Petition for Writ of Certiorari — Pueschel v. Slater

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OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

DEBORAH KATZ PUESCHEL,

Petitioner,

RODNEY E. SLATER, SECRETARY,

U.S. DEPARTMENT OF TRANSPORTATION,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

GEORGE M. CHUZI

(Counsel of Record)

KALIJARVI, CHUZI & NEWMAN, P.C.

1730 K Street, N.W.

Suite 1011

Washington, DC 20006

(202) 331-9260

Counsel for Petitioner

WILSON - Epgs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

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QUESTIONS PRESENTED

1. Whether, in light of this Court’s pending decision in

Cleveland v. Policy Management Systems Corp., et al.

(No. 97-1008), the court of appeals’ holding that peti-

tioner is not entitled to accommodation under the Re-

habilitation Act, 29 U.S.C. § 791 et seq., because she had

claimed she was disabled and applied for disability bene-

fits under the Federal Employees’ Compensation Act, 5

U.S.C. § 8101 et seq., should be reversed and remanded?

2. Whether, in light of this Court’s pending decision in

Cleveland v. Policy Management Systems Corp., et al.

(No. 97-1008), the court of appeals’ holding that peti-

tioner is not “otherwise qualified for employement” under

the Rehabilitation Act because of statements she made re-

garding her disability, should be reversed and remanded?

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED . 000.0000.

TABLE OF AUTHORITIES ..

OPINIONS BELOW ctjuniersetienciininnibe-<

JURISDICTIONAL STATEMENT ... sent ~

STATEMENT OF THE CASE ......

REASONS FOR GRANTING THE WRIT...

I, THE COURT OF APPEALS’ HOLDING THAT

PETITIONER IS NOT “OTHERWISE QUALI-

FIED” BECAUSE SHE IS DISABLED IS

CONTROLLED BY THIS COURT’S PENDING

DECISION IN CLEVELAND »v. POLICY

MANAGEMENT SYSTEMS CORP.............

II. PETITIONER’S ASSERTION IN APRIL 1994

THAT SHE WAS TOTALLY DISABLED IS

NOT DISPOSITIVE OF HER CLAIM THAT

SHE IS A “QUALIFIED INDIVIDUAL WITH

A DISABILITY” UNDER THE REHABILI-

TATION ACT AND THEREFORE ENTITLED

TO REASONABLE ACCOMMODATION OF

IE III iciescstcntevsisecneowvontesnonasenciutienne

(iii)

Page

TABLE OF AUTHORITIES

Cases Page

Cleveland v. Policy Management Systems Corp.

£8 Be * pete inersnaee ene ne eon ee 7

Johnson v. Oregon, 141 F.3d 1210 (9th Cir. 1998) .. 7

Katz v. Dole, 709 F.2d 251 (4th Cir. 1983) _............ 3

Rascon v. US West Communications, Inc., 143

F.8d 1824 (10th Cir. 1998) .....................2..00.00- 7

Weigel v. Target Stores, 122 F.3d 461 (7th Cir.

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Regulations

29 C.F.R. § 1614.208 (g) (1994) -.........2 eee eeeeeeeeeeee 10

Statutes

Be ees I II -ccscintosiscshsniiincstcaabeciinisiccithlaasiiapaieastibininiintiibiaaiiaies 8

IN THE

Supreme Court of the United States

No.

DEBORAH KATZ PUESCHEL,

¥ Petitioner,

RODNEY E. SLATER, SECRETARY,

U.S. DEPARTMENT OF TRANSPORTATION,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Deborah Katz Pueschel, respectfully requests

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Fourth Circuit entered in this proceeding on February 18,

1999.

OPINIONS BELOW

The opinion of the Court of Appeals ( Appendix A)

is unreported. The decision of the district court (Ap-

pendix B), issued from the bench, also is unreported.

JURISDICTIONAL STATEMENT

The judgment of the court of appeals was entered on

February 18, 1999. The jurisdiction of the Court is in-

voked pursuant to 28 U.S.C. § 1254(1).

STATUTES AND REGULATIONS INVOLVED

Section 501(b) of the Rehabilitation Act of 1973, as

amended, 29 U.S.C. 791(b), provides in pertinent part:

Each department, agency, and instrumentality .. .

in the executive branch shall . . . submit to the Of-

fice of Personnel Management and to the Committee

an affirmative action program plan for the hiring,

placement, and advancement of individuals with han-

dicaps in such department, agency, or instrumental-

ity. Such plan shall include a description of the ex-

tent to which and methods whereby the special needs

of handicappd employees are being met... .

Regulations of the Equal Employment Opportunity

Commission, 29 C.F.R. § 1614.203 (1994), provide in

pertinent part:

(a)(6) “Qualified individual with handicaps” means

with respect to employment, a handicapped person

who, with or without reasonable accommodation,

can perform the essential functions of the position in

question without endangering the health and safety

of the individual or others and who, depending upon

the type of appointing authority being used:

(i) Meets the experience and/or education re-

quirements (which may include passing a writ-

ten test) of the position in question, or

(ii) meets the criteria for appointment under

one of the special appointing authorities for in-

dividuals with handicaps.

* * * *

(g) Reassignment. When a non-probationary em-

ployee becomes unable the essential functions of her

position even with reasonable accommodation due

to a handicap, an agency shall offer to reassign the

individual to a funded vacant position located in the

same commuting area and serviced by the same ap-

pointing authority, and at the same grade or level,

the essential functions of which the individual would

be able to perform with reasonable accommodation

if necessary unless the agency can demonstrate that

the reassignment would impose an undue hardship

on the operation of its program. In the absence of

a position at the same grade or level, an offer of re-

assignment to a vacant position at the highest avail-

able grade or level below the employee’s current

grade or level shall be required, but availability of

such a vacancy shall not affect the employee’s en-

titlement, if any, to disability retirement pursuant to

5 U.S.C. § 8337 or 5 U.S.C. § 8451....

STATEMENT OF THE CASE

At all times relevant to this case, petitioner was an Air

Traffic Controller at the Washington Air Route Traffic

Control Center, in Leesburg, Virginia, outside Washing-

ton, D.C. Petitioner’s employer was the Federal Aviation

Administration (FAA), an agency of the United States

Government.

Petitioner was one of the first female Air Traffic Con-

trollers at Leesburg. In 1979, she alleged that she had

been the victim of a sustained pattern of sexual harass-

ment by her male supervisors and colleagues. The United

States Court of Appeals upheld her claim, holding that

the sexually abusive language to which petitioner repeat-

edly had been subjected constituted a sexually hostile

working environment. Katz v. Dole, 709 F.2d 251 (4th

Cir. 1983).

’ The period following the court of appeals’ decision was

marked by continued hostility directed against petitioner

at Leesburg, and she began to suffer physically. Over the

years, petitioner has been diagnosed with asthma, sarcoi-

dosis, pitting edema, and fibromyalgia. She nevertheless

continued to work and uniformly received fully satisfac-

tory performance evaluations.

In 1991, petitioner began to suffer from fatigue and

edema; at the advice of the Mayo Clinic she consulted

with an internist, who prescribed a fixed shift, 6 a.m. to

4 p.m. The FAA approved that shift, and petitioner re-

mained on it through April 1994.

In late 1993, petitioner’s supervisors and colleagues

decided that her shift would be changed in two significant

ways. First, instead of 6 a.m. to 4 p.m., her shift would

be 8 a.m. to 6 p.m. This would have the effect of increas-

ing the periods of heavy traffic for which petitioner would

be responsible; the resulting increased stress on her was

inconsistent with her treatment. The second change was

to impose a Monday through Friday work week on peti-

tioner, rather than the Wednesday through Sunday week

she had previously been granted. Because traffic in the

Washington area is lighter on weekends, this change

would also have the effect of increasing traffic and stress.

Petitioner appealed to the FAA to allow her to retain

the shift which enabled her to work, but the FAA refused.

Faced with the prospect of having to work at a shift her

doctors had told her would not be good for her, on April

5, 1994 petitioner broke down and left the facility. She

subsequently presented the FAA with an April 6, 1994

note from her doctor that said, “Due to physical and

mental problems at the patient’s employment, she is not

-— According to the court of appeals, petitioner suffered a “stress-

related episode”, which required her to leave work. App. A at 2a.

eS)

snegent for any work at, this time and until further no-

’. App. G at 34a, In November 1995, petitioner’s doc-

- modified his recommendation to state that petitioner

was “disqualified . . . for an.active position as an air

traffic controller”. Id. at 32a, In June 1997, when deposed

in connection with this case, petitioner’s doctor. testified

that petitioner was “capable of administrative work in any

capacity”. App. E at 31a.

Petitioner timely initiated an administrative complaint

of discrimination in which she claimed, inter alia, that the

FAA violated her rights under the Rehabilitation Act by

failing to continue her special shift as an accommodation

of her disabilities. When the FAA rejected the elaine

petitioner initiated the instant action. 3

The district court granted summary judgment for re-

spondent. With respect to petitioner’s claim under the

Rehabilitation Act, the district court held that petitioner

“was not qualified for the position” based upon her doc-

tor’s statement in April 1994. App. B at 17a. The

court noted that petitioner had filed a claim for disability

benefits with the OWCP, and cited the apparent contra-

diction between her claim that she was disabled and her

assertion under the Rehabilitation Act that she could work

with accommodation, admonishing that “she can’t have it

both ways. That’s not right”. Id. |

2 Petitioner did not return to work under the conditions imposed

upon her by the FAA, and she filed a claim for disability compen-

sation with the federal Office of Worker Compensation Programs

(OWCP), U.S. Department of Labor. On September 23, 1998,

OWCP ruled that petitioner’s absence from work after April 5,

1994 was due to disability caused by her employment. App. D

at 27a.

3 Petitioner initially filed this action in the United States Dis-

trict Court for the District of Columbia. That court transferred

to the case to the Eastern District of Virginia in 1997.

With respect to the change in petitioner’s shift imposed

by the FAA, the district court found that the new shift

was “reasonable”. Jd. at 17a. While citing the testimony

of one of petitioner’s doctors that the two-hour difference

in the shift appeared inconsequential, the district court

ignored the testimony of petitioner’s other doctor that pe-

titioner’s fibromyalgia “is worse with stress . . . [and] any-

thing that increased stress would be more hazardous.”

App. E at 30a.

Petitioner appealed the grant of summary judgment to

the Fourth Circuit, which affirmed the district court. With

respect to petitioner’s Rehabilitation Act claim, the court

of appeals held as follows:

It is uncontradicted that Pueschel’s physician wrote

on April 6, 1994 that until further notice, Pueschel’s

medical condition precluded her from working. Pue-

schel has not worked for the FAA since April 5,

1994, and has not provided the FAA with notice of

her availability to work. The evidence establishes

that at the time Pueschel brought the action and

throughout the litigation, her illness precluded her

from working as an Air Traftic Controller. Conse-

quently, the Rehabilitation Act imposes no liability

on the Department of Transportation. In short, she

is not “otherwise qualified for employment.” DOE

v. Univ. of MD. Med. Sys. Corp., 50 F.3d 1261,

1265 (4th Cir. 1995); 29 C.F.R. § 1614.203(a)

(6).

App. A at Sa.

Petitioner has timely petitioned for a writ of certiorari.

REASONS FOR GRANTING THE WRIT

I. THE COURT OF APPEALS’ HOLDING THAT PE-

TITIONER IS NOT “OTHERWISE QUALIFIED”

BECAUSE SHE IS DISABLED IS CONTROLLED

BY THIS COURT’S PENDING DECISION IN

CLEVELAND v. POLICY. MANAGEMENT SYS-

TEMS CORP.

The court of appeals held that petitioner is not entitled

to the protections of the Rehabi.tation Act because “her

illness precluded her from working as an air traffic con-

troller”. App. A at 5a. The: validity of that holding will

be controlled by the Court’s pending decision in Cleveland

v. Policy Management Systems Corp. (No. 97-1008),

which has been argued but not yet issued as of the date

of this Petition.

The first question in Cleveland is whether an employ-

ee’s application for disability benefits under the Social

Security Act creates a rebuttable presumption that the

employee is judicially estopped from claiming that she is

a “qualified individual with a disability” under the Amer-

icans with Disabilities Act.*

The majority of courts of appeals have rejected the

presumption that an employee’s assertion of a disability

‘under a benefits statute estops her from simultaneously

claiming the protection of the ADA. See, e.g., Rascon v.

US West Communications, Inc., 143 F.3d 1324, 1330-32

(10th Cir. 1998); Johnson v. Oregon, 141 F.3d 1210,

1212 (9th Cir. 1998). These courts have recognized that

the standards utilized by employment and benefits statutes

4The second quesion in Cleveland, discussed infra, is, in the

event a presumption is not created, the weight (if any) to be given

to the employee’s statements on the application regarding her dis-

ability if she also claims to the employer that she is a “qualified

individual with a disability”.

are different, and findings under one are not conclusive

as to the other. See Weigel v. Target Stores, 122 F.3d

461, 468 (7th Cir. 1997) (claims for disability benefits

under SSA are not “conclusive as to the ADA” qualifica-

tion issue).

The identical reasoning applies in this case. The dis-

trict court found that petitioner could not be “qualified”

under the Rehabilitation Act because she had applied for

disability benefits with OWCP.® According to the district

court, petitioner “can’t have it both ways. That’s not

right.” App. B at 17a. The court of appeals did not

reject that finding.

In fact, petitioner is permitted to argue to the OWCP

that she is disabled because of factors related to her em-

ployment, while at the same time argue to her employer

that she can work if her disability is accommodated. In-

deed, the OWCP anticipated the argument and instructed

petitioner to ask respondent “whether light or limited duty

work is available” or “whether [her] usual job can be

changed to meet [her] work limitations due to the in-

jury”. App. C at 2la. Thus, not only is petitioner not

estopped from arguing that she is “otherwise qualified” to

perform her duties, she is required to seek accommoda-

tion in the form of a modification of her duties in order

to retain her eligibility for disability benefits.®

5 The Department of Labor’s OWCP administers the Federal

Employees’ Compensation Act, 5 U.S.C. § 8101 et seq. The pur-

pose of the Act is to provide for “compensation . .. for the dis-

ability or death of a [federal] employee resulting from personal

injury sustained while in the performance of his duty”. Id.

§ 8102(a).

6 Petitioner’s request that she be permitted to retain her special

shift in 1993 satisfied her obligation under both Acts. In any

event, respondent never offered petitioner any “light or limited

duty work”, or any work she could perform.

In the event the Court holds in Cleveland that an em-

ployee’s assertion of disability under a benefits statute

does not estop her from arguing to her employer that she

is capable of working with reasonable accommodation, the

decision below should be reversed and the case remanded

for further consideration.

II. PETITIONER’S ASSERTION IN APRIL 1994 THAT

SHE WAS TOTALLY DISABLED IS NOT DISPOSI-

TIVE OF HER CLAIM THAT SHE IS A “QUALI-

FIED INDIVIDUAL WITH A DISABLILTY” UN-

DER THE REHABILITATION ACT AND THERE-

FORE ENTITLED TO REASONABLE ACCOMMO-

DATION OF HER CONDITION.

It is undisputed that on April 5, 1994, when petitioner

learned that respondent was altering her shift in a man-

ner inconsistent with her doctors’ advice, petitioner suf-

fered a “stress-related episode”, App. A at 2a, and left

work. The next day, petitioner submitted a note from

her doctor stating that “due to physical and mental prob-

lems at her place of employment”, petitioner was not cap-

able of performing any work. App. G at 34a. Based on

this statement, both the district court, App. B at 17a, and

the court of appeals, App. A at 5a, held that petitioner

could not claim the protection of the Rehabilitation Act

because she is not “otherwise qualified” to work.

That holding will also be controlled by the pending

decision in Cleveland. The court of appeals’ decision in

Cleveland held that the employee’s statements in her ap-

plication that she was totally disabled were dispositive of

her subsequent assertion that she was qualified under the

ADA and capable of working. The validity of that hold-

ing is one of the questions to be decided in Cleveland.

For the same reasons that an employee’s application for

disability benefits cannot control her entitlement to relief

—

under the Rehabilitation Act or ADA, the employee’s

statements in support of her application cannot be dis-

positive of her status under those Acts.

This is particularly true in this case because the medi-

cal evidence cited by both the district court and the court

of appeals demonstrated that the Rehabilitation Act ap-

plied to petitioner. While it is true that in April 1994, pe-

titioner’s doctor advised respondent that petitioner could

not work at “any” job with respondent because of her

“physical and mental condition”, App. G at 34a, in No-

vember 1995, petitioner’s doctor advised respondent that

his limitation on petitioner’s employment then extended

only to her service in “an active position as an air traffic

controller”. Id. at 32a. Moreover, at his deposition in

June 1997, cited to the district court and the court of

appeals, the doctor testified in response to questioning by

respondent that petitioner was fully capable of working in

an administrative capacity. App. E at 31a.

The court of appeals erred when it relied on the doc-

tor’s assertion that petitioner could not work as an air

traffic controller as dispositive of her entitlement to the

protections of the Rehabilitation Act. The regulations of

the Equal Employment Opportunity Commission require

federal agencies to “offer to reassign” an employee to a

position she can perform if she “becomes unable to per-

form the essential functions of her position even with

reasonable accommodation”. 29 C.F.R. § 1614.203(g).?

It is hard to reconcile the court of appeals’ finding that

respondent cannot be liable under the Rehabilitation Act,

with respondent’s clear failure to comply with the Act’s

7 This requirement is fully consistent with OWCP’s requirement

that the employer of a disabled federal employee “consider light or

limited duty work”. App. C at 21a.

iia leillaniacllac

‘11

requirement that it attempt to reassign petitioner to a

position she could perform.

CONCLUSION

Petitioner requests that her petition for a writ of cer-

tiorari be granted.

Respectfully submitted,