The opinion of the court was delivered by: MISHLER
Wilhemenia Francis ("Francis") claims that she was dismissed from her job as a modified Distribution Clerk (working four (4) hours per day, five (5) days per week) on November 12, 1991, because she was a black Hispanic female with a physical handicap, due to degenerative arthritis of both knees, on the pretext that she misrepresented her physical condition. (Comp. PP 7 & 8).
Marvin T. Runyon, in his official capacity, denies the material allegations of the complaint, except admits that Francis was capable of performing her job duties for four (4) hours per day, five (5) days per week. Defendant alleges "that he had legitimate, nondiscriminating reasons for all of his actions." (Ans. P 29).
The issues of fact were tried to the court. The court finds as follows:
Francis is a black Hispanic woman. Francis was employed by the United States Postal Service ("Postal Service") on November 8, 1975, after having served as a temporary postal worker in 1974. On June 17, 1978, Francis voluntarily transferred to the West Islip Post Office to work as a letter carrier.
On September 18, 1978, Francis suffered an injury to her right knee while on duty as a result of degenerative arthritis. The Office of Workers' Compensation Program ("OWCP") of the Department of Labor ("DOL") found her totally disabled and awarded her compensation benefits.
Claims for Workers' Compensation of postal employees injured in the performance of their work are filed with the OWCP of the DOL. Compensation claims are heard and determined by the OWCP. The Injury Compensation Department of the Postal Service acts as an agent for OWCP in receiving claims of postal employees and submitting the claims for hearing and adjudication by OWCP.
On September 16, 1986, the Postal Service offered Francis reemployment as a part-time Distribution Clerk (Modified), which was a limited-duty position (Rehab Clerk) in the Rehabilitation Program in the Hicksville Post Office. On September 26, 1986, she began working part-time in that position. Francis received partial (4 hours) benefits from the OWCP while she was working as a Rehabilitation Clerk for the Hicksville Post Office. The part-time employment (four (4) hours per day, five (5) days per week) consisted of sorting, distributing and dispatching outgoing mail on the modified distribution case. A distribution case is a shelving unit with various slots for the sorting of various pieces of mail.
On November 5, 1986, Francis re-injured her knee. She filed a Notice of Employee's Reoccurrence of Disability and Claim for Pay/Compensation of her knee injury with DOL for being totally disabled. She remained out of work until May 7, 1987. She then claimed a reoccurrence of total disability on May 28, 1987, and remained totally disabled until February 3, 1988.
On January 22, 1988, the Postal Service offered and Francis accepted a position in the Rehabilitation Program as a distribution clerk at the Mid Island Postal facility.
On June 7, 1988, Francis claimed a reoccurrence of her knee injury and on June 9, 1988, she filed a Notice of Employee's Reoccurrence of Disability and Claim for Pay/Compensation for total disability. She returned to sedentary work on a part-time basis in the Rehabilitation Program in October, 1989. She claimed total disability in December, 1989 and returned to a four-hour limited duty Rehabilitation Program position in March, 1990 at the Hicksville Post Office.
Francis claimed a reoccurrence of her knee injury on June 29, 1990. She claimed that the injury was caused by a fall to the ground on the way to the bus she generally uses that takes her to the Long Island Rail Road station where she boards the train to work. Her physician, Dr. Robert Bernzweig, found a "contusion of the left knee" and determined that she was totally disabled.
On July 2, 1990, Francis submitted a claim for Compensation on Account of Disability based on the claimed reoccurrence of her injury on June 29, 1990. She claimed she was totally disabled from June 29, 1990 to July 8, 1990. Francis did not return to work until July 9, 1990.
On July 3, 1990, Steve Yammond, an acting Senior Injury Compensation Specialist, by telephone, offered Francis a limited-duty job within her then current restrictions. Francis declined, stating that she could not walk because her left knee was swollen and she required another week of rest. The videotape of Francis on July 3 shows her walking her dogs near her residence. Walking the dogs required that she descend the stairway (15-16 steps) leading from her apartment on the second floor and climb the stairway to return to her apartment.
The gait was normal. Francis walked her dogs on July 4, 5 and 6. The videotape shows her performing naturally and normally. The July 6 demonstration shows her walking at a fast pace.
On July 6, 1990, Francis was observed leaving her apartment after walking her dogs, and driving her vehicle to an apartment in Brentwood. Before returning to her apartment in Bay Shore, Francis drove to a supermarket to do some minor personal shopping. In all of these activities, Francis displayed no difficulty in performing them.
On July 9, 1990, plaintiff returned to work part-time in her limited duty Rehabilitation Program position and was scheduled to work four hours per day. When Francis returned to work, she drove her vehicle to the Deer Park station of the Long Island Rail Road. She walked to the station from the parking lot and climbed the stairs to the platform without difficulty. She did the same on succeeding days.
When Buckley transported Francis for the FFD examination, Francis concealed her ability to drive to the Long Island Rail Road station by permitting Buckley to take her back to her home in Bay Shore after the examination by Dr. Veal. She then took public transportation to the Deer Park station of the Long Island Rail Road, where her car was parked. She drove her car back to her residence in Bay Shore.
OWCP denied the July 2, 1990 claim on September 21, 1990 on the ground that Francis' condition was due to a non-employment related injury and not due to a spontaneous return of symptoms relating to the 1978 injury. That decision was reversed on appeal and Francis was awarded compensation.
Francis claimed she again re-injured her knee on September 19, 1990. She stopped work on October 1, 1990, and returned to a four-hour day, limited-duty rehabilitation position on February 25, 1991. During this period of claimed temporary total disability, Francis walked her dogs on February 13, 1991 and February 20, 1991. Francis was awarded compensation for the claimed September 19, 1990 reoccurrence of her ...