TABLE OF CONTENTS TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . iii PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . 4 I. REORGANIZATION OF PACKAGING DEPARTMENT IN 1982. 4 II. REASSIGNMENT OF PLAINTIFFS IN 1983. . . . . . . 5 III. DISCONTINUATION OF ACCOMMODATIONS FOR APPELLEES IN 1985 . . . . . . . . . . . . . . . . . . . 6 IV. INJUNCTION OF REMOVAL OF HANDICAPPED APPELLEES IN 1986 . . . . . . . . . . . . . . . . . . . 7 V. VIOLATIONS OF THE REHABILITATION ACT ESTABLISHED AT TRIAL. . . . . . . . . . . . . . . . . . . 8 VI. SPECIALIST HIRED TO OVERSEE IMPLEMENTATION OF ACCOMMODATIONS . . . . . . . . . . . . . . 9 VII. FINAL REPORT RECOMMENDS REASSIGNMENT OF APPELLEES IN 1990. . . . . . . . . . . . . . . . . 10 VIII. HISTORY OF DISCRIMINATION OF HANDICAPPED MINT EMPLOYEES. . . . . . . . . . . . . . . . 11 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 12 I. MILDRED MILLER IS AN "OTHERWISE QUALIFIED HANDICAPPED PERSON" WITHIN THE MEANING OF THE REHABILITATION ACT. 12 A. MILDRED MILLER IS A "HANDICAPPED PERSON" WITHIN THE MEANING OF 29 U.S.C.7103(a)(3).. . . . . 12 B. MILDRED MILLER IS AND HAS BEEN QUALIFIED FOR THE COIN CHECKER WG-02 POSITION IN QUESTION DURING HER TWENTY-FOUR YEARS OF EMPLOYMENT. . . . . 13 C. MILDRED MILLER CAN PERFORM THE ESSENTIAL FUNC- TIONS OF COIN CHECKER WG-02 WITH OR WITHOUT ACCOMMODATION. . . . . . . . . . . . . . 14 II. THE GOVERNMENT HAS NOT ESTABLISHED THAT UNDUE HARDSHIP WOULD RESULT FROM ACCOMMODATION OF MILDRED MILLER. 18 A. SECTION 501 REQUIRES FEDERAL AGENCIES TO BE MODEL EMPLOYERS OF THE HANDICAPPED.. . . . . . 18 B. THE FULLER v. FRANK TEST FOR PROVING UNDUE BURDEN WAS NOT MET.. . . . . . . . . . . 19 C. EVEN THE SECTION 504 STANDARD, AS DEFINED IN LUCERO v. HART, REQUIRES EMPLOYERS TO TRY TO ACCOMMODATE HANDICAPPED PERSON BY FINDING THEM OTHER JOBS. 22 III. "UNDUE HARDSHIP" MUST BE PROVEN BY GOVERNMENT. . . 26 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . 28 TABLE OF AUTHORITIES CASES Page Ackerman v. Western Electric Co., 48 FEP Cases 1354 (ND Cal 1986), aff'd, 860 F.2d 1514 (9th Cir. 1988). 26 AFGE Local 51 et al v. Baker, Secretary of Treasury, 40 FEP Cases 395 (ND Cal 1986) . . . . . . . . .2, 7, 8 AFGE Local 51 et al v. Baker, Secretary of Treasury, 677 F. Supp. 636, 43 FEP Cases 1393 (ND Cal 1987)3, 5, 6, 8, 9, 12, 26 AFGE Local 51 et al. v. Secretary of the Treasury, 9th Cir. No. 90-15702, July 2, 1991 . . . . . . . 1, 2 Bentivegna v. Department of Labor, (9th Cir. 1982) 694 F.2d 619 . . . . . . . . . . . . . . . . . . . . 15 Carter v. Bennett, 46 FEP Cases 1 (DC Cir. 1988). . . . . 27 Dale A. Nuanez v. Secretary of Treasury, DC Colo.No. 86-M-2373, November 22, 1988 . . . . . . 11 Davis v. U.S. Postal Service, 675 F. Supp. 225 (S.D. Ala. 1990) . . . . . . . . . . . . . . . . . . 23 Ellis v. USPS, 37 MSPR 503, 88 FMSR 5255 (1988) . . . . . 25 Fuller v. Frank, (9th Cir. 1990) 916 F.2d 558, 54 FEP Cases 723 . . . . . . . . . . . . . . . . 20, 21 Guinn v. Bolger, 598 F. Supp. 196, 36 FEP Cases 506 (DC DC 1984) . . . . . . . . . . . . . . . . . . . . 15 Harrison v. Marsh, 46 FEP Cases 977 (WD Mo. 1988) . . . . 27 Ignacio v. U.S.Postal Service, EEOC Pet. No. 03840005, (Sept. 4, 1984), aff'd 30 MSPR 471 (Special Panel)(1986). . . . . . . . . . . . . . . . 25 Lucero v. Hart, (9th Cir. 1990) 915 F.2d 1367 . . . . . . 22 Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985). . . . 19 Nelson v. Thornburg, (N.D. Cal. 1983) 567 F.Supp 269, 32 FEP Cases 838 . . . . . . . . . . . . . . . . . . 27 Nisperos v. Buck, 720 F. Supp 1424 (ND Cal 1989). . . . . 15 Prewitt v. USPS, (5th Cir. 1981) 662 F.2d 292, 27 FEP Cases 1043. . . . . . . . . . . . . . . . 19, 27 Rosiak v. Deparment of Army, 46 FEP Cases 989 (MD Pn 1987) . . . . . . . . . . . . . . . . . . 16, 27 Ryan v. FDIC, 565 F.2d 762 (DC Cir. 1977). . . . . . . . 24 School Board of Nassau County, Florida v. Arline, 480 U.S. 273, 107 S. Ct. 1123, 43 FEP Cases 81 (1987) . . . . . . . . . . . . . 22, 25 Simon v. St. Louis County, (8th Cir 1981) 656 F.2d 316 . . . . . . . . . . . . . . . . . . . . 15 Southeastern Community College v. Davis, 442 U.S. 397 (1979). . . . . . . . . . . . . . . 16, 23 Treadwell v Alexander, (11th Cir. 1983) 707 F.2d 473, 32 FEP Cases 62. . . . . . . . . . . . . . . . . . . 27 Wilson v. DHHS, __ F.2d ___ (Fed. Cir. 1985). . . . . . . 16 STATUTES Civil Service Reform Act of 1978, 5 U.S.C. 4304(b)(1). . . . . . . . . . . . . . . . . 16 The Rehabilitation Act of 1973, as amended 29 U.S.C. 791 et seq . . . . . . . . . . . . . . . 1, 7 Section 501. . . . . . . . . . . . . . . . . 18, 19, 24 Section 504. . . . . . . . . . . . . . . . . 19, 22, 25 REGULATIONS EEOC Regulations Subpart G - Prohibition Against Discrimination Because of a Physical or Mental Handicap 29 C.F.R. 1613.701 . . . . . . . . . . . . . . . . . .8 29 C.F.R. 1613.702(f). . . . . . . . . . . . . . . . 14 29 C.F.R. 1613.703 . . . . . . . . . . . . . . . . . 18 29 C.F.R. 1613.704 . . . . . . . . . . . .8, 24, 26, 27 LEGISLATIVE HISTORY Legislative History of the Rehabilitation Act of 1973 S. Rep. No. 93-318, 93rd Congr., 1st Sess. at 49 (1973), U.S. Code Cong. & Admin. News 1973 . . . . . 19 TREATISES AND ARTICLES OPM, Handbook on Reasonable Accommodation and Employing the Handicapped (1981). . . . . . . . . . . .9 MARY DRYOVAGE Law Offices of Mary Dryovage 3929 Twenty Fourth Street San Francisco, CA 94114 Telephone: (415) 821-1541 JOSEPH F. HENDERSON American Federation of Government Employees, AFL-CIO 80 F Street, NW Washington, DC 20001 Telephone: (202) 737-8700 DEBORAH KAPLAN World Institute on Disability 510 16TH Street, First Floor Oakland, California 94611 Telephone: (415) 486-8314 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA AMERICAN FEDERATION OF GOVERN- ) MENT EMPLOYEES, LOCAL 51, ANNA ) WILLIAMS, ROBERTA BUTLER, ELAINE ) MC KINSEY, MILDRED MILLER AND ) No. C-85-9196-SC JOHN TURRI, ) (On remand) ) Plaintiffs, ) PLAINTIFFS' MEMORANDUM v. ) IN SUPPORT OF MOTION ) FINAL JUDGMENT AND JAMES BAKER, III, ) PERMANENT INJUNCTION SECRETARY OF THE DEPARTMENT OF ) TREASURY, ) Date: November 1, 1991 ) Time: 10:00 a.m. Defendant. ) ) Pursuant to Section 501 of the Rehabilitation Act of 1973, as amended 29 U.S.C. 791 and the July 2, 1991 decision of the U.S. Court of Appeals of the Ninth Circuit remanding this action, Exhibit , plaintiffs seek an order granting final judgment and a permanent injunction prohibiting defendant from removing plaintiffs from their positions for unsatisfactory performance. PROCEDURAL HISTORY Plaintiffs Roberta Butler, Mildred Miller, Elaine McKinsey, John Turri and Anna Williams, five handicapped employees of the U.S. Assay Office in San Francisco (hereafter referred to as "the Mint") filed EEO Complaints concerning the Mint's failure to accommodate their respective handicapping conditions on August 21, 1985. CR 1 at 5. The Mint gave them Notice of Proposed Removal for Unacceptable Performance on or about December 2 1985. CR 1 at 5. An application for Temporary Restraining Order and Complaint was filed on December 18, 1985. CR 1 and 3. The parties agreed to maintain the status quo until the hearing on the preliminary injunction. CR 7. The district court granted a preliminary injunction on January 28, 1986. CR 26, AFGE Local 51 et al v. Baker, Secretary of the Treasury, 40 FEP Cases 395 (ND Cal 1986). The Mint filed a motion to dissolve the preliminary injunction on March 26, 1986. CR 35. This motion was denied and the case was set for trial. CR 67. On July 2, 1986, the government appealed the May 2, 1986 and June 2, 1986 order denying the defendants motion to dissolve the January 28, 1986 injunction. Baker, Secretary of the Treasury v. AFGE Local 51, USCA No. 86-2249. Notice of Appeal, CR 69; Corrected Notice of Appeal 70; Minute order, dated June 2, 1986, CR 49. Upon the government's motion to withdraw the appeal, it was voluntarily dismissed on March 16, 1987. CR 144. After a three day trial from May 18 to 20, 1987, the District Court ordered the Mint to retain a Rehabilitation Specialist to oversee the implementation of reasonable accommodations for the five handicapped plaintiffs. CR 209 and CR 214. AFGE Local 51 et al v. Baker, Secretary of the Treasury, 677 F. Supp. 636, 43 FEP Cases 1393 (ND Cal 1987). The Rehabilitation Specialist filed the Final Report recommending appropriate accommodations for each of the plaintiff on January 31, 1989. CR 245. The government filed another motion to dissolve the injunction on March 10, 1989. CR 246. After several hearings and status conferences, this motion was denied. The Mint was ordered to continue to employ Mildred Miller and find reasonable accommodation of her handicapping condition; to reassign John Turri to a Laborer WG-02 position; to reassign Roberta Butler to a Laundry Worker WG-02 position; Elaine McKinsey and Anna Williams retired. CR 299. An interim appeal from that order was filed on May 4, 1990. CR 300. The Ninth Circuit remanded the case to the district court with instructions to make findings of fact and conclusions of law concerning 1) Mildred Miller's qualifications for the position in question; 2) whether she can perform the essential functions of a Coin Checker with specific reasonable accommodation; and 3) whether the Secretary has met his burden of showing an inability to accommodate her handicapping condition. See Memorandum of 9th Circuit dated July 2, 1991, Exhibit 1. Plaintiffs bring this motion for permanent injunction and final order, based upon the entire record before the district court. STATEMENT OF FACTS I. REORGANIZATION OF PACKAGING DEPARTMENT IN 1982 In 1982, the U.S. Mint notified American Federation of Government Employees, Local 51, AFL-CIO (hereafter "AFGE Local 51") that it planned to convert the assembly line in the Packaging Department to individual duty stations, so that it could keep track of the production of each employee. As part of the same reorganization, defendant [] changed the job elements and performance standards for the Coin Checker WG-3513 posi- tion. The most significant change is that under the new performance standards, each employee is required to complete 500 sets of coins per shift in order to achieve a rating of "satisfactory". 40 FEP at 396. AFGE Local 51 President, Milton McFarland and AFGE Officer Jordan Boone met with Donald Butler, Manager of Production, to discuss the adverse impact of the changes on the handicapped plaintiffs/appellees. CR 5 at 2-3. Butler originally agreed to make reasonable accommodation for those with handicapping condi- tions by adjusting the quota for individuals having difficulty meeting the new criteria, and later reneged on his promise to accommodate. CR 5 at 3-4. During this period of time, the Mint hired approximately 75 temporary employees at the San Francisco Mint to perform various jobs, including work in the single coin program. CR 5 at 3-4. II. REASSIGNMENT OF PLAINTIFFS IN 1983 Appellee Mildred Miller was hired by the Mint in 1967 and has worked as a Coin Checker WG-02 on a variety of coin programs since 1978. CR 4. She is a handicapped person within the meaning of the Rehabilitation Act of 1973, 29 U.S.C. 7103(a)(3) based inter alia on a learning disability, high blood pressure and skin allergies. 677 F. Supp at 637. Throughout her employment with the Mint prior to 1985, her performance was rated "satisfactory" or better. CR 10. In 1983 and 1984, she was rated "superior". CR 10, Exhibit C and D. During the conversion in November 1983, Ed Hearst, Head of the Packaging Division told Ms. Miller that she was not working as fast as other employees in the 5-Coin Section and asked her whether she wanted to work in the single coin program. CR 10 at 2. Thereafter, plaintiffs Miller, Butler, McKinsey, Turri, Williams were taken out of the 5-Coin Section and transferred to one of the single coin programs (Prestige or Olympic), while the remaining employees were given training on the new single station procedures in the 5-Coin Section. CR 10. III. DISCONTINUATION OF ACCOMMODATIONS FOR APPELLEES IN 1985 In January 1985, the five appellees were returned to the 5- Coin Section. The evidence indicated that this system meth- odology change was traumatic to the plain- tiffs, who have varied disabilities and who were thrust into a system wherein they had no special training or assistance in improving their job skills. Not only did the plaintiffs not have any method on their own initiative to cope with the new change - no personnel in the Mint had training or knowledge regarding dealing with handicapped persons, i.e. train- ing, assisting, or accommodating with refer- ence to this new system. 677 F. Supp. at 637. Rankin, TR 219-220, Butler, TR 370. The advantage of the individual work station was that less employees were required to produce the same number of sets. "We were able to identify the individual employee who did what work" and rate them unsatisfactory. Butler, TR 363-364. They produce 24,000 5-Coin Proof sets per day, 3.6 million per year. Id. After working in the 5-Coin area for ninety days, Appellees were each rated unsatisfactory for the period January 21, 1985 to April 23, 1985. CR 10 at 2. They were given a "demonstration period" to improve and again rated unsatisfactory for the period April 24, 1985 to October 18, 1985. CR 10 at 2. "It is clear that the plaintiffs might very well have maintained their [satisfactory performance] record "but for" the new system and its individual performance quotas." 677 F. Supp. at 637. Plaintiffs requested reasonable accommodation by filing an informal EEO Complaint on July 8, 1985 and a formal complaint on September 4, 1985. CR 1 at 5. The Mint did not gather information to determine what accommodations would enable plaintiffs to perform their jobs. CR 28 at 2:5-15. IV. INJUNCTION OF REMOVAL OF HANDICAPPED APPELLEES IN 1986 On December 5, 1985, the Mint notified each of the plaintiffs that they would be removed for "unacceptable performance under 5 U.S.C. 4302 without providing reasonable accommodation for their physical and mental conditions as required by 29 C.F.R. 1613.704". 40 FEP Cases at 396. Plaintiffs as a result of their handicaps and ages, are unable to meet the new standard of 500 sets per day, they have been threatened with immediate removal, in spite of their claim that with reasonable accommodations, such as reassignment to other tasks, they could continue to maintain their "satisfacto- ry" performance ratings. 40 FEP Cases at 396. Based on the record in early 1986, the court enjoined the U.S. Mint from removing appellees and found: (1) that irreparable harm may be presumed from the likelihood that a violation of the Rehab- ilitation Act has occurred or is threatened [citations omitted]; (2) that plaintiffs have sufficiently stated a prima facie case, at least with respect to their claims under the Rehabilitation Act, 29 U.S.C. 701 et seq. to support a finding of probably success on the merits, especially in light of the serious harm which is threatened in the event injunc- tive relief is denied [cit. omitted]; (3) that in balancing the equities, defendant will not be harmed more than plaintiffs are helped by granting the injunction; and (4) that granting the requested injunction is clearly in the public interest. 40 FEP Cases at 396. The Mint was further ordered to take such steps as are necessary to assure that the status quo is maintained and that reasonable accommodation is afforded to plaintiffs for the handicapping condition of each, pursuant to 29 C.F.R. 1613.704. Id. The government's motion to dissolve the injunction was denied; that order was appealed to the Ninth Circuit; in 1987, the appeal was dismissed on the government's own motion shortly before trial. CR 67, CR 144. V. VIOLATIONS OF THE REHABILITATION ACT ESTABLISHED AT TRIAL After a three and one half day bench trial in May 1987, the court held that the defective element in the defendant's procedure leading to the termination of em- ployment is its failure to satisfy the law and regulations with reference to its efforts and the requirements to seek "accommodation" prior to any final decision. . . . Although they are not required to find another job for an employee who is not qualified for the job he or she was doing, they cannot deny an employee alternative employment opportunities reason- ably available under their employer's existing policies. The federal government shall become a model employer of handicapped individuals. 29 C.F.R. 1613.701. 677 F. Supp. at 638. In light of the foregoing, it would appear that the government has fallen short of meet- ing its burden of showing the impossibility of reasonable accommodation without undue hard- ship. This is particularly so if it is true, as plaintiffs allege, that the San Francisco Mint generates a profit, and continues to generate more money than is required to oper- ate its facility. 677 F.Supp. at 638-639. In Fiscal Year 1984, the U.S. Mint deposited $819 million to the General Fund of the Treasury. CR 288 Ex. E at 19. VI. SPECIALIST HIRED TO OVERSEE IMPLEMENTATION OF ACCOMMODATIONS As a remedy for the violations of the Rehabilitation Act, the court ordered the agency to retain, at its own expense, a Rehabilitation Specialist to oversee the implementation of this order. . . . The Rehabilitation Special- ist shall determine reasonable accommodation for each individual plaintiff by: (a) interviewing individual plaintiffs regard- ing placement preferences and abilities, and necessary testing; (b) selecting accommodations, including combi- nations of the following: (i) training which reflects slower paced presentation of instructions, modeling, posi- tive reinforcement, verbal mediation, verbal and/or physical prompts, repetition; (ii) restructuring of the existing job pursuant to the OPM Handbook on Reasonable Accommodation and Employing the Handicapped; (iii) job reassignment with additional training specific to that job. The trial evidence indicates that there are at least 15 separate departments at the Mint employing 410 permanent employees, plus many temporary employees. The job reassignment, if any, should be in the WG-02 levels; (iv) appropriate assistive devices, includ- ing gloves, rubber tips, jewelers magnifying glass, equipment to make lifting and carrying easier, etc." 677 F. Supp. at 639. No appeal was taken from this order. The University of San Francisco, McClaren College of Business Rehabilitation Administration was selected by the parties to determine the appropriate accommodations for each appellee in the Fall of 1987. After numerous delays, the contract was approved by the Mint and work begun in March 1988. CR 284. VII. FINAL REPORT RECOMMENDS REASSIGNMENT OF APPELLEES IN 1990 The Report of Rehabilitation Specialist Services Provided to Employees of the U.S. Mint, San Francisco, March 1988 - December 1988, filed January 31, 1990, CR 245, (hereafter "Report") recom- mended accommodations for each appellee with the following comment: * We strongly recommend the Court approving both the final and interim recommendations because, without such a directive, the San Francisco Mint will not implement reasonable accommodation for these five individuals due to the Mint's limited understanding of per- tinent laws and regulations and its lack of knowledge and skills in rehabilitation, super- visory, training and Personnel practices which makes reasonable accommodation possible. (emphasis in original) Id. at 4. With respect to Mildred Miller The team determined that the best match bet- ween Millie's abilities, her preference, and the essential elements of the job that needed to be performed was [as a Coin Checker WG-02] in Special Program/Single Coin Department. Id at 31. After "careful examination of her work characteristics in relation to the demands of the essential elements of the Special Program/Single Coin position", they found that the reasonable accommodations [set forth in Column III, Reasonable Accommodations Analysis CR 245 at pages 35 - 38] provided have demonstrated to be effective in that they provide Millie with the adequate resources and skills needed to carry out the essential job demands. Id. at 39 - 40. The best accommodation was determined to be assignment to the assignment she had prior to 1985. The Mint refused to implement any of the recommended accommo- dations for Mildred Miller and filed a motion to dissolve the injunction so that she could be removed from her position for unsatisfactory performance on March 17, 1989. CR 248. The district court kept the original injunction in effect but denied plaintiffs motion to implement the accommodations recommended by the Rehabilitation Specialist and permitted the Mint to accommodate Miller without requiring expenditures of $78,716 in estimated costs. VIII. HISTORY OF DISCRIMINATION OF HANDICAPPED MINT EMPLOYEES The Mint's Affirmative Employment Program fails to provide for the hiring, placement and advancement of handicapped individuals, as required by Section 501, 29 U.S.C. 791(b). Exhibit 7. In 1985, the U.S. Mint proceeded to remove handicapped employees throughout the country: 1) by harassing the only two handicapped employees in the national office, both polio victims - Margaret Pounds, the secretary to the Director of Personnel for the U.S. Mint and Willie May Durham (Exhibit C, Declaration of Margaret Pounds); 2) unlawfully firing Dale A. Nuanez, an epileptic from the Denver Mint in 1984 (Exhibit D, Dale A. Nuanez v. Secretary of the Treasury, DC Colo.No. 86-M-2373, November 22, 1988) (CR 288 at 3); 3) taking away the accommodations of handicapped employees at the Mint and attempting to remove plaintiffs from their positions. The 1987 workforce statistics for the Mint showed that of the 410 full-time positions, 28 were staffed with "handicapped" employ- ees, plus two plaintiffs, Mildred Miller and Roberta Butler, which were not considered to be "handicapped". Lozica, TR 444. No evidence was presented by the Mint that an "undue burden" would be placed on the Mint if it were ordered to accommodate Miller. Throughout this dispute, the Mint has maintained that it is not required to accommodate any of the plaintiffs. None of the recom- mended accommodations contained in the Rehabilitation Specialist Report have been implemented, except for the reassignment of Roberta Butler and John Turri. ARGUMENT I. . MILDRED MILLER IS AN "OTHERWISE QUALIFIED HANDICAPPED PERSON" WITHIN THE MEANING OF THE REHABILITATION ACT. A. MILDRED MILLER IS A "HANDICAPPED PERSON" WITHIN THE MEANING OF 29 U.S.C.7103(a)(3). "Handicapped person" is defined as one who: (1) Has a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment. 5 C.F.R. 1613.702(a). Mildred Miller is a handicapped person within the meaning of the Rehabilitation Act of 1973, 29 U.S.C. 7103(a)(3), as defined by 5 C.F.R. 1613(a), based inter alia on a learning disability, high blood pressure and skin allergies. 677 F. Supp at 637. The State of California Department of Rehabilitation determined that Ms. Miller was "handicapped" as defined in the Department's Guidelines for Schedule A employment based on the following evaluations: 1) On May 20, 1986, Dr. Gary G. Balestin, PhD conducted an assessment of Ms. Miller's intellectual functioning, academic achievement and vocational interest and aptitude and found her eligible for services under the Department of Rehabilitation Guidelines on the basis of a specific learning disability, Balestin, Ex. 3. 2) On May 20, 1986, Dr. H. Wesley Wray conducted a medical examination of Ms. Miller and found that she had in- creased blood pressure since 1979, dermatitis, and a mild cataract, Wray deposition, 32:3-14, 33:4-7, 34:4-5, 19-25 and Exhibit 2. 3) On August 8, 1986, Dr. Kemp H. Dowdy, M.D. gave Ms. Miller a dermatological examination. 4) On September 3, 1986, Lorre T. Henderson, O.D., M.D. gave Ms. Miller an audiogram and found that she has a mild down slopping hearing loss. 5) On September 2 and 4, 1986, the San Francisco Rehabili- tation Center conducted a two day vocational evaluation in order to assess Ms. Miller's academic skills, physical stamina, work habits, learning retention abilities, vocational interest and aptitudes. Bernal deposition, 28:20-23, 29:13-16, 22-24, 30:1-6, 31:6-25. The government conceded that Mildred Miller is "handicapped" during trial. Dr. Theodore Goodman Alper, TR 277. B. MILDRED MILLER IS AND HAS BEEN QUALIFIED FOR THE COIN CHECKER WG-02 POSITION IN QUESTION DURING HER TWENTY-FOUR YEARS OF EMPLOYMENT. Mildred Miller has been employed at the San Francisco Mint since 1967, for over twenty-four years. She continuously worked as a Coin Checker WG-02 on a variety of coin programs since 1978. CR 4. Throughout her employment with the Mint prior to 1985, her performance was rated "satisfactory" or better. CR 10. In 1983 and 1984, she was rated "superior". CR 10, Exhibit C and D. Since this lawsuit was filed in December 1985, the Mint has continued to refuse to rate the performance of any of the plaintiffs, including Mildred Miller. Ms. Miller has received awards for her contribution to the U.S. Mint. Ms. Miller was previously nominated as "Federal Employee of the Year" by the Mint Managers in 1977. CR 10. Although the Mint has not officially rated Mildred Miller's performance under the Performance Appraisal Program between 1985 and the present, she was honored as "Employee of the Month Award" for December 1990. See, Declaration of Mildred Miller and Exhibit . The San Francisco Mint has recognized that Mildred Miller has given significant contributions to the agency during this period of time. In May 1991, she was selected as "Volunteer of the Month," See, Declaration of Mildred Miller and Exhibit . Carol Mayer Marshall, Superintendent of the San Francisco Mint thanked her for her participation in the KQED Pledge Drive on August 29, 1991. See, Declaration of Mildred Miller and Exhibit . It is abundantly clear that Mildred Miller is not only qualified for her position as Coin Checker, WG-02, she is a model employee and certainly deserving of the reasonable accommodation the law requires. C. MILDRED MILLER CAN PERFORM THE ESSENTIAL FUNC- TIONS OF COIN CHECKER WG-02 WITH OR WITHOUT ACCOMMODATION. 29 C.F.R. 1613.702(f) provides that a handicapped person is "qualified" when with or without reasonable accommodation, can perform the essential functions of the posi- tions in question without endangering the health and safety of the individual or oth- ers." The burden is on the agency to demonstrate that its asserted essential qualification is truly essential and is not merely a remote concern. Bentivegna v. Department of Labor, 694 F.2d 619, 622-623 (9th Cir. 1982); Nisperos v. Buck, 720 F. Supp 1424 (ND Cal 1989); Simon v. St. Louis County, 656 F.2d 316, 321 (8th Cir. 1981) cert. denied 455 U.S. 976 (1982) (unmet qualifications barring handicapped individual from employment must be reasonable, legiti- mate and necessary requirements). "Essential functions" are those duties described in the position description for Coin Checker WG-02, not the performance standards. Guinn v. Bolger, (DC DC 1984) 598 F. Supp. 196, 36 FEP Cases 506. The position description for Coin Checker WG-02 covers all coin checkers at the Mint in both the Five Coin Section and the Special Coin and does not itself set standards or quotas. Rankin, TR 214-215. The quota of 500 sets per day in the performance standards for the 5-Coin Program was not an "essential function" of the Coin Checker position. CR 15, Declaration of Fred Rankin, Exhibit F. Mildred Miller received superior or satisfactory ratings until the performance standards were changed in 1985. CR 10 at 1-2, Exhibits A - E. Donald Butler, Manager of Production admitted at trial that the plaintiffs "can perform all of the essential functions of the position description", except for the newly created quota of 500 sets per day in the 5-Coin program. TR at 381. Under the facts of this case, the 500 set per day quota in 5-Coin was not an "essential function" of that position. An in- dividual may be "otherwise qualified" in some instances even though he cannot meet all of a program's requirements: This is the case when the refusal to modify an existing program to accommodate the handicap- ped individual would be unreasonable, and thereby discriminatory. Rosiak v. Department of Army, 46 FEP Cases supra, at 994, based on the holding in Southwestern Community College v. Davis, 442 U.S. 397, 412 (1979). Under Chapter 43 of the Civil Service Reform Act of 1978, 5 U.S.C. 4304(b)(1), the agency may not take an action against non-handicapped individuals for "unacceptable performance" unless it proves that the particular performance standards upon which the alleged deficiency in performance is based is "reasonable, suffi- cient in the circumstances to permit accurate measurement of the employee's performance, and adequate to inform the employee of what is necessary to achieve a satisfactory or acceptable rating." Wilson v. DHHS, 770 F.2d 1048 (Fed. Cir. 1985). "It is not at all difficult to think of many positions in which such strictly quantitative criteria would be unrevealing, bizarre, or counter-productive." Id. at 159-160. The Coin Checker WG-02 position, which involves inspecting coins for minor defects, is such a position. The position descrip- tion states: Incumbents inspect each coin in tray with a critical eye for defects or imperfections which constitute reasons for rejection of coins. (Written guidelines which incumbents follow in their inspection and review activit- ies list and define a total of 27 such defects or imperfections which incumbents must recog- nize.) The new quota in the 5-Coin Program of 500 sets per day was established at trial to be counterproductive based on the goal of quality control inherent in the Coin Checker position. Plaintiffs were instructed by their supervisor to use "condemned" coins, which they knew were not in compliance with the standards in effect at the time. Dr. Jack Wilde, TR 89; Rankin, TR 168. In 1985, the Mint retained the Maynard Company to perform a validation study including the 5-Coin program, at a cost of approximately $1.5 million dollars per facility. Ryan, TR 400-408. This study determined that the "normal" worker, without taking into consideration anyone's handicapping condition, could produce 511 sets per day, provided that all of the conditions were present. Ryan, TR 409-416. The Mint's expert, Maynard Company Engineer John Ryan, testified that as the project manager for the study, he was never told that some of the coin checkers who were expected to perform at the standards were handicapped persons. Ryan, TR 410. The standard would have to be increased if any variables changed, eg, if the ratio of condemned coins were greater than 1 in 8, if all five coins were not available, or if the individual's reach is less than 30 inches. Ryan, TR 414 -420. In May 1988, these standards were lowered from 500 to 450 "to improve quality". Butler declaration, CR 253. III. III. THE GOVERNMENT HAS NOT ESTABLISHED THAT UNDUE HARDSHIP WOULD RESULT FROM ACCOMMODATION OF MILDRED MILLER. A. SECTION 501 REQUIRES FEDERAL AGENCIES TO BE MODEL EMPLOYERS OF THE HANDICAPPED. Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791 (hereafter the "Act") places federal agencies under an affirmative duty to structure their procedures so as to insure that handicapped individuals are afforded equal opportunity in employ- ment. Section 501 states, in pertinent part: Each department, agency, and instrumentality . . . in the executive branch shall . . . submit to the Office of Personnel Management and to the Committee an affirmative action program plan for the hiring, placement, and advance- ment of handicapped individuals in such de- partment, agency or instrumentality." 29 U.S.C. 791(b). The EEOC Regulations on Federal Employment, Subpart G, Prohibition Against Discrimination on the Basis of Physical or Mental Handicap, which implements Section 501 of the Act, sets forth the general policy: The Federal Government shall become a model employer of handicapped individuals. An agency shall not discriminate against a quali- fied physically or mentally handicapped per- son. 29 C.F.R. 1613.703. The Ninth Circuit in Mantolete v. Bolger, 767 F.2d 1416, 1422, 38 FEP Cases 1077 (9th Cir. 1985) construed Congress's choice of the term "affirmative action" for federal agencies as an indication that "more active and extensive effort than 'non-discrimination' must be made to eliminate barriers to employment of the handicapped in federal agencies" under Section 501 than for employers covered by Section 504. The burden is on the agency to demonstrate "that reasonable accommodation is not possible." Prewitt v. U.S.Postal Service, 662 F.2d 292, 310 (5th Cir. 1981); Mantolete v. Bolger, 767 F.2d 1416, 1423 (9th Cir. 1985). "A more demanding legal standard is required [for Section 501 cases] if the policies expressed in the Act's legislative history and regulations are to be implemented in a meaningful way". Mantolete, supra. B. THE FULLER v. FRANK TEST FOR PROVING UNDUE BURDEN WAS NOT MET. The Ninth Circuit remanded this case to determine whether the Secretary has met his burden of showing an inability to accommodate in light of Fuller v. Frank, (9th Cir. 1990) 916 F.2d 558, at 562, 54 FEP Cases 723, 726 which held that under the circumstances of that case, "the employee is required to be qualified for the then current 'position' he holds, 29 CFR 1613.702(f), and transfer is not required." The Secretary has not met the Fuller test. Fuller is an alcoholism/misconduct case in which the employee sought reassignment to a position he never held. The Ninth Circuit adopted the test set forth in Rodgers v. Lehman 869 F.2d 253, 259, 49 FEP Cases 351 (4th Cir. 1989), which required a government employer to follow a progression of increasingly severe responses to an employee's alcoholism: (1) inform the employee of available counseling services (2) provide the employee with a "firm choice" between treatment and discipline; (3) afford an opportunity for outpatient treatment, with discipline for continued drinking or failures to participate; (4) afford an opportunity for inpatient treatment; and (5) absent special circumstances, discharge the employee for any further relapse. Id. at 726. The Ninth Circuit held that the Postal Service, having accommodated Fuller by providing him with each of the opportunities listed above, was not required to reassign him to an "inside" position which did not require him to drive and would provide supervision which would prevent him from drinking, after he violated the "last chance" agreement. The court declined to rule on whether Fuller was a "qualified" employee under the Act, whether the accommodation requested would impose an undue hardship on the agency, or whether the collective bargaining agreement prohibited the reassignment. Id. at 726. Fuller reaffirmed the holding in Mantolete v. Bolger, 767 F.2d 1416, 1423, 38 FEP Cases 1077 (9th Cir. 1985) that "[t]he employer bears the burden of proving an inability to accommodate. Id. at note 4. In Fuller, the Postal Service took numerous steps to accommodate Mr. Fuller. In sharp contrast, the district court in this case specifically found that the Mint failed to accommodate Miller's handicapping condition by its actions. 677 F. Supp. 638. At no time did Mildred Miller engage in an conduct which warranted disciplinary action or sign an agreement stating the she could be discharged for failing to abide by its terms. The "last chance" agreement given to Mr. Fuller under the disciplinary procedures, the numerous steps the Postal Service took to comply with Rodgers and to provide him with reasonable accommo- dation are a far cry from what the San Francisco Mint has done to Ms. Miller in this case. The removal of Mr. Fuller under the facts of his case is not analogous to the Chapter 43 removal action the Mint seeks to take against Ms. Miller in this case. C. EVEN THE SECTION 504 STANDARD, AS DEFINED IN LUCERO v. HART, REQUIRES EMPLOYERS TO TRY TO ACCOMMODATE HANDICAPPED PERSON BY FINDING THEM OTHER JOBS. The Ninth Circuit has requested findings on whether the Secretary met the burden of showing "undue hardship" under the Lucero v. Hart, 915 F.2d 1367, 1372 (9th Cir. 1990), a Section 504 case. The Supreme Court in the seminole case, School Board of Nassau County, Florida v. Arline, 480 U.S. 273, 107 S. Ct. 1123, 43 FEP Cases 81, at note 19 (1987) held that even under the less stringent requirements of Section 504, federally funded "[e]mplo- yers have an affirmative obligation to make a reasonable accommoda- tion for a handicapped employee. Although they are not required to find another job for an employee who is not qualified for the job he or she was doing, they cannot deny an employee alternative employment opportunities reasonably available under the employer's existing policies." The duties of federal employers under the Act are, at a minimum, broader than the School Board's in Arline and the County's in Lucero. Southeastern Community College v. Davis, 442 U.S. 397 at 410 (1979); Davis v. U.S. Postal Service, 675 F. Supp. 225, 231 (S.D. Ala. 1990). See, Tate, "The Federal Employer's Duties Under the Rehabilitation Act: Does Reasonable Accommodation or Affirma- tive Action Include Reassignment?", 67 Texas L. Rev. 781, 792-793 (1989); Dryovage, "Accommodation of Handicapping Conditions: Is Reassignment Reasonable?" 86 Fed. Merit Systems Reporter V pages 11 - 14. Ms. Lucero was under a six-month training period which is treated as the employees probationary period. The minimum qualifications for the typist clerk position is the ability to type 45 words per minute (wpm). 915 F.2d at 1369. After it was deter- mined that she was ineligible for the position, as her corrected score was 44 wpm, she was given an opportunity to retake the test and attempts were made to place her in another position. Id. at 1370. When she did not respond to the letter from the County Personnel Officer, she was terminated. Id. at 1369. During this process, the County learned of her disability. She was provided with back pay from the date of her termination to the first day of her new job with the state. Additionally, she was offered reinstatement to her former position. The Ninth Circuit, applying Arline, held that 1) Ms. Lucero was not "otherwise qualified" for the position because she could not perform the established "minimum qualification standards" for entry level certification for the position -type 45 wpm, and 2) even assuming she was "otherwise qualified", the County's attempts to accommodate Ms. Lucero's handicapping condition were reasonable and "Lucero did not respond to any of the attempts". Id. at 1372. In this case, Ms. Miller had been a permanent employee for 18 years before the U.S. Mint placed her under the new quota system in 1985. These production standards which were not the minimum requirements for the job; nor were they even "reasonable and attainable" as required by the Civil Service Reform Act. The Mint admits that the quota was officially reduced for all employees. Butler at CR 253, 6-7. Ms. Miller underwent psychological, medical, and performance testing throughout this litigation and fully cooperation with efforts to find the best accommodation for her. In this case, it is the Mint who is refusing to implement the accommodations in the Rehabilitation Specialist Report. Section 501 of the Act requires federal agencies to establish a comprehensive "affirmative action program plan for the hiring, placement, and advancement handicapped individuals. The obligation to employee handicapped individuals continues after the person is hired and extends to job assignment and promotion. Ryan v. FDIC, 565 F.2d 762 (DC Cir. 1977). The regulations implementing Section 501 which were adopted by the EEOC, Equal Employment Opportunity in the Federal Government, Subpart G, 43 Fed. Reg. 60900, (1978). 29 C.F.R. 1613.701 -1613.709. Subsection 1613.704 provides: (a) An agency shall make reasonable accommoda- tion to the known physical or mental limita- tions 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 handicapp- ed 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. (Emphasis added) These regulations do not restrict federal agencies' duty to accommodate handicapped employees to a predetermined type of accommodation. The EEOC has interpreted this language as requiring federal agencies to assess reassignment as a possible accommodation on a case-by-case basis. Ignacio v. USPS, SFO7528110438 (1985). The EEOC's interpretation of Section 1613.704(b) as encompass- ing reassignment was adopted by the Special Panel in Ignacio v. U.S.Postal Service, Pet. No. 03840005, slip op. at 10-15 (EEOC Sept. 4, 1984), aff'd 30 MSPR 471 (Special Panel No. 1, 1986) and by the Merit Systems Protection Board in Ellis v. USPS, 37 MSPR 503, 88 FMSR 5255 (1988). Ignacio was a distribution clerk who was later converted to a letter carrier. When he became unable to deliver mail on hilly terrain, the Postal Service declined to reassign him to light duty or to return him to the clerical position he had previously held. Ms. Miller's situation is distinguishable, because the Mint discontinued accommodations by implementing a production quota which it knew appellees could not satisfy. The Mint transferred her and the other handicapped appellees into the newly created positions in 1985 and then vigorously documented their performance. Here, the accommodation requested was to keep her into her existing job and not transfer her to the Five Coin job. III. "UNDUE HARDSHIP" MUST BE PROVEN BY GOVERNMENT. "Undue hardship" is defined in 29 C.F.R. 1613.704: (c) In determining pursuant to paragraph (a) of this section whether an accommodation would impose an undue hardship on the operation of the agency in question, factors to be considered include: (1) The overall size of the agency's pro- gram with respect to the number of employees, number and type of facilities and size of budget; (2) the type of agency operation, including the composition and structure of the agency's work force; and (3) the nature and the cost of the accommo- dation. The Interim Order found that The plaintiffs have established a prima facie case of handicap discrimination, and the burden now shifts to the defendant to show: . . . that the physical criteria offered as justification for refusal to hire the plain- tiff are 'job-related'. If the issue of reasonable accommodation is raised, the agency must then be prepared to make a further show- ing that accommodation cannot reasonably be made that would enable the handicapped applicant to perform the essentials of the job adequately and safely; in this regard the [federal employer] must 'demonstrate that the accommodation would impose an undue hardship on the operation of its program;, 29 C.F.R. 1613.704(a), taking into consideration the factors set forth by 704(c). 677 F. Supp at 639. See, Ackerman v. Western Electric Co., 48 FEP Cases 1354, 1365 (ND Cal 1986), aff'd, 860 F.2d 1514, 88 CDOS 7812 (9th Cir. 1988). As the Report so diplomatically describes, the reason the accommodations they recommended would have been costly is that the Rehabilitation Specialist found the Mint was not willing to cooperate in the accommodations effort; as a result training Mint managers and supervisors was costly and time-consuming. CR 245 at 4. By rejecting the Rehabilitation Specialists request in 1990, the court has shown its sensitivity to the Mint's objection to spending any more money on additional training and assessment for Mildred Miller. The Mint presented no specific evidence of undue hardship to the court concerning the Section 1613.704 factors. Based on the size of the Mint's budget, the record provides ample support for requiring the Mint to implement costly accommodations, if neces- sary. In this case, the requested accommodation does not cost the Mint a dime. While it would have been well within the require- ments of the Act to order the Mint to implement the entire list of accommodations recommended by the Rehabilitation Specialist, at this point, Mildred Miller simply seeks to be allowed to continue working as a Coin Checker WG-02 on the Special Coin Program, when it is in production and to placed in other duties when it is not. CONCLUSION For the foregoing reasons, plaintiffs respectfully request the court to grant the final judgment and permanent injunction, as set forth in the proposed order, which is attached hereto. DATED: October 4, 1991 Respectfully submitted, MARY DRYOVAGE JOSEPH F. HENDERSON DEBORAH KAPLAN Attorneys for Plaintiffs MARY DRYOVAGE Law Offices of Mary Dryovage 3929 Twenty Fourth Street San Francisco, CA 94114 Telephone: (415) 821-1541 JOSEPH F. HENDERSON American Federation of Government Employees, AFL-CIO 80 F Street, NW Washington, DC 20001 Telephone: (202) 737-8700 DEBORAH KAPLAN World Institute on Disability 510 16TH Street, First Floor Oakland, California 94611 Telephone: (415) 486-8314 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA AMERICAN FEDERATION OF GOVERN- ) MENT EMPLOYEES, LOCAL 51, ANNA ) WILLIAMS, ROBERTA BUTLER, ELAINE ) MC KINSEY, MILDRED MILLER AND ) No. C-85-9196-SC JOHN TURRI, ) (On remand) ) Plaintiffs, ) PLAINTIFFS' EXHIBITS v. ) IN SUPPORT OF MOTION ) FINAL JUDGMENT AND JAMES BAKER, III, ) PERMANENT INJUNCTION SECRETARY OF THE DEPARTMENT OF ) TREASURY, ) Date: November 1, 1991 ) Time: 10:00 a.m. Defendant. ) )