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May 4, 1994


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

 This is an action brought by John Dean Taylor, a former federal employee of the Philadelphia Naval Shipyard ("PNSY"), against the Secretary of the Navy, Robert C. Brown, a former PNSY civilian police officer, and various other PNSY employees, alleging disability-based discrimination. On September 22, 1989, Taylor appealed to the EEOC the Navy's determination that his April 13, 1988 EEOC complaint was without merit. On February 28, 1990, the EEOC rejected Taylor's claim of handicap discrimination and granted him leave to file a civil action. Taylor petitioned this court for appointment of counsel on March 28, 1990, and, on April 4, 1990, filed a pro se complaint alleging harassment by PNSY personnel since the time he injured his back in February 1986. After Taylor's motion for appointment of counsel was granted, Taylor, through his appointed counsel, filed an Amended Complaint on January 21, 1991.

 In an opinion dated September 11, 1992, I addressed defendants' motion for partial dismissal. I dismissed counts IV, V, and VI of the Amended Complaint for failure to state a claim upon which relief may be granted. Pursuant to agreement of the parties, I struck Taylor's class action allegations and ruled that defendant Secretary of the Navy was the only proper defendant in counts I and II. I denied the defendants' motion in all other respects. Accordingly, the following counts remained after my September 11, 1992 opinion: (1) Count I, alleging handicap-based discrimination in employment by the Navy; (2) Count II, alleging retaliatory harassment by the Navy; and (3) Count III, alleging a constitutional tort committed by Brown.

 In an opinion dated May 4, 1993, I considered the motion of the Secretary of the Navy for partial summary judgment, seeking summary judgment in the Secretary's favor on count I of the first amended complaint. The Secretary argued in that motion that, because Taylor was not qualified to work as a Rigger, the position for which he was hired, he could not prevail on count I. Taylor argued in response that the pertinent question was whether he was qualified to perform the light-duty jobs to which he was assigned after becoming handicapped. I agreed with Taylor's position and denied the Secretary's motion for partial summary judgment. See Taylor v. Garrett, 820 F. Supp. 933 (E.D. Pa. 1993).

 Presently before this court is Taylor's motion for partial summary judgment against defendant Secretary of the Navy with respect to two claims included in Count I of Taylor's Amended Complaint, which asserts various claims under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. First, Taylor seeks summary judgment with respect to his claim that the Secretary, through the Philadelphia Naval Shipyard ("PNSY"), violated the Rehabilitation Act by failing to reassign him to an appropriate permanent position after he became disabled from returning to his job as a Rigger and instead assigning him to temporary details, including jobs inconsistent with his medical restrictions. Second, Taylor seeks summary judgment with respect to his claim that the Secretary, through PNSY, violated 32 C.F.R. § 56.8(a)(6), a Department of Defense regulation implementing the Rehabilitation Act, by sending criminal investigators to interview his physicians under circumstances in which criminal conduct was not at issue. Taylor seeks summary judgment with respect to liability only, leaving the measure of damages for the jury. The motion does not extend to Taylor's claims of failure to accommodate his handicap with regard to working conditions, harassment, constructive discharge, termination on pretext, or the constitutional tort claim against defendant Robert Brown, because these claims present disputed issues of fact or require an inference favorable to Taylor. See Taylor's Memorandum in Support of Motion for Partial Summary Judgment, at 2. For the reasons that follow, plaintiff's motion for partial summary judgment is granted in its entirety.

 The Secretary of the Navy has filed a cross-motion arguing that Taylor should be precluded from seeking an award of compensatory damages and from introducing evidence relating to compensatory damages at trial because he failed to seek such relief in his complaint. For the reasons given in part III of this opinion, the Secretary's cross-motion is denied, and Taylor is granted leave to amend his Amended Complaint.


 In connection with plaintiff's motion for partial summary judgment, the great bulk of the proffered evidence has come from plaintiff without refutation by the Navy. To the limited extent that the Navy has proffered evidence, as distinct from legal arguments, I have accepted the Navy's version as true for purposes of this motion.

 Plaintiff John Dean Taylor was hired as a Rigger Helper by the Philadelphia Naval Shipyard on October 6, 1980. In 1984, Taylor was promoted to the position of Rigger Worker. On February 4, 1986, while working at PNSY, Taylor suffered a back injury which the parties agree caused him to become a "handicapped individual" within the meaning of the Rehabilitation Act. No longer able to work as a Rigger, Taylor was placed on leave status and, on February 25, 1986, he began receiving benefits under the Federal Employees Compensation Act, 5 U.S.C. § 8101 et seq. ("FECA").

 Taylor was totally disabled from working following the February 4, 1986 injury. On October 3, 1986, Taylor's physician, Dr. Schatzberg, indicated that Taylor could return to work in a light duty capacity. Taylor was then examined by a PNSY medical officer, who determined that Taylor was not able to return to work as a Rigger but was fit for desk work. A memorandum signed by T.M. Spilker, dated October 15, 1986, in Taylor's placement file describes his medical restrictions as "indefinite over six (6) months," indicates that he was not capable of performing "grade controlling duties," *fn1" and requests job placement or separation. Plaintiff's Exhibit 43.1.

 From February 2 to March 5, 1987, Taylor worked at PNSY driving a car for the Compensation Service Division. On March 6, 1987, Taylor was involved in an altercation with his supervisor and claimed a reaggravation of his back injury. PNSY contested Taylor's claim for disability benefits but the Office of Workers' Compensation Program approved Taylor's claim. According to a Compensation Investigation Report, Jacqueline Karns (now Jacqueline Anastasia), a manager in the Compensation Services Division, requested an investigation to determine the validity of Taylor's claim for recurrence of his injury. On March 19, 1987, an investigator interviewed Dr. Schatzberg regarding his diagnosis and treatment of Taylor. On April 16, 1987, the investigator called Dr. Schatzberg for follow-up information. The synopsis of the report concluded that Taylor's recurrence was medically documented and that Dr. Schatzberg would not return Taylor to work at the present time, even in a light duty status.

 In May 1987, Taylor came under the care of Dr. Avart. Dr. Avart's July 16, 1987 report determined that Taylor could work on a part time basis, and that he would be able to work on a full time basis in four to eight weeks. On September 29, 1987, Franklin P. Hatton, PNSY Superintendent in Charge of Compensation, sent Taylor a Job Offer for Unclassified Duties in the Design Division, as a temporary detail from the position of Rigger. On October 9, 1987, Taylor was examined by the PNSY medical officer who found Taylor fit for the Design Division position, but unfit for rigger work at that time. Dr. Avart approved the Job Offer on October 23, 1987.

 On October 19, 1987, Taylor returned to work at PNSY in the position of Rigger Worker in Shop 72, detailed to the Design Division for a period not to exceed February 10, 1988. Taylor's position in the Design Division involved photocopying and running errands, working conditions that were consistent with Taylor's medical restrictions. This detail ended on February 11, 1988, and a new employee was hired to replace Taylor in the Design Division.

 On February 11, 1988, Taylor was detailed to Unclassified Duties in the Planning Office for a period not to extend beyond February 29, 1988. Like the job in the Design Division, the Planning Office job was an office position consistent with Taylor's medical restrictions. This detail ended on February 29, 1988, and Taylor was returned to Shop 72, the Rigger Shop where Taylor had been employed before his injury.

 On March 2, 1988, Dr. Avart examined Taylor and discharged him from treatment. Dr. Avart's report, dated March 18, 1988, included restrictions on lifting, standing, walking, climbing stairs, twisting, fine manipulation, and reaching above the shoulder. The Rigger Shop foreman sent Hatton a job description for Taylor dated March 4, 1988, for a Housekeeping position which involved picking up debris in the industrial areas. On March 23, after reviewing Dr. Avart's March 18 report, Hatton sent a memorandum to Taylor informing him that he was assigned to the Housekeeping position effective March 28, 1988. Also on March 28, 1988, Taylor was examined by the PNSY medical officer, who imposed restrictions on bending, stooping, leaning, crawling, and climbing ladders, ropes and staging, in addition to the restrictions included in Dr. Avart's report.

 Taylor took the Housekeeping job description to Dr. Avart, who wrote another report dated March 25, 1988. *fn2" The March 25 report incorporated the physical restrictions in the March 18 report and added restrictions on climbing ladders, kneeling, bending, stooping, and exposure to cold weather (below 40 degrees). This report also stated that Taylor was "unable to do rigging, needs job reclassification." In a report dated March 28, 1988, the PNSY medical officer reiterated the restrictions in his March 23 report, stated that Taylor's restrictions were to be considered permanent, and recommended reclassification.

 On March 30, 1988, as a result of Dr. Avart's March 25 report, the Housekeeping assignment was canceled and Taylor was assigned to Unclassified Duties in Shop 39, the Excess Manpower Shop. Also on March 30, 1988, Karns, of the Compensation Services Division, requested an investigation of John Taylor. The request states:

Please have an investigator take the attached PHILABSY-5100/27 forms to Dr. Avart and require [sic] as to why within one weeks [sic] time he changed Mr. Taylor's restrictions? This request is a priority case & request action ASAP. Verbal response with a written follow-up would be acceptable.

 See Plaintiff's Exhibit 70. The investigator, Tillman Hahn, interviewed Dr. Avart at his office on March 31, 1988. Dr. Avart sent Hatton a letter, dated April 1, 1988 and received on April 15, 1988, stating that the Housekeeping position appeared to be within Taylor's restrictions, as long as lifting was limited to ten pounds, there was no repetitive bending, stopping, kneeling or squatting, and Taylor was not required to work outside or in cold or damp weather.

 On April 12, 1988, Taylor was assigned to the Purchasing Department. He was one of three workers selected to perform work that involved telephoning vendors to get the best price for merchandise that PNSY intended to buy. Taylor learned the job within a few days, and his supervisor was pleased with his performance. On April 18, Taylor was removed from the job in Purchasing and reassigned to the Housekeeping position, in spite of the fact that his supervisor in Purchasing wanted to keep him. *fn3"

 PNSY never issued a new written job description for the Housekeeping position to incorporate Dr. Avart's additional restrictions. Taylor was required to work outside in all kinds of weather, and the job required repetitive stooping and heavy lifting -- requirements inconsistent with his medical restrictions.

 During the time Taylor was working in the Housekeeping position, he did not have a treating physician. In July 1988, Taylor became a patient of Dr. LeRoy. In his July 13, 1988 report, Dr. Leroy recommended that Taylor work in an office job. On July 14, Taylor was evaluated by the PNSY medical officer who also recommended office work. As a result of Dr. LeRoy's report, PNSY detailed Taylor to a position as a receptionist in the Public Works Administration on July 15, 1988.

 In his January 4, 1989 reevaluation of Taylor, Dr. LeRoy continued to recommend office work and noted that Taylor's restrictions were permanent. Taylor was evaluated by the PNSY medical officer on January 5, 1989. The medical officer indicated that Taylor should work in an office job only and recommended that Taylor be reclassified.

 Effective January 17, 1989, the position in the Public Works Office was filled on a permanent basis, and Taylor was returned to Shop 72, the Rigger Shop. Upon his return to Shop 72, Taylor was assigned to a portable enclosure that functioned as a temporary field office for Shop 72 supervisors. This office was located in a loft in the industrial area. On January 20, 1989, Taylor reported the change in his work assignment to Dr. LeRoy, who provided a certificate of medical restrictions recommending transfer out of the industrial area. Taylor was evaluated on January 23 by the PNSY medical officer, who also recommended that Taylor be transferred out of the industrial area, and who again recommended reclassification.

 In a letter to Dr. LeRoy dated January 23, 1989, Hatton rejected the recommendation that Taylor be assigned outside of the industrial area. Hatton enclosed with the letter a copy of a statement of Vincent Agostino, Shop 72 Foreman, describing Taylor's duties as answering the telephone and taking messages. In fact, Taylor's duties were not limited to answering the phone and taking messages, but also included splicing ropes.

 On September 28, 1989, Taylor's supervisor, Timothy O'Leary, advised Taylor that his work location was being changed from the portable office to a wire mesh tool cage in the loft. The explanation given for this change was that debris from the rope splicing job was creating a hazard in the office.

 Taylor took personal leave for the day and did not return to PNSY after that date. On October 16, 1988, Taylor came under the care of a psychiatrist, Dr. D'Orazio, who determined that Taylor was unable to return to work at the time because of job-related stress. That day, O'Leary requested an investigation to determine whether Taylor was under the care of a physician. On October 25, 1989, Taylor provided PNSY with a medical excuse note from Dr. D'Orazio indicating that Taylor was unable to work for emotional reasons. On October 31, 1989, an Employee Relations Specialist requested an investigation to confirm the validity of the medical excuse note. The investigation report indicates that, on November 6, 1989, a criminal investigator visited Dr. D'Orazio. The investigator spoke with a secretary, who assured him that the note was valid and that Taylor was under Dr. D'Orazio's care.

 Effective December 14, 1989, Taylor's employment at PNSY was terminated on grounds of filing two false claims against the government. *fn4" Plaintiff's contention that the dismissal was a pretext to terminate his employment on the basis of his disability is not addressed in the motion before the court today.


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

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

 29 U.S.C. § 794(a) (1988). As the Supreme Court explained in School Bd. of Nassau County v. Arline, 480 U.S. 273, 94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987), an "otherwise qualified" person in the employment context is one who is able to perform the essential functions of the job in question. See id. at 287 n.17 (citations omitted). The Court ...

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