Ayer v. USA ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-50734
Summary Calendar
ELIZABETH J. AYER,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
For the Western District of Texas
(A-93-CV-46)
June 19, 1996
Before POLITZ, Chief Judge, JOLLY and DeMOSS, Circuit Judges.
POLITZ, Chief Judge:*
Elizabeth J. Ayer appeals the magistrate judge’s dismissal of her lawsuit alleging
improper and discriminatory employment termination. Finding no error, we affirm.
Background
Ayer was employed at the United States Department of Veteran Affairs’ Data
Processing Center in Austin, Texas. She worked in the Veterans Assistance Discharge
*
Pursuant to Local Rule 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule
47.5.4.
System unit entering data into the department’s computer system, a job which required
typing the entire eight-hour workday. On August 16, 1989, Ayer filed a notice of
occupational disease and claim for compensation with the Office of Worker’s Compensation
Programs. Although this claim was initially rejected, Ayer was diagnosed in May of 1990
with bilateral carpal tunnel syndrome. Based upon this additional evidence, the OWCP
accepted Ayer’s claim on January 4, 1991.
Ayer was restricted to typing four hours a day and underwent carpal tunnel release
surgery on September 19, 1990. On January 24, 1991, Ayer’s orthopedic surgeon stated that
Ayer should continue typing only half-days. On March 15, 1991, this medical restriction
was increased to allow only two hours of typing per day, and on April 19, 1991 this
restriction was continued indefinitely.
In April and May of 1991 the VADS unit was reorganized and the work done by Ayer
was contracted out to a private company. On June 3, 1991 Ayer was reassigned to the
position of Computer Clerk (GS-4). This position required no typing, only the opening and
sorting of mail, lifting of computer tapes and printouts, and pushing and pulling carts. On
May 24, 1991, Ayer filed a second claim for worker’s compensation in which she alleged
that she had incurred tendinitis of both shoulders and myofascitis from her new job
assignment.
Ayer sought advice from the Personnel Office in July of 1991 about filing for
disability retirement. At this time she had two claims for occupational illness pending with
the OWCP and she was given both the forms for disability retirement and information about
2
OWCP’s permanent compensability plan. She was also told to provide detailed medical
documentation about her disability.
On August 15, 1991, Ayer’s superiors were informed that her orthopedic doctor had
increased her work restrictions as follows:
(1) no lifting of items weighing greater than 10 pounds;
(2) no frequent bending, standing, and sitting;
(3) only light pushing and pulling, and no climbing; and
(4) no repetitive use of the left wrist/arm for things such as typing,
batching, lifting, etc.
The DPC, the VA Finance Center, and the VA Systems Development Center1 in Austin had
no work at the GS-4 level for which Ayer was qualified, given these permanent restrictions.
Meanwhile, Ayer’s second worker’s compensation claim had been advancing through
the process. On August 22, 1991, the OWCP responded to Ayer’s first claim, stating that
although she would be compensated for the carpal tunnel syndrome and resulting surgery,
the infirmities in her left shoulder did not appear to be work-related. The OWCP advised
Ayer to file a new claim for her shoulder condition if she believed it to be work-related.
Ayer appealed this decision to the Employee’s Compensation Appeals Board.
On September 13, 1991, Ayer was given a written notice of proposed removal by the
chief of the operations division at the DPC. This notice explained that the DPC had no jobs
which could accommodate Ayer’s occupational illness and no jobs which could be
restructured in a reasonable manner to provide such accommodation. On October 4, 1991,
1
These were the three VA entities over which the Director of the DPC exercised
authority.
3
the Director of the DPC decided to remove Ayer from her position. This decision was based
upon a review of Ayer’s personnel folder and related documents by a Supervisory Personnel
Management Specialist who concluded that Ayer’s qualifications and medical limitations
were such that there were no available positions at the DPC which Ayer could fill.
Ayer was suspended from the worksite, with pay, from October 4 until the effective
date of her removal on October 16. Ayer submitted an application for disability retirement
to the personnel office on October 9, 1991. This application was denied.
On November 20, 1991, Ayer’s orthopedic doctor rendered a “maximum medical
improvement impairment rating evaluation” which provided, inter alia, that “[p]atient may
resume working with restrictions of no lifting of greater than 10 pounds using the left upper
extremity and no repetitive lifting.” On December 30, 1991, Ayer telephoned the assistant
personnel officer at the DPC and informed him that she could return to work with the
restriction that she could not lift more than 10 pounds. The personnel officer declined
Ayer’s offer, noting that this information was inconsistent with the doctor’s prior
“permanent” restrictions and that there were no available positions which could meet those
restrictions. The officer did, however, suggest that Ayer submit an application for
employment to the DPC.
On December 18, 1991 the OWCP rejected Ayer’s second claim for worker’s
compensation, finding that the evidence of record did not support the proposition that Ayer’s
shoulder ailments were work-related, and denied three requests for reconsideration of that
decision. This decision was later affirmed by the ECAB.
4
On March 30, 1992, the ECAB dismissed Ayer’s appeal from the OWCP’s resolution
of her first worker’s compensation claim. The Board concluded that it was without
jurisdiction because Ayer was not adversely affected by a final decision of the OWCP
denying benefits. Rather, the OWCP had accepted both her claim and her surgical
procedure, and had instructed Ayer in a letter dated September 10, 1991 to complete an
enclosed form for compensation on account of injury.2
Ayer filed a grievance with the Merit Systems Protection Board in January of 1992
alleging discrimination on the basis of her age and handicap. The MSPB rejected her claims,
finding instead that she had not been wrongly removed. Ayer, proceeding pro se and
in forma pauperis, filed this lawsuit on February 10, 1993, naming a plethora of defendants.3
Ayer’s complaint alleged that she was subjected to an unsafe and hostile work environment,
was discriminated against in employment on the basis of her age and handicap, and was
wrongfully removed from her position as a computer clerk due to a failure to accommodate
her medical restrictions.
The defendants responded by filing various and sundry motions seeking dismissal of
Ayer’s claims. The magistrate judge ultimately granted all of these motions and dismissed
2
The record does not reveal whether Ayer ever filed the correct form (CA-7).
3
Named as defendants are the United States of America; Jesse Brown, Secretary,
Department of Veterans Affairs; Edward J. Derwinski, former Secretary of the Department;
the Office of Worker’s Compensation Programs; Robert Evans, Director, Department of
Veteran’s Affairs, DPC; Thomas Melville, Chief Personnel Director, DPC; and Steve Bryant,
Matthew Fallon, Eugene Schladweiler, Richard Beyer, Jimmy Jean, and Terry Potter,
supervisory and/or personnel officers at the DPC.
5
all of Ayer’s claims on September 29, 1994.4 Ayer timely appeals.
Analysis
Ayer asserts that she qualifies for the assistance of counsel under the factors set out
by this court to govern such appointments in Ulmer v. Chancellor5 and that therefore the
denial of her two motions for the appointment of counsel constitute reversible error. We are
not persuaded; while this case does exhibit a copious record it does not present factual or
legal issues of unusual complexity or difficulty. In short, we conclude that Ayer has failed
to posit the sort of “extraordinary circumstances” which might warrant the appointment of
counsel in this case.6
Ayer next complains that Magistrate Judge Capelle, who entered the judgment
dismissing her lawsuit, should have been disqualified from hearing her case under 28 U.S.C.
§ 455(a) due to his impartiality and bias. Ayer points specifically to the magistrate judge’s
claimed testy treatment of her when she testified during a hearing, his denial of her motions
4
This case was decided by a magistrate judge pursuant to 28 U.S.C. § 636(c).
5
691 F.2d 209 (5th Cir. 1982). These factors include the type and complexity of the
case, whether the indigent is capable of adequately investigating and presenting the case, and
whether disposition of the case will revolve around resolving conflicting testimony so as to
require the trial skills of competent counsel. Id.
6
Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d 1078 (5th Cir. 1991). While Ayer
has posited that she has encountered problems in the presentation of her case due to
“cognitive difficulty in part as a result of taking Ibuprofin,” we see no evidence of these
problems in the record excerpts or Ayer’s pleadings and briefs of record. We note further
that the record makes it clear that Ayer’s sister, a paralegal, was allowed to assist her during
hearings in the district court, where the defendants’ witnesses were subject to cross-
examination which was neither inadequate nor inconsequential.
6
for continuance and appointment of counsel, and his admitted reliance upon the defendants’
briefs for the procedural history of the case. “Disqualification is appropriate if a reasonable
person, knowing all the relevant circumstances, would harbor doubts about the judge’s
impartiality.”7 Our review of the record reveals that the magistrate judge’s rulings were
correct; his stern treatment of Ayer during the hearing was minor and prompted by her
vacillating testimony. We find the procedural history recited in the defendants’ brief to be
accurate. Accordingly, this assignment of error lacks merit.
We now turn to the substance of the district court’s order of dismissal.8 First, we
affirm the district court’s dismissal of Ayer’s claims against the OWCP. “In enacting the
Federal Employees’ Compensation Act Congress adopted the principal compromise . . .
commonly found in workers’ compensation legislation: employees are guaranteed the right
to receive immediate, fixed benefits, regardless of fault and without need for litigation, but
in return they lose the right to sue the government.”9 The FECA precludes judicial review
7
Matter of Hipp, Inc., 5 F.3d 109, 116 (5th Cir. 1993).
8
Ayer has briefed only the appointment of counsel and disqualification issues; under
usual circumstances, the law of this circuit demands that all remaining matters be deemed
waived on appeal. See Feldt v. Mentor Corp., 61 F.3d 431 (5th Cir. 1995). We will
liberally construe Ayer’s brief, however, given her status as a pro se petitioner and reach the
merits of the judgment of dismissal. In addition, as the discussion infra discloses, we, like
the district court, read Ayer’s complaint as a request for judicial review of the MSPB’s
adverse determination.
9
Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 194 (1983).
7
of Ayer’s compensation claims.10
Reviewing those claims made in Ayer’s complaint not previously presented to the
MSPB, we need only note that the Labor-Management Agreement governing Ayer’s federal
civilian employment provides adequate grievance procedures for claimants such as Ayer, and
therefore falls under the Civil Service Reform Act of 1978. “[T]he CSRA provides that the
procedures established within collective bargaining agreements for the settlement of
grievances ‘shall be the exclusive procedures for resolving grievances which fall within its
coverage.’”11 Accordingly, all claims not placed before the MSPB properly are dismissed.
Finally, we review the district court’s dismissal of Ayer’s claims which were heard
by the MSPB.12 The district court, in its review of the MSPB’s decision, was limited to an
“arbitrary and capricious” or “substantial evidence” standard as to the nondiscrimination
claims, but was obligated to give Ayer’s discrimination claims de novo review.13 Our review
of the record reveals no error in the district court’s conclusion that there exists substantial
evidence to support the MSPB’s determination that Ayer’s nondiscrimination claims have
10
5 U.S.C. § 8128(b). See also Southwest Maritime, Inc. v. Gizoni, _____ U.S. _____,
112 S. Ct. 486, 493 (1991) (“FECA contains an ‘unambiguous and comprehensive’ provision
barring any judicial review of the Secretary’s determination of FECA coverage”).
11
Morales v. Dep’t of the Army, 947 F.2d 766, 769 (5th Cir. 1991), quoting 5 U.S.C.
§ 7121(a).
12
Because we agree that the district court’s grant of summary judgment was correct in this
case, we need not address the alternative bases upon which the dismissal of various claims
and defendants were predicated.
13
5 U.S.C. § 7703(c); Williams v. Dep’t of the Army, 715 F.2d 1486 (Fed.Cir. 1983).
8
no merit.
The district court also found no merit in Ayer’s age and handicap discrimination
claims.14 Ayer offered no evidence that she was able to perform the duties of a computer
clerk, that she was replaced by a younger employee, or that her handicap reasonably could
be accommodated by the DPC.15 Reviewing the record de novo, we find summary judgment
was proper as to these claims.
AFFIRMED.
14
These claims arise under the Age Discrimination in Employment Act, 29 U.S.C. § 633a,
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-16, and the
Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.
15
See Meinecke v. H&R Block of Houston, 66 F.3d 77 (5th Cir. 1995); Chiari v. City
of League City, 920 F.2d 311 (5th Cir. 1991).
9