BRB No. 00-0940
MARCUS GARRETT )
)
Clamant-Petitioner )
)
v. )
)
INGALLS SHIPBUILDING ) DATE ISSUED: 06/15/2001
INCORPORATED )
)
Self-Insured )
Employer-Respondent ) DECISION and ORDER
Appeal of the Decision and Order and the Decision on Claimant's Motion
for Reconsideration of C. Richard Avery, Administrative Law Judge,
United States Department of Labor.
J. Elmo Lang (Lang & Ishee, P.A.) Pascagoula, Mississippi, for claimant.
Paul M. Franke, Jr. (Franke, Rainey & Salloum, PLLC), Gulfport,
Mississippi, for self-insured employer.
Before: SMITH, DOLDER and McGRANERY, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order and the Decision on Claimant's Motion
for Reconsideration (99-LHC-2208) of Administrative Law Judge C. Richard Avery
rendered on a claim filed pursuant to the provisions of the Longshore and Harbor
Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq. (the
Act). We must affirm the findings of fact and conclusions of law of the
administrative law judge which are rational, supported by substantial evidence and
in accordance with law. O'Keeffe v. Smith, Hinchman & Grylls Associates,
Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).
Claimant experienced pain in his back and groin while attempting to lift a
welding machine on March 21, 1996, and was subsequently diagnosed with a herniated
disc at L4-5. Following a period of treatment with medication and physical
therapy, claimant returned to work on April 8, 1996, and was assigned to light-duty
work. Claimant was terminated for excessive absenteeism according to the terms of
the union contract on July 23, 1996.
In his decision, the administrative law judge found that although claimant
could not return to his previous position with employer due to the medical
restrictions arising from his work injury, employer had provided a modified
position to claimant within those restrictions upon claimant's return to work
following his injury. Moreover, the administrative law judge concluded that
claimant was not terminated due to filing a claim under the Act. Accordingly, the
administrative law judge denied the benefits sought by claimant.[1] Claimant's motion for reconsideration was
subsequently denied by the administrative law judge.
On appeal, claimant challenges that the administrative law judge's denial of
his claim for continuing disability benefits. Employer responds, urging
affirmance.
Initially, claimant summarily contends that the job he performed upon
returning to work following his injury was not suitable as it was not within his
physical restrictions. Where, as in the instant case, claimant is unable to
perform his usual employment duties with employer, the burden shifts to employer
to demonstrate the availability of suitable alternate employment. See P&M Crane
Co. v. Hayes, 930 F.2d 424, 24 BRBS 116(CRT), reh'g denied, 935 F.2d
1293 (5th Cir. 1991); Lentz v. The Cottman Co., 852 F.2d 129, 21 BRBS
109(CRT) (4th Cir. 1988); New Orleans (Gulfwide) Stevedores v. Turner, 661
F.2d 1031, 14 BRBS 156 (5th Cir. 1981). An employer can establish the availability
of suitable alternate employment by offering claimant a light-duty position in its
facility so long as the position is tailored to claimant's physical restrictions,
the job is necessary and claimant is capable of performing it. See Darby v.
Ingalls Shipbuilding, Inc., 99 F.3d 685, 30 BRBS 93(CRT) (5th Cir. 1996). If
employer establishes the availability of suitable alternate employment, the
claimant is, at most, partially disabled. Director, OWCP v. Bethlehem Steel
Corp [Dollins], 949 F.2d 185, 25 BRBS 90(CRT) (5th Cir. 1991).
In the instant case, the administrative law judge relied upon the testimony
of Ms. Wiley, employer's employee relations representative, in finding that the
modified position in the insulation department provided to claimant upon his return
to work on April 9, 1996, was within claimant's restrictions. The administrative
law judge specifically addressed claimant's contention that the duties of this
position were outside of his restrictions and determined that the medical records,
particularly the opinion of Dr. Manolakas, see EX 9, supported a conclusion
that claimant was capable of performing the proffered position. Moreover, as noted
by the administrative law judge, Ms. Wiley also testified that claimant never
informed her of his inability to perform the proffered position until his
termination hearing.
The administrative law judge is entitled to weigh the credibility of all
witnesses and to draw his own inferences from the evidence. See John W. McGrath
Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961); Wheeler v. Interocean
Stevedoring, Inc., 21 BRBS 33 (1988). Inasmuch as the administrative law
judge's weighing of the evidence is rational and substantial evidence supports his
finding regarding the extent of claimant's disability, we affirm the administrative
law judge's determination that claimant was capable of light duty work as of April
9, 1996 and that employer, as of that date, established the availability of regular
and continuous work within claimant's restrictions. We therefore affirm his
conclusion that claimant is not temporarily totally disabled. See Peele
v. Newport News Shipbuilding & Dry Dock Co., 20 BRBS 133 (1987).
Claimant next argues that the administrative law judge erred in finding that
his dismissal from employer's facility did not constitute a violation of Section
49 of the Act.[2] Section 49 prohibits an
employer from discharging or discriminating against an employee based on his
involvement in a claim under the Act. If the employee can show he is the victim
of such discrimination, he is entitled to reinstatement and back wages. 33 U.S.C.
§948a. To establish a prima facie case of discrimination, a claimant
must demonstrate that his employer committed a discriminatory act motivated by
discriminatory animus or intent. See Holliman v. Newport News Shipbuilding & Dry
Dock Co., 852 F.2d 759, 21 BRBS 124(CRT) (4th Cir. 1988), aff'g 20 BRBS
114 (1987); Geddes v. Director, OWCP, 851 F.2d 440, 21 BRBS 103(CRT)(D.C.
Cir. 1988), aff'g Geddes v. Washington Metropolitan Area Transit Authority,
19 BRBS 261 (1987); Brooks v. Newport News Shipbuilding & Dry Dock Co., 26
BRBS 1 (1992), aff'd sub nom. Brooks v. Director, OWCP, 2 F.3d 64, 27 BRBS
100(CRT) (4th Cir. 1993). The administrative law judge may infer animus from
circumstances demonstrated by the record. See Brooks, 26 BRBS at 3. The
essence of discrimination is in treating the claimant differently than other
employees. Jaros v. National Steel & Shipbuilding Co., 21 BRBS 26 (1988).
Once claimant has met his burden of proof, a rebuttable presumption arises that the
employer was motivated at least in part by claimant's involvement in a claim under
the Act.[3] The burden then shifts to employer
to prove that it was not motivated even in part by claimant's exercise of his
rights under the Act. Dunn v. Lockheed Martin Corp., 33 BRBS 204 (1999).
This case is similar to Ledet v. Phillips Petroleum Co., 163 F.3d 901,
32 BRBS 212(CRT) (5th Cir. 1998), in which the United States Court of Appeals for
the Fifth Circuit, in whose jurisdiction the present case arises, affirmed an
administrative law judge's determination that an employer did not act with
discriminatory intent when it terminated an employee due to his failure to provide
medical documentation despite repeated requests by employer. In the instant case,
the administrative law judge determined that claimant's discharge was based on his
violation of the absentee policy encompassed in the labor agreement with employer
and was unrelated to claimant's injury; specifically, the administrative law judge
found that, pursuant to that policy, claimant had been dismissed because of
repeated unexcused absences.[4] In rendering this
determination, the administrative law judge found that claimant had been afforded
ample opportunity to provide excuses for his unexcused absences, but apparently
chose not to do so. In this regard, the record reflects that employer recorded
four unexcused absences by claimant following his last disciplinary layoff and,
pursuant to provisions of the absentee policy, such absences without documentation
resulted in claimant's termination.[5]
Moreover, the record contains no evidence that claimant was treated
differently from similar employees. Claimant bears the burden of establishing a
discriminatory act motivated by animus, which requires that he show that he was
treated differently, individually or as part of a class, from "like groups or
individuals." Holliman, 852 F.2d 759, 21 BRBS 124(CRT); Hunt v. Newport
New Shipbuilding & Dry Dock Co., 28 BRBS 364 (1994), aff'd mem., 61 F.3d
900 (4th Cir. 1995). Claimant has not shouldered this burden, as he presented no
evidence that he was treated differently from other employees violating employer's
absentee policy. Thus, the record lacks evidence sufficient to meet claimant's
initial burden under Section 49. In contrast, the record does contain evidence
that employer terminated claimant because of his violation of an employment policy.
Thus, as substantial evidence supports the administrative law judge's finding that
employer's discharge of claimant was a result of his violation of a company rule
and was not based upon the occurrence of a work-injury, we affirm the
administrative law judge's determination that employer's termination of claimant
did not violate the Act. See Ledet, 163 F.3d 901, 32 BRBS 212(CRT); Holliman, 852
F.2d at 761, 21 BRBS at 128-129(CRT); Manship v. Norfolk & W. Ry. Co. 30
BRBS 175 (1996).
Accordingly, the administrative law judge's Decision and Order and Decision
on Claimant's Motion for Reconsideration are affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
NANCY S. DOLDER
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)The parties agreed that all compensation due prior to July 23, 1996, had been paid by
employer; claimant seeks additional compensation following his termination.
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2)Section 49 provides in pertinent part that:
It shall be unlawful for any employer...to discharge or in any manner discriminate against an
employee as to his employment because such employee has claimed or attempted to claim
compensation... .
33 U.S.C. §948a.
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3)Claimant's assertion that all doubtful questions of fact must be resolved in his favor, as his
burden of proof is lighter than the preponderance of the evidence standard, is without merit in view of the decision of the
Supreme Court in Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT) (1994).
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4)The absentee policy in effect at the time of claimant's injury provided for a graduated series
of disciplinary measures. In the instant case, the record reflects that claimant had previously received both warnings and
a layoff for excessive absenteeism. See EX 15.
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5)We note claimant's assertion that employer should have considered three of these absences
"excused" rather than "unexcused." Claimant's challenge to employer's entries, however, does not arise under the Act;
rather, claimant should have challenged these entries during employer's disciplinary proceedings. The record reflects that
claimant chose not to take this route. See HT at 66-68.
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NOTE: This is an UNPUBLISHED LHCA Document.
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