Fancher v. Nimmo

• Decision Date: 02 November 1982
• Docket Number: No. LR-C-79-541.,LR-C-79-541.
• Citation: 549 F. Supp. 1324
• Parties: Virginia Diann FANCHER, Plaintiff, v. Robert NIMMO, Head of the Veterans Administration, an Agency of the United States of America, Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

549 F. Supp. 1324

Virginia Diann FANCHER, Plaintiff, v. Robert NIMMO, Head of the Veterans Administration, an Agency of the United States of America, Defendant.

No. LR-C-79-541.

United States District Court, E.D. Arkansas, W.D.

November 2, 1982.

W. Michael Hamilton, Kaplan, Brewer, & Bilheimer, Little Rock, Ark., for plaintiff.

Diane Mackey, Asst. U.S. Atty., E.D. Ark., Little Rock, Ark., for defendant.

MEMORANDUM OPINION

ELSIJANE TRIMBLE ROY, District Judge.

Plaintiff Virginia Diann Fancher filed a timely action pursuant to 42 U.S.C. § 2000e-2(a)(2) for redress against discrimination in employment on the basis of sex.

Ms. Fancher is a female adult citizen of the United States residing in Little Rock, Arkansas. She was employed by the Veterans Administration Medical Center (VAMC) in Little Rock, Arkansas, from May 21, 1973, to March 26, 1979.

Defendant Robert Nimmo is head of the Veterans Administration, an agency of the government of the United States of America which operates a hospital located at 300 East Roosevelt Road in Little Rock, Arkansas. The defendant employs more than fifteen persons and is thus an employer within the meaning of 42 U.S.C. § 2000e.

At the time of the alleged discrimination, Ms. Fancher was employed as a technician in the VAMC's Nuclear Medicine Services, in a GS-7-1 pay slot. She had held this position for approximately five years. Her job consisted of the utilization of radioactive substances for the diagnosis and therapy of disease in humans.

In December 1977 Ms. Fancher informed her supervisor, Suzanne Bernard, that she suspected she was pregnant. In the latter part of January 1978, after she had confirmed that she was in fact pregnant, she so advised Ms. Bernard. The testimony was in conflict as to whether plaintiff presented Ms. Bernard with a note from her personal physician, Dr. Charles Allen McKnight. There is no dispute, however, that both Ms. Bernard and Mr. Stuart Eason (Ms. Bernard's supervisor) knew of the plaintiff's pregnancy by the end of January 1978. Neither Ms. Bernard nor Mr. Eason notified the hospital personnel office that Ms. Fancher was pregnant, which notification was their clear responsibility pursuant to the hospital's personnel policies pertaining to pregnant employees.

In any event, immediately after learning that the plaintiff was definitely pregnant, Ms. Bernard placed her on limited duty. Plaintiff continued to be assigned to the Nuclear Medicine Department and was part of the rotation schedule but was told not to perform those duties which involved heavy lifting or which would expose her to unnecessary radiation. Particularly, the plaintiff's work consisted of camera work, paperwork, scheduling and other miscellaneous work that needed to be done. In a prior pregnancy, plaintiff had been assigned to the Radioimmunoassay (RIA) lab section of Nuclear Medicine where she had no exposure to "hot" (radioactive) items. The RIA lab was still in existence in 1978 and she spent several weeks there in February.

Ms. Bernard testified that she had put Ms. Fancher on limited duty because it was best for the plaintiff in her pregnant condition. The decision to put the plaintiff on limited duty status was consistent with the Federal Personnel Manual's regulations and the Veterans Administration's policy as they related to pregnant employees. The Federal Personnel Manual, Chapter 630, Subchapter 13, entitled "Absence for Maternity Reasons" states in pertinent part:

"If after consulting her physician, the employee requests modification of her work assignment, every reasonable effort should be made to accomodate her request."

The Veterans Administration's own leave and absence policy, Memorandum No. 76-3, 4E(2)(b), January 8, 1976, states:

"When an employee reports her pregnancy, her supervisor shall immediately determine (with advice from the Personnel Physician and the employee's personal physician where necessary) whether the employee's duties and work surroundings involve exposure to health hazards peculiar to her condition. Where such conditions exist in an employee's regularly assigned duties, reasonable effort shall be made to detail or temporarily reassign her to other available work that she is qualified to perform."

The plaintiff's placement on limited duty was consistent with the practice the defendant had followed in previous years. Prior to 1977 the plaintiff had been pregnant three other times while working for defendant. The first two pregnancies terminated with miscarriages in 1974 and 1975, and the third pregnancy (1976) went full term. During the first two pregnancies, Ms. Fancher was not reassigned from the Nuclear Medicine Department but was placed on limited duty to reduce her exposure to radiation and to relieve her from lifting heavy objects. After returning from leave taken because of her miscarriages, she resumed full duties in Nuclear Medicine. In 1976, during her third pregnancy, plaintiff was assigned to the RIA lab, a component of the Nuclear Medicine Department where there is no danger of inadvertent exposure to radiation. She gave birth in July 1976 and returned to work in November of the same year. Upon returning, plaintiff was reassigned permanently to RIA lab upon her own request.

Sometime in 1977 the Nuclear Medicine Department was reorganized so that all the technicians would be assigned on a rotation basis to both the RIA lab and to the Scan lab, the component of nuclear medicine where exposure to radiation was greater. Plaintiff remained part of that rotation schedule when she was placed on limited duty in January 1978, but she was not required to perform any duties involving exposure to "hot" areas in the Scan lab.

Plaintiff was allowed to remain on this limited work detail until April 19, 1978, at which time Ms. Bernard informed her that she would have to return to full duty. It appears from the testimony that "full duty" was not to include heavy lifting, but it was certainly to include "hot" lab functions.

Ms. Bernard testified that she had consulted with Dr. Charles Boyd, Acting Chief of Nuclear Medicine Services, and Erick Erickson, Radiation Safety Officer, before returning Ms. Fancher to full duty in order to determine what the radiation risks were. She testified that the Nuclear Regulatory Commission's (NRC) regulations were discussed in detail. However, each of defendant's witnesses admitted that the hospital's maternity leave policies were never discussed at any time. Several defense witnesses, including Ms. Bernard, admitted that they were unaware that the hospital even had any maternity regulations. It was also admitted by the defense that exposure to radiation in Nuclear Medicine's Scan lab constituted a "health hazard."

The testimony is somewhat inconsistent with regard to the reasons for Ms. Bernard's decision to return Ms. Fancher to a full duty status. In her testimony, Ms. Bernard initially stated that an increase in Nuclear Medicine's workload required her to utilize Ms. Fancher in a full duty capacity and that such a change was necessary in order to keep the quality of patient care from suffering. Later, however, she testified that she removed Ms. Fancher from limited duty as a form of discipline, saying that if Ms. Fancher had been performing her limited duties properly, she would not have been returned to full duty, regardless of the workload. Yet a third reason was voiced by Mr. Jim Fly, former Personnel Management Specialist for the hospital, who testified that Ms. Bernard told him at the time of the incident that the reason for the return of Ms. Fancher to full duty was simply that plaintiff was in the later stages of her pregnancy and therefore the dangers from radiation were not as great.

With respect to whether Ms. Fancher was properly performing her limited duties, there is much conflict in the testimony. Ms. Bernard and several of the plaintiff's co-workers testified that plaintiff had begun shirking her duties, often being away from her work station, reading, or talking with the secretaries. Several co-workers testified that during the time period concerned, Ms. Fancher was not doing as much work as they were; they admitted, however, that they did not even know that Ms. Fancher had been placed on a limited duty status. The plaintiff denied shirking any of her duties, stating that she performed everything which was required of her.

Ms. Fancher's personnel file indicated that she was a model employee. In her most recent evaluation, which was dated June 28, 1977, she had been given an excellent performance appraisal. More importantly, her personnel file contains no reprimands or notations of any kind concerning any unsatisfactory job performance during the January-April 1978 period. Mr. Jim Fly, the Personnel Management Specialist, testified that under the hospital's policies the plaintiff would have been given some kind of notice of her deficiencies and a record of the deficiencies would have been placed in the personnel file before any disciplinary action such as this would have been taken.

The credible evidence indicates that Ms. Bernard's April 19, 1978, decision to return the plaintiff to a full duty status was in reality (as Ms. Bernard herself admitted at trial) a form of disciplinary action. This action had the effect of placing Ms. Fancher and her unborn child in danger of exposure to harmful radiation, in direct and blatant conflict with the mandates of the personnel policies under which the defendant was required to operate. In light of this finding, it is irrelevant whether or not Ms. Fancher was actually shirking her duties. Returning her to full duty status in Nuclear Medicine was prohibited in any event, for whatever reason, by the hospital's pregnancy policies.

Although the plaintiff was greatly concerned about the radiation to which she would be exposed on full duty, she nevertheless proceeded to perform her full duties on April 19 and reported to work on April...