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NELSON v. THORNBURGH

July 12, 1983

Martin NELSON, et al.
v.
Richard THORNBURGH, et al.



The opinion of the court was delivered by: POLLAK

 Plaintiffs Martin Nelson, Paula Buntele and Thomas Mobley are income maintenance workers ("IMWs") employed by the Department of Public Welfare ("DPW") of the Commonwealth of Pennsylvania, and assigned to neighborhood offices of the Philadelphia County Board of Assistance ("PCBA"). Defendants, all sued in their official capacities, are Governor Richard Thornburgh, Secretary of Welfare Helen O'Bannon and PCBA Executive Director Dan Jose Stovall. *fn1"

 Plaintiffs are blind. Because their job entails extensive paperwork, they are unable to perform their duties satisfactorily without the aid of a reader. Plaintiffs have therefore hired readers on a part-time basis. With the assistance of these readers, plaintiffs meet the requirements of their position as well as their sighted colleagues.

 
No otherwise qualified handicapped individual in the United States . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. . . .

 Plaintiffs seek declaratory and injunctive relief, as well as damages for reader expenditures made in the past.

 Defendants contend that plaintiffs are not "otherwise qualified" within the meaning of section 504 because they do not possess an essential qualification of the IMW position: the ability to read. Alternatively, defendants argue that, even if "otherwise qualified," plaintiffs are not entitled to the accommodation that they seek because the cost of readers or mechanical devices would be an undue hardship on DPW and PCBA. Finally, defendants insist that, even if they are found obligated to assume the cost of accommodating plaintiffs' blindness in the future, this court is without authority to require defendants to reimburse plaintiffs for reader expenses incurred heretofore.

 The issues in this case have been fully developed through plaintiffs' unsuccessful motion for a preliminary injunction, defendants' partially successful motion for summary judgment, supplemental memoranda on the issue of damages, and a four-day trial. On the basis of the evidence presented, I make the following:

 FINDINGS OF FACT

 I. The Parties

 Plaintiffs Martin Nelson, Paula Buntele and Thomas Mobley, all blind since birth, are employed by DPW as IMWs. Each is assigned to a different district of the PCBA. Defendants Thornburgh, O'Bannon and Stovall have ultimate responsibility for the policies and practices complained of in this lawsuit.

 DPW is a department of the Commonwealth of Pennsylvania, charged with administering the federal and state programs, such as cash assistance, food stamps and medical assistance, designed to aid those in need. See 62 Pa.Stat.Ann. § 401. In the fiscal year which ended on June 30, 1983, DPW was authorized to disburse $4,310,000,000; of this sum, a little under half came from the federal government through block grants. An additional $300,000,000 is devoted to administering the funds, $141,000,000 of which is contributed by the federal government. Eighty percent (80%) of the administrative budget is used to pay salary and benefits for DPW's 38,000 employees. *fn2"

 Since 1979, budgetary constraints have considerably reduced the work-force of the county assistance offices, including the offices in Philadelphia County administered by the PCBA. For instance, 160 clerical employees have been furloughed in Philadelphia County, and a hiring freeze has been in effect since 1979. During that same period, caseloads have increased by about 100,000 cases statewide, with a proportional increase in Philadelphia. This combination of diminished resources and enlarged responsibilities has resulted in a growing backlog of work in many offices, increasing the strain on clerical, caseworker and supervisory employees.

 II. The Functions of the IMW

 The IMW is, as a rule, the only point of contact between the individual recipient and the massive apparatus of the state and federal welfare system. Historically, the focus of the IMW's responsibilities was on social work: accompanying the provision of material aid with counselling and referrals to other helping agencies (e.g., vocational training programs). The caseworker, as the IMW used to be known, interviewed the client, sometimes in a home visit, and then described in a narrative the results of the interview and the reasons for granting or denying aid.

 By the mid-1970's the nature of the job had shifted away from traditional social work. The central function of the job is now the determination of the client's initial and continued eligibility for federal and state benefits. The practice of reporting the outcome of the interview through a narrative recital is a casualty of this trend; it has been almost fully replaced by computerized standard forms. The standard forms are designed to maximize efficient processing of benefits and minimize mistakes by making it easier to control the IMW's discretion and keep the client files uniform.

 The principal form used by the IMW in the interview with the client is the "743," part of the "121 series" adopted by DPW in the mid-1970's. The IMW elicits from the client all the information required by the five-page form, which includes everything relating to the client's financial, vocational and family situation that could conceivably bear upon the question of eligibility. *fn3" DPW's normal procedure calls for the IMW to copy this information by hand on the appropriate block of the 743 form. Depending on the client's situation, the IMW may also have to fill out other forms, such as a food stamp application worksheet or a child support form. During the interview, the IMW often will have to review documents provided by the client. Some documents, such as rent receipts, are used to verify the client's address; others, such as medical reports, are used to evaluate the client's medical fitness for work, an important component of the eligibility requirement.

 After a form is completed, the IMW hands it to the client for review. If the information is correct, the client signs the form. The typical IMW spends about half the day conducting interviews.

 After the client leaves the office, the IMW makes the determination of eligibility for benefits. To do this, the IMW consults the DPW Income Maintenance Manual ("the Manual"). The Manual is over one thousand pages long, and filled with regulations, procedures, charts and tables. New materials are added to the Manual almost daily, reflecting changes in the amount of aid or the policies affecting its distribution. *fn4" From the standards contained in the Manual, the IMW determines if the information on the 743 entitles the client to receive or continue to receive benefits. *fn5" Some of the benefits are distributed under federal programs, such as Aid to Families with Dependent Children, Old Age Assistance, and foodstamps. Other benefits exist under state programs, like General and Medical Assistance.

 After determining eligibility under these programs, the IMW fills out an instruction sheet encoding the decision on the amount of benefits, and sends it with the 743 to the clerical department. The clerical staff then enters all the data into the central computer.

 The IMW must then perform the post-interview procedures, which include completing forms in order to update client information, sending copies of forms to appropriate offices and personnel and notifying the client of DPW's decision on his or her eligibility.

 The IMW must also be prepared to handle client emergencies by being able to calm distraught clients, replace lost checks, or track down bureaucratic error.

 Changes in the last ten years have operated to limit the range of discretion associated with the IMW position. Yet the IMW remains a professional-level position, with significant responsibilities. The capacity to read without aid is certainly helpful in carrying out the duties of the job, as are the abilities to hear or to move about without help. The essential qualifications for this career, however, are dedication to the work, sufficient judgment and life-experience to enable one accurately to assess the legitimate needs of clients, and the ability to work effectively under the pressure of competing demands from clients and supervisors.

 III. The Blind IMW

 A. The Plaintiffs' Experiences

 With the aid of readers, plaintiffs perform their job as well as sighted IMWs. By employing readers on a part-time basis, plaintiffs have earned fully satisfactory evaluations from their supervisors.

 The experience of plaintiff Martin Nelson as a blind IMW is typical of the other plaintiffs, with relevant differences noted in footnotes. Mr. Nelson came to work for DPW in 1970, *fn6" and has employed a reader on a part-time basis since that time. As long as records were being kept in narrative form, Mr. Nelson's need for a reader was limited, for the narratives were dictated into a machine and then transcribed by the typing pool. With the advent of the standardized form, demanding meticulous attention to detail, Mr. Nelson's use of a reader increased dramatically. He currently uses his reader an average of 32.5 hours per week.

 Mr. Nelson pays his reader $3.80 per hour, spending approximately $480 per month for reader salary, or about $5,100 per year. Mr. Nelson earns $21,379 in salary, plus fringe benefits of about $4,000. *fn7" Plaintiffs are able to afford a reader on their salary because they receive $316 per month in Supplemental Security Income (SSI). They receive SSI benefits to help defray work-related expenses that result from their blindness. That portion of the reader expenses not covered by SSI is paid out of salary, and is tax deductible. Were the SSI benefits to cease, plaintiffs would be unable to employ readers.

 When conducting a client interview, Mr. Nelson uses his reader to fill out the forms according to his instructions and to read aloud any documents the client may have brought in. Mr. Nelson takes notes of the interview in braille, with a slate and stylus. *fn8" After the form is completed, Mr. Nelson confirms that the information given is accurately inscribed, and then has the client sign the form. Mr. Nelson later has his reader review specific sections of the Manual in order to determine eligibility. The reader also helps Mr. Nelson carry out the special projects.

 When the reader is not there, Mr. Nelson reviews his file of brailled client cards. *fn9" But, as Mr. Nelson testified, after he has organized his work, "there are times when time lies rather heavily on my hands," and all there is left to do is "read two or three articles of National Geographic." N.T. 133-34.

 Ms. Buntele follows a procedure similar to Mr. Nelson's and, like Mr. Nelson, experiences periods of inactivity when the reader is not present. On the other hand, Mr. Mobley, by varying the routine slightly, has been able to reduce significantly both his demand for a reader and his idle time. Mr. Mobley schedules his interviews with clients for the afternoons. Like Mr. Nelson, he takes notes on a slate and stylus. But Mr. Mobley's reader is not present during interviews. *fn10" His reader works mornings, helping Mr. Mobley to fill in the 743 and the instruction sheet for the previous day's interviews. The client returns sometime during that day, or soon thereafter, to verify and sign the completed form. By following this procedure, Mr. Mobley needs a reader for only four hours per day.

 B. The Demand for Readers and DPW's Response

 As DPW's increased use of standardized forms spawned the plaintiffs' increased use of readers, each plaintiff separately requested that DPW assume the reader expenses. When informal attempts to reach a settlement on the issue proved futile, Nelson filed a complaint in July 1980 with the Office of Civil Rights (OCR) of the Department of Health and Human Services. Buntele filed a similar complaint a few months later. On investigating these complaints, OCR concluded that DPW was not in compliance with section 504's implementing regulations because it was not providing the complainants and other blind IMWs with sufficient accommodation. OCR requested that DPW reimburse blind employees for past and current reader expenses pending creation of a civil service position of reader. DPW refused to comply and efforts at reaching a negotiated settlement failed.

 In October or November, 1981, plaintiffs met with representatives of the PCBA to discuss possible accommodations. Plaintiffs requested that DPW either provide them with readers, or restructure the IMW position to reduce the need for readers by, for example, brailling the Manual, forms and training material, or by allowing the IMWs to type or dictate client information. Marie DeLuca, Deputy Executive Director of PCBA, directed a study of the feasibility of plaintiffs' requests. She determined that providing readers or brailling the Manual would be prohibitively expensive, and that modifying the standard form would impede ...


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