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TAYLOR v. GARRETT

May 4, 1993

JOHN DEAN TAYLOR
v.
H. LAWRENCE GARRETT, III, in his capacity as Secretary of the Navy, et al.



The opinion of the court was delivered by: LOUIS H. POLLAK

 Pollak, District J.

 May 4, 1993

 I have considered the defendant Secretary of the Navy's motion for partial summary judgment (doc. #39), seeking judgment in favor of the Navy on Count I of the complaint, which asserts various claims under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.. The motion for partial summary judgment presents a simple question, requiring a surprisingly complicated analysis: whether a plaintiff asserting a claim of discrimination on the basis of handicap under the Rehabilitation Act must be qualified to perform the position for which he was originally hired or whether he need only be qualified for the light-duty positions to which he was reassigned after becoming handicapped. For the reasons that follow, I conclude that plaintiff's acknowledged inability to perform the essential functions of his original position does not undermine his Rehabilitation Act claims. Accordingly, defendant's motion for partial summary judgment will be denied.

 I.

 On October 6, 1980, plaintiff John Dean Taylor was hired as a Rigger Helper at the Philadelphia Naval Shipyard ("PNSY"). Taylor was promoted to the position of a Rigger Worker in 1984. In February 1986, Taylor suffered a back injury while working at the PNSY which, as the parties agree, resulted in his becoming a "handicapped individual" within the meaning of the Rehabilitation Act. There is also no dispute that the injury rendered Taylor unable to perform the essential functions of rigger. No longer qualified to work as a rigger, Taylor was placed on leave status and began to receive federal workers' compensation payments. In October 1986, plaintiff's physician indicated that plaintiff could return to work in a light-duty capacity. Beginning on February 2, 1987, the Navy terminated Taylor's compensation benefits and returned him to work at PNSY in a variety of temporary, light-duty work assignments (such as a driver, a messenger and a receptionist). *fn1" While doing the light-duty work, Taylor continued to be formally classified as a rigger, although Taylor's physician requested official reclassification given his view that Taylor's back injury was permanent and that he could never again return to work as a rigger. Taylor remained classified as a rigger until he was discharged from PNSY on December 4, 1989, allegedly for having filed false claims with the government. According to Taylor, he has been denied workers' compensation benefits since his termination.

 In Count I of his amended complaint, Taylor alleges that PNSY failed to accommodate his disability and otherwise discriminated against him on grounds of that disability in violation of the Rehabilitation Act. Specifically, Taylor contends that although the Navy initially offered him light-duty work within his medical restrictions in order to take him off the compensation rolls, they subsequently transferred him to inappropriate job assignments (such as doing yard work that required heavy lifting) and harassed him in hopes of effecting his resignation so as to make him ineligible for further workers' compensation benefits. Then, having failed to force his resignation, the Navy proceeded to terminate him on pretextual grounds. Taylor seeks reinstatement at PNSY in a permanent position consistent with his medical restriction (if such is available at PNSY); he does not seek reinstatement as a rigger.

 In the instant motion, defendant claims that Taylor cannot prevail on Count I, and partial summary judgment should be directed in its favor on this count, because Taylor has acknowledged that he was not qualified to work as a rigger, the position for which he was hired and in which he was continually classified. In response, plaintiff contends that the pertinent question is whether he was "otherwise qualified" to perform the light-duty jobs to which he was assigned after becoming handicapped. *fn2"

 Taylor claims that the Navy discriminated against him based on his handicap in violation of sections 504 and 501 of the Rehabilitation Act. Section 504(a) of the Rehabilitation Act provides in relevant part:

 
No otherwise qualified individual with handicaps in the United States . . . shall, solely by reason of his or her handicap, be . . . subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

 29 U.S.C. § 794(a). Section 501, which applies to federal agencies but not to federal grantees, also places a duty to insure that qualified handicapped individuals are not discriminated against in federal employment (as well as a further requirement of affirmative action, see infra). Davis v. United States Postal Serv., 675 F. Supp. 225, 231 (M.D. Pa. 1987); Mackay v. United States Postal Serv., 607 F. Supp. 271, 275 (E.D. Pa. 1985); see 29 C.F.R. § 1613.703 (1992) (regulation adopted under § 501 providing that "an agency shall not discriminate against a qualified physically or mentally handicapped person."). *fn3"

 "An otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap." Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979). However,

 
the [Southeastern Community College ] Court indicated that an individual may be "otherwise qualified" in some instances even though he cannot meet all of a program's requirements. This is the case when the refusal to modify an existing program to accommodate the ...

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