Opinion
Civil Action No. 99-T-1357-N.
January 20, 2001
Tommy J. Jacobs, represented by Arlene M. Richardson, Richardson Legal Center, LLC, Hayneville, AL, Tommy Allen French, Robert B. French, Jr., PC, Fort Payne, AL, for Plaintiff.
William Henderson, Postmaster General of the United States, represented by Charles Redding Pitt, John D Saxon PC, Birmingham, AL, Kathy Lynne Janowicz, U.S. Postal Service, Legal Division, Memphis, TN, Kenneth E. Vines, U.S. Attorney's Office, Montgomery, AL, Patricia A. Snyder, U.S. Attorney's Office, Montgomery, AL, R. Randolph Neeley, U.S. Attorney's Office, Montgomery, AL, Stephen Michael Doyle, United States Attorney's Office — ALM, Middle District of Alabama, Montgomery, AL, John E. Potter represented by Kathy Lynne Janowicz, U.S. Postal Service, Legal Division, Memphis, TN, R. Randolph Neeley, U.S. Attorney's Office, Montgomery, AL, Stephen Michael Doyle, United States Attorney's Office — ALM Middle District of Alabama, Montgomery, AL, for Defendant.
ORDER
In this lawsuit, plaintiff Tommy J. Jacobs, a black former employee of the United States Postal Service, whose physical activities are limited by a spinal and left-extremity condition, charges that the Postal Service both failed to accommodate his disability reasonably, in violation of the Vocational Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701-796i, and discriminated against him on the basis of his race, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 1981a, 2000e through 2000e-17. Jacobs alleges that, by first denying his requests for light-duty work and sick leave, and by subsequently presenting him with the choice of termination or disability retirement rather than an offer of a reassignment to another position or a modification of his job-description, Postal Service officials failed to comply with their duties to accommodate his disability reasonably, and failed, on account of his race, to provide him the level of accommodation that is ordinarily accorded white employees with comparable physical impairments. Jacobs names the Postmaster General as defendant. He invokes the court's jurisdiction under 29 U.S.C.A. § 794a(a)(1) and 42 U.S.C.A. § 2000e-16(c).
This suit is now before the court on the Postmaster General's motion to dismiss or, in the alternative, for summary judgment. Because both sides in this action submitted documents outside the pleadings to support their respective positions, the Postmaster General's motion to dismiss or, in the alternative, for summary judgment is treated as solely a summary-judgment motion. Fed.R.Civ.P. 12(b). For the reasons that follow, the Postmaster General's motion for summary judgment will be denied as to Jacob's Rehabilitation Act claim and granted as to his Title VII race-discrimination claim.
I. SUMMARY-JUDGMENT STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." "Where, as here, the non-moving party bears the burden of proof on an issue at trial, the moving party, in order to prevail, must do one of two things: show that the non-moving party has no evidence to support its case, or present `affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial.'"Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir. 1994) (quotingUnited States v. Four Parcels of Real Property, 941 F.2d 1428, 1437-38 (11th Cir. 1991) (en banc)); see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir. 1993) (describing the responsibilities of the summary judgment movant and non-movant as dependent upon the burden of proof at trial).
Once the party seeking summary judgment has informed the court of the basis for his motion, the burden shifts to the non-moving party to demonstrate why summary judgment would be inappropriate.Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986). To this end, the non-moving party must affirmatively set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of his pleadings. Fed.R.Civ.P. 56(e). The Eleventh Circuit Court of Appeals has recently emphasized that this "summary judgment rule applies in job discrimination cases just as in other cases."Chapman v. AI Transport, 229 F.3d 1012, 1026 (11th Cir. 2000) (en banc).
The court's role at the summary-judgment stage is not to weigh the evidence or to determine the truth of the matter, but rather to determine only whether a genuine issue exists for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511 (1986). In making this determination, the court must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986).
II. FACTUAL BACKGROUND
The facts viewed in the light most favorable to Jacobs are as follows. Jacobs was hired by the Postal Service on June 30, 1973, and he became a full-time letter carrier in March of 1975. In 1984, Jacobs suffered an on-the-job back injury which required surgery and which disabled him from letter-carrier duties for about a year. After returning to his letter-carrier position, Jacobs again had serious back trouble in 1990. At the time, he was determined by doctors to be totally disabled. However, he was able to return to his position full-time and perform to the apparent satisfaction of the Postal Service, working many years in which he used few of the sick-leave days available to him under Postal Service policy. On November 5, 1996, however, Jacobs suffered another serious back injury which he believed to be work-related and which left him unable to do a full day of work as a letter carrier. Accordingly, he filed a workers' compensation claim for the November 5 injury. During the pendency of his workers' compensation claim, from early March through about early August 1997, the Postal Service gave Jacobs a "limited-duty" assignment pursuant to a post office policy of providing limited-duty work for workers with successful or pending workers' compensation claims. In his limited-duty position, Jacobs performed clerical and other non-onerous tasks to the apparent satisfaction of his supervisors.
In Postal Service terminology and practice, "limited duty" accommodation is the provision of a physically less challenging position based on an employee's workers' compensation status, while "light-duty" accommodation is the provision of a physically less challenging position that is not tied to an employee's workers' compensation claim. According to the Postal Service, the former is provided as a matter of course, while the latter is a privilege that may be granted if a position is available.
On February 11, 1997, Dr. Calin G. Braicu diagnosed Jacobs's condition to be "left extremity pain/ridiculopathy/spinal canal stenosis." This condition involved a host of physical restrictions that made it impossible for Jacobs to perform a full day of the usual letter-carrier tasks. Dr. Braicu found that Jacobs could not use his arms in reaching or working above his shoulder, could not twist his body, and could not carry any weight while walking; however, he determined that Jacobs was fit for light-duty work such as standing or walking six hours per day, sitting two hours per day, occasionally lifting up to 25 pounds, and using repetitive-foot motion to operate foot controls.
Jacobs believed that his workers' compensation claim had been deliberately held up, and on February 14, 1997, he submitted a light-duty request. This request was denied on February 18 on the ground there was no available work within Jacobs's physical restrictions.
On February 22, 1997, Jacobs initiated the process of making an Equal Employment Opportunity (EEO) complaint by filling out an "Information for Precomplaint Counseling" form, on which he alleged discrimination on the basis of race, age, sex, and physical disability. On this form, he complained about the denial of light duty. He also complained about the Postal Service's refusal to allow him sick leave for January 9 when he had called in sick. On that day, within four hours of his calling in sick from home, Jacobs was called by Postal Service personnel and told to bring medical documentation from a physician. Upon his return to work, the Postal Service refused to treat his absence as a proper use of sick-leave and classified the absence as "unscheduled." Jacobs was told by the station manager that some people did not believe that he was truly sick. Further indicating Postal Service distrust of his claimed incapacity, Jacobs has presented evidence suggesting that his calling in sick from home was the conventional practice while a Postal Service requirement of prompt documentation for a single day of sick leave was out of the ordinary. However, after Jacobs provided medical forms from Dr. Braicu to document his injuries, the Postal Service did eventually retroactively treat January 9 as a sick-leave day.
On April 23, 1997, Jacobs signed a formal EEO complaint form which was marked as received on April 24. The form designated union leader Butler B. Browder as Jacobs's representative. A hand-written notation on the form alleged that discrimination was occurring "1/9/97 continuous", and the discrimination was described as the denial of light-duty work and the denial of sick leave in accordance with established policy. The "race", "sex," and "age" discrimination boxes — but not the "disability" box — on the form were marked.
In a letter to Jacobs dated July 24, 1997, and received by the Postal Service's injury compensation unit on July 28, Jacobs's workers' compensation claim was rejected on the grounds that it could not be proven that his last back injury occurred on the job for purposes of the Federal Employees' Compensation Act, 5 U.S.C.A. §§ 8101- 8193. As a result of this decision, no more limited-duty work was provided to Jacobs. According to Jacobs, he was told by supervisor Phil Story not to return to work but that he could put in a request for a permanent job accommodation. Jacobs submitted several more light-duty requests but says that these were ignored, and that he was then forced to support his family without his regular salary, resulting in hardship and dependence upon food stamps.
The Postal Service arranged for a fitness-for-duty examination of Jacobs in January 1998 by Dr. Keith Vanderzyl, an independent board certified orthopedic surgeon. Dr. Vanderzyl's conclusions confirmed those of Dr. Braicu, finding that Jacobs was physically incapable of returning to typical mail-carrier duty but that he could perform less onerous tasks.
In March or April of 1998, Story presented Jacobs with a choice between application for disability retirement and removal from the Postal Service. Jacobs was sent a formal notice of proposed removal in April 1998. The justification for Story's ultimatum was Jacobs's physical incapacity for continued letter-carrier duty, the unavailability of limited duty due to the failure of Jacobs's workers' compensation claim, and the lack of a light-duty position. At various times, the Postal Service has also represented that Jacobs's "unscheduled" absences played a role in the decision. However, other than the Postal Service's distrustful reaction to Jacobs's January 9, 1997, absence (distrust which was apparently corrected by the documentation of his condition by Dr. Braicu and later by Dr. Vanderzyl), the Postal Service has not indicated that it believes Jacobs missed any days and quit coming to work altogether in July 1997 for any reason other than his physical incapacity to do the tasks of a letter carrier.
Jacobs completed an "Applicant's Statement of Disability" form on March 18, 1998, describing his inability to do prolonged standing, sitting, bending, reaching, or lifting, and his around-the-clock experience of pain from recurring disc problems. On or about May 1, 1998, Jacobs applied to the Office of Personnel Management for disability retirement. That office his application on July 22, 1998. As a direct result of the office's approval of his disability retirement, the Postal Service terminated Jacobs on August 6, 1998.
On November 15, 1999, Jacobs filed suit in this court pro se, seeking recovery of back pay and reinstatement. He complained of his termination and alleged that discrimination against him began in January 9, 1997, and was ongoing to the present. Jacobs marked the boxes for discrimination on the basis of race, sex, and age but not disability. However, he described the nature of his complaint and of the alleged discrimination as follows:
"I suffered an on the job injury to my back in 1984 which lead to back surgery and a doctor's recommendation that I be considered disable[d]. However, this doctor's recommendation was ignored by the Postal Service and I was put to Full Duty. Doing the same work which had cause[d] my injury. I suffered daily but needed to work and provide a livelihood for my family. On Jan. 9, 1997 and Feb. 18, 1997 I was denied sick leave and light duty work due to the reinjury to my back and or aggravation to my pre-existing on the job injury. Thus I was not allowed to work and on 10-5-98, I was told to retire or be terminated."
On November 15, Jacobs also filed a motion to proceed in forma pauperis. On January 10, 2000, Magistrate Judge Vanzetta Penn McPherson granted Jacobs's motion to proceed in forma pauperis, and concluded that, although Jacobs's had not yet received a right-to-sue letter, it was proper for his federal-court suit to proceed. In April 2000, Jacobs finally succeeded in getting attorney representation. Jacobs then sought leave to amend his complaint to allege discrimination on the basis of race and disability, and this motion was granted on June 1, 2000. During the pendency of this federal suit, the Equal Employment Opportunity Commission (EEOC) issued an administrative decision, finding that Postal Service personnel did not discriminate against Jacobs on the basis of sex or race when he was denied sick leave on January 9, 1997, and when he was denied limited duty on February 18, 1997.
III. EXHAUSTION OF EEO ADMINISTATTIVE REMEDIES A. Legal Standards
Congress has expressly made a private plaintiff's court filing of a Title VII claim contingent upon prior pursuit of EEO administrative remedies. 42 U.S.C.A. § 2000e-5(f). In contrast, the text of § 791 of the Rehabilitation Act does not expressly include an exhaustion requirement. However, in 1978, Congress amended the Rehabilitation Act to include § 794a(a)(1) which, for claims brought under § 791, incorporates certain procedures from the Title VII context. Most courts, including the Eleventh Circuit, have construed this incorporation to include the exhaustion requirement of Title VII.Doe v. Garrett, 903 F.2d 1455, 1461 (11th Cir. 1990) (holding that private actions against federal government employers under the Rehabilitation Act, "whether brought under section 791 or 794, must satisfy `the requirement of exhaustion of administrative remedies in the manner prescribed by section [794a(a)(1)] and thus by Title VII'") (internal citations omitted); see Prewitt v. United States Postal Service, 662 F.2d 292, 303-04 (5th Cir. Nov. 5, 1981); Counts v. United States Postal Service, 631 F.2d 46 (5th Cir. 1980); see also Woodman v. Runyon, 132 F.3d 1330, 1341 (10th Cir. 1997); Spence v. Straw, 54 F.3d 196 (3d Cir. 1995); Vinieratos v. United States Department of Air Force, 939 F.2d 762 (9th Cir. 1991);McGuinness v. United States Postal Service, 744 F.2d 1318, 1320 (7th Cir. 1984). Thus, ordinarily, neither a Title VII claim nor a Rehabilitation Act claim brought under § 791 can be pursued in federal court unless the plaintiff has first timely utilized the EEO administrative process. 42 U.S.C.A. § 2000e-5(f).
29 U.S.C.A. 794a(a)(1) provides:
"The remedies, procedures, and rights set forth in section 717 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e-16), including the application of sections 706(f) through 706(k) ( 42 U.S.C. 2000e-5(f) through (k)), shall be available, with respect to any complaint under section 791 of this title, to any employee or applicant for employment aggrieved by the final disposition of such complaint, or by the failure to take final action on such complaint."
In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the Fifth Circuit that were handed down prior to the close of business on September 30, 1981.
If a plaintiff has generally satisfied this exhaustion requirement with a timely filed EEO administrative charge, however, he need not limit his complaint in federal court to the specific claims or facts alleged in the initial EEO administrative charge. The plaintiff is free to allege in court "any kind of discrimination like or related to the charge's allegations, limited only by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination." Chanda v. Engelhard/ICC, 234 F.3d 1219, 1225 (11th Cir. 2000) (internal citations omitted); see also Mulhall v. Advance Security, Inc., 19 F.3d 586, 589 n. 8 (11th Cir. 1994); Coon v. Georgia Pacific Corp., 829 F.2d 1563, 1569 (11th Cir. 1987); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970).
This liberal "like or related" standard of the caselaw is further supported by statements in the Code of Federal Regulations providing that the EEO administrative rules shall be liberally construed so as to effectuate the purpose of the statutes administered by the agency, 29 C.F.R. § 1601.34, and that, "Whenever the Commission receives a charge or obtains information relating to possible violations of one of the statutes which it administers and the charge or information reveals possible violations of one or more of the other statutes which it administers, the Commission will treat such charges or information in accordance with all such relevant statutes." Id. § 1626.19(b). This regulation indicates that the appropriate EEO administrative agency has an independent duty to investigate possible violations of the discrimination statutes when such investigation has a basis in the record even though the complainant did not formally allege the relevant violation. Id. The Code of Federal Regulations also allows that,
"[A] charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of. A charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein. Such amendments and amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received. A charge that has been so amended shall not be required to be redeferred."Id. § 1601.12(b). Thus, the regulations confirm the generosity of the caselaw: The requirement that "like or related" claims must be within "the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination," Chanda, 234 F.3d at 1225, cannot be a highly restrictive limitation because the proper scope of the administrative investigation is itself governed by liberal and expansive standards.
B. Jacobs's Exhaustion of EEOC Remedies
The Postmaster General seeks to dispose of most of Jacobs's claims by arguing they are barred for failure to exhaust the EEO administrative remedial process. The Postmaster General maintains that Jacobs cannot bring any Rehabilitation-Act claim to court because he raised claims of discrimination on only the basis of race, gender or age, not disability, in his EEO administrative complaints. The Postmaster General also contends that Jacobs cannot complain of wrongful termination, forcible retirement, or constructive discharge under either Title VII or under the Rehabilitation Act because his EEO administrative complaints concerned only the denial of sick leave on January 9, 1997, and the denial of light-duty work on February 18, 1997.
The Postmaster General does not dispute that Jacobs timely filed an EEO administrative complaint on April 23, 1997, nor dispute that Jacobs's complaint was ripe by the time of his court filing. The Postmaster General's failure-to-exhaust argument instead targets the scope of Jacobs's EEO administrative allegations, contending that Jacobs's court case has to be reduced to his race-discrimination claim and the facts of the January 9, 1997, denial of sick leave and the February 18, 1997, denial of light-duty work because, according to the Postmaster General, no other relevant issues were raised in the administrative process. This argument depends upon a restrictive, formalistic reading of Jacobs's administrative complaint that cannot be reconciled with the governing standards that allow Jacobs's court case to include "any kind of discrimination like or related to the [EEO administrative] charge's allegations."Chanda, 234 F.3d at 1225; see also 29 C.F.R. §§ 1601.34 1626.19 (2000). As will be explained further below, the court finds that Jacobs did in fact satisfy the exhaustion requirement for all of his claims.
1. Jacobs's Exhaustion of his Disability Complaint
The Postmaster General emphasizes the fact that, when Jacobs filled out the "Type of Discrimination Alleged" section of the "EEO Complaint of Discrimination in the Postal Service" form on April 23, 1997, he put an "X" in the boxes labeled "race," "sex," and "age," and handwrote next to these boxes "black," "male," and "47," respectively, but he did not put any marks in or around the box labeled "disability". The Postmaster General also points to the fact that, on May 14, 1997, the EEO Compliance and Appeals Coordinator wrote Jacobs a letter which described the scope of the Postal Service's investigation of his complaint as one that was limited to the "specific issues" of sick leave and light-duty accommodation, and to discrimination on the basis of race, sex, and age. The letter stated that Jacobs could provide written objections to the scope of this investigation, yet Jacobs made no objections.However, in an earlier form filled out on February 22, 1997, "Information for Precomplaint Counseling," Jacobs did specifically write "Physical disability" in response to the question "What Factor(s) of Discrimination Are You Alleging . . .?" Fred G. Ott, the EEO Counselor/Investigator, responded with a letter to Jacobs on April 10 reporting that "The Counselor/Investigator interviewed Mr. Bob Uland, Supervisor Customer Services (204-B), on April 10, 1997, concerning your complaint. Mr. Uland stated he did not discriminate against you because of your race, sex, age, or physical disability." Thus, the record indicates that the appropriate administrative agency was put on notice of the possibility of a disability-discrimination claim at the very initiation of Jacobs's complaint process.
Defendant's Exh. 5 (emphasis added).
The Postmaster General concedes that, in his precomplaint form, Jacobs initiated the EEO administrative process with an express complaint of disability discrimination. Nonetheless, the Postmaster General takes the position that Jacobs's failure to continue to use the legal category of disability discrimination in his subsequent EEO administrative submissions, especially the formal complaint, means that Jacobs failed to exhaust the EEO administrative process and gave the investigative agency cause to think the initial disability claim had been abandoned. Thus, the Postmaster General treats the exhaustion inquiry as if it resembled an inquiry into whether legal claims have been waived or preserved by repetition through the pendency of a court case. However, such a formalistic waiver-like argument is at odds with the "like or related" standard that governs whether EEO administrative remedies have been exhausted.
Defendant's Brief, at 19.
Both the relevant caselaw and the EEO and EEOC regulations emphasize the lay complainant's allegations of the facts rather than his legal framing of the issues. See, e.g., Sanchez, 431 F.2d at 463 ("the only absolutely essential element of a timely charge of discrimination is the allegation of fact contained therein"); Mullins v. Crowell, 228 F.3d 1305, 1312 (11th Cir. 2000) (although plaintiffs did not claim in their EEOC complaint that reduction-in-force disability-based classifications were discriminatory, their factual allegations to the EEOC about discriminatory dismissals were sufficient to allow a Rehabilitation Act classification challenge in court); 29 C.F.R. § 1601.12 ("[A] charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of.").
In Sanchez, a 1970 Fifth Circuit case, the district court below had dismissed the Title VII plaintiff's complaint on the ground that she had checked "the wrong box" (sex rather than ethnic discrimination) on her EEOC charge form. See 431 F.2d at 457. But the former Fifth Circuit reversed, "declin[ing] to hold that the failure to place a check mark in the correct box is a fatal error." Id. at 463. Observing that Title VII was designed for "ordinary people" as well as legal sophisticates, the court stated that a Title VII suit may be brought even by a claimant who does not comprehend the legal categories of sex and ethnic discrimination, who does not know how to fill out properly an EEOC form, or who "may have precise knowledge of the facts concerning the `unfair thing' done to him, yet not be fully aware of the employer's motivation for perpetrating the `unfair thing.'" See id. at 462-63.
See supra note 2.
Like the Sanchez court, this court can imagine a variety of reasons why a claimant with a nonfrivolous case might, in good faith, fail to check the "correct box" on his official EEO or EEOC complaint form. In fact, the possibility that a claimant unrepresented by counsel might check the wrong box seems more likely for certain kinds of disability claims than it does for claims of sex or race discrimination because the legal category of "disability discrimination" under the Rehabilitation Act is a complex one. First, unlike typical claims of discrimination under Title VII, the content of a Rehabilitation Act claim may be the employer's failure to make a disability accommodation that has a net cost (rather than a complaint of market-irrational disability discrimination motivated by animus or false stereotypes about productivity). Consequently, it might be quite natural for a claimant such as Jacobs not to know that his claim for accommodation could be considered a specie of discrimination law. Alternatively, an unrepresented claimant who is insisting upon his qualification for productive work despite physical limitations might fear that use of the "disability" category would defeat his claim that he is qualified. Of course, the court does not know the actual reason for Jacobs's failure to invoke formally the category of disability discrimination at each stage of the EEO and EEOC process. But the fact this omissionmight have resulted from an excusable failure to understand the governing law is sufficient cause to reject the weight the Postmaster General would place on it. Sanchez, 431 F.2d at 463 (suggesting that the liberal standards for EEOC exhaustion should be applied with general categories of claimants in mind rather than be applied case-by-case according to the subjective knowledge of the particular plaintiff).
Additionally, the phrasing of the Eleventh Circuit standard — limiting the scope of a plaintiff's court complaint to "the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination," Chanda, 234 F. 3d at 1225 (emphasis added) — suggests the complainant's indispensable duty is the provision of early notice of the foreseeable development of the complaint rather than a duty to invoke formally a particular category of discrimination at each step of the administrative process.
Moreover, the Postmaster General's attempt to discount the content of Jacobs's precomplaint form — while making the content of his formal complaint count for almost everything — is inconsistent with the EEOC's own definition of a charge which merely requires "a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of." 29 C.F.R. § 1601.12 (2000); see also Bonham v. Regions Mortgage, Inc., 129 F. Supp. 2d 1315, 1320 (M.D. Ala. 2001) (plaintiff's letter to the EEOC was sufficient to constitute an age-discrimination charge — even though the letter expressly accused the defendant of only gender discrimination — because the letter (1) was in writing, (2) provided identification of the relevant parties, and (3) generally alleged facts that might suggest age bias).
Finally, even if Jacobs had not specifically listed the category of discrimination on the basis of physical disability on his precomplaint-counseling form, or invoked that category at any stage of the administrative process, he might still satisfy the "like or related" standard because he did, at every stage of the process, consistently allege facts that could as easily be taken to form the basis for a disability-accommodation claim as for a race-discrimination claim. On the precomplaint counseling form, Jacobs wrote the following under the header "Description of Incident/Activity":
"On 1/9/97 I called in sick. Within a few hours I was called at home and told to bring a doctors slip when I return to work. I also was denied sick leave, and was told by the station manager that there some of them didn't think I was sick, and that I was making him look bad. And on 2/18/97 was denied request for light duty."
On the formal-complaint form on which he marked the "race", "sex," and "age" boxes but not the "disability" box, Jacobs wrote the following description of the allegedly discriminatory facts:
"I have been denied just leave as requested and pay even though in excess of 600 hrs are available to me. I have been denied light duty as requested as per the same injury which caused me to request leave."
These facts about Jacobs's medically based accommodation requests were also highlighted in the May 14 letter to Jacobs from the EEO Compliance and Appeals Coordinator that defined the scope of the Postal Service's investigation in terms of the "specific issues" of sick leave and light-duty accommodation, as well as of discrimination on the basis of race, sex, and age.
It is true that the administrative investigation of the issues of light-duty accommodation and sick leave was conducted entirely in terms of the possibility of race and sex discrimination, that is, the question whether the Postal Service responded more favorably to the sick leave and disability-accommodation requests of white and female employees than it did to Jacobs's requests. In making this comparative inquiry, however, the factual investigation included documentation of Jacobs's significant disability-based work restrictions, medical condition, past history of disability, and accommodation, as well as the feasibility of current-work accommodations by the Postal Service. Thus, the investigation delved into many of the facts that would be significant for a disability-accommodation claim under the Rehabilitation Act.
Of course, a charge of race or sex discrimination in the provision of disability accommodation differs from a Rehabilitation Act claim in that an employer could be liable under Title VII for a race- or sex-discriminatory denial of disability accommodation even when that level of accommodation is not generally an affirmative duty of the employer. But this legal difference in the claims does not gainsay the fact that there is much overlap in the relevant questions and facts entailed by the two inquiries (for example, the question of the Postal Service's ability to reassign Jacobs to a job consistent with his physical restrictions arises in both). Thus, the court finds that Jacobs's disability-discrimination claim is "like or related to" his race-discrimination claim even if, in other cases, a disability claim would be too dissimilar to satisfy the "like or related" standard. Compare Chanda, 234 F.3d 1225 (the plaintiff's retaliation claim in his judicial complaint that was based upon alleged national-origin discrimination was not "like or related" to his earlier retaliation complaint to the EEOC because the latter was based only upon alleged disability discrimination and had made no mention of national-origin issues) with Hornsby v. Conoco, 777 F.2d 243, 247 (5th Cir. 1985) (even though the plaintiff had not marked the box on the EEOC charge form for sex discrimination, she could bring a sex claim as well as an age claim because, in her EEOC submissions, there was underlying factual support for sex- and age-discrimination claims; but, she could not also bring a harassment claim because both the harassment charge and the facts were "new and independent" of the EEOC materials).
In Jacobs's case, it is true that there was never an EEO or EEOC investigation of any possible disability charge under the Rehabilitation Act even though there was an investigation of many of the facts that might form the basis for a disability charge. To be included in the scope of a plaintiff's complaint, a "like or related" claim must be one that is within "the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination." Chanda, 234 F.3d at 1225. But this limitation on the addition of "like or related" claims to a plaintiff's complaint does not, as the Postmaster General suggests, require that the EEO investigative agency haveactually pursued the "like or related" claim; merely that the agency could reasonably have been expected to have done so based on the initial charges. See, e.g., id. at 1255 (rejecting a plaintiff's new claim because "a reasonable investigation based on the EEOC charge did not and would not encompass [the new claim]" (emphasis added)).
This hypothetical aspect of the exhaustion standard is very sensible because to alter the standard to require that the EEO investigative agency actually have formally investigated and decided the "like or related" claim would perversely result in the denial of judicial review to the very claims that had received the least benefit from the administrative process, irrespective of the plaintiff's diligence.
The court concludes that Jacobs's disability claim could reasonably have been expected to grow out of his initial charges of discrimination because of (1) the disability-related nature of his factual allegations, (2) his express use of the category "disability discrimination" in his precomplaint form, and (3) the investigative agency's duty under 29 C.F.R. § 1626.19 to investigate the possibility of statutory violations other than those charged by the plaintiff when there is a basis in the record for such an expansion of the investigation.
2. Jacobs's Exhaustion of His Termination Complaint
In addition to the Postmaster General's attempt to limit Jacobs's case to his Title VII claim of race discrimination, the Postmaster General also aims to knock out Jacobs's termination or constructive-discharge allegation (under both Title VII and the Rehabilitation Act) on the ground of lack of exhaustion. In this court, Jacobs has complained about his termination since his first filing, his November 15, 1999, pro se complaint in this court. However, Jacobs never expressly raised a termination claim as part of a formal complaint or amended complaint in the EEO administrative process. Of course, Jacobs could not have complained about his termination at or before the time he filed his EEO administrative complaint because it had not yet occurred. Jacobs filled out the official administrative complaint form on April 23, 1997, that is, about a year before Phil Story issued the March or April 1998 ultimatum that Jacobs must apply for disability retirement or be fired, and over 15 months before the Postal Service officially terminated Jacobs on August 6, 1998. But, Jacobs did not attempt to submit an amended administrative complaint after Story's ultimatum or the official termination for many months even though his administrative complaint was still pending. Finally, Jacobs did complain about his termination or constructive discharge in a EEO administrative document entitled "Complainant's Statement of Facts and Issues." However, Jacobs does not dispute the Postmaster General's argument that this addition to the record occurred too late to count as a timely addition of a novel charge.The Postmaster General's exhaustion challenge to Jacobs's termination claim raises the question whether, under the "like or related" standard, a plaintiff's court filing may allege facts and claims that have arisen after the filing of the EEO or EEOC administrative complaint and that have either never been brought before the administrative agency or that were brought too late to count as timely if treated as a new charge. The caselaw is clear that the answer is `yes' for certain kinds of claims and allegations. A 1980 Fifth Circuit case draws the line between "[d]iscrete acts of discrimination . . . [which] must first be reviewed administratively" before consideration by the court, and "subsequent acts . . . [which should be entertained by the court if they are] `reasonably related' to charges in the administrative filing and no material differences between them exist." Ray v. Freeman, 626 F.2d 439, 442-43 (1980) (internal citations omitted); see also Woodman v. Runyon, 132 F.3d 1330, 1341-42 (10th Cir. 1997) (subsequent acts committed pursuant to a pattern of discrimination or as part of a "continuing violation" need not have been brought before the EEOC; to require otherwise "would cause unnecessary bifurcation of [plaintiff's] claims and frustration of the principles of judicial economy"); Oubichon v. North Am. Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973) (judicial complaint may "encompass any discrimination like or reasonably related to the allegations of the EEOC charge, including new acts occurring during the pendency of the charge before the EEOC"). This caselaw is consistent with the leeway allowed in the administrative process for augmentation of the facts or amendment of claims. See 29 C.F.R. § 1601.12 ("A charge may be amended to . . . clarify and amplify allegations made therein. Such amendments and amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received. A charge that has been so amended shall not be required to be redeferred.").
In addition to the bar against new claims or facts that are "discrete" and not "reasonably related" and consistent with the EEO or EEOC complaint, courts have also disallowed new claims because the administrative investigation was completed years before the judicial complaint, Gardner v. Morris, 752 F.2d 1271, 1279 (9th Cir. 1985), and because the new claims were first introduced in a pretrial stipulation rather than in a judicial complaint or an amendment to a complaint, Coon v. Georgia Pacific Corp., 829 F.2d 1563 (11th 1987).
The court finds that Jacobs's termination or constructive-discharge allegations do not constitute "discrete acts" of discrimination which must be independently exhausted. It would have been the better practice for Jacobs to have specifically brought his termination to the attention of the appropriate administrative agency as soon as he had notice. But his termination claims are "reasonably related" to, and in no way inconsistent with, his prior EEO and EEOC complaints about Postal Service personnel's refusal to provide him light- or limited-duty work, and their reluctance or intolerance towards his use of sick leave. In fact, the connection between Jacobs's old and new allegations is closer than is typical of the claims that have been accepted and described by some courts as "continuing violations" or as reiterations of a "pattern of discrimination."See, e.g., Woodman, 132 F.3d at 1341-42. Jacobs's discharge claim is arguably not just connected to his prior EEO and EEOC allegations by the fact they share the same alleged underlying discriminatory motive or unwillingness to accommodate, the same alleged modus operandi, or some of the same allegedly discriminatory actors. The connection is closer than that because Jacobs's discharge claim can be viewed as a direct and natural consequence of Jacobs's original-factual allegations.
Both the Postmaster General and Jacobs now agree that Jacobs's incapacity for continued work (absent a job redescription or reassignment) is due to his physical disability. On the most coherent interpretation of Jacobs's allegations (whether one considers just his early allegations, or all of his allegations over time), his central complaint about the Postmaster General's failure to provide him light- or limited-duty work has always been that, absent such accommodation, his continued work in a productive job at the Postal Service was literally impossible:
"Jacobs['s] complaint from day one is that he has been denied light duty. Unequivocally, this means that he has been denied the opportunity to work. When one is injured and can not perform the tasks of his regular work assignment; he can not work. The only alternative if such person wants to continue working is to ask for a light duty assignment; this Jacobs did, and his request was denied the very same day. (Defendants Exhibit 10). These facts are simple, clear and consistent throughout all of Jacob[s]'s complaints, beginning with his April 23, 1997 EEO Complaint to the filing of this lawsuit."
Plaintiff's Response to Defendant's Reply to Plaintiff's Response.
There was an administrative investigation of Jacobs's accommodation and sick-leave complaints without any consideration of the possibility that, as early as the spring of 1997, Jacobs was trying to communicate that something weighty such as his very job was at stake. The investigation appears to have construed Jacobs's sick-leave allegation as a relatively minor complaint about the injuries he suffered from a discrete event in which the Postal Service strictly demanded prompt medical documentation and distrusted him for calling in sick. But, in fact, in his earliest submissions, Jacobs described his complaint as being about conduct that was occurring "1/9/97 continuous." Jacobs's early sick-leave complaint makes sense only if viewed as an allegation of a high-stakes adverse-employment action; that is, as an allegation that, absent an accommodation allowing him to do productive work, his only alternative to sick leave was not working at all, and that, even with Postal Service tolerance of his use of sick leave, without a job accommodation, he would ultimately run out of his allotment of sick-leave days, and thus find himself out of a job. Viewed in the light most favorable to Jacobs, his discharge claim is not only "reasonably related" to, and consistent with his earlier allegations, but also foreseeable from, and seamlessly continuous with, his EEO and EEOC submissions. Therefore, he has already satisfied the exhaustion requirement for his discharge claims.
Plaintiff's exh. 3, Plaintiff's EEO complaint.
IV. RACE-DISCRIMINATION UNDER TITLE VII A. Legal Standards
Title VII prohibits an employer from discriminating against his employees on the basis of race. 42 U.S.C.A. § 2000e-2(a)(1). InMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), the Supreme Court "established an allocation of the burden of production and an order for the presentation of proof in Title VII discriminatory-treatment cases" based on circumstantial evidence. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S. Ct. 2742, 2746 (1993). Under the McDonnell Douglas approach, a plaintiff has the initial burden of establishing a prima-facie case of unlawful race discrimination by a preponderance of the evidence. 411 U.S. at 802, 93 S. Ct. at 1824. A prima-facie case requires "evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion." Teamsters v. United States, 431 U.S. 324, 358, 97 S. Ct. 1843, 1866 (1977).The Eleventh Circuit has explained that, for the usual disparate-treatment case where direct evidence is not present, "a plaintiff establishes a prima-facie case of race discrimination under Title VII by showing: (1) he belongs to a racial minority; (2) he was subjected to an adverse job action; (3) his employer treated similarly situated employees outside his classification more favorably; and (4) he was qualified to do the job. Demonstrating a prima-facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of discrimination." Holifield v. Reno, 115 F.3d 1555, 1561-1562 (11th Cir. 1997) (citations omitted).
If the plaintiff establishes a prima-facie case, the burden then shifts to the employer to rebut the presumption by articulating legitimate, non-discriminatory reasons for his employment action. Holifield, 115 F.3d at 1564. "This intermediate burden is `exceedingly light.'" Id. (citingTurnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1061 (11th Cir. 1994)). The employer has the burden of production, not of persuasion, and thus does not have to persuade a court that he was actually motivated by the reason advanced.McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1824; Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-55, 258, 101 S.Ct. 1089, 1093-94, 1096 (1981).
Once the employer satisfies this burden of production, "the presumption of discrimination is eliminated and `the plaintiff has the opportunity to come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision'" Chapman, 229 F.3d at 1024 (citations omitted). The Eleventh Circuit has held that the establishment of a prima-facie case does not in itself entitle a plaintiff to survive a motion for summary judgment. See Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir. 1987); Pace v. Southern Ry. System, 701 F.2d 1383, 1389 (11th Cir. 1983). After an employer proffers nondiscriminatory reasons for its actions, "[i]n order to avoid summary judgment, a plaintiff must produce sufficient evidence for a reasonable factfinder to conclude that each of the employer's proffered nondiscriminatory reasons is pretextual." Chapman, 229 F.3d at 1037.
B. Jacobs's Race-Discrimination Claim
Although Jacobs has satisfied the exhaustion requirement for his Title VII race-discrimination claim, he has failed to establish a prima-facie case for these claims of disparate treatment. Jacobs simply has not carried his initial burden to provide evidence supporting an inference that his employer treated similarly situated non-black employees more favorably. He alleges generally that the Postal Service regularly offered light- or limited-duty work, or a reassignment to a new craft, to white employees who — like Jacobs — were unable to continue in their mail-carrier positions because of physical restrictions, and that the Postal Service thus enabled white employees to avoid Jacobs's ultimate fate of termination or constructive discharge.
However, Jacobs has provided little evidence other than information-and-belief assertions to show that the white employees who were accommodated with light- or limited-duty work actually were similarly situated to him. He alleges in his deposition and affidavit that Joe Felder (a white male), Ricky Chaulker (a white male), and Tammy Head (a white female) were all given work reassignments or some other accommodation that allowed them to continue as active employees despite physical restrictions. Jacobs also offers the affidavit of his union representative, Butler Browder, which represents that Joe Sweeney (a white-male letter carrier) was initially given a light-duty assignment, and later reassigned to a different craft before finally being forced to retire.
Plaintiff's Exh., 13, Plaintiff's Depo. at 63-64; Plaintiff's Exh. 6, Plaintiff's Aff.
Plaintiff's Exh. 32, Browder Aff.
Jacobs avers that Head was a mail carrier given light-duty work, but he also admits that he lacks knowledge about the nature of Head's physical restrictions and the circumstances of her accommodation. Jacobs also states that both Felder and Chaulkner had shoulder surgery but he does not allege anything more specific about their potential similarities, such as the nature of their restrictions or their job requirements.
Plaintiff's Exh. 20, Plaintiff's Depo. at 78-79.
Id.
This evidence is simply too skimpy to permit an inference that either Felder, Chaulkner, Head, or Sweeney was similarly situated to Jacobs. In fact, ironically, one of Jacobs's evidentiary submissions suggests that Chaulkner was not similarly situated to Jacobs: Jacobs's union representative indicates that Chaulkner's limited-duty assignment resulted from the Postal Service's policy of providing such an accommodation for workers who have a successful workers' compensation claim for an on-the-job injury.
Plaintiff's Exh. 32, Browder Aff.
Because Jacobs has failed to make out a prima-facie case, it is unnecessary to proceed to evaluate the Postmaster General's evidence. However, it is worth noting that the Postmaster General's evidence confirms the likely materiality of an employee's workers' compensation status through an affidavit that avers that Felder, Sweeney, and Chaulkner received limited-duty work because of the Postmaster General's policy of exclusively reserving such work for workers with pending or successful worker's compensation claims (that is, a policy consistent with the fact that Jacobs himself received limited-duty during the pendency of his worker's compensation claim until the time it was rejected). In sum, Jacobs's evidence fails to make an affirmative showing that employees who were better accommodated were, in fact, similarly situated, while his union representative's evidence about the policy linkage between limited-duty accommodation and workers' compensation outcomes tends to show that Jacobs was not similarly situated to these other employees.
Defendant's Exh. 36, Postmaster Mitchell's Aff.
Once Jacobs's accommodation and termination claims under Title VII have dropped out of the case for failure to satisfy his prima-facie burden, it is not clear to the court whether it is necessary to go on to evaluate Jacobs's sick-leave complaint as a discrete allegation. The representations and stipulations in the pretrial order do not clarify whether Jacobs wants his original sick-leave complaint to be treated as a discrete claim based solely on his early allegations about Bob Uland's unusual strictness about medical documentation (that is, whether Jacobs still intends to bring to court a sick-leave claim that resembles the EEOC's understanding of the claim), or, whether, instead, any remaining sick-leave claim is just part of Jacobs's broader and more high-stakes allegation that he was forced to use up his sick leave because of the Postal Service's refusal to accommodate his disability.
If Jacobs intends the latter, his sick-leave claim need not be considered separately because it collapses into the accommodation and termination claims; that is, it becomes a claim that Jacobs used up his sick leave because he was not accommodated and could not work without accommodation, and that he was first constructively discharged and then officially terminated because he was not accommodated and because he had used up so much sick leave. If, however, Jacobs is attempting to bring an independent claim about the medical-documentation requirements, he has provided nothing to make out a prima-facie Title VII case for it. He has offered a significant amount of evidence that Postal Service personnel were harsher or more reluctant about his early 1997 use of sick leave than would be expected based on written sick-leave policies. However, Jacobs has never come forward with particular facts about even one named non-black person who made use of sick leave in a manner similar to his, but yet who did not encounter the same resistant reaction from a supervisor. Thus, if Jacobs did, in fact, want to make a discrete Title VII claim about sick leave, it would be meritless for lack of prima-facie evidence.
V. THE REHABILITATION ACT A. Legal Standards
Jacobs brings his disability claim as an action under 29 U.S.C.A. § 791. The legal standards for a disability claim against a federal employer under § 791 of the Rehabilitation Act have yet to be well defined by courts. See, e.g., Woodman v. Runyon, 132 F.3d 1330, 1338 (10th Cir. 1997) (stating that there is no previous circuit-court case indicating the elements of a § 791 action against a federal employer). However, despite this dearth of caselaw, some of the basic principles of § 791 are clear.First, § 791 imposes an affirmative-action obligation on federal employers that goes well beyond the simple nondiscrimination requirement of § 794(a). See, e.g., Doe v. Garrett, 903 F.2d 1455 (11th Cir. 1990); Woodman, 132 F.3d at 1337-38. That is, a federal employer is not necessarily in compliance with § 791 merely because it makes employment decisions that treat disabled and nondisabled employees equally in terms of their productivity or market worth. Section 794(a) of the Rehabilitation Act sets forth a traditional antidiscrimination rule for disabled employees of agencies, specifically including the Postal Service. But § 791 goes beyond traditional notions of invidious discrimination or disparate treatment to require federal employers to make some reasonable accommodations that have a net cost — at least so long as the accommodation does not impose an undue hardship. Onishea v. Hopper, 171 F.3d 1289, 1303 (11th Cir. 1999). Section 794a(a)(1) further demonstrates this aspect of the law by stating that
"In fashioning an equitable or affirmative action remedy under such section, a court may take into account the reasonableness of the cost of any necessary work place accommodation, and the availability of alternatives therefor or other appropriate relief in order to achieve an equitable and appropriate remedy."
Second, while the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101 through 12213, also may require an employer to make accommodations with a net cost, the accommodation obligation of federal employers is greater than that of private employers under the ADA or the Rehabilitation Act because the federal government is directed to "become a model employer of individuals with handicaps." 29 C.F.R. § 1614.203(b); Woodman, 132 F.3d at 1339, n. 8 ("section 501 [§ 791] of the Rehabilitation Act applies only to federal employers, imposes affirmative action duties, and may therefore entail heightened duties of `reasonable accommodation' not applicable to private employers under the ADA"); see also S. Rep. No. 93-318, 93d Cong., 2d Sess., at 49 (1973), U.S. Code Cong. Admn. News 1973, p. 2076.
Finally, although most courts have yet to articulate the elements of a § 791 action against a federal employer, courts hearing Rehabilitation Act claims generally begin their analysis with the elements of an accommodation claim set forth in the ADA caselaw. The elements of an accommodation claim under the ADA in the Eleventh Circuit require that a plaintiff must establish that
"(a) he is handicapped but, (b) with reasonable accommodation (which he must describe), he is able to perform the `essential functions' of the position he holds or seeks. As in the usual case, it would then be up to the employing agency to refute that evidence. The burden, however, remains with the plaintiff to prove his case by a preponderance of the evidence."Willis v. Conopco, Inc., 108 F.3d 282, 284 (11th Cir. 1999) (adopting standards for an ADA accommodation claim from a D.C. Circuit case) (internal citations omitted).
B. Jacobs's Rehabilitation Act Claim
Jacobs easily satisfies most of the elements of an accommodation claim under the ADA. The Postmaster General does not dispute that Jacobs is permanently disabled for purposes of the ADA or the Rehabilitation Act. The Postmaster General does argue, however, that Jacobs is unable to perform the essential functions of his former letter-carrier job and that he is thus unqualified. However, this argument is beside the point for purposes of establishing Jacobs's prima-facie case. Jacobs has freely conceded that he cannot perform the essential functions of a letter carrier. His position instead is that he is qualified to do the essential functions of a number of other Postal Service jobs, including clerical jobs. Jacobs has put undisputed evidence into the record permitting a jury to find by a preponderance of the evidence that he is qualified for other Postal Service positions that are consistent with his physical restrictions. Most compelling is the fact that, during the pendency of his workers-compensation claim, Jacobs did, in fact, perform the duties of a clerical position without any complaint in the record about his performance. Jacobs has thus easily shown that a reasonable jury could find that reassignment to a position involving clerical or other light-duty tasks would be a "reasonable accommodation" in the sense that it would allow him to successfully perform all essential functions of the job. See Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993) (cited approvingly in Willis v. Conopco, 108 F.3d 282 (11th Cir. 1997)) ("As a general matter, a reasonable accommodation is one employing a method of accommodation that is reasonable in the run of cases, whereas the undue hardship inquiry focuses on the hardships imposed by the plaintiff's preferred accommodation in the context of the particular agency's operations.").
Jacobs has also put undisputed evidence into the record that he made repeated requests that the Postal Service accommodate his disability by transferring him to a permanent clerical or other light-duty position, and that he provided physician documentation specifically indicating his physical competence for such jobs.
The Postmaster General has also argued that Jacobs's requests for accommodation did not necessarily put Postal Service personnel on notice that he was requesting disability accommodation that might implicate the Rehabilitation Act because, although the Postal Service did not doubt the scope of Jacobs's disability, it could not have been sure at the time whether Jacobs's injuries were temporary (that is, that they did not amount to a permanent disability under the Rehabilitation Act). However, the medical evaluations of Jacobs's condition by Drs. Braicu and Vanderzyl — evaluations that were made contemporaneously with Jacobs's accommodation requests — do suggest permanent disability, thus allowing a reasonable jury to find that the Postmaster General was on notice of an accommodation claim for which legal obligations attached. Moreover, as to the prospective aspect of Jacobs's case (that is, his effort to get reinstatement), the Postmaster General now concedes that Jacobs is physically disabled for purposes of the Rehabilitation Act.
Thus, the only heavily disputed aspect of Jacobs's case is whether the Postmaster General was obligated and able to accommodate Jacobs by reassigning him to a permanent clerical or other light-duty position (or, to the same effect, to accommodate him by restructuring an existing mail-carrier position into a light-duty position), and if the Postmaster General was so obligated, whether the Postmaster General has raised an undue-hardship defense.
In the early days of accommodation claims under § 791 of the Rehabilitation Act and under the ADA, lower courts split on the question of whether employers were required to consider reassignment as an accommodation option, while the Supreme Court's guidance on the extent of an employer's duty was not entirely unclear. See, e.g., School Bd. of Nassau Co., Fla., v. Arline, 480 U.S. 273, 289, 107 S.Ct. 1123, 1131, n. 19 (1987) ("Employers have an affirmative obligation to make a reasonable accommodation for a handicapped employee. Although they are not required to find another job for an employee who is not qualified for the job he or she was doing, they cannot deny an employee alternative employment opportunities reasonably available under the employer's existing policies.")
However, in 1992, Congress eradicated this confusion by amending the ADA to include reassignment as a possible reasonable accommodation. 42 U.S.C.A. § 12111(9) (under ADA, "The term `reasonable accommodation' may include . . . reassignment to a vacant position"). Moreover, consistent with the notion that the government is a "model employer" with obligations above and beyond those of private employers, the EEOC promulgated new regulations for the Rehabilitation Act that require a federal employer to (1) consider job restructuring unless it would impose "an undue hardship on the operations of its program"; (2) offer to reassign "a nonprobationary employee [who] becomes unable to perform the essential functions of his or her position even with reasonable accommodation due to a handicap" to "a funded vacant position located in the same commuting area and serviced by the same appointing authority, and at the same grade or level, the essential functions of which the individual would be able to perform with reasonable accommodation if necessary unless the agency can demonstrate that the reassignment would impose an undue hardship on the operation of its program"; and (3) "In the absence of a position at the same grade or level, [offer to reassign the employee] to a vacant position at the highest available grade or level below the employee's current grade or level. . . ." 29 C.F.R. § 1614.203(b) and (g).
Jacobs undisputably made several requests asking that the Postal Service reassign him to another position, specifically identifying clerical as well as other limited- and light-duty work that would be within his work restrictions. The Postmaster General argues that it could not provide such accommodation for Jacobs because (1) he did not have an available position at the same grade or level in the same craft and commuting area; and (2) the less-onerous jobs that were designated as "limited duty" (as opposed to light-duty) were, pursuant to policy, reserved for employees with a successful or pending workers' compensation claim.
However, while Jacobs triggered the accommodation process with his specific requests for reassignment or restructuring, and while his requests were as specific as could be expected given the information available to an employee, the Postmaster General has provided insufficient evidence to keep from the jury the question whether the Postal Service could have accommodated Jacobs with a job reassignment or restructuring consistent with his physical restrictions without resulting in undue hardship on postal operations. See Woodman, 132 F.3d at 1344, 1345 ("placing the burden of locating other available jobs entirely on the plaintiff would be inconsistent both with the implementing regulations of the 1992 amendments and with the affirmative action duties contemplated by section 501, the latter of which do not apply to private employers under the Americans with Disabilities Act"; "employees must come forward with that information they are best placed to know — the fact and nature of their disability and their wish to be accommodated" and they must "specifically request information about possible reassignment" but after employees provide such information, the employer has an obligation to come forward with more than conclusory assertions that there is no position); but cf. Shiring v. Runyon, 90 F.3d 827 (3d Cir. 1996) (clearly holding that a Rehabilitation Act plaintiff failed to make his facial showing because he did not identify the kinds of positions he was qualified to perform and because he never requested a transfer to another position, and, possibly also stating — here the opinion is ambiguous — that it was the plaintiff's burden to identify vacant positions).
The Postmaster General has presented no evidence or even argument that it offered Jacobs a position at a lower grade or level, as is required by 29 C.F.R. § 1614.203(g) if there no positions at the same grade or level that can be made available without undue hardship. See Fedro v. Reno, 21 F.3d 1391, 1395, n. 5 (7th Cir. 1994) (suggesting in dicta, in a case decided before the law was amended to require reassignment efforts, that the new law may require an offer of reassignment to a vacant lower level position when a position at the employee's previous grade or level is unavailable).
The Postmaster General (the party with the affirmative obligation to attempt a reassignment once a request such as Jacobs's has been made, and the party with the best access to information on the feasibility of reassignment) has offered no evidence more specific than the Postal Service's general representation that there were no vacant positions at Jacobs's grade or level in his craft in Montgomery. The Postmaster General has not presented any evidence of the positions that were available at the time of Jacobs's requests or at the time of this suit. See Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1113-14 (9th Cir. 2000) (placing the burden of production on the employer). In sum, the Postmaster General has provided no basis for the court to know that a reasonable jury would be precluded from finding that Jacobs had triggered the Postmaster General's affirmative obligation to make a reassignment if such were possible without undue hardship. Jacobs, for his part "has provided evidence that [he] can be reasonably accommodated — which includes reasonable reassignment — sufficient to require submission to a jury." Woodman, 132 F.3d at 1340.
In addition to the possibility of a reassignment to clerical or other light-duty position, or to a position at a lower grade than Jacobs's old position, the court notes that, on some facts, even a claim for the limited-duty work reserved for workers' compensation claimants might be reasonable. In the extreme case, if the Postal Service were reserving all of its less physically onerous work for employees with successful or pending workers' compensation claims, it would then be giving priority to many temporarily disabled employees over permanently disabled employees (that is, the Postal Service would be giving priority to a group not protected by the Rehabilitation Act at the expense of the group with a legally mandated priority.) See Barnett v. U.S. Air, Inc., 228 F. 3d 1105 (9th Cir. 2000). At the very least, the fact that the Postal Service is acting pursuant to policy in its distribution of limited-duty work does not answer the question whether the Postmaster General is also complying with the independent legal duties established by § 791 of the Rehabilitation Act.
VI. CONCLUSION
For the reasons stated above, it is ORDERED as follows:
(1) The motion to dismiss or, in the alternative, motion for summary judgment, filed by defendant William J. Henderson, Postmaster General, United States Postal Service, on January 16, 2001 (doc. no. 26), is treated as solely a motion for summary judgment.
(2) The summary-judgment motion is granted as to plaintiff Tommy J. Jacobs's claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 1981a, 2000e through 2000e-17.
(3) The summary-judgment motion is denied as to plaintiff Jacobs's claim under Vocational Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701-796i.
ORDER
Upon consideration of the motion to strike filed by defendant on February 20, 2001 (doc. no. 36), it is ORDERED that said motion is denied.Defendant requests that the court strike the following filed by plaintiff in his summary-judgement response: affidavit of Butler Browder. Rule 12(f) of the Federal Rules of Civil Procedure provides that "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." (Emphasis added). Rule 7(a) of the Federal Rules of Civil Procedure provides that a "pleading" is only a "complaint," "answer," "reply to a counterclaim," "answer to a cross-claim," "third-party complaint," "third-party answer," "reply to an answer," or "reply to a . . . third-party answer." A response to a motion for summary judgment is therefore not a "pleading." Burns v. Lawther, 53 F.3d 1237, 1241 (11th Cir. 1995) (per curiam) (only the items listed in Rule 7(a) constitute pleadings); Lawhorn v. Atlantic Refining Company, 299 F.2d 353, 356-357 (5th Cir. 1962) (motion to dismiss is not a pleading) (in Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981); see also Mellon Bank, N.A. v. Ternisky, 999 F.2d 791, 795 (4th Cir. 1993) ("motion to dismiss . . . is not a pleading"); 2 James Wm. Moore, et al., Moore's Federal Practice § 12.37[2] (3d ed. 1997) ("Only material included in a `pleading' may be the subject of a motion to strike. . . .").
The court has, however, considered the strike motion and plaintiff's response to it as briefs on what evidentiary weight the court can give to the affidavit in resolving the summary-judgment motion.