or employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program." 29 C.F.R. § 1613.704(a). An otherwise disqualifying physical condition or impairment may be overcome by the satisfactory use of mechanical devices such as a hearing aid. Federal Personnel Manual Letter 339-15.
Information Specialists are primarily responsible for the receipt, processing and dissemination of time-critical flight data concerning flying conditions throughout the total National Airspace System. Defendants contend that the use of a telephone is an essential function for the Information Specialist position as it is necessary to use a telephone to collect and confirm the accuracy of flight data. Defendants' Statement of Material Facts at para. 22; Declaration of Beauford Bancroft, Exhibit A, Defendants' Reply to Plaintiff's Opposition to Defendants' Motion for Summary Judgment. Defendants further contend that, based on the evidence before the agency, the agency reasonably concluded that plaintiff's hearing was not at a level sufficient to ensure that he could understand telephone conversations to the extent necessary to satisfactorily perform as an Information Specialist. Defendants' Reply Memorandum at 1. Because plaintiff never obtained, or indicated a willingness to obtain, a hearing aid, which would correct his hearing, the agency had no obligation to consider the strictly potential effect of such a device.
Defendants' Memorandum In Support of Motion for Summary Judgment at 15-16.
Plaintiff asserts three alternative methods of relief from the agency's failure to provide him the same opportunities it affords non-handicapped individuals. First, pursuant to the Rehabilitation Act he claims a right to de novo judicial consideration of his discrimination allegations. To find discrimination the Court must be able to conclude that plaintiff was denied employment due to his handicap and that he is qualified for the position notwithstanding his handicap.
Even if the Court does not find plaintiff presently qualified, plaintiff suggests he is entitled to summary judgment because the agency failed to meet its duty of reasonable accommodation under the Rehabilitation Act.
Plaintiff's third avenue of attack is that the agency's decision was arbitrary and capricious, in violation of the APA, because there was no evidence to support the agency's conclusion that plaintiff's hearing loss rendered him incompetent to perform as an Information Specialist.
Both sides have extensively analyzed the medical reports in an attempt to glean support for their respective contentions. The Court concludes, however, that the medical reports are not helpful as they do not address the underlying question in this case; whether or not plaintiff has the capacity to use a telephone with or without a hearing aid or other accommodation devices. Thus, there is insufficient evidence before the Court for the Court to make a de novo finding as to plaintiff's ability to meet the job qualifications.
The Court does find that the agency has not met its burden of proposing reasonable methods of facilitating plaintiff's handicap. For some reason the agency contends that because plaintiff has not come forward and indicated a willingness to obtain and use certain compensatory devices it has no duty to consider and recommend those methods of accommodation. In this Court's view the agency is putting the cart before the horse. Pursuant to the Rehabilitation Act and 29 C.F.R. § 1613.704(a), the agency should suggest reasonable accommodations, such as hearing aids or other telephone amplification devices, and test plaintiff's performance with them. If plaintiff cannot perform adequately without a compensatory device and refuses to use one then the agency will have fulfilled its responsibility to plaintiff.
Finally, for the same reason the Court cannot reach a decision on plaintiff's ability to perform as an Information Specialist on the evidence before it, the Court finds the agency's decision to be lacking an evidentiary basis and therefore arbitrary and capricious. Dr. Westura's conclusion was predicated on the fact that plaintiff's hearing was not compensated for by artificial devices and on Dr. Powell's conclusion that even with amplification plaintiff would have partial hearing loss. But, Dr. Powell did not test plaintiff with a hearing aid specifically designed to meet plaintiff's needs, nor did he test plaintiff's hearing capacity on a telephone. Moreover, unless Mr. Driscoll has a medical background he should not be deciding that plaintiff's medical submissions are irrelevant, and therefore, his decision must be regarded as arbitrary and capricious.
In view of the above, it is hereby
ORDERED that defendants' motion for summary judgment is denied, and it is further
ORDERED that so much of plaintiff's motion for summary judgment requesting placement as an Information Specialist, back pay, and costs, is denied, and it is further
ORDERED that plaintiff's motion for summary judgment is granted to the extent that this case is remanded to the FAA for further proceedings in accordance with this opinion, and it is further
ORDERED that this case may be reopened after the administrative proceedings have been completed.