had a duty under the statute to so accommodate her. The court
is unable to agree with plaintiff that the Hospital had a duty
to grant her requested accommodation — 10:00 starting hour.
15. The Hospital as a matter of administrative necessity,
discretion and convenience had the right to prescribe the
regular tours of duty for its nursing personnel, prescribe
different tours of duty for different personnel, and make
appropriate exceptions in employees' work schedules for
administrative convenience. An employer must be given broad
latitude in work scheduling and its administration,
particularly regarding its professional, management and
16. The record abundantly establishes that an administrative
work week tour of duty was a critical requirement for the
position of Head Nurse at the Hospital. Therefore, the Hospital
had the right to require all Head Nurses, including plaintiff,
to work an "administrative work week" notwithstanding that the
Hospital granted occassional and brief exceptions for
17. A federal agency is not required to provide a handicapped
employee a modified special work schedule on a regular basis
for an extended or indefinite period of time that imposes an
undue hardship or unreasonable administrative burden on the
agency. See 29 C.F.R. § 1613.704(a); 45 C.F.R. § 84.3(k);
School Board of Nassau County v. Arline, 480 U.S. 273, 107
S.Ct. 1123, 1131 n. 17, 94 L.Ed.2d 307 (1987); Southeastern
Community College v. Davis, 442 U.S. 397, 412, 99 S.Ct. 2361,
2370, 60 L.Ed.2d 980 (1979); Simon v. St. Louis County,
656 F.2d 316, 320 (8th Cir. 1981), cert. denied, 455 U.S. 976, 102
S.Ct. 1485, 71 L.Ed.2d 688 (1982); Alexander v. Choate,
469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985); Hurst v. United
States Postal Service, 653 F. Supp. 259, 261 (N.D.Ga. 1986);
Trimble, 633 F. Supp. at 371; Mackay, 607 F. Supp. at 279.
18. Plaintiff's requested accommodation, i.e., tour of duty
commencing at 10:00 A.M., if granted, would have imposed an
"unreasonable" administrative burden on the Hospital; granting
plaintiff such accommodation would have caused administrative
difficulties due to her absence from work and required that
defendant assign some of plaintiff's responsibilities as Head
Nurse prior to 10:00 A.M. to a Head Nurse in an adjoining ward
or on a lower ranked staff nurse on a regular basis for an
extended (not less than two months) and indefinite period of
19. An "otherwise qualified" handicapped person is one who
"is able to meet all of the program's requirements in spite of
[her] handicap." Southeastern Community College, 442 U.S. at
406, 99 S.Ct. at 2367. See also School Bd. of Nassau Cty., 480
U.S. at 287 n. 17, 107 S.Ct. at 1131 n. 17. Head Nurses at the
Hospital were required to ordinarily be on duty during the
"administrative work week," commencing daily at 7:00, 7:30 or
8:00 A.M. Since plaintiff, because of her depression and
sedating medication regimen, was admittedly unable to report to
work prior to 10:00 A.M., she was not "otherwise qualified" for
the position of Head Nurse. Alderson v. Postmaster General of
the United States, 598 F. Supp. 49, 54 (W.D.Okla. 1984).
20. Reasonable accommodation includes an appropriate
reassignment and "federal employers are bound to undertake a
reasonable and competent attempt to retain such employees in a
capacity in which they are qualified and capable of serving."
Rhone, 665 F. Supp. at 744 (defendants were obligated to make a
"substantial effort to find handicapped employee a position in
which he could satisfactorily perform").
21. The Hospital's proffered reassignment of plaintiff to
staff nurse took into account plaintiff's qualifications
and capacity to serve and would have been a "reasonable
accommodation." Plaintiff had spent a substantial percentage of
her nursing career as a staff nurse, and such position would
have allowed plaintiff to continue working as a nurse without
reduction of grade and pay level, but with flexible hours and
the tour of duty she requested, without undue hardship to the
22. Under 29 U.S.C. § 794a(a)(1), the rights, remedies and
procedures set forth
in section 717 of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-16, are applicable to complaints of handicap
discrimination brought by a federal employee against a federal
agency. Hence, prior to bringing suit, federal employees must
exhaust their administrative remedies. De la Torres v. Bolger,
781 F.2d 1134 (5th Cir. 1986); Gardner v. Morris, 752 F.2d 1271
(8th Cir. 1985); Boyd v. United States Postal Serv.,
752 F.2d 410 (9th Cir. 1985); Johnson v. Orr, 747 F.2d 1352 (10th Cir.
1984); Smith v. United States Postal Serv., 742 F.2d 257 (6th
Cir. 1984). See also Prewitt, 662 F.2d at 311, 313; Mackay,
supra; Neves v. Kolaski, 602 F. Supp. 645, 648-49 (D.R.I. 1985);
Clark v. United States Postal Serv., 592 F. Supp. 631, 632
(D.Mass. 1984); S.Rep. No. 890, 95th Cong., 2d Sess. 19 (1978).
23. Defendant, citing 42 U.S.C. § 2000e-16(c) (providing when
a federal employee may commence a civil action in a federal
court for discrimination), raises the issue of exhaustion of
administrative remedies — limited solely to plaintiff's claim
of constructive discharge. Defendant's contention that
plaintiff's constructive discharge claim, raised for the first
time in her amended and supplemental complaint, should be
dismissed for lack of subject matter jurisdiction is predicated
on the assertion that such claim is outside the scope of
plaintiff's administrative charges and the ensuing
24. The court lacks subject matter jurisdiction over matters
outside the scope of the investigation that could be reasonably
expected to grow out of the administrative charge. Lawson v.
Burlington Industries, 683 F.2d 862 (4th Cir.), cert. denied,
459 U.S. 944, 103 S.Ct. 257, 74 L.Ed.2d 201 (1982); Smith v.
American President Lines, Ltd., 571 F.2d 102, 107 n. 10 (2d
Cir. 1978); Grant v. Morgan Guaranty Trust Co. of New York,
548 F. Supp. 1189, 1191 (S.D.N.Y. 1982).
25. Notwithstanding that plaintiff made no explicit
administrative claim of "constructive discharge," the court has
jurisdiction over such claim if "reasonably related" to the
charge filed with the EEOC, including incidents occurring
subsequent to the filing of the EEOC complaint. Stewart v.
United States I.N.S., 762 F.2d 193, 198 (2d Cir. 1985);
Almendral v. New York State Office of Mental Health,
743 F.2d 963, 967 (2d Cir. 1984); Goodman v. Heublein, Inc.,
645 F.2d 127, 131 (2d Cir. 1981); Kirkland v. Buffalo Board of
Education, 622 F.2d 1066, 1068 (2d Cir. 1980).
26. Plaintiff's claim of "constructive discharge" arises out
of, is related to, and is inextricably intertwined with the
same alleged incidents of discriminatory misconduct and
impropriety upon which plaintiff predicated her administrative
claim. Hence, plaintiff's constructive discharge claim in her
amended and supplemental complaint, although not explicitly
asserted administratively, is properly before the court.
27. The Federal Tort Claims Act is not applicable to
plaintiff's claim of constructive discharge.
28. "A constructive discharge occurs when an employer, rather
than acting directly, deliberately makes an employee's working
conditions so intolerable that the employee is forced into an
involuntary resignation." Lopez v. S.B. Thomas, Inc.,
831 F.2d 1184, 1188 (2d Cir. 1987). When a constructive discharge is
found, the employee's resignation is treated as if the employer
had actually discharged the employee. Id.
29. Plaintiff's constructive discharge claim is patently
without merit: her requested accommodation was properly denied
because granting such accommodation would have caused the
Hospital an unreasonable administrative burden; she rejected a
reasonable offer of reassignment to a staff nurse position, an
alternative accommodation that would have met her 10:00 A.M. to
6:30 P.M. tour of duty requirement. And, as plaintiff had long
been contemplating, even before requesting a change in her tour
of duty (see deft's exh. C, last page), she voluntarily retired
on a disability pension without even awaiting a final
administrative determination of her EEOC complaint.
In sum, plaintiff has failed to establish that she was
constructively discharged, subjected to any form of
discrimination due to handicap, or was denied a reasonable
accommodation for her mental impairment.
The complaint is dismissed without costs. The Clerk is
directed to enter judgment accordingly.
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