In the Matter of Southwestern Virginia Training Center,
Commonwealth of Virginia Dep't of Mental Health, Mental Retardation and Substance Abuse, and Commonwealth of Virginia Dep't of Education,
Docket No. 93-125-CR
Civil Rights Proceeding
Appearances: Lynne R. Fleming, Esq., Margaret A. Browne, Esq.,
Joan W. Murphy, Esq., William H. Hurd, Esq., and
James S. Gilmore, III, Esq., Richmond, Virginia
for the Respondents
David M. Leeman, Esq., and Robert F. Shaul, Esq.,
Washington, D.C. for the Office of Civil Rights,
U.S. Department of Education
This is an action to terminate the continued eligibility of the
Southwestern Virginia Training Center (Southwestern) to receive
or apply for Federal financial assistance from the U.S.
Department of Education.See footnote 1
This action was instituted as a result of a determination by the Assistant Secretary of
for Civil Rights (ED) that Ms. Thelma Combs was subject to
employment discrimination under Section 504 of the Rehabilitation
Act of 1973, as amended, (29 U.S.C. § 794). Due to an agreement
by the parties immediately prior to the hearing, the sole
remaining issue concerns whether Ms. Combs was subject to
Ms. Combs was employed as a developmental aide at Southwestern, a state operated intermediate care facility for the severely mentally retarded or profoundly mentally retarded.See footnote 2 2/ These
residents possess IQ's of 35 or less. The developmental aides
are responsible for the daily on-site care and instruction of the
residents. This includes insuring that residents are awakened or
taken to bed, and that they are dressed, toiletted, washed, and
fed. It also includes supervising recreation, learning and
social activities. Instruction is formal as well as informal. Informal instruction may include, for
example, teaching an
individual to scoop with a spoon during a meal. Developmental
aides are charged with implementing behavioral programs for those
residents who lose control of themselves on occasion. Lastly,
developmental aides are responsible for the safety of the
residents in emergencies.
Ms. Combs was one of four developmental aides who worked in Units
3E and 3F which housed approximately 20 residents. Ms. Combs was
discharged from her employment in 1990 because she could not,
pursuant to the order of her doctor, lift more than 15-20 pounds.
This lifting restriction was imposed following her July 1986
surgery in her pelvic area and continues in effect to the present
This lifting restriction did not affect the majority of her
duties which consumed the majority of her time. In the view of
the management of Southwestern, however, it adversely affected
her participation in the behavioral intervention programs of
several residents, in providing assistance to residents with
ambulation problems, and the general lifting required of some
residents who could not support their own weight. As a result,
Ms. Combs was discharged from her position in 1990.
Section 504 of the Rehabilitation Act of 1973, as amended, (29
U.S.C. § 794(a)(1990)) prohibits programs receiving federal
financial assistance from discriminating against an individual
with handicaps solely because of that disability--
(a) Promulgation of rules and regulations
No otherwise qualified individual with handicaps in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his handicap, be excluded from the participation in . . . or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . . The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978.
Thus, in order for ED to prevail, it must establish that Ms.
An individual with handicaps is defined as one 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.[See footnote 4 4/ ]
29 U.S.C. § 706(8)(B); See 34 C.F.R. § 104.3(j)(1) (1990).
A physical impairment is "any physiological disorder or condition
. . . or anatomical loss affecting one or more of the following
body systems: . . . musculoskeletal; [or] . . . genito-urinary."
34 C.F.R. § 104.3(j)(2)(ii). The physical impairment must
substantially limit a major life activity which includes
vocational and non-vocational activities as the term major life
activities is defined as--
functions such as caring for one's self, performing manual
tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.
34 C.F.R. § 104.3(i)(A)(2).
With respect to an individual with handicaps, an employer may not
discriminate against such an individual if he or she is
considered an "otherwise qualified individual." 29 U.S.C.
§ 794(a). An "otherwise qualified individual" is an individual with handicaps "who, with reasonable accommodation, can perform the essential functions of the job in question." 34 C.F.R.
§ 104.3(k)(1). Thus, an employer is required to "make reasonable accommodation to the known physical . . . limitations of an otherwise qualified handicapped . . . employee unless the [employer] . . . can demonstrate that the accommodation would impose an undue hardship on the operation of its program." 34 C.F.R. § 104.12(a).
A reasonable accommodation may "include: (1) making facilities
used by employees 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,
the provision of readers or interpreters, and other similar
actions." 34 C.F.R. § 104.12(b). Hence, measures of reasonable
accommodation allow the job to be performed by compensating for
the effect of the specific handicap.
I. An Individual With Handicaps
In the case at hand, ED argues that Ms. Combs was an individual
with handicaps under the Rehabilitation Act because she was
physically impaired or, alternatively, was perceived as such by
Initially, Southwestern disputes that Ms. Combs had any physical
impairment at the time of her dismissal. Southwestern admits
that Ms. Combs had a disorder or condition which affected her
genito-urinary system; however, it urges that this problem was
corrected by the surgery in 1986 and, therefore, Ms. Combs did
not have a physical impairment at the time of her dismissal in
1990. In Southwestern's view, the lifting restriction imposed by
Ms. Combs' physician after the corrective surgery was a
preventative measure -- one designed to prevent damage to the
surgical posterior repair -- and thus, it was not a physical
impairment. ED replies that the surgery did not fully restore her
condition and, hence, she still had a physical impairment.
In the tribunal's view, a limitation, whether caused by a physical impairment due to an existing disorder or condition or imposed in order to prevent a reoccurrence of physical impairment, has the same effect upon the individual -- the individual no longer performs as well. As such, it constitutes a physical impairment under the Rehabilitation Act. This view is consistent with a self-evident purpose of the Rehabilitation Act, namely to ensure employment of individuals with limitations under reasonable circumstances. See School Bd. of Nasau County v. Arline, 480 U.S. 273, 282 (1987) ("[i]t would be unfair to allow an employer to seize upon the distinction between the effects of a [contagiousness] disease on others and the effects of
[this] . . . disease on a patient and use that distinction to justify discriminatory treatment.") As such, Ms. Combs had a physical impairment which limited her ability to lift to no more than 15-20 pounds.
A physical impairment must also substantially limit one or more of the individual's major life activities, either nonvocational or vocational, or be regarded as such by the employer. With regard to nonvocational activities, ED asserts that Ms. Combs' physical limitation substantially limited her ability to perform activities in her daily life due to her inability to lift "items she might encounter [such as] a bucket of water, a bag of
groceries, a loaded trash bin, her lawn mower, or the corner of
her bed or dresser." ED Br. at 26. Southwestern argues that the
effect of the lifting restriction on Ms. Combs' daily life is
minimal and that ED did not prove that she was unable to perform
several of the above activities.
When viewed in the context of the activities of daily life, the
few nonvocational activities affected by her lifting restriction
are insufficient to constitute a substantial limitation. At
best, the lifting restriction creates a minor inconvenience in
her daily life. Hence, the 20-pound lifting restriction did not
substantially limit Ms. Combs' ability to function in her daily
With regard to the vocational area, ED argues that her lifting
restriction precluded employment in a wide variety of jobs and,
therefore, the lifting restriction should be considered as
substantially limiting. Southwestern responds that, as a matter
of law, ED must show that Ms. Combs' impairment barred her
employment from more than one particular job and that, as a
matter of fact, ED failed to establish that "her lifting
restriction foreclosed another job of any type." Southwestern
Br. at 26.
In general, an impairment that interferes with an individual's
ability to perform a particular job, but does not significantly
decrease that individual's ability to obtain satisfactory
employment, is not substantially limiting. Jasany v. United States Postal Serv., 755 F.2d 1244,
1248 (6th Cir. 1985) (citing E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088 (D. Haw. 1980)).
The real focus must be on the impaired person, and not solely on
the impairment or the perceived impairment. Id. at 1100.
As explained infra, there is some doubt whether the inability to lift more than 20 pounds interferes with the performance of a developmental aide. Developmental aides operate under a team concept within his or her immediate residential living unit and within the facility as a whole. This, in turn, may affect the necessity and frequency of lifting in excess of 20 pounds. In general, there appears to be virtually no lifting in excess of 20 pounds required during the third shift when the residents are sleeping. During the first and second shifts, the frequency of such lifting is dependent upon the particular job assignment. The frequency may vary on occasion between no lifting during a shift and lifting several times during the eight hour shift. There is, of course, a concern by Southwestern for the safety of the residents in the event of a fire or other emergency which may require a developmental aide to lift more than 20 pounds. This is a legitimate concern even though such an event may never or rarely occurs. As such, the tribunal concludes that lifting in excess of 20 pounds constitutes an impairment to the general performance of a developmental aide. Such lifting is a marginal,
but nevertheless, essential function of a developmental aide.
As to other occupations, lifting is always a necessary function
although the amount of weight lifted and the frequency of lifting
will vary widely depending upon the occupation. The 20-pound
restriction would not prevent Ms. Combs' employment in an
unskilled, sedentary or light work position; however, it would
preclude all employment in unskilled, medium and heavier work
occupations. Cf. 20 C.F.R. § 416.967. Thus, there is a broad
spectrum of occupations from which she is precluded due to her
limitation. As such, her limitation qualifies Ms. Combs as an
individual with handicaps within the meaning of the
Rehabilitation Act. Compare Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986)(person with
acrophobia which precluded working on
ladders is not a person with handicaps); Jasany v. United States Postal Serv., 755 F.2d 1244 (6th
Cir. 1985) (person with crossed eyes is not a person with handicaps); with Reynolds v. Brock,
815 F.2d 571 (9th Cir. 1987)(due to state and federal regulations and
policies, epilepsy substantially limits an individual's ability
to work by restricting the type of jobs available).
II. An Otherwise Qualified Individual
In order to prevail, ED must establish that Ms. Combs was also an
otherwise qualified individual, that is, "one who is able to meet
all of a program's requirements in spite of his [or her]
handicap." Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979). This
inquiry focuses on whether, "'with or
without reasonable accommodation, [the handicapped individual]
can perform the essential functions of the position in question without endangering' her [or his]
own health and safety or that
of others." Hall v. United States Postal Service, 857 F.2d 1073, 1078 (6th Cir. 1988)
(quoting 29 C.F.R. § 1613.702(f)(1987)).
A reasonable accommodation may include "job restructuring, part-
time or modified work schedules, acquisition or modification of
equipment or devices . . . and other similar actions." 34 C.F.R.
§ 104.12(b). An accommodation is not reasonable, as explained by
the Court in School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n.17 (1987)--
if it either imposes "undue financial and administrative
burdens" on a grantee, Southeastern Community College v. Davis, 442 U.S. at 412, or
requires "a fundamental alteration in the nature of [the] program," id., at 410.
The employer bears the burden of showing that reasonable
accommodation cannot be afforded. Prewitt v. United States Postal Serv., 662 F.2d 292 (5th Cir.
ED asserts that accommodations for Ms. Combs' physical impairment
were feasible. In its view, Ms. Combs could perform in her
present position so long as she was permitted to continue to
trade or exchange with her fellow developmental aides a lifting
task or two for nonlifting tasks.See footnote 5
Alternatively, ED urges that she could be reassigned to another developmental aide
a cottage in Unit 1 which it asserts had no impaired residents
who required lifting. ED also maintains that any concern by
Southwestern that such an accommodation would pose a safety or
health risk must be specific, substantial, and not speculative.
Southwestern maintains that trading or exchanging duties among
the developmental aides in residential living units 3E and 3F or
any other unit in order to avoid lifting over 20 pounds is not an
appropriate accommodation. In its view, this is tantamount to
the elimination of an essential duty which is not considered an
acceptable accommodation under Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir. 1991), Hall v.
United States Postal Serv., 857 F.2d 1073 (6th Cir. 1988), and Jasany v. United States Postal
Serv., 755 F.2d 1244, 1250 (6th Cir. 1985).
In the tribunal's view, Ms. Combs can perform her prior position
at Southwestern as a developmental aide in Units 3E and 3F due,
in part, to the team approach employed by Southwestern to oversee
and assist the residents. Under the team concept, developmental
aides work as a two-person team within each residential living
unit. Occasionally, for purposes of heavy lifting and resident
intervention, developmental aides in Units 3E and 3F work as a
The team concept permits the developmental aides to shift duties
by agreement between or among themselves in many circumstances.
Lifting for purposes of bathing, toileting, etc., was necessary
only a few instances each day in Ms. Combs' unit. Due to her
restriction, other developmental aides in Units 3E and 3F
performed this duty. It was done with the approval of management
and without any apparent problems. Similarly, on occasions when
she did not participate directly in an intervention action, Ms.
Combs was otherwise attending to the needs of other
residents -- a matter which was appropriate and necessary during
this occurrence.See footnote 6
Thus, the team approach, adopted and used by Southwestern for years, permitted Ms.
Combs to work successfully
within the system and provided the residents with all of the
appropriate and necessary services.
Gilbert and the other cases relied upon above by Southwestern for the proposition that an essential function may not be eliminated by virtue of an accommodation are distinguishable. The common thread in these cases is that the individual was solely responsible for performing each of the duties of his or her position and that the essential function in question constituted a significant aspect of the position.See footnote 7 7/ In the instant case, the shifting of this lifting function to other developmental aides is an existing feature of the position and, therefore, unlike the typical employment context, this occurrence does not constitute an accommodation. Hence, Ms. Combs can perform her position without reasonable accommodation.See footnote 8 8/
Southwestern further maintains that Ms. Combs' lifting restriction poses a safety hazard to the residents as well as herself. Of primary concern, according to Southwestern, was Ms. Combs' inability to lift residents during an emergency situation such as a fire. Southwestern was also concerned that Ms. Combs may be unable to discern her weight limitation in lifting and, as
a result thereof, injure herself. In such a situation, the
Commonwealth of Virginia could presumably bear all or a portion
of the cost of any workman's compensation or an equivalent-type
Clearly, the safety of residents is a legitimate concern even
though the likelihood of an emergency event such as a fire is
remote. Southwestern's structures are only single level
buildings and cottages which facilitate the speedy removal of
residents, including those confined to wheelchairs, in the case
of an emergency. Ms. Combs can perform essential tasks in an
emergency situation despite her lifting limitation. She can lead
residents, who walk, or push wheelchair bound residents to safety
while her fellow developmental aides attend to others who may
require some lifting. Thus, the safety aspect is not a
persuasive argument.See footnote 9
Lastly, ED argues, in the alternative, that Southwestern could reasonably accommodate Ms. Combs by reassigning her to a cottage in Unit 1. This would, in effect, eliminate most of the lifting activities. The residents in Unit 1 are, in fact, the better functioning residents at Southwestern. There are approximately ten residents per cottage and two developmental aides are assigned to each cottage during the first and second shifts. In a fashion somewhat similar to the buildings, cottages are paired together and the aides in one cottage may be called upon, in limited circumstances, to provide assistance in another cottage. In general, however, each cottage functions on its own. While lifting in excess of 20 pounds in anticipated situations such as bathing is substantially reduced or eliminated due to the ambulatory and weight bearing capacity of the residents, Ms. Combs' impairment presents a different problem, particularly with respect to the intervention aspect of the position. Unlike Units 3E and 3F which had three aides and Ms. Combs to execute an intervention program, the cottages have only two aides to administer an intervention program of which one aide would be Ms. Combs. In this circumstance and given her lifting restriction, there is some doubt that the intervention programs which require substantial restraint of a resident would be employed properly and safely with respect to the residents and the aides. In addition, such a pairing raises a concern regarding the safety of
the residents in the event of an emergency such as a fire.See footnote 10
In view of these concerns, an assignment to a cottage on a regular
basis would not constitute a reasonable accommodation.
In summary, the tribunal concludes that Ms. Combs was an
otherwise qualified individual with handicaps. As such, she was
improperly dismissed from her position.See footnote
Based upon the foregoing findings of fact and conclusion of law,
it is HEREBY ORDERED that Southwestern's continued eligibility,
directly or indirectly, to receive or apply for Federal financial
assistance administered by the United States Department of
Education shall be terminated.
Allan C. Lewis
Chief Administrative Law Judge
Issued: June 30, 1995
1. Southwestern receives or has applied for
assistance administered by the U.S. Department of Education,
either directly from the U.S. Department of Education or
indirectly through the Commonwealth of Virginia Department of
Mental Health, Mental Retardation and Substance Abuse Services,
the Commonwealth of Virginia Department of Education, or other
state and local agencies.See footnote 12
2. Southwestern received Federal financial
administered by the U.S. Department of Education, either directly
from the U.S. Department of Education, or indirectly from the
Commonwealth of Virginia Department of Mental Health, Mental
Retardation and Substance Abuse Services or the Commonwealth of
Virginia Department of Education during the fiscal years ending
September 30, 1889 through September 30, 1993.
3. The Department of Mental Health, Mental
Substance Abuse Services is responsible for the operation of the
residential facilities for the developmentally disabled,
4. Ms. Combs resides at Galax, Virginia which is approximately 10 miles from Southwestern. She was first employed at Southwestern in 1977 as a Food Service Aide A. Prior thereto, she worked as a sales clerk from 1974 to 1976 and as a waitress from 1952 to 1957 and has an eighth grade education. She was employed as a food service aide from May 16, 1977, through June 1983.
5. Ms. Combs was reemployed as a
developmental aide on December
16, 1983. She received approximately 6 weeks of training before
beginning work and received additional training through in-
service courses every six months. Ms. Combs worked in Units 3E
and 3F. She held this position until December 1989 when she was
placed on non-work status. She was 61 years old at this time.
6. For the period from May 26, 1985, through
Ms. Combs' surgery
in July 1986, she was under a restriction not to lift more than
25 pounds which was imposed by her treating physician, Dr. Hart.
In July 1986, Ms. Combs underwent a Marshall-Marchetti
Cystourethropexy and posterior repair for pelvic pressure.
Approximately six weeks after the surgery, she returned to work.
Southwestern was informed by Dr. Hart that Ms. Combs "should
refrain from heavy lifting in the future [and] [s]he should limit
her lifting to 15-20 pounds." This restriction remained
unchanged throughout her employment at Southwestern and was
reaffirmed each year. There is nothing in the reaffirmations
which implies or suggests that her lifting restriction was a
temporary limitation. This was made perfectly clear in June 1987
when her treating physician notified Southwestern that she should
refrain from heavy lifting "forever" and, again, in May and
December of 1989 when her treating physician reiterated that the
15-20 pound lifting restriction was permanent.
7. In January 1989, Dr. Hart reiterated to
Combs' past problems, surgical repairs, and limitations. In view
of her three past repairs, subsequent prolapses, and a
hysterectomy, Dr. Hart believed that, absent following his
lifting restriction, Ms. Combs stood a significant chance of a
repeat prolapse of the bladder with even less chance of repairing
it a fourth time.
8. After notification of Ms. Combs' lifting
restriction in late
August 1986, Southwestern informed Ms. Combs in September 1986,
that it could accommodate her lifting restriction for two months.
This period was subsequently extended until May 1987. The record
does not reveal what, if any, accommodations were instituted.
There was not a marked difference in the frequency of lifting
performed by Ms. Combs before her surgery in 1986 and after she
returned from her surgery.
9. As an employee of Southwestern, Ms. Combs
was subject to
annual evaluations. The annual evaluations as of June 1984
through June 1989 reflect that Ms. Combs performed satisfactorily
as a developmental aide. She was described as a hard worker who
had a good knowledge of the programs, followed official
procedures, practiced safety awareness, and was willing to
perform any jobs requested by her superiors. After the
imposition of her limitation on lifting, there was no indication
that her productivity or the quality of work was deficient or
affected by her limitation.
10. In 1989-90, Southwestern housed 223 residents of which 145 were diagnosed as profoundly mentally retarded and 62 were diagnosed as severely mentally retarded. Of the total residents, 81 needed assistance with walking on occasion and 48 used wheelchairs. Of the total residents, 153 were diagnosed as
11. A mildly retarded person has an IQ between
50 and 70; a
moderately retarded person has IQ between 35 and 50 and has the
equivalent skills of a five year old; a severely retarded person
has an IQ between 20 and 35 and is dependent upon other people
for his or her care and, in some cases, can do some things by him
or herself; and a profoundly retarded person has an IQ between
zero and 20 and is dependent upon other people for his or her
12. Southwestern assigns a resident to one of
units -- Unit 1, 2, or 3 -- according to his or her level of
functioning. Within each unit, a resident is then assigned to a
residential living unit based on age, sex, and level of adaptive
Some residential living units are located in one-story cottages,
while other residential living units are situated in one-story
buildings. Generally, each living unit consists of a kitchen,
dining room, bath room, living room, and sleeping quarters and
accommodates eight to ten residents.
The residents of Unit 1 are the better functioning residents in
terms of mobility and care for themselves. They are able to feed
themselves. Several of the residents are able to or are learning
to ride bicycles. There are approximately 130 residents in this
unit and they are housed in 14 cottages. Some of the residents
have behavior problems and, therefore, have specific behavioral
Unit 3 consists of Building 3 which houses 54 residents and 4
cottages which house 22 residents. This unit contains the
residents who are the most dependent individuals. Most of the
residents are in the lower range of profound retardation. Some
residents require wheelchairs for mobility, over half cannot feed
themselves, many cannot toilet themselves, and others require
Building 3 is "T" shaped and has three wings. Each wing
comprises two residential living units, one on each side of the
corridor. Thus, there are 6 residential living units in the
building and each unit accommodates 9 residents. Each
residential living unit has a common living room, bedrooms, and
bath facilities. Each residential living unit shares a dining
room with its adjacent unit. Communication with the adjacent
residential living unit is easily done without raising one's
voice; however, communication between wings requires one to raise
his or her voice.
The residents of Unit 2 have a slightly higher skill level than
the residents of Unit 3. They are all ambulatory; however, some
residents may need occasional assistance in walking as they are
prone to trip. As a group, these residents have less
overwhelming medical problems than the residents of Unit 3.
There are, however, more residents with behavior problems
assigned to this group than Units 1 and 3. Unit 2's residents
are housed in one large building and several cottages.
13. Some of the residents in all the Units have
skills or unusual gait problems. As a result, they have a
tendency to trip on occasion and may need assistance from a
developmental aide in walking to and from the daily education
classes located in another building. The assistance may include
escorting by the arm, following close-by, or holding the gait-
belt of a resident. It is Southwestern's policy not to place an
individual who can walk in a wheelchair.
14. At the time of Ms. Combs' dismissal, Units
3E and 3F had six
or seven residents who presented behavior intervention problems
on a somewhat regular basis. Within these units, there were
three or four residents who required the use of a wheelchair of
which only one resident needed substantial assistance in getting
into or out of a wheelchair. This lifting duty was performed by
three or four individuals. Ms. Combs assisted in performing the
lifting on occasion.
15. During 1989 and 1990, Southwestern
140 full-time and between 11 and 30 temporary developmental
16. Developmental aides and technicians are
responsible for the
daily on-site care and instruction of the residents of the
facility which emphasizes developing and maintaining the personal
dignity, self-esteem, and self-reliance of the residents and
creating a normal living environment. A developmental technician
performs essentially the same work as a developmental aide;
however, this individual also functions as the leader of a group
of developmental aides.
For each resident, the care and instruction is substantial and
its nature will vary depending upon the extent of an individual's
developmental level, social maturity, and physical handicap or
handicaps. Instruction is formal as well as informal. Informal instruction may include, for
example, teaching an individual to
scoop with a spoon during a meal.
The developmental aides and technicians are responsible for an
resident's compliance with his or her program plan and living
unit's schedule. This includes insuring that residents are
awakened or taken to bed, and that they are dressed, toiletted,
washed, and fed. It also includes supervising recreation and
learning and social activities. Aides are charged with
protecting and subduing residents who lose control of themselves.
Aides are similarly responsible for care of the mobility-impaired
residents, including bathing and evacuating them in emergencies.
17. There have been several small fires at Southwestern, including one in Building 3. The relative frequency, magnitude, and extent of damage by the fires are not part of the record.
18. Prior to December 16, 1989, the position
description of a
developmental aide described the duties of a developmental aide
[p]rovides direct training, observation, and
supervision and assistance to residents of the Center.
Ensures compliance with resident's Individual Program
Plans, individual and living unit schedules, and
documentation requirements. Depending on the
developmental levels and social maturity of particular
residents, program and schedule compliance may require
physical assistance, manual or verbal guidance,
modeling, instruction or monitoring of behavior in the
domains of personal hygiene and care, domestic
competency, socialization and academic prevocational
skills. Emphasis is placed on developing and
maintaining personal dignity, self-respect, and self
reliance of the residents and creating a normal
environment. Escorts ambulatory residents and
transports those confined to wheelchairs to and from on
and off campus activities and appointments.
The position description estimates that 40% of total working time
is spent conducting habilitation and care training and activities
on the living unit; 15% on paper work; 10% on safe and orderly
use of living unit supplies and equipment, resident clothing, and
personal possessions; 10% on implementation of academic,
prevocational or therapeutic programs conducted by professional
staff; and the remainder on miscellaneous duties.
19. As of December 17, 1989, the position description was modified to add "lifting" as one of actions which may be necessary to achieve program and schedule compliance with respect to the residents. Further, "lifting as needed" was added to the category for the safe and orderly use of supplies; the program section was modified to add "[i]mplements programs involving the physical and mechanical restraint of residents;" and the transportation provision was modified to add "[p]ushes residents dependent on wheelchairs for mobility; assists with transfers to
and from wheelchairs."
20. Southwestern utilized three shifts of developmental aides and technicians in its daily program. The first shift begins at 6:45 A.M. and concludes at 3:15 P.M. The second shift begins at 2:45 P.M. and concludes at 11:15 P.M. The third shift begins at 11:00 P.M. and concludes at 7:00 A.M. The residents are in bed by 9:30 P.M. and are awakened at approximately 6:45 A.M.
During the first and second shift, it was Southwestern's policy
to have two employees working in each residential living unit.
This may consist of a developmental technician and a
developmental aide or two developmental aides. Southwestern
occasionally lowered the coverage on some residential living
units to one developmental aide after the residents were put to
bed in the second shift.
During the third shift, Southwestern's policy was to have one
developmental aide per each residential living unit in a cottage.
In Building 3, one aide was assigned to each of the three wings
and two aides were assigned to rove among the residential living
units to assist with any problems.
21. There was generally one developmental
technician assigned to
either Unit 3E or 3F during the first and second shift.
22. Occasionally during the day, such as meal
employees, there was only one developmental aide on duty in each
residential living unit.
23. The management of Southwestern was
primarily concerned with
the well-being of its residents. In this regard, the two
developmental aides assigned to each residential living unit
functioned as a team. As a team, it was common for tasks to be
performed unequally by the aides. In some instances, a resident
preferred or worked better with one aide than the other aide
assigned to the unit. In other circumstances, developmental
aides preferred some tasks over others and, therefore, traded
tasks. The management of Southwest condoned such trading and
sharing of the various tasks by the developmental aides so long
as the needs of the residents were met.
24. It was appropriate and normal for aides to
assistance for lifting, behavioral intervention, or other
necessity. In addition, security personnel were also available
in emergencies and for other situations which the aides could not
25. The developmental aides and developmental technician assigned to corridors 3E and 3F in Building 3 worked also as a group in some circumstances, including behavioral intervention situations and lifting tasks in the residential living unit
areas. In this regard, they functioned, essentially, as a team.
Ms. Combs participated to a limited degree in the behavioral
intervention aspect of the job position. Generally, one or more
of the other three developmental aides handled the direct
physical aspect of the intervention program while she,
simultaneously, ensured that the other residents were not
involved in the situation and attended to their needs. Thus, Ms.
Combs performed one of the duties required of the team in this
circumstance. There is no evidence that the allocation of duties
in this circumstance was not agreed upon by the developmental
aides or that it was disapproved by management.
There was one resident in particular in Unit 3E or 3F who
possessed enormous strength. During his episodes of misbehavior,
two to three men were required to wrestle him to the floor in
order to bring him under control. In some instances, Ms. Combs
participated in the intervention process and was responsible for
grabbing his legs which caused this resident to then fall to the
26. Like other developmental aides, Ms. Combs
was asked on
occasion to work in other residential living units located in one
of the buildings or cottages. There is no evidence that her work
in these other residential living units was not satisfactory.
27. Ms. Combs used her best judgment in
determining whether to
lift various objects. She did not have any pain or other bodily
manifestation which would warn her that she was lifting in excess
of 20 pounds.
28. On June 6, 1989, Southwestern, due to the
restriction placed upon Ms. Combs, issued guidelines governing
the performance of her duties as follows:
Due to your work restriction of not lifting more than 20 pounds, it is required of you to take the following precautions while working on your assigned R[esidential] L[iving] U[nit].
If a situation arises in which you need to lift something
that is heavier than your limit mentioned above, (non-
ambulatory resident needing on or off the toilet, etc.) you
should first of all, see if someone else is available to do
this (two or more people to do a two-person transfer). If
two staff are not available, you should either let the
resident wait until help is available, (if possible) or, use
the Hoyer Hydraulic Lift. You should not assist during a
two-person transfer if your share of the resident's weight
will be greater than the limit mentioned above. Preferably,
any lifting done by you will be done by using the lift.
29. The lifting restriction memorandum was an attempt to clarify
what her responsibilities were when she needed to lift beyond the
limitation imposed by her doctor.
30. The June 1989 lifting restriction
memorandum concerning Ms.
Combs was one of several memoranda created shortly after the
employment of Dr. Woods as the Assistant Program Director. Dr.
Woods was concerned with the potential liability of Southwestern
due to the employment of individuals with physical restrictions
or impairments and, therefore, ordered the preparation of
memorandum outlining the employee's restrictions and his or her
limitations on pertinent duties.
31. In 1989, Southwestern had at least one
Hoyer lift. A Hoyer
lift is a movable crane-like device used to lift immobile
residents. It was cumbersome to use. Among other things, it
required the operator to lift substantial weight, i.e. in excess
of 20 pounds, if the resident was not capable of lifting and
moving herself or himself onto the sling which was attached to
the device. The record does not disclose the number of lifts
owned by Southwestern or the specific residential living units in
which the lifts were located other than Units 3E and 3F did not
have a Hoyer lift. As of 1989, training for new developmental
aides included the use of the Hoyer lift.
32. On or about November 14, 1989,
Southwestern issued a
memorandum announcing its policy pertaining to employee injury,
which provided in part that--
[e]mployees who have been absent from work because of a
work-related injury may not return to work without a
written statement from the attending physician that the
employee is physically capable of performing all duties
of his/her position. . . . Statements from physicians
returning an employee to limited or restricted duty
will be reviewed by the Supervisor and the Human
Resource Manager. If the restrictions are temporary in
nature and will not have adverse effect on other staff
or residents, the employee may return to work,
submitting another statement when the physician removes
the restrictions. However, light duty cannot exceed 90
consecutive calendar days.
. . . .
For personal illness or injury, no limited duty or consideration will be made unless the employee can perform all duties listed in his/her job description.
33. Southwestern had established procedures for dealing with uncontrolled behavior of residents. The nature of a resident's behavioral program varied. It could include actions such as timeouts, graduated guidance, enforced relaxation, counseling,
One aspect of Southwestern's policy was that an aide shall obtain
assistance, if needed, as soon as practicable when a resident
exhibits uncontrolled behavior. The aide was not to endanger
himself or herself. There was a designated person or group of
individuals whom the particular aide was expected to call upon to
obtain the assistance.
34. It was the policy of Southwestern that
should holler for assistance when they needed it, if this was
appropriate, or to use the telephone to obtain assistance.
Similarly, it was the policy of Southwestern that developmental
aides and others such as security personnel were expected to
respond to requests for assistance if it was possible.
35. The most common injury suffered by
developmental aides was
an injury caused by biting, striking, or similar inappropriate
behavior by a resident. The second most common injury affected
the back or upper body and was caused by attempting to break the
fall of a resident with ambulation problems. There is no
evidence in the record reflecting the frequency of injury among
the staff or the relative degree of the injuries sustained.
36. The resident population changed in Unit 3
between 1986 and
1989. In 1986, some residents in Unit 3 had a few physical
handicaps and all the residents could bear their own weight.
Over the next 3 years, the residents with good physical skills
were transferred to another facility or to a different unit
within Southwestern and were replaced with new residents who
required more physical care due to greater physical limitations.
In addition, the remaining residents were aging and suffering
from deteriorating physical conditions which required more
37. Southwestern did not have a policy which
minimum lifting capacity required of a developmental aide.
Southwestern hired individuals as developmental aides without
regard to any inherent factor which may bear upon an individual's
capacity to lift such as height, build, age, or weight. This
included one woman who was in her 70's and was used as a
developmental aide on a temporary basis during the third shift.
As such, the lifting strength of the developmental aides varied
substantially. Southwestern did encourage, however, the use of
2- and 3-person teams in lifting residents.
Management did not remove a sign located in the office for Units
3A and 3B in Building 3 which forbade lifting in excess of 25
pounds. According to the testimony of one developmental
technician, management orally discouraged lifting in excess of 25
38. In the fall of 1989, Ms. Combs was informed
that she would
lose her position by the end of the year if her doctor did not
remove her lifting restriction.
39. Ms. Combs refused to be examined by a
physician selected by
Southwestern; however, there is no evidence that Southwestern had
a right to make such a demand upon Ms. Combs.
40. On December 2, 1989, Southwestern advised
Ms. Combs that it
could no longer accommodate her lifting restriction.
41. In Ms. Combs' view, there was no difference
in the amount of
assistance she received from her fellow employees regarding the
lifting duties whether it was before her illness in 1986, after
she returned from her illness, or after the she received the
guidelines governing her work restriction in June 1989.
42. Mr. Griffith is the Assistant Program
Manager and has served
as the Program Coordinator for Unit 3 since April 1985.
He supervised Ms. Combs' immediate supervisor. He has prior experience as developmental aide and technician and then as a team leader which supervises developmental aides and technicians.
In 1989, Mr. Griffith had occasion to discuss Ms. Combs' work performance with her immediate supervisor and personally observed Ms. Combs' work once or twice. In his view, she was competent and a good worker but allowed other people to handle, on occasion, the more physical, hands-on type activity. In his view, Ms. Combs could no longer perform those aspects of the developmental aid position which required lifting more than 15-20 pounds. She was reluctant to participate in the behavioral interventions concerning several residents. In addition, he was of the view that bathing residents and escorting residents with walking problems presented problems.
43. Dr. Woods is the Assistant Director for
Programs and had
general responsibility for the residential and professional
services. In his view, Ms. Combs' lifting restriction precluded
her from performing all the essential elements of her position.
This conclusion was not based upon his personal observation of
Ms. Combs' performance of her duties; rather, it was based upon
his understanding of duties required of a developmental aide. In
his view, "I don't see how a person, given the nature of the work
that they do, I don't see how a person could possibly do the job
and protect the residents and carry out active treatment with
such a restriction." It appears that his concern regarding the
20 pound lifting restriction was related to the intervention in
behavioral disorders required by a developmental aide, the
assistance provided by a developmental aide when a resident
tripped and fell or was in the process of falling, and the
general lifting required of some residents who could not support
their own weight.
44. In November or December, 1989, the
Executive Team reviewed,
as it did every week, the various physical restrictions of its
employees. In addressing Ms. Combs' situation, the Executive
Team decided that Ms. Combs could not perform the essential
functions of her job as a developmental aide. This decision was
based upon its opinion as to whether an individual with a 15-20
pound lifting restriction could perform the duties of a
developmental aide and the opinions of the management of Unit 3
that Ms. Combs could not perform the essential functions of the
45. On December 29, 1989, Unit 3 Manager
Jerry Feets wrote a
memo to Ms. Combs which informed her that she was being placed on
non-work status due to the continuation of medical restrictions
as of January 1, 1990--
[t]hese restrictions do not allow you to perform all the job
duties described in the current job description for all 2nd
shift developmental aides. You will continue in a non-work
status until such time that you are able to perform all
tasks of your current job description.
46. In the judgement of Dr. Woods, Ms. Combs
could not work in
the infirmary because it housed acutely ill residents with a wide
range of behavioral problems, including severe behavioral
disorders, and those individuals might have to be lifted or
carried as needed.
47. After an employee is declared disabled by
Commonwealth's policy requires that reasonable accommodation must
be examined. This includes the possibly of restructuring work or
transferring or demoting employees into positions which they can
perform. If no reasonable accommodation can be made, Rule 11.8
states that management can require employees to apply for
disability or early retirement, even though they have sick leave
balances or workers' compensation leave available.
48. On December 2, 1992, Southwestern offered
Ms. Combs a
position in the food service department at the same pay she was
currently receiving as a developmental aide. The food service
position required three eleven hour shifts and one seven hour
shift, Sunday to Wednesday or Wednesday through Saturday. The
position was located in one of the dining rooms and required Ms.
Combs to set the tables, serve the meals, and clean up
thereafter. She refused this offer of employment. In her
opinion, the food service position was more physically demanding,
had substantially less desirable hours, and did not allow any
interaction with other members of the staff or the residents.
49. On December 29, 1989, Southwestern sent a copy of the food service position description to Ms. Combs' treating physician. In his view, Ms. Combs was physically capable of performing the
food service position so long as it did not require lifting in
excess of 15-20 pounds. Her treating physician made no judgment
regarding the lifting requirements of this position.
50. On December 29, 1989, February 2, 1990,
and March 21, 1990,
Southwestern offered Ms. Combs the food service position. She
refused the position each time.
51. On March 21, 1990, Southwestern placed
Ms. Combs on leave
without pay effective March 11, 1990 and continuing through April
10, 1990. The basis for this action was described as "[y]ou have
provided physician's documentation that you are unable to work
without several restrictions which limit you being able to fully
perform the job [as a developmental aide]." In the event Ms.
Combs was not released by her physician to return to her regular
job without restrictions, she was informed that she would be
placed on conditional leave without pay beginning April 11, 1990
through July 11, 1990.
52. On April 10, 1990, Southwestern placed Ms.
conditional leave without pay effective April 11, 1990 and
continuing through July 11, 1990. The basis for this action was
described as "[y]ou have provided physician's documentation that
you are unable to work without several restrictions which limit
you being able to fully perform the job [as a developmental
53. In the view of management of Southwestern,
lifting restriction would preclude her from employment in any
similar, large intermediate care state facility.
54. In 1990 or 1991, Southwestern began
acquiring ARJO lifts for
use in lifting residents. This lift was more user friendly than
the Hoyer lift. Among its advantages, it had a better sling
arrangement and, therefore, required substantially less physical
effort on the part of the operator than the Hoyer lift.See footnote 13
Lynne R. Fleming, Esq.
Margaret A. Browne Esq.
Joan W. Murphy, Esq.
William H. Hurd, Esq.
James S. Gilmore, III, Esq.
Office of the Attorney General
101 North Eighth Street
Richmond, Virginia 23219
David M. Leeman, Esq.
Robert F. Shaul, Esq.
Office for Civil Rights
U.S. Department of Education
600 Independence Avenue, S.W.
MES, Room 5221
Washington, D.C. 20202-1221
findings of fact in the Appendix, infra.