Mullins v. Crowell

• Decision Date: 29 September 2000
• Docket Number: No. 99-14735,Docket No. 97-01897-CV-BU-S,99-14735
• Citation: 228 F.3d 1305
• Parties: (11th Cir. 2000) ROBERT MULLINS, MICHAEL D. DESRUISSEAUX, et al., Plaintiffs-Appellants, v. CRAVEN CROWELL, JOHNNY H. HAYES, et al., Defendants-Appellees. D. C
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1305

228 F.3d 1305 (11th Cir. 2000)

ROBERT MULLINS, MICHAEL D. DESRUISSEAUX, et al., Plaintiffs-Appellants, v. CRAVEN CROWELL, JOHNNY H. HAYES, et al., Defendants-Appellees.

No. 99-14735

D. C. Docket No. 97-01897-CV-BU-S

UNITED STATES COURT OF APPEALS ELEVENTH CIRCUIT

Sep. 29, 2000

Oct. 3, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Northern District of Alabama

Before COX and HULL, Circuit Judges, and GEORGE^*, District Judge.

COX, Circuit Judge:

This is a disability discrimination suit brought under the Rehabilitation Act, 29 U.S.C. 701 et seq. (the Act). Twenty-four plaintiffs,¹ appellants here, filed complaints against their former employer, the Tennessee Valley Authority (the TVA). After consolidating the cases, the district court granted summary judgment in favor of the TVA. We affirm in part and reverse and remand in part.

I. Facts and Procedural History

The plaintiffs, except Hovater,² were designated "craft employees" (carpenters, painters, ironworkers, machinists, laborers, pipefitters, etc.) of the TVA. The plaintiffs were injured while working for the TVA, and, as a result, were permanently medically restricted and unable to return to work at their former jobs.³ Each plaintiff applied for and received full benefits under the Federal Employees' Compensation Act (the FECA) from the Department of Labor's Office of Workers' Compensation Programs (the OWCP). The TVA ultimately bore the cost of these benefits through chargebacks.

The plaintiffs were all reemployed by the TVA in special positions after they started receiving FECA benefits and were told that if they refused to accept the positions, their benefits would be terminated. Most were also told that if their positions were eliminated, their full FECA benefits would be restored. The positions were awarded pursuant to reemployment programs, including the Reemployment Initiative Instruction (REIN)⁴ and the Reentry⁵ Programs, that allowed TVA to avoid OWCP chargebacks.

The TVA placed the employees who were reemployed in these special positions into separate seniority/ retention levels that were composed of only disabled employees. Then, during the TVA's reductions-in-force (RIFs) of 1996 and 1997, the jobs in these seniority/ retention levels were eliminated and the plaintiffs were terminated. At that time, pursuant to a new OWCP policy, with only a few exceptions,⁶ the plaintiffs' full FECA benefits were not restored.

After pursuing administrative remedies with the TVA,⁷ the plaintiffs filed suit, arguing that the TVA⁸ violated 501 and 504 of the Act⁹ by directly discriminating against them on the basis of their disabilities¹⁰ and indirectly discriminating against them by using policies and procedures that had a disparate impact on disabled employees. The plaintiffs claimed that the TVA set up a closed seniority system that impaired their ability to compete for retention in the face of impending RIFs and that the TVA then riffed each disabled employee. They also claimed that in their reemployment positions, they were not given meaningful work and were denied opportunities for training and advancement. Finally, the plaintiffs contended that the TVA offered them jobs and then riffed them, on the basis of their disabilities, to avoid the rising costs of chargebacks to the OWCP.

The district court granted the TVA's motion for summary judgment on several alternative grounds. First, the district court concluded that the plaintiffs had failed to exhaust their administrative remedies for their separate-classification claims because they did not object or seek counseling within 45 days after they were reemployed and classified, as required by the district court's interpretation of Lorance v. AT & T Techs., Inc., 490 U.S. 900, 906, 109 S. Ct. 2261, 2266 (1989). Second, addressing the substantive claims of individual disparate treatment, the district court concluded, based on its interpretation of Sutton v. United Airlines, 527 U.S. 471,492-93, 119 S.Ct. 2139, 2151, 144 L.Ed.2d 450(1999), that working was not a "major life activity" within the meaning of the Act and that, therefore, the plaintiffs were not disabled within the meaning of the Act. Third, the district court listed alternative grounds for granting summary judgment against 20 of the plaintiffs, concluding that each was not "disabled" under the Act because he had not shown that he was substantially limited in working in a broad class of jobs in the relevant geographic area. Finally, the district court also concluded that the plaintiffs had failed to demonstrate that the TVA's proferred explanation that the plaintiffs were riffed for budgetary reasons (to save on chargebacks from FECA), was a pretext for disability discrimination.

The plaintiffs appeal the district court's grant of summary judgment to the TVA on their 501 disparate-treatment claims based on their separate, disability-based classifications for seniority and RIF purposes.

II. Issues on Appeal

A. Whether the plaintiffs exhausted their administrative remedies.

B. Whether the district court erred by granting summary judgment based on its conclusion that "working" is not a "major life activity" within the meaning of the Act.

C. Whether the district court properly granted summary judgment on other grounds particular to each plaintiff.¹¹

III. Discussion

A. Exhaustion

The TVA argues that the plaintiffs' claims are barred because the plaintiffs failed, in three ways, to exhaust their administrative remedies. First, the TVA contends that the district court correctly dismissed the plaintiffs' discriminatory-classification claims because the plaintiffs failed to complain within 45 days after they first were placed in their respective seniority classifications. See Lorance v. AT & T Tech., Inc., 490 U.S. 900, 109 S. Ct. 2261 (1989). Second, according to the TVA, because the plaintiffs failed to raise their classification claims during the investigation of their administrative complaints regarding the RIF, these claims are not properly before the court. Third, the TVA argues that the plaintiffs abandoned any challenge to their classifications by not pursuing their classification claims before the Merit Systems Protection Board (the MSPB). We address each of these arguments in turn and conclude that the plaintiffs exhausted their administrative remedies.

We conclude first that the plaintiffs were not required to complain about their separate classifications within 45 days of when they were reemployed and separately classified. The district court concluded that the plaintiffs fell under Lorance's rule that the adoption of an allegedly discriminatory classification system triggers the running of the limitations period. See id. 490 U.S. at 911, 109 S. Ct. at 2268-69. The district court reasoned that because Congress amended Title VII to abrogate Lorance for non-federal employers, but failed to do so for federal employers, Lorance remained the rule for federal employers. The TVA echoes the district court's reasoning. The plaintiffs respond, however, that Lorance is inapplicable because Lorance involved a private employer that was not subject to the affirmative duty not to discriminate imposed by 501 of the Act.

We review de novo this decision of law. See Blackfeet Nat'l Bank v. Nelson, 171 F.3d 1237, 1240 (11th Cir.), cert. denied, - U.S. -, 120 S. Ct. 497 (1999). We conclude that Lorance is inapplicable. First, under the Supreme Court's analysis, Lorance's rule is narrow, applying only to facially neutral classification systems that were alleged to have a disparate impact. The Supreme Court noted that it had granted certiorari "to resolve a Circuit conflict on when the limitations period begins to run in a lawsuit arising out of a seniority system not alleged to be discriminatory on its face or as presently applied." Lorance, 490 U.S. at 903, 109 S. Ct. at 2264 (emphasis added). The Supreme Court distinguished between a facially neutral seniority system upon which workers could reasonably rely with a facially discriminatory system, observing, "[t]here is no doubt, of course, that a facially discriminatory seniority system (one that treats similarly situated employees differently) can be challenged at any time . . . ." Id. at 912, 109 S. Ct. at 2269. Finally, in a footnote, the Supreme Court contrasted the facially neutral seniority system at issue in Lorance with a facially discriminatory system, noting that a facially discriminatory system "by definition discriminates each time it is applied." Id. at 912 n.5, 109 S. Ct. at 2269 n.5. Here, in contrast, record evidence supports that the classification system employed by the TVA was facially discriminatory.¹²

In addition, Lorance relied heavily on Title VII's special treatment of seniority systems. See Beavers v. American Cast Iron Pipe Co., 975 F.2d 792, 798-99 (11th Cir. 1992) (interpreting Lorance and noting its emphasis on 42 U.S.C. 2000e-2(h)). In Lorance, the Supreme Court noted that, because of 42 U.S.C. 2000e-2(h) "[s]eniority systems . . . are afforded special treatment under Title VII," and, "absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences." Lorance, 490 U.S. at 904 and 905, 109 U.S. at 2265 (quoting Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 81 and 82, 97 S. Ct. 2264, 2275 and 2276 (1977)). The Act, however, neither affords special treatment to seniority systems nor adopts Title VII's deference to seniority systems. Accordingly, Lorance's reasoning does not control claims under the Act.

Instead, we conclude that the use of the classification system to rif the plaintiffs gave effect to the discriminatory classifications and started the running of the limitations period. See id. at 912 n.5, 109 S. Ct. at 2269 n.5. The plaintiffs did not feel the effects of...