The opinion of the court was delivered by: GREEN
Plaintiff Julia Guinn brings this action against defendant William F. Bolger, Postmaster General of the United States, under Sections 501(b) and 505(a)(1) of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791(b), 794a(a)(1).
Plaintiff, a current employee of the United States Postal Service (USPS), claims that defendant discriminated against her on the basis of a handicapping condition by sending her home from work without pay before she had completed an eight-hour work shift on numerous occasions when she was on light duty status between May and November of 1982. Plaintiff requests injunctive and declaratory relief against defendant and an award of back pay and attorney's fees. The parties' cross motions for summary judgment are now before the Court.
The material facts underlying plaintiff's allegations are not in dispute. Plaintiff has been employed by the USPS since February 24, 1966, first as a postal clerk, then as a manual distribution clerk, and, since approximately 1979, as a multiple position letter sorting machine (MPLSM) operator. The function of the MPLSM is to sort mail automatically for distribution. The machine is operated by a crew of workers who rotate through three assignments: ledge-loading (emptying mail from trays onto ledges at the front consoles of the MPLSM), keying address distribution codes, and clearing letters from bins at the back of the machine where they are automatically transported by the machine after coding. Throughout her employment as an MPLSM operator, plaintiff has performed not only those three duties but others as well, including "culling" packages from conveyor belts and manual sorting. Some weeks she would work three, four or five days on the MPLSM, some weeks not at all. Guinn Dep. at 6-7. Plaintiff is employed on Tour II at the Washington, D.C. Post Office (7:00 a.m.-3:30 p.m.) and works five days a week.
On April 5, 1982, plaintiff consulted Dr. John Albrigo, an orthopedic surgeon, complaining of swelling, pain and stiffness of her knee joints. Dr. Albrigo diagnosed her condition as permanent osteoarthritis of the knee joints and recommended that she avoid work requiring prolonged periods of standing. As a result of that advice, plaintiff requested that USPS assign her to "light duty" consistent with her medical restrictions. She was granted temporary light duty status in April, 1982, and that status was renewed several times until the six-month maximum allowable term for temporary light duty expired on November 17, 1982. On light duty, plaintiff performed, in addition to her MPLSM functions, manual distribution work using a rest bar and other jobs which could be done in a sitting position.
Beginning on June 16, 1982, postal management determined that the mail volume on Tour II at the Washington D.C. Post Office did not justify the number of employees on hand. Consequently, management decided to send home employees on light duty assignments as a cost-cutting measure. Plaintiff and other light duty employees were sent home short of working a full eight-hour day on 42 occasions prior to November, 1982. As a consequence, plaintiff was not paid or was permitted to use her accumulated leave for 270 scheduled hours that she did not work between May and November, 1982. Full-time employees not on light duty and employees on limited-duty status who had been injured while on duty were permitted to remain at work. Those employees had contractual guarantees of eight hours of work or pay per day, and sending them home would not result in any savings to the USPS.
Plaintiff filed a series of administrative complaints commencing on or about July 20, 1982, complaining that sending her home involuntarily because she was on light duty constituted discrimination based on a handicapping condition. Her administrative complaints were denied by USPS, and the Equal Employment Opportunity Commission ("EEOC") sustained that denial by order dated March 22, 1983. The EEOC decision included a notice of right to sue; plaintiff filed this action on May 6, 1983. In addition, she has filed a grievance with her union bargaining representative and that grievance is presently awaiting arbitration.
The 1978 amendments to the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., provide a private cause of action to persons subjected to handicap discrimination by the federal government and its agencies. Prewitt v. U.S. Postal Service, 662 F.2d 292, 302 (5th Cir. 1981). Those amendments added Section 505(a)(1),
establishing a private cause of action in favor of persons pursuing claims under Section 501 of the Rehabilitation Act,
and expanded Section 504's proscription against handicap discrimination to cover programs or activities conducted by any executive agency or by the USPS.
Id. at 304.
In light of the 1978 amendments the causes of action cognizable under Sections 501 and 504 overlap in part, and both provisions would allow redress of this plaintiff's particular claim, if proven. Id. at 304, see also Smith v. U.S. Postal Service, 742 F.2d 257 (6th Cir. 1984). Plaintiff has chosen to bring her claim under Section 501 and thus, pursuant to Section 505(a)(1), the remedies, procedures and rights set forth in Section 717 of Title VII of the Civil Rights Act of 1964 ("Title VII") govern this action. Shirey v. Devine, 216 U.S. App. D.C. 369, 670 F.2d 1188, 1194 (D.C. Cir. 1982); Prewitt, 662 F.2d at 303.
The burdens of proof in Rehabilitation Act cases under both Sections 501 and 504 are modeled after those developed under Title VII case law. See Guerriero v. Schultz, 557 F. Supp. 511, 513 (D.D.C. 1983); Mantolete v. Bolger, 96 F.R.D. 179, 32 FEP Cases 1438, 1440 (D. Ariz. 1982) (Section 504 and Section 501 cases, respectively, applying Title VII burdens of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)). The plaintiff has the initial burden of proof to make out a prima facie case of discrimination. McDonnell Douglas at 801-02; Mantolete at 1440. To meet that burden, she must show (1) that she is handicapped within the meaning of the Rehabilitation Act, which defendant has conceded at oral argument, (2) that she is a "qualified handicapped person ", and (3) that defendant's practice of sending plaintiff home from work before completion of her shift was motivated by her handicap or caused a handicap-related disparity, regardless of defendant's intent. See Segar v. Smith, 238 U.S. App. D.C. 103, 738 F.2d 1249, 1266-67 (D.C. Cir. 1984); see also Prewitt, supra.
The requirement that plaintiff be a "qualified handicapped person" is found not in the text of Section 501 but rather in the EEOC regulations which state, as general policy, that with respect to hiring, placement and advancement, "an agency shall not discriminate against a qualified physically or mentally handicapped person." 29 C.F.R. § 1613.703 (emphasis added). That policy applies to discrimination programs established by the U.S. Postal Service, among other entities. See 29 C.F.R. § 1613.701(b). A "qualified handicapped person" is defined under the regulations as one who:
. . . with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and safety of the individual or others. . . .
29 C.F.R. § 1613.702(f). Thus, under this scheme of regulations, plaintiff's prima facie case must include a showing that with or without reasonable accommodation, she was able to perform the essential functions of her job when she was sent home from work between May and November, ...