The opinion of the court was delivered by: LUDWIG
By order of June 16, 1987 defendants The Philadelphia Housing Authority, Garfield Harris and William Gaughan were directed to pay plaintiff's counsel, Community Legal Services, Inc., $ 5,000 within 30 days. Defendants' appeal followed.
Plaintiff Sara Perez filed this action on August 9, 1985 to contest her discharge from employment by PHA on July 9, 1985. The complaint sought compensatory and punitive damages together with an injunction to restore plaintiff's job status to "Injured on Duty"; and expenses, including counsel fees. The relief was premised on alleged violation of the Rehabilitation Act, 29 U.S.C. § 794, as amended, the Fourteenth Amendment Due Process Clause, and the Pennsylvania Workmen's Compensation Act, 77 Pa. C.S.A. § 1 et seq.1 By the time of trial, May 20, 1986, plaintiff was able to return to work. On that day, the parties settled. Plaintiff gave up her substantive claims in return for reinstatement as an employee and payment of $ 600. Left open was the claim for counsel fees and costs. It was agreed that the maximum amount of fees awardable would be fixed or "capped" at $ 5,000.
Certain facts are undisputed. Plaintiff was hired by PHA on November 14, 1983 as a bilingual receptionist-clerk at an annual salary of $ 11,234. She was a member of a collective bargaining unit. Her job duties included answering the telephone, speaking with Hispanic tenants and visitors, notifying appropriate PHA officials as to which tenant required service, sending correspondence to tenants and answering visitor or tenant inquiries. On July 9, 1984 while at work plaintiff fell and sustained back and leg injuries that incapacited her for more than two months. She received worker's compensation benefits but remained eligible for employment benefits including medical coverage. PHA listed her as injured on duty. On September 17, 1984 plaintiff returned to work and was required to remain the entire day although her physician's note released her to work part-time. On the following day, she was allowed to work part-time. She received no other accommodation. A week and a half later, she stopped working and was returned to injured on duty status. On January 3, 1985 PHA and its insurance carrier petitioned to terminate her worker's compensation benefits. However, the insurance carrier's request for a supercedeas of benefits during the pendency of the termination petition was denied. By letter of July 10, 1985, pursuant to a one-year discharge policy, PHA informed plaintiff that her employment was terminated effective the previous day. She had no notice of the discharge policy and no prior notice of termination.
Based on the evidence presented at the hearing, the following facts are found. As a result of the July 9, 1984 accident, plaintiff sustained a severe lumbosacral sacroiliac sprain with radiculopathy. When plaintiff returned to work in September, 1984 in addition to a part-time schedule, she requested the following accommodations: (1) a wooden straight back chair; (2) use of the elevator located in the building; and (3) coverage for regular breaks. These accommodations were needed because her residual back pain was aggravated by plaintiff's sitting or standing for long periods of time or negotiating steps. These accommodations were reasonably necessary to meet the physical requirements of plaintiff's job. Largely because PHA did not provide the requested accommodations, plaintiff had to leave her job after a week and a half. No investigation of plaintiff's physical condition or her claim of handicap and IOD status was undertaken by defendants until after this action was begun.
The "threshold question then, is to determine whether plaintiff is 'a handicapped individual.'" Elstner v. Southwestern Bell Telephone Co., 659 F. Supp. 1328, 1341 (S.D. Tex. 1987). See, e.g., Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir. 1986); Strathie, 716 F.2d at 230; E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1098 (D. Hawaii 1980). The Rehabilitation Act defines "handicapped individual" as "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." 29 U.S.C. § 706(7)(B) (emphasis added).
In determining whether a particular person is handicapped under the Act, the Department of Health and Human Services' regulations are "an important source of guidance." School Board v. Arline, 480 U.S. 273, 107 S. Ct. 1123, 1127, 94 L. Ed. 2d 307 (1987) (quoting Alexander v. Choate, 469 U.S. 287, 304 n.24, 105 S. Ct. 712, 722 n.24, 83 L. Ed. 2d 661 (1985)). Significantly, the regulations define "physical impairment" to mean:
Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine.
45 CFR § 84.3(j)(2)(i) (1986). Under the regulations "major life activities" are "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." Id. at § 84.3(j)(2)(ii). Courts have delineated impairment to be "any condition which weakens, diminishes, restricts, or otherwise damages an individual's health or physical or mental activity." E.E. Black, 497 F. Supp. at 1098.
PHA asserts that plaintiff was not handicapped under the Rehabilitation Act because she suffered from transitory back pain and not from a commonly recognized handicap. This generalized approach is not well taken. The determination of "who is a handicapped person under the Act is best suited to a 'case-by-case determination.'" Forrisi, 794 F.2d at 933 (quoting E.E. Black, 497 F. Supp. at 1100). "The inquiry is, of necessity, an individualized one - whether the particular impairment constitutes for the particular person a significant barrier to employment." Forrisi, 794 F.2d at 933. See also Elstner, 659 F. Supp. at 1342. "It is the impaired individual that must be examined, and not just the impairment in the abstract." E.E. Black, 497 F. Supp. at 1099. See also Trimble v. Carlin, 633 F. Supp. 367 (E.D. Pa. 1987) (knee injury sustained at work constituted handicap).
The record shows that plaintiff had a physical impairment that substantially limited her activities. Plaintiff testified that her back problems caused her considerable pain.
This pain not only affected her work but also her ability to walk, sit, stand, drive, care for her home and child, and engage in leisure pastimes. ...