# Mullins v. Crowell

> District Court, N.D. Alabama · September 21, 1999 · 74 F. Supp. 2d 1067

URL: https://www.frixlaw.com/law-library/cases/2424528

## Case

- **Full name:** Robert MULLINS, Michael D. Desruisseaux, and Thomas Miles, Plaintiffs, v. Craven CROWELL, Johnny H. Hayes, and William H. Kennoy, Defendants; Michael G. Murks, Plaintiff, v. Craven Crowell, Johnny H. Hayes, and William H. Kennoy, Defendants; Millard Shelton, Plaintiff, v. Craven Crowell, Johnny H. Hayes, and William H. Kennoy, Defendants; James R. Williams, Plaintiff, v. Craven Crowell, Johnny H. Hayes, and William H. Kennoy, Defendants; Jerry Chandler, Plaintiff, v. Craven Crowell, Johnny H. Hayes, and William H. Kennoy, Defendants; Noonan W. Greene, Plaintiff, v. Craven Crowell, Johnny H. Hayes, and William H. Kennoy, Defendants; Thomas Larry Bailey, Plaintiff, v. Craven Crowell, Johnny H. Hayes, and William H. Kennoy, Defendants; Jerry Gothard, Plaintiff, v. Craven Crowell, Johnny H. Hayes, and William H. Kennoy, Defendants; Edward J. Smart, Plaintiff, v. Craven Crowell, Johnny H. Hayes, and William H. Kennoy, Defendants; Frank N. Speer, Plaintiff, v. Craven Crowell, Johnny H. Hayes, and William H. Kennoy, Defendants; Marc W. Shores, Plaintiff, v. Craven Crowell, Johnny H. Hayes, and William H. Kennoy, Defendants; Timothy L. Mansell, Plaintiff, v. Craven Crowell, Johnny H. Hayes, and William H. Kennoy, Defendants; Ricky S. Coats, Plaintiff, v. Craven Crowell, Johnny H. Hayes, and William H. Kennoy, Defendants; Bobby Massey, Plaintiff, v. Craven Crowell, Johnny H. Hayes, and William H. Kennoy, Defendants; Halbert Putnam, Plaintiff, v. Craven Crowell, Johnny H. Hayes, and William H. Kennoy, Defendants; Troy Tucker, Plaintiff, v. Craven Crowell, Johnny H. Hayes, and William H. Kennoy, Defendants; Lanny W. Smith, Plaintiff, v. Craven Crowell, Johnny H. Hayes, and William H. Kennoy, Defendants; Barbara G. Hovater, Plaintiff, v. Craven Crowell, Johnny H. Hayes, and William H. Kennoy, Defendants; Thomas A. Crow and Marion G. Rainer, Plaintiffs, v. Craven Crowell, Johnny H. Hayes, and William H. Kennoy, Defendants; Lonner T. Chandler and Richard B. Dutton, Plaintiffs, v. Craven Crowell, Johnny H. Hayes, and William H. Kennoy, Defendants
- **Court:** District Court, N.D. Alabama
- **Decided:** September 21, 1999
- **Citations:** 74 F. Supp. 2d 1067; 1999 U.S. Dist. LEXIS 19601; 1999 WL 1132959
- **Precedential status:** Published
- **Opinion:** Opinion by Buttram
- **Judges:** Buttram
- **Cited by:** 3 later opinions in the Frix Law Library

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## Opinion text

Memorandum Opinion
BUTTRAM, District Judge.
Before the Court are a number of pending motions in the consolidated case of
Mullins v. Crowell, et al.,
lead case number CV- 97-BU-1897-S. Pending in this consolidated case are (1) a motion for summary judgment filed by the Defendants, Craven Crowell (“Crowell”), Johnny H. Hayes (“Hayes”) and William H. Kennoy (“Kennoy”), on August 14, 1998,
1
against the claims of Plaintiffs (collectively, “original Plaintiffs”) Thomas L. Bailey (“Bailey”), Jerry W. Chandler (“J.Chandler”), Ricky S. Coats (“Coats”), Michael D. Des-ruisseaux (“Desruisseaux”), Jerry Gothard (“Gothard”) Noonan Greene (“Greene”), Barbara Hovater (“Hovater”), Timothy L. Mansell (“Mansell”), Bobby Massey (“Massey”), Thomas Miles (“Miles”), Robert Mullins (“Mullins”), Michael Murks (“Murks”), Halbert Putnam (“Putnam”) Millard I. Shelton (“Shelton”), Marc Shores (“Shores”), Frank Speer (“Speer”), Edward Smart (“Smart”), Lanny Smith (“Smith”), and Troy Tucker (“T.Tucker”) (Document 55); (2) a motion for leave to file a reply brief filed by the Defendants on October 5, 1998 (Document 74);
2
(3) a
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second motion for summary judgment filed by the Defendants on June 9,1999, against the claims of Plaintiffs (collectively, “new Plaintiffs”) Lonner T. Chandler (“L.Chandler”), Thomas A. Crow (“Crow”), Richard B. Dutton (“Dutton”), and Marion G. Rain-er (“Rainer”) (Document 116); (4) a motion for leave to submit the decision of the EEOC in
Hines v. Runyon
filed by the Plaintiffs on July 9, 1999 (Document 128);
3
(5) a motion for leave to file an affidavit out of time filed by the Plaintiffs on July 13, 1999 (Document 129);
4
(6) a motion to dismiss Richard B. Dutton with leave to refile filed by the Plaintiffs on July 20, 1999 (Document 131); (7) a motion for leave to submit additional evidence filed by the Plaintiffs on July 28, 1999 (Document 133); (8) a motion to include the parties’ briefs on the motions for summary judgment as part of the record filed by the Plaintiffs on July 28, 1999 (Document 134); (9) a motion to change, modify, expand, and/or clarify the Plaintiffs’ theory of the case to focus on how the Plaintiffs’ impairments substantially limit major life activities other than working filed by the Plaintiffs on August 5, 1999 (Documents 136 & 138); and (10) a motion to permit change of theory and/or submission of additional evidence as a matter of equity filed by the Plaintiffs on August 9, 1999 (Document 137).
In their motions for summary judgment, the Defendants contend that each of the Plaintiffs is incapable of presenting a genuine issue of triable fact as to his or her claims of disability discrimination under sections 501(b) and 504(a) of the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. §§ 791 (b) & 794(a). The original and new Plaintiffs respond that there exist genuine issues of triable fact on their claims that the Tennessee Valley Authority (“TVA”) discriminated against them on the basis of their disabilities by classifying them in segregated competitive areas and levels — thereby impairing their ability to compete for retention in the face of an impending reduction in the workforce— and by terminating them through the reductions in force.
5
Summary judgment offers the parties an invaluable opportunity to test the mettle of a case before it ever reaches trial. In evaluating a motion for summary judgment, the court assesses all of the proof the parties can bring to bear to ascertain the presence of a genuine issue for trial.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986). Under Federal Rule of Civil Procedure 56, the court’s determination of the propriety of summary judgment is to be tempered by a strong inclination in favor of the non-movant. Therefore, only if the court concludes that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law is a grant of summary judgment appropriate. Fed.R.Civ.P. 56(c).
See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986);
Celotex Corp. v. Catrett,
477 U.S. 317, 322 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986).
It is the initial responsibility of the mov-ant to inform this court of the grounds for its motion and to specifically identify those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits that it believes demonstrate the absence of a genuine issue of
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material fact.
Id.
at 323 , 106 S.Ct. 2548 . The movant carries no meager burden, for it must illuminate for the district court, with reference to materials on file, the reasons why the non-movant cannot or does not raise a genuine issue of material fact sufficient to support a trial.
Clark v. Coats & Clark, Inc.,
929 F.2d 604, 608 (11th Cir.1991).
But see Gonzalez v. Lee County Housing Authority,
161 F.3d 1290, 1294 (11th Cir.1998) (“When the non-moving party bears the burden of proof on an issue at trial, the moving party need not ‘support its motion with affidavits or other similar material negating the opponent’s claim,”
Celotex
at 323, 106 S.Ct. 2548 , in order to discharge this initial responsibility. Instead, the moving party simply may “show” — that is, point out to the district court — that there is an absence of evidence to support the nonmoving party’s case.).
Only after the moving party has satisfied this initial burden must the nonmoving party “make a sufficient showing to establish the existence of each essential element to that party’s case, and on which that party will bear the burden of proof at trial.”
Howard v. BP Oil Company,
32 F.3d 520, 523 (11th Cir.1994). At that point, Federal Rule of Civil Procedure 56(e) dictates that the nonmoving party “go beyond the pleadings” and by “affidavits, or by the ‘depositions’, answers to interrogatories, and admissions on file’ designate ‘specific facts’” showing there exist genuine issues for trial.
Celotex,
477 U.S. at 324 , 106 S.Ct. 2548 ;
Cottle v. Storer Communication, Inc.,
849 F.2d 570, 575 (11th Cir.1988). “If the non-moving party fails to ‘make a sufficient showing on an essential element of her case with respect to which she has the burden of proof,’ then the court must enter summary judgment for the moving party.”
Gonzalez v. Lee County Housing Authority,
161 F.3d at 1294 (11th Cir.1998). Bare speculation based on loose construal of the evidence will not satisfy the non-movant’s burden.
See id.
While the district court is permitted to consider the offered “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any” in deciding whether to grant or deny a summary judgment motion, Fed.R.Civ.P. 56(c),the non-movant bears the absolute responsibility of designating the specific facts in the record that support its claims.
See United States v. Four Parcels of Real Property in Greene and Tuscaloosa Counties in the State of Alabama,
941 F.2d 1428, 1438 (11th Cir.1991);
Jones v. Sheehan, Young & Culp, P.C.,
82 F.3d 1334, 1338 (5th Cir.1996). In other words, Federal Rule of Civil Procedure 56 “does not impose upon the district court a duty to survey the entire record in search of evidence to support a non-movant’s opposition.”
Id.See also Resolution Trust Corp. v. Dunmar Corp.,
43 F.3d 587, 599 (11th Cir.) (“There is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment.”), cer
t. denied,
516 U.S. 817 , 116 S.Ct. 74 , 133 L.Ed.2d 33 (1995).
In resolving whether a given factual dispute requires submission to a jury, the court must inspect the presented evidence through the looking glass of each party’s substantive evidentiary , burden.
Anderson, 477
U.S. at 254-55, 106 S.Ct. 2505 . Nonetheless, the court must abstain from examining the probity of conflicting evidence and from deciding issues of credibility.
Welch v. Celotex Corp.,
951 F.2d 1235, 1237 (11th Cir.1992). “It is not part of the court’s function, when deciding a motion for summary judgment, to decide issues of material fact, but rather decide whether such issues exist to be tried. The Court must avoid weighing conflicting evidence or making credibility determinations.”
Hairston v. Gainesville Sun Publishing Co.,
9 F.3d 913, 919 (11th Cir.1993). Still though, “the nonmoving party must provide more than a mere scintilla of evidence to survive a motion for judgment as a matter of law; ‘there must be a substantial conflict in evidence to support a jury question.’ ”
Tidwell v. Carter Products,
135 F.3d 1422, 1425 (11th Cir.1998)
(citing Carter v. City of Miami,
870 F.2d 578, 581 (11th Cir.1989)).
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Background
&
Procedural History
On July 24, 1997, Robert Mullins filed his complaint against Crowell, Hayes and Kennoy, as the heads of the TVA,
6
alleging numerous violations of the Rehabilitation Act of 1973.
7
Soon thereafter, fifteen other cases were filed against the Defendants, alleging essentially the same claims against the Defendants and reiterating the factual bases for those claims.
8
On September 25, 1997, the Defendants filed a motion to consolidate the filed cases into a single action, to which the Plaintiffs in those cases objected. In an order entered on October 31, 1997, the Defendants’ motion to consolidate was granted. In addition, two other cases filed after the Defendants moved to consolidate the cases
9
were also brought into the single, consolidated action.
The original Plaintiffs filed their first amended consolidated complaint on November 12, 1997, adding in that complaint an additional party, Sharon A. Hill (“Hill”), whose claims have since been dismissed by the district court and, on appeal, by the Eleventh Circuit Court of Appeals, No. 98-6603 (11th Cir., Mar. 5, 1999). In paragraph 2 of their first amended consolidated complaint, the Plaintiffs state:
Plaintiffs are former employees of TVA and for purposes of this action are disabled workers within the meaning of the Rehabilitation Act of 1973, 29 U.S.C. § 701 , et seq., in that they all have a disability
which substantially impairs their ability to work, they have all been recognized, by TVA as having such a disability, and they all have a record of such a disability with TVA.
(Emphasis and bold added.) In the remainder of their first amended consolidated complaint, the Plaintiffs assert essentially the same claims presented in their individual original complaints.
10
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After filing two motions for partial summary judgement, each of which was granted, the Defendants filed a third motion for summary judgment on July 13, 1998, arguing that all “civil service claims” of the Plaintiffs were due to be dismissed. Noting that it was by no means clear that the Plaintiffs had, in fact, raised civil service claims and chastising the Defendants for submitting successive, fragmented motions for summary judgment where a single motion would do, the district court denied the motion for summary judgment on July 14, 1998, but indicated that the Defendants could have one final bite at the summary judgment apple by filing a single, comprehensive motion for summary judgment on or before August 14,1998.
The Defendants followed the district court’s instructions, filing a single, comprehensive motion for summary judgment on August 14, 1998 (“fourth motion for summary judgment”). A submission order was entered on August 18, 1998. In their responsive brief filed on September 16, 1998, the Plaintiffs, in the introduction section of their brief, state that they are all “former employees of TVA with permanent impairments that affect
their ability to work
who were terminated by TVA in a reduction by reduction-in-force (RIF) in 1996 and 1997.” Plaintiffs’ Responsive Brief of September 16, 1998, at 1 (emphasis added). On page 11 of their responsive brief filed before the district court, the Plaintiffs state:
Even though many of the Plaintiffs
may be
substantially limited in their ability to perform manual tasks, walk, and for at least one — Ed Smart, who suffered a head injury — to learn,
for the purposes of this case the Plaintiffs make no claims that their impairments have any effect on any major life activity other than working.
Therefore,
this Court need only consider whether the Plaintiffs’ impairments substantially limit their ability to perform a class of jobs
...
or a broad range of jobs in different classes;
whether TVA maintained records indicating that the Plaintiffs have such impairments; or whether TVA regarded the Plaintiffs as having such impairments.
Plaintiffs’ Responsive Brief of September 16, 1998, at 11 (emphasis and bold added). On October 5, 1998, the Defendants filed a motion for leave to file a reply brief. Fifteen days later, on October 20, 1998, the case was reassigned to this Judge.
On November 18, 1998, this Court, after examining the briefs in support of and in opposition to the fourth motion for summary judgment, recognized that an explication of the factual predicates of each Plaintiffs disability or disabilities was absent or that such explication was sorely inadequate. As such, the Court requested that the parties re-brief the summary judgment motion, paying careful attention to the facts relevant “to each plaintiffs alleged disability and situation.” In their revised brief in response to the Defendants’ motion for summary judgment, the Plaintiffs presented to the Court, with the exception of Plaintiff Hovater, identical assertions regarding each Plaintiffs alleged disability:
Plaintiff ... has testified that he has a physical impairment which substantially limits his ability to
work.
His restrictions prevent him from doing a class of jobs as well as a wide range of jobs in different classes. He has a record of such an impairment with TVA. He was regarded by TVA as having such an impairment.
Plaintiffs’ Revised Brief in Opposition to Defendants’ Motion for Summary Judgment at 13-29 (emphasis and bold added). From the Plaintiffs’s side, this was, with few exceptions, the only “particularized” explication in their opposition brief of how each Plaintiff was disabled; in their factual statements, the Plaintiffs generally did not even bother to spell out the specifics of how they were substantially limited in their ability to work and how their impairments caused their substantial limitations.
11
With regard to Plaintiff Hovater, the Plaintiffs state in their brief that:
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... Hovater has testified that her back problem did not substantially limit her ability to work as a clerk word-processor or secretary. However, she has a record with TVA of being substantially impaired
in her ability to perform the class of jobs that make up clerical and secretarial work,
and she was regarded by TVA [as] having such an impairment.
Plaintiffs’ Revised Brief in Opposition to Defendants’ Motion for Summary Judgment at 25-26 (emphasis added). In addition, the Plaintiffs reasserted the claim, stated in their initial opposition brief, that “for the purposes of this case the Plaintiffs make no claims that their impairments have any effect on any major life activity
other than working.”
Plaintiffs Revised Brief in Opposition to Defendants’ Motion for Summary Judgment at 47 (emphasis and bold added). On February 4, 1999, finding itself only with excerpts of deposition testimony, the Court requested the parties to file full copies of all depositions relevant to the resolution of the Plaintiffs’ claims.
During the period that the Defendants’ fourth motion for summary judgment was pending, two more cases were filed in the Northern District of Alabama against the Defendants alleging essentially the same claims posited by the original Plaintiffs in their amended consolidated complaint.
12
On February 10, 1999, the Defendants filed a motion to consolidate these two cases into the
Mullins
action. The next day, on February 11, 1999, the Court granted the motion, consolidating the cases together. At that point (and at this point), this Court had twenty (20) cases consolidated into a single action against the Defendants. On February 24, 1999, the Court granted a motion of Plaintiff Chandler, filed prior to consolidation, to amend his complaint to include Dutton as a plaintiff in
Chandler v. Crowell,
CV 99-S-0061-S.
Another attempt at consolidation was made on February 25, 1999, this time by the Plaintiffs. In a motion filed that day, the Plaintiffs sought to consolidate
Gill v. Crowell, et al.,
CV 98-N-2931-S with the instant action. Four days later, on March 1, 1999, the Plaintiffs filed a motion to sever and consolidate the cases of Putman and Gothard. The Court denied both of the Plaintiffs’ motions on March 4, 1999. However, in the order denying the motions, the Court offered the Plaintiffs “ten (10) days in which to amend their complaint in the instant action such that the claims of Gothard and Putman are made plain on the face of the complaint, rather than obscured behind the other plaintiffs’ ... discrimination claims.” Court’s Order of March 4, 1999, at 8.
On March 12, 1999, the Plaintiffs filed their second amended consolidated complaint. In the second amended consolidated complaint, the Plaintiffs characterize the general nature of their claims as follows:
This is a disability discrimination case. The plaintiffs contend that the Tennessee Valley Authority (TVA) intentionally discriminated against them, in violation of the Rehabilitation Services Act, 29 U.S.C. § 701 ,
et seq.
(The “Act”), specifically § 791(b) (often referred to as § 501) and § 794(a) (often referred to as § 504) thereof, by intentionally segregating and classifying them by competitive area, competitive level, and permanency for reduction-in-force purposes because of their disabilities and then by using their competitive areas, levels and permanency classifications to deny them the opportunity to compete for retention with non-disabled employees doing similar work (TVA put them on retention registers containing only themselves or
*1079
other similarly re-employed physically impaired employees) when TVA terminated them following the elimination of their jobs by reduction-in-force (RIF), pursuant to and in fulfillment of a fraudulent scheme to reduce worker’s compensation expenses. The Plaintiffs further contend that they are victims of disparate impact in that there was, in TVA’s 1996 and 1997 reductions-in-force, a significant negative disparity in the retention of disabled employees at clerical levels when TVA’s specially re-employed OWCP workers (a group that includes the Plaintiffs)' are considered. The Plaintiffs contend that the existence of a facially neutral discriminatory policy may be inferred from the disparate results.
Plaintiffs’ Second Amended Consolidated Complaint at 6-7. The Plaintiffs again characterize themselves, in ¶2 of their complaint, as “former employees of TVA ... who were injured on the job and were unable to return to their former occupations without accommodation ...; and for purposes of this action are disabled workers within the meaning of the Rehabilitation Act of 1973, 29 U.S.C. § 701 ,
et seq., in
that
each has a disability which substantially impairs his ability to work, each has been recognized by TVA as having such a disability, and/or each has a record of such a disability.”
Plaintiffs’ Second Amended Consolidated Complaint at 7-8 (emphasis and bold added). ,
In count one of their second amended consolidated complaint, the Plaintiffs assert a claim of disparate treatment under § 501 of the Rehabilitation Act in that the Defendants classified and segregated them into separate competitive areas, competitive levels and permanency statuses in violation of the requirement of 29 U.S.C. § 791 (b) that TVA implement an affirmative action plan for the hiring, placement and advancement of disabled individuals. The statutory provision is violated, the Plaintiffs allege, citing 29 C.F.R. § 1630.5 , because the requirement of an affirmative action program creates a duty that TVA not discriminate by segregating its employees in a way that adversely affects their employment status.
The second count of the second amended consolidated complaint also alleges a claim of disparate treatment on behalf of all Plaintiffs in the consolidated action, this time under section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (a). According to the Plaintiffs, in ¶ 36 of their second amended consolidated complaint,
TVA intentionally classified and segregated each of the Plaintiffs by competitive area, competitive level, and permanency status ... for reduction-in-force purposes because of their disabilities and denied them the opportunity to compete for retention with other non-disabled employees by placing them on retention registers containing only themselves or other similarly re-employed, classified, and segregated disabled employees when their jobs were eliminated by reduction-in-force....
The third count of the Plaintiffs’ second amended consolidated complaint claims that the classification and reduction-in-force polices of TVA bore an adverse impact on its disabled clerical, secretarial and aide workers, because those policies “resulted in a statistically significant greater number of non-disabled clerical/secretarial/aide type workers ... being retained” than their disabled counterparts in reductions-in-force undertaken by TVA in 1996 and 1997. The Plaintiffs’ disparate impact claim is grounded, apparently, in both § 501 and § 504 of the Rehabilitation Act, 29 U.S.C. §§ 791 & 794.
13
On June 9, 1999, the Defendants filed a fifth motion for summary judgment.
14
In
*1080
the fifth motion for summary judgment, the Defendants seek to have the Court dismiss the claims of those parties who were consolidated into this action after the Defendants’ fourth motion for summary judgment was filed.
On June 22, 1999, in response to the opinions of the Supreme Court in
Sutton v. United Air Lines, Inc.,
527 U.S. 471 , 119 S.Ct. 2139 , 144 L.Ed.2d 450 (1999),
Albertsons, Inc., v. Kirkingburg,
527 U.S. 555 , 119 S.Ct. 2162 , 144 L.Ed.2d 518 (1999), and
Murphy v. United Parcel Service, Inc.,
527 U.S. 516 , 119 S.Ct. 2133 , 144 L.Ed.2d 484 (1999), this Court entered an order requesting the parties to file briefs by June 28, 1999, analyzing the impact of those opinions on the instant action. In their response to the Court’s order, the Plaintiffs again asserted a reliance on
working
as the major life activity in which they were substantially limited by their impairments.
See
Plaintiffs’ Brief on Supreme Court Cases at 2 (stating that all Plaintiffs, except Hovater, suffer physical impairments substantially limiting them from working in trades and labor positions).
On July 6, 1999, the Plaintiffs filed their response in opposition to the Defendants’ fifth motion for summary judgment. In their response, the Plaintiffs asserted that “they sustained permanent physical impairments that affected their ability to
work.”
Plaintiffs’ Brief in Opposition to Defendants’ Fifth Motion for Summary Judgment at 1 (emphasis added). Also, when describing the facts relevant to each of the four Plaintiffs who is a subject of the fifth motion for summary judgment, the Plaintiffs state that each “has a permanent physical impairment which substantially limits his ability to work.” Plaintiffs’ Brief in Opposition to Defendants’ Fifth Motion for Summary Judgment at 7-11.
However, that is where the similarity between that brief in opposition to summary judgment and the briefs in opposition to the earlier motions for summary judgment end. In footnotes explicating each of the four most recent Plaintiffs’ limitations on work, those Plaintiffs detail specific physical limitations and, breaking with assertions made in their second amended consolidated complaint, do not restrict themselves to arguing a single major life activity in which they are substantially limited by their impairments. In addition, further into their brief, the four Plaintiffs seem to indicate, though not clearly, that the demonstration of each of the new Plaintiffs that he is substantially limited in the major life activity of working is only employed as an aide to showing that he is substantially limited in performing major life activities other than working.
15
The Court, on July 22, 1999, entered an order stating that it had reached the tentative conclusion that working does not constitute a major life activity for the purposes of the Rehabilitation Act and that, as a consequence, the Plaintiffs’ claims should likely be dismissed.
16
Attaching a proposed memorandum opinion to its order, the Court disclosed the reasoning behind its tentative conclusion. The Court, offering the parties an opportunity to respond to the proposed memorandum opinion in careful and concise fashion before July 29, 1999, stated:
The crux of the proposed opinion attached to this order is that, as a consequence of the Supreme Court’s opinion in
Sutton v. United Air Lines, Inc.,
527 U.S. 471 , 119 S.Ct. 2139 , 144 L.Ed.2d
*1081
450 (1999), ‘“working” is no longer to be considered a major life activity within the scope of the Rehabilitation Act of 1973. The parties are to focus their attention on whether this conclusion is correct, in light of the statute and subsequent caselaw. The Plaintiffs are also advised to explain whether, if this Court were to conclude that working is not a major life activity, any of the Plaintiffs could be considered disabled and, in
very specific
terms,
why.
Court’s Order of July 22, 1999 at 8.
Unsurprisingly, the Defendants’ reaction was favorable. They concurred with the Court’s tentative opinion that working does not constitute a major life activity for purposes of the Rehabilitation Act. The Defendants, however, wished the Court to go further in its opinion, first, by distinguishing and explaining away those cases that, since the Supreme Court’s decision in
Sutton ,
continue to hold that working is a major life activity under either the Americans with Disabilities Act of 1990 or the Rehabilitation Act and, second, by demonstrating why each Plaintiff would fail to be disabled, were working to constitute a major life activity. Finally, the Defendants, exercising some prescience, argue that Plaintiffs should not be permitted, at this late date, to claim that they were substantially limited with regard to any other major life activity than working.
In contrast to favorable reaction it garnered from the Defendants, the Court’s order raised alarm among the Plaintiffs. In response to the order and proposed opinion, the Plaintiffs first argue — as an initial matter and contrary to their earlier representations to the Court that they were relying solely on working as a major life activity substantially limited by their impairments — that the Plaintiffs suffer substantial limitations in major life activities other than working.
17
Second, the Plaintiffs contend that they should be permitted to submit additional evidence to show that they are substantially limited in other major life activities than the major life activity of working.
18
Third, the Plaintiffs contend that the Court suffers a skewed vision of the law regarding the import of
Sutton .
Several days later, on August 5, 1999, and again on August 9, 1999, the Plaintiffs filed two motions with essentially the same purpose: to permit them to modify their theory of the case to include major life activities other than working in demonstrating that they are individuals with disabilities within the scope of the Rehabilitation Act.
Facts
19
The Plaintiffs assert the following claims, boiled down to their bones:
The Plaintiffs are former employees of TVA who suffered job related injuries,
*1082
qualified for and began receiving full federal workers’ compensation benefits, and were then rehired and specially classified and segregated for RIF purposes, by TVA, in new jobs structured to accommodate their physical impairments and medical limitations. All of the Plaintiffs, except for Plaintiff Hovater who was a clerk word processor, are former craft employees — carpenters, painters, iron workers, steamfitters, etc — who, because of their physical impairments and medical limitations, can no longer work in trades and labor positions. Plaintiffs Putman’s and Gothard’s situations are unique in that they were hired in permanent positions prior to the establishment of the REIN and Reentry Programs and their budget and headcount were carried by the organization for which they worked. Plaintiff Hova-ter’s situation is unique in that she was able to work as a clerk word processor, but was discharged and then reemployed after and not under the REIN or Reentry Program, but under circumstances that indicate TVA considered her to be disabled and reemployed her solely to terminate her by reduction-in-force. The Plaintiffs are suing under both § 501 29 U.S.C. § 791 (b) and § 504 29 U.S.C. § 794 (a) of the Act based on the way TVA segregated and classified them for reduction-in-force purposes, on the fact that TVA placed them on retention registers containing only themselves or other REIN employees when TVA terminated them by reduction-in-force, and on the fact that TVA’s reduction-in-force policies and procedures had a disparate impact on them as qualified individuals with disabilities under the Act.
Plaintiffs Brief in Response to the Court’s Order of June 22, 1999, at 2.
20
Each Plaintiff incurred an injury or injuries at some time while they were employed by TVA and each was granted benefits under the Federal Employees’ Compensation Act (“FECA”), 5 U.S.C. §§ 8101-8193 (1994 & Supp. III 1997), from the Department of Labor’s Office of Workers’ Compensation Programs (“OWCP”). After receiving benefits, each Plaintiff was given the opportunity to come back to work with TVA, either through one of TVA’s re-employment programs or individually. The rehired workers were each classed, for purposes of seniority and retention, with recipients of FECA benefits, or were isolated into single-member categories, in which each Plaintiff competed only with himself or herself. After some time, each Plaintiff was terminated from TVA. Each Plaintiff asserts that non-disabled individuals who were not separately categorized, but who performed similar work, were not terminated.
All of the Plaintiffs received, at some point in their careers as employees of TVA, FECA benefits from OWCP. While OWCP pays those benefits to former employees injured on the job, TVA reimburses OWCP for disbursed compensation payments. In September of 1983, TVA entered into an agreement with the OWCP under which TVA, when attempting to fill vacant positions, would give special consideration to qualified former employees being paid OWCP benefits.
21
The ostensible purpose of this agreement was twofold— first, to aid those prior unemployed workers who were receiving benefits by giving them the opportunity to return to work and, second, to permit TVA to save money by reducing the reimbursement paid to OWCP for payments made to recipients of FECA benefits.
In rehiring employees off of the OWCP register, representatives of TVA generally told the prospective employees that choosing to refuse the position offered would
*1083
result in the termination of the FECA benefits. Usually, as an assurance that their FECA benefits were not imperiled, each Plaintiff was also told that if his or her position became temporary or did not work out, that he or she would return to full FECA benefits. Given TVA’s history of placing the Plaintiffs back on full FECA benefits after dismissal from work,
22
TVA avers that it felt secure in making this representation to the rehired employees.
23
However, the policy of placing terminated employees back onto full FECA benefits allegedly changed in 1992, when it became the exceptional case that an individual rehired into more than a temporary position would regain full FECA benefits after termination, absent a further deterioration in the FECA applicant’s health based upon the work related injury or the existence of a new work-related injury. When each Plaintiff was hired, his or her FECA benefits were reduced in proportion to the amount of salary he or she received. However, when the Plaintiffs were terminated, none of the Plaintiffs, except for Bailey, Coats, and Tucker,
24
were returned to full FECA benefits.
Initially, TVA hired employees for then-vacant positions from a TVA/OWCP reemployment register, and whichever department hired the employee from the register carried that person’s budget and headcount.
25
In the instant case, there are three such employees rehired by TVA, two of whom were rehired by TVA’s Widows Creek facility and one of whom was hired by the Muscle Shoals Facility.
A. Widows Creek Plaintiffs.
The two Widows Creek Plaintiffs, Goth-ard and Putman, were hired directly by Widows Creek as Materials Clerk-Store, SB-3, in 1989 and placed on a separate retention register from five other non-disabled employees doing the same work at Widows Creek. The Plaintiffs allege that they were hired under a program at Widows Creek which was a predecessor to the REIN and Reentry programs executed by NHR and Health Services, respectively.
1. Jerry Gothard.
Gothard was hired in 1975 as a carpenter helper at TVA’s Bellefonte facility in Hollywood, Alabama. Roughly two years later, he was selected for a pipefitter’s apprenticeship and by 1981, was a journeyman pipefitter with TVA. In November of 1986, while descending a staircase in a Bellefonte reactor, Gothard’s knee twisted beneath him. Although he had some expectation that the resultant swelling in his knee would subside, it did not, and within two months of the injury, Gothard submitted to surgery. He returned to the pipe-fitter position two months later, restricted by his doctor from climbing, squatting and kneeling. He continued to work, with occasional surgeries, at Bellefonte until May 17, 1988, when he was terminated in a reduction in force. Although Gothard sought counseling for disability discrimination, the counseling ended without resolution and Gothard chose not to pursue a complaint of discrimination, believing it to be futile. Gothard also applied for and obtained FECA benefits from OWCP.
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On May 10, 1989, Gothard received a letter from TVA’s Widows Creek Fossil Plant, offering him “temporary annual employment not to extend past 90 days from the day of employment as a Materials Clerk-Stores (Toolroom Clerk) SB-2 ... in the Division of Power Production, Widows Creek Fossil Plant, Stevenson, Alabama.” Letter to Jerry Gothard of May 10, 1989, at 1. One year after his earlier termination, on May 17, 1989, Gothard returned to work. His position extended past the ninety-day temporary period and soon thereafter, Gothard received a pay grade increase to SB-3. As a toolroom clerk, the function of Gothard’s job was issuing tools to workers.
On August 11, 1995, Gothard was transferred to the TVA Services Organization (“TVAS”) in Huntsville, Alabama.
26
At TVAS, Gothard, like many other Plaintiffs in this action, was told to apply for a lineman position that he was unable to perform because of his medical restrictions. On July 24, 1996, Gothard was informed of an impending reduction in the workforce, in which his position was targeted for elimination. On September 30, 1996, Gothard was terminated. According to Gothard, he was told by the plant manager at Widows Creek, David Howell (“Howell”), that his knee disability had progressed to the point where his restrictions would prevent him from being able to perform the essential functions of his job.
On August 26, 1996, the EO office at TVA received a letter in which Gothard ostensibly requested counseling. In his letter, Gothard asserted that he had been the subject of discrimination when he was terminated in the September, 1996, reduction in force. The EO counselor had some difficulty contacting Gothard for counseling. On September 10, 1996, after two prior attempts to contact Gothard, the EO counselor sent Gothard a certified letter indicating that if Gothard did not reply within five days of receipt of the letter, his file would be closed. The letter was received by Gothard on September 14, 1996, as evidenced by his signing the certification card on the letter, but he chose not to contact the EO counselor until November 25, 1996.
27
On November 25, 1996, Gothard met with an Equal Opportunity (“EO”) counsel- or for TVA, who listened to Gothard’s complaints and then informed him of his rights and responsibilities. Gothard’s complaints of discrimination went unresolved and counseling ceased after a final interview on December 16, 1996. In that interview, .Gothard was informed that TVA had responded unfavorably, to Gothard’s complaints of discrimination and that the corrective actions sought by him would not be granted. Gothard was sent notice of the completion of counseling on December 23,1996.
Gothard sent an Equal Employment Opportunity (“EEO”) complaint to TVA’s EO office on February 1, 1997, which was received by TVA on February 7, 1997. In his complaint, Gothard contends that TVA discriminated against him by transferring him to TVAS and by terminating him in the reduction in force. In an incorporated attachment authored by his attorney,
28
Gothard claims to have been subjected to discrimination on the basis of his disability when he was to be terminated in the September 30,1996, reduction in force, to have been classified in a discriminatory fashion; to have been transferred to TVAS for discriminatory reasons; and apparently, to have been denied adequate training on a
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discriminatory basis. On April 17, 1997, TVA’s EO office informed Gothard through letter that the investigation of his complaint had been completed and that a final agency decision would be forthcoming. After one hundred eighty days passed from his filing of his EEO complaint, Gothard filed his initial complaint in the present action on August 4,1997.
Gothard contends that while employed as a toolroom clerk at Widows Creek, his knee injury was an impairment which substantially limited him in the major life activity of working. He avers that because of his impairment, he was (and is) incapable of performing a broad class of jobs including those of pipefitter welder and boilermaker, and any work requiring climbing on scaffolding and other heavy craft work. Belying the degree of his limitations, Gothard states that he could carry a forty pound bag of cement on his shoulder and walk fifteen feet if careful. However, he also states that he can only climb to a limited extent. He also claims that TVA had a record of his disability and that it regarded him as having such a disability in that, in a list of material clerk-stores terminated in 1996 drafted by TVA, Gothard is listed, under the heading “handicap condition” as having “no movement/use of 1/both legs.” Response to Request for Information Regarding Alleged Discrimination Complaint of Jerry W. Gothard of March, 27, 1997, Attachment # 3, at l.
29
2. Halbert Putman.
Putman was hired into an apprentice welding position at TVA’s Muscle Shoals service shop in 1977, after graduating from a welding school run by TVA. In 1979, Putman went to work at TVA’s Yellow Creek facility. While working there, on December 19, 1978, Putman’s right hand was injured when a pipe fell on it. The seriousness of the injury was not apparent until he discovered, in 1981, while working at Bellefonte Nuclear Plant, that he had damaged an artery in his hand. After discovering the damaged artery, Putman underwent surgery to prevent blood clots from forming in the artery and moving through his bloodstream. Putman spent between four and six months recovering from the surgery. After recovering, he returned to work with a physician-imposed restriction that he not be required to operate vibrating tools that would require the use of his right hand.
Putman returned to his job in 1982 and continued in his work as a journeyman pipefitter. In the later part of 1986, while pulling on a wrench, Putman suffered a recurrence of his injury, which caused him to lose some use of his right arm, in addition to his hand.
30
He remained out of work recovering from surgery to his hand and arm until 1987, when he was terminated in a reduction in force.
In 1989, Putman returned to work for TVA at Widows Creek Fossil Plant as a Materials Clerk-Stores SB-2 in the Division of Power Production. Soon after starting work as a Material Clerk-Stores, he received a pay grade increase to SB-3. In his deposition, Putman described the responsibilities of his job as getting supplies and distributing them to other TVA employees.
In 1995, Putman was transferred to TVAS. Nearly one year later, on July 24, 1996, he received notice of a reduction in the workforce that would become effective on September 30, 1996. He was terminated from TVA on the date listed in the notice.
On August 26, 1996, the EO office at TVA received a letter from Putman requesting assistance in resolving a complaint of discrimination related to his ter-
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ruination. A counselor met with Putman and discussed Putman’s complaints with him. He then informed Putman of his rights and responsibilities. On October 17, 1996, the EO counsel informed Putman, in a final interview, that resolution of his complaints with TVA was not forthcoming. Putman was given a notice of the completion of counseling on the same day.
On November 16, 1996, Putman sent an EEO complaint to TVA’s EO office, which was stamped “received” on November 22, 1996. There are no incorporated attachments to Putman’s EEO complaint; rather, Putman states, as his claim of discrimination, “Handicap and when I returned to work in 1989 that I had all-time job.” EEO Complaint of Halbert E. Putman of November 22, 1996, at 2. On December 11, 1996, in a notice of receipt and acceptance of discrimination complaint, TVA’s EO office characterized Putman’s claim to be that he was discriminated against in the September 30, 1996, reduction in force in which he was terminated.
On April 4, 1997, Putman was informed in a letter from TVA’s EO office that the investigation of his complaint had been completed and that a final agency decision would be forthcoming. One hundred eighty days after filing of his EEO complaint, on September 16, 1997, Putman filed his initial complaint in the present action.
Putman contends that at the time he was employed at Widows Creek, his injured hand and arm constituted impairments which substantially limited him in the major life activity of working. Putman alleges that because of his impairment, he could not (and cannot) lift more than ten pounds with his. right hand and arm and he could not (and cannot) use tools that vibrate. Further, he claims, he was (and is) unable to perform a broad class of jobs such as those of pipefitter, boilermaker, steamfitter, carpenter, or ironworker. He also claims that TVA had a record of such a disability and that it regarded him as having such a disability.
31
B. Muscle Shoals Plaintiff, Barbara Ho-vater.
Hovater came to work for TVA in May of 1984 as a clerk work processor, SB-2, at the Muscle Shoals records center. She received a grade increase in salary to SB-3 not long after being employed by TVA. On January 11, 1988, while exiting her automobile, Hovater slipped on a patch of ice and began to fall. In an effort to right herself, she twisted her back, causing lumbar strain with mild spondylolisthesis of L5-S1. As a result, Hovater was off from work for three weeks and, when she returned to work, she was restricted from lifting in excess of twenty pounds. Originally meant as a temporary restriction to give her back time to recover, the limitations remained in place, as Hovater’s back problems allegedly refused to improve.
On December 14, 1989, Hovater’s supervisor, frustrated with Hovater’s limitations, informed her that occasional lifting of seventy-five pounds was an essential function of her job that she had best begin performing, else she would be terminated. Hovater was still on lifting restrictions from her physicians, when, on November 23, 1990, she was told that, because of her medical restrictions, she would be terminated from her job on December 31, 1990. After her termination, Hovater received benefits from OWCP starting in January of 1992.
Hovater was hired back to work in February of 1994 as a Clerk-Word Processor, SB-3, the same level and category of position she occupied prior to her December, 1990, termination.
32
Her job was, she av
*1087
ers, a special OWCP position created in the Printing Service at the Muscle Shoals facility. Although she was to be a word processing clerk, Hovater states that she had nothing to do at her job and was not given a word processor on which to perform her ostensible job. Indeed, soon after her employment by TVA, she was told by her manager that she was likely to by laid off because there were insufficient funds in his budget to pay her salary.
In January of 1996, Hovater received notice that she was being transferred to TVAS. On July 24, 1996, she was informed that she would be terminated in a reduction in force on September 30, 1996. That date came, and Hovater was terminated.
Hovater contacted a counseling specialist at TVA’s EO office on August 1, 1996, requesting assistance in resolving a complaint of discrimination related to her termination. That counseling specialist transferred the issue to another counselor, who contacted Hovater on August 2, 1996. On August 6, 1996, the counselor met with Hovater in Muscle Shoals, Alabama, and discussed Hovater’s complaints with her. The counselor noted Hovater’s complaints that because of her age and disability, TVA had terminated her in the 1996 reduction in force, denied her training and productive work, and caused her to suffer workplace resentment. On August 28, 1996, Hovater also sent a letter requesting assistance to the director of EO compliance. After confronting management with Hovater’s concerns and receiving an unfavorable response, the EO counselor conducted a follow-up interview with Hovater on September 24, 1996, to inform her that her complaints had gone unresolved. On October 16, 1996, the EO counselor sent Hovater written notice of the completion of counseling.
On October 22, 1996, Hovater completed an EEO complaint and sent it to TVA’s EO office. The complaint was received on November 22, 1996. In that complaint, Hovater first references the pre-complaint counseling report as providing the description of her claims. Also, in an attachment drafted by her counsel, she reiterates her earlier claims of discrimination based on age and disability. On November 14,1996, a notice of receipt and acceptance of discrimination complaint that lists only the reduction in force claims was sent to Hova-ter. She did not object to the characterization.
On March 7, 1997, Hovater was informed in a letter from TVA’s EO office that the investigation of her complaint had been completed and that a final agency decision would be forthcoming. The EO office issued a final agency decision on September 29, 1997. In that decision, TVA determined that Hovater failed to state claims of disability and age discrimination. While TVA determined that Ho-vater was part of a protected class for purposes of the Age Discrimination in Employment Act, it concluded nonetheless that it had a legitimate non-discriminatory reason for her termination.
With respect to Hovater’s claims that TVA discriminated against her because of her disability — her back injury and depression — TVA determined that those claims failed due to the absence of a disability. First noting Hovater’s claims that her back injury “substantially limits her ability to sit, walk, vacuum and work” and that her depression substantially limits her ability to work, the decision states that no substantial limitations ensued from the impairments and even questions the sustained existence of those impairments:
To determine if an employee is disabled under the Rehabilitation Act, the factfinder must evaluate whether the employee is “significantly restricted” in her ability to perform a major life activity, as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. In making this determination, the fact-finder may consider the nature and severity of the impairment, its duration or expected duration, and any permanent or long-term impact.
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The complainant’s extensive medical record indicates that she suffered mild lumbar strain when she slipped on the ice in January 1988. As a result of the injury, her physician recommended a 20 to 25 pound lifting limitation. Despite the complainant’s assertions that her injury limited her ability to sit, stand, vacuum, bend over, etc; the medical record indicates that the injury did not significantly restrict her ability to perform such major life activities. Indeed, the complainant’s doctor cleared her to return to work, albeit with a lifting restriction. He also repeatedly urged her to walk and exercise so as to strengthen her lower back. She was also advised to lose weight.
‡ sfi # ❖ ❖ H*
Although the complainant alleges that she suffers from clinical depression, she has produced no medical evidence to demonstrate that her condition substantially limits a major life activity. The only documentation of her mental impairment is a psychologist’s note, dated February 20, 1985, which states that prior treatment was effective. Moreover, the complainant has not demonstrated that she informed her supervisors that she was under treatment for depression, nor has she demonstrated that she requested an accommodation for this condition. It is telling that the Statement of Complaint, filed by the complainant’s attorney, refers only to her back injury as the basis for handicap discrimination; it does not mention her depressive condition. The complainant’s immediate supervisor, John Williams, ... stated that he was unaware that she suffered from depression.
TVA Final Agency Decision on Claims of Barbara Hovater of September 29, 1997, at 9-10. In addition, TVA refused to find that it regarded Hovater’s impairment as a disability or that it had a record of her impairment as a disability. Within thirty days of receipt of the final agency decision, on October 24, 1997, Hovater filed her complaint in the instant case. In that complaint, Hovater abandons claims premised on age discrimination. In her later complaints, she further chooses not to revive those claims.
Hovater does not contend that her injured back and her depression constitute impairments which actually substantially limit her in the major life activity of working. She does not state a broad class of jobs that she cannot perform. However, she does claim that TVA had a record of such a disability and that it regarded her as having such a disability.
33
C. Nuclear Reemployment Initiative Program (“REIN”) Plaintiffs.
Allegedly, in spite of attempts to reduce the number of employees receiving work-mens’ compensation through direct rehiring of workers by TVA facilities, by 1990, OWCP “charge backs” — those payments made to OWCP by TVA to reimburse the former for disbursing benefits to the latter’s injured employees — were rapidly rising. The Plaintiffs contend that to slow the rising costs of OWCP “charge backs,” TVA initiated its REIN Program to increase the rehiring of former employees receiving FECA benefits, but capable of working in some capacity. Pointing to an attachment to a July 11, 1990, memo titled “Attachment, Nuclear Power (NP) Reemployment Initiative (REIN) Instruction,” the Plaintiffs aver that the REIN Program was set up for the sole purpose of hiring individuals receiving FECA benefits and later terminating them such that TVA would no longer be required to pay those benefits. In particular, the Plaintiffs make reference to the last part of paragraph number 1 in the attachment, which states that:
*1089
the work duties of the REIN employees should not be the same primary duties assigned to other employees in the manager’s area. This difference is necessary to eliminate future problems with competitive levels for reduction in force purposes. Managers should not consider REIN employees when determining their continued staffing needs....
Although the employees hired under the REIN Program worked at a variety of TVA’s facilities, the Program itself was funded entirely through the Operations and Management budget of the Corporate Nuclear Human Resources (“NHR”) Program existing in Chattanooga, Tennessee. According to the Plaintiffs, TVA created jobs specifically for the REIN employees out of “bits and pieces” of work previously assigned to employees occupying non-REIN positions. In so doing, TVA called into existence competitive areas and levels composed only of those employees rehired off of its OWCP “charge back” roster.
As part of the REIN Program, at various times, TVA offered Plaintiffs Bailey, L. Chandler, Coats, Crow, Desruisseaux, Dutton, Greene, Mansell, Massey, Miles, Mullins, Rainer, Shores, Speer, Smart, Smith and Williams reemployment with TVA, which they accepted. The REIN Plaintiffs were initially assigned to work on Nuclear Power programs. As their positions were budgeted out of NHR, the REIN Plaintiffs did not compete for retention in reductions in force against individuals doing similar work in the TVA facilities at which the Plaintiffs were employed.
“Budget reductions were imposed on TVA’s Nuclear Corporate Human Resources department in 1994 and 1995.... ”
Mullins v. Crowell,
Lead case no. CV 97-S-1897, Memorandum Opinion entered July 1, 1998, at 3 (N.D.Ala.),
affirmed sub nom., Hill v. Crowell,
98-6603 (11th Cir. March 5, 1999) (unpublished opinion). Many of the REIN Plaintiffs were continuously employed in their positions for periods ranging from two to four years until, “in the summer of 1995 or 1996, they were informed that their positions in the REIN Program had been identified as at risk, and were targeted for surplus.” Defendants’ Brief in Support of their Motion for Summary Judgment at
22.
Thereafter, the REIN Plaintiffs were transferred to TVAS, the ostensible purpose of which was to give those individuals whose jobs were eliminated an opportunity to apply for different positions in the TVA system and to obtain skills that would permit them to become qualified for other positions with TVA. While at TVAS, however, the REIN Plaintiffs allegedly remained untrained and were offered no positions that they were qualified to accept. The REIN Plaintiffs continued to receive the same salary they had received in their REIN positions and remained in the same competitive areas and levels while with the TVAS. Almost one year after being transferred to TVAS, the REIN Plaintiffs were notified that their positions in the REIN Program were to be eliminated in September of either 1996 or 1997. In September of 1996 or 1997, the jobs of the REIN Plaintiffs were eliminated through a reduction in force.
1. Thomas L. Bailey.
In September of 1981, Bailey, a maintenance pipefitter for TVA at its Browns Ferry Nuclear Power Plant, ruptured a disc in his back while attempting to open a pipe valve. Although causing him pain in his back, right hip and leg, the injury did not prevent him from returning to his work as a pipefitter, although in a light duty capacity. After his injury, Bailey continued to work as a pipefitter until 1985 and as a pipefitter foreman with medical restrictions until March 31, 1989, when he was terminated through a reduction in force.
34
According to Bailey, he was ter
*1090
minated because TVA was unable to find another position with TVA in which he could work given his restrictions. From this point forward, Bailey alleges, he was incapable of resuming work as a pipefitter and he became unable to perform work in other craft fields, including construction.
Following the 1989 reduction in force, Bailey applied for and received full compensation benefits from OWCP. In 1991, he was hired through the REIN Program as an Engineering Aide, SE-3;
35
TVA did not hire him into any position which involved his skills as a pipefitter. As an Engineering Aide, SE-3, Bailey’s work first consisted of logging documents and hand delivering documents to different sections of the Browns Ferry Nuclear Plant.
36
Bailey next worked in a materials supply room providing materials to plant workers. Purportedly, while employed in the REIN Program, he was referred to by a superior, Greg Pickleton, as a “crippled secretary.” Bailey successfully performed the relatively unimposing duties and functions of his Engineering Aide, SE-3, position until in 1995, when he was transferred to TVAS. One year later, on September 30, 1996, Bailey was terminated in a reduction in force of which he was notified on July 24, 1996. Throughout the period of his employment in the REIN program, Bailey received as “accommodations” the use of a posturepedic chair and an advantageous parking space.
On August 23, 1996, Bailey contacted the EO office at TVA for discrimination counseling. During counseling, Bailey complained not only of his termination in a reduction in force, but also contended that “during the period of his employment he was not provided any productive work or meaningful training.” TVA Precomplaint Counseling Report of Thomas L. Bailey at 3. TVA responded, during the counseling period, that Bailey was not the subject of discrimination. Counseling was completed on October 1, 1996, and notice of the completion of counseling was sent to him on October 9,1996.
Thereafter, on October 15, 1996, Bailey sent an EEO complaint to TVA’s EO compliance office, which was received by TVA on October 21, 1996. In his EEO complaint, he asserts that he was subjected to discrimination when he was terminated by TVA. Bailey also attached to his EEO complaint a document drafted by his attorney, which states his claims with more detail. In the attachment, Bailey avers that “when TVA offered Thomas L. Bailey the [engineering aide] job, TVA did not mean to employ him permanently, or train him, or place him in a regular TVA position ...,” contrary to earlier assertions. Attachment to EEO Complaint of Thomas L. Bailey of October 21, 1996, at 2. TVA sent Bailey a copy of the notice of receipt and acceptance of his discrimination complaint on November 1, 1996, which lists only Bailey’s termination claim as a challenged employment action. Bailey did not contest TVA’s characterization of his claims. However, Bailey gave affirmed affidavit testimony on November 13, 1996, in which he complained, again, that TVA did not give him training and did not provide him the opportunity to transfer into non-REIN positions.
On March 24, 1997, Bailey was informed by TVA that it had completed its investigative report. No final agency decision was issued within one hundred eighty days of
*1091
his filing of his EEO complaint. Therefore, on August 18, 1997, Bailey filed his first complaint in the present action.
Bailey alleges that, as a consequence of his back injury, he was advised by a physician to lift no more than twenty pounds and was told to avoid climbing stairs and ladders. In the Plaintiffs’ brief in opposition to the Defendants’ fourth motion for summary judgment and in the Plaintiffs’ assorted complaints, Bailey claims to be disabled because his back injury substantially limits him in the’ major life activity of working, he has a record of such a disability and he is regarded by TVA as being so disabled.
37
To demonstrate that he suffers a substantial impairment to his ability to work, Bailey claims that he is unable to perform his craft, pipefitting, because of his impairments and that pipe-fitting constitutes a class of jobs.
2. Lonner T. Chandler.
At some time in 1986, TVA employed L. Chandler at its Browns Ferry Nuclear Plant. On June 26, 1989, while building some scaffolding, L. Chandler strained his back. Following the injury to his back, L. Chandler returned to light-duty work, until he was terminated in 1989 during a reduction in force.
38
After his reduction from the workforce, L. Chandler started receiving FECA benefits from OWCP.
In June of 1991, L. Chandler was offered a position as a Clerk Monitor, SB-2, in the Radiological Chemistry department at the Browns Ferry facility through the REIN Program, which he accepted. He was placed with a crew of laborers and, to the degree to which he was capable, performed his job successfully. L. Chandler worked in the Radiological Chemistry department for six years, during which time he received favorable ratings on his performance reviews and was promoted to an SB-3 classification.
On September of 1996, L. Chandler was transferred to TVAS. Ten months after his transfer to TVAS, on July 25, 1997, he received notice that his job would be eliminated in a reduction in force to become effective on September 26, 1997. After he was terminated, two laborers were hired into the work crew at the Browns Ferry plant in which L. Chandler worked; however, L. Chandler stated that he was unqualified for the positions occupied by those laborers.
After receipt of the reduction in force notice, L. Chandler decided to challenge the elimination of his job through TVA’s administrative discrimination complaint process. On October 16, 1997, L. Chandler contacted the EO office at TVA for discrimination counseling concerning his September 26, 1997, termination and was interviewed by the EO counselor over the telephone. Counseling was completed on October 28, 1997, with an unresolved result, and notice of the completion of counseling was sent to L. Chandler on the same day.
Thereafter, on November 4, 1997, L. Chandler drafted an EEO complaint that was filed with TVA on November 10, 1997. In his EEO complaint, L. Chandler states that TVA discriminated against him on the basis of his disability when it denied him training for positions in which he could work, given his medical restrictions, and when he was terminated in the reduction in force. TVA sent L. Chandler notice of the receipt of his EEO complaint on November 14, 1997, in which TVA states only that the termination claim is accepted for investigation. On March 25, 1998, L. Chandler was informed by TVA that it had
*1092
competed its investigative report and that if he wished to add anything to the investigative report, he had fifteen days in which to do so. L. Chandler did not respond to the EO compliance office within fifteen days to correct any alleged oversight by it.
L. Chandler received a final agency decision on his claims of disability discrimination on December 17, 1998. In its decision, TVA states that the sole issue before it is the claim of L. Chandler pertaining to his termination in the reduction in force. The decision does not address his lack of training claim. As presented in the final agency decision, TVA found that L. Chandler suffered from degenerative disk disease that could not be corrected by surgery and that the impairment was a permanent restriction that would limit his capacity to bend, climb, stoop and lift objects weighing in excess of twenty pounds. Based on this determination, TVA concluded that “the Complainant has provided sufficient evidence to establish that he was a qualified individual with a disabling condition.” Lon-ner T. Chandler Final Agency Decision at 3-4. Nonetheless, TVA found against L. Chandler because he could not demonstrate either that the reduction in force fell more harshly upon him or other disabled individuals than non-disabled individuals or that he was replaced with a non-disabled employee. Dissatisfied with the conclusions of TVA, on January 13, 1999, L. Chandler filed his first complaint in the present action.
L. Chandler primarily asserts that he is substantially limited in the major life activity of working by the injury he sustained to his back. In his response to the Defendants’ fifth motion for summary judgment, he further asserts, in a footnote, that he was substantially limited by his impairment in the major life activities of bending, climbing, stooping and lifting. He also claims that he has a record of such disability and was regarded by TVA as having such a disability.
39
3. Ricky S. Coats.
In October of 1979, TVA employed Coats as an ironworker at its Yellow Creek facility. Aside from a single six-month period, Coats worked at Yellow Creek until he was injured on February 22, 1982. On that date, Coats received a lumbar sacral sprain when he slipped while attempting to step over a pile of metal bars. Although he was not required to undergo surgery for the back injury, he was informed by his physician that he should perform stretching exercises and that he should refrain from lifting, bending and twisting. He returned to work, but one month later, he was laid off from employment. After he was dismissed from work, he applied for and received FECA benefits from the OWCP. The OWCP also paid for him to return to college, where he obtained ah associate’s degree in applied electrical technology.
In 1987, he applied for and received a position as an Engineering Aide, SE-5, at TVA’s Browns Ferry Nuclear Plant. In that position, Coats bore the responsibilities of providing to laborers the bare-bones technical requirements for electrical jobs, of writing work instructions, and of verifying that electrical work was performed in accordance with the work instructions. In 1989, Coats was again laid off from work and once more began to receive full compensation benefits from the OWCP. Again he returned to school, this time taking classes in physics to pursue a bachelor of science degree in the same subject. After six months out of work, he was called back to TVA and reemployed in the same position, Engineering Aide, SE-5. In March of 1991, Coats was out of a job, having fallen prey to yet another reduction in force.
*1093
Prior to the March, 1991, reduction in force, Coats was approached with the opportunity of working in the REIN program. He expressed interest in the program and not long after the March, 1991, reduction in force, on July 25, 1991, Coats was hired back by TVA through the REIN Program into the position of an Engineering Aide, SE-3, a position with a two-grade reduction from the prior positions in which Coats had worked for TVA. The duties of the engineering aide position included coordinating records, work instructions, and work requests. After four years, on September 15, 1995, his position fell into jeopardy and he was transferred to TVAS. On September 30, 1996, Coats was terminated in a reduction in force.
On August 28, 1996, after receiving notice of the reduction in force, Coats contacted the EO office at TVA for discrimination counseling. In his initial interview conducted on September 11, 1996, Coats complained that he was wrongfully terminated and denied meaningful training because of his disability. TVA responded that Coats was being terminated due to budget cuts rather than discrimination. The counseling having lead to no resolution, counseling was concluded on October 1, 1996. Notice of the completion of counseling was sent to Coats on October 9, 1996. Thereafter, on October 15, 1996, Coats filed an EEO complaint with TVA, in which he avers that TVA discriminated against him on the basis of disability (1) by placing him in a separate “retention register” from non-disabled employees; (2) by not offering him training such that he could occupy other, permanent positions; and1 (3) by terminating him in the September 30,1996, reduction in force.
While Coats’s claims were originally rejected as untimely in a final agency decision on November 6, 1996, this decision was rescinded on February 18, 1997, in a notice of receipt and acceptance of Coats’s discrimination complaint. In the February 18 1997, notice, the TVA EO compliance office indicated that it only accepted Coats’s complaint that he was terminated because of disability discrimination. Coats did not rebut this assertion. In the course of the investigation into his EEO complaint, Coats gave affidavit testimony to the EO investigator relating to training. When asked what occurred regarding training by the EO investigator, Coats responded by stating that while in TVAS, he inquired multiple times about computer training that was denied him but given to employees who were not injured. He reiterated his complaint more than once during the composition of the investigation affidavit.
On June 13, 1997, Coats was informed by TVA that it had completed its investigative report and that he had fifteen days in which to add additional material, if he so desired. No final agency decision was issued within one hundred eighty days of Coats’s filing of his EEO complaint. Therefore, on September 15, 1997, Coats filed his initial complaint in the present action.
Coats claims that, as a consequence of his lumbar sacral strain, he was substantially limited in the major life activity of working. He claims to be unable to perform his craft, pipefitting, because'of his impairments and that pipefitting, as a craft, constitutes a class of jobs. He also claims that he has a record of such a disability and was regarded as having such a disability by TVA.
40
4. Thomas A. Crow.
TVA initially hired Crow to work as a construction pipefitter during 1981 and 1982 during outages at TVA’s Muscle Shoals facility. In 1983, Crow was hired by TVA to work at its Browns Ferry Nuclear Plant as a combination steamfitter and pipefitter. Crow was first injured af
*1094
ter falling fifteen or twenty feet from a ladder in 1984. As a consequence of his fall, Crow twisted his right knee, hurt his back and injured his left shoulder. Because of his knee injury, Crow was required to undergo surgery. While recovering from the surgery on his right knee, Crow was laid off from employment during a reduction in force.
41
After Crow recovered from his knee surgery, he continued to work as a pipefitter for various non-TVA contractors, without restriction.
Crow was later reemployed by TVA, apparently as a pipefitter, at the Browns Ferry plant.
42
Crow injured his right wrist in 1986, but returned to his work as a pipefitter soon thereafter, although confined to light duty work.
43
With time, the injury to Crow’s wrist grew worse, requiring him to undergo two surgeries for the damage done. Crow again hurt his right knee while lifting a desk at work in 1988; although he visited a physician who suggested surgery, no operation was performed. In 1989, apparently, Crow was prohibited from pipefitting by his physician and was then laid off from work in a reduction of force.
44
He made an application based upon his wrist injury for full workmen’s compensation benefits, which he received.
45
On February 22, 1991, Crow was hired into TVA’s REIN program as a rehabilitation maintenance mechanic (or steamfitter), TB, assisting instructors with the Mechanical Apprentice Program at the Browns Ferry Nuclear Plant. His job required little more of him than drafting, filing and carrying paperwork. On October 19, 1993, Crow, while walking, suffered a meniscus tear in his right knee, twisting his leg and causing it to give way. The injury to the right knee required Crow to have surgery.
46
Following the surgery on his knee on November 9, 1993, and a recovery period lasting until October 26, 1994, Crow was permitted by his physician to return to full duty work in his job.
47
On March 17, 1995, one of Crow’s physicians, Dr. John M. Cuckler, indicated that Crow suffered from depression and prescribed antidepressants, which alleviated some of his symptoms. Crow continued to work, however, from the time of his recovery from surgery until he was terminated in a reduction in force. In addition to his other impairments, since 1995, Crow has apparently suffered from osteoarthritis of the back and from degenerative disk disease.
A TVA physician advised the TVA on July 8, 1996, that Crow should not be required to walk for prolonged periods, that he should be limited in his stair climbing and that he should not be required to lift more than ten pounds. In September of 1996, Crow was notified that his position as a rehabilitation maintenance mechanic
*1095
was at risk and he was being reassigned to the TVAS organization. Crow received notice of an impending reduction in force on June 16, 1997. On September 26, 1997, Crow was terminated in that reduction in force.
While assigned to TVAS, on May 20, 1997, Crow applied for total disability compensation from the Social Security Administration. On December 1,1998, Crow was adjudged disabled and was awarded disability benefits from the Social Security Administration. Crow testified that, in his application for social security benefits, he stated that he was totally disabled from working. He clarified the representation made in the social security application during his deposition by stating that, with some accommodation, he could perform various jobs within his medical restrictions, including those of a toolroom clerk, a pipe-fitter scheduler, a planner or a mailroom clerk.
48
Crow contacted the EO compliance office at TVA for discrimination counseling on August 8, 1997, specifically complaining of his receipt of a reduction in force notice and of his impending termination. Those complaints being unresolved, counseling was completed on September 19, 1997, and a notice of the completion of counseling was sent to Crow on October 8, 1997. Thereafter, on October 21, 1996, Crow filed an EEO complaint with TVA’s EO compliance office, in which he indicates that he was subjected to discrimination, first, when TVA refused to provide him with training with which he could secure a permanent position with TVA and, second, when he was terminated by TVA in a reduction in force. The only issue accepted for investigation was Crow’s claim that the reduction in force was discriminatory, as stated in the notice of receipt and acceptance of Crow’s complaint sent to Crow’s attorney on November 3, 1997. Crow did not challenge this characterization of his claims. On March 3, 1998, Crow was informed by TVA that it had completed its investigative report. No final agency decision was issued within one hundred eighty days of Crow’s filing of his EEO complaint. Therefore, on November 24, 1998, Crow filed, in tandem with Plaintiff Rainer, his initial complaint in the present action.
Crow claims that his impairments present a substantial limitation on his ability to work and that, as such, he is disabled within the , compass of the Rehabilitation Act. In addition, Crow claims, he has a record of a disability or was regarded as disabled by the TVA for similar reasons. Although in the Plaintiffs’ second amended consolidated complaint, “working” is listed as the only major life activity significantly limited by Crow’s impairments, in the Plaintiffs’ brief in opposition to the Defendants’ fifth motion for summary judgment, Crow obliquely indicates that he is also substantially limited in engaging in the major life activities of bending, lifting, climbing and stooping.
See
Crow, Rainer, Chandler and Dutton’s Response in Opposition to Defendants’ Second Fifth Motion for Summary Judgment at 8 n. 50 & 25.
49
5. Michael D. Desruisseaux.
Desruisseaux was hired by TVA on April 12, 1978, as an outside machinist, a position requiring him to travel to different TVA locations to install, repair and maintain TVA equipment. In 1983, Des-ruisseaux became a maintenance machinist at the Browns Ferry Nuclear Plant, work
*1096
ing during intermittent power outages. On December 10, 1985, Desruisseaux, while attempting to remove a brake drum from a trailer, injured himself, straining his back and causing a protruded disc in his spine. A lower vertebrae was fragmented to the inside and pressed against his nerves. Following his injury, Desruis-seaux returned to TVA to perform his maintenance machine work on light duty. Desruisseaux was laid off from work ten months after his injury,' on October 10, 1986. On the advice of Robert Mullins, his general foreman (and another Plaintiff in this action), Desruisseaux then applied for and received full OWCP benefits.
On June 25, 1991, Desruisseaux was hired into the REIN program as an Engineering Aide, SE-3, at the Browns Ferry Nuclear Plant. Prior to starting employment, Desruisseaux’s work restrictions were evaluated and he was given the following limitations:
Sitting four hours a day. Walking four hours a day, not continuously now. Lifting one hour a day. Bending one hour. Squatting one hour. Climbing less than one hour a day. Kneeling less than one hour a day. Twisting less than one hour a day. Standing four hours a day. Lifting requirement 10 to 20 pounds. Maximum hours per week 50, which meant 10 hours a week overtime.
Deposition of Michael D. Desruisseaux of June 19,1998, at 28-29.
Desruisseaux’s first position in the REIN program involved performance tracking for the start up of one of the nuclear reactor units at the Browns Ferry plant. Although lacking prior experience with a computer, Desruisseaux, with the assistance of other employees, soon learned the requirements of the job. Thereafter, he successfully performed his job duties for two years. After the two years, he was transferred to the scheduling department, where he worked as a maintenance scheduler. He remained in this position until September of 1996, when he received notice of his transfer to TVAS. He was terminated in a reduction in force on September 26,1997.
50
On June 23, 1997, Desruisseaux contacted the EO office at TVA for discrimination counseling. In his initial contact with the EO counselor, Desruisseaux complained only of his termination in the September 26, 1997, reduction in force. Because no final resolution was reached, counseling ended on June 27, 1997, and a notice of the completion of counseling was sent to Des-ruisseaux on June 30, 1997. Thereafter, on July 11, 1997, Desruisseaux filed his EEO complaint with TVA, in which he claims to have been subjected to disability discrimination when he was terminated. Desruisseaux also attached to his EEO complaint a further explanation of his claims that was drafted by his attorney. In the statement attached to his complaint, Desruisseaux expresses his belief that TVA created the REIN program with the secret intent to reduce the amount of OWCP benefits being paid to disabled workers. In addition, Desruisseaux indicates that he was separately classified in specific retention registers for purposes of ease in later termination. Desruisseaux also asserts that, contrary to representations of TVA supervisors, “TVA did not mean to employ him permanently, or train him, or place him in a regular TVA position.” Attachment to EO Complaint of Michael D. Desruisseaux of July 11, 1997, at 2. Finally, Desruisseaux alleges that his transfer to TVAS was similarly discriminatory, in that disabled individuals had been disproportionately transferred to that organization as a percentage of TVA’s total workforce.
TVA’s EO compliance office sent Des-ruisseaux a notice of receipt and acceptance of discrimination complaint on July 29, 1997, in which it indicates that only his complaints of discriminatory termination from TVA were then being accepted for investigation. Desruisseaux did not challenge the limitation of his complaints of discrimination in any subsequent response
*1097
to the EO compliance office. In the investigation of his complaint, Desruisseaux did not add any matters to his claim beyond those accepted by the EO compliance office. On July 29, 1997, Desruisseaux was informed by TVA that it had completed its investigative report. As no final agency decision was issued within one hundred eighty days of his filing of his EEO complaint, Desruisseaux, on January 23, 1998, joined in the present action in federal court as a Plaintiff in the lead case.
Desruisseaux claims that, as a consequence of his lower back injury, he is substantially limited in the major life activity of working. He avers that he can no longer work as a machinist or in construction and, as such, is substantially limited in his ability to work. He also claims a record of such a disability and claims that TVA regarded him as having such a disability.
51
6. Richard B. Dutton.
Dutton, by education, training, and experience, was a carpenter. From 1980 until 1990, he was occasionally hired by TVA to work as a carpenter on assorted projects, usually working for a number of months or for a year or so before being laid off when the particular job for which he was hired was completed. On August 15, 1988, while employed by TVA on an “outage” job, Dutton slipped on a slick floor while carrying pieces of scaffolding. His legs separated and his knee twisted beneath him. For two years after his injury, Dutton was unable to pay for surgery to his knee and so delayed it. During that time, Dutton continued at his work on light duty. In August of 1990, surgery was performed on Dutton’s knee, after which he was unable to return to work for twelve weeks. A few weeks after returning to work, on December 21, 1990, he-was laid off in a reduction in force.
Then unemployed, Dutton sought and received benefits from the OWCP; however, he only received FECA benefits for six or seven months, as he soon was hired into the REIN program on July 13, 1991. Pri- or to starting work, Dutton received a vocational assessment on April 18, 1991, as a consequence of which he was limited to work at TVA that required no squatting, no working on catwalks and limited climbing. He was also told that he could no longer perform carpentry. Given his restrictions, TVA hired Dutton to work as a Clerk-Monitor, SB-2. As a part of his job, Dutton operated personnel contamination monitors; eventually, Dutton testified, he acquired such sufficient knowledge of his position that he began to perform the duties and functions of a higher SE^l technical position. Eventually, because of his skill at performing his job, Dutton was elevated from an SB-2 pay grade to a SB-3 pay grade.
On February 12, 1996, Dutton was urged, in a memorandum from Mike Doyle (“Doyle”), the Manager for Health and Safety at Nuclear Human Resources, to search for a permanent position either “within TVA or outside the agency.” Memorandum of February 12, 1996, by M.J. Doyle to REIN Employees at 1. The memorandum encouraging Dutton to search for other work was drafted to inform the REIN employees of the likelihood of funding reductions for the REIN Program.
52
The memorandum did not spur Dutton to action. Thus, on October 1, 1996, Dutton was reassigned to TVAS. While in TVAS, Dutton’s application and résumé were sent to about fifty positions by TVAS and he received two favorable responses from supervisors requesting in
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terviews. Dutton obtained neither of those two positions. On June 16, 1997, Dutton received notice that his position with TVA would be terminated in a reduction in force occurring on September 26, 1997. On the stated date, he was terminated.
Unlike other Plaintiffs in this action, Dutton chose not to inform TVA of his belief that TVA had discriminated against him when he was downsized from the workforce. Although when he received his notice of the reduction in force in June of 1997, Dutton concluded that his termination was prompted by discrimination, he chose not to undergo discrimination counseling with one of TVA’s EO counselors or to file a subsequent formal administrative complaint with TVA. On February 11, 1999, Dutton joined the action filed on January 13, 1999, by L. Chandler,
Chandler v. Crowell, et al.,
CV 99-BU-0061-S, and in so doing, tried to overcome his alleged failure to exhaust his administrative remedies before the TVA by “piggybacking” onto L. Chandler’s action. Dutton was joined into L. Chandler’s case fifty-four days after L. Chandler received notice of an unfavorable final ruling from TVA on December 19,1998.
Dutton claims that he is disabled in that his injured knee is an impairment which substantially limits him in the major life activity of working. The substantial limitation on working is the consequence of his inability to engage in carpentry as a class of jobs. In addition, Dutton claims to have a record of such disability and to have been regarded by TVA as having such a disability. Although in the second amended consolidated complaint Dutton nowhere suggests that he is substantially limited in any major life activity other than working, he indicates in his brief in response to the Defendants’ fifth motion for summary judgment, albeit indirectly, that he is substantially limited in the major life activities of squatting and climbing.
53
In the same opaque manner, Dutton contends that TVA had a record of him being so disabled and that TVA regarded him as being so disabled.
7. Noonan Greene.
Greene was, apparently, employed as an ironworker foreman at TVA’s Browns Ferry Nuclear Plant on a full-time basis in 1987. In 1988, Greene slipped and fell from some steps, injuring his left shoulder and tearing the rotator cuff in the joint. He returned to work without incident. Greene suffered another injury on June 30, 1989, falling in the shop and rupturing a tendon in his left ankle.
54
He returned to work the day after the injury wearing a brace. In that state, Greene continued to work as an ironworker foreman, although he primarily spent his time thereafter handling paperwork. According to Greene, he had a fifteen to twenty-five percent impairment to his shoulder and a ten percent impairment to his left ankle. In addition, his physician restricted him from prolonged walking, from climbing without guardrail protection, and from lifting objects to a height above the waist with his left hand. On December 21, 1990, Greene was laid off from work in a large reduction in force. He then applied to OWCP for FECA benefits, which he received.
Greene was approached by Ed Wells (“Wells”) six months later, on June 3,1991, about a position with the REIN program. Having shown interest in the REIN program, he was soon hired as an engineering aide, SE-3. For the first eighteen months in the REIN program, Greene worked in the maintenance planning department at the Browns Ferry Nuclear Power Plant, essentially, he claims, as a “gopher.” In November and December of 1992, the job
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in the maintenance planning department developed into a work order coordinator position, which provided Greene with the opportunity to work with a labor crew. In August of 1993, the members of Greene’s crew were sent to training, which Greene was not permitted to attend. Left out, Greene filed a charge of disability discrimination with TVA’s EO compliance office on October 23,1993. He asserts that in retaliation for filing the charge, he was moved from his position with the maintenance planning department to a position with the operations department, where he worked until his employment with TVA ended. Performing the responsibilities of the new job, Greene filed documents, made copies of documents, and performed similar clerical chores.
On June 26, 1995, Greene received a copy of a favorable final determination from TVA on his complaint of discrimination stemming from TVA’s failure to provide him with training. In the decision of the agency, TVA concludes, with regard to Greene’s averment that he was disabled, that Greene was “handicapped ... in that he has a physical impairment which substantially limits his ability to
lift with his left hand above his waist, climb vnthout protection,
and
engage in prolonged walking
... and has a record of such an impairment, and was regarded by management as having a disability.” TVA Final Agency Decision on Complaint of Greene of June 26, 1995, at 2-3 (emphasis added). TVA never appealed the final decision of the agency.
55
In 1995, Greene injured his left knee;
56
by that time, his right shoulder was also worn, requiring a joint replacement. At some point in the same year (it appears to have been September), Greene was transferred to TVAS. On July 24,1996, Greene received a notice that effective September 30, 1996, his position with TVA would be eliminated. Subsequent to his termination, on October 26, 1997, Greene was deemed “disabled” by the Social Security Administration as of July 5, 1997, and was awarded disability benefits.
After receiving notice of the reduction in force, Greene contacted the EO compliance office at TVA for disability discrimination counseling on August 28, 1996. An initial meeting was held on September 11, 1996, in which Greene was advised of his rights and responsibilities under the complaint processing procedure. In the meeting, Greene complained of being terminated, being denied genuine work and being denied meaningful training. TVA responded that its decisions were motivated by budgetary concerns. Because Greene’s complaints of discrimination were not resolved through counseling, counseling ceased October 1, 1996 and a notice of the completion of counseling was sent to Greene on October 9,1996.
On October 21, 1996, Greene filed his EEO complaint with TVA, in which he claims to have been subjected to disability discrimination when he was terminated in the September reduction in force. In a “Statement of Complaint” attached to the body of his EEO complaint, Greene contends, first, that TVA created the REIN program with the tacit intention of reducing the amount of OWCP benefits being paid to disabled workers who received large amounts of benefits. Second, Greene states that he was separately classified in a separate retention register from non-disabled employees to make it easier for TVA to later terminate him. Green further asserts that he was denied placement in non-REIN program positions and that he was denied training by TVA. Finally, Greene argues that his transfer to TVAS was discriminatory, in that disabled individuals had been disproportionately transferred to that organization.
*1100
In notifying him of receipt of his complaint on November 1, 1996, the EO compliance office informed Greene that, based upon averments in pre-complaint counseling and in his EEO complaint, the EO compliance office was investigating only his claim of discriminatory termination. During the investigation of his complaint, on November 14, 1995, Greene gave affidavit testimony to an EEO investigator. In that testimony, Greene asserts that he was denied training by TVA and that in June, July or August of 1996, he applied for a maintenance technician position outside of the REIN program and he was denied that position. On March 24, 1997, Greene was informed by TVA that it had completed its investigative report. After one hundred eighty days from the his filing of his EEO complaint, Greene, on August 4, 1997, filed his initial complaint in the instant action.
Greene claims that his left ankle injury, his knee injury, and limitations on the functioning of each shoulder constitute impairments which substantially limit him in the major life activity of working. He also claims that TVA had a record of such a disability and that it regarded him as having such a disability.
57
8. Timothy L. Mansell.
Mansell was employed by TVA in 1980 as an ironworker at its Yellow Creek Nuclear Plant. After two years of employment, Mansell was furloughed, but he returned to work eight months later, in 1983, as an ironworker at the construction service branch of the facility at Muscle Shoals, Alabama. On December 6, 1983, Mansell was injured when he struck the top of his left knee on a step protruding out from a diesel truck. For seven to ten days thereafter, Mansell was placed on sedentary duty at work on the mistaken belief that his knee injury was a mere bruise; by the second week, the extent of Mansell’s injury was discovered. He was sent to a physician, who diagnosed Mansell as having a contusion, atrophy and lesions in his knee joint. He underwent surgery on the left knee in January or February of 1984 and began to draw FECA benefits from OWCP. Since the time of the knee injury, Mansell’s physician has restricted Mansell from lifting over an unspecified weight, from walking at heights without protection, from extensive walking, from climbing stairs regularly and from squatting.
58
For the next few years, Mansell attended college, obtaining a technical degree in electronics, electrical and computer technologies. In 1987, Mansell was rehired to work as an electrical engineering aide in the electrical modifications department of the Browns Ferry Nuclear Plant. In February of 1989, Mansell was dismissed during an agency-wide reduction in force. He again received OWCP benefits and returned to school, taking courses in mathematics and physics and working toward a bachelor’s degree in instrumentation science. He was unable to complete the degree program, as TVA rehired him, somewhat against his wishes, in 1991.
In 1991, Mansell reluctantly accepted a position at TVA under the REIN program as a Project Control Specialist, SD-3. Throughout his employment from 1991 until he was terminated in a reduction in force, Mansell performed a number of different jobs in the REIN program without difficulty.
Mansell received notice of his transfer to TVAS in June or July of 1995 and was transferred to TVAS on September 15, 1995. While at TVAS he was told to apply for a position as a lineman, a job for which he knew in advance he could not qualify. On March 4, 1996, Mansell filed a complaint of disability discrimination based on
*1101
the denial of certain positions for which he had applied. In a final decision by the TVA issued on March 27, 1996, his complaint was denied for untimeliness and, on appeal to the Equal Employment Opportunity Commission (“EEOC”), TVA’s decision was affirmed on December 23, 1996. Mansell chose not to appeal those claims to federal court. TVA notified Mansell on July 24, 1996, that his position with TVA would be eliminated effective September 30, 1996. On that date, Mansell was terminated from TVA in an agency-wide reduction in force.
On August 28, 1996, Mansell contacted the EO office at TVA to receive disability discrimination counseling. In counseling conducted on September 11, 1996, Mansell complained that his impending termination was motivated by his disability. The Counselor’s report also indicates that Man-sell complained that “he was not provided any productive work or meaningful training.” Mansell’s complaints of discrimination went unresolved, resulting in the termination of counseling on October 1, 1996, and in a notice of the completion of counseling being sent to Mansell on October 9, 1996.
On October 26, 1996, Mansell filed his EEO complaint with TVA, in which he claims to have been subjected to disability discrimination when he was terminated in the September reduction in force. Through a notice of receipt of the discrimination complaint sent to Mansell on November 1, 1996, he was informed that his claim of discriminatory termination based on disability had been accepted by the EO compliance office for investigation. On March 24, 1997, Mansell was informed by TVA that it had competed its investigative report. One hundred eighty days after his filing of his EEO complaint, on September 3, 1997, Mansell filed his initial complaint in the instant action.
Mansell claims that his knee injury is an impairment which substantially limits him in the major life activity of working.
59
He also claims that TVA had a record of such a disability and that it regarded him as having such a disability.
60
9. Bobby Massey.
Massey worked intermittently for TVA at various facilities as a journeyman electrician from 1980 until January of 1990. The last period of his employment began in May of 1989 at TVA’s Colbert Steam Plant. In January of 1990, Massey was “pulling wire” in an area in which a broken valve was leaking water onto the floor. Massey slipped on the wet floor and fell, rupturing a disc in the lumbar region of his spine. Although his physician advised surgery, Massey refused and, apparently, has to this date not had any corrective surgery to remedy his injury. After being diagnosed with the spinal injury, Massey returned to his position with TVA as an electrician in a light duty capacity; he remained in the job until he was furloughed in November of 1990. His physician restricted him from lifting no more than ten to twenty pounds at a time. In his testimony, Massey states that he is not employable as a heavy construction worker, steamfitter, painter, scaffold worker, carpenter or any other labor worker on a construction site.
After he was laid off in 1990, Massey received FECA benefits from OWCP for nearly seven months. In July of 1991, Massey was hired as an assistant instructor for TVA’s electrical apprenticeship program through TVA’s REIN program. According to Massey, the entire time that he occupied the instructor position, he was
*1102
not permitted to assist in anyone’s instruction, much less instruct anyone himself. In addition, he asserts, he was not permitted the training that would have allowed him to be an instructor. Rather, he was relegated to doing paperwork for the instructors teaching the electrical apprenticeship classes.
In August or September of 1995, Massey was transferred to TVAS. Then, on July 24, 1996, he received notice of an impending reduction in force. He was terminated on September 30, 1996. At the time of his deposition in June 1998, Massey was employed in New Jersey in a position he acquired shortly after he was terminated in the reduction in force doing “take-offs” from blueprints for electrical contractors.
On August 22, 1996, Massey contacted the EO office at TVA to obtain disability discrimination counseling. He was interviewed by an EO counselor on September 11, 1996. In the interview, he complained of discriminatory termination, of the denial of productive work and of the refusal of training on the basis of his disability. Because Massey’s complaints of discrimination were unresolved, his counseling was completed on October 1, 1996 and a notice of the completion of counseling was sent to Massey on October 9,1996.
On October 21, 1996, Massey drafted an EEO complaint to TVA that was filed on October 25, 1996. In that complaint, he claims that his termination in the reduction in force was undertaken by TVA for the purpose of disability discrimination. In an incorporated attachment drafted by his attorney, Massey also avers that he was classified in a discriminatory fashion, that his transfer to TVAS was discriminatory, that he was not offered any non-REIN position with TVA that he could perform and, apparently, that he was denied adequate training. The EO compliance office sent Massey confirmation of the receipt of his EEO complaint on November 4, 1996, in which it recognized only his claim of discriminatory termination for investigation. If this was an unfortunate mischaracterization, Massey sent nothing to the EO compliance office to correct it. During the investigation, Massey gave affidavit testimony, during the taking of which he was asked by the EO investigator whether discriminatory termination was the proper characterization of his claim, to which he answered affirmatively. Elsewhere in his recorded testimony, Massey complains briefly about being refused training, but does not focus on the issue. On November 4, 1997, TVA informed Massey that it had competed its investigative report. Over one hundred eighty days after his filing of his EEO complaint, on September 16,1997, Massey filed his initial complaint in the instant action.
Massey asserts that his herniated disk is an impairment which substantially limits him in the major life activity of working. He also claims that TVA had a record of such a disability and that it regarded him as having such a disability.
61
10. Thomas Miles.
TVA hired Miles intermittently beginning in 1977 to perform carpentry work at its various plants. On March 11, 1981, while working at the Yellow Creek Nuclear Plant, Miles’s left leg slipped through the rebar
62
in the nuclear reactor hole, striking a dish underneath and twisting his left knee. Following his injury and approximately two weeks of recuperation, Miles returned to work on light duty until he was terminated in a reduction in force occurring in May 1982. Miles was rehired in August of 1982 by TVA as a carpenter without any medical restrictions resulting from his earlier knee injury. He continued to work as a carpenter for TVA on a
*1103
periodic basis without restriction until his knee gave way on him while he was playing basketball in January of 1987. It was then that Miles learned, through arthroscopic surgery, that in 1981 he had suffered a broken anterior cruciate ligament. Miles underwent surgery on the knee; eight weeks later he returned to work with restrictions proscribing running, climbing, kneeling and crawling. Returning to work in the carpenter shop at the Browns Ferry Nuclear Plant, he continued to work as a carpenter under those restrictions until May of 1991, when he was laid off in a reduction in force. Until he was laid off, Miles would occasionally endure further problems with his knee, which would cause his leg to collapse beneath him. Over time, Miles’s reliance on a knee brace became regular. Further, according to Miles, after his knee gave way in 1987, he often would be required to undergo surgery to repair cartilage damage to his knee. Each period that he was off work, Miles would receive FECA benefits from OWCP.
On July 22, 1991, Miles was offered, and he accepted, a position with TVA in the REIN Program as a Nuclear Engineering Aide, SE-8, in the instruments and control department at Browns Ferry Nuclear Plant. The duties of the job included the expediting of work orders. Miles occupied the position for three years, and then acted as a materials coordinator until September 1996, when he was notified that his position was at risk and that he would be transferred to TVAS in October of 1996.
63
On June 16,1997, Miles was informed that his job would be eliminated through a reduction in force effective September 26, 1997.
Miles contacted the EO compliance office at TVA on June 23, 1997, to obtain disability discrimination counseling. In an interview with an EO counselor conducted on June 27, 1997, Miles complained that his impending termination from TVA was discriminatory in nature. Miles’s complaints of discrimination were denied by TVA. On June 27, 1997, the EO counselor conducted a final interview with Miles, in which the counselor told Miles of TVA’s response to his complaint. Miles was sent notice of the completion of counseling on June 30,1997.
On July 11, 1997, Miles drafted his EEO complaint with TVA’s EO compliance office, which was filed July 16, 1997. In his complaint, Miles claims to have been discriminated against on the basis of his disability when he was to be terminated in the September 26, 1997, reduction in force. In an incorporated attachment drafted by his attorney, Miles avers that he was classified in a discriminatory fashion, that his transfer to TVAS was discriminatory, that he was not offered a non-REIN position with TVA and that he was denied adequate training. On July 29,1997, the EO compliance office informed Miles of its receipt of his complaint, stating that it had accepted for investigation his claim that he was terminated by reason of his disability. Miles did not rebut this characterization of his claim.
Miles did not await completion of the investigation into his complaint. On January 23, 1998, Miles sought to be joined in the instant action, as more than one hundred eighty days had passed from the time he filed his claim of discrimination. On January 30, 1998, Miles was permitted to join into the lead case in the present action.
Miles asserts that his knee injury is an impairment which substantially limits him in the major life activity of working. He avers that because of his knee injury, he is prevented from climbing, squatting, kneel
*1104
ing, extended walking and heavy lifting. As a consequence of his impairment, Miles claims to be incapable of performing a broad class of jobs, including craft positions in carpentry, boilermaking, bricklaying, ironworking, painting, plastering, and roofing. He also claims that TVA had a record of such a disability and that it regarded him as having such a disability.
64
11. Robert Mullins.
Mullins was hired by TVA in 1976 to perform some temporary machine work on a steam relief valve. Because of the quality of the work performed, TVA offered him a permanent position as a maintenance specialist on the SD scale. By 1980, Mullins was promoted to the position of mechanical general foreman, which he occupied for eight to nine years. In 1981, Mullins stepped into a hole while maintaining a piece of TVA equipment, injuring his back. After the injury, Mullins’s physician temporarily restricted him from lifting or bending. The temporary restrictions grew to be permanent. In spite of his restrictions, however, Mullins returned to his work as a general foreman and continued in that position until he was laid off in a reduction in force occurring on March 10, 1989. After he was furloughed in the reduction in force, Mullins applied for FECA benefits from OWCP, which he received. At that time, Mullins avers, he was not permitted by his physician to lift over twenty pounds, to climb, to bend or to stoop.
For the two years and three months that he was off from work at TVA, Mullins’s health condition improved somewhat. When, in March of 1991, Mullins accepted employment with TVA as a maintenance mechanic, TB, under the REIN program, he was able to lift up to fifty pounds under the restrictions given him by his physician. After working as a maintenance mechanic for four years, in 1995, Mullins was transferred to TVAS. After being transferred to TVAS, on February 20, 1996, Mullins filed an EEO complaint with TVA’s EO office, contending that the transfer was motivated by a discriminatory animus. His complaint was rejected by the EO office as being untimely. Apparently, Mullins did not appeal within the permitted time period. On July 24, 1996, Mullins received notice of an impending reduction in force in which his position was targeted. He was terminated in a reduction in force that occurred on September 30,1996.
Mullins contacted the EO office at TVA on August 23, 1996, seeking disability discrimination counseling. In an interview conducted on August 29, 1999, Mullins informed the EO counselor assigned to him that because of his disability, TVA had terminated him, denied him training and refused to give him meaningful work. As with all other Plaintiffs in this action who sought counseling, the complaints of discrimination by Mullins went unresolved. His counseling ended on October 1, 1996, and he was sent a notice of the completion of counseling on October 9,1996.
Mullins sent an EEO complaint to TVA’s EO compliance office on October 23, 1996, that was received by the office on November 4, 1996, in which he claims to have been subjected to discrimination on the basis of his disability when he was to be terminated in the September 30, 1996, reduction in force. Mullins’s attorney authored for Mullins an attachment to the EEO complaint which asserts that Mullins was classified into the REIN program in a discriminatory fashion, that he was transferred to TVAS for discriminatory reasons,
65
that he was not offered any non-REIN positions for which he was qualified
*1105
and on which he applied and that, while in the REIN program, he was denied training that he earlier had been promised. Mullins was sent a notice of the receipt and acceptance of his discrimination complaint on November 6,1996, through which he was informed that his complaint had been received. In the notice, the EO compliance office only states that the complaint of discriminatory termination is to be investigated. The notice makes no reference to any other claim. Mullins did not respond to this characterization.
On March 24, 1997, Mullins was informed by mail that the investigation of his complaint had been completed and was told that a final agency decision would be forthcoming. One hundred eighty days having passed from the filing of his EEO complaint, on July 24, 1997, Mullins filed his initial complaint in the present action.
After his termination in the reduction in force, Mullins discovered that he was experiencing respiratory problems as a result of exposure to asbestos prior to his working for TVA. At present, the ruptured disk in his back has deteriorated to the point that he is regularly required to wear a back brace. Mullins has also, apparently, applied for Social Security disability benefits.
Mullins asserts that his back injury is an impairment which substantially limits him in the major life activity of working. He also claims that TVA had a record of such a disability and that it regarded him as having such a disability.
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12. Marion G. Rainer.
In April 1975, Rainer began working for TVA as a plumber at Guntersville Dam. In August of the same year he was hired as a steamfitter/plumber at TVA’s Belle-fonte Nuclear Plant. On August 21, 1984, Rainer, while attempting to tie a length of rope to a scaffold, slipped, twisting his back. As a consequence, his back was pulled and a lower vertebrae was rendered, in Rainer’s terms, “improper.” After his injury, Rainer applied for and briefly received FECA benefits from OWCP. Rainer returned to work on September 10, 1984, and continued to work, with varying limitations, until he was terminated in a reduction in force on January 4, 1985. He resumed receiving FECA benefits.
On September 17, 1987, TVA offered Rainer a position as a transmission lines clerk through an earlier program created by TVA to reemploy some of its workers who were.receiving FECA benefits. Prior to taking the position, Rainer was required to undergo a residual functional capacity evaluation to determine those things that he could no longer do. In most areas of mental functioning, Rainer was rated somewhat above average. However, the physician examining him determined that Rainer could lift no greater than twenty pounds and perform no work involving climbing or repeated stooping or bending without risking further injury. Not being prevented by his restrictions from taking the job, Rainer accepted the position, which was operated out of TVA’s Power System Operations in Huntsville. In this position his responsibilities included,
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among other things, receiving materials and using a laptop computer to handle performance evaluations and other personnel files of employees. He worked in this position for just over three years.
In December of 1990, Rainer was informed that he was soon to be laid off from his position as transmission lines clerk. However, rather than terminate him, TVA instead transferred him into the REIN program at the Browns Ferry Nuclear Plant. He was employed in the position of a Clerk, SB-8, in the operations department, performing the responsibilities of a work order coordinator, tracking, filing, and updating work orders. Until October of 1994, Rainer remained in the Clerk job; then he accepted employment as a maintenance mechanic, still through the REIN program. As a maintenance mechanic, Rainer was responsible, among other things, for inspecting and repairing tools, for locating tools, and for maintaining work areas.
Rainer was never sent to TVAS. Rather, on July 25, 1997, Rainer received a notice that he would be terminated in an impending reduction in force. He was terminated on September 26, 1997. One day after the reduction in force, on September 27, 1997, Rainer accepted a temporary position as a tool room clerk and tool repairman with an independent contractor, Stone
&
Webster, to do work during an outage at TVA. That position expired on October 26, 1997. After he completed his work for the contractor, Rainer obtained a job as a sales associate in the automotive and sporting goods department at a local Wal-Mart retail store.
Rainer contacted the EO office at TVA on October 7, 1997, to obtain disability discrimination counseling. In a counseling interview conducted on October 10, 1997, Rainer stated that he had been terminated on the basis of his disability. His complaints of discrimination in his employment went unresolved and counseling was closed on October 9, 1997. He was sent a notice of the completion of counseling on October 14,1997.
October 27, 1997, Rainer filed his EEO complaint with TVA, in which he claims to have been discriminated against on the basis of his disability and age, stating:
On September 26, 1997, I was terminated from employment with TVA in what was termed as a “reduction in force” while younger and/or non-disabled/handicapped employees were retained doing the same jobs I had successfully performed during my previous 10 years of employment. I had worked as a disabled employee since 1987 when I returned to work after an on-the-job disabling back injury.
Rainer’s EEO complaint of October 27, 1997, at 2. The EO compliance office, on November 6, 1997, informed Rainer that it had received his complaint and that it had accepted his allegation that he was terminated on the basis of his
disability
for investigation. On March 3, 1998, Rainer was informed that TVA had completed its investigation into his complaint of discrimination and that a final agency decision would be forthcoming. On November 24, 1998, more than one hundred eighty days after he had filed his claim of discrimination, Rainer, along with Plaintiff Crow, filed a complaint against the Defendants.
Rainer primarily asserts that his back injury causes a substantial limitation on his ability to work in that he is incapable of doing a broad class of jobs, including pipefitting and steamfitting, and that, as such, he is disabled within the compass of the Rehabilitation Act. In addition, Rain-er claims, he has a record of a disability or was regarded as disabled by the TVA for similar reasons. Although in the Plaintiffs’ second amended consolidated complaint, working is listed as the only major life activity significantly limited by Rain-er’s back injury, he implies, in the Plaintiffs’ brief in opposition to the Defendants’ fifth motion for summary judgment, that he is also substantially limited from engaging in the major life activities of bending, lifting, climbing and stooping.
See
Crow, Rainer, Chandler and Dutton’s Response
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in Opposition to Defendants’ Second Fifth Motion for Summary Judgment at 8 n. 62
&
at 25.
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13. Marc Shores.
Shores started his employment with TVA in 1978, working on Plant Vogel, a nuclear plant that TVA purportedly was building for Georgia Power. He worked for TVA as a carpenter on a periodic basis until 1986, when he went to work as a carpenter foreman at the Browns Ferry Nuclear Plant. He continued in that position until February of 1989, when he was terminated in an agency-wide reduction in force. On July 17, 1989, Shores was rehired as a carpenter at Browns Ferry Nuclear Plant; ten or eleven days later, on July 28, 1989, Shores injured himself when he fell thirteen feet from a ladder in the turbine building at the plant. As a consequence of the fall, Shores suffered a crushed elbow, injured shoulder, hip, and back. Although he returned to TVA in September 1989 for a short period of time, he was a nominal employee, appearing at the office only to read or return home. This continued until August of 1989, when the injury to his elbow required him to undergo additional surgery.
After he underwent his second surgery, Shores left his employment and successfully applied for FECA benefits from OWCP. In May of 1991, Shores received a phone call indicating that TVA wished to offer him a job. Prior to being hired, however, Shores would be required to undergo vocational testing to determine what jobs he could perform and he was suited to perform. The vocational assessment received by Shores, while noting his restrictions on bending, squatting, climbing, kneeling, and twisting, developed a non-exhaustive list of twenty-nine jobs that he was
potentially
capable of performing, with appropriate training.
On July 21, 1991, Shores accepted an offer of employment from TVA as an engineering aide, SE-3, in the REIN Program, at the Browns Ferry Nuclear Plant. According to Shores, in his position, he would be responsible for training and supervising carpentry work orders, keeping the logbook of all scaffolds that were erected by TVA, and taking charge of some remodeling. This was, he states, essentially the same thing he had done for TVA in the past as a carpenter foreman. At some point during this period, while working in the REIN program, Shores was increased in grade to SE-4.
In September of 1995, Shores received notice that his position was at risk and that he was to be transferred to TVAS. He approached his supervisors about the notice and they told him to ignore it, that they wanted him to remain where he was and continue performing his job, and that they were trying to find him a permanent position. Shores then threw the notice away and continued working, without impediment, until April 1996, when he was actually transferred to TVAS. On July 24, 1996, he received his reduction in force notice and on September 30, 1996, he was terminated in a reduction in force.
Shortly after his termination, Shores was contacted by one of his supervisors at the Browns Ferry Nuclear Plant and offered a temporary job with an independent contractor, Stone & Webster, performing the same work he had done for TVA, for the length of an outage. Shores refused. Later, he was again offered a position with the independent contractor, which he once more refused. At the time of his deposition, Shores was in the process of setting up his own a plant nursery business. Apparently, in the course of setting up his business, Shores is regularly required to violate his medical restrictions.
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Shores contacted the EO office at TVA on August 23, 1996, seeking disability discrimination counseling. In a counseling interview conducted on August 29, 1996, Shores stated that TVA discriminated against him on the basis of his disability by not paying him the same amount it paid other employees who performed the same work and by terminating him in the September 30, 1996, reduction in force. As with nearly all other Plaintiffs in this action, the complaints of discrimination by Shores went unresolved. His counseling ended on October 1, 1996 and he was sent a notice of the completion of counseling on October 9,1996.
On October 21, 1996, TVA’s EO compliance office received an EEO complaint drafted by Shores, in which Shores claims to have been subjected to discrimination on the basis of his disability throughout the time that he was employed in the REIN program because he was given unequal pay when compared to non-disabled employees and to have been the target of discrimination based on disability when he was terminated in the September 30, 1996, reduction in force. In an incorporated attachment, Shores claims to have been classified in a discriminatory fashion, diserimi-natorily transferred to TVAS, denied jobs outside of the REIN program and denied adequate training.
In a notice of receipt and acceptance of discrimination complaint sent to Shores on November 25, 1996, TVA’s EO compliance office noted two claims of Shores:
... In the precomplaint counseling and report and the complaint, you alleged that you were discriminated against because of your handicap (arm and back injuries) when:

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2424528. Public record. Not legal advice.