Wells v. Shalala

• Decision Date: 21 September 2000
• Docket Number: No. 99-1226,99-1226
• Parties: (10th Cir. 2000) CECIL PHILLIP WELLS, Plaintiff-Appellant, v. DONNA E. SHALALA, Secretary, United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1137

228 F.3d 1137 (10th Cir. 2000)

CECIL PHILLIP WELLS, Plaintiff-Appellant, v. DONNA E. SHALALA, Secretary, United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants-Appellees.

No. 99-1226

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

September 21, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 98-M-1538)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Daniel Minahan of Minahan and Shapiro, P.C., Lakewood, Colorado, for Plaintiff-Appellant.

Kathleen L. Torres, Assistant United States Attorney (Thomas L. Strickland, United States Attorney, with her on the brief), Denver, Colorado, for Defendants-Appellees.

Before TACHA, BALDOCK, and BRORBY, Circuit Judges.

BALDOCK, Circuit Judge.

Around 1979, Plaintiff Cecil Phillip Wells began working as a government auditor based in the Denver field office of the Department of Health and Human Services (HHS), Office of Inspector General (OIG), Office of Audit Services (OAS). Plaintiff took "discontinued service" retirement in May 1997 after declining a reassignment from OAS' Denver office to OAS headquarters in Washington, D.C as a proffered accommodation for his claimed inability to travel to field audit sites. Thereafter, Plaintiff filed suit against HHS and Secretary Shalala under the Civil Service Reform Act of 1978 (CSRA), as amended, specifically 5 U.S.C. § 7702, alleging constructive discharge on the basis of disability discrimination and retaliation respectively, in violation of the Rehabilitation Act of 1973, specifically 29 U.S.C. §§ 791 & 794, and the Whistleblower Protection Act of 1989 (WPA), specifically 5 U.S.C. § 2302(b)(8) & (b)(9). After a motion hearing, the district court granted summary judgment in favor of HHS and Secretary Shalala. Plaintiff appeals. We exercise jurisdiction under 28 U.S.C. § 1291. We review the district court's decision to grant summary judgment de novo, applying the same standard as the district court, Barker v. City of Del City, 215 F.3d 1134, 1137 (10th Cir. 2000), and affirm.¹

I.

The relevant facts are undisputed. Plaintiff accepted employment with OAS in 1979. The Denver field office of OAS is a part of the Kansas City region which provides audit coverage for ten states. Plaintiff's position description for the Denver field office lists travel as a necessary component of an OAS auditor's duties. A large portion of the Denver field office's responsibilities is to audit public universities in the ten state region.

In November 1996, Plaintiff's supervisors assigned him, along with other auditors, to travel to Iowa City in January 1997 to audit the University of Iowa. In December 1996, Plaintiff sent an e-mail to Barbara Bennett, head of the Kansas City region, and Allan Pewe, Plaintiff's audit manager for technical work, objecting to the travel assignment. Plaintiff questioned the need for the assigned field audit. In his e-mail, Plaintiff also mentioned for the first time that he had been suffering from tendinitis and carpal tunnel syndrome in his right arm. Plaintiff stated he would not be prepared to travel to Iowa on January 6, 1997, as instructed.

On January 3, 1997, Plaintiff faxed a hand-written note to Pewe with an attached letter from his chiropractor. Plaintiff's chiropractor stated she was treating Plaintiff for carpal tunnel syndrome and an injury to his right elbow. She recommended Plaintiff "reduce his typing and heavy lifting workload," but did not mention Plaintiff's claimed inability to travel. In his note, Plaintiff stated he could not carry any type of luggage. Plaintiff requested that his computer keyboard be lowered and ergonomic furniture be provided to him. OAS shortly thereafter provided Plaintiff with a new adjustable keyboard tray and ergonomic keyboard. Plaintiff concluded with the statement: "Cannot go to Iowa City. What do you want me to do instead?"

Around the same time, Plaintiff sent a letter to Terry Eddleman, audit manager for the Denver field office. For the first time, Plaintiff specifically asked to be relieved from travel as an accommodation for his carpal tunnel syndrome and elbow injury. Eddleman responded with a letter requesting Plaintiff, in accordance with federal regulations, see 5 C.F.R. Part 339, to provide OAS specific medical documentation, i.e., history, clinical findings, diagnosis, and prognosis, about his current medical condition by February 3, 1997. OAS delayed Plaintiff's travel to Iowa pending receipt of his medical documentation.

Plaintiff did not respond to Eddleman's request by February 3. Instead, on February 15, 1997, Plaintiff provided Eddleman with a letter from his chiropractor dated February 10. After noting Plaintiff's "wrist, forearm, and elbow pain," the chiropractor recommended only that Plaintiff's "workstation be evaluated and redesigned to decrease the strain on his injured arm." The letter again did not mention Plaintiff's claimed inability to travel and did not provide the requested medical documentation.

On February 24, 1997, Eddleman sent a letter to Plaintiff denying his request to be relieved from travel. OAS based its decision on Plaintiff's failure to provide medical documentation regarding his ability to perform the essential functions of his job, including travel. Eddleman expressed his willingness to consider "appropriate accommodations when supported with medical documentation." At the same time, OAS informed Plaintiff that it would authorize porter and valet expenses for his travel.

Thereafter, Pewe sent an e-mail to Plaintiff on March 19, 1997, informing him that he had been assigned to audit Iowa State University in Ames, Iowa. Pewe instructed Plaintiff to report to Ames on March 31. Plaintiff responded by sending an e-mail to Eddleman on March 24 indicating he was still undergoing treatment for carpal tunnel syndrome and stating: "Al Pewe wants me in Iowa next week but I don't see how that is possible." Eddleman informed Plaintiff that absent OAS's prompt receipt of medical documentation, Plaintiff was expected to report to Ames, Iowa on March 31. Eddleman further informed Plaintiff that his failure to report would result in disciplinary action. That same day, Plaintiff requested from the office administrator a luggage cart to transport equipment to and from audit sites. Plaintiff received the luggage cart four days later on March 28.

Contrary to instruction, on March 31, 1997, Plaintiff reported to OAS's Denver field office instead of his temporary duty station in Ames, Iowa. Eddleman subsequently e-mailed Plaintiff directing him to adjust his time sheet to reflect 12.25 hours of AWOL for failing to report to Ames. In the meantime, Plaintiff contacted Joe Rankin, Director of Human and Financial Resources, about early retirement. The two men discussed offering Plaintiff a transfer to the Washington D.C. office which, if he declined, would make him eligible for "early" retirement. On April 1, Plaintiff faxed Rankin a letter requesting retirement. The next day, Plaintiff finally provided OAS with a letter from his chiropractor stating, albeit in general terms, that his medical condition prevented him from traveling.

On April 7, 1997, Rankin informed Plaintiff that OAS was offering to reassign Plaintiff from his current position as an auditor in the Denver field office to an auditor at the same pay grade in OAS's Washington, D.C. headquarters, the only location where OAS auditors are not required to travel. The same day, Plaintiff provided a letter to Thomas Roslewicz, Deputy Inspector General for Audits, declining the reassignment and applying for early retirement under the discontinued service (early out) plan. OAS granted Plaintiff's request for discontinued service retirement which became effective May 11, 1997.

On September 2, 1997, Plaintiff filed a formal complaint with HHS' Equal Employment Opportunity Office (EEO) under 29 C.F.R. § 1614.302, alleging constructive discharge from OAS as a result of disability discrimination and retaliation. Based on the foregoing facts, Plaintiff originally claimed only that OAS's failure to reasonably accommodate his physical disability resulted in his constructive discharge. Plaintiff later claimed that OAS also retaliated against him by failing to reasonably accommodate his disability because he had filed a grievance over a performance rating and repeatedly criticized management for malfeasance in discharging its duties to the taxpayer. Following an investigation, EEO issued a thorough seventeen page single-spaced decision denying Plaintiff's claims on June 18, 1998. Plaintiff then filed a civil action against HHS and Secretary Shalala in district court as permitted by 5 U.S.C. § 7702(a)(2)(B). The district court rejected Plaintiff's claims in their entirety.

II.

As a preliminary matter, HHS and Secretary Shalala contend the district court lacked jurisdiction to hear Plaintiff's retaliation claim because he failed to exhaust this claim before the Merit Service Protection Board (MSPB). We reject Defendants' jurisdictional contention. As it applies in this case, § 7702(a)(2)(B) provides that in "any matter" before an executive agency which involves "any issue of discrimination" prohibited under the Rehabilitation Act of 1973, specifically 29 U.S.C. § 791, the agency shall resolve such matter. (emphasis added). The section then provides: "The decision of the agency in any such matter shall be a judicially reviewable action unless the employee appeals the matter to the [Merit Service Protection] Board." 5 U.S.C. § 7702(a)(2)(B). Thus, the plain language of § 7702(a)(2)(B) provides that if an employee alleges disability discrimination under § 791 as a basis for agency action, he may either file suit in the district court or pursue an administrative procedure after an adverse agency decision. 5 U.S.C. § 7702(a)(2)(B); see also 29 C.F.R. § 1614.310(a). In...