A federal judge in Pennsylvania has ruled that a Department of Veterans Affairs employee was not a “qualified individual with a disability,” under the Rehabilitation Act because the employee refused the agency’s offer of (what the judge found to be) a “reasonable” accommodation. Mastronicola v. Principi, WL 3098763, W.D.Pa. (October 30, 2006). Because the employee rejected a reasonable accommodation that would enable him to perform the essential functions of the position, and could not, because of that rejection, perform the essential functions of the position, the individual is not qualified, said the judge, quoting the EEOC regulations at 29 CFR §1630.9(d). Thus, the employee’s claim against the agency failed.

The VA employee lost his left eye and injured his right eye. He worked a 15-hour week as a VA food service worker. The VA transferred him from the day shift to the evening shift, necessitating the employee’s request for accommodation. The employee asked to be returned to the day shift, because public transportation was not available at night, and this disability prevented him from walking home in the dark. The VA refused, stating that there was no 15-hour day shift position available, but offered him either a 12-hour a week position as a housekeeping aid, or a 30-hour a week position as a food service worker. Mastronicola rejected both offers, explaining that he could not take the 30-hour a week position because it would result in the reduction of his Social Security benefits.

On summary judgment, the judge found that Mastronicola was an individual with a disability under the Rehabilitation Act because he was substantially limited in the major life activity of seeing. However, the judge went on to say that Mastronicola was not a “qualified individual with a disability,” because he refused the agency’s offer of a “reasonable” accommodation.

In finding that the offers of accommodation by the agency were “reasonable,” the judge held that that 15-hour a week day shift positions no longer existed, but even if they did, the agency had no obligation to offer the employee such a position as an accommodation as long as the agency offered him another reasonable accommodation. The 30-hour a week position was reasonable, said the judge, because it eliminated the problem with transportation posed by the evening shift, and there was no evidence that the employee was physically incapable of working a 30 hours a week. Finally, the court noted that the agency had no obligation to make sure the employee remained “disabled” for purposes of the Social Security Act. Social Security benefits, noted the judge, do not constitute the kind of job-related payments and benefits whose material decrease would render an accommodation unreasonable.

The lessons to learn from this case are many. First, even as to the issue of disability, the VA challenged that loss of one eye and damage to the other did not make the employee disabled. And, as the court noted, the Supreme Court has said that the Americans with Disabilities Act requires monocular individuals, like others claiming the act’s protection, to prove a disability by offering evidence that the extent of the limitation in terms of their own experience, as in loss of depth perception and visual field, is substantial. Accordingly, it is important to remember that it always the burden of the employee to prove that s/he meets the definition of “disabled” under the Rehabilitation Act and/or the ADA.

Second, it is important to remember when seeking reasonable accommodation, that the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide. The Supreme Court has held that an employee cannot make his employer provide a specific accommodation if another reasonable accommodation is provided instead. The key to this analysis would be whether the accommodation offered by the employer is first reasonable, and then second “effective.” If the answer to both questions is yes, the employee may lose all protection under the ADA if he or she refuses such accommodation and therefore becomes unable to perform his or her job duties.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.fedweek.com/pub/index.php