Reginald D. Fedro v. Janet Reno, 1 Attorney General of the United States , 21 F.3d 1391 ( 1994 )

GRANT, District Judge.

Plaintiff, Reginald Fedro, was employed in a GS-1811 position as a Criminal Investigator/Deputy Marshal for the United States Marshals Service when he contracted hepatitis-B through on the job contacts with an infected marshal, prisoner, and/or refugee. He was placed on disability status, and in February 1986 retired from the Service with full Workers’ Compensation benefits. Mr. Fedro’s condition subsequently improved, and in April 1989, he made a request for priority placement within the Department of Justice. When the Marshals Service failed to restore him to his original position or to place him in any of the alternative positions which he sought, Mr. Fedro filed suit under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., alleging that he had been the victim of handicap discrimination. The jury ultimately returned a verdict for the defendant, and this appeal followed.

I. BACKGROUND

Mr. Fedro addressed his request for priority placement to Harry Flickinger, an Assistant Attorney General, who in turn referred Fedro to the Personnel Officer for the Marshals Service, Kenneth Holecko. Holecko advised Mr. Fedro that before he could be considered for any available positions within the Department of Justice, the Department needed a complete medical report from his personal physician, Dr. John Morrissey.

Dr. Morrissey obliged by letter dated June 5, 1989, in which he stated:

It is my opinion that [Fedro] has a mild chronic hepatitis B ... This condition has not significantly affected his health over a period of many years and in my opinion is unlikely to significantly affect it in the future.

I have reviewed the qualifications for federal marshal and believe that from a physical standpoint he meets all the qualifications. However, I believe he represents a risk to others should he be involved in an altercation which resulted in contamination of others with his blood. With the limitation you have indicated I feel he is qualified to serve as a U.S. Marshal. I would recommend he be assigned to duties where the likelihood of him being involved in a violent physical altercation is very low. (Emphasis added).

Based on Dr. Morrissey’s letter and his working knowledge of the demands of the job, Holecko concluded that Mr. Fedro could not be placed in a law enforcement job in which there would not be a likelihood of violent confrontation. He accordingly notified Mr. Fedro by letter dated July 5, 1989, that he had no right to restoration. Holecko advised Fedro, however, that the agency would make every effort to place him in a position for which he was qualified, and enclosed registration forms for the Department of Justice Priority Placement and Referral System Program.

Mr. Fedro indicated on the registration form that he would like to be placed in a full-time position at a GS-11 level as either a Criminal Investigator for the Office of Inspector General or a Criminal Investigator for the Federal Law Enforcement Training Center. Both are GS-1811 positions. He subsequently amended his request to include Washington, D.C. as one of his preferred locations, and to add a full-time GS-1810 General Investigator position to the list of positions for which he wished to be considered.³

Although Mr. Fedro was placed on the priority placement list for all full-time 1810 and 1811 positions at numerous locations, no offers were forthcoming. The Department contends that the GS-1811 positions which became available while Mr. Fedro was on the list were hot offered to him because Holecko had previously determined that physical confrontation was likely to occur in those positions and that Mr. Fedro posed an unacceptable risk of infecting others with hepatitis-B should he be involved in such a confrontation. It contends that it did not place Mr. Fedro in a full-time GS-1810 General Investigator position because under its existing staffing policies all 1810 positions were being staffed with part-time employees, were located in Arlington, Virginia, and had an entry grade level below GS-11. The Department did, however, ultimately offer Mr. Fedro a part-time 1810 job. Its offer was rejected.

Mr. Fedro did not agree with Holeeko’s decision, and registered a complaint with his Congressman, who, in turn, directed Mr. Fe-dro’s complaint and a copy of Dr. Morrissey’s letter to Raleigh Neville, a Program Manager for the Office of Personnel Management (“OPM”). In that capacity, Mr. Neville oversees a number of programs focusing on federal employee benefits, including the restoration rights of people who have been injured on the job. Mr. Neville responded to the Congressman’s inquiry by letter dated July 14, 1991, in which he wrote:

[T]he only issue here, is can Mr. Fedro safely and efficiently perform the essential duties of his job? The answer appears to be yes ...

—In our view, the likelihood of a U.S. Marshal being involved in an altercation in which there was an exchange of blood is practically nil ...

—Testing positive for hepatitis is not, by itself, disqualifying under the medical standard for U.S. Marshal positions.

—The fact that the Justice Department enrolled Mr. Fedro under its reemployment priority list (RPL) for law enforcement officer positions suggests that he should be considered fully recovered. An employee is not eligible for the RPL if he has residual disabilities that would be considered disqualifying.

Although Neville authored the letter, it was signed by Edward McHugh, Chief of the Staffing Policy Division. More than a year later, Phil Spottswood, another OPM employee, contacted three physicians regarding the risk Mr. Fedro’s condition might pose to others. Mr. Spottswood prepared written summaries of his conversation with the physicians in which he reported that all agreed that the risk of infecting other individuals as a result of a physical confrontation was slight.

Mr. Fedro filed suit against the Marshals Service and the Department of Justice in April 1992, seeking among other things reinstatement to a GS-1811 position or placement in a full-time 1810 position.⁴ He contends that he is qualified for both positions despite his disability; that the risk of infecting others with hepatitis-B is “nil”; and, that the Department was therefore required as, a matter of law under the Rehabilitation Act to place him in the first available 1811 position or, alternatively, to “restructure” the existing 1810 positions to accommodate his request for full-time employment at a GS-11 salary grade level.

In support of his claim, Mr. Fedro sought to introduce at trial Raleigh Neville’s testimony regarding Fedro’s eligibility for an 1811 position, the medical opinions obtained by Mr. Spottswood, and the testimony of Kay McWhirter, a classification specialist for the Marshals Service, and Steven Weigert, a vocational expert, concerning, the feasibility of combining two part-time 1810 positions into one full-time position. The district court concluded that Mr. Neville was not an expert within the meaning of Fed.R.Evid. 702 and that Mr. Spottswood’s summations of the medical opinions offered by others was inadmissible hearsay, and accordingly granted the defendant’s pretrial motion to exclude that evidence. The court also denied Mr. Fedro’s request to compel - production of information pertaining to tbe availability of 1810 positions. In its order of December 9, 1992, the court stated:

The Court is of the opinion that the 1810 positions are not full time and that the plaintiff is pursuing full time employment. His novel argument that the government should be required to combine several part time positions to reach a full time position does not persuade the Court that this is the relief which is envisioned by that cause of actions pursued by plaintiff.

The district court excluded the testimony of Mr. Weigert and Ms. McWhirter on similar grounds.

II. DISCUSSION

A. The 1810 Positions

Mr. Fedro asks this court to determine as a matter of law whether the Rehabilitation Act and its implementing regulations impose upon employers a duty to find a new position for employees who are no longer able to perform the essential functions of their job due to a handicap. The district court held that it did not, and we agree.

The Rehabilitation Act requires federal employers to make “affirmative efforts to overcome the disabilities caused by handicaps.” Southeastern Community College v. Davis, 442 U.S. 397, 410, 99 S.Ct. 2361, 2369, 60 L.Ed.2d 980 (1979). Federal agencies are thus required to “give full consideration to hiring, placement, and advancement of qualified mentally and physically handicapped persons ...” 29 C.F.R. § 1613.703. In furtherance of that policy federal regulations require that:

(a) An agency shall make reasonable accommodation to the known physical or mental limitation of a qualified handicapped applicant or employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program.

(b) Reasonable accommodation may include, but shall not be limited to: (1) Making facilities readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, 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. § 1613.704. (Emphasis added).

Mr. Fedro contends that the Marshals Service was required as a matter of “reasonable accommodation” under § 1613.704(b) not only to place him in a different position (the 1810 position), but to modify its staffing policies to create a new position by “restructuring” two of its existing positions. It was not.

When Mr. Fedro’s request for placement in a full-time 1810 position was denied, the law provided that “reasonable accommodation” generally did not include transfer or reassignment to a different position when an employee was no longer capable of performing the essential functions of his or her old job.⁵ See School Board of Nassau County v. Arline, 480 U.S. 273, 289 n. 19, 107 S.Ct. 1123, 1131 n. 19, 94 L.Ed.2d 307 (1987) (“[employers] are not required to find another job for an employee who is not qualified for the job he or she is doing”); Bradley v. University of Texas M.D. Anderson Cancer Center, 3 F.3d 922, 925 (5th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1071, 127 L.Ed.2d 389 (1994); Buckingham v. United States, 998 F.2d 735, 740 (9th Cir.1993); Bates v. Long Island R. Co., 997 F.2d 1028, 1035-36 (2d Cir.), cert. denied, — U.S. -, 114 S.Ct. 550, 126 L.Ed.2d 452 (1993); Guillot v. Garrett, 970 F.2d 1320, 1326-27 (4th Cir.1992); Shea v. Tisch, 870 F.2d 786, 789-90 (1st Cir.1989); Lyles v. Dept. of the Army, 864 F.2d 1581, 1583 (Fed.Cir.1989). While the Supreme Court noted in Arline that employers “cannot deny an employee alternative employment opportunities reasonably available under the employer’s existing policy,” Arline, 480 U.S. at 289 n. 19, 107 S.Ct. at 1131 n. 19, the Rehabilitation Act has never been interpreted to require an employer to create alternative employment opportunities for a handicapped employee, or to mandate preferential treatment of an employee simply because he is handicapped.

It does, however, require an employer to grant a request for accommodation where the accommodation in question is reasonable and makes it possible for handicapped employees to (1) perform the essential functions of the job in question, Arline, 480 U.S. at 289, 107 S.Ct. at 1131 n. 19; Bradley, 3 F.3d at 925; Bates, 997 F.2d at 1035-36; Shea, 870 F.2d at 789-90; Lyles, 864 F.2d at 1583, (2) pursue therapy or treatment for their handicap, Buckingham, 998 F.2d at 740, or (3) enjoy the privileges and benefits of employment equal to those enjoyed by non-handicapped employees. Buckingham, 998 F.2d at 740; McWright v. Alexander, 982 F.2d 222, 227 (7th Cir.1992). Under certain circumstances, reasonable accommodation may even include a requirement that an employer alter existing policies or procedures that it would not change for nonhandicapped employees. See Buckingham, 998 F.2d at 740; McWright, 982 F.2d at 227. In each of these cases, however, one factor remained constant: the requested accommodation was related to the individual’s handicap.

Modifying a work schedule to allow an employee to work part-time instead of full-time or to work different hours serves the purpose of the Act if the modification makes it possible for the employee to perform a job that he or she would otherwise be incapable of doing because of a handicap. The reverse, however, is not true. Changing a part-time job (or two part-time jobs) into a full-time job does nothing to accommodate Mr. Fedro’s handicap, and would not provide any privilege or benefit of employment which other non-handicapped employees were receiving. The accommodation which Mr. Fedro seeks would merely provide him with an earning potential greater than that afforded non-handicapped employees.

Mr. Fedro’s application for placement in an alternative position sought reassignment to a full-time 1810 position at a GS-11 salary level. No such positions existed under the Marshals Service existing employment policies. Although the Marshals Service was not required to consider him for positions for which he did not apply, see Dexler v. Carlin, 1986 WL 6476 (D.Conn. Mar. 20, 1986), it offered Mr. Fedro the only 1810 position that was available, a part-time position in Arlington, Virginia. Mr. Fedro rejected that offer. The Rehabilitation Act requires nothing more.

Whether Mr. Fedro’s request may have been “feasible,” as both Mr. Weigert and Ms. McWhirter were prepared to testify, was not seriously disputed. That it may have proven a better use of the taxpayer’s money to pay Mr. Fedro for work actually performed rather than paying continued disability benefits under the Workers’ Compensation Program also seems fairly apparent. We are not in a position, however, to dictate how the government might better spend its money. We hold simply that the Rehabilitation Act did not require the Marshals Service to create an employment opportunity for Mr. Fedro.

B. The 1811 Positions

Whether Mr. Fedro was qualified for a GS-1811 Criminal Investigator position was a question of fact for the jury to decide. It found that he was not. Mr. Fedro contends that the result may have been different had Mr. Neville been allowed to testify and had he been allowed to introduce Mr. Spotts-wood’s summations of medical opinions offered by the three physicians whom he contacted. A district court’s evidentiary rulings, however, are accorded a great deal of discretion, INB Banking Co. v. Iron Peddlers, Inc., 993 F.2d 1291, 1293 (7th Cir.1993), particularly in the case of expert testimony, and “will generally not be disturbed unless it is manifestly erroneous.” Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962); see also Hamling v. United States, 418 U.S. 87, 108, 94 S.Ct. 2887, 2902-03, 41 L.Ed.2d 590 (1974); Cella v. United States, 998 F.2d 418, 422-23 (7th Cir.1993); Federal Trade Commission v. Amy Travel Service, Inc., 875 F.2d 564, 572 (7th Cir.), cert. denied, 493 U.S. 954, 110 S.Ct. 366, 107 L.Ed.2d 352 (1989). We find no abuse of discretion in the present case.

29 C.F.R. § 1613.702(f) defines a “qualified handicapped person” as:

a handicapped person who, with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and, safety of the individual or others and who ... [mjeets the experience and/or education requirements of the position in question.

Mr. Fedro contends that he can perform the essential functions of a GS-1811 position despite his handicap and without endangering himself or others, and that Mr. Neville’s testimony would have proven that he was medically qualified for such a position. He contends that Neville was familiar with the medical standards applied by the Marshals Service, that it was part of his job at OPM to investigate an agency's refusal to hire an individual for medical reasons and to issue an opinion on behalf of OPM, and that he therefore qualified as an expert. The district court disagreed, and we concur with the court’s reasoning.

Mr. Neville lacked the superior knowledge, skill, experience, and education necessary to render a medical opinion as to the risks posed by hepatitis-B. His opinion was premised on Dr. Morrissey’s letter and the medical standards for federal marshals, both of which were before the jury. His testimony would therefore have been of little or no assistance. Under the circumstances, Mr. Neville would not qualify as an “expert” within the meaning of Fed.R.Evid. 702, see United States v. Devine, 787 F.2d 1086, 1088 (7th Cir.), cert. denied, 479 U.S. 848, 107 S.Ct. 170, 93 L.Ed.2d 107 (1986); United States v. Lundy, 809 F.2d 392, 395 (7th Cir.1987), nor could he be considered a “party-opponent” under Fed.R.Evid. 801(d)(2), as Mr. Fedro suggests.

Mr. Fedro’s objections to the district court’s exclusion of the medical opinions recorded by Mr. Spottswood are similarly without merit. There were several means available by which Mr. Fedro could have introduced medical evidence relating to his disease. He chose not to avail himself of those avenues, but rather attempted to fill the void with the unsworn statements obtained by Mr. Spottswood on behalf of the OPM. The district court correctly held those statements to be inadmissible hearsay.

III. CONCLUSION

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

3 . The GS-1810 General Investigator positions involved internal background investigation. The Department does not dispute the fact that the requirements of the job pose little threat of a "violent confrontation” which could pose a health threat to others.

4 . Fedro subsequently amended his complaint-to name William Barr, the United States Attorney General and head of the Department of Justice, as the sole defendant.

5 . The law has since changed. 29 C.F.R. § 1613.-704 was superseded by 29 C.F.R. § 1614.203, which became effective October 31, 1992, and which provides in pertinent part:

(g) Reassignment. When a nonprobationary employee becomes unable to perform the essential functions of his or her position even with reasonable accommodation due to a handicap, an agency shall offer to reassign the individual to a funded vacant position located in the same commuting area and serviced by the same appointing authority, and at the same grade or level, the essential functions of which the individual would be able to perform with reasonable accommodation if necessary unless the agency can demonstrate that the reassignment would impose an undue hardship on the operation of its program. In the absence of a position at the same grade or level, an offer of reassignment to a vacant position at the highest available grade or level below the employee’s current grade or level shall be required, but availability of such a vacancy shall not affect the employee’s entitlement, if any, to disability retirement pursuant to 5 U.S.C. 8337 or 5 U.S.C. 8451....

Had § 1614.203 been in effect at the time the adverse decision was made in Mr. Fedro's case, it would not have required the Marshals Service to reassign Mr. Fedro to a( full-time 1810 position. That position did not exist under the Service’s existing employment policies, and the part-time positions which were available were not in the same commuting area and were significantly below the GS-11 grade level Mr. Fedro had previously held. While § 1614.203(g) may require reassignment to a vacant lower level position when a position at the employee's previous grade or level is unavailable, it does not require reassignment to a position that does not exist. The Marshals Service offered Mr. Fedro the only position that was available under its existing policies, a part-time 1810 position in Arlington, Virginia. While Mr. Fedro understandably rejected that offer, we do not read § 1614.203(g) to require more.