that plaintiff was not "otherwise qualified" within the meaning given that phrase by the courts having construed it, and that even if she were, she was not discharged solely because of her handicap, but, rather, for her insubordination, her peculiar behavior in the office, and her multiple protracted absences without leave. Finally, it says that it has extended her all the accommodation to be expected of it.
Plaintiff asserts that, despite her past derelictions, she is now, and was, as of late spring, 1980, in all respects "otherwise qualified." Her technical skills, experience, and education are unexceptionable, as demonstrated by her uniformly favorable performance appraisals prior to the onset of her illness. When healthy her attendance had been punctual and her behavior appropriate. Now that her illness, albeit a chronic and incurable one, is in remission under control, she can be expected to perform as before. She, of course, retains her "handicap;" she is, and presumably always will be, a manic depressive. But, properly medicated and with regular psychotherapy, she satisfies the "otherwise qualified" criterion of a job she had done proficiently for many years.
Defendant insists that, as of the date of her termination, Ms. Matzo could not be considered as "otherwise qualified." A minimal and basic qualification for any job, it argues, is the ability to report for work and remain on duty for the duration of the workday, a capacity Ms. Matzo had notably lacked for virtually the entire first quarter of 1980, and, to lesser degree, for much of the preceding year.
The case law supports the defendant. In the leading case of Southeastern Community College v. Davis, 442 U.S. 397, 60 L. Ed. 2d 980, 99 S. Ct. 2361 (1979), the Supreme Court stated that an "otherwise qualified" employee must be "able to meet all of the program's requirements in spite of his handicap." Id. at 406. See also Norcross v. Sneed, 755 F.2d 113, 117 (8th Cir. 1985); Doe v. Region 13 Mental Health-Mental Retardation Comm'n, 704 F.2d 1402 (5th Cir. 1983); Wimbley v. Bolger, 642 F. Supp. 481, 485 (W.D. Tenn. 1986); Swann v. Walters, 620 F. Supp. 741, 747 (D.D.C. 1984); Schmidt v. Bell, 33 Fair Empl. Prac. Cas. (BNA) 839 (E.D. Pa. 1983). In other words, a handicap which deprives a worker of an ability to fulfill an essential requirement of his craft can never be "otherwise qualified."
Plaintiff then invokes the duty of reasonable accommodation. There were, she says, alternatives to the ultimate sanction (and indignity) of dismissal available to OLL which would simultaneously have addressed its need for secretarial services during her convalescence and served as well the federal policy of the government's being a model employer of the handicapped. See Whitlock v. Donovan, 598 F. Supp. 126 (D.D.C. 1984), aff'd sub nom. Whitlock v. Brock, 252 U.S. App. D.C. 403, 790 F.2d 964 (D.C. Cir. 1986). The obvious expedient, while she remained absent, was to hire temporary help, and once she had recovered sufficiently to return to work, if unable to resume all of her former duties, she could have been reassigned to a less demanding position. Firing her represented not only a failure of reasonable accommodation; it was no accommodation at all.
The argument, however, overlooks the reality. While Ms. Matzo was absent, OLL obviously did accommodate her. Someone, whether a temporary employee or her permanent co-workers, did the work she was expected to do. And whether she had recovered sufficiently, as of April, 1980, to return to work on any terms has never been established; the requests from USPS to plaintiff to submit to a fitness-for-duty examination have gone unheeded to the present.
Assuming, moreover, a continuing duty on USPS' part to accommodate plaintiff in some fashion once she protested her termination, the record discloses that defendant did, in fact, make a further effort to accommodate - it offered her the spurned settlement. The settlement, which plaintiff has steadfastly repudiated (and the Court has agreed does not bind her), contemplated converting her involuntary termination to a resignation. She would have been eligible to be rehired at a lower grade (with, presumably, less stressful job requirements) if found fit for duty when the long-deferred examination had been performed. Her prolonged absence without leave would have been forgiven, and her attendance record would have been credited with a substantial unearned sick leave allowance in advance.
The Court finds the settlement offered by USPS reflected both a good faith attempt to accommodate plaintiff's handicap, and, in fact, a reasonable accommodation. That plaintiff found it unacceptable does not alter its character as such. A handicapped employee cannot dictate the measure of his employer's duty to accommodate, and, having rejected the settlement, Ms. Matzo has waived her right to demand some other form of accommodation even if it, too, might have been reasonable.
For the foregoing reasons, therefore, it is, this 18th day of September, 1987,
ORDERED, that defendant's motion for summary judgment is granted, and the complaint dismissed with prejudice.