OFCCP v. United Parcel Services, 1987-OFC-17 (Dep. Ass't Sec'y Nov. 22, 1991)
DATE: November 22, 1991
CASE NO. 87-OFC-17
IN THE MATTER OF:
OFFICE OF FEDERAL CONTRACT
COMPLIANCE PROGRAMS,
PLAINTIFF,
v.
UNITED PARCEL SERVICE, INC.,
DEFENDANT.
BEFORE: THE DEPUTY ASSISTANT SECRETARY FOR EMPLOYMENT
STANDARDS[1]
FINAL DECISION AND ORDER
This matter arises under Section 503 of the Rehabilitation
Act of 1973, as amended, (Section 503 or the Act), 29 U.S.C.
§ 793 (1988). The complainant believed that she could not
perform her job without modifying the duties, after she had a
hernia operation and her surgeon recommended she not do heavy
lifting. Defendant thought the job already was structured in a
way that did not require complainant to do heavy lifting. The
parties never resolved these misunderstandings, but by failing to
do so, Defendant did not violate the Act.
BACKGROUND
The facts are set forth in considerable detail in the
Recommended Decision and Order (R.D. and 0.) of the
Administrative Law Judge (ALJ). R.D. and 0. at 2-15. Some of
the more salient facts will be summarized here.
The Defendant employed [redacted - Exemption 6], the complainant, as a
customer counter clerk (c.c. clerk) at its Kannapolis, N.C.,
facility in 1978. Transcript of hearing (T.) 47. Her duties
were to receive packages from customers, weigh them, determine
the shipping charges, collect money from the customer, and place
the packages on a shoulder level conveyor belt located several
feet from the counter behind two doors. T. 48-49; Defendant's
Exhibit (D)-36 (a videotape of the job).
Betty Sue Goodwin, another employee of Defendant who has
worked in many of the clerk positions at the Kannapolis facility
including customer counter clerk, T. 201, testified that she
often has received packages that are too heavy for her to lift.
[PAGE 2]
T. 205.[2] Ms. Goodwin has performed the c.c. clerk job when
she was pregnant and under a 35-40 pound weight lifting
restriction. T. 211. Rather than lift these packages onto the
conveyor belt, she will slide them onto the floor and push them
to the side until the end of the day, when she gets help lifting
them. Id. Other employees follow the same practice, or
ask customers to place heavy packages on the conveyor belt. T.
206. Ms. Goodwin has never been refused assistance moving heavy
packages and sometimes has received help from management
employees. Id. Ms. Goodwin has worked with Ms. [redacted - Exemption 6]
at the customer counter and they have lifted heavy packages
together. T. 207. Ms. [redacted - Exemption 6] told Ms. Goodwin that other
employees, supervisors, and customers have helped Ms. [redacted - Exemption 6]
lift heavy packages. Id.
As a child Ms. [redacted - Exemption 6] had surgery to repair a hernia and
had surgery to repair another hernia in 1980 or 1981. T. 76-77.
No weight lifting restrictions were placed on her after those
operations. T. 77. Ms. [redacted - Exemption 6] experienced pain in her lower
left abdomen for several months in 1983 and Dr. Carl A. Furr,
Jr., performed a diagnostic laparoscopy[3] on January 23, 1984,
in an attempt to determine the cause of the pain. Deposition of
Dr. Furr (Furr Dep.) at 6-7.
Ms. [redacted - Exemption 6] continued to experience pain, was operated on by
Dr. William P. Chalfant, III, to repair another hernia on March
12, 1984 and recovered fully from the operation. T. 76;
Plaintiff's Exhibit (P)-5; Deposition of Dr. Chalfant (Chalfant
Dep.) at 8-9. Ms. [redacted - Exemption 6] was off work for eight weeks after the
hernia operation and received disability payments from Defendant
during that time. T. 75.
Several weeks after the operation, Dr. Chalfant examined Ms.
[redacted - Exemption 6] and they discussed the duties of her job. T. 78;
Chalfant Dep. 10. Dr. Chalfant wrote a note on May 1, 1984, for
Ms. [redacted - Exemption 6] to give to her employer, stating that he had
"advised Ms. [redacted - Exemption 6] to request a transfer in her work to an area
where she will not be required to perform tasks that require
heavy lifting." P-5. Ms. [redacted - Exemption 6] met with Donald Michael,[4]
the Center Manager of Defendant's Kannapolis facility, T. 81, and
gave him Dr. Chalfant's note. Mr. Michael told Ms. [redacted - Exemption 6] there
were no jobs available which did not require heavy lifting, T.
80, and when Ms. [redacted - Exemption 6] inquired about a transfer to office work
at the Charlotte, North Carolina, facility, Mr. Michael said he
did not think that was possible. T. 81; 234.
On May 18, 1984, Ms. [redacted - Exemption 6] went to see Dennis Obregon, the
District Personnel Manager in Charlotte, and told him that she
could not return to work as a c.c. clerk because her doctor did
not recommend it. T. 248. When Ms. [redacted - Exemption 6] asked about
transferring to Charlotte, Mr. Obregon told her that transfers
were not the practice in the district, T. 249, but she could
[PAGE 3]
submit a letter requesting a transfer. T. 250. He recommended
that Ms. [redacted - Exemption 6] request a leave of absence from her job at
Kannapolis. T. 251. Ms. [redacted - Exemption 6] wrote two letters to Mr.
Obregon on May 18, 1984, one requesting a transfer, and another
stating "[s]ince I can no longer perform my present job duties as
Customer Counter Clerk, I am, at your recommendation, requesting
to become an in-active employee with United Parcel Service,
effective May 21, 1984, until such position applied for becomes
available either full or part time." P-6.
Ms. [redacted - Exemption 6] was terminated by Defendant for dishonesty on
June 8, 1984. T. 92. Defendant believed that Ms. [redacted - Exemption 6] had
improperly obtained a note from Dr. Furr's office stating she
should not return to work after the January laparoscopy for two
weeks more than Dr. Furr first had recommended for this
operation. T. 281-282. Defendant thought Ms. [redacted - Exemption 6] was
attempting to obtain two extra weeks of disability compensation
to which she was not entitled. T. 238-239.
Ms. [redacted - Exemption 6] filed a complaint with the Department of Labor
under section 503 on June 28, 1984. P-7. Plaintiff and
Defendant attempted to negotiate a settlement of this matter and,
at the time those negotiations were being held, Mr. Obregon and
Martin Taylor, Defendant's Employment Manager, met with Ms.
[redacted - Exemption 6] on December 19, 1984, to review the positions available
at Kannapolis and how Ms. [redacted - Exemption 6] could perform the job duties
given her weight lifting restrictions. T. 252-259.[5] Mr.
Obregon and Mr. Taylor told Ms. [redacted - Exemption 6] she was not expected to
lift any packages over her weight limit; if there was any package
she thought was too heavy they told her "[d]on't lift it." T.
259; 289. Ms. [redacted - Exemption 6] accepted the offer of a customer counter
clerk position, but requested that the weight lifting
restrictions be put in writing. D-19. Defendant did not put the
restrictions in writing, T. 275, and Ms. [redacted - Exemption 6] never reported
for work. T. 260.
THE ALJ'S RECOMMENDED DECISION AND ORDER
The ALJ found that Ms. [redacted - Exemption 6] was a handicapped
individual[6] because she had the physical impairment of
"borderline tissue" in the abdominal area in which heavy lifting
can precipitate a hernia, and this impairment restricted her from
lifting over 35-40 pounds, a substantial limitation on a major
life activity. R.D. and 0. at 16. The ALJ found, however, that
Ms. [redacted - Exemption 6] was not a qualified handicapped individual
because it was not reasonable for Defendant to accommodate her
impairment in the customer counter clerk job.[7] He rejected
"the notion that 'reasonable accommodation' requires an employer
to make a coworker lift heavy packages for a handicapped person."
Id. at 17.
The ALJ held, however, that Ms. [redacted - Exemption 6] was a qualified
[PAGE 4]
handicapped individual for an office position at Defendant's
Charlotte facility. He held that transferring her to Charlotte
was a reasonable accommodation because Defendant did not show
that such a transfer would impose an undue hardship on its
business. R.D. and 0. at 18; 41 C.F.R. § 60-741.6(d). The
ALJ distinguished several court decisions under Section 504 of
the Act holding that the duty of reasonable accommodation does
not include the duty to reassign or transfer a handicapped
employee. R.D. and 0. at 18.
But, finally, the ALJ held that Defendant made a decision to
terminate Ms. [redacted - Exemption 6] in March 1984, before she requested
transfer to a position not requiring heavy lifting, on the belief
that she had dishonestly attempted to obtain two extra weeks'
disability compensation. Id. at 19. Plaintiff did not
prove this reason was pretextual, and the ALJ concluded that
Plaintiff did not prove that Ms. [redacted - Exemption 6]'s handicap was a
motivating factor in the decision to fire her. Id. at 20.
The ALJ therefore recommended that the complaint be dismissed.
DISCUSSION
In an individual discrimination case under section 503, the
plaintiff has the familiar burden of establishing a prima facie
case by showing that the complainant was a handicapped
individual[8] who was qualified for the job, that she applied
for the job (or here, sought to return to her former position
after disability leave), and that she was rejected. See
United States Dep't of Labor, Office of Fed. Contract Compliance
Programs v. Norfolk & W. Ry., Case No. 80-OFCCP-14, Assoc.
Dep. Under Sec. Decision, Dec. 8, 1986, slip op. at 5-7,
adopting, for section 503 cases, the Supreme Court's analysis of
burdens of proof and burdens of production in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981).
See also State Div. of Human Rights v. Ozone Indus., Inc.,
610 F. Supp. 438, 441 (S.D.N.Y. 1985), and Joyner v. AAA
Cooper Transp., 597 F. Supp. 537, 542 (M.D. Ala. 1983) aff'd
749 F.2d 732 (11th Cir. 1984) (applying the McDonnell
Douglas/Burdine prescription, with slight modification, to
discrimination in recall under Title VII of the Civil Rights Act
of 1964.) Further, it follows from Norfolk & Western
that, when a case has been fully tried on the merits, the task of
the fact finder is to "decide whether 'the defendant
intentionally discriminated against the [employee].' [Citation
omitted.]...In short, [the trier of fact) must decide which
party's explanation of the employer's motivation it believes."
United States Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 715-16 (1983).
Plaintiff has not shown that Ms. [redacted - Exemption 6] sought to return to
the customer counter clerk job or that Defendant rejected her for
it.[9] Assuming that the Plaintiff did establish a prima facie
[PAGE 5]
case, the facts show, at most, that there was a serious
misunderstanding between Ms. [redacted - Exemption 6] and Defendant about how to
handle the heavy lifting duties of that job. Plaintiff has not
proven by a preponderance of the evidence that Defendant
discriminated against Ms. [redacted - Exemption 6] because of her handicap.
Ms. [redacted - Exemption 6] met with Mr. Michael, the Kannapolis Center
Manager, in May 1984 and gave him Dr. Chalfant's note advising
that complainant request a transfer to an area that did not
require heavy lifting. She testified "I showed him the letter
and I told him what Dr. Chalfant had said..." T. 81.[10] The
record does not show, however, that she requested to return to
her job as customer counter clerk with accommodation. Cf.
Taqupa v. Board of Directors, 633 F.2d 1309, 1311-12 (9th
Cir. 1980) (failure to complete application process justifies
summary judgment for failure to present prima facie case);
Wright v. Stone Container Corp., 524 F.2d 1058, 1063 (8th
Cir. 1975) (prima facie case not presented where plaintiff failed
to show application for job). Mr. Michael said there were no
jobs (presumably at the Kannapolis facility) that did not require
heavy lifting, but it is not clear that he was refusing to return
her to the c.c. clerk job, or that he was refusing to accommodate
her weight lifting restriction. Mr. Michael was under the
impression that Ms. [redacted - Exemption 6] thought she could not perform the
job, but he never thought or advised her that she could not
perform it. T. 235. Ms. [redacted - Exemption 6] never asked Mr. Michael for
accommodation, although she and other c.c. clerks have received
help lifting heavy packages, T. 175; 205-207, and Mr. Michael
himself has helped Ms. [redacted - Exemption 6] and other clerks with heavy
packages. T. 244.
It appears that Ms. [redacted - Exemption 6] thought that when Mr. Michael
said there were no jobs that did not require heavy lifting, he
meant she would be required to do that lifting. Mr. Michael
thought Ms. [redacted - Exemption 6] was capable of performing the c.c. clerk job
with her restrictions because help was available from co-workers
and managers to do the heavy lifting. Believing that Defendant
would not accommodate her in the Customer Counter Clerk job, Ms.
[redacted - Exemption 6] never specifically asked to return to work in that job.
She asked, in the words of Dr. Chalfant's note, for work in an
area that did not require heavy lifting. Mr. Michael declined
that request because there were no such jobs at Kannapolis, but
he did not refuse to let her return to work as a c.c. clerk
because he thought she could do that job with the lifting
assistance that was readily available.
When Ms. [redacted - Exemption 6] met with Mr. Obregon and Mr. Taylor in
December 1984, they told her she would not have to lift packages
that she felt were too heavy. T. 259; 289. Ms. [redacted - Exemption 6] was not
satisfied with those assurances because Mr. Obregon and Mr.
[PAGE 6]
Taylor failed to put this policy in writing and they told her it
was her "responsibility to see that those packages were
processed, one way or another." T. 99. Ms. [redacted - Exemption 6] believed she
would have to depend on voluntary cooperation from her coworkers
to lift heavy packages, and she felt uncomfortable asking co-
workers for assistance. T. 101. If other employees refused to
help, she apparently thought she would have to lift the packages
herself, although Defendant had unequivocally told her she would
not have to lift packages that were too heavy for her. Whether
for these reasons or others, Ms. [redacted - Exemption 6] never reported back to
Defendant for work.
Similarly, Plaintiff has failed to carry its burdens of
proof and production concerning Ms. [redacted - Exemption 6]'s request for
transfer to a clerical job at the Charlotte facility. Plaintiff
has not shown that such jobs were available in May or December
1984 or that Defendant rejected Ms. [redacted - Exemption 6] for such a
position.[11] In addition, again assuming Plaintiff presented a
prima facie case, I find that the record does not support the
conclusion that Defendant rejected Ms. [redacted - Exemption 6] for a position in
Charlotte because of her handicap. Mr. Michael, Mr. Obregon and
Mr. Taylor each testified it was not Defendant's policy to permit
transfers, T. 234; 292, and Mr. Michael and Mr. Taylor said other
employees, who on this record must be presumed not to have been
handicapped, have been denied such transfers in the past. T.
234-5; 292.
Plaintiff contests the ALJ's finding that Defendant's
decision to fire Ms. [redacted - Exemption 6] was not pretextual. The ALJ found
that Defendant made the decision in March 1984, before it was
aware of Ms. [redacted - Exemption 6]'s asserted handicap and request for
accommodation. Plaintiff argues that the decision was made in
May 1984 and was a pretext for discrimination. Plaintiff's
Exceptions to the Administrative Law Judge's Recommended Decision
and Order (Plaintiff's Exceptions) at 30-38.
Three witnesses, Mr. Taylor, Mr. Obregon, and Julia Mauldin,
testified that the decision to fire Ms. [redacted - Exemption 6] was made in March
1984. Mr. Taylor testified that he became concerned about the
conflict between the note of February 27, 1984, and what Dr. Furr
told Ms. Mauldin on March 5, 1984. T. 282. Within a week, Mr.
Taylor met with the then-Personnel Manager, Mr. Johnston, and
concluded that Ms. [redacted - Exemption 6] had committed a dishonest act.
Id.
Mr. Obregon became the Personnel Manager in March 1984, but
he had not been involved in the discussions about firing Ms.
[redacted - Exemption 6]. T. 251. Mr. Obregon met with the outgoing Personnel
Manager, Mr. Johnston, and reviewed pending labor matters. T.
247. Mr. Johnston told Mr. Obregon that "they had made a
decision, based on...giving some fraudulent information, to
terminate her after she came off disability for dishonesty." T.
[PAGE 7]
248. When Mr. Obregon reviewed this decision in May 1984, after
Ms. [redacted - Exemption 6] came to see him, he spoke to Mr. Hughes, the District
Manager "who was familiar with the circumstances..." T. 251.
Mr. Hughes told Mr. Obregon it was still Defendant's position
that Ms. [redacted - Exemption 6] would be fired. Id. When Mr. Obregon
instructed Mr. Taylor to arrange a meeting with Ms. [redacted - Exemption 6] to
inform her she was being fired, it is apparent he was simply
carrying out a decision he believed had been made earlier by the
responsible managers.
I find the testimony of Ms. Mauldin particularly persuasive
on this point. Ms. Mauldin was a first line supervisor of
clerical employees administering company benefit programs in the
Personnel Office. Ms. Mauldin did not know Ms. [redacted - Exemption 6], and
apparently has never met her or even looked at her personnel
file. T. 220; 232. Ms. Mauldin was the one who first raised a
question about the amount of time Ms. [redacted - Exemption 6] sought to be out of
work for the laparoscopy. T. 221. Ms. Mauldin contacted Dr.
Furr, who told her Ms. [redacted - Exemption 6] could return to work four weeks
after the laparoscopy, rather than the six weeks for which she
was claiming disability. T. 223. Dr. Furr told Ms. Mauldin he
had not seen Ms. [redacted - Exemption 6] on the date of the note releasing Ms.
[redacted - Exemption 6] to work six weeks after the laparoscopy. Id. Ms.
Mauldin testified that the decision to fire Ms. [redacted - Exemption 6] was made
around the time Defendant received the March 16 letter from Dr.
Furr explaining the February 27 note. T. 228, 229. Ms. Mauldin
testified she was involved, along with Mr. Martin and the
Personnel Director, in the decision to fire Ms. [redacted - Exemption 6]. T.
226/227,[12] 231. It is not clear whether Ms. Mauldin
understood the thrust of Dr. Furr's March 16 letter to be that
the nurses in his office had made a mistake for which Ms. [redacted - Exemption 6]
was not responsible. See T. 229-230.
Plaintiff points out some inconsistencies in Defendant's
action as evidence that Defendant's reason for firing Ms. [redacted - Exemption 6]
was pretextual. Plaintiff asserts, for example, that Defendant
could not have fired Ms. [redacted - Exemption 6] for dishonesty because she was
not in fact dishonest. I agree with the ALJ, however, that if
Defendant acted in the good faith belief that Ms. [redacted - Exemption 6] was
dishonest, doing so did not violate the Act, even if she was not
in fact dishonest. R.D. and 0. at 20, and cases cited therein.
Plaintiff also argues that Defendant must have known Ms.
[redacted - Exemption 6] did nothing improper in obtaining the February 27 note
when it received Dr. Furr's March 16 letter. But the March 16
letter does not explain how the February 27 note was written,
other than Dr. Furr's assumption that "[t]he girls [nurses]
undoubtedly understood [Ms. [redacted - Exemption 6]] to have a laparotomy rather
than a laparoscopy." D-7. It is not clear from Ms. Mauldin's
testimony whether she understood the significance of the March 16
[PAGE 8]
letter. See T. 229-30.
Defendant did not fire Ms. [redacted - Exemption 6] immediately in March 1984
but waited until she returned from disability leave for her
hernia operation, a two week vacation, and a leave of absence, a
delay which, Plaintiff argues, shows Defendant did not decide to
fire her until June 1984. However, Mr. Taylor, the Employment
Manager, testified that it was company practice not to terminate
an employee until he or she returned from disability or other
leave. T. 282-83. Mr. Obregon did not tell Ms. [redacted - Exemption 6] about
the decision to fire her when he met with her in May 1984 because
she had simply gone to his office without an appointment and he
had not had an opportunity, as the new district personnel
manager, to review the decision to fire her. T. 250. As
discussed above, Mr. Obregon felt he had to rely on the
conclusions of the managers involved at the time the decision was
made. In addition, Mr. Michael was not involved in the decision
to fire Ms. [redacted - Exemption 6] and did not know about it when he met with
her in May 1984, but only found out about it a day or two before
the termination conference. T. 236-37.
Thus, although there may be some aspects of the events
surrounding Ms. [redacted - Exemption 6]'s termination which are not fully
explained, I find that, on the record as a whole, Plaintiff has
not shown by a preponderance of the evidence that Defendant's
stated reason -- dishonesty -- was pretextual. I find in
addition that Plaintiff has not proven that Ms. [redacted - Exemption 6]'s
asserted handicap was a motivating factor in the decision to fire
her.
Accordingly, for the reasons discussed above, the complaint
in this case is DISMISSED.
SO ORDERED.
S.J. WALEN
Deputy Assistant Secretary
for Employment Standards
[ENDNOTES]
[1]
By order dated November 8, 1991, the Assistant Secretary for
Employment Standards delegated to me all responsibility and
authority in this case.
[2]
Defendant conducted a survey of all packages received at the
Kannapolis facility for one week each in October and December
1987 and February, April, June and August 1988. The number of
packages over 35 pounds on any day during the survey period
ranged from 1 to 14, with an average of 5 such packages a day.
[3]
A laparoscopy is the "insertion of a pencil-shaped tube with a
light on the end of it (laparoscope) through the navel to look
inside the abdomen." R.D. and 0. at 2.
[4]
The exact date of this meeting is not clear from the record, but
it must have been between May 1, 1984, the date of Dr. Chalfant's
note, and May 18, 1984, the date of Ms. [redacted - Exemption 6]'s meeting with
Mr. Obregon.
[5]
The purpose of the December 19 meeting among Mr. Taylor, Mr.
Obregon and Ms. [redacted - Exemption 6], as characterized by Mr. Obregon, was "to
review the terms and conditions of our proposed agreement
(between OFCCP and Defendant] to reinstate Ms. [redacted - Exemption 6]..."
Letter from Mr. Obregon to Mr. T. B. Thornton, U.S. Department of
Labor, dated December 28, 1984, D-18. (There is no indication in
the record that any OFCCP official attended this meeting.)
Generally, anything said or done in settlement negotiations is
not admissible. See Fed. R. Evid. 408; 29 C.F.R. § 18.408
(1990). Here, however, there was testimony at the hearing about
this meeting, and proposed settlement agreements exchanged by the
parties were admitted in evidence. D-13, 14, 15, 16, 17, 18.
The ALJ discussed this meeting, R.D. and 0. at 11, and Defendant
pointed out that it made a job offer to Ms. [redacted - Exemption 6] in December
1984. Brief in Support of Defendant UPS's Exceptions to the
Recommended Decision and Order at 13. In these circumstances, it
is appropriate to make a finding whether the events of December
1984 may constitute a separate act of discrimination or evidence
of intent to discriminate in May and June 1984. See infra
at pp. 11-12.
[6]
In 1986, the term "handicapped individual" in the Rehabilitation
Act was changed to "individual with handicaps," but no other
changes were made to the definition. Rehabilitation Act
Amendments of 1986, Pub. L. No. 99-506, § 103(d), 100 Stat.
1808, 1810. "Handicapped individual" will be used here.
[7]
"Qualified handicapped individual" is defined in the regulations
as "a handicapped individual...who is capable of performing a
particular job, with reasonable accommodation to his or her
handicap." 41 C.F.R. § 60-741.2 (1990).
[8]
In view of my decision dismissing the complaint for other
reasons, as discussed below, I do not reach the question whether
a person with Ms. [redacted - Exemption 6]'s physical condition, "thin and poor"
connective tissue in the abdominal wall, Chalfant Dep. at 21, is
a "handicapped individual" under the Act.
[9]
If Ms. [redacted - Exemption 6]'s discussion with Mr. Michael in May 1984 amounted
to an application for a position other than customer counter
clerk, Plaintiff has not shown that such positions were available
at the Kannapolis facility at that time.
[10]
Dr. Chalfant had the impression that Ms. [redacted - Exemption 6] was a driver of
one of Defendant's delivery trucks. Chalfant Dep. at 11.
[11]
In view of this finding, it is not necessary for me to consider
whether the duty to make reasonable accommodation under the Act
and regulations includes an obligation to transfer or reassign a
handicapped employee who can no longer perform his or her job
because of her handicap. See discussion in R.D. and O. at 18.
[12]
The 226th page of the transcript is numbered 226/227.
