Corrigan v. Perry ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHARLES R. CORRIGAN,
Plaintiff-Appellant,
v.
No. 97-1511
WILLIAM J. PERRY, Secretary,
Department of Defense,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CA-96-595-2)
Argued: October 31, 1997
Decided: March 24, 1998
Before RUSSELL* and LUTTIG, Circuit Judges, and CAMPBELL,
Senior Circuit Judge of the United States Court of Appeals for the
First Circuit, sitting by designation.
_________________________________________________________________
Affirmed by unpublished opinion. Senior Judge Campbell wrote the
opinion, in which Judge Luttig joined.
_________________________________________________________________
*Judge Russell heard oral argument in this case but died prior to the
time the decision was filed. The decision is filed by a quorum of the
panel, pursuant to 28 U.S.C. § 46(d).
COUNSEL
ARGUED: Jack Elmer Ferebee, JACK E. FEREBEE, P.C., Virginia
Beach, Virginia, for Appellant. George Maralan Kelley, III, Assistant
United States Attorney, UNITED STATES ATTORNEY'S OFFICE,
Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
CAMPBELL, Senior Circuit Judge:
Charles R. Corrigan ("Corrigan") brought this action against Wil-
liam J. Perry, Secretary, Department of Defense (the"Department"),
alleging that the Department discriminated against him in violation of
the Rehabilitation Act of 1973 (the "Rehabilitation Act" or "the Act"),
29 U.S.C. § 701 et seq. (1985 & Supp. 1997). Corrigan claimed that,
although he was disabled and unable properly to perform his job at
the Department, the Department refused to provide him with a "rea-
sonable accommodation." On April 10, 1997, the district court
awarded summary judgment in favor of the Department, holding that
Corrigan had failed to demonstrate that he had a disability. Corrigan
appealed. We affirm.
I. BACKGROUND
Because we are reviewing the district court's grant of a motion for
summary judgment, we recite the facts in the light most favorable to
the party opposing the motion, Corrigan. See Kimmel v. Seven-Up
Bottling Co. of Elkton, Inc., 993 F.2d 410, 412 (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
Since 1988, Corrigan has held the position of Material Handler
Work Leader. His job description called for him to lead five to ten
2
warehouse workers. His duties included, inter alia: passing instruc-
tions from his supervisor to the workers; getting the work started;
working along with the other employees and setting the pace; training
new employees; demonstrating proper work methods; obtaining the
necessary materials and tools; receiving issue documents; receiving,
storing, and issuing items; and checking shelf-life dates and damaged
packages to ensure that the items were fit for use. In addition, the job
description required the holder of Corrigan's position to lift items
weighing up to seventy pounds and to be physically capable of oper-
ating industrial equipment.
As a result of on-the-job injuries that occurred between 1986 and
1988, Corrigan experienced back and neck pain. On April 24, 1992,
Corrigan underwent surgery for the fusion of two cervical discs. His
surgeon advised him to avoid lifting items weighing more than
twenty-five pounds and to refrain from operating a forklift. Corrigan
was placed on "light duty" for a short time after his surgery, but
remained in his position as Work Leader. Even with his limitations,
Corrigan received satisfactory performance reviews from his supervi-
sors.
In 1992, the Department began to downsize its workforce: employ-
ees who left or retired were not being replaced and no new positions
were being created. Corrigan's supervisors told him that, in view of
the diminishing number of positions available, a formal request for an
accommodation might result in adverse consequences such as losing
his job, being forced into taking a lower-paying job, or being forced
to retire.
On February 9, 1993, Corrigan underwent additional neck surgery
for the fusion of cervical disks. Corrigan's doctor permitted him to
return to work on March 8, 1993, but cautioned that Corrigan should
not lift more than twenty-five pounds, not lift items above shoulder
level or extend his head and neck frequently, and not operate a fork-
lift. Despite these limitations, Corrigan continued in his position as a
Work Leader.
Corrigan contends that his supervisors assigned him tasks making
it necessary for him to disregard his physician's medical restrictions.
Corrigan concedes, however, that his supervisors never insisted that
3
he should do things his doctors disallowed: when he reminded them
that a task exceeded his restrictions, they would suggest that he get
someone to help or do only what he could do safely. On the occasions
when Corrigan refused to move materials that exceeded his limita-
tions, Corrigan's supervisor moved the materials himself. Corrigan
continued to receive satisfactory performance reviews.
Corrigan's physical condition deteriorated after his return to work.
On October 28, 1993, after several requests for an accommodation
that would not require him to violate his medical limitations, Corrigan
was given a written light duty assignment. This assignment was back-
dated to March 8, 1993, and was scheduled to end in January 1994.
On November 9, 1993, Corrigan submitted a form entitled "Re-
quest for Special Benefits for Health Reasons," asking that he be
placed on limited duty for a period not to exceed thirty days. Corrigan
admits that the accommodation that he requested via this form
described the work that he had been doing since the time of his first
surgery and that he continued to do until he left his job in 1995.
This form also contained a question, directed at Corrigan's supervi-
sors, requesting information on what efforts the supervisors had
"made to accommodate [Corrigan] (including temporary accommoda-
tions, i.e., light duty[)]." In response, Corrigan's supervisors wrote:
Employee continue[s] to do all phases of his job
d[e]scription without the driving part & heavy lifting. Note
employee wants to go back to full duty[, b]ut I won't let him
until he get[s] the Doctor release.
The Department did not fill out Part IV of the form, however, which
is entitled "Agency Certification of Accommodation Efforts."
Corrigan's doctor continued the medical restrictions on Corrigan's
ability to work in an April 22, 1994 letter. In June 1994, the Depart-
ment asked Corrigan's doctor whether Corrigan's condition was
permanent.1 Corrigan's doctor replied that it was. Although the
_________________________________________________________________
1 Corrigan notes that, presumably in connection with writing the letter
to Corrigan's doctor, a human resources officer asked Corrigan's super-
4
Department had a policy of initiating a formal accommodation proce-
dure if an employee's limitations were permanent, no such procedure
was initiated for Corrigan.2
Corrigan asserts that he submitted a written request for a permanent
accommodation to the employee relations specialist in the Depart-
ment's Human Resources office shortly after finding out that his con-
dition was permanent. It appears that Corrigan is referring to the form
that he submitted on or about June 26, 1995, over a year after his doc-
tor indicated that his condition was permanent and several months
after he had walked off his job.3 Corrigan's doctor never recom-
mended that Corrigan be reassigned to another position.
In September of 1994, Corrigan was transferred to the Naval Ship-
yard F-Condition Warehouse. Corrigan was the highest ranking
employee at the shipyard site. Corrigan's third-line supervisor testi-
fied that, although this transfer was not a medical accommodation, he
transferred Corrigan to the shipyard because the work was lighter and
because Corrigan was dependable and had good computer skills.4
_________________________________________________________________
visors whether Corrigan was on informal light duty status. In response,
the supervisors "didn't indicate . . . that they were doing it [o]n an infor-
mal basis. They just indicated [Corrigan] was essentially performing his
duties and they were able to basically get him to do his work."
2 Corrigan's third-line supervisor testified that he did not remember
being advised that Corrigan's condition was permanent.
3 The evidence indicates that Corrigan did not submit a written request
for a permanent accommodation until after he left the job. In a letter
dated May 15, 1995, the Department informed Corrigan that he had
never filed the written documentation required to obtain a medical
accommodation with any of his supervisors or the civilian personnel
department. Corrigan responded via a letter dated June 27, 1995, in
which he asserted that "[n]o supervisor or any one in personnel told me
that I had to fill out certain forms for an accommodation. Why did they
not tell me this 3 years ago?" Other than the June 26, 1995 request, the
record contains no written requests from Corrigan for a permanent
accommodation.
4 Another worker overheard a supervisor claiming that Corrigan had
been transferred to the shipyard as a medical accommodation.
5
In the course of his work at the shipyard, Corrigan lifted heavy
boxes and operated industrial machinery. One of Corrigan's co-
workers testified that it was necessary for Corrigan to exceed his
medical limitations in order get the work done in a timely manner.
Corrigan testified, however, that he was never ordered by a supervisor
to work outside of his medical restrictions.
On February 7, 1995, Corrigan's immediate supervisor adminis-
tered Corrigan's mid-year review. When Corrigan indicated his belief
that he was on light duty, the supervisor expressed surprise. The
supervisor called a halt to the meeting and consulted with Corrigan's
third-line supervisor, who told Corrigan's immediate supervisor that
Corrigan was "not officially on light duty," but that Corrigan was
"there at the shipyard so he can do what he can do." Corrigan's imme-
diate supervisor was instructed to "grade [Corrigan] on what he does."
When the mid-year performance review resumed, Corrigan's
supervisor told Corrigan that he was not officially on light duty. Cor-
rigan became extremely distraught. Corrigan's supervisor said that
"they were accommodating [Corrigan] over at the Shipyard so [he]
could be as productive as possible with [his] disability." Corrigan
walked out of the mid-year review and never returned to his job.
Corrigan immediately descended into a deep depression that led to
his hospitalization for psychiatric treatment. He submitted a request
for a permanent accommodation on June 26, 1995, but the Depart-
ment has not acted on this request because "of the medical reality
(which apparently continues through to today), that there can be no
accommodation of one who cannot do any work." Appellee's Brief at
19.
In October 1996, the Department administratively terminated Cor-
rigan. As a result of Corrigan's workers' compensation claims, Corri-
gan has received since February 13, 1995, wage benefits in the
amount of 3/4 of his average weekly salary and payment of his medi-
cal bills. Corrigan remains on total disability.
On June 11, 1996, Corrigan brought suit in the federal district court
alleging that the Department failed to provide a reasonable accommo-
dation for a known disability. The Department filed a motion for sum-
6
mary judgment on February 25, 1996, in which it alleged: (1) that
Corrigan's inability to lift more than twenty-five pounds is not a dis-
ability as a matter of law under Williams v. Channel Master Satellite
Systems, Inc., 101 F.3d 346 (4th Cir. 1996); and (2) that the Depart-
ment provided a reasonable accommodation. The district court
granted the Department's motion for summary judgment by memo-
randum order relying principally on Corrigan's failure to establish
that he was disabled, in the sense of having a physical impairment
that substantially limits one or more of his major life activities, to wit,
working. Cf. 29 U.S.C. § 706(8)(B). The court noted that the Williams
court had held "as a matter of law, that a twenty-five pound lifting
limitation . . . does not constitute a significant restriction on one's
ability to lift, work, or perform any other major life activity."
Williams, 101 F.3d at 349 (citation omitted). The court also held that
Corrigan had not submitted evidence regarding the factors discussed
in Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir. 1986), namely he did
not provide proof that his particular impairment was a barrier to
employment generally, and that therefore summary judgment was
appropriate. See Bolton v. Scrivner, Inc., 36 F.3d 939, 944 (10th Cir.
1994) (affirming a grant of summary judgment against a party who
failed to produce any evidence of "a significant restriction in his ``abil-
ity to perform either a class of jobs or a broad range of jobs in various
classes'" (quoting 29 C.F.R. § 1630.2(j)(3)(i))).
Because of its finding that Corrigan was not an individual with a
disability, the district court declined to rule on whether the employer
here had made reasonable efforts to accommodate Corrigan's medical
restrictions. The court nonetheless, said "it[was] inclined to agree . . .
that the Department had provided reasonable accommodation by
affording plaintiff the opportunity to assign certain work to his subor-
dinates."
II. STANDARD OF REVIEW
We review a district court's grant of summary judgment de novo.
See Miller v. FDIC, 906 F.2d 972, 974 (4th Cir. 1990) (citations omit-
ted). We apply the same standard as the district court: whether "the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
7
a judgment as a matter of law." Fed. R. Civ. P. 56(c). In addition, we
interpret the record in the light most favorable to the nonmoving party
for purposes of evaluating the appropriateness of summary judgment.
See Kimmel, 993 F.2d at 412 (citing Anderson , 477 U.S. at 255).
Nevertheless, summary judgment is appropriately awarded against
a party who "fails to make a showing sufficient to establish the exis-
tence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial." Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). Further, a party "cannot create a genuine
issue of material fact through mere speculation or the building of one
inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.
1985) (citation omitted). Disputed facts that do not affect the outcome
of the suit do not preclude summary judgment. See Anderson, 477
U.S. at 248. We will affirm a grant of summary judgment if the evi-
dence "is so one-sided that one party must prevail as a matter of law."
Id. at 252. Lastly, we need not constrain ourselves to the grounds
relied upon by the district court, but may affirm if we perceive viable
alternative grounds for summary judgment. See Charbonnages de
France v. Smith, 597 F.2d 406, 416 & n.9 (4th Cir. 1979).
III. DISCUSSION
The Rehabilitation Act provides that "[n]o otherwise qualified indi-
vidual with a disability in the United States . . . shall, solely by reason
of her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination . . . under any
program or activity conducted by any Executive agency." 29 U.S.C.
§ 794(a) (Supp. 1997). The Act imposes on agencies a duty to provide
"reasonable accommodations" to a disabled employee who could per-
form a job's essential functions with such accommodations, unless the
provision of accommodations would place an "undue hardship" on the
agency. 42 U.S.C. § 12112(b)(5)(A).5
_________________________________________________________________
5 This principle is stated most clearly in the Americans with Disabilities
Act ("ADA"), 42 U.S.C. § 12101 et seq., but also appears in the appro-
priate EEOC Regulations. See 29 C.F.R.§§ 1614.203(c)(1),
1614.102(a)(8). We recently noted that, whether an employee sues the
federal government under the Rehabilitation Act or a private employer
under the ADA, the "substantive standards for determining liability are
the same." Myers v. Hose, 50 F.3d 278, 281 (4th Cir. 1995) (citing 29
U.S.C. § 794(d)).
8
A. Was Corrigan Disabled?
The threshold requirement for coverage under the Act is that the
plaintiff be an "otherwise qualified individual with a disability." 29
U.S.C. § 794(a); see also Gupton v. Virginia, 14 F.3d 203, 205 & n.2
(4th Cir. 1994). The Act defines the term "individual with a disabil-
ity" as "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(8)(B). EEOC Regu-
lations state that the term "major life activities" refers to basic func-
tions, such as "caring for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working." 29
C.F.R. § 1630.2(i) (1996). A plaintiff must demonstrate that, due to
a physical or mental impairment, one of these major life activities is
"substantially limit[ed]," which means that the plaintiff is:
(i) Unable to perform a major life activity that the average
person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or
duration under which an individual can perform a par-
ticular major life activity as compared to the condition,
manner, or duration under which the average person in
the general population can perform that same major
life activity.
29 U.S.C. § 1630.2(j). Thus, the Act covers an individual only if that
individual is unable to perform or significantly restricted in his ability
to perform a major life function compared to the average person.
The parties agree that at relevant times Corrigan was subject to
several medical restrictions: he should not lift more than twenty-five
pounds, he should not work above his head or extend his head and
neck frequently, and he should not drive a forklift. Corrigan contends
that these limitations rose to the level of a "disability" for purposes
of the Rehabilitation Act.
Corrigan's claim runs squarely into this Circuit's recent Williams
9
holding, supra. This court held there that a plaintiff who was told by
her doctor to refrain from lifting more than twenty-five pounds as
well as to avoid pushing or pulling heavy objects was not disabled
under the ADA. See Williams, 101 F.3d at 349. The opinion in
Williams reflected the Act's exclusion of less serious impairments
from the category of disabilities. See 29 C.F.R. § 1630.2(j) app.
("Many impairments do not impact an individual's life to the degree
that they constitute disabling impairments"). 6 The Act protects only
people whose impairments are so severe that they"significantly
restrict[ ]" a person's ability to perform major life activities when
compared to the abilities of "the average person in the general popula-
tion." 29 C.F.R. § 1630.2(j)(ii). In Williams, we held, "as a matter of
law, that a twenty-five pound lifting limitation-- particularly when
compared to an average person's abilities -- does not constitute a sig-
nificant restriction on one's ability to lift, work, or perform any other
major life activity." Williams, 101 F.3d at 349 (citation omitted)
(emphasis added).
Corrigan argues that his medical restrictions are more severe than
Williams's limitations because he may not operate a forklift or work
frequently above his head. Like the district court, we conclude that
these additional restrictions are insufficient to remove Corrigan from
the rule laid down in Williams. Employees with basic lifting restric-
tions often have associated limitations that do not materially alter the
character of the limitation. Williams herself, besides the twenty-five
pound lifting limitation, could not push or pull heavy objects. See also
Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1207 (8th Cir. 1997)
(denying disability status to a radiology technician who could not lift
more than twenty-five pounds or push heavy equipment); McKay v.
Toyota Motor Mfg., U.S.A., 110 F.3d 369, 373 (6th Cir. 1997) (deny-
ing disability status to a plaintiff who could not lift more than twenty
pounds, use vibrating equipment, or make repetitive use of her right
hand); Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir. 1995)
_________________________________________________________________
6 The EEOC interpretive guidelines (the "EEOC Guidelines"), in which
the statement regarding less serious impairments appears, are not binding
on this court but "do constitute a body of experience and informed judg-
ment to which courts and litigants may properly resort for guidance."
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (internal quo-
tation marks and citations omitted).
10
(denying disability status to a plaintiff who could not lift more than
twenty pounds, work in a cold environment, or work with meat prod-
ucts).
At some point, the question whether additional restrictions com-
bine with a lifting restriction to form a disability becomes an question
of fact. Cf. 29 C.F.R. § 1630.2(j) app. ("[A]n individual who has a
back condition that prevents the individual from performing any
heavy labor job would be substantially limited in the major life activ-
ity of working because the individual's impairment eliminates his or
her ability to perform a class of jobs."). Corrigan, however, has not
tendered any evidence on the effects of the lifting and associated
restrictions upon his eligibility for other jobs that may be available.
The district court laid particular emphasis on this, noting his failure
to provide evidence on three factors set out in Forrisi, 794 F.2d at
933, to wit, "[1] the number and type of jobs from which the impaired
individual is disqualified, [2] the geographical area to which the indi-
vidual has reasonable access, and [3] the individual's job expectations
and training." See also Bolton, 36 F.3d at 943-44.
Accordingly, both because of our holding in Williams relative to
the inability to lift more than twenty-five pounds, and because of Cor-
rigan's failure to present any evidence as to how his restrictions may
have affected his eligibility for other jobs, we find that Corrigan did
not create a genuine issue of material fact concerning whether he was
disabled under the Act, making summary judgment appropriate. See
Williams, 101 F.3d at 350.
B. Was Corrigan Denied a Reasonable Accommodation?
Besides not establishing that he was disabled within the Act, Corri-
gan's case has another flaw: Corrigan's tendered evidence was insuf-
ficient to show that he requested and was then denied a reasonable
accommodation.
This latter point may seem surplus given Corrigan's failure to
establish disability. We discuss it, however, as it rebuts a contention
that Corrigan raised in his complaint and now mentions on appeal,
namely that, even if not disabled, he was wrongfully treated because
the Department perceived he was disabled and discriminated against
11
him. See 29 U.S.C. § 706(8)(B) (including within the definition of
"individual with a disability" those who are"regarded as" having a
disability). Corrigan asserts that the district court improperly decided
this issue by entering summary judgment without hearing and oppor-
tunity for argument. Assuming arguendo that the district court erred,
and assuming also that Corrigan has preserved this issue, any error
below is rendered harmless by Corrigan's failure to establish that he
was denied a reasonable accommodation. We turn to that matter.
The EEOC Guidelines place the burden of requesting an accommo-
dation on the disabled employee. See 29 C.F.R. § 1630.9 app. ("In
general, . . . it is the responsibility of the individual with a disability
to inform the employer that an accommodation is needed."). The par-
ties dispute whether the evidence indicates that Corrigan made an
appropriate request for an accommodation. Corrigan contends that he
repeatedly alerted his supervisors informally of his need for an
accommodation; the Department argues that Corrigan failed to take
any formal steps whatever to ask for an accommodation by reassign-
ment for fear that he would be downgraded. The record is clear that
Corrigan never filed a written request for a permanent accommoda-
tion with the Department's personnel office until after he had walked
off of the job and was no longer able to work. Although Corrigan says
he did not realize that he needed to submit a written request in order
to obtain an accommodation, he had submitted in 1993 a request for
a temporary accommodation on the same form that he would have
used to request a permanent accommodation.
We need not decide, however, whether Corrigan's alleged informal
complaints to his supervisors suffice to create an issue of fact over
whether Corrigan submitted an appropriate request for an accommo-
dation. Even if Corrigan's statements to his supervisors can qualify
as proper requests for an accommodation, the record compels the con-
clusion that the Department's informal policy allowing Corrigan to
work within his medical limitations satisfied the legal requirement
that the Department provide a reasonable accommodation.
The EEOC Regulations accompanying the Rehabilitation Act
require an agency to "make reasonable accommodation to the known
physical or mental limitations of an applicant or employee who is a
qualified individual with handicaps unless the agency can demon-
12
strate that the accommodation would impose an undue hardship on
the operations of its program." 29 C.F.R. § 1614.203(c)(1); see also
29 C.F.R. § 1614.102(a)(8) (same, in the Regulations that govern
Federal Sector Equal Employment Opportunity). According to the
Regulations, a reasonable accommodation may include, but is not
limited to:
(i) Making facilities readily accessible to and usable by
individuals with handicaps; and
(ii) Job restructuring, part-time or modified work sched-
ules, acquisition or modification of equipment or
devices, appropriate adjustment or modification of
examinations, the provision of readers and interpreters,
and other similar actions.
29 C.F.R. § 1614.203(c)(2).
An employer need not alter the "essential functions" of a job in
order to accommodate a disabled employee. 29 C.F.R.§ 1630.2(o)
app. "Essential functions" are "the fundamental job duties of the
employment position the individual with a disability holds or desires."7
29 C.F.R. § 1630.2(n). If a disabled person cannot perform a job's
essential functions even with a reasonable accommodation, the Regu-
lations establish a policy in favor of reassignment, including reassign-
ment to a lower grade position if necessary. See 29 C.F.R.
§ 1614.203(g); see also § 1614.102(a)(9).
By tailoring Corrigan's job responsibilities to fit his medical
restrictions, the Department complied with the demands of the Act.
The Department, to be sure, may have gone further than required in
_________________________________________________________________
7 Whether a function is "essential" to a specific job is a fact-specific
inquiry; the EEOC Regulations list a number of considerations that may
indicate whether a function qualifies as essential. See 29 C.F.R.
§ 1630.2(n). We need not decide whether lifting and operating a forklift
were essential to Corrigan's position as a work leader because neither
party has raised the issue. Even assuming they could be considered
essential, Corrigan's supervisors, by waiving them in his case, could
create a job-restructuring constituting an accommodation.
13
its efforts to accommodate Corrigan in that particular position. By
relieving Corrigan of the necessity to lift and operate a forklift, the
Department arguably abrogated several of the essential functions of
a work leader. Still, the undisputed evidence establishes that, although
Corrigan remained in a position that demanded on paper that he
exceed his medical restrictions, his supervisors never ordered him to
do so. Rather, Corrigan was told to respect his medical limitations and
was evaluated on the basis of the work that he could actually perform,
not on his job description. Under this informal job restructuring, Cor-
rigan received consistently satisfactory performance reviews. In pur-
suing this policy, the Department satisfied its duties under the law.
Corrigan argues that he was denied an effective accommodation,
and that under the policies discussed above he should have been given
a job transfer, even though he himself took no formal steps to request
one. We cannot agree.
First, there is no evidence that the Department's accommodation
was ineffective. Although Corrigan has submitted affidavits to sup-
port his assertion that he was compelled to exceed his abilities, he is
unable to indicate the source of that compulsion. Corrigan received
consistently satisfactory performance ratings and admits that he was
never told to work outside of his limitations by any other Department
employee or supervisor. When Corrigan exceeded his medical limita-
tions, it was because he held himself to a standard that his doctors had
forbidden and his supervisors did not demand. Corrigan's refusal to
accept the conditions of an accommodation did not impose an addi-
tional duty upon the employer. Cf. 29 C.F.R.§ 1630.9(d) (providing
that if a disabled employee refuses to accept a reasonable accommo-
dation, that employee is no longer considered to be"a qualified indi-
vidual with a disability"). Corrigan admitted that the duties that he
performed during the entire period of his employ following his first
surgery conformed to the accommodation that he had in mind. On
these facts, and given that and other admissions, we cannot say that
the Department's chosen if informal accommodation was ineffective.
Second, even assuming Corrigan's requests to supervisors for an
accommodation can be viewed as requesting transfer to another job,
he was not entitled to insist upon a transfer in preference to the
restructuring of his current job. Although an employee's preference
14
for one accommodation over another must be taken into account, "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." 29 C.F.R. § 1630.9 app. Indeed, the accommodation cho-
sen by the employer need not be the "``best' accommodation possible,
so long as it is sufficient to meet the job-related needs of the individ-
ual being accommodated." Id. Any reasonable accommodation by an
agency is sufficient to satisfy its legal obligation. See Schmidt v.
Methodist Hosp. of Indiana, Inc., 89 F.3d 342, 344-45 (7th Cir. 1996).
Thus, Corrigan would not have been entitled to insist upon a particu-
lar accommodation, such as reassignment, even had he made this
desire clear.
We hold that the undisputed facts in this record are insufficient to
establish that Corrigan was disabled under the Rehabilitation Act. We
further hold that, even if the Department perceived Corrigan to be dis-
abled, the record indicates that the Department provided Corrigan
with a reasonable accommodation.
AFFIRMED
15