USDOL/OALJ Reporter
CCASE_NAME:
OFCCP V. UNITED PARCEL SERVICS
CCASE_NO:
87-OFC-17
DDATE_ISSUED:
19890322
TTITLE:
RECOMMENDED DECISION AND ORDER
TTEXT:
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U.S. Department of Labor Office of Administrative Law Judge
Suite 201
55 West Queens Way
Hampton, Virginia 23669
804-722-0571
DATE: March 22, 1989
CASE NO.: 87-OFC-17
IN THE MATTER OF
OFFICE OF FEDERAL CONTRACT
COMPLIANCE PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR
PLAINTIFF
V.
UNITED PARCEL SERVICE, INC.
DEFENDANT
Glenn M. Embree, Esq.
For the Plaintiff
William H. Sturges, Esq.
For the Defendant
Before: Michael P. Lesniak
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding involves a claim by the Office of Federal
Contract Compliance Programs, Department of Labor (hereinafter
OFCCP) that the Defendant, United Parcel Service (hereinafter UPS),
failed to take affirmative action to employ and advance in employ-
ment Vickii D. Lumsden, a qualified handicapped individual in
violation of section 503 of the Rehabilitation Act of 1973 (the Act),
29 U.S.C. 793, and 41 C.F.R. 60-741.6.
A formal hearing was held in Charlotte, North Carolina on
September 12 and 13, 1988 at which all parties were afforded an
opportunity to present evidence and argument as provided in the Act
and the applicable regulations.
The findings and conclusions which follow are based upon a
complete review of the entire record in light of the arguments of
the parties, applicable statutory provisions, regulations and
pertinent precedent. 1/
1/ The following citations to the record are used herein:
GX - Government's Exhibit
DX - Defendant's Exhibit
TR - Transcript of the Hearing
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In its Answer and Defenses, UPS admitted: jurisdiction is con-
ferred by the Act; UPS is a New York Corporation and maintains a
place of business at Kannapolis, North Carolina; UPS has had one or
more contracts or aggregate bills of lading in excess of $2,500 with
the Federal Government; UPS is and was a Government Contractor with-
in the meaning of the Act and regulations thereunder; and at all
relevant times, UPS was subject to the contractual obligations imposed
on such Government Contractors and subcontractors by the Act and
regulations.
Issues
The issues before me are as follows:
1. Whether Vickii D. Lumsden was a qualified handicapped
individual as defined by 29 U.S.C. 706(7);
2. If Ms. Lumsden was a qualified handicapped individual,
whether UPS took affirmative action to employ her and
advance her in employment in accordance with the Act and
regulations, 29 U.S.C. 793;
3. Whether UPS terminated Ms. Lumsden because she was
handicapped; and
4. Whether this claim is barred by the statute of
limitations, laches, or accord and satisfaction?
Summary of the Facts
Ms. Vickii M. Lumsden was initially employed by the United Parcel
Service, Inc. (UPS) as a customer counter clerk on August 8, 1978.
(TR 47). Her duties as customer counter clerk were to accept pack-
ages weighing from one to seventy pounds presented to her for shipping
by customers, and to collect the charges for shipment. The customers
were to place the packages on a scale from which Ms. Lumsden would
record the weights and determine the shipping charges. She was then
responsible for lifting the packages off the scales and placing the
package onto a conveyor belt which was behind a set of doors
approximately head high. (TR 48-49; DX 37, pp. 36-37).
On or about May 5, 1983, Ms. Lumsden sought the advice of Dr.
Carl A. Furr concerning pain in her left lower abdomen, which he
could not explain. Ms. Lumsden again sought the advice of Dr. Furr
in November, 1983, and again in early January, 1984, still complaining
of pain and discomfort in her lower left abdomen. On January 23,
1984, Dr. Furr performed a laparoscopy, a diagnostic procedure
involving insertion of a pencil-shaped tube with a light on the end
of it ( laparoscope) through the navel to look inside the abdomen.
During the procedure Dr. Furr lysed several adhesions to the omentum
and to the vaginal cuff, but found nothing otherwise remarkable. Ms.
Lumsden was hospitalized for the surgical procedure from January
23 to January 27, 1984.
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Following her discharge, she was advised that she could return
to work in "four to six weeks post-operative" (TR 66), and this
information was written on the doctor's statement of the proof of
claim for disability benefits sent to UPS. At the end of the fourth
week, Ms. Lumsden received, along with her disability check, the
following note:
Before further checks for disability can be issued to you,
we must have an updated medical report from your doctor.
Please have the information placed on the doctor's letter-
head and signed by the doctor.
Upon receipt of this updated medical report, we will issue
further checks if necessary . . . . (GX 4, TR 71).
On February 27, 1984, Ms. Lumsden took the letter requesting an
updated medical report to Dr. Furr's office where she was directed
to Linda Bennett, Dr. Furr's patient representative. (TR 71, 73).
s. Lumsden gave Ms. Bennett the letter she had received from UPS
and told her that she was still having pains in her left lower abdo-
men. Ms. Bennett took the letter, pulled Ms. Lumsden's chart, and
upon seeing that she was authorized to be off from work "Four to
six weeks post-operative," typed on the doctor's letterhead, "Patient
may return to work on March 12, 1984 . . . ." and signed it with Dr.
Furr's stamp. (TR 23-31). Ms. Bennett noticed that Dr. Furr had
suggested that Ms. Lumsden should see Dr. Collins again if the pain
continued and therefore suggested to Ms. Lumsden that she go back to
see Dr. Collins. (TR 24, 29).
According, Ms. Lumsden left Dr. Furr's office and went to the
office of Doctors Collins and Lyles, where she saw Dr. Lyles. (TR 74).
Dr. Lyles examined her and suggested that she immediately admit her-
self to the hospital for exploratory surgery for possible hernia
repair. (TR 74). Ms. Lumsden, however, sought a second opinion from
a Dr. William Paxon Chalfant on February 28, 1984 and again on March
5, 1984. (TR 74). Dr. Chalfant's examination records reveal that she
had "pain in the left inguinal area which was radiating into the
inner thigh on the left." He diagnosed Ms. Lumsden as definitely
having a hernia and recommended surgery. (TR 75). On March 12, 1984,
s. Lumsden underwent another herniorrhaphy for a left femoral hernia.
As a result of this surgery, Ms. Lumsden was out of work for another
eight weeks. (TR 75).
On May 1, 1984, Dr. Chalfant wrote the following letter:
To Whom It May Concern:
Ms. Lumsden is a patient of mine. On March 12, 1984,
I performed a left femoral hernia repair for her. Ms.
Lumsden also had a hernia repair in 1981. I have advised
Ms. Lumsden to request a transfer in her work to an area
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where she will not be required to perform tasks that re-
quire heavy lifting. I hope you will honor this request
in the best interest of Ms. Lumsden's health. (TR 79; GX 5).
Subsequently, Ms. Lumsden made various attempts to comply with Dr.
Chalfant's recommendation and met with several UPS officers and/or
supervisors.
In early June, 1984, Ms. Lumsden was called by Don Michael, who
asked that she come to the Kannapolis Center, which she did on June
8, 1984. There Mr. Michael and Mr. Martin Taylor, UPS's safety
manager, showed her the disability forms that had been filled out
by Dr. Furr's patient representative, Linda Bennett, and told Ms.
Lumsden that she was being terminated because they thought she had
been dishonest in trying to get additional time off on February 27,
1984.
After Ms. Lumsden's termination she filed charges of discrimina-
tion with the Department of Labor on June 28, 1984 (GX 7) and with
the EEOC on October 18, 1984. (DX 27). In April, 1985 a settlement
was reached with Ms. Lumsden through the EEOC and UPS paid to her
$2,320.80. (DX 28). Thereafter, on July 2, 1985, the Department of
Labor administratively closed its file on Vickii Lumsden's complaint
and stated that her complaint had "been administratively closed
effective July 2, 1985, based on the settlement with the EEOC."
(DX 32). A year later on July 9, 1986, the Department of Labor
advised UPS that the case was no longer closed. (DX 21).
On May 7, 1987, the Administrative Complaint was filed in this
case. UPS responded to the complaint by denying the allegations of
discrimination and setting forth various defenses.
Evidence Presented at Trial
The Government called Linda Bennett who testified as follows.
Linda Bennett was employed by Cabarrus Clinic for Women, 1054
Burrage Road, North East, Concord, North Carolina, 28025, in Dr.
Furr's office as a patient representative. As such she scheduled
surgeries and she filled out disability forms. (TR 23). Bennett
indicting that she would be off for six weeks. (TR 24). In putting
down six weeks on the form, Bennett believed that Lumsden underwent
a laparotomy. So she made a mistake on the form. (TR 25). On this
occasion Bennett was filling in for the person that normally did the
disability forms. For a laparotomy, the patient is allowed six
weeks off from work and a shorter period for a laparoscopy. Thus,
Bennett believed the error was hers. (TR 26). This error was made
on January 31, 1984. When Lumsden returned on February 27, 1984,
Bennett gave Lumsden a letter repeating the same error. (TR 26).
(See also, DX 6 and 12). Dr. Furr did not see the note before
Linda Bennett gave it to Mrs. Lumsden; Bennett put Dr. Furr's
signature stamp on the note. (DX 6 and TR 37).
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Vickii Lumsden testified that her address is Route 5, Box 188,
Kannapolis, North Carolina, 28081 and her date of birth is April 26,
1948. She is a high school graduate and a licensed hair dresser.
She had been employed with UPS for a little over six years, beginning
August 8, 1978. (TR 47). She was hired by UPS to be a customer
counter clerk and over the six year period there were no signifi-
cant changes in her employment. Ms. Lumsden described her duties
as receiving packages from customers, determining the weight of the
package and the rate to ship the packages, collecting money and moving
the packages to the conveyor belt. (TR 48 and 49). The weight of the
packages ranged from one to seventy pounds. As an example, Ms. Lumsden
testified that one of the customers came in regularly shipping chem-
icals in a plastic container and they always weighed over 50 pounds.
He would ship as many as five at one time and he would come in a
couple of days a week. (TR 50). In terms of money, she would start
out with fifty dollars in cash in the register and a great deal of
money was handled. For example, during the Christmas holidays she
would have as much as ,800.00 in the register.
Lumsden worked Monday through Friday, not over five hours
per day. Usually her hours were between four and five hours a day
and she was paid $9.03 per hour. (TR 52). Aside from customer counter
clerk, Ms. Lumsden was cross trained as an address correction clerk.
(TR 53). The person in this position handled undeliverable packages
in an attempt to locate correct addresses. After correcting the
address on these packages, the address correction clerk had to
carry the packages to the conveyor belt which was about four or
five feet from her desk. (TR 57). The conveyor belt itself would
be shoulder height but Lumsden could climb up on the cement which
would make it easier to get to the conveyor belt. (TR 58).
Vickii Lumsden testified that she was terminated by UPS for dishonesty.
(TR 60; GX 3). Ms. Lumsden last worked for UPS January 20, 1984,
before the laparoscopy. (TR 62). For that procedure she went into
the hospital on a Monday and came home on a Friday. Prior to the
procedure she was experiencing chronic pain on her lower left side of
her abdomen. The laparoscopy was a diagnostic procedure to determine
the cause of her pain. After she was released from the hospital, Ms.
Lumsden was not given a specific data to go back to work. She was
told four to six weeks. (TR 65). Ms. Lumsden did not believe she had
a specific date to return to work as of February 13, 1984. (TR 68).
On February 27, 1984 she was still having pain and she required a
note from her doctor, issued by his office on his letterhead stating
that she needed additional time. So she went to Dr. Furr's office
and she was referred to Linda Bennett. (TR 69). She gave Linda
Bennett a document sent to her by UPS's Personnel Department. (GX
4). With regard to her conversation with Linda Bennett, Ms. Lumsden
gave Linda Bennett the note from UPS requesting an updated medical
report. (GX 4). Linda Bennett pulled out Ms. Lumsden's records and
gave her the updated medical report. (EX 6).
~6
When following up on Dr. Furr's suggestions, Lumsden saw a Dr.
Lyles (Dr. Collins repaired Ms. Lumsden's previous hernia but he was
not in the office on the day of her visit) who told her he wanted her
to go into the hospital and have exploratory surgery since another
hernia was suspected. (TR 74). Ms. Lumsden had just gone through
the laparoscopy and did not want more surgery but, in any event, went
to see Dr. Chalfant for a second opinion. Dr. Chalfant felt Ms.
Lumsden definitely had another hernia and suggested immediate repair.
(TR 75). She was out of work for eight weeks and she continued re-
ceiving disability checks from UPS and during her time off. Ms.
Lumsden went into the hospital for the hernia repair on March 12,
1984, was off work for eight weeks and received eight weeks pay.
(TR 76). She only received four weeks pay for the laparoscopy, not
six weeks. (TR 76, 228). Other members of her family have had hernias:
her father, her grandfather and two of her uncles. (TR 76).
In recounting her past hernias, Ms. Lumsden testified that she
had a hernia when she was six or seven years old, he second hernia
after she began work at UPS, approximately 1980 or 1981, and the March
12, 1984 repair would be her third hernia. (TR 77). When she was
released by Dr. Chalfant, he suggested that she be transferred to
light duty work considering her history of hernia repairs. (TR 78;
GX 5). Ms. Lumsden took Dr. Chalfant's letter to her Center Manager,
Don Michael. (TR 80). Don Michael told her that there were no jobs
available which were light duty. (TR 80). She then asked Mr. Michael
whether she could go to the Charlotte office and Mr. Michael told
her that he would speak to Personnel and see what he could do. (TR
81). The Charlotte office was the phone center and the work was
considered strictly office work. Vickii Lumsden was in touch with the
Personnel Manager, Dennis Obregon. She was unable to speak to
Obregon but she spoke to Bob Jones, a District Manager. He told
her that she would not be transferred to Charlotte. Since she never
received satisfaction from Bob Jones, she went to see Obregon on her
own, unannounced. (TR 86). Obregon told Lumsden that her chances
of transferring to the Charlotte office were as good as anyone else's.
(TR 87). He said the first step was a letter of intent to transfer.
However, Lumsden knew she couldn't go back to a lifting job at the
Kannapolis Center so Obregon suggested that she go on an inactive
status with the Company. (TR 89; GX 6 and 6A). 2/ Lumsden testified
2/ Vickii Lumsden wrote a letter to Dennis Obregon, dated May 18,
1984. (GX 6). In her letter, she referenced a conversation of that
same date in Obregon's Office and requested to be placed in an
inactive status with United Parcel Service, effective May 21, 1984.
GX 6A is also dated May 18, 1984, directed to "To Whom It May Concern".
In this letter, Ms. Lumsden stated that she would like to be consider-
ed for employment in the Charlotte Phone Center. Should a position
become available, Lumsden stated, she hoped that she would be
considered for full- or part-time work.
~7
that Don Michael (her immediate supervisor at the Kannapolis Center)
never discussed possible accomodations for Lumsden at the Kannapolis
Center and neither did Bob Jones. (TR 91).
Regarding her termination from UPS, Lumsden testified that Don
ichael called her at home and asked if she would come by to the
Kannapolis Center. The meeting occured on June 8, 1984; Martin
Taylor and Don Michael were present. Michael showed Lumsden the dis-
ability forms filled out by Linda Bennett and informed her she was
being terminated due to dishonesty. He thought that Lumsden had been
dishonest in obtaining that form from the Doctor because Dr. Furr
was unaware of what had transpired; they thought she was trying
to get additional time off from work that she did not have coming
to her. (TR 92). Lumsden filed a complaint against UPS on June 28,
1984 alleging that UPS failed to make reasonable accomodations for
her and that she was a handicapped worker. (GX 7). Lumsden filed a
discrimination charge against UPS on October 18, 1984 alleging that
a male employee received light duty transfer when he was unable to
do heavy lifting. (GX 8).
Lumsden testified that subsequent to Dr. Chalfant's opinion, she
was examined by Dr. Gibson, UPS's physician. He placed a lifting
restriction of 35 pounds upon Lumsden. (TR 96). Around December of
1984, there was an attempt to settle the discrimination case and rein-
statement was part of the settlement. Mr. and Mrs. Lumsden met with
artin Taylor and Dennis Obregon. They discussed the address cor-
rection clerk position in the Kannapolis Center as part of the settle-
ment. (TR 97). According to Vickii Lumsden, Dennis Obregon apologized
for UPS for their erroneous termination and she was offered reinstate-
ment as address correction clerk which is a "heavy job". (TR 98).
They refused to give her back pay. (TR 98 and 99). She wanted to
think over the job. What bothered her was the lack of specificity
as to what she was supposed to do with packages which exceeded her
weight limit of 35 pounds. (TR 99). They told her it was her
responsibility to see that those packages were processed one way or
another. (TR 99).
The parties agreed to call several witnesses out of turn and on
September 13, 1988, the Defendant, UPS, called Willard Chandler
Thompson, M.D. to testify. Dr. Thompson testified that he has been
licensed to practice medicine in the State of North Carolina since
1955 and that he is a surgeon. He attended Cornell University Medical
College, interned at Columbia and attended the Medical College of
Virginia for four years in surgery. (TR 120). Dr. Thompson is
Board-Certified in general surgery. He limited his medical practice
to hernias alone in 1988 and, in 1987, he performed surgery on
approximately 120 hernias. (TR 122). He defined a "hernia" as a
defect in the abdominal wall, which holds a person's fascia. Fascia
is the "connective tissue that holds things together". Some of the
best work as to why people get hernias is based on the chemistry of
the collagen which forms up the fascia. (TR 122-125). Hernias are
repairable. It is the most common congenial malformation in men.
(TR 126).
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Dr. Thompson testified that he reviewed Vickii Lumsden's medi-
cal records. (TR 127). She suffered three separate hernias in
three separate anatomic regions, none of which had anything to do
with the other. After Dr. Thompson repairs a hernia, he allows his
patients to return to full activity and they are limited only by
discomfort. Dr. Thompson testified that that is the practice of
the biggest hernia clinic in the world, in Toronto, and the biggest
hernia clinic in America, in California, and he believed it was
becoming a general practice. (TR 128). There may be genetic predis-
position to hernia but it is not a recognized syndrome. There is
nothing in the literature, of which Dr. Thompson was aware, that
states that individuals with a family history of hernias must be
careful not to get one. There is nothing about Ms. Lumsden's
history of hernia, given three prior hernias and a family history
of hernias, that creates a physical impairment which substantially
limits her ability to work. (TR 129).
On cross-examination, Dr. Thompson testified that he accepts
the theory that hernias, for the most part, result from degenerative
tissue fibers. It was his own feeling that, "the tissue is not
good" and that this was a common defect; he uses a mesh repair
in all direct hernias simply because the recurrence rate across the
country is somewhere between five and twenty percent, which is
unacceptably high. With a plastic mesh, the recurrence rate is
almost zero. Lifting weights increases the intra-abdominal pressure.
But he knows of no study that says that lifting weight causes a
hernia. Lifting is a precipitating factor when a person lifts
something heavy and feels a sudden pain in the region of the hernia,
but it is not the underlying cause of the hernia. It is not going
to happen to good tissue; but, when you have borderline tissue,
heavy lifting can precipitate a hernia. (TR 130).
Dr. Thompson testified on redirect that, in reviewing Ms.
Lumsden's medical records, there was no evidence that she has degen-
erative tissue. (TR 131). In Dr. Thompson's experience with treating
patients with hernias, his patient's have come from a broad spectrum
of occupations. The hernia is not related to jobs. (TR 135,
138-139). While lifting can be one of the precipitating factors in
causing a hernia, any sudden increase in the intra-abdominal pressure
can cause hernia. (TR 140, 142). It would have to be a sudden and
short, marked increase in the intra-abdominal pressure to be called
a participating factor. (TR 142). Dr. Thompson testified that he
has no information that the way to avoid getting a hernia is to
limit a person's work. Although everybody with a hernia probably
has some sort of defect, often it is a local defect. A person
might have a unilateral hernia and he may go 80 years without
getting a hernia anywhere else. (TR 146).
John McNeil Gibson, M.D. was called to testify on behalf of the
Defendant. He testified that he was a medical doctor specializing
in internal medicine. He was first licensed to practice in North
Carolina in 1972 and he is Board-Certified in Internal Medicine.
(TR 149).
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He examined Vickii Lumsden for the purpose of assessing her
ability to return to work. He found that her hernia incision were
well healed and there was no evidence of hernia at the time of his
examination. This examination was conducted at the request of UPS
and took place November 30, 1984. (TR 153). He took a history from
Lumsden and noted her three hernia procedures (TR 154); he called
Dr. Chalfant to see what his feelings were about her surgical pro-
cedures and what his specific recommendations were. He also took
an occupational history. Dr. Gibson testified that Dr. Chalfant
recommended 35- to 40-pound weight limit. (TR 154). Dr. Gibson con-
curred with Dr. Chalfant. (TR 155). He had never suggested to anyone
that they were to limit weight restrictions after a hernia surgery
but, because the surgeon, Dr. Chalfant, recommended weight restrictions,
he concurred. (TR 155 and 156). When Dr. Gibson wrote his report on
December 4, 1984 that Ms. Lumsden be limited to lifting 35 to 40
pounds, Dr. Gibson meant that on a permanent basis. (TR 159). Dr.
Gibson testified that he is familiar with Dr. Thompson's reputation
in the community and Dr. Thompson is considered to be the most expert
surgeon in the community with respect to hernia repair. (TR 161-162).
Vickii Lumsden returned to the stand and testified that during
her discussions with Don Michael, Dennis Obregon and Bob Jones,
there were discussions as to whether she could be accomodated at
the Kannapolis Center. (TR 163). With regard to the address
correction clerk job, they said it was not feasible to put a conveyor
belt or a roller system in for her. Although they discussed a job
at the Kannapolis Center as an address correction clerk, she was
never given any written instructions as to what she was supposed to
do with packages in excess of her weight limitations. (TR 164-165).
Vickii Lumsden testified on cross-examination that she worked
for IBM from March of 1985 until August of 1985 and then again from
about August of 1987 to January 1988. (TR 166-167). She would be
involved in getting parts from one to two hours of the day and some
of these parts weighed from 50 to 60 pounds. (TR 167-168).
The Defendant called Betty Sue Goodwin to testify; she has
been employed by UPS for ten years. She has worked just about
every job at the Kannapolis Center. (TR 201). During her testimony,
a video tape (DX 36) was viewed which Ms. Goodwin narrated. The
tape showed the facility where Vickii Lumsden worked (TR 203);
specifically, the tape showed Ms. Goodwin performing the customer
counter clerk job.
Ms. Goodwin testified that, on an average day at the customer
counter, the number of packages weighing over 35 pounds varied
greatly. (TR 205). She has encountered quite a few packages which
she could not lift and requested help; at times, she has been
assisted by her managers who have never turned her down for assistance.
(TR 205-206).
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The Defendant called Julia Durham Mauldin who testified that
she is the personnel officer supervisor for United Parcel Service
and her office is located in Charlotte, North Carolina. She approves
all disability requests. (TR 220-221). On receipt of DX 2 and 3,
she contacted the regional nurse with regard to laparoscopy and the
length of time needed to recuperate for this type of surgery.
Disability checks were approved for four weeks; when she received
the note from Cabarrus Clinic stating that Ms. Lumsden would return
on March 12, which was approximately six weeks, Ms. Mauldin contacted
Dr. Furr to find out what complications there may have been.
(Tr 221-222). In talking to Dr. Furr, he indicated that he was
not familiar with the note and he saw no reason to extend her time
off from work to six weeks. He said he would have to talk to his
nurse to find out what occurred. She received DX 7, a letter from
Dr. Furr regarding their conversation, as a follow-up. Something did
not seem right to Ms. Mauldin because she could not understand why
Dr. Furr did not know that Vickii Lumsden came back for a note; so
she saw her supervisor, Martin Taylor. (TR 222-224). She partici-
pated in the initial discussions to terminate Vickii Lumsden. She
met with Martin Taylor and the personnel manager; she believed the
decision was made shortly after Dr. Furr's letter of March 16th
arrived. (DX 7; TR 226-228).
The Defendant called Robert Donald Michael who testified that
in 1984 he was the center manager in Kannapolis, North Carolina for
United Parcel Service. As center manager his responsibilities
include the complete operation of the Kannapolis facility. The
company has no method or means by which they allow employees to
transfer from one location to another. (TR 233-234). When Vickii
Lumsden expressed an interest to work in the Charlotte office, he
told her that it was not possible. Other employees have asked
about transfers and he gave them the same response. (TR 234-235).
Michael testified that he was involved in termination discussions
but not in the decision to terminate Lumsden; that was made at the
Charlotte office. (TR 236). He and Martin Taylor told Lumsden that
she was terminated for dishonesty. The dishonesty involved a claim
for additional disability benefits for which she was not entitled.
This conference took place June 8, 1984. (TR 236, 238). Michael
said that with the exception of an occasional absenteeism, Lumsden
was a good employee. (TR 241).
Dennis Obregon testified for the Defendant that, in March, 1984,
he was district personnel manager for the Charlotte area. (TR 246).
The previous manager, Ron Johnston told him on or about March 15,
1984, that a decision had been made to terminate Vickii Lumsden for
providing fraudulent information to UPS. (TR 247-248). On May 18,
1984, Vickii Lumsden came to see him unannounced and her name did
not ring a bell. She told him she had been off on disability for
hernia repair and could no longer work in the capacity of receiving
~11
counter clerk. (TR 248). He told her that she could submit a letter
indicating that she was interested in taking advantage of an opening
when it occurred. (TR 249-250). He told her to submit a request
for leave of absence because he wanted to find out if UPS still took
the position that they were going to terminate her. (TR 250-251).
Obregon checked with Jim Hughes, the district manager and Jim Hughes
still took the position that UPS was going to terminate her; Obregon
then scheduled a termination conference with Martin Taylor and Vickii
Lumsden. (TR 251).
After Vickii Lumsden filed charges of discrimination with the
Department of Labor, there was a question as to her physical status
and a "return to work physical examination" was scheduled. If she did
not pass the physical examination, the company would be willing to
re-evaluate their position and perhaps make an effort to accomodate
her restrictions. In this regard, she saw Dr. Gibson. (TR 254).
After Dr. Gibson's medical evaluation, Obregon wrote a letter (DX 15)
to Carolyn Holden with the U.S. Department of Labor, dated December
6, 1984. In this letter, Obregon acknowledge Dr. Gibson's finding
that Lumsden was well healed, with no current evidence of hernia, and
could return to work but should avoid lifting weights greater than
35 to 40 pounds. Obregon also submitted a survey of the average
weight of packages handled by Lumsden on her last week of work,
January 16 through 19, 1984; apparently the average weight ranged
from 6.4 pounds to 10 pounds. Therefore, it was Obregon's position
that Lumsden had no handicap and her restrictions (set out by Dr.
Gibson) would not interfere with her performance of her previous
job assignment, (DX 15).
He had a meeting with Lumsden at the Kannapolis Center on December
19, 1984. (TR 256). At this meeting Martin Taylor was present, along
with Vickii Lumsden, her husband and the Center manager. Obregon
believed that the intent of the meeting was to discuss the address
correction clerk job, and not the receiving counter clerk job, for
Lumsden. January 3, 1985 was designated as Lumsden's return-to-work
date. That was the date agreed upon at the meeting, it was Obregon's
recollection that since Lumsden wanted to work specific hours, she
seemed to prefer the receiving counter clerk job. (TR 256-258). She
was told that if packages weighed more than her restrictions, not to
lift them. (TR 258-259). He never believed that Lumsden could not do
the job due to her hernias and, since May of 1984, it was always her
contention that she couldn't do the job because of her restrictions.
(TR 259). He received a letter from Lumsden, dated December 20, 1984,
accepting UPS's offer of customer counter clerk or address correction
clerk and it also said she would contact UPS on or about December 26,
1984 for instructions on when to return to work. (TR 260). At Mr.
Obregon's first meeting with Vickii Lumsden, he was aware that there
was a decision to fire her but Vickii Lumsden was not aware of that
decision. After Obregon's conversation with Lumsden, she went on
inactive duty. Obregon did not mention to Lumsden that she was to be
terminated. (TR 271-272). After the December 19, 1984 meeting with
Lumsden when the address correction clerk job and the customer counter
clerk job were discussed, Obregon told Ms. Holden that he told Lumsden
~12
she did not have to lift excess of 35 pounds but would not put
that in writing. (TR 274-275). He was afraid that, if he put
something in writing for Lumsden, he might have to do it for other
individuals and also it was outside the settlement agreement discussed
with the Department of Labor. (TR 276-277).
Martin A. Taylor testified for United Parcel Service that he hired
Vickii Lumsden in 1978. He was the personnel Supervisor when the
Kannapolis Center opened. (TR 279). He was aware when she was hired
that Lumsden had a hernia prior to 1978. (TR 280). Neither he nor
anyone else at UPS advised Lumsden that she could not do the customer
counter job because of the 35-pound weight restriction. (TR 289).
Other Evidence
Aside from the testimony presented at trial by the parties, they
submitted other evidence which shall be reviewed in this section. 3/
In reviewing the Government's Exhibits, the Government submitted
the transcript of the deposition of Carl A. Furr, Jr., M.D., dated
June 30, 1988. (GX 1). Dr. Furr is Board-Certified in Obstetrics
and Gynecology. (GX 1, p. 4). Dr. Furr testified that Vickii Lumsden
was a long time patient. On May 5, 1983 she came in for her annual
physical examination. She mentioned that she was having pain in her
left lower abdomen which Dr. Furr could not explain. (GX 1, p. 5).
She was scheduled for a laparoscopy in January of 1984 and the opera-
tion took place January 23, 1984. She was discharged January 27.
He told Ms. Mauldin of UPS that Lumsden was given more time than
they usually gave somebody with a laparoscopy because of having the
lysis of adhesions extensive and the Dextran inserted. (DX 1, p. 16).
When he saw Vickii Lumsden on the 13th of February she was healed;
he had given her more time off but he thought she would have gone
back to work before March 12 (GX 1, p. 16); he thinks he gave her a
prescription pad saying return to work in two weeks but he didn't have
it documented. (GX 1, pp. 16-17). In his conversation with Ms.
auldin he didn't say that Lumsden did anything dishonest. Dr.
Furr told UPS that it was quite possible she (Vickii Lumsden) did
think she was entitled to stay until the 12th of March. (GX 1,
p. 18). Dr. Furr was ambiguous as to whether he believed Vickii Lumsden
3/ The record remained open for the parties to submit various deposi-
tions and a stipulation of back wages. The government submitted the
deposition of Vickii M. Lumsden, taken October 20, 1988. It is admitted
into evidence as GX 11. The Government also submitted the deposition
transcript of William H. Haney which is admitted into evidence as
GX. 12. The Employer, United Parcel Service, submitted the deposition
of C. Franklin Mansfield. It is admitted as DX 38. Finally, the
parties submitted a joint stipulation of back wages which was received
in this office on November 21, 1988. This is admitted into evidence
as ALJX 2.
~13
told a falsehood to UPS. He believed he gave Lumsden a note to
return to work two weeks after his last exam of February 13.
Instead she came in and received a letter from Linda Bennett who
gave her four to six weeks off thinking that she had a laparotomy
instead of a laparoscopy.
The deposition of Willian Paxon Chalfant, III, M.D., was taken
on June 27, 1988. (GX 2). Dr. Chalfant is Board-Certified in General
Surgery. (GX 2, p. 5). Dr. Chalfant met Vickii Lumsden on February
28, 1984. He examined Ms. Lumsden who was complaining of pain in
the left groin area and his physical examination confirmed the
presence of a left inguinal swelling though to represent a left
inguinal hernia. Dr. Chalfant recommended surgery on her return
visit of March 5, 1984. On her return, the second physical examination
confirmed the previous exam and out-patient surgery was recommended
for March 12, 1984. This was probably the day that was convenient
for the patient and when she chose to have it done. (GX 2, p. 7). Ms.
Lumsden was operated on March 12, 1984; a femoral hernia was found,
rather than an inguinal hernia. Also found was an enlarged lymph
node in the femoral triangle area. This was biopsied and found to
be a reactive hyperplasia, which is a reaction to any type of infection.
The hernia was repaired in the usual manner. (GX 2, p. 8).
On March 19, 1984, Ms Lumsden returned post-op to have her
sutures removed. The wound was healing well and she was informed that
the node that Dr. Chalfant biopsied was negative. She returned on
April 17, 1984 with some pain in the left leg and a little tenderness
in the surgical area. She was seen again on May 1, 1984. The incision
was well healed and she was complaining of less tenderness. Dr.
Chalfant saw Ms. Lumsden once again on November 20, 1984 and she was
totally recovered from her operation. (GX 2, p. 9). Dr. Chalfant
felt that since she had an inguinal hernia as well as a femoral hernia
in the same area and that her tissues were weak, he recommended that
she not exceed lifting 35 to 40 pounds. (GX 2, p. 9). Dr. Chalfant
felt Vickii Lumsden had poor connective tissue in her inguinal area
and any additional straining would probably result in recurrent
herniations. (Gx 2, p. 11-12). Dr. Chalfant was not aware of any
written literature which would cause him to think that Vickii
Lumsden was at a greater risk than the general population to suffer
a hernia due to the fact that she has several hernias. (GX 2,
p. 14). Dr. Chalfant testified that there are two primary causes
for hernia; one is congenital and the other is a break-down of
normal tissue. (GX 2, p. 15). His statement about Vickii Lumsden's
poor connective tissue is based upon his observation at surgery. Her
connective tissue was thin and poor. He could tell what degree of
strength the abdominal wall would have depending upon how the fascia
looks. (GX 2, p. 20-21).
Vickii M. Lumsden's deposition was taken on October 20, 1988.
(GX 11). The deposition reviewed Ms. Lumsden's job search activities
since June of 1984 and was intended to show that Ms. Lumsden has
attempted and has in fact mitigated her damages. (See ALJX 2, para-
graph 11, p. 6).
~14
The Government submitted the deposition of William H. Haney a
Certified Rehabilitation Counselor. (GX 12). In 1985, Mr. Haney was
certified as a vocational expert for the Federal Government to provide
testimony before the Office of Hearings and Appeals, primarily the
Social Security Administration. He is certified as a vocational
expert; he acts as an education witness informing the court of the
vocational factors involved, whether work is skilled or unskilled
and the type of exertion it requires. According to Mr. Haney, a
vocational rehabilitation counselor assists individuals who have a
handicap or impairment for employment and attempts to provide them
services so that the individual can return back to the labor market,
either to their previous job or at another job. The total goal in
vocational rehabilitation is to return the individual to gainful
employment. (GX 12, p. 7-9). The Government offered Mr. Haney as an
expert vocational counselor and the Defendant made no objection.
(GX 12, p. 13-14); Mr. Haney testified that he prepared an analysis
of Vickii Lumsden's access to the labor market. He took her past
work history and analyzed it, then assumed the same history with an
individual who had a 35-pound weight restriction. (GX 12, p. 14).
Based upon his analysis, Haney determined that, without a 35-pound
weight restriction, the number of workers in jobs to which Lumsden
would have access was 86,816, out of a total number of workers of
376,389 in the six-county Charlotte area. (GX 12, p. 16-17). With
the weight restriction - which in effect eliminated medium work type
jobs, that is, requiring individuals to occasionally lift up to 50
pounds - Vickii Lumsden 's access was comparable with about 53,986
workers, or a loss of about 32,000 jobs. (GX 12, p. 17). These jobs
are located in the Charlotte/Gastonia area. On cross-examination,
Haney testified he did not interview Ms. Lumsden. (GX 12, p. 32-33).
He only used the data from her past work history as a profile. He
did not know that Ms. Lumsden was also a certified cosmetologist.
(GX 12, p. 33).
The Defendant submitted the deposition of Clarence Franklin
ansfield, Vice-President of Human Services at Goodwill Industries,
a rehabilitation facility providing vocational services to disabled
and disadvantaged people for the purpose of assisting them in
entering or returning to competitive employment. (DX 38, p. 3-4).
r. Mansfield overseas and administers the rehabilitation services
and support services that Goodwill provides including job placement
service , assisting people in finding jobs in the community and in
some cases training them on a job by using a job coach or an assistant
counselor. (DX 38, p. 4). He has a Bachelor's degree in sociology
and a Master's in rehabilitation counseling from the University of
North Carolina. (DX 38, p. 5,7). The defendant tendered Mr. Mans-
field as an expert witness in vocational services and rehabilitation
services. (DX 38, p. 9). The Government accepted Mr. Mansfield as
an expert in vocational rehabilitation services. (DX 38, p. 11).
Mr. Mansfield defined disability as a physical, mental or
emotional condition which limits a persons ability to function in
some of life's areas such as self-care, mobility or travel, working,
feeding, clothing themselves and relating to people. (DX 38, p. 12).
~15
12). When a disability actually interferes with a person's function-
ing, then it is called a handicap. (DX 38, p. 12). Therefore, a
disability may or may not create a handicap. (DX 38, p. 13). Mr.
ansfield felt that a hernia which has been repaired is no longer a
disabling condition, although one which has not been repaired
obviously presents a disabling condition. (DX 38, p. 14). A person
with a history of hernias should not be affected in their ability to
obtain, maintain or advance employment, assuming that the hernia has
been repaired. (DX 38, p. 15). Mr. Mansfield viewed a video and the
deposition transcript of Vickii Lumsden. (DX 38, p. 16). The video
showed the work of a customer counter clerk at the Kannapolis Center.
(DX 36). Based upon the video, other documents and depositions, Mr.
ansfield was able to acquire an understanding of the customer
counter clerk at UPS and Kannapolis. In his opinion, a person with
a 35-pound weight lifting restriction "could perform the job in the
main". (DX 38, p. 16-17). Normal housework seldom requires lifting
over 36 pounds, so Mr. Mansfield did not believe that that restriction
would severely or substantially limit a major life function. (DX 38,
p. 19-20).
I note also that the parties submitted a joint stipulation of
back wages. (ALJX 2). This has been reviewed. All of the exhibits
which have been submitted by the Government and by the Employer,
United Parcel Service, have been reviewed carefully, even though
reference may not have been made to each and every exhibit herein.
Findings of Fact and Conclusions of Law
The above considered, I find as follows:
1. The Rehabilitation Act of 1973 defines "handicapped indi-
vidual" as:
(7)(A) Except as otherwise provided in subparagraph (B),
the term "handicapped individual" means any individual
who (i) has a physical or mental disability which for
such individual constitutes or results in a substantial
handicap to employment and (ii) can reasonably be expected
to benefit in terms of employability from vocational
rehabilitation services provided pursuant to subchapters
I and III of this chapter.
(B) Subject to the second sentence of this subparagraph,
the term "handicapped individual" means, for purposes of
subchapters IV and V of this chapter, any person who (i)
has a physical or mental impairment which substantially
limits one or more of such person's major life activities,
(ii) has a record of such an impairment, or (iii) is
regarded as having such an impairment. For purposes of
sections 793 and 794 of this title as such sections relate
to employment, such term does not include any individual
who is an alcoholic or drug abuser whose current use of
~16
alcohol or drugs prevents such individual from performing
the duties of the job in question or whose employment, by
reason of such current alcohol or drug abuse, would con-
stitute a direct threat to property or the safety of others.
Rehabilitation Act of 1973 7(7), 29 U.S.C. 706(7).
2. I find ample evidence that Ms. Lumsden is a "handicapped
individual" within the meaning of the Act. Her duties as customer
counter clerk were to accept packages weighing from one to seventy
pounds. She was responsible for lifting packages onto a conveyor
belt. (TR 48-49). On an average day, the number of packages weigh-
ing over 35 pounds varied greatly. (TR 205). There were no jobs
available at the Kannapolis Center which were light duty jobs. (TR 80).
3. Lumsden suffered three separate hernias in three separate
anatomic regions. (TR 128). When you have "borderline tissue",
heavy lifting can precipitate a hernia. (TR 130). Dr. Chalfant
observed Lumsden's connective tissue during surgery; it was thin
and poor. (GX 2, p. 21).
4. Both Lumsden's surgeon, Dr. Chalfant, and UPS's examining
physician, Dr. Gibson, recommended that Ms. Lumsden not lift in
excess if 35 to 40 pounds, which I find to be reasonable. Dr.
Thompson's testimony is certainly entitled to great weight; however
he did not examine Ms. Lumsden and, more importantly, his opinion
was given years after the alleged discrimination violation. In other
words, UPS should have acted upon Dr. Gibson's opinion.
5. I find that at all relevant times, Ms. Lumsden was restricted
from lifting in excess of 35 to 40 pounds, that her job entailed
lifting in excess of 35 to 40 pounds, thus she had a physical impair-
ment which substantially limited one of her major life activities:
her ability to work at her job in the Kannapolis Center for UPS.
6. I accept Plaintiff's argument that in an "affirmative action"
case such as the one before me, once Plaintiff establishes a prima
facie case of discrimination, the burden shifts to UPS to show that
accomodating Ms. Lumsden would work a hardship on their operation.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
However, as Justice Powell stated in Southeastern Community College
v. Davis, 442 U.S. 397 (1979), the starting point in every case
involving construction of a statute is the language itself. The
language of the statute and regulation, 41 C.F.R. 60-741.1, herein
uses the expression "qualified handicapped individuals." 4/ (emphasis
added). In my view, Plaintiff, to establish a prima facie case, in
addition to showing that Ms. Lumsden is handicapped, must show she
was "qualified".
4/ This expression was changed, effective October 21, 1986, to read
"qualified individuals with handicaps" by the 1986 Amendment.
~17
7. A "qualified handicapped individual" means a handicapped
individual who is capable of performing a particular job, with
reasonable accomodation to his or her handicap. 41 C.F.R. 60-741.2.
8. As the Plaintiff suggests (Plaintiff's Post-Trial Brief,
pp. 13 and 14), UPS could have accomodated Lumsden in one of two
ways: either by providing assistance with packages which weighed in
excess of 40 pounds 5/ or by tranferring her to the Charlotte phone
order a co-worker to lift packages in excess of 40 pounds or to
require UPS to transfer Ms. Lumsden to another position at another
location altogether.
9. I reject the notion that "reasonable accomodation" requires
an employer to make a co-worker lift heavy packages for a handicapped
person. Lifting heavy packages is not without risk. There are any
number of ailments which can develop, from back problems to hernias.
Being a volunteer is a gratuitous gesture; but it is unreasonable
to require a co-worker to do the heavy work of another worker and
to place himself or herself at risk.
10. There are numerous cases interpreting 504 of the Rehabili-
tation Act of 1973, 29 U.S.C. 794, but that is not the case with
503 of the Act. I am of the view that what is considered "reasonable
accomodation" is necessarily intertwined with what a handicapped
person can do for himself. Physical qualifications may be essential
for a particular job. In this case, lifting in excess of 40 pounds
was an essential part of Ms. Lumsden's job. I find that it is
unreasonable to require a co-worker to perform Ms. Lumsden's lifting.
Thus, in this regard, Ms. Lumsden was not a "qualified handicapped
individual" within the meaning of the Act and Regulations. See
Southeastern Community College v. Davis, supra., 442 U.S. at 407.
11. However, this is not the case with a transfer of Ms. Lumsden
to the Charlotte phone center. Plaintiff made a prima facie case
that Ms. Lumsden was capable of performing the phone center job and
that a transfer to the Charlotte phone center constituted reasonable
accomodation. 6/ Lumsden testified that UPS' general office was
located in Charlotte and the work there was office work. "They
answer phones over there." (TR 81). Mr. Obregon indicated to Ms.
Lumsden that her opportunities to transfer to the Charlotte office
were as good as anyone else's. (TR 87). He suggested that she go on
5/ Ms. Lumsden would require assistance as a customer counter clerk
and address correction clerk.
6/ Through discovery, the Government could have shown much more about
the phone center job. For example, the Government could have shown
exactly what the hob entailed, whether vacancies existed and definite
evidence of other individuals transferring to the phone center.
~18
the inactive status with UPS and submit a "letter of intent" for
employment at the phone center (TR 88), which is exactly what she did.
(GX 6, 6A). Nothing prevented an hourly employee from applying at
the Charlotte office. (TR 240)
12. UPS failed to present any evidence whatsoever that trans-
ferring Ms. Lumsden to Charlotte would have been a hardship on the
company or in some way represented an unreasonable accomodation. 7/
While UPS employees testified that a transfer was against company
policy (TR 234, 249, 292), no evidence was presented showing what
this policy was based upon. 8/
13. Numerous cases cited by UPS hold that 504 of the Act
does not require employers to reassign or transfer employees to other
positions as an accomodation. Carty v. Carlin, 623 F, Supp. 1181
(D. Md. 1985); Jasany v. United States Postal Service,
F. Supp. , 33 FEP 1115 (N.D. Ohio 1983), aff'd 755
F.2d 1244 (6th Cir. 1985). See also Carter v. Ticsh, 822 F.2d
465 (4th Cir. 1987). But 504 of the Act does not contain "affirma-
tive action" language.
14. Thus, UPS would have the burden of showing that a transfer
to the phone center would in some way be unreasonable. See
Gardner v. Morris, 752 F.2d 1271, 1280-1281 (8th Cir. 1985); Carter
v. Bennett, 651 F. Supp. 1299, 1300-1301 (D.D.C. 1987). UPS failed
to present evidence in this regard. I find Vickii Lumsden was a
"qualified handicapped individual' for the phone center job. There-
fore, had Ms. Lumsden remained in good standing with UPS, 503 of
the Act would require UPS to transfer her to the Charlotte phone
center.
15. However, Ms. Lumsden did not remain in good standing with
UPS. Linda Bennett, who worked in Dr. Furr's office, made a mistake
on a form to be given to UPS. A patient is allowed six weeks recovery
time for a laparotomy and a shorter period for a laparoscopy. Think-
7/ For example, UPS could have shown that there were no vacancies
or that transfer would have violated collective bargain agreements
or employee seniority rights.
8/ Actually, it was company policy to take affirmative action to
transfer members of a "protected group" such as a handicapped worker
to insure that past discrimination would not continue. Under "Guide-
lines for Mangers and Supervisors" (DX 35, p. 13), the UPS Impartial
Employment and Promotion Guide provides:
2. Take affirmative action to insure that the effects
of past discrimination will not continue to be felt
within the company, including steps to recruit, train,
transfer and promote members of protected groups to
jobs from which they had been excluded. (emphasis added).
~19
ing that Ms. Lumsden underwent a laparotomy, Linda Bennett indicated,
in writing, to UPS that Ms. Lumsden's recovery time would be six
weeks. (TR 24-26, 37; DX 6). Julia Mauldin, personnel officer for
UPS - the person who approves all disability requests - caught the
error and discussed the matter with Martin Taylor, her supervisor.
(TR 220-228). A decision to terminate Lumsden was made sometime
between March 3 and March 16, 1984. (TR 228). Taylor felt that Ms.
Lumsden knew that six weeks recovery time as an error based upon
her conversation with Dr. Furr on February 13, 1984 and that Lumsden
committed a dishonest act and decided to terminate her employment.
(TR 281,282). Even though the decision to terminate was made in
early March, 1984, it was UPS policy not to conduct a termination
conference until the employee returned from disability leave. (TR
282, 283). So, Ms. Lumsden was not terminated, in fact, until June
8, 1984. (GX 3).
16. On the other hand, the Government argues that the decision
to terminate Ms. Lumsden was made after her discussions with Don
ichael, Bob Jones and Dennis Obregon 9/ about her return to work,
possibly being transferred to the Charlotte phone center and Dr.
Furr's letter 10/ (DX 7) exonerating Ms. Lumsden. (See Plaintiff's
Reply Brief, p. 11, 12).
17. Assuming for the sake of argument that the Government makes
a prima facie case in this regard, I find that the great weight of
the evidence holds against the Government. The Government's theory
is just speculation, while the individuals who made the decision to
fire Ms. Lumsden, i.e. Julia Mauldin and Martin Taylor, testified
under oath that the decision to terminate Ms. Lumsden was made in
arch, 1984. (TR 220-228, 281, 282). UPS, in this instance, certainly
showed little, if any, regard for Ms. Lumsden's procedural rights.
A decision was made to fire her for dishonesty before hearing her
side of the story; she was presumed guilty instead of innocent and
was not afforded an opportunity to defend herself. But, not one
shred of evidence exists that she was terminated from UPS because
she was handicapped. I find that the decision to terminate Ms.
Lumsden was made months before anyone mentioned the word "handicapped"
and months before Dr. Chalfant suggested that Lumsden be reassigned
to lighter duties. 11/ (DX 8).
9/ Ms. Lumsden visited Obregon on May 18, 1984.
10/ This letter is dated March 16, 1984.
11/ Dr. Chalfant's letter is dated May 1, 1984.
~20
18. Furthermore, there is evidence that UPS did not take Ms.
Lumsden's hernias seriously or consider then a disabling condition.
artin Taylor testified that he hired ms. Lumsden with the knowledge
that she had a hernia prior to 1978. (TR 280). He was unaware of
anyone at UPS who felt Ms. Lumsden could not perform the customer
counter clerk job because of her history of hernias or due to her
35-pound weight restriction. (TR 288, 289). Ms. Lumsden testified
that she continued as a customer counter clerk after her second
hernia repair in about 1980 or 1981. (TR 77).
19. The Government did not prove by a preponderance of the
evidence that UPS' asserted reason for terminating Lumsden was
pretextual merely by showing that UPS did not make a good decision
or was mistaken in its support for the decision. An employer's
reason for its action may be good, bad, mistaken, or no reason at
all, as long as the decision was not based on an unlawful discrim-
inatory criteria. EEOC v. Ryder/P*I*E, 649 F. Supp. 1282, 1288
(W.D.N.C. 1986); Jefferies V. Harris County Community Action Ass'n.,
615 F.2d 1025, 1036 (5th Cir. 1980); Turner v. Texas Instruments,
Inc., 555 F.2d 1251, 1256 (5th Cir. 1977); see also Clark v.
Buntsville City Board of Education, 717 F.2d 525, 528 (11th Cir.
1983); De Anda v. St. Joseph Hospital, 671 F.2d 850, 854 n.6 (5th
Cir. 1982); Corley v. Jackson Police Dept., 566 F.2d 994, 1003 n.14
(5th Cir. 1978); Moore v. Sears. Roebuck & Co.; 683 F.2d 1321, 1323
n.4 (11th Cir. 1982).
20. Having concluded that the Government failed to prove by
a preponderance of the evidence that UPS terminated Ms. Lumsden
because she was handicapped, I find it unnecessary to reach the
affirmative defenses raised by UPS, those of statute of limitations,
laches and accord and satisfaction.
RECOMMENDED ORDER
It is recommended that the Government's complaint against UPS
be dismissed for failure to show by a preponderance of the evidence
that UPS' reason for terminating Vickii Lumsden was a pretext for
discrimination.
MICHAEL P. LESNIAK
Administrative Law Judge
PL/1kw
~21
SERVICE SHEET
CASE NAME: UNITED PARCEL SERVICE, INC.
CASE NO: 87-OFC-17
TITLE OF DOCUMENT: RECOMMENDED DECISION AND ORDER
I hereby certify that on March 22, 1989, a copy of the foregoing
document was sent to the parties and their representatives at their
last known addresses listed below.
Lynn K. Walsh
Legal Technician
CERTIFIED MAIL REGULAR MAIL
Elizabeth Culbreth G. Marvin Bober
Office of Administrative Appeals Associate Chief Judge
U.S. Department of Labor U.S. Department of Labor - OALJ
200 Constitution Ave., N.W. Suite 700
Room S-4309 1111 - 20th Street, N.W.
Washington, D.C. 20210 Washington, D.C. 20036
REGULAR MAIL Bobbye D. Spears
Regional Solicitor
William H. Sturges, Esq. U.S. Department of Labor
WEINSTEIN & STURGES, P.A. 1371 Peachtree St., N.E.,
810 Baxter Street Cul-De-Sac Room 339
Charlotte, NC 28202 Atlanta, GA 30367
Glenn m. Embree, Esq. Office of federal Contract
Office of the Solicitor Compliance Programs
U.S. Department of Labor U.S. Department of Labor
1371 Peachtree St., N.E., Room C-3325
Rm. 339 200 Constitution Avenue, N.W.
Atlanta, GA 30367 Washington, D.C. 20210
George R. Salem, Solicitor of
Labor
U.S. Department of Labor
Office of the Solicitor
Room S-2002, FPB
200 Constitution Ave., N.W.
Washington, D.C. 20210
David O. Williams
Office of the Special Counsel
U.S. Department of Labor/ETA
Room N-4671
200 Constitution Ave., N.W.
Washington, D.C. 20210
