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March 29, 1994

MARVIN T. RUNYON, Postmaster General, Defendant.

HAROLD H. GREENE, United States District Judge

The opinion of the court was delivered by: GREENE


This case came before the Court for a bench trial. With the benefit of the full record now before the Court, including Proposed Findings of Facts and Conclusions of Law presented by both plaintiff and defendant, this case is ripe for a decision on the merits.


 Plaintiff began her employment with the United States Postal Service in 1963 as a "Distribution Clerk" and was later promoted to the position of "Special Distribution Clerk" or "Review Clerk." These positions essentially involved the sorting of mail while standing in front of a metal "case" that contained various slots for receiving mail. However, the duties of these positions also involved considerable physical activity, including lifting, pushing, and pulling large quantities of mail.

 In 1979, plaintiff allegedly injured her back while on the job. *fn1" As a result, plaintiff was absent from work a significant amount of time from 1979 through 1983. During 1983 she was terminated by the Postal Service. Subsequently, however, an arbitrator ordered defendant, pursuant to her rights under the then existing collective bargaining agreement in effect between her union and the Postal Service, to re-employ plaintiff in a position which could be performed in a chair with a back support. As a result, plaintiff returned to work in January 1985 and was assigned a position as a Review Clerk in the Rehabilitation Unit, a unit that had been established and designated especially for postal employees with back problems; employees who required reduced work loads, and positions that could be accomplished through the use of chairs with back supports.

 While working in the Rehabilitation Unit during 1985 and 1986, plaintiff was not required to engage in heavy lifting or other strenuous activities normally required of a Review Clerk. In addition, employees in the Rehabilitation Unit worked in front of shorter "cases" than those ordinarily used by Review Clerks. This allowed the clerks to perform their sorting functions while seated.

 Sometime prior to plaintiff's return to work in 1985, a number of "blue" chairs were purchased specifically for use in the Rehabilitation Unit. These chairs were purchased for that unit based upon their alleged "orthopedic" characteristics. After these chairs were purchased, it became defendant's policy to require all employees in the unit to use the chairs. However, several employees, plaintiff among them, apparently disliked the "blue" chairs and requested the use of other chairs available in the facility. Specifically, plaintiff repeatedly requested the use of an "orange" chair apparently available in the cafeteria. This request was denied.

 Plaintiff alleged that the "blue" chair she was required to use worsened her back condition and caused her great pain. She further alleged that as a consequence, she was forced to miss substantial periods of work in 1985 and 1986, and eventually to leave the Postal Service in May 1986, never to return. Plaintiff retired based upon disability in 1989.

 Plaintiff brought this action pursuant to 29 U.S.C. §§ 791 and 794 (sections 501 and 504 of the Rehabilitation Act) alleging that defendant's refusal to accommodate her request to use the "orange" chair, or any chair other than the mandated "blue" chair, represented discrimination on the basis of her handicap. She further alleged that defendant's actions in this regard caused her "constructive discharge" and forced her into a disability retirement in 1989. *fn2" The complaint sought, inter alia, back-pay for work allegedly missed due to defendant's wrongful behavior, reinstatement to her former or a comparable position, and attorney's fees.


 To establish a prima facie claim under the Rehabilitation Act, an employee must first establish (1) that she is a "handicapped person," (2) that she is "otherwise qualified," and (3) that defendant's practices which prejudiced her were motivated "solely by reason of her handicap or caused by a handicap-related disparity." *fn3" See Matzo v. Postmaster General, 685 F. Supp. 260, 262 (D.D.C. 1987), aff'd, 274 U.S. App. D.C. 95, 861 F.2d 1290 (D.C. Cir. 1988); Guerriero v. Schultz, 557 F. Supp. 511, 513 (D.D.C. 1983).


 The initial inquiry, then, is whether plaintiff was a "handicapped person" during 1985 and 1986, the period in question, for purposes of the Rehabilitation Act. A handicapped person is "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." 29 U.S.C. § 706(7)(B). *fn4" "Physical or Mental impairment" is defined, in pertinent part, as:

 any physiological disorder or condition, cosmetic disfiguration, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endoctrine . . . .

 29 C.F.R. § 1613.702(b)(1). "Major life activities" is defined as "functions, such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1613.702(c).

 The Court concludes that, at all times relevant, plaintiff was a "handicapped person." Although the testimony of defense witness Dr. Robert Gordon, an orthopedic specialist, raises substantial doubts as to whether plaintiff actually suffered from back ailments, and in particular whether plaintiff suffered from a herniated disc, that testimony is, at bottom, irrelevant for purposes of the instant inquiry. *fn5"

 The record amply demonstrates that defendant had long regarded plaintiff as suffering from an impairment that substantially limited her ability to work. *fn6" In this regard, it is clear that plaintiff (1) had a record of a substantial physical impairment and (2) was regarded as having such an impairment. *fn7" This is all that is required to bring plaintiff within the protection of the Rehabilitation Act. See 29 U.S.C. § 706(7)(B); 29 C.F.R. § 1613.702(a).


 The next inquiry is whether plaintiff was "otherwise qualified" for purposes of the Rehabilitation Act. An individual is otherwise qualified if she can meet all the requirements of the position in spite of the handicap, with or without reasonable accommodation. Southeastern Community College v. Davis, 442 U.S. 397, 406, 60 L. Ed. 2d 980, 99 S. Ct. 2361 (1979). *fn8" Here again the Court concludes that plaintiff was "otherwise qualified."

 Despite defendant's contention that the Court should make this determination based on whether plaintiff was fit to perform the ordinary duties of a Review Clerk -- and the Court would certainly find that plaintiff was unable to do so, see Florence v. Frank, 774 F. Supp. 1054, 1061 (N.D. Tex. 1991) (if handicap would prevent plaintiff from performing job in question without eliminating essential functions of the job, he cannot be found "otherwise qualified") -- under the facts presented in the instant case, the Court must disagree with defendant.

 As previously noted, plaintiff was re-hired in 1985 as a result of an arbitration award. That award specifically dealt with the fact that plaintiff had sought permanent re-assignment, under the terms of her collective bargaining unit's agreement with the Postal Service, to a "light duty" position which could be performed in a chair with a back support. It is also clear that upon plaintiff's return in 1985, her assignment to the Rehabilitation Unit was designed to meet precisely the requirement of a permanent light-duty position. Thus, the Court finds that the determination as to whether plaintiff was "otherwise qualified" must be made based on her ability to perform the duties assigned in the Rehabilitation Unit upon her return in 1985.

 In this regard, the Court concludes that plaintiff was otherwise qualified for this position. The record demonstrates that she possessed the skill, training, and experience necessary to accomplish all the tasks required in that limited position. Defendant's contention that plaintiff was incapable of holding any full-time job due to her back pain is rejected -- at least as it relates to the period in 1985 and 1986. *fn9" While it may be true that plaintiff's condition might have required periods away from work, there is no evidence to indicate that this leave could not have been accommodated based upon plaintiff's regular earned leave accruals or defendant's policies in connection with such leave.


 Finally, it is clear that the issues raised in this case result from plaintiff's handicap. It cannot be disputed that plaintiff's back problems are at the heart of her complaints and defendant's defenses. Plaintiff need not establish a discriminatory intent on the part of defendant. See Pushkin v. Regents of Univ. of Colorado, 658 F.2d 1372, 1384 (10th Cir. 1981).


 Concluding that plaintiff has made a prima facie showing, the Court shifts the burden of persuasion to defendant to show that either he reasonably accommodated plaintiff's handicap or that it was not possible to reasonably accommodate the handicap without undue hardship on the Postal Services operations. See Carter v. Bennett, 651 F. Supp. 1299, 1300-01 (D.D.C. 1987), aff'd, 268 U.S. App. D.C. 183, 840 F.2d 63 (D.C. Cir. 1988). See also Barth v. Gelb, 303 U.S. App. D.C. 211, 2 F.3d 1180, 1183 (D.C. Cir. 1993) (discussing burden shifting). *fn10"

 Thus, we reach the crux of this action, that is, whether, when the evidence is viewed in its entirety, defendant reasonably accommodated plaintiff's handicap? *fn11" Although less than thrilled with the overall conduct of the Postal Service and the handling of this matter, the Court concludes on the basis of the entire record that plaintiff was reasonably accommodated.

 It must first be noted that plaintiff does not allege that she was entirely un-accommodated. It is undisputed that plaintiff received the Review Clerk assignment in the Rehabilitation Unit -- along with its restricted physical requirements and other special accommodations. Moreover, the record demonstrates that plaintiff received work-schedule accommodations as a result of her alleged back problems -- including, at various times, part-time duty (four hours per day) and leave without pay when she was unable to work and had no leave available. In fact, plaintiff remained on leave without pay for an extended period after she left her job in 1986 through her disability retirement in 1989. *fn12"

 Instead, plaintiff contends that defendant's failure to provide her with the chair of her choice -- the "orange" chair -- was unreasonable and that defendant has provided no valid reason for this action. More specifically, plaintiff contends that the "blue" chair that she was required to use in the Rehabilitation Unit caused her pain and discomfort and did not satisfy her doctor's specifications. She contends that this discomfort caused her to miss substantial periods of work. Because the "orange" chair was readily available, she contends that defendant's action represented a failure to reasonable accommodate her.

 First, there has been considerable disagreement between the parties, and there was conflicting evidence at trial, over exactly what chair plaintiff was required to use in 1985 and 1986. Unfortunately, the actual chairs in question were not presented as evidence at trial. Nevertheless, the Court finds based upon the sum of the testimony and evidence, that the chair pictured in Defendants Exhibit # 1, or its equivalent, was the chair plaintiff was required to use during 1985 and 1986. The Court rejects as incredible plaintiff's testimony that the chair depicted in the exhibit was not the "blue" chair in which she was required to work, as well as her testimony regarding the alleged characteristics of the chair in which she claims she was forced to work. *fn13"

 Second, the Court finds that the "blue" chair pictured in Defendants Exhibit # 1, and in which plaintiff was required to work, was specifically acquired, after consultation with medical personnel, based upon their orthopedic characteristics. The evidence indicates that these chairs were purchased because management agreed that chairs with back supports should be provided to all employees in the Rehabilitation Unit. Moreover, because these chairs were medically recommended for individuals needing back support, the Postal Service established a policy that required their use by all employees assigned to the Rehabilitation Unit. *fn14"

 Third, the Court finds that the "blue" chair had both a firm seat and back, and that it was constructed of steal or iron piping with a cloth covering. The Court also finds that the chair was an appropriate height for work at the modified cases in the Rehabilitation Unit, and that the chair provided back support to its occupant. In short, the Court finds that the chairs were orthopedically sound.

 Fourth, the Court finds that although plaintiff's doctor, Dr. Azer, issued a number of medical certificates for plaintiff during the period in question, these certificates consistently indicated only that plaintiff needed a "chair with a back support." On only one occasion did Dr. Azer indicate that plaintiff should be provided a "rigid, high-backed" chair -- and the meaning of that term is not medically apparent. Based upon these medical orders and the reasons for the policy established with respect to the orthopedic "blue" chairs in use in the Rehabilitation Unit, the Court finds that defendant was substantially complying with the medical orders presented by plaintiff's physician.

 In sum, the Court concludes that under all the circumstances presented, defendant has met his burden of demonstrating that the orthopaedic "blue" chair provided plaintiff, along with her assignment to the Rehabilitation Unit and the accommodation of her work-schedule, represented reasonable accommodations of her handicap. Plaintiff has failed to rebut defendant's evidence. See Carter v. Bennett, supra, 651 F. Supp. at 1301.

 Plaintiff insists, however, that defendant was required to do more. Specifically, plaintiff relies on the fact that defendant refused to comply with her request that she be allowed to use the "orange" chair, which was otherwise available in the facility. *fn15" Although the Court agrees that a defendant is required to consider the individual and particular needs of a handicapped person, see Langon v. United States Dept. of Health and Human Servs., 749 F. Supp. 1, 6 (D.D.C. 1990), aff'd in part and rev'd in part, 959 F.2d 1053 (D.C. Cir. 1992), the mere fact that a particular request is refused is not dispositive. *fn16" While defendant was not free to simply ignore plaintiff's individual requirements and requests, neither was he required to merely accept plaintiff's preferences. See Carter v. Bennett, supra, 651 F. Supp. at 1301. Only reasonable accommodation is required. Id.17


 The Court believes that the foregoing findings and conclusions are dispositive. For the sake of completeness, however, the Court will briefly address the following. Even had the Court found that defendant failed to reasonably accommodate plaintiff's handicap, the Court finds that plaintiff failed to demonstrate a causal relationship between the forced use of the "blue" chair and plaintiff's absences from work during 1985 and 1986. While it could be concluded, viewing all the evidence in the light most favorable to plaintiff, that plaintiff's discomfort with the "blue" chair contributed to her absences during this period, it is undisputed that her alleged back problem had caused her to miss substantial amounts of work long before the "blue" chair became an issue and that she would have missed substantial periods of work during this period notwithstanding the "blue" chair. *fn18" Thus, the Court believes that plaintiff failed to demonstrate that she was entitled to back pay for the 1985 and 1986 periods in question.

 In addition, the Court finds that plaintiff is not entitled to any relief for the periods after plaintiff left the Postal Service in May 1986 and before her disability retirement in 1989. Once again, plaintiff has failed to demonstrate a causal connection between the "blue" chair and her absence. Plaintiff's blanket claim that the "blue" chair justified her indefinite refusal to return to work is rejected. Most significant in this respect is the fact that the "blue" chairs in the Rehabilitation Unit were replaced by still another set of orthopedic chairs sometime after plaintiff left the Postal Service in 1986. Once again, although their was some dispute on this issue, the Court finds that plaintiff was aware of this change. Therefore, even if the Court had found that plaintiff was entitled to some recovery based on the "blue" chair incident, the Court believes it was unreasonable for plaintiff to continue to remain away from work after learning that the "blue" chair had been replaced. Moreover, here again the record indicates that there were other causes for plaintiff's absence after 1986.

 Finally, the Court finds that plaintiff voluntarily elected disability retirement in 1989. The evidence is clear that plaintiff was not fit for duty as of 1989. *fn19" Thus, plaintiff was offered the option of disability retirement. While the Court may sympathize with plaintiff's predicament, the Postal Service was acting within its rights by informing plaintiff of her option to seek disability retirement or risk being separated from service. It follows, of course, that plaintiff's request for reinstatement is rejected.


 It is unfortunate that the noble purposes of the Rehabilitation Act are in a sense being trivialized by extensive and expensive litigation concerning two chairs which were not that different, one from the other. Nevertheless, the Court is faced with that fact situation and it must decide the matter. An Order and Judgment in favor of defendant and consistent with the foregoing is being contemporaneously issued herewith.


 United States District Judge


 March 29, 1994


 For the reasons set forth in the Opinion issued contemporaneously herewith, it is this 29th day of March, 1994,

 ORDERED that judgment be and it is hereby granted in favor of defendant; and it is further

 ORDERED that the complaint be and it is hereby DISMISSED WITH PREJUDICE.


 United States District Judge

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