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May 13, 1992

LAMAR ALEXANDER, Secretary, Department of Education, Defendant.


The opinion of the court was delivered by: JOHN H. PRATT

Findings of Fact

 This is an employment discrimination case arising under the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 794a. It was tried by the Court on February 25 and 26, 1992. In addition to plaintiff, a total of ten (10) witnesses testified with the same number appearing for each side. Upon the conclusion of trial, each party submitted findings of fact and conclusions of law.


 1. Plaintiff is a 59-year-old white male who has had quadriplegic cerebral palsy since birth, which limits his control of his hands, arms and legs. He uses a wheelchair and is physically unable to write legibly and his speech is difficult to understand. *fn1" Despite these severe physical handicaps, he graduated from high school in 1954, received a B.A. in Business Administration from American University in 1959, and a Master's Degree in Business Administration from American University in 1966.

 2. Plaintiff has been employed by the Rehabilitation Services Administration (RSA) of the Department of Education (DOE) and its predecessor agency, the Department of Health, Education and Welfare (HEW), since 1969. RSA was the agency established by Congress to carry out, among other things, the Rehabilitation Act of 1973. RSA, in turn, is composed of at least three branches, including the Special Projects Branch, Basic State Grants Branch, and the Independent Living Branch. The mission of RSA is to develop and implement programs of vocational rehabilitation and independent living for persons with handicaps, to maximize their employability, independence, and integration into the work place and community. This agency, because of its purpose, is particularly sensitive to the problems of the handicapped.

 3. Plaintiff was first employed in 1969 in a full-time, permanent position by the predecessor agency, HEW, as a GS-5. In 1977, he became a GS-9, in which grade he remains today, after 23 years with the DOE and its predecessor agencies. He has lived alone since 1986 and has no close living relatives.

 Contentions of the Parties

 4. Plaintiff claims that he would have been promoted to GS-11 long ago, but for the agency's failure to develop him professionally and to accommodate his handicap. He specifically points to the agency's failure to provide him with a full-time/writer assistant. He also claims that, entirely aside from the matter of promotion, he should have been provided with a full-time writer/assistant to accommodate his handicaps.

 5. On February 14, 1986, plaintiff filed an Equal Employment Opportunity (EEO) complaint of discrimination with the agency alleging he was denied reasonable accommodation of his handicap, a performance appraisal for Fiscal Year 1986, and promotion to GS-11. He subsequently received a writer for four hours a day, and a current performance appraisal (GPAS) but no promotion.

 6. On September 25, 1986, the EEO complaint was settled when the agency agreed to give plaintiff a 90-day trial period in which he was provided with an opportunity to demonstrate that he could perform at the GS-11 level. Despite the extensive assistance and counselling which plaintiff received during this period, he was unable to complete successfully the assignments given to him. As a consequence, he was denied a promotion to GS-11. When the agency would not reopen the EEO complaint, this litigation followed.

 7. It is defendant's position that plaintiff has not been promoted because he has not performed adequately at his present GS-9 level and that providing a full-time writer/assistant would not have made a difference. In support of this position, defendant has presented evidence from four witnesses who were in the best position to judge plaintiff's performance. These were four RSA employees who supervised plaintiff in the 1970's and from 1981 through 1991. George Conn, the former Administrator of RSA (1981-1986) worked with plaintiff in 1973-1974, and has devoted his career to creating and implementing programs for the handicapped; Mark Shoob, Assistant Commissioner for Program Operations in RSA supervised plaintiff in 1981-1984 in the Basic State Grants Branch; John Eger of the Special Projects Branch supervised plaintiff in 1984-1986; and Deidre Davis of the Independent Living Branch supervised plaintiff in 1988-1991. Conn, Eger and Davis are no longer with the agency. Conn and Davis themselves have disabilities which confine them to wheelchairs. We give full credit to their testimony, despite evidence somewhat to the contrary presented by plaintiff principally through Fred C. Windbeck. *fn2" Wesley Geiger and Douglas Hilker also testified for plaintiff.

 8. The thrust of the testimony of defendant's witnesses is that plaintiff's entire employment history shows a pattern of consistent behavior - losing interest in his work, taking extended breaks, and failing to produce acceptable work - which conduct goes back to the early 1970's when he worked in the RSA Office of Public Affairs handling correspondence and drafting articles for the newsletter. He continued to have a problem sticking to his job and working diligently in the 1980's. He required an inordinate amount of his supervisors' time in order to comprehend his assignments, and still could not always produce usable products. His supervisors also noted that he was often not at his work station and thus not available for consultation or assistance. These problems were not related to his physical handicap, because he continued to have a problem doing analytical work, producing quality work, and being able to transfer training and information from one task to another even when he had the services of a writer. In short, their criticism of plaintiff's performance related to the quality of plaintiff's performance rather than its quantity. Even with the benefit of a part-time writer since 1986, there is no evidence that the quality of his work improved.

 9. While plaintiff's GPAS for the 1984-1988 period reflect that his supervisors rated him "Fully Successful," the record is clear that those grading plaintiff's performance were most sympathetic with plaintiff's physical problems and his sense of frustration and that they showed that sympathy in the grades awarded. *fn3" Many at the same time noted that plaintiff had problems understanding assignments and in completing them. For example, his GPAS from Mark Shoob for 1984 states that

 Specifically, there is a need for him to show more initiative in carrying out assignments. This means giving careful attention to correspondence he is replying to and preparing replies that are responsive to the incoming letter, including options available to the writer and where appropriate, referring the letter to the office or agency that can assist the writer. . . When I point out what is to be contained in correspondence, or other written assignments he needs to pay closer attention to insure that the product ...

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