BNUMBER:  B-266286
DATE:  October 11, 1996
TITLE:  J. Richard Murdock

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Matter of:J. Richard Murdock

File:     B-266286

Date:October 11, 1996

DIGEST

The Federal Travel Regulation specifically excludes costs connected 
with structural alterations of living quarters from reimbursement as a 
miscellaneous expense incident to a transfer.  41 C.F.R.  sec.  
302-3.1(c)(13) (1995).  The cost of structural alterations to the new 
residence of a transferred handicapped employee may not be reimbursed 
as a "reasonable accommodation" under the authority of the 
Rehabilitation Act of 1973, 29 U.S.C.  sec.  701, 791 (1994).

DECISION

This is in response to a request for an advance decision submitted by 
John F. Best, Chief, Finance and Accounting Division, Directorate of 
Resource Management, Department of the Army, U.S. Army Corps of 
Engineers,[1] on the appropriateness of reimbursing a mobility 
impaired individual for structural alterations to his new residence in 
connection with a Permanent Change of Station (PCS) under the 
authority of the Rehabilitation Act of 1973.

BACKGROUND

J. Richard Murdock, an employee of the U.S. Army Corps of Engineers 
was authorized a PCS from Brussels, Belgium, to Vicksburg, 
Mississippi, effective February 1994.  Mr. Murdock's new residence in 
Vicksburg required structural alterations for the constructing of 
ramps and widening of doors to accommodate his disability.  The cost 
was approximately $4,000.  Mr. Murdock is requesting reimbursement for 
part of the cost of these alterations as "miscellaneous expenses" in 
connection with his PCS.  Specifically, he is requesting the maximum 
reimbursement allowed under title 5 for miscellaneous expenses, which 
in his case is $1,804.80 (two weeks basic compensation).  41 C.F.R.  sec.  
302-3.3(b) (1995).  

The issue raised by the Corps is whether the alteration costs may be 
reimbursed under the authority of the Rehabilitation Act of 1973 
despite the specific provision in the Federal Travel Regulation making 
the costs of structural alterations as not allowable.  As discussed 
below, these costs may not be allowed.

ANALYSIS AND CONCLUSION

Title 5 U.S.C.  sec.  5724(a)(1) (1994) authorizes reimbursement of travel 
and transportation expenses of an employee transferred in the interest 
of the government.  Section 5724a(b) and the implementing regulations 
in the Federal Travel Regulation (FTR), 41 C.F.R. part 302-3, 
authorize reimbursement of miscellaneous expenses incident to a 
transfer.  The purpose of this allowance as stated in 41 C.F.R.  sec.  
302-3.1(a) is "for defraying various contingent costs associated with 
discontinuing residence at one location and establishing residence at 
a new location in connection with an authorized or approved permanent 
change of station." 

The FTR allows reimbursement of costs "related to expenses that are 
common to living quarters, furnishings, household appliances, and to 
other general types of costs inherent in relocation of a place of 
residence . . . ."  41 C.F.R.  sec.  302-3.1(b).  Types of costs 
specifically listed as not covered by the miscellaneous expense 
allowance under 41 C.F.R.  sec.  302-3.1(c)(13) include "costs incurred in 
connection with structural alterations; remodeling or modernizing of 
living quarters, garages or other buildings to accommodate privately 
owned automobiles, appliances or equipment; or the cost of replacing 
or repairing worn-out or defective appliances, or equipment shipped to 
the new location."  Since Mr. Murdock's claimed costs clearly involve 
structural alterations to his privately-owned property, they are 
excluded as a reimbursable miscellaneous expense by this FTR 
provision. 

Therefore, the question is whether the claim may be paid under the 
Rehabilitation Act of 1973, as amended, 29 U.S.C.  sec.  701 (1994), which 
requires federal agencies to formulate and implement programs for the 
employment and advancement of handicapped individuals.  29 U.S.C.  sec.  
791(b) (1994).  Regulations implementing the Rehabilitation Act issued 
by the Equal Employment Opportunity Commission (EEOC) require federal 
agencies to make "reasonable accommodation" to known limitations of a 
qualified handicapped employee, unless such accommodation would impose 
an undue hardship on the operation of the agency's program.  29 C.F.R.  sec.  
1613.704(a) (1995).  

Reasonable accommodation may include:  making the agency's facility 
readily accessible to and usable by handicapped persons; job 
restructuring; modified work schedules; acquisition of equipment, 
readers and interpreters; and other similar actions.  29 C.F.R.  sec.  
1613.704(b) and  sec.  1613.707.  In sum, agencies are required to gather 
sufficient information to determine what accommodations are necessary 
to enable the handicapped to perform their jobs.  Mantolete v. Bolger, 
767 F.2d 1416, 1423 (9th Cir. 1985); Buckingham v. United States, 998 
F.2d 735 (9th Cir. 1993).

To assist a handicapped employee to perform official travel, an agency 
is authorized as a reasonable accommodation to pay for the services of 
an attendant to accompany a blind employee to his new post of duty, 
Alex Zazow, 59 Comp. Gen. 461(1980); to reimburse the cost of shipping 
a specially equipped automobile between duty stations for an employee 
who does not have the use of her arms, Norma Depoyan, 64 Comp. Gen. 30 
(1984); and to pay the extra baggage handling fees for a handicapped 
employee when necessary to accommodate the employee's handicap.  Alyan 
R. Hill, 68 Comp. Gen. 242 (1989). 

The agency's counsel cites the above cases and, in addition, cites 
McWright v. Alexander, 982 F.2d 222 (7th Cir. 1992), in support of the 
view that Mr. Murdock's residence alteration costs may be allowed as a 
reasonable accommodation.
In McWright, the plaintiff alleged that her agency had failed to make 
a reasonable accommodation to her handicap by failing to show 
flexibility in granting her child-care leave for her adoptive child, 
while routinely granting such leave to biological mothers employed by 
the agency.  The lower court had dismissed the complaint, but the 
United States Court of Appeals reversed and remanded the case back to 
the lower court to determine whether the agency had illegally 
discriminated against her based on her handicap.

In the course of its opinion, the court stated that the 
"Rehabilitation Act calls for reasonable accommodations that permit 
the handicapped to lead normal lives, not merely accommodations that 
facilitate the performance of specific employment tasks."  Id., at 
227.  In making that statement, the court rejected the lower court's 
suggestion that the plaintiff's complaint of unequal treatment, even 
if correct, did not relate to any specific condition of work and, 
thus, was not within the Act.  The  Court of Appeals concluded instead 
that if the agency's actions regarding child-care leave in fact did 
have a disparate impact on handicapped employees, the complaint would 
have merit.  

There is no suggestion in this case that the Corps of Engineers 
unfairly treats handicapped employees or that its actions have a 
disparate impact on such employees.  The issue here is whether an 
agency, by using the authority of the Rehabilitation Act, may allow 
certain residence expenses incurred by a transferred handicapped 
employee when such costs otherwise are not allowable under the FTR.  
McWright, which dealt with an allegation of discrimination against 
handicapped employees, has no application to this situation.

Of the various travel and relocation cases cited above, the agency's 
counsel believes that 64 Comp. Gen. 30, supra, is particularly 
relevant to Mr. Murdock's claim.  There, as stated, the costs of 
shipping a specially equipped automobile to a handicapped employee's 
new duty station were allowed.  The rationale for doing so, as 
explained in the decision, was that it was less costly to ship the 
automobile than the alternative-paying the expenses of the employee 
and a driver to transport the car to the new duty station, as 
permitted under 59 Comp. Gen. 461, supra.  No similar rationale exists 
for reimbursing Mr. Murdock's residence alteration expenses.  As for 
the other cited cases, they involve reimbursement of costs incurred in 
the performance of official travel.  Mr. Murdock's costs were incurred 
for a purpose unrelated to the performance of official travel, namely, 
to enable him to have mobility in his personal residence.  None of the 
cited cases authorizes the allowance of the type of costs claimed 
here.

The EEOC has provided guidance on the extent of the obligation to make 
reasonable accommodation in accordance with the requirements of the 
"Americans With Disabilities Act" (ADA) at 42 U.S.C.  sec.  12111(9).  
Although the ADA does not apply to federal employers, 42 U.S.C.  sec.  
12111(5)(B)(i), the EEOC states that its implementation of the ADA 
"does not apply a lesser standard than the standards applied under 
title V of the Rehabilitation Act of 1973 or the regulations issued by 
federal agencies pursuant to that title."  29 C.F.R.  sec.  1630.1(c).  The 
ADA guidance states that the obligation to make a reasonable 
accommodation does not extend to the provision of adjustments or 
modifications that are primarily for the personal benefit of the 
individual with a disability.  It further states that if an adjustment 
or modification assists the disabled or handicapped employee 
throughout his or her daily activities, on and off the job, it is a 
personal item that the employer is not required to provide as a 
reasonable accommodation, such as a prosthetic limb, wheelchair, or 
eyeglasses.  See APPENDIX to 29 C.F.R. part 1630, Interpretive 
Guidance, section 1630.9 (1995). 

Similarly, an agency's responsibility to assist a handicapped employee 
to perform the duties of the job does not extend to the providing of 
financial assistance to pay for the cost of items that are used by the 
employee in his daily activities.  While Mr. Murdock's need for the 
alterations resulted from a PCS, his situation is no different from 
that of any transferred employee who makes alterations to his new 
residence to meet his personal needs.  The burden to pay for such 
alterations is to be borne by the employee, not the employer.

Accordingly, reimbursement may not be made for the costs incurred by 
Mr. Murdock in connection with the structural alterations to his 
residence.

/s/Seymour Efros
for Robert P. Murphy  
General Counsel

1. Reference: CELMM-RM-F (37)
 Memphis District Corps of Engineers