Before Farrell and Reid, Associate Judges, and Kern, Senior Judge.
The opinion of the court was delivered by: Reid, Associate Judge
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Petition for Review of a Decision of the District of Columbia Department of Employment Services
On January 23, 1995, a hearing examiner from the Department of Employment Services ("DOES") issued a compensation order, concluding that intervenor Leocadie Ayemonche was temporarily totally disabled due to a work-related injury from July 13, 1992 to October 8, 1992; and that 5000 Wisconsin Avenue Inc. ("the employer") discriminated against her in contravention of D.C. Code § 36-342 (1993). After reviewing additional documentary evidence of Ms. Ayemonche's work schedule, the hearing examiner issued a supplementary compensation order awarding her "temporary total disability benefits for the period July 13, 1992 through October 8, 1992; . . . all causally related medical expenses; . . . interest on all accrued benefits; and [reinstatement] to her usual employment and paid, in full, the wages lost from October 8, 1992 [until her] return to employment," pursuant to the District of Columbia Workers' Compensation Act of 1979, as amended, D.C. Code § 36-301 et seq. The employer seeks review of the October 8, 1997 decision of the Director of DOES affirming the hearing examiner's compensation orders, specifically the determination of the employer's discrimination under § 36-342. *fn1 Concluding that there is insufficient evidence in the record to support Ms. Ayemonche's claim of retaliatory discharge, we reverse the award of back pay.
Ms. Ayemonche was employed on a part-time basis as an order-taker/cashier at the employer's carry-out pizza restaurant. She also worked at the Cheesecake Factory in a similar capacity. On July 13, 1992, while on duty at the pizza restaurant, she was struck by a falling ceiling tile on her neck and right shoulder. Ms. Ayemonche sought immediate medical attention at Sibley Hospital, where she was examined and advised not to work for the next two days. Ms. Ayemonche returned to work at the pizza restaurant on July 17, 18 and 20, 1992, but was unable to perform her duties due to continuing pain and swelling in her right arm and wrist.
On July 21, 1992, she sought further medical treatment from Dr. Anthony S. Unger, an orthopedic surgeon. Dr. Unger determined that Ms. Ayemonche was "totally disabled" because she had sustained a cervical strain and a contusion of her right wrist as the result of her July 13, 1992 injury. During this period, Ms. Ayemonche continued to work at the Cheesecake Factory because her duties did not involve reaching above the shoulder level and were less strenuous than those required at the pizza restaurant.
On July 28, 1992, Ms. Ayemonche was authorized to return to work at the pizza restaurant, provided that she did not perform any overhead work or lift more than twenty-five pounds. That day, Ms. Ayemonche notified the employer of her medical release, and requested to be placed back on the work schedule. The employer did not schedule her for any work assignments.
On August 5, 1992, Dr. Unger again concluded that Ms. Ayemonche was "totally disabled." He, however, informed her that she could perform limited work duties on August 13, 1992. At that time, Ms. Ayemonche attempted to return to work at the pizza restaurant, but was not placed on the schedule. She testified that the employer "wanted the thing to be settled before [she came] back . . . ." Ms. Ayemonche was authorized to return to work without any medical restrictions on October 8, 1992. There was also testimony that Ms. Ayemonche, at some point, went to the employer to speak to a manager. She was told, however, that the person that she needed to see was at the employer's other restaurant. Ms. Ayemonche then went to the other restaurant, but the person was no longer there. She was never scheduled for work after notifying the employer of her medical release.
A full evidentiary hearing on her claim for disability benefits was held before a hearing examiner from DOES on April 8, 1993. The hearing examiner issued a compensation order on January 23, 1995, concluding that Ms. Ayemonche: (1) sustained a work-related injury on July 13, 1992, which left her temporarily totally disabled until October 8, 1992; (2) presented uncontested, "substantial credible evidence" that she filed a claim for compensation benefits; and (3) "presented credible testimony [that] she made several [unavailing] attempts to return to her employment after her release to duty by her physician." In addition, the hearing examiner determined that the employer "ha[d] not carried its burden of production" since the record is devoid of any evidence either showing that Ms. Ayemonche was scheduled for a "post-release tour of duty" or rebutting her claim of disparate treatment. As a result, the examiner ruled that Ms. Ayemonche was "entitled to reinstatement to, and back wages, from [the] employer."
The Director of DOES affirmed Ms. Ayemonche's award, stating that there was substantial evidence in the record of: (1) her temporary total disability due to a work-related injury; (2) the employer's refusal to schedule her for work until she could perform all her duties; and (3) "disparate, uncompromising treatment from the employer" signifying a "constructive discharge." In support of his Conclusion that there was substantial evidence of retaliation by the employer against Ms. Ayemonche, the Director determined that: "Her constructive discharge was openly hostile and based upon a desire to jettison a team player who had been adJudged to be less than fully viable and therefore, no longer useful."
The employer claims that Ms. Ayemonche failed to establish a prima facie case for discrimination because: (1) "Proof that [it] did not schedule [her] for work prior to October 8, 1992, when she first regained the ability to perform all of her employment duties, is insufficient to establish a claim for retaliatory discharge"; and (2) she did not "prove that the disparate treatment was motivated by animus against [her] because of her pursuit of her rights." Moreover, even assuming arguendo that there is an inference of discrimination, the employer contends that it rebutted this inference by establishing "two non-discriminatory, non-retaliatory and non-pretextual reasons for not placing Ms. Ayemonche back on the work schedule: [her] physical inability to perform all of her job responsibilities and ...