        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206            2       Smith v. Henderson                                No. 02-6073
    ELECTRONIC CITATION: 2004 FED App. 0228P (6th Cir.)
                File Name: 04a0228p.06                     Hill, ASSISTANT UNITED STATES ATTORNEY,
                                                           Louisville, Kentucky, for Appellee. ON BRIEF: Karen L.
                                                           Stewart, LAW OFFICE OF KAREN L. STEWART,
UNITED STATES COURT OF APPEALS                             Louisville, Kentucky, for Appellant. Candace G. Hill, Terry
                                                           M. Cushing, ASSISTANT UNITED STATES ATTORNEY,
              FOR THE SIXTH CIRCUIT                        Louisville, Kentucky, for Appellee.
                _________________
                                                                                  _________________
 MARY CHRISTINE SMITH,             X
         Plaintiff-Appellant,       -                                                 OPINION
                                    -                                             _________________
                                    -  No. 02-6073
             v.                     -                         CLAY, Circuit Judge. Plaintiff Mary Christine Smith
                                     >                     appeals the August 1, 2002, order of the United States District
                                    ,                      Court for the Western District of Kentucky, granting
 WILLIAM J. HENDERSON ,             -
 Postmaster General, United                                Defendant United States Postal Service’s1 motion for
                                    -                      summary judgment on her claims for sex discrimination, in
 States Postal Service,             -                      violation of Title VII of the Civil Rights Act of 1964, as
            Defendant-Appellee. -                          amended, 42 U.S.C. § 2000e, et seq.; age discrimination, in
                                    -                      violation of the Age Discrimination in Employment Act of
                                    -                      1967, 29 U.S.C. § 621, et seq.; disability discrimination, in
                                   N                       violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791,
        Appeal from the United States District Court       et seq.; and for violations of the Equal Pay Act, 29 U.S.C.
     for the Western District of Kentucky at Louisville.   § 206(d). Because the district court erred in granting
  No. 00-00515—Charles R. Simpson, III, District Judge.    summary judgment for the United States Postal Service on
                                                           Smith’s claims for sex, age and disability discrimination, but
                Argued: January 27, 2004                   not in dismissing the Equal Pay Act claim, the Court
                                                           AFFIRMS, in part, and REVERSES, in part, the judgment
           Decided and Filed: July 15, 2004                below.

Before: SUHRHEINRICH, CLAY, and SUTTON, Circuit
                   Judges.
                  _________________
                       COUNSEL                                 1
                                                                 The Defendant named in Smith’s complaint is William J.
                                                           Henderso n, Postmaster General, United States Postal Service. The
ARGUED: Karen L. Stewart, LAW OFFICE OF KAREN L.           complaint appears to sue H enderson in his official capacity. For purposes
STEWART, Louisville, Kentucky, for Appellant. Candace G.   of this opinion, the Court refers to Defendant as the United States Postal
                                                           Service or USPS.

                            1
No. 02-6073                         Smith v. Henderson       3    4    Smith v. Henderson                         No. 02-6073

                              I.                                  Elizabethtown Post Office, Mullin assigned Conklin to
                                                                  supervise Smith and the acting Tour II Supervisor, who was
                     Substantive Facts                            a male. According to Mullin, and confirmed by Conklin,
                                                                  Conklin altered Smith’s staff assignments because “the work
   In July, 1979, Plaintiff Mary Christine Smith began her        she anticipated that her staff would do that following night
career for the USPS as a distribution clerk in Evansville,        had been done during the day while she was gone, or because
Indiana. In September, 1986, Smith was transferred to             she had not most efficiently used her staff, and had made
Elizabethtown, Kentucky, where her title remained                 assignments which were going to cause overtime to be used.”
distribution clerk. At some point in 1986, Smith disclosed to     (J.A. 50, 63.)
her supervisors that she has rheumatoid arthritis, which
“affects the mobility of [her] hands, legs and feet.” (J.A. 7,      Smith next complains that Mullin refused to authorize
Complaint, ¶ 8.) In 1997, Smith’s physician limited her work      Smith to approve overtime for her employees. Smith claims
time to 8 hours per day, 40 hours per week, and limited her       that the overtime was necessary to manage the Tour I
lifting to no more than 20 pounds. The USPS’s physicians          workload. According to Mullin, he refused the overtime
and supervisory personnel approved of these work                  requests because a supervisor “must balance work-load,
restrictions.                                                     overtime hours considering employees on vacation, and what
                                                                  work will be accomplished by the next tour after that
   In early 1998, a panel of postmasters from the area            Supervisor’s employees leave for the day.” (J.A. 48.) All of
surrounding Elizabethtown, Kentucky recommended Smith             this balance must be accomplished with “an eye towards
for promotion to customer service supervisor, Tour I,             keeping costs down, and keeping efficiency – moving the
effective March 15, 1998. Tour I is the night shift at the post   mail – up.” Id.
office when all mail must be off-loaded from the trucks,
sorted and dispatched out to the associate post offices. One        Smith also complains that Mullin refused to permit her to
day before the effective date of her promotion, Smith met         delegate the duty of facility-wide financial accounting to a
with her immediate supervisor, Tom Mullin, and Tony               subordinate employee, as he had permitted the male Tour I
Conklin, a customer service supervisor. Mullin and Conklin        supervisors who had preceded her in that position. As a
allegedly attempted to talk Smith out of accepting the            result, Smith’s work day was lengthened, requiring her to
supervisor position. Smith nevertheless accepted the              work between 10 and 12 hours a day, in contravention of her
promotion.                                                        medical restriction. For one stretch of time (between June 5
                                                                  and July 5, 1998), Smith worked for thirty days straight
  According to Smith, after she became the Tour I                 without a day off. For another stretch (between July 2 and 17,
Supervisor, she suffered through a series of events that          1998), Smith was required to work with only one or two days
ultimately left her no choice but to quit her job only four       off.
months later. Smith first complains that Conklin, with
Mullin’s consent, unilaterally altered work schedules that          The USPS concedes that the Tour I Supervisor’s accounting
Smith had prepared for the employees she supervised. She          duties are time-consuming. It points out that Conklin,
argues that male supervisors’ work schedules were never           Smith’s male predecessor as Tour I Supervisor, used to spend
changed without their prior consent. In response, USPS            two to three hours per day on the accounting function. The
explains that, because of the pending relocation of the           USPS argues that Mullin would have permitted Smith to
No. 02-6073                          Smith v. Henderson       5    6    Smith v. Henderson                         No. 02-6073

delegate the accounting functions to a subordinate, as long as       On July 17, 1998, Mullin directed Smith to report for duty
“the assignment did not result in mail being delayed, if it did    the following Monday, which was one of Smith’s scheduled
not violate the terms of the union contract, if it did not cause   days off. “[E]xhausted and in constant pain,” Smith resigned
an increase in work hours and if it did not cause                  her position. (J.A. 10.) She applied for and was granted a
Elizabethtown to incur unnecessary overtime.” (J.A. 48-9.)         disability retirement based on her physician’s statement that
Mullin did not permit Smith to delegate these duties because       she could not hold a full-time job.
Smith’s mail production numbers were down, while the costs
were up. Smith has acknowledged that production was down                               Procedural History
on Tour I because she was pulling a subordinate from the
production line to perform the accounting work.                       On June 5, 2000, Smith filed a complaint in the United
                                                                   States Bankruptcy Court for the Western District of Kentucky
   Smith next alleges that Mullin verbally berated her in front    against the United States Postal Service. The case
of subordinates, calling her “incompetent” on at least one         subsequently was transferred to the U.S. District Court.
occasion. (J.A. 9, 105-06.) Smith also points to deposition        Smith’s complaint alleged the following claims: (1) failure
testimony of a USPS employee who stated that Mullin would          to reasonably accommodate her “medical limitations” as
publicly point out “every picky little thing he could possibly     required by the Rehabilitation Act of 1973, 29 U.S.C. § 791,
find” about Smith’s job performance. (J.A. 102-03.) Mullin         et seq.; (2) sex discrimination under Title VII of the Civil
has not denied that he called Smith incompetent, but he does       Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.,
indicate that he held Smith accountable for doing her job,         because she was required to perform duties not required of
including with respect to the mistakes in her bookkeeping          similarly situated male employees; (3) violation of the Equal
duties.                                                            Pay Act, 29 U.S.C. § 206(d), because Smith was required to
                                                                   perform “duties in excess of the number of hours allocated
   On May 3, 1998, Smith wrote Mullin a letter complaining         therefor”; and (4) age discrimination in violation of the Age
about (a) the fact that she needed either Mullin’s or Conklin’s    Discrimination in Employment Act of 1967, 29 U.S.C. § 621,
authorization for her requests for overtime, allegedly resulting   et seq.
in reduced staffing for Tour I; (b) harassment by Conklin,
including his alleged mocking of her hand movements and               On November 30, 2001, the USPS moved for summary
statements about her standing with her hands in her pockets;       judgment on Smith’s complaint, and the district court granted
and (c) being disparately treated in not being permitted to        USPS’s motion on August 1, 2002. In its memorandum
delegate some of her job duties, as Conklin had been               opinion, the court ruled that Smith could not state a prima
permitted when he was the Tour I Supervisor. Mullin                facie case for her discrimination claims under Title VII, the
allegedly responded to Smith’s letter by telling her that she      ADEA and the Rehabilitation Act because she did not suffer
was “now in a man’s world” and accusing her of “always             an adverse employment action. The court rejected Smith’s
whining.” (J.A. 9-10.)                                             argument that her voluntary resignation was a constructive
                                                                   discharge. The court reasoned that the alleged conduct by the
   Finally, Smith complains that Mullin directed her to            USPS was not “‘so intolerable that a reasonable person would
underreport the hours she worked. Mullin denies this               feel compelled to resign.’” Smith v. Henderson, No. 3:00CV-
allegation, claiming that such a direction would have violated     515-S, slip op. at 4 (W.D. Ky. Aug. 1, 2002) (quoting Turner
USPS policy.                                                       v. Pendenis Club, 19 S.W.3d 117, 121 (Ky. Ct. App. 2000)
No. 02-6073                         Smith v. Henderson       7    8        Smith v. Henderson                        No. 02-6073

(citing Darnell v. Campbell Cty. Fiscal Ct., 731 F. Supp.             2.    Remaining Employment Discrimination Claims
1309 (E.D. Ky. 1990)). In support of her Equal Pay Act
claim, Smith had argued that although her salary had been the       Like the district court below, both Smith and the USPS
same as her male counterparts, she was required to work           have limited their legal argument as to the viability of Smith’s
longer hours and thus was effectively paid less for the same      age, sex and disability claims to the issue of whether Smith
job. The court rejected this argument because Smith actually      was constructively discharged. Accordingly, this Court has
was complaining of the same wages for different work, a           limited its analysis to whether summary judgment was
claim which is not colorable under the Equal Pay Act. Smith       warranted solely on the ground that Smith did not suffer an
filed her notice of appeal on August 29, 2002.                    adverse employment action in the form of a constructive
                                                                  discharge.
                              II
                                                                    The existence of a constructive discharge “depends upon
A. Standard of Review                                             the facts of each case and requires an inquiry into the intent of
                                                                  the employer and the reasonably foreseeable impact of the
   The Court reviews a district court’s grant of summary          employer’s conduct upon the employee.” Held v. Gulf Oil
judgment de novo, and affirms such a judgment only if there       Co., 684 F.2d 427, 432 (6th Cir. 1982). A constructive
is no genuine issue of material fact and the movant is entitled   discharge requires a determination that “‘working conditions
to judgment as a matter of law. Cotter v. Ajilon Serv., Inc.,     would have been so difficult or unpleasant that a reasonable
287 F.3d 593, 597 (6th Cir. 2002). “The Court should believe      person in the employee’s shoes would have felt compelled to
the evidence presented by the nonmovant, and draw all             resign.’” Id. (quoting Bourque v. Powell Elec. Mfg., 617 F.2d
justifiable inferences in [her] favor.” Id. (citing Plant v.      61, 65 (5th Cir. 1980)). See also Policastro v. Northwest
Morton Int’l, Inc., 212 F.3d 929, 933-34 (6th Cir. 2000)).        Airlines, Inc., 297 F.3d 535, 539 (6th Cir. 2002) (conditions
                                                                  supporting a constructive discharge “must be objectively
B. Analysis                                                       intolerable to a reasonable person”) (citations omitted).
  1.   Equal Pay Act Claim                                          Smith points to the following facts in support of her
                                                                  constructive discharge claim: (1) Conklin, a supervisor like
  Smith has presented absolutely no argument on appeal            Smith, unilaterally altered the work schedules Smith had
regarding the district court’s dismissal of her Equal Pay Act     prepared for her employees; (2) Mullin, Smith’s direct
claim. Accordingly, she has waived her right to challenge the     supervisor, refused to authorize Smith to approve overtime for
district court’s grant of summary judgment for the USPS on        her employees, which Smith claims was necessary to manage
that claim. See Smoot v. United Transp. Union, 246 F.3d 633,      the Tour I workload; (3) Mullin refused to permit Smith to
647 (6th Cir.2001) (“This Court deems issues presented in a       delegate the duty of facility-wide financial accounting to a
perfunctory manner on appeal to have been waived.”).              subordinate employee, as he had permitted other Tour I
                                                                  Supervisors to do, resulting in her working between 10 and 12
                                                                  hours a day, in contravention of her medical restrictions; (4)
                                                                  Mullin criticized Smith in front of subordinates, calling her
                                                                  “incompetent” on at least one occasion; (5) Mullin called
                                                                  Smith a whiner after she had complained in writing about
No. 02-6073                           Smith v. Henderson        9    10   Smith v. Henderson                         No. 02-6073

Mullin’s failure to authorize overtime for her employees,            § 791(g) (providing that complaints of nonaffirmative action
statements by Conklin that she perceived as “mocking,” and           disability discrimination under the Rehabilitation Act are
not being permitted to delegate some of her job duties to            governed by the standards under Title I of the ADA); 39
subordinates; and (6) Mullin allegedly directed Smith to             C.F.R. § 255.5 (USPS Rehabilitation Act regulation that
underreport the hours she had worked.                                adopts by reference the EEOC’s ADA regulations set forth at
                                                                     29 C.F.R. part 1614); 29 C.F.R. § 1614.203(b) (EEOC
   The above-described actions involve the manner in which           regulation providing that the Rehabilitation Act standards are
the USPS supervised and/or criticized Smith’s job                    the same as the ADA standards set forth at 29 CFR part
performance and assigned job duties to her, actions which            1630). Under these regulations, it would have been unlawful
normally are insufficient to establish a constructive discharge      for the USPS not to make reasonable accommodation to
as a matter of law. E.g., Policastro, 297 F.3d at 539 (holding       Smith’s known physical limitations, unless the
that employee was not constructively discharged where the            accommodation would have imposed “an undue hardship on
only aspect of her job that changed was that she would have          the operation of its business.” 29 C.F.R. § 1630.9(a). A
to travel more frequently); see also Tidwell v. Meyer’s              reasonable accommodation means, among other things,
Bakeries, Inc., 93 F.3d 490, 496 (8th Cir. 1996)                     “[m]odifications or adjustments … to the manner or
(“Dissatisfaction with a work assignment is, as a matter of          circumstances under which the position held or desired is
law, normally not so intolerable as to be a basis for                customarily performed.” Id. § 1630.2(o)(ii).
constructive discharge.”) (citing Carter v. Ball, 33 F.3d 450,
459 (4th Cir. 1994) (“Dissatisfaction with work assignments,           Smith was entitled to a reasonable accommodation at the
a feeling of being unfairly criticized, or difficult or unpleasant   USPS so long as she was a “qualified” individual with a
working conditions are not so intolerable as to compel a             disability, meaning that the modifications and adjustments
reasonable person to resign.”)); King v. AC & R Advertising,         she sought would have enabled her to perform the “essential
65 F.3d 764, 768-69 (9th Cir. 1995) (finding no constructive         functions” of the Tour I Supervisor job. Id.; see also id.
discharge where the plaintiff’s employment status was                § 1630.2(m); 39 C.F.R. § 255.5. The essential functions
changed from “for cause” to “at-will”; plaintiff’s managerial        means the “fundamental job duties” of the position, not
responsibilities were reduced; and his base salary was               “marginal functions.” Id. § 1630.2(n).
reduced). But this case is not the typical constructive
discharge case. Smith is alleging that the USPS failed to              The USPS has conceded that Smith, who suffers from
reasonably accommodate her disability as required by the             rheumatoid arthritis, is disabled and that it provided her a
Rehabilitation Act and that the failure-to-accommodate               reasonable accommodation in 1997 so that she could perform
precipitated her involuntary resignation. Thus, the central          her non-management position as a distribution clerk. See J.A.
issue is whether the USPS’s alleged rescission of, or refusal        42, Mem. in Support of Motion for Summary Judgment at 9
to provide, a reasonable accommodation converted her                 (“The record demonstrates and the Postal Service
resignation into a constructive discharge.                           acknowledges that plaintiff is a person with a disability, and
                                                                     that the disability was accommodated given the restrictions
  The EEOC’s regulations pursuant to Title I of the                  that were in place for plaintiff since 1997.”). That
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101           accommodation limited her work to no more than eight hours
et seq., set forth the relevant legal standards for a                per day, 40 hours per week. It can be inferred from the record
Rehabilitation Act claim against the USPS. See 29 U.S.C.             that the Tour I Supervisor position that Smith assumed in
No. 02-6073                         Smith v. Henderson      11    12   Smith v. Henderson                          No. 02-6073

1998 generally demanded more than 40 hours of work per            would no longer apply to her job as a Tour I Supervisor.
week due in part to the accounting responsibilities. Further,     Further, Smith’s predecessor in the Tour I Supervisor job has
if this Court assumes the truth of Smith’s deposition             stated that the accounting duties would take him anywhere
testimony (as it must in this context), a reasonable jury could   from 45 minutes to three hours a day, suggesting that a
infer that, after Smith became Tour I Supervisor, Mullin          delegation of these duties would have substantially shortened
rescinded the hours-of-work accommodation that she had            Smith’s day. Taken together, these facts create a genuine
enjoyed as a distribution clerk and/or refused to extend this     issue of material fact as to whether the May 3, 1998 letter,
accommodation to her new job. See J.A. 148 (Smith’s               which sought to delegate the accounting duties, was a request
deposition testimony; testifying that Mullin reminded her         for a reasonable accommodation that triggered the USPS’s
numerous times after she became a supervisor that she “was        obligation to participate, in good faith, in an “interactive
an exempt employee and [she] could work over 40 hours and         process” with Smith as to potential reasonable
[her] medical restrictions didn’t apply because [she] was an      accommodations. 29 C.F.R. § 1630.02(o)(3); Brown v. Chase
exempt employee”) (emphasis added).                               Brass & Copper Co., Inc., 14 Fed. Appx. 482, 487 n.2 (6th
                                                                  Cir. 2001) (“If an employer's unwillingness to engage in such
   Additionally, it can be inferred from the record that, after   a process leads to a failure to reasonably accommodate an
Mullin refused to honor the hours-of-work accommodation,          employee, the employer might be liable under the ADA.”)
he subsequently denied Smith another form of                      (citing Beck v. University of Wis. Bd. of Regents, 75 F.3d
accommodation that effectively would have reduced her work        1130, 1135 (7th Cir.1996)). According to Smith, Mullin
hours in the Tour I Supervisor position. Via a letter dated       rejected her proposed accommodation, telling her that she was
May 3, 1998, Smith asked Mullin if she could delegate her         “now in a man’s world” and accusing her of “always
financial accounting duties to a subordinate, as other Tour I     whining.” Thus, if a jury were to find that Smith’s May 3,
Supervisors had done in the past. Since it is undisputed that     1998, letter constituted a request for a reasonable
the accounting duties were time-consuming and Mullin was          accommodation, there appears to be little dispute that the
aware of Smith’s disability and her need to work restricted       USPS flatly denied that request.
hours, a factfinder could infer that Smith’s letter constituted
a request for an accommodation that would have substantially         The USPS argues that Smith waived her right to request a
shortened her work day, in line with her medical restrictions.    delegation-of-accounting-duties accommodation because “she
                                                                  was told before she assumed the duties she would not be
  Such an inference would be reasonable even though               allowed to delegate [the financial accounting duties].”
Smith’s letter did not use the word “accommodation” or            Appellee’s Br. at 26. The USPS, however, fails to cite to any
specifically mention that she was seeking to delegate the         record evidence in support of this assertion. In any event, a
accounting function because of her disability. The context in     qualified individual with a disability does not waive her right
which the letter was written permits an inference that Mullin     to an accommodation in the form of a modification of job
knew or should have known that Smith sought to delegate her       duties simply by being apprised of the job duties before she
accounting duties in order to make her job conform with her       commences work. If this were the rule of law, it is difficult
medical restrictions. Mullin was well aware of Smith’s            to see how a disabled individual ever would be entitled to a
disability and her need for a medical restriction on her hours    reasonable accommodation, since people usually are aware of
of work when she was a distribution clerk. As previously          what their duties will be before they start a new job.
noted, Mullin told Smith that her medical accommodation
No. 02-6073                              Smith v. Henderson          13    14   Smith v. Henderson                           No. 02-6073

   Given the precedent of prior Tour I Supervisors delegating              when the USPS had permitted other Tour I Supervisors to use
the accounting function to subordinate employees (including                subordinate employees for the accounting function.
to Smith before she was promoted), there also is a genuine
issue of material fact as to whether the accounting duty was                 The USPS further argues that Smith was not permitted to
an essential function of the Tour I Supervisor position. As a              delegate the accounting function because she did not know
non-essential function, the accounting duty potentially could              how to do it correctly. See Appellee’s Br. at 26-27 (“It was
have been reassigned to subordinate employees as a                         not unreasonable to … not allow her to delegate the
“reasonable” accommodation of Smith’s disability. See 29                   accounting until she, like Conklin [the former Tour I
C.F.R. § 1630.2(o)(3) (noting that “[j]ob restructuring” may               Supervisor], knew how to correctly perform it.”). But the fact
be a reasonable accommodation”); Id. Part 1630, App.                       that Smith could not adequately perform a marginal job
(Interpretive Guidance on Title I of the ADA) (“An employer                function suggests that it would have benefitted the USPS to
or other covered entity may restructure a job by reallocating              assign that function to another employee. Ironically, the
or redistributing nonessential, marginal job functions.…An                 USPS’s argument tends to show that the accommodation
employer or other covered entity is not required to reallocate             Smith requested was reasonable.
essential functions.”).
                                                                             The USPS also has presented no evidence regarding other
  And if a factfinder reasonably could infer that the                      factors relevant to the “undue hardship” defense, such as the
accounting duty was a non-essential job function that could                overall financial resources of the Elizabethtown Post Office,
have been reassigned, there also is a genuine issue of material            the overall financial resources of the USPS, and the impact on
fact as to whether this accommodation would have imposed                   the Elizabethtown Post Office’s ability to conduct business.
an “undue hardship” on the USPS, a circumstance that would                 29 C.F.R. § 1630.2(p)(ii), (iii),(v). On the facts of this case,
have justified the USPS’s denial of that accommodation. 29                 we believe that a jury is in the best position to weigh these
C.F.R. § 1630.9(a). The USPS bears the burden of providing                 factors.
undue hardship,2 but it has not set forth specific facts
indisputably demonstrating that such an accommodation                        To summarize, prior to Smith’s promotion to Tour I
would have resulted in “significant difficulty or expense.” 29             Supervisor, the USPS was aware of Smith’s disability and her
C.F.R. § 1630.2(p). Mullin states generally that he did not                medical need to avoid working overtime so as not to
want Smith to delegate her accounting duties because                       exacerbate her rheumatoid arthritis. The USPS had granted
“production was down and costs were up” due to Smith’s use                 her an accommodation that limited her work as a distribution
of clerks to perform the accounting. But it is not clear from              clerk to no more than eight hours per day, 40 hours per week.
the record that the lower production and increased costs                   After Smith’s promotion, however, the USPS refused to apply
amounted to significant difficulty or expense, especially                  the restricted hours accommodation to her new position.
                                                                           There also is a genuine issue of material fact as to whether
                                                                           Smith requested, and was denied, an alternative
                                                                           accommodation in the form of being permitted to delegate the
                                                                           accounting duties of her supervisory position to a subordinate.
    2
      See Smith v. Ameritech, 129 F.3d 857 , 866 (6th Cir. 1997) (noting   This form of accommodation would have shortened Smith’s
that the employer bears the burden of proving undue hardship) (citing      work hours to better conform with her medical restrictions.
Mo nette v. Electronic Data Sys. Corp., 90 F.3d 117 3, 1183 (6th Cir.      In addition, there is a genuine issue of material fact as to
199 6)).
No. 02-6073                        Smith v. Henderson      15    16   Smith v. Henderson                          No. 02-6073

whether the two accommodations Smith sought (restricted          the employee to get to work”). The district court erred in
hours and/or delegated accounting duties) would have             ruling, as a matter of law, that Smith had not suffered a
constituted “reasonable” accommodations under the                constructive discharge.
Rehabilitation Act, or would have posed an undue hardship to
the USPS. The fact that the USPS had permitted Smith’s             We do not believe that Smith’s situation is comparable to
predecessor in the supervisor position to delegate the           that of employees who prematurely quit their jobs in
accounting duties suggests that these duties were non-           apprehension that their situations would not improve. See,
essential job functions that could have been delegated without   e.g., EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 441 (7th
posing such a hardship.                                          Cir. 2000) (affirming summary judgment on constructive
                                                                 discharge claim premised on failure to accommodate
   Assuming that Smith was denied a reasonable                   disability; holding that quitting was not the only option
accommodation that forced her to work well in excess of her      available to the plaintiff because she could have discussed the
medical restrictions, a jury reasonably could infer that the     need for accommodations with her supervisor). Those cases
USPS (through Mullin) knew that Smith’s working conditions       do not involve an individual like Smith, who allegedly was
would become intolerable to a reasonable person suffering        worked to exhaustion and poor health by an employer who
from her particular disability. As noted, Mullin rescinded       was aware of the individual’s disability, but nevertheless
and/or refused to honor Smith’s hours-of-work                    refused to honor a reasonable accommodation, and denied
accommodation that had been in place since 1997, denied          another, that would have precluded such an overwhelming
Smith the reasonable accommodation of delegating her non-        workload.
essential accounting duties, and forced her to work long
stretches of over-forty-hour weeks with few or no days off,        We also do not believe that Smith had an affirmative duty
resulting in the foreseeable consequence that Smith’s health     under the Rehabilitation Act to request her old job back as a
would markedly deteriorate. Thus, a reasonable jury could        distribution clerk (along with the hours restriction that
conclude that the USPS knowingly and deliberately “turned        accompanied it) once she realized that she could not work the
its back” on Smith and, therefore, the USPS could foresee that   hours of a Tour I Supervisor. In many situations, such as the
Smith would be compelled to quit her job in order to preserve    instant case, the duty to request one’s former job back would
her health. Cf. Johnson v. Shalala, 991 F.2d 126, 132 (4th       immunize the employer’s failure to abide by its legal
Cir. 1993) (holding that an employee who was provided            obligation to provide a reasonable accommodation. The
some, but not all, of the reasonable accommodations she          purpose of statutes like the Rehabilitation Act and the ADA
requested, could not quit and sue her employer under a           is to prevent employers from discriminating “based on
constructive discharge theory, but recognizing “that a           characteristics that are beyond the control of such individuals
complete failure to accommodate, in the face of repeated         and resulting from stereotypic assumptions not truly
requests, might suffice as evidence to show the deliberateness   indicative of the individual ability of such individuals to
necessary for constructive discharge”); Hurley-Bardige v.        participate in, and contribute to, society.” 42 U.S.C.
Brown, 900 F. Supp. 567, 573 n.7 (D. Mass. 1995) (noting         § 12101(a)(7). Requiring a disabled employee to relinquish
that a failure to provide a reasonable accommodation could       a promotion because an employer refuses to comply with the
result in a constructive discharge when, for example, an         law by looking beyond the disability and providing a
employer “refuse[s] to build a ramp or elevator for an           reasonable accommodation would flout this fundamental
employee confined to a wheelchair, making it impossible for      goal.
No. 02-6073                               Smith v. Henderson          17

   The Court also finds our Circuit’s prior decision in Johnson
v. City of Saline, 151 F.3d 564 (6th Cir. 1998), to be
instructive. There, this Court rejected the argument that a
disabled plaintiff, who allegedly had been denied a reasonable
accommodation, could not sue the City of Saline for
compensatory damages on the ground that the Plaintiff
“himself chose to violate his medical restrictions” after being
denied the requested accommodation. Id. at 573. The Court
held that “the doctrine of avoidable consequences does not
apply to intentional or continuous torts to which the city’s
actions [denying a reasonable accommodation] appear
analogous.” Id. 573-74 (citations omitted). If a disabled
individual can recover damages even though he chooses to
work beyond his medical restrictions after being denied a
reasonable accommodation, it necessarily follows that such an
individual can impose liability on a covered entity in this
circumstance. Thus, in this case, Smith was not required to
request her old job back after being denied accommodations
that possibly would have enabled her to perform the Tour I
Supervisor job, even though by failing to make this request
she knowingly (but not willingly) worked beyond her medical
restrictions, thereby hastening her physical deterioration.3
                                  III.
   For the foregoing reasons, the district court erred in
granting summary judgment for the United States Postal
Service on Smith’s claims for sex, age and disability
discrimination, but not with respect to her claim under the
Equal Pay Act. The district court’s summary judgment order
is AFFIRMED, in part, REVERSED, in part, and the case
is REMANDED for proceedings consistent with this opinion.




    3
      In any event, it is not clear from the record below whether Sm ith
could have asked for her old job back because there is no indication that
her former position was available.
