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June 3, 1992


The opinion of the court was delivered by: THOMAS A. HIGGINS

 This action was tried without the intervention of a jury on the plaintiff's claim for discriminatory discharge, in violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Having considered the evidence and the entire record, the Court makes the following findings of fact and conclusions of law.


 The plaintiff, Mary Tuck, began working at Donelson Hospital in 1979 as a registered nurse. Mrs. Tuck worked both as a registered nurse and as a charge nurse in several different wards of the hospital during the years that followed. As a charge nurse on the orthopedic ward, Mrs. Tuck took reports on the patients, made assignments for the registered nurses on the ward, made rounds with the doctors, and generally supervised the work of the other nurses and assisted them when required. From 1979 to 1988, Mrs. Tuck received annual evaluations from her supervisors ranging from "good to very good" to "outstanding." She was named the hospital's Employee of the Month for September, 1985.

 Dr. Gaines determined that Mrs. Tuck had a 15 percent permanent physical impairment to the body as a whole due to her back injuries, and a permanent disability to the body as a whole of 37 1/2 percent. After the surgery, Mrs. Tuck was required to wear a back brace at all times, except while bathing. On December 5, 1989, Dr. Gaines altered his orders, requiring Mrs. Tuck to wear the back brace only on car trips or when she was outside or bending over. Dr. Gaines did not allow Mrs. Tuck to return to work after the surgery until early in 1990. On January 18, 1990, he wrote a release restricting her to light duty for two months. Other than this restriction to light duty, Dr. Gaines did not place any specific restrictions on Mrs. Tuck's activities.

 When Mrs. Tuck returned to work, she gave the hospital Dr. Gaines' release and informed the hospital that she could not do any heavy lifting, bending, pushing or pulling. Prior to her extended leave of absence, Mrs. Tuck had worked as a charge nurse on the orthopedic ward, working an eight hour shift. However, since that position had been filled during her absence, Mrs. Tuck was assigned as a staff nurse on the Progressive Care Unit, working a twelve hour shift. Cathy Parrish, the Chief Nursing Executive, and Ruth Harkreader, the clinical coordinator, discussed the nursing positions available at the time, and decided that the Progressive Care Unit was the best place for Mrs. Tuck. According to Ms. Parrish, the nursing station was centralized, the halls were shorter, there were only fourteen beds, and the other nurses were to help Mrs. Tuck with any lifting while she helped them with their less physically strenuous tasks.

 Mrs. Tuck worked on the Progressive Care Unit from February to March 27, 1990, when she was terminated. She was unaware of any complaints about her work, and there were no written complaints or reprimands in her employee file. However, apparently, the other nurses on the ward complained that Mrs. Tuck was not helping them with their tasks although they were helping her with heavy lifting.

 On the night of March 23, 1990, Mrs. Tuck, Nell Sergeant, and a third nurse who called in sick, were scheduled to work the 7:00 p.m. to 7:00 a.m. shift. There were initially ten patients in the ward, and four more were admitted during the night for a total of fourteen. Charlene Reagan, the shift coordinator, was notified that the third nurse had called in sick. She attempted to call in an additional nurse to assist Mrs. Tuck and Ms. Sergeant. She was unsuccessful, and assisted Mrs. Tuck and Ms. Sergeant to the best of her ability, given her other duties in the hospital, throughout the remainder of the shift.

 After this shift, Mrs. Tuck next worked the 7:00 p.m. to 7:00 a.m. shift on March 26-27, 1990. When she got off work that morning, she was terminated by the hospital. According to the termination interview form, Mrs. Tuck was "unable to perform expected staff nurse duties on progressive care due to her inability to do any lifting or pushing or to walk the length of the hall 'due to pain in her leg.'"

 On March 27, 1991, Mrs. Tuck filed this action alleging violations of the Rehabilitation Act of 1973 (29 U.S.C. § 794), 42 U.S.C. § 1983, and the Tennessee Human Rights Act (Tenn. Code Ann. § 4-21-101 et seq.). A claim for retaliatory discharge was added subsequently. The Court granted defendant's motion for summary judgment on the retaliatory discharge claim. The Tennessee Human Rights Act claim was tried before a jury on February 4-7, 1992. The jury found for the plaintiff, and awarded damages in the amount of $ 26,755.00. The Rehabilitation Act claim was tried before the Court, and is the subject of this memorandum and order.

 A. The Rehabilitation Act of 1973

 Section 504 of the Act, codified at 29 U.S.C. § 794 (1988), requires in pertinent part that: "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. . . ." The elements of a cause of action under the Act are:

(1) The plaintiff is a 'handicapped person' under the Act; (2) The plaintiff is 'otherwise qualified' for participation in the program; (3) The plaintiff is being excluded from participation in, being denied the benefits of, or being subjected to discrimination under the program solely by reason of his handicap; and (4) The relevant program or activity is receiving Federal financial assistance.

 Doherty v. Southern College of Optometry, 862 F.2d 570, 573 (6th Cir. 1988), cert. denied, 493 U.S. 810, 110 S. Ct. 53, 107 L. Ed. 2d 22 (1989) (citations omitted). In the present case, the parties have stipulated that Mrs. Tuck is handicapped *fn1" and that Donelson Hospital receives federal financial assistance. Therefore, the sole remaining elements at issue are whether Mrs. Tuck is "otherwise qualified" and whether she was discriminated against "solely by reason of [her] handicap." Doherty, 862 F.2d at 573. In addition, the defendant argues that Mrs. Tuck failed to exhaust her administrative remedies before filing suit, and therefore that she cannot prevail on her claim as a matter of law. The Court will take up this threshold matter first.

 (1) Administrative Remedies

 Donelson Hospital argues that Mrs. Tuck was required to exhaust available statutory or regulatory administrative remedies before bringing suit under section 504. This would be true if Mrs. Tuck were employed by the federal government. However, Mrs. Tuck is employed instead by a private employer which receives federal financial assistance. The two Sixth Circuit cases cited by the defendant in support of its position involve Postal Service employees suing the Postal Service. See Hall v. United States Postal Serv., 857 F.2d 1073 (6th Cir. 1988); Smith v. United States Postal Serv., 742 F.2d 257 (6th Cir. 1984). The Court in Smith, examining the legislative intent of the statute, found it "clear that handicapped employees have the right to sue federal employers under the Act 'subject of course to the provisions for exhaustion of administrative remedies and other rules for procedures set forth in Title VII.'" Smith, 742 F.2d at 261 (emphasis added) (quoting 124 Cong. Rec. 30,347 (1978) (remarks of Sen. Cranston)).

 In the context of private employers and private employees, however, there is no exhaustion requirement. When the Act was first promulgated there was no provision for a private right of action. However, in 1978 Congress amended the Act to provide a private right of action. Handicapped federal employees were given the "remedies, procedures, and rights" of Title VII of the Civil Rights Act of 1964, see 29 U.S.C. § 794a(a)(1), and were required to exhaust administrative remedies just like other claimants under Title VII. Byers v. Rockford Mass Transit Dist., 635 F. Supp. 1387, 1389 (N.D. Ill. 1986). Handicapped employees who work for recipients of federal financial assistance, on the other hand, were given the "remedies, procedures, and rights" of ...

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