Szedlock v. Tenet , 61 F. App'x 88 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PATRICIA LEE SZEDLOCK, 
Plaintiff-Appellant,
v.
GEORGE J. TENET, Director of
Central Intelligence Agency,  No. 01-1867
Defendant-Appellee,
and
CENTRAL INTELLIGENCE AGENCY,
Defendant.

PATRICIA LEE SZEDLOCK, 
Plaintiff-Appellee,
v.
GEORGE J. TENET, Director of
Central Intelligence Agency,  No. 01-1902
Defendant-Appellant,
and
CENTRAL INTELLIGENCE AGENCY,
Defendant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T.S. Ellis, III, District Judge.
(CA-00-991-A)
Argued: February 27, 2003
Decided: April 3, 2003
2 SZEDLOCK v. TENET
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Bruce J. Terris, TERRIS, PRAVLIK & MILLIAN,
L.L.P., Washington, D.C., for Appellant. Stephanie Robin Marcus,
Appellate Staff, Civil Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Demian
A. Schane, TERRIS, PRAVLIK & MILLIAN, L.L.P., Washington,
D.C., for Appellant. Robert D. McCallum, Jr., Assistant Attorney
General, Paul J. McNulty, United States Attorney, Dennis E. Szybala,
Assistant United States Attorney, Marleigh D. Dover, Appellate Staff,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Denise D. Duprau, Office of General Counsel,
CENTRAL INTELLIGENCE AGENCY, Washington, D.C., for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The plaintiff, Patricia Lee Szedlock, who is hearing impaired,
obtained a jury verdict on her claim that the Central Intelligence
Agency (CIA) failed to accommodate her disability. Szedlock never-
theless appeals three determinations by the district court: (1) that the
Federal Employees Compensation Act (FECA), 5 U.S.C. § 8101 et
seq., is the exclusive compensatory remedy for her work-related
injury; (2) that certain of her claims are time-barred; and (3) that her
SZEDLOCK v. TENET 3
retirement benefits should be deducted from her backpay award. The
CIA cross-appeals the district court’s denial of its motion for a judg-
ment as a matter of law. Finding no error, we affirm.
I.
Szedlock began working at the CIA in 1989. She held seven differ-
ent positions between 1989 and her disability retirement in 1998. We
will refer to them as Positions 1-7. Szedlock used both hearing aids
and lip reading to compensate for her hearing impairment. She is not
fluent in sign language.
Szedlock began her career at the CIA as an engineer on a
computer-upgrade project (Position 1). The job required her to attend
all-day, multi-party meetings. Because she primarily depended on lip
reading, she often had difficulty following the flow of the conversa-
tion in large groups. She found these meetings stressful and exhaust-
ing. She also suffered dizziness, ear pain, and tinnitus. Because of
these problems, she spoke with her supervisors, employees in the
CIA’s Equal Employment Opportunity (EEO) office, a counselor in
the Employee Assistance Program (EAP), and CIA medical person-
nel. She asked for an oral interpreter (one who mouths the words spo-
ken by others) or a notetaker. She requested these accommodations
at least thirty-five times. In April 1990 the CIA sent Szedlock to be
fitted with an Assistive Listening Device (ALD) and stronger hearing
aids. The ALD amplified sounds at the meeting, but Szedlock found
it distracting because it picked up noises in the room besides the
voices of the speakers. The ALD also caused her pain, and she was
concerned that it was causing additional hearing loss. She stopped
using the ALD in October 1990. During part of a week-long meeting
in June 1990, Nancy K., a secretary, acted as an oral interpreter.
While in Position 1, Szedlock also asked for an exemption from fly-
ing and for advance sick leave; both requests were granted.
Szedlock moved to Position 2, acting as a systems engineer, in
March 1991. Although all concerned believed that this job would be
less problematic for her, Szedlock continued to have problems with
multi-party meetings. Szedlock again spoke with her supervisors,
employees in the EEO office, a counselor in the Employee Assistance
Program, and CIA medical personnel. She asked for an oral inter-
4 SZEDLOCK v. TENET
preter or notetaker over 100 times while she was in Position 2. The
EEO officer responsible for deaf employees informed her that the
CIA did not have oral interpreters. In a discussion with an EAP coun-
selor in July 1999, she mentioned several grounds for filing an EEO
complaint against the CIA, including its failure to solve the problems
she faced in meetings, but she did not lodge a complaint at that time.
While in Position 2, Szedlock received amplifiers, TTY phones, and
closed caption decoders from the CIA.
Because she was still having problems in meetings, however,
Szedlock sought and received another transfer in December 1992; she
became a technical investment analyst (Position 3). After Szedlock
assumed Position 3, the CIA paid for her to take sign language
classes, although she did not become fluent. Between December 1992
and November 1993 she unsuccessfully requested an oral interpreter
or notetaker roughly twenty times. In November 1993 Szedlock pro-
posed that a two-person team assist her. Under the proposal, Nancy
K. would provide oral interpretation, while Steve B. would take notes
for her. She relied on the interpretation team from January to June
1994, but ultimately decided it was not an effective solution.
In July 1994 Szedlock moved to another job, Position 4, also with
the title of technical investment analyst. This job involved fewer
multi-party meetings, but she continued to have problems in the meet-
ings she did attend. She requested assistance on over 100 occasions
while in this position. She never received an oral interpreter or
notetaker, although the CIA did provide a sign interpreter on three
occasions.
Between September 1994 and September 1996 the CIA paid for her
to attend Johns Hopkins University to receive a masters degree; she
also continued to receive her salary while she was in school (Position
5). In each class Johns Hopkins provided her with an oral interpreter,
a notetaker, or a court reporter and notetaker.
When she returned to the CIA on September 30, 1996, she
accepted a position as a branch chief (Position 6). While in this posi-
tion she made over 130 requests for oral interpreters or notetakers.
She received an accommodation on roughly ten occasions. Most of
her formal requests were denied because the CIA’s sign language
SZEDLOCK v. TENET 5
interpreters were booked to work at other events. The CIA did, how-
ever, seek to hire someone as a notetaker who would use the Com-
puter Assisted Notetaking System (CANS). The CIA attempted to
hire someone internally for a part-time job; Szedlock agreed that
thirty-two hours a week would satisfy her needs. This effort was
unsuccessful, although Szedlock acknowledged that the CIA’s effort
to fill this position was sincere. Moreover, her supervisors made
efforts to ensure that those attending meetings with Szedlock spoke
one at a time and within her line of sight. The CIA also looked for
contract oral interpreters, but was unable to find one with an appropri-
ate security clearance. An EEO employee attempted to recruit oral
interpreters through ads in the Washington Post, Galludet University
newspapers, and the magazine for the Registry of Interpreters for the
Deaf and through inquiries at trade shows and technology fairs. The
agency’s EEO office sent out mass mailings to interpreters listed in
the Registry of Interpreters for the Deaf and sought word of mouth
recommendations. None of these efforts were successful.
In October 1997 the CIA performed an accommodation evaluation
on Szedlock. The results of this test demonstrated that Szedlock’s
hearing had deteriorated considerably while she worked at the CIA.
She believes this loss was caused by her need to turn her hearing aids
to their highest level to improve her ability to function in meetings.
Szedlock’s disability made it difficult for her to perform her job as
a branch chief, so by mid-October 1997 she was no longer assigned
any responsibilities. She was kept on the payroll, however, while the
CIA sought a suitable position for her (Position 7). The CIA permitted
her to use her time to apply for disability benefits and work on her
EEO case. She filed for medical disability retirement, which was
granted in May 1998. She formally retired on August 10, 1998.
Szedlock filed an EEO complaint in mid-1997. The CIA’s EEO
office dismissed the complaint, and the Equal Employment Opportu-
nity Commission affirmed the dismissal. In June 2000 Szedlock
brought this action in the Eastern District of Virginia, claiming that
the CIA violated the Rehabilitation Act, 29 U.S.C. § 701 et seq., by
its failure to accommodate her disability. The CIA filed a motion to
dismiss in part and a motion for summary judgment. It argued that the
statute of limitations barred claims for any violations before April 12,
6 SZEDLOCK v. TENET
1997, that Szedlock could not perform her job even with an accom-
modation, that the CIA reasonably accommodated Szedlock’s disabil-
ity, that the CIA made a good faith effort to accommodate her
disability, and that FECA barred Szedlock’s claims for compensation
for her hearing loss. Szedlock also filed a motion for partial summary
judgment.
In March 2001 the district court granted partial summary judgment
to the CIA. The court determined that claims for any violations prior
to September 30, 1996, were time barred. The court also held that
FECA barred Szedlock’s claims for damages resulting from the hear-
ing loss. The case then went to trial. At the close of Szedlock’s evi-
dence, and again at the close of all the evidence, the CIA moved for
judgment as a matter of law on its defense that it made a good faith
effort to accommodate Szedlock. Although the district court consid-
ered the good faith issue to be a close question, it denied these
motions. The jury found for the plaintiff and awarded her $25,000 in
compensatory damages. The district court also awarded Szedlock
equitable relief in the form of backpay, although it limited the award
to two years because of her failure to mitigate damages. The court
also offset the backpay award with the retirement benefits she
received for the relevant period. Szedlock appeals the offset ruling
and the award of partial summary judgment to the CIA. The CIA
cross appeals the district court’s denial of its motion for judgment as
a matter of law on its good faith defense.
II.
Szedlock first argues that because the hearing loss she suffered
while working was caused by the CIA’s failure to accommodate, she
can receive compensatory damages for this injury under both FECA,
5 U.S.C. § 8101 et seq., and the Rehabilitation Act, 29 U.S.C. § 701et seq. We disagree. FECA provides compensation and medical bene-
fits to federal employees who suffer work-related injuries. Under
FECA employees receive something less than full compensation for
their injuries, but may recover without demonstrating that the
employer was at fault. See 5 U.S.C. §§ 8105, 8110. At the same time,
the statute limits the employee’s ability to recover from the federal
government under other statutes. The statute states that the govern-
ment’s liability under FECA:
SZEDLOCK v. TENET 7
with respect to the injury . . . of an employee is exclusive
and instead of all other liability of the United States . . .
because of the injury or death in a direct judicial proceeding,
in a civil action, or in admiralty, or by an administrative or
judicial proceeding under a workmen’s compensation statute
or under a Federal tort liability statute.
5 U.S.C. § 8116(c).
Because our circuit has not said whether a plaintiff can recover for
an injury under both FECA and the Rehabilitation Act, we look to
how other circuits have handled similar cases. Nichols v. Frank, 42
F.3d 503 (9th Cir. 1994), is analogous to this case. In that case a deaf-
mute woman was repeatedly forced to perform oral sex on her super-
visor. She received compensation under FECA for post-traumatic
stress disorder that she suffered as a result of this treatment. Id. at
515. The Ninth Circuit held that FECA was the exclusive remedy for
this work-related injury. Id. Nevertheless, it found that intangible
harms caused by sex discrimination are not injuries within the mean-
ing of FECA and that therefore Nichols could recover for such harms
under Title VII. Similarly, Szedlock has suffered two distinct injuries.
Her hearing loss is a work-related injury covered by FECA, see
§ 8101(5) (stating that an "injury" includes, among other things, "in-
jury by accident" and "a disease proximately caused by the employ-
ment"), regardless of whether the CIA was in any way at fault. Her
failure to accommodate claim, however, is quite distinct. A claim for
compensation for discrimination by the employer does not relate to an
injury within the meaning of FECA. See § 8101(5); Nichols, 42 F.3d
at 515. We agree, therefore, with the district court that FECA is
Szedlock’s exclusive compensatory remedy for her work-related hear-
ing loss.
III.
Szedlock next argues that the district court erred in determining
that the statute of limitations prevented her from bringing failure to
accommodate claims related to CIA actions prior to September 30,
1996. Szedlock was required by law to contact an EEO counselor
within forty-five days of any discriminatory act. 29 C.F.R.
1614.105(a)(1). She did not contact the CIA’s EEO until May 20,
8 SZEDLOCK v. TENET
1997. The district court nevertheless ruled that she could bring any
claims that arose after she began Position 6 on September 30, 1996,
even though the forty-five day rule, strictly applied, would have left
some events outside the statute of limitations. The CIA does not
appeal this decision.
Szedlock argues that her earlier claims are timely because, along
with the post-1996 events, they are part of a practice or a continuing
violation. The Supreme Court’s ruling in National Railroad Passen-
ger Corp. v. Morgan, 122 S. Ct. 2061 (2002), however, makes clear
that unless the plaintiff alleges a hostile work environment (which
Szedlock did not do), each instance of discrimination is a discrete act.
Id. at 2072-73. The Morgan decision controls this case. Early discrim-
inatory actions by the CIA cannot be made timely simply because
they resemble later discriminatory actions. See id. at 2072. We there-
fore affirm the district court’s decision that Szedlock’s claims arising
from conduct of the CIA prior to September 30, 1996 are time-barred.
IV.
Finally, Szedlock argues that the district court erred in deducting
ninety-four percent of her Federal Employees’ Retirement System
(FERS) benefits from her backpay award. FERS provides, among
other things, for payments of retirement benefits to those who are
forced to leave government employment early because of a disability.
See 5 U.S.C. § 8451 et seq. The program is funded by a combination
of payments from the federal government and from the employee. See
5 U.S.C. § 8422. In Szedlock’s case six percent of the benefits she
received following her disability retirement are attributable to her
own contributions. The remainder, which was deducted from her
backpay award, was attributable to the government’s contribution.
The CIA does not challenge the district court’s decision not to deduct
the six percent of the benefits attributable to Szedlock’s contributions.
Szedlock, however, challenges the deduction of the portion of her
retirement benefits associated with the CIA’s contributions. Because
she contributed to FERS, Szedlock claims, the benefits are collateral
and therefore are not duplicative of her backpay award. We disagree.
In Fariss v. Lynchburg Foundry, 769 F.2d 958, 966 n.10 (4th Cir.
1985), we held that collateral funds are "those received from a source
SZEDLOCK v. TENET 9
distinct from the employer." If the funds are not collateral, we said,
they are deducted from backpay if the payment "would not have been
made had the employee continued working." Id. at 966. To do other-
wise would "exceed[ ] the damages necessary to make the plaintiff
whole, and failure to offset it would necessarily lead to a windfall."
Id.Szedlock claims that FERS benefits are, in fact, collateral because
her contributions to FERS accounted for roughly six percent of the
benefits she is receiving. This case, she says, is therefore analogous
to National Labor Relations Board v. Gullet Gin Co., 340 U.S. 361(1951). There, the Supreme Court determined that unemployment
benefits were collateral and did not have to be deducted from back-
pay; the fact that the employer paid for some part of the unemploy-
ment benefits through its contributions did not prevent the funds from
being collateral. Id. at 364. At the very least, Szedlock concludes, the
fact that she contributed to the fund means that the FERS benefits
may be collateral, and we should adopt the Fifth Circuit’s multi-part
test to assess whether the benefits are collateral. See Phillips v. W. Co.
of N. Am., 953 F.2d 923, 932-33 (5th Cir. 1992) (concluding that, in
determining whether funds are collateral, the court should consider
factors such as (1) whether the employee contributed to the fund; (2)
whether the plan is the result of collective bargaining; (3) whether the
benefits cover injuries caused by both work and non-work activities;
(4) whether the benefits are contingent on the employee’s length of
service; and (5) whether the plan’s language discusses set-offs against
judgments in tort actions).
We believe, however, that FERS benefits are not "received from a
source distinct from the employer," Fariss, 769 F.2d at 966 n.10, and
therefore are not collateral under Fariss. Gullet Gin does not require
a different result. Although employers contributed funds to the unem-
ployment system in Gullet Gin, the benefits were paid by the state,
not the employer, and therefore were collateral. Here, both the bene-
fits and the backpay come from the same source—the federal govern-
ment. The fact that Szedlock contributed to FERS does not make
these benefits collateral. It may be that at some point the employee’s
share of the contributions would so eclipse the government’s share
that we would have to consider whether the funds had become collat-
eral, but we are satisfied that a six percent contribution does not make
10 SZEDLOCK v. TENET
this such a case. Cf. Phillips, 953 F.2d at 931 (explaining that it would
not undertake its multi-part analysis when the entire benefit comes
from the federal government). The district court was therefore correct
in deducting ninety-four percent of Szedlock’s FERS benefits from
her backpay award. See also 5 C.F.R. § 550.805(e).
Given this holding, Szedlock asks us to remand the case for a recal-
culation of her FERS benefit that would take into account the two
additional years of service for which she was awarded backpay.
Szedlock, however, failed to raise this calculation issue below.
Because the failure to correct this error—if there is one—does not rise
to the level of a denial of fundamental justice, see Stewart v. Hall, 770
F.2d 1267, 1271 (4th Cir. 1985), we deny Szedlock’s request for
remand.
V.
The CIA cross-appeals, urging us to grant it judgment as a matter
of law based on its good faith defense. Because there is a jury verdict
in favor of Szedlock, we review the evidence in the light most favor-
able to her. We will not reverse if there is evidence on which a rea-
sonable jury could return a verdict for Szedlock. See Price v. City of
Charlotte, 93 F.3d 1241, 1249-50 (4th Cir. 1996). The government
stresses the efforts it made to find Szedlock an oral interpreter or a
secretary who could use an appropriate note taking system, see e.g.,
J.A. 261-64, 317, 416-17 (testimony on the effort to find a notetaker);
J.A. 415-16, 470-73, 476-77 (testimony on the effort to find an oral
interpreter). Szedlock herself acknowledged that the CIA’s efforts to
find someone to act as a dedicated notetaker for her were sincere.
While we agree with the district court that the CIA presented consid-
erable evidence to support its good faith defense, making this a close
case, a reasonable jury could have still concluded that the CIA did not
make a good faith effort. The jury may have taken note of the fact that
the CIA did not provide Szedlock with a sign language interpreter
who also mouthed the words when one might have been available.
The jury may also have believed that the CIA should have made the
notetaker position a full-time position in an effort to attract more can-
didates. It may also have been persuaded that the CIA could have
hired a new employee and then provided training in oral interpretation
to ensure that Szedlock’s disability was accommodated. While we
SZEDLOCK v. TENET 11
also believe that the good faith question is a close one, a reasonable
jury could have decided that the CIA’s failure to make these efforts
demonstrated that it was not acting in good faith. Accordingly, we
reject the CIA’s cross-appeal.
VI.
The judgment of the district court is affirmed.
AFFIRMED