federal court after giving the Equal Employment Opportunity Commission (EEOC) 30 days notice of intent to sue in federal court. 29 C.F.R. § 1614.201 (1995).
Runyon asserts that all of the plaintiff's claims that take place before and after the period between October 22, 1992, and December 7, 1992, should be dismissed. Defendant argues that December 7, 1992, is the date that the plaintiff filed an informal complaint with an EEO counselor, and therefore, only events that happened within 45 days prior to this filing, or October 22, 1992, would be covered. Thus, according to Runyon, only two claims would survive: the claim that the defendant impermissibly required the plaintiff to report to work at 4:00 a.m. and the related claim of improper discipline for failing to report to work at 4:00 a.m. The other claims involving refusal to place Pendas on regular status, repeated suggestions of retirement, and constructive discharge are all either time barred or have been resolved through prior negotiations. In response, plaintiff contends that the 45 day limitation merely requires the claimant to initiate contact with a counselor within 45 days of the date of the alleged discriminatory act, and does not prohibit raising related complaints about further discriminatory actions that occur after the complaint has been filed. Plaintiff asserts that the constructive discharge and retaliation claims are related to the other claims raised to the EEOC, and are therefore not barred. For the reasons discussed later in this opinion, the court finds that the plaintiff's claims are not time barred.
As noted earlier, an essential element of establishing a claim under the ADEA is to show that the claimant was in fact discharged. Stetson, 995 F.2d at 359. A "discharge," in satisfaction of the third element of the prima facie case, may be either an actual termination of the plaintiff's employment by the employer or a "constructive" discharge. Pena, 702 F.2d at 325. A claim of constructive discharge must be dismissed as a matter of law unless the evidence is sufficient to permit a rational trier of fact to infer that the employer deliberately created working conditions that were "'so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.'" Pena, 702 F.2d at 325 (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir.1977)).
Thus, the first step in analyzing this motion for summary judgment revolves around the concept of constructive discharge. In order to survive the defendant's motion for summary judgment, the plaintiff must show two things. First, plaintiff must show that the defendants had reasonable notice of a constructive discharge claim. If the defendants did not have notice, summary judgment should be granted. Second, plaintiff must show that a reasonable jury could find that he was, in fact, constructively discharged.
1. Notification of Constructive Discharge
In the March 12, 1993, formal complaint to the EEOC, Pendas alleged that "he was discriminated against because of his age (62) and physical handicap (Osteoarthritis) in that his supervisor has required him to report to duty at 0400 since October 28, 1992 which is in direct conflict with his physician's medical restrictions." Plaintiff asserts that although he did not inform anyone, including the EEOC as required by the ADEA, that he was being constructively discharged when he stopped working on December 1, 1993, the defendant nevertheless had notice that a constructive discharge claim could have resulted in his case because it is related to the original claim he filed with the EEOC.
In support of this argument, plaintiff cites Oubichon v. North American Rockwell Corp., 482 F.2d 569 (9th Cir. 1973). In Oubichon, a claimant alleging racial discrimination was permitted to seek relief for incidents not listed in the original complaint or filed in supplemental complaints because the court saw them as being reasonably related to the charges raised in the original complaint. "To force an employee to return to the state agency every time he claims a new instance of discrimination in order to have the EEOC and the courts consider the subsequent incidents along with the original ones would erect a needless procedural barrier." Id. at 571. See also Weise v. Syracuse University, 522 F.2d 397, 412 (2d Cir. 1975) (adopting the holding in Oubichon). It is plaintiff's contention that his claim which alleged that the defendant was impermissibly requiring him to work an early morning shift contrary to his physician's orders is reasonably related to his constructive discharge claim.
Plaintiff resigned from his job with the Postal Service on December 1, 1993. Pendas complains specifically of discrimination stemming from the requirement that he report to work at 4:30 a.m. which he claims disrupted his schedule and was contrary to his physician's orders. However, the third cause of action in the case before this court specifically states that Pendas was constructively discharged because he was forced to stand for eight hours each day. Although this seems to be in conflict, the court finds that the requirement to stand and the requirement to report to work at 4:30 a.m. are inextricably linked since they both relate to the job to which Pendas was assigned, and as discussed earlier, are both contrary to his physician's orders.
Therefore, for purposes of this motion for summary judgment, the court finds that the plaintiff's complaint to the EEOC alleging the impermissible requirement of working an early morning shift is reasonably related to the claim before this court of constructive discharge due to the impermissible requirement of having Pendas stand for eight hour shifts. The defendant was aware that Pendas was claiming that his medical condition prohibited him from working early morning hours and prohibited him from standing for periods of more than one hour at a time. Despite the fact that Dr. Lavigne and Dr. Rogers opined that he was capable of working early morning hours, Dr. Lavigne acknowledged that he was of the opinion that he should not stand for more than one hour or so at a time. Perhaps more important is the fact that Dr. Lavigne approved of the early morning work shift based upon the presumption that Pendas was to be working only four hours at a time. Pendas contends, and it is uncontroverted, that he was working eight hour shifts while standing. Furthermore, both Dr. Gardner and Dr. Boehler were of the opinion that plaintiff should not be working early morning hours and could not stand for more than one hour at a time. Therefore, the constructive discharge claim is reasonably related to the complaint filed by Pendas, and must be considered a continuation of the allegations surrounding that complaint. As a result, the court is satisfied that the defendant was on notice that a constructive discharge claim was probable, and that investigation into the matter should have taken place.
2. Constructive Discharge Requirement
To reiterate, "a claim of constructive discharge must be dismissed as a matter of law unless the evidence is sufficient to permit a rational trier of fact to infer that the employer deliberately created working conditions that were 'so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.'" Pena, 702 F.2d at 325 (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977)). Plaintiff argues that his placement on an early morning work shift which required him to stand for eight hours at a time was contrary to his physician's orders and constituted an unreasonably difficult work condition which was deliberately created, thus meeting the standard for constructive discharge.
The law of constructive discharge suggests that mere cuts in pay or reduction in responsibility do not rise to the level of constructive discharge. Stetson, 995 F.2d at 360 (citing Pena, 702 F.2d at 325-6). What a claimant may consider to be unfair criticism of his or her work will also not rise to the level of constructive discharge. Id. (citing Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1160-61 (3d Cir. 1993)). "Nor is the standard for constructive discharge merely whether the employee's working conditions were difficult or unpleasant." Id. (citing Martin v. Citibank, N.A., 762 F.2d 212 (2d Cir. 1985). Martin involved an African-American employee who alleged constructive discharge after her supervisor announced to coworkers that Martin had been polygraphed regarding missing money among other incidents that she claimed interfered with her ability to work. 762 F.2d at 221.
Clearly, the burden of a plaintiff to show constructive discharge is not light. Nevertheless, for purposes of summary judgment, this court cannot reach the conclusion that the plaintiff was not constructively discharged. Pendas was placed on a 4:30 a.m. work shift and made to stand for eight hours at a time, contrary to his physician's orders. Dr. Lavigne, Dr. Boehler, and Dr. Gardner all agree that working an early shift and standing for long periods of time are deleterious to the plaintiff's health. There is no doubt that the defendant knew that these physicians held these opinions. Dr. Richard Boehler sent a letter outlining his opinion on February 1, 1991, and as discussed earlier, Dr. Lavigne made the same recommendation in letter form on February 2, 1992. Dr. Lavigne did not alter this recommendation until he was contacted by the defendant by telephone, and as noted earlier, his change of opinion was based upon the erroneous presumption that plaintiff's shift was only four hours long. Finally, Dr. Gardner, the plaintiff's current treating source, also espouses the view that the plaintiff cannot work early morning hours and should not be standing for more than one hour at a time.
Thus, viewing the facts in a light most favorable to the plaintiff, this court cannot find as a matter of law that constructive discharge does not exist in this case. A reasonable fact-finder could conclude that because the plaintiff's physicians ordered him both not to work early morning hours, and not to stand for prolonged periods of time, the conditions created by the defendant were "'so difficult ... that a reasonable person in the employee's shoes would have felt compelled to resign.'" Pena, 702 F.2d at 325 (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir.1977)).
3. Retaliation and Discrimination Claims
Defendant asserts that the plaintiff's retaliation and discrimination claims should also be denied. Runyon argues that the retaliation claim should be denied as time barred since plaintiff did not allege retaliation or discrimination in his original complaint to the EEOC. The court finds this argument to be without merit. First, in a letter to the EEO coordinator dated December 3, 1992, plaintiff specifically states that "Mr. Loehner has retaliated by requiring me to report to work at 4:00 a.m. in direct violation of the restrictions requested by my Doctor." Second, in the formal complaint filed on March 12, 1993, plaintiff makes specific reference to retaliation for past EEOC activities. The court is therefore satisfied that the defendant had notice of plaintiff's retaliation claim and that it is not time barred.
Defendant concedes that plaintiff can make the requisite evidentiary showing concerning his claims of age discrimination surrounding his placement on an early morning shift. However, defendant argues that Pendas cannot controvert the defendant's legitimate, non-discriminatory reasons for the actions of the Postal Service. Defendant's legitimate reason for filing a disciplinary report against the plaintiff consists of the argument that plaintiff chose not to report to work at 4:30 a.m. The court finds this argument unconvincing. As discussed earlier, the reason that the plaintiff failed to report to work for the early morning shift was because it was contrary to his physician's orders to work those hours. Furthermore, Pendas was forced to stand for eight hours during these shifts which was also contrary to his physician's orders. Thus, because the defendant's proffered reason for the plaintiff's actions is an open factual question, this court cannot conclude that there is "evidence ... as to which there is no genuine issue and which no rational trier of fact could reject." Sutera v. Schering Corp., 73 F.3d 13, 18 (2d Cir 1995) (quoting Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203).
In conclusion, the court is satisfied that the plaintiff has established a prima facie case for age discrimination to survive this motion for summary judgment.
Accordingly, it is
1. Defendant's motion for summary judgment is DENIED; and
2. Defendant's motion to strike the amended complaint is GRANTED with respect to requests for compensatory damages, liquidated damages, a jury trial, prejudgment interest, and attorney's fees.
David N. Hurd
United States Magistrate Judge
Dated: July 11, 1996
Utica, New York.