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Digest of EEO Law, Volume XI, No. 4

FEDERAL HIGHLIGHTS

I

COURT ENFORCES COMMISSION ORDER

Mahone v. United States Postal Service, 1998 U.S. App. LEXIS 2128 (6th Cir., February 10, 1998).

This was an action to enforce an award issued by the Commission. The court noted that plaintiff filed in federal court for enforcement of the award under 29 C.F.R. §1614.503. The award had been issued in a 1989 decision, in which the Commission found that the agency discriminated against plaintiff by failing to provide him with reasonable accommodation of his disability in a promotion situation. As relief, the Commission ordered retroactive promotion and back pay with interest for the period from July 1987 to June 1988, when plaintiff retired. [Ed. note: EEOC Appeal No. 01891944 (December 8, 1989).]

In implementing the Commission's Order, the agency excluded back pay for a ten-month period in which plaintiff did not work due to a back injury. The Commission determined that the agency had complied with the Order, and so advised plaintiff. Plaintiff filed a Petition for Enforcement. He contended in part that he should have received back pay for the ten-month period he was unable to work. The Commission denied the Petition. The Commission reasoned that the underlying decision ordered the agency to compute back pay in accordance with 5 C.F.R. §550.805, which provides that back pay is not to cover any period in which an individual was unable to perform his duties "because of an incapacitating illness or injury." Plaintiff filed this civil action seeking review of the Commission's decision in federal district court.

The district court concurred with the assessment of the Commission that the agency had satisfied the terms of the Commission's Order. Summary judgment was granted for the agency, and plaintiff appealed. The circuit court considered the terms of the Commission's Order, including the directive to compute back pay in accordance with 5 C.F.R. §550.805, and decided that the district court's decision was correct. The circuit court affirmed the district court's decision.

II

SUMMARY JUDGMENT IMPROPER IF DISCOVERY PERIOD INADEQUATE

Davis v. Runyon, 1998 U.S. App. LEXIS 3065 (6th Cir., February 23, 1998).

In Count I of his civil action, plaintiff alleged that the agency discriminated against him on the bases of race and sex when denying him sick leave, and leave under the Family and Medical Leave Act, 29 U.S.C. §2601 et seq.

Twice during the pretrial period, the district court denied plaintiff's requests for extensions of time to conduct discovery. The discovery cutoff date had been set at a case management conference on February 6, 1996. Trial was set for November 12, 1996. Plaintiff first moved for an extension on the discovery cutoff date of July 30, 1996. His attorney explained that he needed extra time because he had a heavy caseload and had been on vacation. When the district court without explanation denied the motion, plaintiff moved for reconsideration. He attached exhibits showing that a week before the discovery cutoff date, he had served on the agency a notice of deposition and a request for production of documents regarding comparison employees. The agency had responded that neither the witness nor the documents could be produced with such short notice. The court again denied the request for an extension of the discovery period, and thereafter dismissed or granted summary judgment to the agency on all counts. On Count I, the district court granted summary judgment on the basis that plaintiff did not come forward with any evidence to support a prima facie case.

On appeal, the circuit court agreed with plaintiff that the district court should have granted him more time for discovery. The requested discovery was obviously necessary to satisfy the district court's prima facie case standard, stated the court. Acknowledging that plaintiff may have been "less than diligent" in his discovery efforts, the circuit court also found the agency to be less than responsive to plaintiff's discovery requests. The circuit court decided that under these circumstances, the district court should have permitted plaintiff an extension, and found that the refusal to do so unreasonably deprived plaintiff of his ability to prove his claims of discrimination. The circuit court reversed the dismissal of Count I.

III

EARLY RETIREMENT OFFER NOT AGE DISCRIMINATION

Johnson v. Runyon, 137 F.3d 1081 (8th Cir., March 6, 1998).

Plaintiff was 52 years of age and a tour superintendent at the agency when the agency embarked on a major reorganization. All tour superintendent positions were abolished, but a higher-level position requiring additional skills was created. Plaintiff along with others was offered early retirement. An agency official later informed him that he did not intend to hire him for one of the new higher-level positions, on the grounds that he lacked the required skills. The official testified that he informed plaintiff because plaintiff had to make his early retirement decision. The official also testified that he told plaintiff that he would still have a job with the agency, and would not be reduced in pay.

Plaintiff accepted the early retirement offer, but testified that he had not intended to retire early. He filed suit, alleging age discrimination, after the agency selected persons for the higher-level position who ranged in age from 36 to 48. The district court entered judgment in favor of the agency. The district court found that plaintiff failed to make a prima facie showing; because he retired voluntarily, he did not suffer an adverse employment action.

The circuit court agreed. The court stated that where there was no adverse employment action, plaintiff could recover only if he could show that he was constructively discharged. The court noted that plaintiff chose to retire rather than to wait and see what positions would be available after the reorganization. No reasonable person would have found these working conditions so intolerable that they would force an employee to quit, ruled the circuit court.