information, not always precisely accurate but regularly updated and assembled by the Department of State, designed to record medical and technical assistance available at each Foreign Service post. It was apparent to the committee, as it was apparent to the Court after trial, that Mr. Barth required very prompt access to informed care if his condition suddenly changed due to infection or some other cause.
The panel was correctly advised that Mr. Barth's disease was one that becomes progressively worse, that his individual condition was already very complex, that he was prone to infection, which would raise blood sugar levels and necessitate close monitoring and attention within hours, that he would be endangered by stress and particularly by dehydration, and that, accordingly, the assignment to the program overseas would involve a serious risk for him. It is clear there was a thorough discussion of these and related matters. However, neither the discussions nor the particular reasons relied on for the panel's recommendation denying the waiver were recorded.
Mr. Barth has never contended, nor would it have been reasonable to do so, that "reasonable accommodation" required that VOA permanently assign a doctor and necessary facilities to be stationed with him as he moved from post to post. Instead, the focus of the trial and of the underlying VOA decision centered on the number of posts to which Mr. Barth could reasonably be sent without undue risk to himself given the medical facilities already available at the various sites. While a general rule of thumb favoring adaptability to at least 75 percent of posts was mentioned by several VOA officials, it was recognized that exceptions have been made for certain handicapped applicants, and in some instances a waiver has been granted where the waiver committee found there were adequate facilities at "the great majority" or even "a majority" of VOA overseas posts. (Stipulations 11-22, Tr. 206.)
Opinions differed to some extent among members of the waiver panel, and participants may have lacked precise current information as to some posts. The participants agreed that Mr. Barth's health needs could be met at the posts at Munich, Bangkok, and the Philippines. Other posts were more questionable. Dr. Zweifel felt that Colombo, Sri Lanka "might be acceptable" because of a particular competent doctor he knew there. There appears to have been a consensus that Mr. Barth might be available for at most five or six stations out of twelve.
While there is no adequate written record of the reasons for denial of the Barth waiver, there is no doubt about what occurred. The Committee unanimously recommended denial, and Ms. Brambilla, the acting personnel director, accepted the recommendation after interviewing some participants in the panel decision and speaking with Dr. Zweifel of State Med. During the trial she was extensively questioned about every aspect of her decision.
Mr. Barth was not waived because:
1. His disease was serious, complicated and subject to progressive deterioration.
2. He needs to have a doctor the same day in the event of any attack.
3. He could not tolerate conditions at at least half the posts, and conditions in some of the available posts could become more adverse. There was genuine concern that Mr. Barth would face life-threatening risks if assigned away from the three most suitable posts.
4. The job involved more flexibility and wider availability than Mr. Barth could offer.
5. Individuals already employed who required reassignment because of illness contracted on the job needed postings to the more sanitary, less stressful posts, and morale would suffer if these posts were permanently staffed by Specialists unable to work elsewhere.
In summary, the government's interest would not be served. The risks were great, and waiver in Mr. Barth's case was unfair to existing employees overseas because it would hamper the program. Both medical advice and advice from individuals with field experience received by Ms. Brambilla were unanimous to this effect.
The concerns of the Committee and the personnel officer who made the ultimate decision were genuine, not pretextual. Mr. Barth's medical condition was already complicated. He had experienced neuropathies in his hands and legs. He had an unhealed ulcer on his foot prone to infections in countries with inadequate sanitation. He needed periodic examinations to ensure that his foot care was adequate. He had also suffered proliferative retinopathy that had to be treated with laser therapy, requiring ophthalmological examinations every three to four months.
He needed examination by an internist every three months to evaluate the diabetes, and probably by a vascular surgeon to check his circulatory problems.
Nevertheless, Mr. Barth's challenge to these conclusions was extensive. Among other criticisms, he contends that no precise standard was applied, that Dr. Zweifel, a family practitioner with no special endocrinology training, was unqualified to render advice, that medical facilities at the sites were, in some instances, far better than the waiver panel recognized, that there should have been a far more complete and effective investigation into his health, that he is entirely capable of managing his own health with the aid of his wife and advice from his doctor by long distance telephone, and that throughout the process the VOA failed to recognize his rights as a handicapped person. He minimizes the risks to his health, the possibility that he might be unable to get insulin, and the chances of any life threatening emergency, and argues that other healthy Specialists may have emergency injuries.
However, Mr. Barth did not and the record created at trial does not present any persuasive proof that the VOA conclusion was erroneous after all key participants testified subject to cross-examination.
There was confusion and disagreement throughout the proceedings before the Court as to whether or not VOA was required to question at the time and prove at trial the competence of the medical judgments on which it relied. The Court accepts that the government's statutory obligation to employment of the handicapped includes an obligation to obtain adequate information regarding medical conditions, corresponding limitations, and available facilities. Accordingly, where a plaintiff has presented medical information to the agency and complains the agency did not competently evaluate it, the Court must examine this charge and consider evidence of the plaintiff's actual condition and available facilities, rather than simply accept the government's understanding of these underlying conditions at the time of its decision. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 288, 94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987) (court must conduct individualized inquiry into condition of Rehabilitation Act claimant, with deference to "the reasonable medical judgments of public health officials"). This was accomplished at trial through the testimony of Mr. Barth's doctor and cross-examination of State Department doctors. This evidence tended to confirm both the adequacy of VOA's efforts at the time and the accuracy of VOA's decision in retrospect.
There was no obligation under the circumstances, as Mr. Barth contends, for VOA or State Med officials to meet with his doctors, whose own submissions at the time of the waiver decision, which the waiver panel carefully considered, tended to confirm the conclusion of State Med that Mr. Barth's health would not allow permanent assignment to the Foreign Service. The letter from Mr. Barth's endocrinologist Dr. Ball to the waiver panel stated in part:
At the present time I have no problem with Mr. Barth's functioning in an overseas environment as long as there is a competent physician available to him should he become ill. I would anticipate that that physician should be available to him the same day of illness, as would be appropriate for any diabetic patient.
I personally have no way to anticipate acute illness, but from past experience with State Department personnel, I believe it is fair to say that as long as there is a competent physician available to the personnel of the particular post, then I would believe that Mr. Barth could be assigned. On the other hand, if he were assigned to an area in which no competent medical care would be available for forty-eight to seventy-two hours, then I would feel that that would be an inappropriate assignment.
DX 3. Dr. Ball testified at trial that by "available" he meant "available by telephone," but this certainly was not apparent from the letter, and the waiver panel members quite reasonably took it to mean "available in person." Under the circumstances, the Rehabilitation Act did not require VOA to determine by follow-up call whether Dr. Ball meant "available by telephone."
At trial, Dr. Ball, a skilled endocrinologist, acknowledged that in fall 1988 Mr. Barth was not a well-controlled diabetic and that about half the sites would be inappropriate given Mr. Barth's condition. He also testified that it was never conveyed to him at the time that Mr. Barth was seeking a permanent appointment to the Foreign Service, rather than a more limited assignment abroad. Moreover, his view that Mr. Barth could manage his diabetes by maintaining telephone contact with him was offered without close knowledge of the stresses related to the specific job or the conditions under which the work would be performed -- for example, record evidence indicated poor telephone service at various sites. Dr. Ball has accommodated Mr. Barth brilliantly at home, but the testimony of those with first-hand experience overseas, although they were less skilled in endocrinology, was more reliable.
The concern raised by Mr. Barth's counsel as to the waiver panel's lack of reference to precise standards was justified but not dispositive. The record did not show that VOA, in making the waiver decision, paid careful attention to the specific factors outlined in the Rehabilitation Act regulations. Nor was there a written record of proceedings or statement of reasons other than a rote recitation of the four factors set out in section 684.7-5 of the Foreign Affairs Manual. DX 11, 12. This is troubling in the handicap discrimination context. In cases involving race, sex or age discrimination, the decision under review is a straight employment decision which the reviewing court then scrutinizes for signs of bias. In a handicap case, by contrast, the employment decision itself is essentially the same decision -- a legal determination of what constitutes "reasonable accommodation" -- that the court is ultimately required to address. At least where the defendant is the federal government itself, a statement of reasons, explained in terms of the requirements of the Rehabilitation Act and regulations thereunder, would greatly assist the process. Such findings could help prevent decisions made on the basis of factual errors or misunderstandings and provide a contemporaneous justification for the decision that could be evaluated.
Although the lack of findings hindered the Court's de novo review, the record now before the Court, which focused sharply on the Rehabilitation Act standards, demonstrates that, in general, the waiver panel did focus on whether a reasonable accommodation could be made to Mr. Barth's handicap and, moreover, that the decision was proper and consistent with the requirements of the Rehabilitation Act. The thin staffing at each post required flexibility of assignment, put a premium on workers not subject to serious health risks, and offered few options for initial assignment of Mr. Barth. Accepting applicants who could basically only work at a few non-hardship posts would be considered unfair to other Specialists and detrimental to morale and success of the program. The Court independently finds that at the time he sought waiver Mr. Barth could function at only three or four posts and that as a matter of law such an accommodation would place an undue burden on the VOA program.
Nevertheless the procedural deficiencies indicated by the record are troubling. In a typical administrative law context, remand might be considered. Here, however, the Court cannot direct a reconsideration of the prior record. Mr. Barth's condition is subject to change and deterioration. The number and status of the various relay stations has changed. The number of available positions is small. It is inappropriate to stage an artificial rerun of the prior decision without regard for present realities. More importantly, the evidence clearly showed that the correct result in terms of the requirements of the Rehabilitation Act was ultimately reached.
However, while judgment must be granted to defendants and the complaint dismissed, this shall be without prejudice to Mr. Barth's right to apply after this date for permanent or temporary overseas duty or assignment with VOA. Any such application should be processed with specific procedures addressing appropriate Rehabilitation Act standards.
An appropriate Order is attached.
ORDER AND JUDGMENT - April 24, 1991, Filed
This case having come before the Court for trial without a jury, the issues having been duly tried, and the Court having this day filed a Memorandum containing its findings of fact and conclusions of law, it is hereby
ORDERED that judgment is entered in favor of the defendants on the Complaint; and it is further
ORDERED that the Complaint is dismissed in its entirety with prejudice as to the claim raised therein but without prejudice to plaintiff's right to apply after this date for permanent or temporary overseas duty with the Voice of America.