Mary Christine Smith v. WILLIAM J. HENDERSON, Postmaster General, United States Postal Service

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0228P (6th Cir.)
File Name: 04a0228p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MARY CHRISTINE SMITH,
Plaintiff-Appellant,
v.
WILLIAM J. HENDERSON,
Postmaster General, United
States Postal Service,
Defendant-Appellee.
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No. 02-6073
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 00-00515—Charles R. Simpson, III, District Judge.
Argued: January 27, 2004
Decided and Filed: July 15, 2004
Before: SUHRHEINRICH, CLAY, and SUTTON, Circuit
Judges.
_________________
COUNSEL
ARGUED: Karen L. Stewart, LAW OFFICE OF KAREN L.
STEWART, Louisville, Kentucky, for Appellant. Candace G.
2 Smith v. Henderson No. 02-6073
1The Defendant named in Smith’s complaint is William J.
Henderso n, Postmaster General, United States Postal Service. The
complaint appears to sue H enderson in his official capacity. For purposes
of this opinion, the Court refers to Defendant as the United States Postal
Service or USPS.
Hill, ASSISTANT UNITED STATES ATTORNEY,
Louisville, Kentucky, for Appellee. ON BRIEF: Karen L.
Stewart, LAW OFFICE OF KAREN L. STEWART,
Louisville, Kentucky, for Appellant. Candace G. Hill, Terry
M. Cushing, ASSISTANT UNITED STATES ATTORNEY,
Louisville, Kentucky, for Appellee.
_________________
OPINION
_________________
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
Defendant United States Postal Service’s1 motion for
summary judgment on her claims for sex discrimination, in
violation of Title VII of the Civil Rights Act of 1964, as
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
violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791,
et seq.; and for violations of the Equal Pay Act, 29 U.S.C.
§ 206(d). Because 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 in dismissing the Equal Pay Act claim, the Court
AFFIRMS, in part, and REVERSES, in part, the judgment
below.

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No. 02-6073 Smith v. Henderson 3
I.
Substantive Facts
In July, 1979, Plaintiff Mary Christine Smith began her
career for the USPS as a distribution clerk in Evansville,
Indiana. In September, 1986, Smith was transferred to
Elizabethtown, Kentucky, where her title remained
distribution clerk. At some point in 1986, Smith disclosed to
her supervisors that she has rheumatoid arthritis, which
“affects the mobility of [her] hands, legs and feet.” (J.A. 7,
Complaint, ¶ 8.) In 1997, Smith’s physician limited her work
time to 8 hours per day, 40 hours per week, and limited her
lifting to no more than 20 pounds. The USPS’s physicians
and supervisory personnel approved of these work
restrictions.
In early 1998, a panel of postmasters from the area
surrounding Elizabethtown, Kentucky recommended Smith
for promotion to customer service supervisor, Tour I,
effective March 15, 1998. Tour I is the night shift at the post
office when all mail must be off-loaded from the trucks,
sorted and dispatched out to the associate post offices. One
day before the effective date of her promotion, Smith met
with her immediate supervisor, Tom Mullin, and Tony
Conklin, a customer service supervisor. Mullin and Conklin
allegedly attempted to talk Smith out of accepting the
supervisor position. Smith nevertheless accepted the
promotion.
According to Smith, after she became the Tour I
Supervisor, she suffered through a series of events that
ultimately left her no choice but to quit her job only four
months later. Smith first complains that Conklin, with
Mullin’s consent, unilaterally altered work schedules that
Smith had prepared for the employees she supervised. She
argues that male supervisors’ work schedules were never
changed without their prior consent. In response, USPS
explains that, because of the pending relocation of the
4 Smith v. Henderson No. 02-6073
Elizabethtown Post Office, Mullin assigned Conklin to
supervise Smith and the acting Tour II Supervisor, who was
a male. According to Mullin, and confirmed by Conklin,
Conklin altered Smith’s staff assignments because “the work
she anticipated that her staff would do that following night
had been done during the day while she was gone, or because
she had not most efficiently used her staff, and had made
assignments which were going to cause overtime to be used.”
(J.A. 50, 63.)
Smith next complains that Mullin refused to authorize
Smith to approve overtime for her employees. Smith claims
that the overtime was necessary to manage the Tour I
workload. According to Mullin, he refused the overtime
requests because a supervisor “must balance work-load,
overtime hours considering employees on vacation, and what
work will be accomplished by the next tour after that
Supervisor’s employees leave for the day.” (J.A. 48.) All of
this balance must be accomplished with “an eye towards
keeping costs down, and keeping efficiency – moving the
mail – up.” Id.
Smith also complains that Mullin refused to permit her to
delegate the duty of facility-wide financial accounting to a
subordinate employee, as he had permitted the male Tour I
supervisors who had preceded her in that position. As a
result, Smith’s work day was lengthened, requiring her to
work between 10 and 12 hours a day, in contravention of her
medical restriction. For one stretch of time (between June 5
and July 5, 1998), Smith worked for thirty days straight
without a day off. For another stretch (between July 2 and 17,
1998), Smith was required to work with only one or two days
off.
The USPS concedes that the Tour I Supervisor’s accounting
duties are time-consuming. It points out that Conklin,
Smith’s male predecessor as Tour I Supervisor, used to spend
two to three hours per day on the accounting function. The
USPS argues that Mullin would have permitted Smith to

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

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No. 02-6073 Smith v. Henderson 7
(citing Darnell v. Campbell Cty. Fiscal Ct., 731 F. Supp.
1309 (E.D. Ky. 1990)). In support of her Equal Pay Act
claim, Smith had argued that although her salary had been the
same as her male counterparts, she was required to work
longer hours and thus was effectively paid less for the same
job. The court rejected this argument because Smith actually
was complaining of the same wages for different work, a
claim which is not colorable under the Equal Pay Act. Smith
filed her notice of appeal on August 29, 2002.
II
A. Standard of Review
The Court reviews a district court’s grant of summary
judgment de novo, and affirms such a judgment only if there
is no genuine issue of material fact and the movant is entitled
to judgment as a matter of law. Cotter v. Ajilon Serv., Inc.,
287 F.3d 593, 597 (6th Cir. 2002). “The Court should believe
the evidence presented by the nonmovant, and draw all
justifiable inferences in [her] favor.” Id. (citing Plant v.
Morton Int’l, Inc., 212 F.3d 929, 933-34 (6th Cir. 2000)).
B. Analysis
1. Equal Pay Act Claim
Smith has presented absolutely no argument on appeal
regarding the district court’s dismissal of her Equal Pay Act
claim. Accordingly, she has waived her right to challenge the
district court’s grant of summary judgment for the USPS on
that claim. See Smoot v. United Transp. Union, 246 F.3d 633,
647 (6th Cir.2001) (“This Court deems issues presented in a
perfunctory manner on appeal to have been waived.”).
8 Smith v. Henderson No. 02-6073
2. Remaining Employment Discrimination Claims
Like the district court below, both Smith and the USPS
have limited their legal argument as to the viability of Smith’s
age, sex and disability claims to the issue of whether Smith
was constructively discharged. Accordingly, this Court has
limited its analysis to whether summary judgment was
warranted solely on the ground that Smith did not suffer an
adverse employment action in the form of a constructive
discharge.
The existence of a constructive discharge “depends upon
the facts of each case and requires an inquiry into the intent of
the employer and the reasonably foreseeable impact of the
employer’s conduct upon the employee.” Held v. Gulf Oil
Co., 684 F.2d 427, 432 (6th Cir. 1982). A constructive
discharge requires a determination that “‘working conditions
would have been so difficult or unpleasant that a reasonable
person in the employee’s shoes would have felt compelled to
resign.’” Id. (quoting Bourque v. Powell Elec. Mfg., 617 F.2d
61, 65 (5th Cir. 1980)). See also Policastro v. Northwest
Airlines, Inc., 297 F.3d 535, 539 (6th Cir. 2002) (conditions
supporting a constructive discharge “must be objectively
intolerable to a reasonable person”) (citations omitted).
Smith points to the following facts in support of her
constructive discharge claim: (1) Conklin, a supervisor like
Smith, unilaterally altered the work schedules Smith had
prepared for her employees; (2) Mullin, Smith’s direct
supervisor, refused to authorize Smith to approve overtime for
her employees, which Smith claims was necessary to manage
the Tour I workload; (3) Mullin refused to permit Smith to
delegate the duty of facility-wide financial accounting to a
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

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

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No. 02-6073 Smith v. Henderson 11
1998 generally demanded more than 40 hours of work per
week due in part to the accounting responsibilities. Further,
if this Court assumes the truth of Smith’s deposition
testimony (as it must in this context), a reasonable jury could
infer that, after Smith became Tour I Supervisor, Mullin
rescinded the hours-of-work accommodation that she had
enjoyed as a distribution clerk and/or refused to extend this
accommodation to her new job. See J.A. 148 (Smith’s
deposition testimony; testifying that Mullin reminded her
numerous times after she became a supervisor that she “was
an exempt employee and [she] could work over 40 hours and
[her] medical restrictions didn’t apply because [she] was an
exempt employee”) (emphasis added).
Additionally, it can be inferred from the record that, after
Mullin refused to honor the hours-of-work accommodation,
he subsequently denied Smith another form of
accommodation that effectively would have reduced her work
hours in the Tour I Supervisor position. Via a letter dated
May 3, 1998, Smith asked Mullin if she could delegate her
financial accounting duties to a subordinate, as other Tour I
Supervisors had done in the past. Since it is undisputed that
the accounting duties were time-consuming and Mullin was
aware of Smith’s disability and her need to work restricted
hours, a factfinder could infer that Smith’s letter constituted
a request for an accommodation that would have substantially
shortened her work day, in line with her medical restrictions.
Such an inference would be reasonable even though
Smith’s letter did not use the word “accommodation” or
specifically mention that she was seeking to delegate the
accounting function because of her disability. The context in
which the letter was written permits an inference that Mullin
knew or should have known that Smith sought to delegate her
accounting duties in order to make her job conform with her
medical restrictions. Mullin was well aware of Smith’s
disability and her need for a medical restriction on her hours
of work when she was a distribution clerk. As previously
noted, Mullin told Smith that her medical accommodation
12 Smith v. Henderson No. 02-6073
would no longer apply to her job as a Tour I Supervisor.
Further, Smith’s predecessor in the Tour I Supervisor job has
stated that the accounting duties would take him anywhere
from 45 minutes to three hours a day, suggesting that a
delegation of these duties would have substantially shortened
Smith’s day. Taken together, these facts create a genuine
issue of material fact as to whether the May 3, 1998 letter,
which sought to delegate the accounting duties, was a request
for a reasonable accommodation that triggered the USPS’s
obligation to participate, in good faith, in an “interactive
process” with Smith as to potential reasonable
accommodations. 29 C.F.R. § 1630.02(o)(3); Brown v. Chase
Brass & Copper Co., Inc., 14 Fed. Appx. 482, 487 n.2 (6th
Cir. 2001) (“If an employer's unwillingness to engage in such
a process leads to a failure to reasonably accommodate an
employee, the employer might be liable under the ADA.”)
(citing Beck v. University of Wis. Bd. of Regents, 75 F.3d
1130, 1135 (7th Cir.1996)). According to Smith, Mullin
rejected her proposed accommodation, telling her that she was
“now in a man’s world” and accusing her of “always
whining.” Thus, if a jury were to find that Smith’s May 3,
1998, letter constituted a request for a reasonable
accommodation, there appears to be little dispute that the
USPS flatly denied that request.
The USPS argues that Smith waived her right to request a
delegation-of-accounting-duties accommodation because “she
was told before she assumed the duties she would not be
allowed to delegate [the financial accounting duties].”
Appellee’s Br. at 26. The USPS, however, fails to cite to any
record evidence in support of this assertion. In any event, a
qualified individual with a disability does not waive her right
to an accommodation in the form of a modification of job
duties simply by being apprised of the job duties before she
commences work. If this were the rule of law, it is difficult
to see how a disabled individual ever would be entitled to a
reasonable accommodation, since people usually are aware of
what their duties will be before they start a new job.

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No. 02-6073 Smith v. Henderson 13
2See Smith v. Ameritech, 129 F.3d 857 , 866 (6th Cir. 1997) (noting
that the employer bears the burden of proving undue hardship) (citing
Mo nette v. Electronic Data Sys. Corp., 90 F.3d 117 3, 1183 (6th Cir.
199 6)).
Given the precedent of prior Tour I Supervisors delegating
the accounting function to subordinate employees (including
to Smith before she was promoted), there also is a genuine
issue of material fact as to whether the accounting duty was
an essential function of the Tour I Supervisor position. As a
non-essential function, the accounting duty potentially could
have been reassigned to subordinate employees as a
“reasonable” accommodation of Smith’s disability. See 29
C.F.R. § 1630.2(o)(3) (noting that “[j]ob restructuring” may
be a reasonable accommodation”); Id. Part 1630, App.
(Interpretive Guidance on Title I of the ADA) (“An employer
or other covered entity may restructure a job by reallocating
or redistributing nonessential, marginal job functions.…An
employer or other covered entity is not required to reallocate
essential functions.”).
And if a factfinder reasonably could infer that the
accounting duty was a non-essential job function that could
have been reassigned, there also is a genuine issue of material
fact as to whether this accommodation would have imposed
an “undue hardship” on the USPS, a circumstance that would
have justified the USPS’s denial of that accommodation. 29
C.F.R. § 1630.9(a). The USPS bears the burden of providing
undue hardship,2 but it has not set forth specific facts
indisputably demonstrating that such an accommodation
would have resulted in “significant difficulty or expense.” 29
C.F.R. § 1630.2(p). Mullin states generally that he did not
want Smith to delegate her accounting duties because
“production was down and costs were up” due to Smith’s use
of clerks to perform the accounting. But it is not clear from
the record that the lower production and increased costs
amounted to significant difficulty or expense, especially
14 Smith v. Henderson No. 02-6073
when the USPS had permitted other Tour I Supervisors to use
subordinate employees for the accounting function.
The USPS further argues that Smith was not permitted to
delegate the accounting function because she did not know
how to do it correctly. See Appellee’s Br. at 26-27 (“It was
not unreasonable to … not allow her to delegate the
accounting until she, like Conklin [the former Tour I
Supervisor], knew how to correctly perform it.”). But the fact
that Smith could not adequately perform a marginal job
function suggests that it would have benefitted the USPS to
assign that function to another employee. Ironically, the
USPS’s argument tends to show that the accommodation
Smith requested was reasonable.
The USPS also has presented no evidence regarding other
factors relevant to the “undue hardship” defense, such as the
overall financial resources of the Elizabethtown Post Office,
the overall financial resources of the USPS, and the impact on
the Elizabethtown Post Office’s ability to conduct business.
29 C.F.R. § 1630.2(p)(ii), (iii),(v). On the facts of this case,
we believe that a jury is in the best position to weigh these
factors.
To summarize, prior to Smith’s promotion to Tour I
Supervisor, the USPS was aware of Smith’s disability and her
medical need to avoid working overtime so as not to
exacerbate her rheumatoid arthritis. The USPS had granted
her an accommodation that limited her work as a distribution
clerk to no more than eight hours per day, 40 hours per week.
After Smith’s promotion, however, the USPS refused to apply
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.
This form of accommodation would have shortened Smith’s
work hours to better conform with her medical restrictions.
In addition, there is a genuine issue of material fact as to

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No. 02-6073 Smith v. Henderson 15
whether the two accommodations Smith sought (restricted
hours and/or delegated accounting duties) would have
constituted “reasonable” accommodations under the
Rehabilitation Act, or would have posed an undue hardship to
the USPS. The fact that the USPS had permitted Smith’s
predecessor in the supervisor position to delegate the
accounting duties suggests that these duties were non-
essential job functions that could have been delegated without
posing such a hardship.
Assuming that Smith was denied a reasonable
accommodation that forced her to work well in excess of her
medical restrictions, a jury reasonably could infer that the
USPS (through Mullin) knew that Smith’s working conditions
would become intolerable to a reasonable person suffering
from her particular disability. As noted, Mullin rescinded
and/or refused to honor Smith’s hours-of-work
accommodation that had been in place since 1997, denied
Smith the reasonable accommodation of delegating her non-
essential accounting duties, and forced her to work long
stretches of over-forty-hour weeks with few or no days off,
resulting in the foreseeable consequence that Smith’s health
would markedly deteriorate. Thus, a reasonable jury could
conclude that the USPS knowingly and deliberately “turned
its back” on Smith and, therefore, the USPS could foresee that
Smith would be compelled to quit her job in order to preserve
her health. Cf. Johnson v. Shalala, 991 F.2d 126, 132 (4th
Cir. 1993) (holding that an employee who was provided
some, but not all, of the reasonable accommodations she
requested, could not quit and sue her employer under a
constructive discharge theory, but recognizing “that a
complete failure to accommodate, in the face of repeated
requests, might suffice as evidence to show the deliberateness
necessary for constructive discharge”); Hurley-Bardige v.
Brown, 900 F. Supp. 567, 573 n.7 (D. Mass. 1995) (noting
that a failure to provide a reasonable accommodation could
result in a constructive discharge when, for example, an
employer “refuse[s] to build a ramp or elevator for an
employee confined to a wheelchair, making it impossible for
16 Smith v. Henderson No. 02-6073
the employee to get to work”). The district court erred in
ruling, as a matter of law, that Smith had not suffered a
constructive discharge.
We do not believe that Smith’s situation is comparable to
that of employees who prematurely quit their jobs in
apprehension that their situations would not improve. See,
e.g., EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 441 (7th
Cir. 2000) (affirming summary judgment on constructive
discharge claim premised on failure to accommodate
disability; holding that quitting was not the only option
available to the plaintiff because she could have discussed the
need for accommodations with her supervisor). Those cases
do not involve an individual like Smith, who allegedly was
worked to exhaustion and poor health by an employer who
was aware of the individual’s disability, but nevertheless
refused to honor a reasonable accommodation, and denied
another, that would have precluded such an overwhelming
workload.
We also do not believe that Smith had an affirmative duty
under the Rehabilitation Act to request her old job back as a
distribution clerk (along with the hours restriction that
accompanied it) once she realized that she could not work the
hours of a Tour I Supervisor. In many situations, such as the
instant case, the duty to request one’s former job back would
immunize the employer’s failure to abide by its legal
obligation to provide a reasonable accommodation. The
purpose of statutes like the Rehabilitation Act and the ADA
is to prevent employers from discriminating “based on
characteristics that are beyond the control of such individuals
and resulting from stereotypic assumptions not truly
indicative of the individual ability of such individuals to
participate in, and contribute to, society.” 42 U.S.C.
§ 12101(a)(7). Requiring a disabled employee to relinquish
a promotion because an employer refuses to comply with the
law by looking beyond the disability and providing a
reasonable accommodation would flout this fundamental
goal.

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No. 02-6073 Smith v. Henderson 17
3In 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.
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.

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