totally disabled beneficiary until September 26, 1986.
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.
On July 13, 1990, the Acting Supervisor of Mails, Madeline Buckley, arranged for a fitness-for-duty ("FFD") examination by Dr. Yvonnecris Veal, Field Division Medical Officer at the Mid-Island Postal Facility. Francis' deception concerning her physical condition continued during the FFD examination by Dr. Veal. She told Dr. Veal that she was home-bound during the week of June 30 until July 7.
Dr. Veal was of the opinion that Francis was capable of performing limited duty in a restricted (sedentary) position "eight hours a day instead of the four hours a day that her doctor had recommended." (Tr. p.133).
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 knee injury for the period until February 25, 1991, based on her claim of temporary total disability.
Postal Inspector William D. Hayes, whose duty it was to investigate questionable workers' compensation claims reported in a memorandum to the "General Manager/ Postmaster" dated April 10, 1991, inter alia, that Francis made misrepresentations concerning her activities from June 30, 1990 to July 7, 1990, and the temporary total disability claim resulting from the alleged re-injury on September 19, 1990.
Hayes and Postal Inspector Thomas Tretola interviewed Francis at the Hicksville Post Office on April 26, 1991. She told the inspectors that she generally got to the Long Island Rail Road station by bus. She stated that at times she drove her vehicle short distances by using her left foot (on the brake). She denied walking her dogs during the period June 30 to July 7, 1990, and denied walking her dogs on February 13 and February 20, 1991.
On May 15, 1991, Hayes again reported to the General Manager/Postmaster enclosing a letter to Alonza A. Hart, Jr., Acting Director of OWCP referring to the videotape recordings showing that Francis was not totally disabled as she claimed.
On September 3, 1991, Hayes issued a Supplementary Investigatory Memorandum to the General Manager/Postmaster enclosing a report of Dr. Richard A. Goodman's examination of Francis on July 1, 1991, stating, "[s]he had been capable of performing her regular duty as a sedentary mail sorter or other secretarial occupation from the beginning of the alleged trauma." Hayes suggested that a copy of Dr. Goodman's report might alert OWCP "to this potential overpayment of compensation benefits."
On September 17, 1991, Michael Berta, Acting Superintendent of Postal Operations, issued a Notice of Proposed Removal to Francis. The Notice of Proposed Removal specifically stated the charge: Misrepresentation of your Physical Restrictions.
Francis was charged with deliberately failing to tell physicians who examined her of her true physical abilities. The Notice summarized the charges of misrepresentation, detailed the proof to support the charges, and offered Francis the opportunity to answer the charges.
By letter dated October 1, 1991, Francis denied that she misrepresented her physical restrictions. She states that her medical condition "never barred me from walking my dogs . . ."; that she can drive her vehicle "for short distances . . . ."
On November 1, 1991, Paul Bauccio, Manager of Station and Branch Operations, sent Francis a Letter of Decision informing her of the decision to terminate her employment with the Postal Service effective November 12, 1991. Plaintiff filed a grievance of her removal and an arbitrator issued a favorable decision to the Postal Service. Plaintiff filed a complaint with the EEOC and the administrative judge recommended a decision of no discrimination on the part of the Postal Service. Francis continues to receive four hours of Workers' Compensation benefits in the amount of $ 849.00 every 28 days.
The representations made to Dr. Veal, Yammond and Buckley were false statements relating to her ability to get to work, whether for four or eight hours. The evidence showed that Francis was able to report for work, i.e., videotapes showing Francis walking her dogs and driving her vehicle to the Deer Park railroad station parking lot on July 9.
The Letter of Decision, removing Francis states:
The record indicates you misrepresented your physical restrictions while claiming to be totally disabled from work since July 1990. . . . Your removal is, therefore, necessary to promote the efficiency of the Service. This is due to the fact that your supervisors no longer have any confidence in your ability to report for duty ready, willing and able to discharge your duties conscientiously and effectively (emphasis added).
Defendant concedes that Francis suffered degenerative arthritis in both knees. Three operations were performed on the right knee and one operation was performed on the left knee. Francis suffered varying degrees of pain and swelling of the knees at various times.
Francis states the issue to be, "Ms. Francis' inability to consistently report to work was the sole reason for her discharge" (Brief p.17) [and] "defendant seeks to avoid liability by claiming that Ms. Francis was not fired because of her disability but because she failed to show up for work when defendant believed she was not totally disabled." (Brief. p.19). On the facts found and herein discussed, the real issue in this case is Francis' misrepresentation of her physical restrictions as the reason for termination of her employment.
Francis claims discrimination because of race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) and violation of her rights under the Rehabilitation Act of 1973, 29 U.S.C. § 794(a).
The issue of Francis' misrepresentation of her physical restrictions as the reason for the termination of her employment raises two questions: (1) whether the Postal Service intentionally discriminated against Francis due to her race and sex; and (2) whether the Postal Service discharged an "otherwise qualified" individual, without making reasonable accommodation, "solely by reason of her disability."
Title VII Claims
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) states:
(a) Employer practices. it shall be an unlawful employment practice for an employer -