Before Wagner, Chief Judge, and Terry and Farrell, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
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Opinion for the court by Associate Judge Terry.
Dissenting opinion by Chief Judge Wagner at p. ----.
Children's Defense Fund ("CDF") seeks review of a decision of the Department of Employment Services ("DOES") which held that CDF had discharged Pamela Cary from employment in retaliation for her filing a workers' compensation claim. The Director of DOES ordered CDF to reinstate Ms. Cary to her former position and awarded her back pay. CDF argues that the agency's decision was erroneous because Ms. Cary did not prove either that CDF's decision to let her go was motivated by animus toward her or that the stated reason for her termination, namely, a staff reorganization, was actually a pretext for retaliatory discharge. We agree and reverse. *fn1
CDF is a non-profit organization employing more than 150 people in clerical, administrative, and professional positions in Washington, D.C., and other cities throughout the nation. Ms. Cary is a high school graduate with some college credits in computer science, English, and mathematics. She has also had formal training in bookkeeping and the use of Lotus software.
On March 1, 1982, Ms. Cary was hired by CDF as a secretary for its Executive Director. Her duties included typing, answering telephones, taking minutes of board meetings, setting up files, and making travel arrangements. During her eleven-year tenure at CDF, Ms. Cary made several lateral moves as a secretary and also received two promotions, first to administrative assistant and then to senior administrative assistant in the Finance and Administration Division. She regularly received good performance evaluations and was never placed on probation for any reason.
On April 16, 1992, while packing and moving some boxes at her office, Ms. Cary injured her back. About two weeks later she was examined by a doctor, who recommended that she take some time off from work to recuperate. Sometime in early May Ms. Cary told Michelle Hannahs, the Director of the Finance and Administration Division, for whom she was primarily working at the time, about her injury and asked whether she might be entitled to workers' compensation. This was the first time that Ms. Cary had reported her injury to anyone at CDF. Since the position of Director of Administration was vacant at the time, Ms. Hannahs asked Ms. Cary to wait until that position was filled before preparing the necessary papers. Accordingly, in early June, Ms. Cary reported her injury to Carmen Ford, the newly hired Director of Administration. The paperwork in support of her workers' compensation claim was completed sometime in August.
During the months following her injury, Ms. Cary missed work on several occasions for periods of a week or more, and in September she went on extended leave because of her injury. Ms. Hannahs, meanwhile, left CDF in August. *fn2 In October Ms. Cary received a letter from Ms. Ford asking when she expected to return to work, but Ms. Cary could not provide a return date at that time. In early November Ms. Ford telephoned Ms. Cary at home and asked her to come back to work because Reynald LaTortue, Ms. Hannahs' successor, would be coming on duty very soon and would need an assistant. Ms. Cary told Ms. Ford that she had not yet been cleared by her doctor and thus could not return to work.
On November 12, at the request of the Executive Assistant to the President of CDF, Ms. Cary met with Mr. LaTortue to discuss the fact that she had exhausted her sick leave. Following their conversation, Mr. LaTortue gave Ms. Cary a letter from Ms. Ford stating that she was being placed on leave without pay. The letter also told her that her workers' compensation claim had been denied for lack of certain medical data and asked her to provide the insurance carrier with the needed information. On December 8, 1992, Ms. Cary received another letter from Ms. Ford stating that the insurance carrier still had not received the necessary medical data and that her continued refusal to submit it would result in disciplinary action. Some time thereafter, however, the insurance carrier obtained the needed information, and Ms. Cary received benefits retroactive to November. On January 19, 1993, Ms. Cary's treating physician advised her that she could return to work on January 29; however, she waited until February 9 to tell this to CDF.
On February 11 Ms. Cary received a letter from Ms. Ford informing her that, because of a restructuring of the Finance and Administration Division, her job was being eliminated. Consequently, the letter said, her employment was terminated, but she was welcome to apply for the newly created position of Finance and Administration Associate. Ms. Cary never applied for the new position, nor did she even make any inquiries about it. When asked at the DOES hearing why she had not done so, she replied, "If they wanted me there, they wouldn't have fired me in the first place."
The restructuring of the Finance and Administration Division was the result of two months of Discussions among Mr. LaTortue, Ms. Ford, and others, including the President of CDF. Mr. LaTortue wanted to strengthen administrative support in the areas of grant disbursement and financial management. As part of this reorganization, three positions were eliminated: those of John Bergstrom, Serena Adams, and Pamela Cary. Ms. Cary's position was abolished because Mr. LaTortue needed help of a different type from that which Ms. Cary could provide and had previously provided to his predecessor, Ms. Hannahs. That is, rather than secretarial-type work, most of which he did for himself, Mr. LaTortue needed assistance with budget reviews, ...