complete the examination--were sufficient to meet the statutory mandate.
Plaintiffs offer two reasons why they were not. First, they maintain, defendants have failed to establish that it would have been unduly burdensome to arrange for plaintiffs to take the examination in braille, their preferred accommodation. Second, plaintiffs argue, even if the defendants' planned accommodations would have been sufficient in the abstract, the problems occurring at the actual administration of the test--i.e., the readers' distracting behavior and the problems in the audio transcription of the examination--rendered the efforts legally unsatisfactory. At the very least, plaintiffs claim, there are issues of fact relating to each of these arguments that prevent the Court from granting defendants' motion for summary judgment. I find, however, that plaintiffs' arguments are incorrect as a matter of law and that the disputed factual issues relating to those arguments are, consequently, not material.
Plaintiffs' first argument, that defendants have not established the impracticability of offering the examination in braille, appears to stem from a misunderstanding of the statutory requirements. In any event, it is a legal irrelevancy. The statute requires employers to make such reasonable accommodations as will allow disabled individuals to compete fairly with their non-disabled colleagues. See Pandazides v. Virginia Bd. of Educ., 804 F. Supp. 794, 801 (E.D.Va. 1992) ("The Rehabilitation Act does not guarantee the handicapped equal results; it assures evenhanded treatment . . ."). There is no provision requiring the employer to take account of the disabled individual's preferences in choosing the means of accommodation. So long as the means chosen allow the individual to fairly compete, the employer satisfies his legal obligation. See Wynne v. Tufts Univ. School of Medicine, No. 99-1105- Z, 1992 WL 46077, at *1 (D. Mass. Mar. 2, 1992) ("That defendant could have provided a different set of reasonable accommodations or more accommodations does not establish that the accommodations provided were unreasonable or that additional accommodations were necessary."). See also Carter v. Bennett, 651 F. Supp. 1299, 1301 (D.D.C. 1987), aff'd, 268 U.S. App. D.C. 183, 840 F.2d 63 (D.C. Cir. 1988) ("The government is not obligated under [the Rehabilitation Act] to provide plaintiff with every accommodation he may request, but only with reasonable accommodation as is necessary to enable him to perform his essential functions."). In this case, therefore, the question of whether defendants could have offered the examination in braille without undue hardship and expense is not the proper question with which to begin. Rather, I must first determine whether the efforts made by defendants were reasonable accommodations. Only if I find that they were not is there need to examine whether a braille examination, or other alternative accommodations, were feasible.
As a matter of law, however, I find that the accommodations offered by defendants were sufficient to satisfy their statutory obligation. By providing a taped version of the exam, a tape player, a reader, and extra time, defendants afforded sufficient aid so that plaintiffs' blindness should not have been a disadvantage to them in taking the examination. If all had gone as planned, defendants efforts would have enabled plaintiffs to know and understand the test questions and to register answers to those questions without undue haste. See Carter, supra (holding provision of a reader, inter alia, to be a reasonable accommodation of a blind employee); 45 C.F.R. § 84.12(b) (including provision of a reader among a list of examples of reasonable accommodation). That is all anyone taking a test is entitled to ask. Consequently, I find that defendants' efforts toward accommodation, as planned, were reasonable and sufficient to satisfy 29 U.S.C. § 794(a).
Of course, plaintiffs' second argument is that things did not go as planned and that problems with the actual administration of their examinations rendered defendants' efforts at accommodation unsatisfactory. According to plaintiffs, their readers were more of a hinderance than a help, and the taped version of the exam contained incorrect versions of two questions.
Because plaintiffs have submitted enough evidence to at least raise issues of fact in these areas, for the purposes of this motion, I take plaintiffs' allegations as true. Doing so, however, does not change my conclusion that defendants' efforts at accommodation were adequate.
Plaintiffs do not dispute that the readers employed by defendants were instructed to talk only when necessary during the examination and to avoid disrupting the participants in any way. See Ehlers 7/9/93 Aff. at P 3. Nor do plaintiffs claim that defendants used anything less than their best efforts in attempting to prepare an accurate audio tape version of the examination. What defendants have alleged (and what I assume to have happened) are unauthorized, unintentional actions and errors which resulted in unfair test-taking conditions. This, however, is not what the Vocational Rehabilitation Act was designed to remedy.
As noted above, the Act was intended to prevent employment discrimination on the basis of disability. That evil is not presented by random occurrences which, by chance, adversely affect employees (or, in this case, employment candidates) who are disabled. The sorts of problems forming the basis of plaintiffs' complaint could just as easily have struck their nondisabled colleagues. A noisy reader could have been a disruptive timekeeper; an unclear audio tape could have been a typographical error. The relevant inquiry, for purposes of § 794(a), is whether the disabled test-takers were in any way placed at a disadvantage in the means by which such unforeseen circumstances were remedied.
Here, that was not the case. Defendants having made plans and promulgated policies to adequately accommodate plaintiffs' blindness in the administration of the examination, plaintiffs were put in the same position as all other applicants: They were protected by testing procedures designed to guarantee a fair examination, the violation of which was grounds under New York State law for a challenge pursuant to C.P.L.R. Article 78 to the administration of the test. See e.g., Matter of Mitchell v. Poston, 41 A.D.2d 886, 342 N.Y.S.2d 482, 483 (4th Dep't 1973) (Civil Service Commissioner is vested with discretion to determine the competitiveness of examinations and to correct errors in a reasonable manner). If, for example, plaintiffs' readers were talking loudly about personal matters, this would have violated the testing policy that readers must be unobtrusive, and plaintiffs would have been able to demand appropriate relief in an Article 78 proceeding. Assuming plaintiffs' allegations to be true, therefore, they were victims of unfortunate improprieties committed by personnel of defendants, but not of disability-based discrimination. Their problems arose from the test administrators' failure to follow concededly adequate instructions, not from any inherent unfairness arising out of their disability. To the extent there were problems in the administration of plaintiffs' examinations, they had the same rights as all other test-takers to correct them.
Because I find as a matter of law that defendants reasonably accommodated plaintiffs' disability in the administration of Civil Service Examination No. 8508, defendants' motion for summary judgment must be granted.
Defendants' motion for summary judgment is GRANTED.
Dated: New York, New York
June 15, 1994
LORETTA A. PRESKA, U.S.D.J.