Smith v. United States Postal

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Smith v. Henderson No. 02-6073

ELECTRONIC CITATION: 2004 FED App. 0228P (6th Cir.)

File Name: 04a0228p.06 Hill, ASSISTANT UNITED STATES ATTORNEY,

Louisville, Kentucky, for Appellee. ON BRIEF: Karen L.

Stewart, LAW OFFICE OF KAREN L. STEWART,

UNITED STATES COURT OF APPEALS Louisville, Kentucky, for Appellant. Candace G. Hill, Terry

M. Cushing, ASSISTANT UNITED STATES ATTORNEY,

FOR THE SIXTH CIRCUIT Louisville, Kentucky, for Appellee.

_________________

_________________

MARY CHRISTINE SMITH, X

Plaintiff-Appellant, - OPINION

- _________________

- No. 02-6073

v. - CLAY, Circuit Judge. Plaintiff Mary Christine Smith

> appeals the August 1, 2002, order of the United States District

, Court for the Western District of Kentucky, granting

WILLIAM J. HENDERSON , -

Postmaster General, United Defendant United States Postal Service’s1 motion for

- summary judgment on her claims for sex discrimination, in

States Postal Service, - violation of Title VII of the Civil Rights Act of 1964, as

Defendant-Appellee. - amended, 42 U.S.C. § 2000e, et seq.; age discrimination, in

- violation of the Age Discrimination in Employment Act of

- 1967, 29 U.S.C. § 621, et seq.; disability discrimination, in

N violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791,

Appeal from the United States District Court et seq.; and for violations of the Equal Pay Act, 29 U.S.C.

for the Western District of Kentucky at Louisville. § 206(d). Because the district court erred in granting

No. 00-00515—Charles R. Simpson, III, District Judge. summary judgment for the United States Postal Service on

Smith’s claims for sex, age and disability discrimination, but

Argued: January 27, 2004 not in dismissing the Equal Pay Act claim, the Court

AFFIRMS, in part, and REVERSES, in part, the judgment

Decided and Filed: July 15, 2004 below.

Before: SUHRHEINRICH, CLAY, and SUTTON, Circuit

Judges.

_________________

COUNSEL 1

The Defendant named in Smith’s complaint is William J.

Henderso n, Postmaster General, United States Postal Service. The

ARGUED: Karen L. Stewart, LAW OFFICE OF KAREN L. complaint appears to sue H enderson in his official capacity. For purposes

STEWART, Louisville, Kentucky, for Appellant. Candace G. of this opinion, the Court refers to Defendant as the United States Postal

Service or USPS.

1

No. 02-6073 Smith v. Henderson 3 4 Smith v. Henderson No. 02-6073

I. Elizabethtown Post Office, Mullin assigned Conklin to

supervise Smith and the acting Tour II Supervisor, who was

Substantive Facts a male. According to Mullin, and confirmed by Conklin,

Conklin altered Smith’s staff assignments because “the work

In July, 1979, Plaintiff Mary Christine Smith began her she anticipated that her staff would do that following night

career for the USPS as a distribution clerk in Evansville, had been done during the day while she was gone, or because

Indiana. In September, 1986, Smith was transferred to she had not most efficiently used her staff, and had made

Elizabethtown, Kentucky, where her title remained assignments which were going to cause overtime to be used.”

distribution clerk. At some point in 1986, Smith disclosed to (J.A. 50, 63.)

her supervisors that she has rheumatoid arthritis, which

“affects the mobility of [her] hands, legs and feet.” (J.A. 7, Smith next complains that Mullin refused to authorize

Complaint, ¶ 8.) In 1997, Smith’s physician limited her work Smith to approve overtime for her employees. Smith claims

time to 8 hours per day, 40 hours per week, and limited her that the overtime was necessary to manage the Tour I

lifting to no more than 20 pounds. The USPS’s physicians workload. According to Mullin, he refused the overtime

and supervisory personnel approved of these work requests because a supervisor “must balance work-load,

restrictions. overtime hours considering employees on vacation, and what

work will be accomplished by the next tour after that

In early 1998, a panel of postmasters from the area Supervisor’s employees leave for the day.” (J.A. 48.) All of

surrounding Elizabethtown, Kentucky recommended Smith this balance must be accomplished with “an eye towards

for promotion to customer service supervisor, Tour I, keeping costs down, and keeping efficiency – moving the

effective March 15, 1998. Tour I is the night shift at the post mail – up.” Id.

office when all mail must be off-loaded from the trucks,

sorted and dispatched out to the associate post offices. One Smith also complains that Mullin refused to permit her to

day before the effective date of her promotion, Smith met delegate the duty of facility-wide financial accounting to a

with her immediate supervisor, Tom Mullin, and Tony subordinate employee, as he had permitted the male Tour I

Conklin, a customer service supervisor. Mullin and Conklin supervisors who had preceded her in that position. As a

allegedly attempted to talk Smith out of accepting the result, Smith’s work day was lengthened, requiring her to

supervisor position. Smith nevertheless accepted the work between 10 and 12 hours a day, in contravention of her

promotion. medical restriction. For one stretch of time (between June 5

and July 5, 1998), Smith worked for thirty days straight

According to Smith, after she became the Tour I without a day off. For another stretch (between July 2 and 17,

Supervisor, she suffered through a series of events that 1998), Smith was required to work with only one or two days

ultimately left her no choice but to quit her job only four off.

months later. Smith first complains that Conklin, with

Mullin’s consent, unilaterally altered work schedules that The USPS concedes that the Tour I Supervisor’s accounting

Smith had prepared for the employees she supervised. She duties are time-consuming. It points out that Conklin,

argues that male supervisors’ work schedules were never Smith’s male predecessor as Tour I Supervisor, used to spend

changed without their prior consent. In response, USPS two to three hours per day on the accounting function. The

explains that, because of the pending relocation of the USPS argues that Mullin would have permitted Smith to

No. 02-6073 Smith v. Henderson 5 6 Smith v. Henderson No. 02-6073

delegate the accounting functions to a subordinate, as long as On July 17, 1998, Mullin directed Smith to report for duty

“the assignment did not result in mail being delayed, if it did the following Monday, which was one of Smith’s scheduled

not violate the terms of the union contract, if it did not cause days off. “[E]xhausted and in constant pain,” Smith resigned

an increase in work hours and if it did not cause her position. (J.A. 10.) She applied for and was granted a

Elizabethtown to incur unnecessary overtime.” (J.A. 48-9.) disability retirement based on her physician’s statement that

Mullin did not permit Smith to delegate these duties because she could not hold a full-time job.

Smith’s mail production numbers were down, while the costs

were up. Smith has acknowledged that production was down Procedural History

on Tour I because she was pulling a subordinate from the

production line to perform the accounting work. On June 5, 2000, Smith filed a complaint in the United

States Bankruptcy Court for the Western District of Kentucky

Smith next alleges that Mullin verbally berated her in front against the United States Postal Service. The case

of subordinates, calling her “incompetent” on at least one subsequently was transferred to the U.S. District Court.

occasion. (J.A. 9, 105-06.) Smith also points to deposition Smith’s complaint alleged the following claims: (1) failure

testimony of a USPS employee who stated that Mullin would to reasonably accommodate her “medical limitations” as

publicly point out “every picky little thing he could possibly required by the Rehabilitation Act of 1973, 29 U.S.C. § 791,

find” about Smith’s job performance. (J.A. 102-03.) Mullin et seq.; (2) sex discrimination under Title VII of the Civil

has not denied that he called Smith incompetent, but he does Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.,

indicate that he held Smith accountable for doing her job, because she was required to perform duties not required of

including with respect to the mistakes in her bookkeeping similarly situated male employees; (3) violation of the Equal

duties. Pay Act, 29 U.S.C. § 206(d), because Smith was required to

perform “duties in excess of the number of hours allocated

On May 3, 1998, Smith wrote Mullin a letter complaining therefor”; and (4) age discrimination in violation of the Age

about (a) the fact that she needed either Mullin’s or Conklin’s Discrimination in Employment Act of 1967, 29 U.S.C. § 621,

authorization for her requests for overtime, allegedly resulting et seq.

in reduced staffing for Tour I; (b) harassment by Conklin,

including his alleged mocking of her hand movements and On November 30, 2001, the USPS moved for summary

statements about her standing with her hands in her pockets; judgment on Smith’s complaint, and the district court granted

and (c) being disparately treated in not being permitted to USPS’s motion on August 1, 2002. In its memorandum

delegate some of her job duties, as Conklin had been opinion, the court ruled that Smith could not state a prima

permitted when he was the Tour I Supervisor. Mullin facie case for her discrimination claims under Title VII, the

allegedly responded to Smith’s letter by telling her that she ADEA and the Rehabilitation Act because she did not suffer

was “now in a man’s world” and accusing her of “always an adverse employment action. The court rejected Smith’s

whining.” (J.A. 9-10.) argument that her voluntary resignation was a constructive

discharge. The court reasoned that the alleged conduct by the

Finally, Smith complains that Mullin directed her to USPS was not “‘so intolerable that a reasonable person would

underreport the hours she worked. Mullin denies this feel compelled to resign.’” Smith v. Henderson, No. 3:00CV-

allegation, claiming that such a direction would have violated 515-S, slip op. at 4 (W.D. Ky. Aug. 1, 2002) (quoting Turner

USPS policy. v. Pendenis Club, 19 S.W.3d 117, 121 (Ky. Ct. App. 2000)

No. 02-6073 Smith v. Henderson 7 8 Smith v. Henderson No. 02-6073

(citing Darnell v. Campbell Cty. Fiscal Ct., 731 F. Supp. 2. Remaining Employment Discrimination Claims

1309 (E.D. Ky. 1990)). In support of her Equal Pay Act

claim, Smith had argued that although her salary had been the Like the district court below, both Smith and the USPS

same as her male counterparts, she was required to work have limited their legal argument as to the viability of Smith’s

longer hours and thus was effectively paid less for the same age, sex and disability claims to the issue of whether Smith

job. The court rejected this argument because Smith actually was constructively discharged. Accordingly, this Court has

was complaining of the same wages for different work, a limited its analysis to whether summary judgment was

claim which is not colorable under the Equal Pay Act. Smith warranted solely on the ground that Smith did not suffer an

filed her notice of appeal on August 29, 2002. adverse employment action in the form of a constructive

discharge.

II

The existence of a constructive discharge “depends upon

A. Standard of Review the facts of each case and requires an inquiry into the intent of

the employer and the reasonably foreseeable impact of the

The Court reviews a district court’s grant of summary employer’s conduct upon the employee.” Held v. Gulf Oil

judgment de novo, and affirms such a judgment only if there Co., 684 F.2d 427, 432 (6th Cir. 1982). A constructive

is no genuine issue of material fact and the movant is entitled discharge requires a determination that “‘working conditions

to judgment as a matter of law. Cotter v. Ajilon Serv., Inc., would have been so difficult or unpleasant that a reasonable

287 F.3d 593, 597 (6th Cir. 2002). “The Court should believe person in the employee’s shoes would have felt compelled to

the evidence presented by the nonmovant, and draw all resign.’” Id. (quoting Bourque v. Powell Elec. Mfg., 617 F.2d

justifiable inferences in [her] favor.” Id. (citing Plant v. 61, 65 (5th Cir. 1980)). See also Policastro v. Northwest

Morton Int’l, Inc., 212 F.3d 929, 933-34 (6th Cir. 2000)). Airlines, Inc., 297 F.3d 535, 539 (6th Cir. 2002) (conditions

supporting a constructive discharge “must be objectively

B. Analysis intolerable to a reasonable person”) (citations omitted).

1. Equal Pay Act Claim Smith points to the following facts in support of her

constructive discharge claim: (1) Conklin, a supervisor like

Smith has presented absolutely no argument on appeal Smith, unilaterally altered the work schedules Smith had

regarding the district court’s dismissal of her Equal Pay Act prepared for her employees; (2) Mullin, Smith’s direct

claim. Accordingly, she has waived her right to challenge the supervisor, refused to authorize Smith to approve overtime for

district court’s grant of summary judgment for the USPS on her employees, which Smith claims was necessary to manage

that claim. See Smoot v. United Transp. Union, 246 F.3d 633, the Tour I workload; (3) Mullin refused to permit Smith to

647 (6th Cir.2001) (“This Court deems issues presented in a delegate the duty of facility-wide financial accounting to a

perfunctory manner on appeal to have been waived.”). subordinate employee, as he had permitted other Tour I

Supervisors to do, resulting in her working between 10 and 12

hours a day, in contravention of her medical restrictions; (4)

Mullin criticized Smith in front of subordinates, calling her

“incompetent” on at least one occasion; (5) Mullin called

Smith a whiner after she had complained in writing about

No. 02-6073 Smith v. Henderson 9 10 Smith v. Henderson No. 02-6073

Mullin’s failure to authorize overtime for her employees, § 791(g) (providing that complaints of nonaffirmative action

statements by Conklin that she perceived as “mocking,” and disability discrimination under the Rehabilitation Act are

not being permitted to delegate some of her job duties to governed by the standards under Title I of the ADA); 39

subordinates; and (6) Mullin allegedly directed Smith to C.F.R. § 255.5 (USPS Rehabilitation Act regulation that

underreport the hours she had worked. adopts by reference the EEOC’s ADA regulations set forth at

29 C.F.R. part 1614); 29 C.F.R. § 1614.203(b) (EEOC

The above-described actions involve the manner in which regulation providing that the Rehabilitation Act standards are

the USPS supervised and/or criticized Smith’s job the same as the ADA standards set forth at 29 CFR part

performance and assigned job duties to her, actions which 1630). Under these regulations, it would have been unlawful

normally are insufficient to establish a constructive discharge for the USPS not to make reasonable accommodation to

as a matter of law. E.g., Policastro, 297 F.3d at 539 (holding Smith’s known physical limitations, unless the

that employee was not constructively discharged where the accommodation would have imposed “an undue hardship on

only aspect of her job that changed was that she would have the operation of its business.” 29 C.F.R. § 1630.9(a). A

to travel more frequently); see also Tidwell v. Meyer’s reasonable accommodation means, among other things,

Bakeries, Inc., 93 F.3d 490, 496 (8th Cir. 1996) “[m]odifications or adjustments … to the manner or

(“Dissatisfaction with a work assignment is, as a matter of circumstances under which the position held or desired is

law, normally not so intolerable as to be a basis for customarily performed.” Id. § 1630.2(o)(ii).

constructive discharge.”) (citing Carter v. Ball, 33 F.3d 450,

459 (4th Cir. 1994) (“Dissatisfaction with work assignments, Smith was entitled to a reasonable accommodation at the

a feeling of being unfairly criticized, or difficult or unpleasant USPS so long as she was a “qualified” individual with a

working conditions are not so intolerable as to compel a disability, meaning that the modifications and adjustments

reasonable person to resign.”)); King v. AC & R Advertising, she sought would have enabled her to perform the “essential

65 F.3d 764, 768-69 (9th Cir. 1995) (finding no constructive functions” of the Tour I Supervisor job. Id.; see also id.

discharge where the plaintiff’s employment status was § 1630.2(m); 39 C.F.R. § 255.5. The essential functions

changed from “for cause” to “at-will”; plaintiff’s managerial means the “fundamental job duties” of the position, not

responsibilities were reduced; and his base salary was “marginal functions.” Id. § 1630.2(n).

reduced). But this case is not the typical constructive

discharge case. Smith is alleging that the USPS failed to The USPS has conceded that Smith, who suffers from

reasonably accommodate her disability as required by the rheumatoid arthritis, is disabled and that it provided her a

Rehabilitation Act and that the failure-to-accommodate reasonable accommodation in 1997 so that she could perform

precipitated her involuntary resignation. Thus, the central her non-management position as a distribution clerk. See J.A.

issue is whether the USPS’s alleged rescission of, or refusal 42, Mem. in Support of Motion for Summary Judgment at 9

to provide, a reasonable accommodation converted her (“The record demonstrates and the Postal Service

resignation into a constructive discharge. acknowledges that plaintiff is a person with a disability, and

that the disability was accommodated given the restrictions

The EEOC’s regulations pursuant to Title I of the that were in place for plaintiff since 1997.”). That

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 accommodation limited her work to no more than eight hours

et seq., set forth the relevant legal standards for a per day, 40 hours per week. It can be inferred from the record

Rehabilitation Act claim against the USPS. See 29 U.S.C. that the Tour I Supervisor position that Smith assumed in

No. 02-6073 Smith v. Henderson 11 12 Smith v. Henderson No. 02-6073

1998 generally demanded more than 40 hours of work per would no longer apply to her job as a Tour I Supervisor.

week due in part to the accounting responsibilities. Further, Further, Smith’s predecessor in the Tour I Supervisor job has

if this Court assumes the truth of Smith’s deposition stated that the accounting duties would take him anywhere

testimony (as it must in this context), a reasonable jury could from 45 minutes to three hours a day, suggesting that a

infer that, after Smith became Tour I Supervisor, Mullin delegation of these duties would have substantially shortened

rescinded the hours-of-work accommodation that she had Smith’s day. Taken together, these facts create a genuine

enjoyed as a distribution clerk and/or refused to extend this issue of material fact as to whether the May 3, 1998 letter,

accommodation to her new job. See J.A. 148 (Smith’s which sought to delegate the accounting duties, was a request

deposition testimony; testifying that Mullin reminded her for a reasonable accommodation that triggered the USPS’s

numerous times after she became a supervisor that she “was obligation to participate, in good faith, in an “interactive

an exempt employee and [she] could work over 40 hours and process” with Smith as to potential reasonable

[her] medical restrictions didn’t apply because [she] was an accommodations. 29 C.F.R. § 1630.02(o)(3); Brown v. Chase

exempt employee”) (emphasis added). Brass & Copper Co., Inc., 14 Fed. Appx. 482, 487 n.2 (6th

Cir. 2001) (“If an employer's unwillingness to engage in such

Additionally, it can be inferred from the record that, after a process leads to a failure to reasonably accommodate an

Mullin refused to honor the hours-of-work accommodation, employee, the employer might be liable under the ADA.”)

he subsequently denied Smith another form of (citing Beck v. University of Wis. Bd. of Regents, 75 F.3d

accommodation that effectively would have reduced her work 1130, 1135 (7th Cir.1996)). According to Smith, Mullin

hours in the Tour I Supervisor position. Via a letter dated rejected her proposed accommodation, telling her that she was

May 3, 1998, Smith asked Mullin if she could delegate her “now in a man’s world” and accusing her of “always

financial accounting duties to a subordinate, as other Tour I whining.” Thus, if a jury were to find that Smith’s May 3,

Supervisors had done in the past. Since it is undisputed that 1998, letter constituted a request for a reasonable

the accounting duties were time-consuming and Mullin was accommodation, there appears to be little dispute that the

aware of Smith’s disability and her need to work restricted USPS flatly denied that request.

hours, a factfinder could infer that Smith’s letter constituted

a request for an accommodation that would have substantially The USPS argues that Smith waived her right to request a

shortened her work day, in line with her medical restrictions. delegation-of-accounting-duties accommodation because “she

was told before she assumed the duties she would not be

Such an inference would be reasonable even though allowed to delegate [the financial accounting duties].”

Smith’s letter did not use the word “accommodation” or Appellee’s Br. at 26. The USPS, however, fails to cite to any

specifically mention that she was seeking to delegate the record evidence in support of this assertion. In any event, a

accounting function because of her disability. The context in qualified individual with a disability does not waive her right

which the letter was written permits an inference that Mullin to an accommodation in the form of a modification of job

knew or should have known that Smith sought to delegate her duties simply by being apprised of the job duties before she

accounting duties in order to make her job conform with her commences work. If this were the rule of law, it is difficult

medical restrictions. Mullin was well aware of Smith’s to see how a disabled individual ever would be entitled to a

disability and her need for a medical restriction on her hours reasonable accommodation, since people usually are aware of

of work when she was a distribution clerk. As previously what their duties will be before they start a new job.

noted, Mullin told Smith that her medical accommodation

No. 02-6073 Smith v. Henderson 13 14 Smith v. Henderson No. 02-6073

Given the precedent of prior Tour I Supervisors delegating when the USPS had permitted other Tour I Supervisors to use

the accounting function to subordinate employees (including subordinate employees for the accounting function.

to Smith before she was promoted), there also is a genuine

issue of material fact as to whether the accounting duty was The USPS further argues that Smith was not permitted to

an essential function of the Tour I Supervisor position. As a delegate the accounting function because she did not know

non-essential function, the accounting duty potentially could how to do it correctly. See Appellee’s Br. at 26-27 (“It was

have been reassigned to subordinate employees as a not unreasonable to … not allow her to delegate the

“reasonable” accommodation of Smith’s disability. See 29 accounting until she, like Conklin [the former Tour I

C.F.R. § 1630.2(o)(3) (noting that “[j]ob restructuring” may Supervisor], knew how to correctly perform it.”). But the fact

be a reasonable accommodation”); Id. Part 1630, App. that Smith could not adequately perform a marginal job

(Interpretive Guidance on Title I of the ADA) (“An employer function suggests that it would have benefitted the USPS to

or other covered entity may restructure a job by reallocating assign that function to another employee. Ironically, the

or redistributing nonessential, marginal job functions.…An USPS’s argument tends to show that the accommodation

employer or other covered entity is not required to reallocate Smith requested was reasonable.

essential functions.”).

The USPS also has presented no evidence regarding other

And if a factfinder reasonably could infer that the factors relevant to the “undue hardship” defense, such as the

accounting duty was a non-essential job function that could overall financial resources of the Elizabethtown Post Office,

have been reassigned, there also is a genuine issue of material the overall financial resources of the USPS, and the impact on

fact as to whether this accommodation would have imposed the Elizabethtown Post Office’s ability to conduct business.

an “undue hardship” on the USPS, a circumstance that would 29 C.F.R. § 1630.2(p)(ii), (iii),(v). On the facts of this case,

have justified the USPS’s denial of that accommodation. 29 we believe that a jury is in the best position to weigh these

C.F.R. § 1630.9(a). The USPS bears the burden of providing factors.

undue hardship,2 but it has not set forth specific facts

indisputably demonstrating that such an accommodation To summarize, prior to Smith’s promotion to Tour I

would have resulted in “significant difficulty or expense.” 29 Supervisor, the USPS was aware of Smith’s disability and her

C.F.R. § 1630.2(p). Mullin states generally that he did not medical need to avoid working overtime so as not to

want Smith to delegate her accounting duties because exacerbate her rheumatoid arthritis. The USPS had granted

“production was down and costs were up” due to Smith’s use her an accommodation that limited her work as a distribution

of clerks to perform the accounting. But it is not clear from clerk to no more than eight hours per day, 40 hours per week.

the record that the lower production and increased costs After Smith’s promotion, however, the USPS refused to apply

amounted to significant difficulty or expense, especially the restricted hours accommodation to her new position.

There also is a genuine issue of material fact as to whether

Smith requested, and was denied, an alternative

accommodation in the form of being permitted to delegate the

accounting duties of her supervisory position to a subordinate.

2

See Smith v. Ameritech, 129 F.3d 857 , 866 (6th Cir. 1997) (noting This form of accommodation would have shortened Smith’s

that the employer bears the burden of proving undue hardship) (citing work hours to better conform with her medical restrictions.

Mo nette v. Electronic Data Sys. Corp., 90 F.3d 117 3, 1183 (6th Cir. In addition, there is a genuine issue of material fact as to

199 6)).

No. 02-6073 Smith v. Henderson 15 16 Smith v. Henderson No. 02-6073

whether the two accommodations Smith sought (restricted the employee to get to work”). The district court erred in

hours and/or delegated accounting duties) would have ruling, as a matter of law, that Smith had not suffered a

constituted “reasonable” accommodations under the constructive discharge.

Rehabilitation Act, or would have posed an undue hardship to

the USPS. The fact that the USPS had permitted Smith’s We do not believe that Smith’s situation is comparable to

predecessor in the supervisor position to delegate the that of employees who prematurely quit their jobs in

accounting duties suggests that these duties were non- apprehension that their situations would not improve. See,

essential job functions that could have been delegated without e.g., EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 441 (7th

posing such a hardship. Cir. 2000) (affirming summary judgment on constructive

discharge claim premised on failure to accommodate

Assuming that Smith was denied a reasonable disability; holding that quitting was not the only option

accommodation that forced her to work well in excess of her available to the plaintiff because she could have discussed the

medical restrictions, a jury reasonably could infer that the need for accommodations with her supervisor). Those cases

USPS (through Mullin) knew that Smith’s working conditions do not involve an individual like Smith, who allegedly was

would become intolerable to a reasonable person suffering worked to exhaustion and poor health by an employer who

from her particular disability. As noted, Mullin rescinded was aware of the individual’s disability, but nevertheless

and/or refused to honor Smith’s hours-of-work refused to honor a reasonable accommodation, and denied

accommodation that had been in place since 1997, denied another, that would have precluded such an overwhelming

Smith the reasonable accommodation of delegating her non- workload.

essential accounting duties, and forced her to work long

stretches of over-forty-hour weeks with few or no days off, We also do not believe that Smith had an affirmative duty

resulting in the foreseeable consequence that Smith’s health under the Rehabilitation Act to request her old job back as a

would markedly deteriorate. Thus, a reasonable jury could distribution clerk (along with the hours restriction that

conclude that the USPS knowingly and deliberately “turned accompanied it) once she realized that she could not work the

its back” on Smith and, therefore, the USPS could foresee that hours of a Tour I Supervisor. In many situations, such as the

Smith would be compelled to quit her job in order to preserve instant case, the duty to request one’s former job back would

her health. Cf. Johnson v. Shalala, 991 F.2d 126, 132 (4th immunize the employer’s failure to abide by its legal

Cir. 1993) (holding that an employee who was provided obligation to provide a reasonable accommodation. The

some, but not all, of the reasonable accommodations she purpose of statutes like the Rehabilitation Act and the ADA

requested, could not quit and sue her employer under a is to prevent employers from discriminating “based on

constructive discharge theory, but recognizing “that a characteristics that are beyond the control of such individuals

complete failure to accommodate, in the face of repeated and resulting from stereotypic assumptions not truly

requests, might suffice as evidence to show the deliberateness indicative of the individual ability of such individuals to

necessary for constructive discharge”); Hurley-Bardige v. participate in, and contribute to, society.” 42 U.S.C.

Brown, 900 F. Supp. 567, 573 n.7 (D. Mass. 1995) (noting § 12101(a)(7). Requiring a disabled employee to relinquish

that a failure to provide a reasonable accommodation could a promotion because an employer refuses to comply with the

result in a constructive discharge when, for example, an law by looking beyond the disability and providing a

employer “refuse[s] to build a ramp or elevator for an reasonable accommodation would flout this fundamental

employee confined to a wheelchair, making it impossible for goal.

No. 02-6073 Smith v. Henderson 17

The Court also finds our Circuit’s prior decision in Johnson

v. City of Saline, 151 F.3d 564 (6th Cir. 1998), to be

instructive. There, this Court rejected the argument that a

disabled plaintiff, who allegedly had been denied a reasonable

accommodation, could not sue the City of Saline for

compensatory damages on the ground that the Plaintiff

“himself chose to violate his medical restrictions” after being

denied the requested accommodation. Id. at 573. The Court

held that “the doctrine of avoidable consequences does not

apply to intentional or continuous torts to which the city’s

actions [denying a reasonable accommodation] appear

analogous.” Id. 573-74 (citations omitted). If a disabled

individual can recover damages even though he chooses to

work beyond his medical restrictions after being denied a

reasonable accommodation, it necessarily follows that such an

individual can impose liability on a covered entity in this

circumstance. Thus, in this case, Smith was not required to

request her old job back after being denied accommodations

that possibly would have enabled her to perform the Tour I

Supervisor job, even though by failing to make this request

she knowingly (but not willingly) worked beyond her medical

restrictions, thereby hastening her physical deterioration.3

III.

For the foregoing reasons, the district court erred in

granting summary judgment for the United States Postal

Service on Smith’s claims for sex, age and disability

discrimination, but not with respect to her claim under the

Equal Pay Act. The district court’s summary judgment order

is AFFIRMED, in part, REVERSED, in part, and the case

is REMANDED for proceedings consistent with this opinion.

3

In any event, it is not clear from the record below whether Sm ith

could have asked for her old job back because there is no indication that

her former position was available.