 1) the overall size of the recipient's program
with respect to the number of employees, number and type of
facilities, and size of budget; 2) the type of the recipient's
operation, including the composition and structure of the
recipient's workforce; and 3) the nature and cost of the
accommodation needed. Appendix A, subpart B, paragraph 16 to the
Part 84 regulations, discusses the weight to be given to each of
these factors, and suggests that the weight will vary depending on
a particular factual situation. The Appendix suggests that a small
day care center might not be required to spend more than a nominal
sum, such as equipping a telephone for use by a hearing impaired
secretary. However, a large school district might be required to
make a teacher's aide available to a blind applicant for a teaching
job. Further, a State welfare agency might have to provide an
interpreter for a deaf employee, where such accommodation might be
a hardship for a foster care provider. To determine whether the
provision of reasonable accommodation would be an undue hardship to
Respondent in this case, I must weigh these factors against what
evidence Respondent has offered to support its position.
Specifically, to assess effectively whether the provision of
reasonable accommodation for the Complainant would constitute an
undue hardship on Respondent's operation (and remaining mindful
that Respondent alleged that its clerical staff should have been
able to accommodate the Complainant had he only sought them out)
pursuant to the factors identified in the regulations, and the
reasonable accommodations I have identified, I would need to
evaluate evidence regarding: 1) the total number of professional
staff employed by Respondent requiring the services of the clerical
staff and the type of assistance each staff member required; 2) the
cost per year and per employee of the clerical staff; 3) the
services the clerical staff provided to professional staff members
other than the Complainant (filing, dictation, etc.); 4) the impact
on the organization (when fully staffed) of altering the clerical
staff's tasks to accommodate the Complainant; 5) the cost of hiring
temporary clerical help for busy periods; 6) the impact on other of
Respondent's departments if budget resources were diverted to
enlarge its clerical staff through the hiring of temporary
employees or an employment aide; 7) information on the
availability, efficacy and cost of computer programs that would
enable the Complainant to be less reliant on clerical help; 8) the
relative size of Respondent as compared to other entities providing
similar services to developmentally disabled persons; and 9) any
specific consequences on funding from local, State, federal or
private sources resulting from a determination by Respondent to
expend its existing resources to provide the requisite clerical
assistance to the Complainant.
Here, however, Respondent has not supported its argument that
providing reasonable accommodation for the Complainant would
constitute an undue hardship, based on the factors set forth in the
regulations. Rather, it has relied on general cost arguments to
support the alleged hardship. Such reliance is of dubious merit,
since it fails to address the specific factors established by the
Department for analyzing whether an accommodation would constitute
an undue hardship on an organization. Respondent's failure is
particularly significant, since it has the burden of proof on this
issue.
Despite this failure by Respondent, I must weigh Respondent's undue
hardship argument against what evidence there is in the record. In
weighing this evidence, I am essentially limited to analyzing what
the record reflects as to Respondent's general expenses as measured
against its income. From this, I must conclude whether or not
Respondent could afford the reasonable accommodations I have
outlined at the time it allegedly discriminated against the
Complainant. I find that what the record does reflect (other than
that the Respondent provides educational and work programs for
approximately 75 to 85 developmentally disabled adults (Finding
78)), is that while Respondent does not appear to be in the
position of a large school district or State welfare agency in
terms of size and budget, neither does its financial position
reflect the position of a small day care center or foster care
provider. Respondent has a large operating budget, and, in 1989,
it had a budget surplus.
Specifically, in 1989 (the year the Complainant was terminated)
Respondent had an operating budget of $1,005,857 (DHHS Ex. 8 at 5)
and a surplus of public support and revenue over expenses of
$48,074. 22/ Finding 249. The nature of this support included
public support in the form of grants from the Mary Valle
Foundation, contributions and special events, as well as revenue in
the form of membership dues, program receipts (i.e., production
income, rehabilitation service fees, and donated services),
interest, worker's compensation dividends, and other miscellaneous
income. Finding 249. Even assuming that this $48,074.23 surplus
was due to an infusion of funds from the Mary Valle Foundation,
Respondent has advanced no convincing argument as to why I should
not consider Mary Valle Foundation funds (in 1989, the Mary Valle
Foundation had an excess of support and revenue over expenses of
$664,142 and a fund balance, or net worth, of $5,207,735) available
to fund reasonable accommodation for the Complainant. Findings 248
- 263, 266 - 270.
The record reflects that the primary purpose behind the existence
of the Mary Valle Foundation is to support programs for individuals
with cerebral palsy or multiple handicaps in the Oakland/San
Francisco Bay area. Finding 252. The only entity that the Mary
Valle Foundation has supported to carry out its purpose is
Respondent. 23/ Finding 254. Moreover, as well as funding
Respondent, the Mary Valle Foundation is empowered to make
individual grants to assist individuals with multiple handicaps,
such as the Complainant. Finding 263. Respondent never explored
the option of asking the Mary Valle Foundation to provide funds to
pay for reasonable accommodation for the Complainant, either by
making the request for funding on its own or by assisting the
Complainant in applying for such funds. Findings 264 - 265. This
is especially ironic in light of Respondent's own commitment to
help individuals with cerebral palsy maintain their employment.
I find, however, that Respondent's financial position (at least in
1989, the year of the Complainant's termination) was such that
hiring a 20-hour-a-week employment aide was not beyond Respondent's
means and would not constitute an undue hardship to Respondent.
Further, the other accommodations I have outlined would almost
certainly be cheaper than hiring a 20-hour-a-week employment aide
and could provide the Complainant with the accommodation he needs
to perform the essential functions of his job.
It is likely that the most expensive accommodation that would allow
the Complainant to perform the essential functions of his job would
be the provision of an employment aide 20 hours a week. Respondent
estimates this cost to be $9000 a year. Assuming that Respondent's
cost estimate is accurate, I find that, given Respondent's
financial position in 1989 (a $48,074 surplus, and access to Mary
Valle Foundation funds) at the time of the Complainant's
termination, Respondent was able to bear the cost of providing a
20-hour-a-week employment aide for the Complainant. As to
Respondent's argument that hiring such an employment aide would
alter its staffing ratios and jeopardize its State funding, the
record does not support such a finding. While Respondent asserts
this possible adverse consequence, it never made any effort to
inquire of the appropriate State officials whether its funding
would be affected. Finding 271. Respondent's argument is pure
speculation without record support.
However, as outlined above (Finding 272), other forms of reasonable
accommodation may be sufficient to enable the Complainant to
perform the essential functions of his job. As I stated
previously, Respondent's fundamental need is for sufficient,
directed, and sustained clerical help. To meet the Complainant's
needs, Respondent could assign its existing clerical staff to the
Complainant for prescribed periods according to a specified
schedule in a location conducive to private dictation. Such
accommodation would not require Respondent to expend excess funds,
although some cost may be involved if such assignment took the
clerical staff away from other work. However, the record contains
no information on such cost or the impact on other departments of
Respondent resulting from such an allocation of resources.
Respondent has failed to demonstrate any adverse impact on its
operations caused by the adoption of this form of accommodation.
Further, it is possible that, once the Complainant was fully
trained on his computer, he would not need as much clerical help.
Again, Respondent has failed to offer record evidence supporting
the inapplicability of this form of accommodation. I have no
information regarding the feasibility of such computer use to aid
the Complainant with clerical tasks. I do know that DR provided a
computer to the Complainant. However, the record does not indicate
whether or not, assuming the Complainant was fully trained in its
use, the computer would actually assist him in the performance of
his job. I can draw an inference from the fact that DR provided it
to the Complainant that at least DR thought it would be beneficial.
Respondent has offered no evidence to rebut such an inference.
Thus, a combination of the computer and either fixed clerical staff
for prescribed periods according to a specified schedule in a
location conducive to private dictation or an employment aide for
less than 20 hours a week might be sufficient to accommodate the
Complainant's needs. An employment aide for 10 to 20 hours a week
also might be sufficient, depending on the Complainant's workload.
Such accommodation might be either at little or no cost to
Respondent or could, at least, be at a cost significantly less than
Respondent's $9000 estimate of the cost to provide the Complainant
with a 20-hour-a-week employment aide.
Respondent's duty is to make sure that reasonable accommodation is
provided to allow the Complainant to perform the essential
functions of his job. Such accommodation must be provided in a
directed and sustained manner. This is a responsibility Respondent
dismally failed to execute during the Complainant's tenure at
CPCBA.
4. Discrimination on the basis of handicap
I have found the Complainant to be a qualified handicapped person,
as with reasonable accommodation the Complainant can perform the
essential functions of his position. Respondent has not shown that
providing reasonable accommodation will impose an undue hardship.
As Respondent has failed to provide reasonable accommodation to the
Complainant to enable him to perform the essential functions of his
position, I find that, pursuant to section 504 and its implementing
regulations, Respondent has discriminated against the Complainant
on the basis of the Complainant's handicap. Findings 278 - 284.
III. The Department has been unable to obtain voluntary compliance
with the Act from Respondent.
Departmental regulations provide that its procedures for
implementing the Act are the same as the procedures for
implementing Title VI of the Civil Rights Act of 1964. 45 C.F.R.
84.61. These procedures are set forth at 45 C.F.R. 80.6
through 80.10 and at 45 C.F.R. Part 81.
The regulations provide that the Department may take action against
a recipient of federal funds to obtain compliance with section 504
of the Act if the Department finds that a dispute concerning the
recipient's compliance cannot be resolved informally. 45 C.F.R.
80.7(d), 80.8(a). Thus, the regulations require me to find,
as a prerequisite to imposing a remedy in this case, that the
Department has been unable to secure voluntary compliance with the
Act by informal, voluntary means. Westchester County Medical
Center, DAB CR191, aff'd DAB 1357 (1992).
The Department has proved that it has not been able to secure
voluntary compliance from Respondent. Prior to issuing the
February 1, 1993 Notice, the Department's OCR made attempts to
resolve this matter informally with Respondent. While Respondent
proved willing to comply with regard to revising its employment
application, Respondent has steadfastly refused to provide relief
for the Complainant, which relief must include reinstatement, back
pay, and any other monetary loss to the Complainant resulting from
Respondent's discriminatory practices. Respondent still insists
that the Complainant was terminated because he was unable to
perform his job, not because of his handicap. R. Br. 38.
IV. Respondent's federal financial assistance must be terminated
until Respondent comes into compliance with section 504.
Departmental regulations provide that termination of or refusal to
grant or continue federal financial assistance to a recipient of
federal funds is an appropriate remedy for the recipient's refusal
to comply with its obligations under section 504. 45 C.F.R.
80.8(a). "Federal financial assistance" includes grants, loans,
contracts (other than procurement contracts or contracts of
insurance or guaranty), or any other arrangements by which the
Department makes available funds, services of federal personnel, or
real and personal property or any interest in or use of such
property. 45 C.F.R. 84.3(h). Departmental regulations provide
procedures which must be followed prior to termination of federal
financial assistance. 24/ Departmental regulations provide also
that any action to suspend, terminate, or refuse to grant federal
financial assistance to a recipient for failing to comply with the
Act shall be limited to the particular program or part of a
particular program in which noncompliance has been found. 45
C.F.R. 80.8(c)(3).
Respondent is a recipient of Departmental federal financial
assistance under the Medicaid waiver program. I have found that
Respondent has discriminated against the Complainant by subjecting
him to discrimination in employment and by denying him an
employment opportunity, based on the need to make reasonable
accommodation, thus violating section 504 of the Act and
Departmental regulations at 45 C.F.R. Part 84. Termination of (or
refusing to grant or continue) Departmental federal financial
assistance is an appropriate remedy under Departmental regulations.
45 C.F.R. 80.8(a). Thus, I find that the Department is
authorized to terminate or to refuse to grant or continue all
Departmental federal financial assistance to Respondent until
Respondent comes into compliance with section 504 and Departmental
regulations. 25/ This termination of Respondent's Departmental
federal financial assistance does not constitute a punishment.
Respondent can avert the imposition of this remedy at any time by
complying with section 504 of the Act and Departmental regulations.
CONCLUSION
As I have concluded that Respondent is engaging in unlawful
discrimination in violation of the Act, I find that the Department
has the authority to terminate or refuse to grant or continue all
Departmental federal financial assistance to Respondent until
Respondent satisfies responsible Departmental officials that it is
in compliance with section 504 of the Act and Departmental
regulations.
Edward D. Steinman
Administrative Law Judge
1.
In my Decision of December 10, 1993, I concluded that Respondent
had engaged in unlawful discrimination in violation of the Act by
making an impermissible pre-employment inquiry in its employment
application. However, even though I found that Respondent had
engaged in this unlawful discrimination, I concluded that
termination of all federal financial assistance to Respondent was
an inappropriate remedy. My conclusion was based on my finding
that the Department had not proved that Respondent was unwilling to
comply voluntarily with the obligations of section 504 with regard
to its employment application. Department of Health and Human
Services v. Cerebral Palsy Center of the Bay Area, DAB CR295
(1993). Following my December 10, 1993 Decision, the parties
settled the issue of whether Respondent's employment application
form was discriminatory. Department of Health and Human Services
v. Cerebral Palsy Center of the Bay Area, DAB 1468, at 1 - 2
(1994). Thus, I need not consider the issue of Respondent's
employment application here. Accordingly, I have deleted all my
former Findings of Fact and Conclusions of Law (Finding(s))
(specifically, Findings 18, and 65 - 81 of my December 10, 1993
Decision) relating to that issue.
2. As a result of the CRRA's March 22, 1994 Decision, I have
changed my Findings 10, 11, 62, and 63 from my December 10, 1993
Decision, and substituted my new Findings 10, 11, 62, 63, and 64,
to support a finding of jurisdiction. Further, at the direction of
the CRRA, I have clarified Findings 24, 28, and 57 from my December
10, 1993 Decision, by substituting my new Findings 23, 25, 28, 57,
and 58. Finding 23 has been amended to clarify that Respondent
raised the issue of jurisdiction on the first day of the hearing
and withdrew its admission regarding its receipt of federal
financial assistance on the second day of the hearing. Finding 28
has been amended to reflect that the Medicaid waiver program
reimbursed 50 percent of Respondent's State funding under that
program. The actual amounts funded are set forth in DHHS Ex. 24 at
10 (as cited in Finding 28). Lastly, Finding 58 has been modified
to reflect that, since Respondent received federal financial
assistance in the form of Medicaid waiver program funds, such funds
did not consist of proceeds of a procurement contract with RCEB.
These clarifications are essentially procedural and do not affect
the outcome of my Decision regarding the issue of Respondent's
alleged discrimination.
3. The headings included in my Findings are intended as an aid to
the reader. These headings are not Findings of Fact or Conclusions
of Law, and they do not change the meaning of any of my Findings.
4. I refer to the Department's exhibits as "DHHS Ex. (number at
page)." I refer to Respondent's exhibits as "R. Ex. (number at
page)." I refer to the transcript as "Tr. (page)." I refer to
the
parties' briefs as "DHHS." or "R." Brief "Br. (page),"
Response
Brief "R. Br. (page)," Reply Brief "Rep. Br. (page)," and
Supplemental Brief "Supp. Br. (page)." I cite the Department's
Notice Of Opportunity for Hearing as "Notice (page)" and the
Respondent's Request For Hearing and Answer as "Answer (page)." I
refer to the Department's Proposed Findings as "DHHS Findings at
(page)." I refer to Respondent's Proposed Findings as "R. Findings
at (page)."
5. The Department has suggested that I refer to the EEOC
Technical Assistance Manual on Title I of the ADA, Fair Employment
Practices Manual (BNA) No. 690 (1992) with regard to the scope of
reasonable accommodation. As this manual was not published until
1992 (and the Americans with Disabilities Act itself was not
enacted until 1990), I am not considering this publication, as the
discrimination at issue was committed prior to 1990.
6. Both employees were active members of the National Federation
for the Blind. They contended that the reorganization/constructive
discharge violated their First and Fourteenth Amendment rights of
free association, due process, and equal protection. These
constitutional claims were brought under section 1893.
7. Section 84.42(a) of Subpart E makes it unlawful to deny
admission to qualified handicapped persons to postsecondary school
education. Section 84.44(a) requires adjustments to academic
requirements to ensure that such requirements do not result in
discrimination. However, academic requirements that are essential
to the program of instruction or to any directly related licensing
requirement will not be regarded as discriminatory. Section
84.44(d)(2) provides that handicapped students be given access to
auxiliary aids, such as sign interpreters, but attendants for
personal services need not be provided.
8. Relying on the definition of "qualified handicapped person" at
45 C.F.R. 84.3(k), the Court noted that the word "otherwise" was
dropped because the Department recognized that the intent of
section 504 was not to completely disregard a person's handicap in
determining whether such person could perform the requirements of
the position or program. The Court held that "[a]n otherwise
qualified person is one who is able to meet all of a program's
requirements in spite of his handicap." 442 U.S. at 406.
9. Ms. Davis argued that Southeastern had to provide individual
supervision by faculty members when she was involved in direct
patient contact and eliminate certain courses from the training
program. The latter accommodation was based on her belief that
section 504 required modifications of educational programs for
handicapped persons, such as eliminating clinical training. It was
acknowledged that Ms. Davis could not perform all the duties of a
registered nurse, such as in an operating room where surgical masks
are used and she could not rely on lipreading for communication.
10. Unlike the limitations imposed by section 84.44(d)(2) on the
use of personal attendants in postsecondary school settings, there
is no such limitation imposed in employment practices. In fact,
the provision of readers or interpreters, and other similar actions
arguably personal in nature, are permissible under 45 C.F.R.
84.12 unless they impose an undue hardship on the employer's
operations.
11. The Court recognized the interconnection between the need of
the handicapped person to be "otherwise qualified" under section
504 and a finding of discrimination. The Court noted that, "the
question of
who is `otherwise qualified' and what actions constitute
`discrimination' under the section would seem to be two sides of a
single coin; the ultimate question is the extent to which a grantee
is required to make reasonable modifications in its programs for
the needs of the handicapped." Choate, 469 U.S. at 299 n.19.
12. In light of the prohibition of "affirmative action" cited in
Davis, it is interesting that in Arline the Court acknowledged
that, "[e]mployers have an affirmative obligation to make a
reasonable accommodation for a handicapped employee." (emphasis
added). Arline at 289 n.19.
13. Respondent's position is not credible. Respondent argues
that the Complainant cannot perform the essential functions of his
position without the use of a part-time employment aide for 20
hours per week. The request for a 20-hour-per-week employment aide
was made by the Complainant at a time when he was fighting to
retain his job, after having been notified of his termination for
failing to perform the paperwork component of that job adequately.
Further, the request was made at a time when the Complainant's
computer assistance was marginal, when the provision of clerical
help to him was provided on an irregular and unscheduled basis, and
when the clerical services themselves were offered in a environment
which complicated, rather than lessened, the limitations caused by
the Complainant's disability.
14. As with most professional positions, the product of the
analyses, thought processes, and evaluations performed by the
incumbent in such positions requires some form of retention of the
work product, whether it be in written form on paper or
electronically maintained on a computer medium. Professionals are
not hired for their skills in generating the medium by which their
work product is maintained, but for the work product itself. The
obvious difference is that a professional is engaged in an
intellectual exercise creating the substance of the work product,
while attendant clerical staff reduce the professional's output to
final work product. As we progress further into the age of
computerization, many professionals possess and utilize computer
skills in the creation of their work product. Here, however, the
Complainant, due to his disability, is limited in his ability to
use computers. A computer programmed especially for him by DR did
not arrive until late in his employment with Respondent, and he was
terminated before he had the opportunity to be fully trained in its
use. Therefore, the Complainant had to rely solely on the clerical
personnel made available to him by Respondent.
15. There is testimony that Respondent may have hired Jackie
Robles (JR), the aide to a visually impaired employee, to assist
the clerical staff during some of the time Respondent was without
a supervising clerk. MR testified that she asked JR to assist the
Complainant. However, there is no evidence in the record
reflecting that JR ever assisted the Complainant. Tr. 495 - 497,
775 - 776.
16. Respondent argues that the Complainant could have asked JG or
MR to assist him with confidential staff evaluations. Respondent's
Objections to DHHS's Findings of Fact and Conclusions of Law at 5;
Tr. 777 - 778. I do not find this argument to be convincing.
Again, Respondent is placing the burden on the Complainant to seek
assistance, here as an employee asking his employer to assist him
with clerical tasks. Such argument is particularly unfounded if
Respondent is suggesting that such executive personnel would
actually be expected to do the clerical tasks for the Complainant.
Moreover, as JG and MR had never effectively designated staff to
assist the Complainant with his clerical tasks, there is nothing to
show that they would have been more helpful to the Complainant
personally.
17. An inescapable conclusion from this record is that Respondent
mismanaged its clerical staff and was derelict in its
responsibility to the Complainant (and possibly its entire
professional staff), to ensure that he had sufficient clerical
assistance to meet his clerical needs. The record does not allow
me to comment more directly on the needs of other members of the
professional staff for clerical assistance. However, the record
does show that much of the Complainant's problem meeting the
demands placed on him by JG was the sporadic and inconsistent
presence of clerical staff to assist him. Respondent's
mismanagement caused the Complainant's failure to meet the imposed
deadlines. However, rather than admitting this, Respondent placed
the blame on the Complainant. The irony is that Respondent used
the Complainant's alleged failure as one of the principal bases for
his termination. Further, in asking to extend the Complainant's
probation, JG acknowledges that it was the failure to find the
right combination of the Complainant's resources and Respondent's
clerical support that caused the problems with the Complainant's
employment. Finding 217.
18. Even after the first six months of his employment, the
Complainant appears to have been performing the essential functions
of his job. This is evidenced by JG's assurance to DR, in January
1989, that the Complainant was performing his job satisfactorily.
19. The Complainant requested also that the cabinets in his
office be removed in order for him to meet with wheelchair-bound
clients. Such modification would give the Complainant more room to
maneuver in his office. This request was denied by Respondent, as
Respondent determined that the Complainant had seen his office
prior to being hired and had not requested such modification at
that time. Respondent's rationalization is without merit. While
the Complainant may have seen his office, he had not tried to work
in it or meet with clients in it. When he discovered it was
difficult to work there, it was Respondent's responsibility to make
reasonable accommodations to the Complainant's workspace to
accommodate his disability, absent a finding of undue hardship.
Respondent has not proved that removing the cabinets would create
such a hardship. Further, Respondent has not offered any evidence
to challenge the legitimacy of such accommodation.
20. Respondent presented no evidence to show that at the time of
the Complainant's termination it had done a study or made any
specific inquiry as to whether it could, in fact, support hiring an
employment aide for the Complainant. Both JG and the Personnel
Committee thought it was possible. Findings 218, 226.
21. While JG also raised a concern as to whether the
Complainant's work habits and quality of work were up to the task
of fulfilling the administrative duties of a supervisor (Finding
234), such concern is belied by his own evaluation of the
Complainant's first six months of work. Further, the special
committee renewing the Complainant's termination made it clear that
his termination was a result of financial considerations.
22. Neither the Respondent nor the Department offered the
testimony of an accountant or other financial expert to assist in
analyzing the financial data in light of the regulations.
Financial documents of record include balance sheets showing income
and expenses and annual reports to the State attorney general
representing Respondent's and Mary Valle Foundation's financial
positions. DHHS Exs. 8 - 11, 14 - 18; R. Ex. 10.
23. The record indicates that, following the Complainant's
termination, the Mary Valle Foundation continued to contribute
substantial funds to Respondent. DHHS Exs. 17, 18; Tr. 438, 440 -
442, 559, 571 - 572, 590. Based on the overlapping directors and
other indices of the nexus between the Mary Valle Foundation and
Respondent, there is no support for Respondent's contention that
the Mary Valle Foundation is an independent entity which cannot be
considered as a funding source for any reasonable accommodation the
Complainant requires.
24. These procedures include an attempt to obtain compliance by
voluntary means and a finding on the record, after an opportunity
for a hearing, of a recipient's failure to comply. 45 C.F.R.
80.8(c)(1), (2). Departmental regulations provide also that the
termination of a recipient's federal financial assistance will not
be effective until 30 days after the Secretary has filed a full,
written report of the circumstances and grounds for termination
with the House and Senate committees having legislative
jurisdiction over the program involved.
25. Respondent has requested that I stay the termination of
Departmental federal financial assistance until at least 30 days
after final administrative or judicial review of this case. R. R.
Br. 26. I do not have the authority to grant Respondent's request.