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JOHNSON v. BROWN

November 5, 1998

MICHAEL JOHNSON, Plaintiff,
v.
JESSE BROWN, as SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS, Defendant.



The opinion of the court was delivered by: KENNEDY

MEMORANDUM AND ORDER

 Michael Johnson alleges that his former employer, the Department of Veterans Affairs Medical Center ("Medical Center"), failed to reasonably accommodate his disability as mandated by the Rehabilitation Act, 29 U.S.C. §§ 701 et. seq. When Johnson was unable to continue to perform his job as a janitor due to an injured back, the Medical Center placed him on light duty in its operating room "pack room." Five months later, the Medical Center initiated the process to remove Johnson and eventually terminated him. Johnson contends that the Medical Center should have accommodated him by allowing him either to work indefinitely in the pack room on a light duty assignment, or to work there in a vacant full-time position.

 Before the court is the Medical Center's motion to dismiss, or, in the alternative, for summary judgment ("motion for summary judgment"). The Medical Center contends that it would be unreasonable to allow Johnson to work on a light duty assignment indefinitely; that placing Johnson in the pack room as a permanent employee would be a promotion; and that to allow Johnson to continue working in the pack room would be an undue hardship. The Medical Center's motion for summary judgment must be denied because there is a material factual dispute as to whether accommodating Johnson in the way he proposed would have been reasonable.

 I. BACKGROUND

 Michael Johnson began work for the Medical Center in April, 1991, as a Housekeeping Aide ("janitor") in the Environmental Management Service ("EMS"). His duties included mopping, scrubbing and stripping floors, washing walls and doors, cleaning glass, and changing cubicle curtains.

 Johnson had several back injuries during his time at the Medical Center. He first suffered a job-related back injury in June, 1993, (Johnson Aff. P 8) and reinjured his back in April, 1994. His private physician diagnosed him as suffering from a herniated disc and directed him not to return to his regular work. When Johnson returned to work on May 16, 1994, the Chief of EMS temporarily placed Johnson on "light duty" in the operating room pack room to accommodate his disability.

 Johnson's light duty assignment in the pack room entailed the same responsibilities as the two full-time positions there. Although the pack room's two full-time positions carried a higher wage-grade than Johnson's janitorial position, Johnson was paid at his lower janitorial wage-grade. *fn1" There are no policies that explicitly prohibit how long an employee can remain on a light duty assignment in the pack room. (Compl. P 28.) *fn2"

 Before Johnson returned to work in May, 1994, the Chief of EMS, Jack Simms, requested that Johnson undergo a "fitness for duty examination." Simms later testified at an administrative hearing that his intent at that time was to remove Johnson. (Admin. Hr'g. I:216). He also testified that Johnson had been on light duty for a long time, although in fact, Johnson had not yet been placed on light duty. (Admin. Hr'g. I:267). The fitness for duty examination was conducted on June 8, 1994, and the examining physician concluded that Johnson was able to perform light duties only. (Admin. Hr'g. II:36-37).

 In July, 1994, the Medical Center initiated the process to remove Johnson from his janitorial position. During this time, Johnson continued to be treated for his injuries, but his condition did not improve. For its part, the Medical Center periodically reviewed whether there were any vacancies available; each time it concluded that there were "no appropriate vacancies" and that there were "no light duty vacancies for which employee qualifies." (Def. Motion, App. V) Consequently, on November 4, 1994, the Chief of EMS sent Johnson a proposed notice of separation.

 While Johnson was contesting the decision to terminate him, an employee left one of the full-time positions in the pack room, thereby creating a vacancy. Compl. P 60. Johnson asked to be placed in this position. Compl. P 64. The Medical Center did not grant Johnson's request. Instead, it terminated him on March 17, 1995. Compl. P 71.

 Also in March, 1995, two other employees began working in the pack room on light duty assignments. One was assigned to work there two days a week; the other, an employee at the same grade as Johnson, was assigned to work there three days per week. Pl. Statement of Facts P 91, Compl. P 72. The latter employee had been on light duty for over a year. The total amount of time per week that these two employees worked in the pack room was the same amount of time per week as Johnson's light duty assignment. As of July, 1996, no employee had been placed in the vacant full-time position in the pack room. Compl. P 74.

 Johnson appealed his termination and an administrative law judge denied plaintiff's Rehabilitation Act claim on July 27, 1995. That decision was upheld by the Merit Systems Protection Board. This suit followed.

 II. ANALYSIS

 Johnson has exhausted his administrative remedies. Therefore, this court makes a de novo review of his allegations. Carr v. Reno, 306 U.S. App. D.C. ...


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