Full opinion text
Memorandum Opinion BUTTRAM, District Judge. Before the Court are a number of pending motions in the consolidated case of Mullins v. Crowell, et al., lead case number CV- 97-BU-1897-S. Pending in this consolidated case are (1) a motion for summary judgment filed by the Defendants, Craven Crowell (“Crowell”), Johnny H. Hayes (“Hayes”) and William H. Kennoy (“Kennoy”), on August 14, 1998, against the claims of Plaintiffs (collectively, “original Plaintiffs”) Thomas L. Bailey (“Bailey”), Jerry W. Chandler (“J.Chandler”), Ricky S. Coats (“Coats”), Michael D. Des-ruisseaux (“Desruisseaux”), Jerry Gothard (“Gothard”) Noonan Greene (“Greene”), Barbara Hovater (“Hovater”), Timothy L. Mansell (“Mansell”), Bobby Massey (“Massey”), Thomas Miles (“Miles”), Robert Mullins (“Mullins”), Michael Murks (“Murks”), Halbert Putnam (“Putnam”) Millard I. Shelton (“Shelton”), Marc Shores (“Shores”), Frank Speer (“Speer”), Edward Smart (“Smart”), Lanny Smith (“Smith”), and Troy Tucker (“T.Tucker”) (Document 55); (2) a motion for leave to file a reply brief filed by the Defendants on October 5, 1998 (Document 74); (3) a second motion for summary judgment filed by the Defendants on June 9,1999, against the claims of Plaintiffs (collectively, “new Plaintiffs”) Lonner T. Chandler (“L.Chandler”), Thomas A. Crow (“Crow”), Richard B. Dutton (“Dutton”), and Marion G. Rain-er (“Rainer”) (Document 116); (4) a motion for leave to submit the decision of the EEOC in Hines v. Runyon filed by the Plaintiffs on July 9, 1999 (Document 128); (5) a motion for leave to file an affidavit out of time filed by the Plaintiffs on July 13, 1999 (Document 129); (6) a motion to dismiss Richard B. Dutton with leave to refile filed by the Plaintiffs on July 20, 1999 (Document 131); (7) a motion for leave to submit additional evidence filed by the Plaintiffs on July 28, 1999 (Document 133); (8) a motion to include the parties’ briefs on the motions for summary judgment as part of the record filed by the Plaintiffs on July 28, 1999 (Document 134); (9) a motion to change, modify, expand, and/or clarify the Plaintiffs’ theory of the case to focus on how the Plaintiffs’ impairments substantially limit major life activities other than working filed by the Plaintiffs on August 5, 1999 (Documents 136 & 138); and (10) a motion to permit change of theory and/or submission of additional evidence as a matter of equity filed by the Plaintiffs on August 9, 1999 (Document 137). In their motions for summary judgment, the Defendants contend that each of the Plaintiffs is incapable of presenting a genuine issue of triable fact as to his or her claims of disability discrimination under sections 501(b) and 504(a) of the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. §§ 791(b) & 794(a). The original and new Plaintiffs respond that there exist genuine issues of triable fact on their claims that the Tennessee Valley Authority (“TVA”) discriminated against them on the basis of their disabilities by classifying them in segregated competitive areas and levels — thereby impairing their ability to compete for retention in the face of an impending reduction in the workforce— and by terminating them through the reductions in force. Summary judgment offers the parties an invaluable opportunity to test the mettle of a case before it ever reaches trial. In evaluating a motion for summary judgment, the court assesses all of the proof the parties can bring to bear to ascertain the presence of a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Under Federal Rule of Civil Procedure 56, the court’s determination of the propriety of summary judgment is to be tempered by a strong inclination in favor of the non-movant. Therefore, only if the court concludes that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law is a grant of summary judgment appropriate. Fed.R.Civ.P. 56(c). See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). It is the initial responsibility of the mov-ant to inform this court of the grounds for its motion and to specifically identify those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits that it believes demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The movant carries no meager burden, for it must illuminate for the district court, with reference to materials on file, the reasons why the non-movant cannot or does not raise a genuine issue of material fact sufficient to support a trial. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). But see Gonzalez v. Lee County Housing Authority, 161 F.3d 1290, 1294 (11th Cir.1998) (“When the non-moving party bears the burden of proof on an issue at trial, the moving party need not ‘support its motion with affidavits or other similar material negating the opponent’s claim,” Celotex at 323, 106 S.Ct. 2548, in order to discharge this initial responsibility. Instead, the moving party simply may “show” — that is, point out to the district court — that there is an absence of evidence to support the nonmoving party’s case.). Only after the moving party has satisfied this initial burden must the nonmoving party “make a sufficient showing to establish the existence of each essential element to that party’s case, and on which that party will bear the burden of proof at trial.” Howard v. BP Oil Company, 32 F.3d 520, 523 (11th Cir.1994). At that point, Federal Rule of Civil Procedure 56(e) dictates that the nonmoving party “go beyond the pleadings” and by “affidavits, or by the ‘depositions’, answers to interrogatories, and admissions on file’ designate ‘specific facts’” showing there exist genuine issues for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Cottle v. Storer Communication, Inc., 849 F.2d 570, 575 (11th Cir.1988). “If the non-moving party fails to ‘make a sufficient showing on an essential element of her case with respect to which she has the burden of proof,’ then the court must enter summary judgment for the moving party.” Gonzalez v. Lee County Housing Authority, 161 F.3d at 1294 (11th Cir.1998). Bare speculation based on loose construal of the evidence will not satisfy the non-movant’s burden. See id. While the district court is permitted to consider the offered “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any” in deciding whether to grant or deny a summary judgment motion, Fed.R.Civ.P. 56(c),the non-movant bears the absolute responsibility of designating the specific facts in the record that support its claims. See United States v. Four Parcels of Real Property in Greene and Tuscaloosa Counties in the State of Alabama, 941 F.2d 1428, 1438 (11th Cir.1991); Jones v. Sheehan, Young & Culp, P.C., 82 F.3d 1334, 1338 (5th Cir.1996). In other words, Federal Rule of Civil Procedure 56 “does not impose upon the district court a duty to survey the entire record in search of evidence to support a non-movant’s opposition.” Id.See also Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.) (“There is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment.”), cert. denied, 516 U.S. 817, 116 S.Ct. 74, 133 L.Ed.2d 33 (1995). In resolving whether a given factual dispute requires submission to a jury, the court must inspect the presented evidence through the looking glass of each party’s substantive evidentiary , burden. Anderson, 477 U.S. at 254-55, 106 S.Ct. 2505. Nonetheless, the court must abstain from examining the probity of conflicting evidence and from deciding issues of credibility. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.1992). “It is not part of the court’s function, when deciding a motion for summary judgment, to decide issues of material fact, but rather decide whether such issues exist to be tried. The Court must avoid weighing conflicting evidence or making credibility determinations.” Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 919 (11th Cir.1993). Still though, “the nonmoving party must provide more than a mere scintilla of evidence to survive a motion for judgment as a matter of law; ‘there must be a substantial conflict in evidence to support a jury question.’ ” Tidwell v. Carter Products, 135 F.3d 1422, 1425 (11th Cir.1998) (citing Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989)). Background & Procedural History On July 24, 1997, Robert Mullins filed his complaint against Crowell, Hayes and Kennoy, as the heads of the TVA, alleging numerous violations of the Rehabilitation Act of 1973. Soon thereafter, fifteen other cases were filed against the Defendants, alleging essentially the same claims against the Defendants and reiterating the factual bases for those claims. On September 25, 1997, the Defendants filed a motion to consolidate the filed cases into a single action, to which the Plaintiffs in those cases objected. In an order entered on October 31, 1997, the Defendants’ motion to consolidate was granted. In addition, two other cases filed after the Defendants moved to consolidate the cases were also brought into the single, consolidated action. The original Plaintiffs filed their first amended consolidated complaint on November 12, 1997, adding in that complaint an additional party, Sharon A. Hill (“Hill”), whose claims have since been dismissed by the district court and, on appeal, by the Eleventh Circuit Court of Appeals, No. 98-6603 (11th Cir., Mar. 5, 1999). In paragraph 2 of their first amended consolidated complaint, the Plaintiffs state: Plaintiffs are former employees of TVA and for purposes of this action are disabled workers within the meaning of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., in that they all have a disability which substantially impairs their ability to work, they have all been recognized, by TVA as having such a disability, and they all have a record of such a disability with TVA. (Emphasis and bold added.) In the remainder of their first amended consolidated complaint, the Plaintiffs assert essentially the same claims presented in their individual original complaints. After filing two motions for partial summary judgement, each of which was granted, the Defendants filed a third motion for summary judgment on July 13, 1998, arguing that all “civil service claims” of the Plaintiffs were due to be dismissed. Noting that it was by no means clear that the Plaintiffs had, in fact, raised civil service claims and chastising the Defendants for submitting successive, fragmented motions for summary judgment where a single motion would do, the district court denied the motion for summary judgment on July 14, 1998, but indicated that the Defendants could have one final bite at the summary judgment apple by filing a single, comprehensive motion for summary judgment on or before August 14,1998. The Defendants followed the district court’s instructions, filing a single, comprehensive motion for summary judgment on August 14, 1998 (“fourth motion for summary judgment”). A submission order was entered on August 18, 1998. In their responsive brief filed on September 16, 1998, the Plaintiffs, in the introduction section of their brief, state that they are all “former employees of TVA with permanent impairments that affect their ability to work who were terminated by TVA in a reduction by reduction-in-force (RIF) in 1996 and 1997.” Plaintiffs’ Responsive Brief of September 16, 1998, at 1 (emphasis added). On page 11 of their responsive brief filed before the district court, the Plaintiffs state: Even though many of the Plaintiffs may be substantially limited in their ability to perform manual tasks, walk, and for at least one — Ed Smart, who suffered a head injury — to learn, for the purposes of this case the Plaintiffs make no claims that their impairments have any effect on any major life activity other than working. Therefore, this Court need only consider whether the Plaintiffs’ impairments substantially limit their ability to perform a class of jobs ... or a broad range of jobs in different classes; whether TVA maintained records indicating that the Plaintiffs have such impairments; or whether TVA regarded the Plaintiffs as having such impairments. Plaintiffs’ Responsive Brief of September 16, 1998, at 11 (emphasis and bold added). On October 5, 1998, the Defendants filed a motion for leave to file a reply brief. Fifteen days later, on October 20, 1998, the case was reassigned to this Judge. On November 18, 1998, this Court, after examining the briefs in support of and in opposition to the fourth motion for summary judgment, recognized that an explication of the factual predicates of each Plaintiffs disability or disabilities was absent or that such explication was sorely inadequate. As such, the Court requested that the parties re-brief the summary judgment motion, paying careful attention to the facts relevant “to each plaintiffs alleged disability and situation.” In their revised brief in response to the Defendants’ motion for summary judgment, the Plaintiffs presented to the Court, with the exception of Plaintiff Hovater, identical assertions regarding each Plaintiffs alleged disability: Plaintiff ... has testified that he has a physical impairment which substantially limits his ability to work. His restrictions prevent him from doing a class of jobs as well as a wide range of jobs in different classes. He has a record of such an impairment with TVA. He was regarded by TVA as having such an impairment. Plaintiffs’ Revised Brief in Opposition to Defendants’ Motion for Summary Judgment at 13-29 (emphasis and bold added). From the Plaintiffs’s side, this was, with few exceptions, the only “particularized” explication in their opposition brief of how each Plaintiff was disabled; in their factual statements, the Plaintiffs generally did not even bother to spell out the specifics of how they were substantially limited in their ability to work and how their impairments caused their substantial limitations. With regard to Plaintiff Hovater, the Plaintiffs state in their brief that: ... Hovater has testified that her back problem did not substantially limit her ability to work as a clerk word-processor or secretary. However, she has a record with TVA of being substantially impaired in her ability to perform the class of jobs that make up clerical and secretarial work, and she was regarded by TVA [as] having such an impairment. Plaintiffs’ Revised Brief in Opposition to Defendants’ Motion for Summary Judgment at 25-26 (emphasis added). In addition, the Plaintiffs reasserted the claim, stated in their initial opposition brief, that “for the purposes of this case the Plaintiffs make no claims that their impairments have any effect on any major life activity other than working.” Plaintiffs Revised Brief in Opposition to Defendants’ Motion for Summary Judgment at 47 (emphasis and bold added). On February 4, 1999, finding itself only with excerpts of deposition testimony, the Court requested the parties to file full copies of all depositions relevant to the resolution of the Plaintiffs’ claims. During the period that the Defendants’ fourth motion for summary judgment was pending, two more cases were filed in the Northern District of Alabama against the Defendants alleging essentially the same claims posited by the original Plaintiffs in their amended consolidated complaint. On February 10, 1999, the Defendants filed a motion to consolidate these two cases into the Mullins action. The next day, on February 11, 1999, the Court granted the motion, consolidating the cases together. At that point (and at this point), this Court had twenty (20) cases consolidated into a single action against the Defendants. On February 24, 1999, the Court granted a motion of Plaintiff Chandler, filed prior to consolidation, to amend his complaint to include Dutton as a plaintiff in Chandler v. Crowell, CV 99-S-0061-S. Another attempt at consolidation was made on February 25, 1999, this time by the Plaintiffs. In a motion filed that day, the Plaintiffs sought to consolidate Gill v. Crowell, et al., CV 98-N-2931-S with the instant action. Four days later, on March 1, 1999, the Plaintiffs filed a motion to sever and consolidate the cases of Putman and Gothard. The Court denied both of the Plaintiffs’ motions on March 4, 1999. However, in the order denying the motions, the Court offered the Plaintiffs “ten (10) days in which to amend their complaint in the instant action such that the claims of Gothard and Putman are made plain on the face of the complaint, rather than obscured behind the other plaintiffs’ ... discrimination claims.” Court’s Order of March 4, 1999, at 8. On March 12, 1999, the Plaintiffs filed their second amended consolidated complaint. In the second amended consolidated complaint, the Plaintiffs characterize the general nature of their claims as follows: This is a disability discrimination case. The plaintiffs contend that the Tennessee Valley Authority (TVA) intentionally discriminated against them, in violation of the Rehabilitation Services Act, 29 U.S.C. § 701, et seq. (The “Act”), specifically § 791(b) (often referred to as § 501) and § 794(a) (often referred to as § 504) thereof, by intentionally segregating and classifying them by competitive area, competitive level, and permanency for reduction-in-force purposes because of their disabilities and then by using their competitive areas, levels and permanency classifications to deny them the opportunity to compete for retention with non-disabled employees doing similar work (TVA put them on retention registers containing only themselves or other similarly re-employed physically impaired employees) when TVA terminated them following the elimination of their jobs by reduction-in-force (RIF), pursuant to and in fulfillment of a fraudulent scheme to reduce worker’s compensation expenses. The Plaintiffs further contend that they are victims of disparate impact in that there was, in TVA’s 1996 and 1997 reductions-in-force, a significant negative disparity in the retention of disabled employees at clerical levels when TVA’s specially re-employed OWCP workers (a group that includes the Plaintiffs)' are considered. The Plaintiffs contend that the existence of a facially neutral discriminatory policy may be inferred from the disparate results. Plaintiffs’ Second Amended Consolidated Complaint at 6-7. The Plaintiffs again characterize themselves, in ¶2 of their complaint, as “former employees of TVA ... who were injured on the job and were unable to return to their former occupations without accommodation ...; and for purposes of this action are disabled workers within the meaning of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., in that each has a disability which substantially impairs his ability to work, each has been recognized by TVA as having such a disability, and/or each has a record of such a disability.” Plaintiffs’ Second Amended Consolidated Complaint at 7-8 (emphasis and bold added). , In count one of their second amended consolidated complaint, the Plaintiffs assert a claim of disparate treatment under § 501 of the Rehabilitation Act in that the Defendants classified and segregated them into separate competitive areas, competitive levels and permanency statuses in violation of the requirement of 29 U.S.C. § 791(b) that TVA implement an affirmative action plan for the hiring, placement and advancement of disabled individuals. The statutory provision is violated, the Plaintiffs allege, citing 29 C.F.R. § 1630.5, because the requirement of an affirmative action program creates a duty that TVA not discriminate by segregating its employees in a way that adversely affects their employment status. The second count of the second amended consolidated complaint also alleges a claim of disparate treatment on behalf of all Plaintiffs in the consolidated action, this time under section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). According to the Plaintiffs, in ¶ 36 of their second amended consolidated complaint, TVA intentionally classified and segregated each of the Plaintiffs by competitive area, competitive level, and permanency status ... for reduction-in-force purposes because of their disabilities and denied them the opportunity to compete for retention with other non-disabled employees by placing them on retention registers containing only themselves or other similarly re-employed, classified, and segregated disabled employees when their jobs were eliminated by reduction-in-force.... The third count of the Plaintiffs’ second amended consolidated complaint claims that the classification and reduction-in-force polices of TVA bore an adverse impact on its disabled clerical, secretarial and aide workers, because those policies “resulted in a statistically significant greater number of non-disabled clerical/secretarial/aide type workers ... being retained” than their disabled counterparts in reductions-in-force undertaken by TVA in 1996 and 1997. The Plaintiffs’ disparate impact claim is grounded, apparently, in both § 501 and § 504 of the Rehabilitation Act, 29 U.S.C. §§ 791 & 794. On June 9, 1999, the Defendants filed a fifth motion for summary judgment. In the fifth motion for summary judgment, the Defendants seek to have the Court dismiss the claims of those parties who were consolidated into this action after the Defendants’ fourth motion for summary judgment was filed. On June 22, 1999, in response to the opinions of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), Albertsons, Inc., v. Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999), and Murphy v. United Parcel Service, Inc., 527 U.S. 516, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999), this Court entered an order requesting the parties to file briefs by June 28, 1999, analyzing the impact of those opinions on the instant action. In their response to the Court’s order, the Plaintiffs again asserted a reliance on working as the major life activity in which they were substantially limited by their impairments. See Plaintiffs’ Brief on Supreme Court Cases at 2 (stating that all Plaintiffs, except Hovater, suffer physical impairments substantially limiting them from working in trades and labor positions). On July 6, 1999, the Plaintiffs filed their response in opposition to the Defendants’ fifth motion for summary judgment. In their response, the Plaintiffs asserted that “they sustained permanent physical impairments that affected their ability to work.” Plaintiffs’ Brief in Opposition to Defendants’ Fifth Motion for Summary Judgment at 1 (emphasis added). Also, when describing the facts relevant to each of the four Plaintiffs who is a subject of the fifth motion for summary judgment, the Plaintiffs state that each “has a permanent physical impairment which substantially limits his ability to work.” Plaintiffs’ Brief in Opposition to Defendants’ Fifth Motion for Summary Judgment at 7-11. However, that is where the similarity between that brief in opposition to summary judgment and the briefs in opposition to the earlier motions for summary judgment end. In footnotes explicating each of the four most recent Plaintiffs’ limitations on work, those Plaintiffs detail specific physical limitations and, breaking with assertions made in their second amended consolidated complaint, do not restrict themselves to arguing a single major life activity in which they are substantially limited by their impairments. In addition, further into their brief, the four Plaintiffs seem to indicate, though not clearly, that the demonstration of each of the new Plaintiffs that he is substantially limited in the major life activity of working is only employed as an aide to showing that he is substantially limited in performing major life activities other than working. The Court, on July 22, 1999, entered an order stating that it had reached the tentative conclusion that working does not constitute a major life activity for the purposes of the Rehabilitation Act and that, as a consequence, the Plaintiffs’ claims should likely be dismissed. Attaching a proposed memorandum opinion to its order, the Court disclosed the reasoning behind its tentative conclusion. The Court, offering the parties an opportunity to respond to the proposed memorandum opinion in careful and concise fashion before July 29, 1999, stated: The crux of the proposed opinion attached to this order is that, as a consequence of the Supreme Court’s opinion in Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), ‘“working” is no longer to be considered a major life activity within the scope of the Rehabilitation Act of 1973. The parties are to focus their attention on whether this conclusion is correct, in light of the statute and subsequent caselaw. The Plaintiffs are also advised to explain whether, if this Court were to conclude that working is not a major life activity, any of the Plaintiffs could be considered disabled and, in very specific terms, why. Court’s Order of July 22, 1999 at 8. Unsurprisingly, the Defendants’ reaction was favorable. They concurred with the Court’s tentative opinion that working does not constitute a major life activity for purposes of the Rehabilitation Act. The Defendants, however, wished the Court to go further in its opinion, first, by distinguishing and explaining away those cases that, since the Supreme Court’s decision in Sutton, continue to hold that working is a major life activity under either the Americans with Disabilities Act of 1990 or the Rehabilitation Act and, second, by demonstrating why each Plaintiff would fail to be disabled, were working to constitute a major life activity. Finally, the Defendants, exercising some prescience, argue that Plaintiffs should not be permitted, at this late date, to claim that they were substantially limited with regard to any other major life activity than working. In contrast to favorable reaction it garnered from the Defendants, the Court’s order raised alarm among the Plaintiffs. In response to the order and proposed opinion, the Plaintiffs first argue — as an initial matter and contrary to their earlier representations to the Court that they were relying solely on working as a major life activity substantially limited by their impairments — that the Plaintiffs suffer substantial limitations in major life activities other than working. Second, the Plaintiffs contend that they should be permitted to submit additional evidence to show that they are substantially limited in other major life activities than the major life activity of working. Third, the Plaintiffs contend that the Court suffers a skewed vision of the law regarding the import of Sutton. Several days later, on August 5, 1999, and again on August 9, 1999, the Plaintiffs filed two motions with essentially the same purpose: to permit them to modify their theory of the case to include major life activities other than working in demonstrating that they are individuals with disabilities within the scope of the Rehabilitation Act. Facts The Plaintiffs assert the following claims, boiled down to their bones: The Plaintiffs are former employees of TVA who suffered job related injuries, qualified for and began receiving full federal workers’ compensation benefits, and were then rehired and specially classified and segregated for RIF purposes, by TVA, in new jobs structured to accommodate their physical impairments and medical limitations. All of the Plaintiffs, except for Plaintiff Hovater who was a clerk word processor, are former craft employees — carpenters, painters, iron workers, steamfitters, etc — who, because of their physical impairments and medical limitations, can no longer work in trades and labor positions. Plaintiffs Putman’s and Gothard’s situations are unique in that they were hired in permanent positions prior to the establishment of the REIN and Reentry Programs and their budget and headcount were carried by the organization for which they worked. Plaintiff Hova-ter’s situation is unique in that she was able to work as a clerk word processor, but was discharged and then reemployed after and not under the REIN or Reentry Program, but under circumstances that indicate TVA considered her to be disabled and reemployed her solely to terminate her by reduction-in-force. The Plaintiffs are suing under both § 501 29 U.S.C. § 791(b) and § 504 29 U.S.C. § 794(a) of the Act based on the way TVA segregated and classified them for reduction-in-force purposes, on the fact that TVA placed them on retention registers containing only themselves or other REIN employees when TVA terminated them by reduction-in-force, and on the fact that TVA’s reduction-in-force policies and procedures had a disparate impact on them as qualified individuals with disabilities under the Act. Plaintiffs Brief in Response to the Court’s Order of June 22, 1999, at 2. Each Plaintiff incurred an injury or injuries at some time while they were employed by TVA and each was granted benefits under the Federal Employees’ Compensation Act (“FECA”), 5 U.S.C. §§ 8101-8193 (1994 & Supp. III 1997), from the Department of Labor’s Office of Workers’ Compensation Programs (“OWCP”). After receiving benefits, each Plaintiff was given the opportunity to come back to work with TVA, either through one of TVA’s re-employment programs or individually. The rehired workers were each classed, for purposes of seniority and retention, with recipients of FECA benefits, or were isolated into single-member categories, in which each Plaintiff competed only with himself or herself. After some time, each Plaintiff was terminated from TVA. Each Plaintiff asserts that non-disabled individuals who were not separately categorized, but who performed similar work, were not terminated. All of the Plaintiffs received, at some point in their careers as employees of TVA, FECA benefits from OWCP. While OWCP pays those benefits to former employees injured on the job, TVA reimburses OWCP for disbursed compensation payments. In September of 1983, TVA entered into an agreement with the OWCP under which TVA, when attempting to fill vacant positions, would give special consideration to qualified former employees being paid OWCP benefits. The ostensible purpose of this agreement was twofold— first, to aid those prior unemployed workers who were receiving benefits by giving them the opportunity to return to work and, second, to permit TVA to save money by reducing the reimbursement paid to OWCP for payments made to recipients of FECA benefits. In rehiring employees off of the OWCP register, representatives of TVA generally told the prospective employees that choosing to refuse the position offered would result in the termination of the FECA benefits. Usually, as an assurance that their FECA benefits were not imperiled, each Plaintiff was also told that if his or her position became temporary or did not work out, that he or she would return to full FECA benefits. Given TVA’s history of placing the Plaintiffs back on full FECA benefits after dismissal from work, TVA avers that it felt secure in making this representation to the rehired employees. However, the policy of placing terminated employees back onto full FECA benefits allegedly changed in 1992, when it became the exceptional case that an individual rehired into more than a temporary position would regain full FECA benefits after termination, absent a further deterioration in the FECA applicant’s health based upon the work related injury or the existence of a new work-related injury. When each Plaintiff was hired, his or her FECA benefits were reduced in proportion to the amount of salary he or she received. However, when the Plaintiffs were terminated, none of the Plaintiffs, except for Bailey, Coats, and Tucker, were returned to full FECA benefits. Initially, TVA hired employees for then-vacant positions from a TVA/OWCP reemployment register, and whichever department hired the employee from the register carried that person’s budget and headcount. In the instant case, there are three such employees rehired by TVA, two of whom were rehired by TVA’s Widows Creek facility and one of whom was hired by the Muscle Shoals Facility. A. Widows Creek Plaintiffs. The two Widows Creek Plaintiffs, Goth-ard and Putman, were hired directly by Widows Creek as Materials Clerk-Store, SB-3, in 1989 and placed on a separate retention register from five other non-disabled employees doing the same work at Widows Creek. The Plaintiffs allege that they were hired under a program at Widows Creek which was a predecessor to the REIN and Reentry programs executed by NHR and Health Services, respectively. 1. Jerry Gothard. Gothard was hired in 1975 as a carpenter helper at TVA’s Bellefonte facility in Hollywood, Alabama. Roughly two years later, he was selected for a pipefitter’s apprenticeship and by 1981, was a journeyman pipefitter with TVA. In November of 1986, while descending a staircase in a Bellefonte reactor, Gothard’s knee twisted beneath him. Although he had some expectation that the resultant swelling in his knee would subside, it did not, and within two months of the injury, Gothard submitted to surgery. He returned to the pipe-fitter position two months later, restricted by his doctor from climbing, squatting and kneeling. He continued to work, with occasional surgeries, at Bellefonte until May 17, 1988, when he was terminated in a reduction in force. Although Gothard sought counseling for disability discrimination, the counseling ended without resolution and Gothard chose not to pursue a complaint of discrimination, believing it to be futile. Gothard also applied for and obtained FECA benefits from OWCP. On May 10, 1989, Gothard received a letter from TVA’s Widows Creek Fossil Plant, offering him “temporary annual employment not to extend past 90 days from the day of employment as a Materials Clerk-Stores (Toolroom Clerk) SB-2 ... in the Division of Power Production, Widows Creek Fossil Plant, Stevenson, Alabama.” Letter to Jerry Gothard of May 10, 1989, at 1. One year after his earlier termination, on May 17, 1989, Gothard returned to work. His position extended past the ninety-day temporary period and soon thereafter, Gothard received a pay grade increase to SB-3. As a toolroom clerk, the function of Gothard’s job was issuing tools to workers. On August 11, 1995, Gothard was transferred to the TVA Services Organization (“TVAS”) in Huntsville, Alabama. At TVAS, Gothard, like many other Plaintiffs in this action, was told to apply for a lineman position that he was unable to perform because of his medical restrictions. On July 24, 1996, Gothard was informed of an impending reduction in the workforce, in which his position was targeted for elimination. On September 30, 1996, Gothard was terminated. According to Gothard, he was told by the plant manager at Widows Creek, David Howell (“Howell”), that his knee disability had progressed to the point where his restrictions would prevent him from being able to perform the essential functions of his job. On August 26, 1996, the EO office at TVA received a letter in which Gothard ostensibly requested counseling. In his letter, Gothard asserted that he had been the subject of discrimination when he was terminated in the September, 1996, reduction in force. The EO counselor had some difficulty contacting Gothard for counseling. On September 10, 1996, after two prior attempts to contact Gothard, the EO counselor sent Gothard a certified letter indicating that if Gothard did not reply within five days of receipt of the letter, his file would be closed. The letter was received by Gothard on September 14, 1996, as evidenced by his signing the certification card on the letter, but he chose not to contact the EO counselor until November 25, 1996. On November 25, 1996, Gothard met with an Equal Opportunity (“EO”) counsel- or for TVA, who listened to Gothard’s complaints and then informed him of his rights and responsibilities. Gothard’s complaints of discrimination went unresolved and counseling ceased after a final interview on December 16, 1996. In that interview, .Gothard was informed that TVA had responded unfavorably, to Gothard’s complaints of discrimination and that the corrective actions sought by him would not be granted. Gothard was sent notice of the completion of counseling on December 23,1996. Gothard sent an Equal Employment Opportunity (“EEO”) complaint to TVA’s EO office on February 1, 1997, which was received by TVA on February 7, 1997. In his complaint, Gothard contends that TVA discriminated against him by transferring him to TVAS and by terminating him in the reduction in force. In an incorporated attachment authored by his attorney, Gothard claims to have been subjected to discrimination on the basis of his disability when he was to be terminated in the September 30,1996, reduction in force, to have been classified in a discriminatory fashion; to have been transferred to TVAS for discriminatory reasons; and apparently, to have been denied adequate training on a discriminatory basis. On April 17, 1997, TVA’s EO office informed Gothard through letter that the investigation of his complaint had been completed and that a final agency decision would be forthcoming. After one hundred eighty days passed from his filing of his EEO complaint, Gothard filed his initial complaint in the present action on August 4,1997. Gothard contends that while employed as a toolroom clerk at Widows Creek, his knee injury was an impairment which substantially limited him in the major life activity of working. He avers that because of his impairment, he was (and is) incapable of performing a broad class of jobs including those of pipefitter welder and boilermaker, and any work requiring climbing on scaffolding and other heavy craft work. Belying the degree of his limitations, Gothard states that he could carry a forty pound bag of cement on his shoulder and walk fifteen feet if careful. However, he also states that he can only climb to a limited extent. He also claims that TVA had a record of his disability and that it regarded him as having such a disability in that, in a list of material clerk-stores terminated in 1996 drafted by TVA, Gothard is listed, under the heading “handicap condition” as having “no movement/use of 1/both legs.” Response to Request for Information Regarding Alleged Discrimination Complaint of Jerry W. Gothard of March, 27, 1997, Attachment # 3, at l. 2. Halbert Putman. Putman was hired into an apprentice welding position at TVA’s Muscle Shoals service shop in 1977, after graduating from a welding school run by TVA. In 1979, Putman went to work at TVA’s Yellow Creek facility. While working there, on December 19, 1978, Putman’s right hand was injured when a pipe fell on it. The seriousness of the injury was not apparent until he discovered, in 1981, while working at Bellefonte Nuclear Plant, that he had damaged an artery in his hand. After discovering the damaged artery, Putman underwent surgery to prevent blood clots from forming in the artery and moving through his bloodstream. Putman spent between four and six months recovering from the surgery. After recovering, he returned to work with a physician-imposed restriction that he not be required to operate vibrating tools that would require the use of his right hand. Putman returned to his job in 1982 and continued in his work as a journeyman pipefitter. In the later part of 1986, while pulling on a wrench, Putman suffered a recurrence of his injury, which caused him to lose some use of his right arm, in addition to his hand. He remained out of work recovering from surgery to his hand and arm until 1987, when he was terminated in a reduction in force. In 1989, Putman returned to work for TVA at Widows Creek Fossil Plant as a Materials Clerk-Stores SB-2 in the Division of Power Production. Soon after starting work as a Material Clerk-Stores, he received a pay grade increase to SB-3. In his deposition, Putman described the responsibilities of his job as getting supplies and distributing them to other TVA employees. In 1995, Putman was transferred to TVAS. Nearly one year later, on July 24, 1996, he received notice of a reduction in the workforce that would become effective on September 30, 1996. He was terminated from TVA on the date listed in the notice. On August 26, 1996, the EO office at TVA received a letter from Putman requesting assistance in resolving a complaint of discrimination related to his ter-ruination. A counselor met with Putman and discussed Putman’s complaints with him. He then informed Putman of his rights and responsibilities. On October 17, 1996, the EO counsel informed Putman, in a final interview, that resolution of his complaints with TVA was not forthcoming. Putman was given a notice of the completion of counseling on the same day. On November 16, 1996, Putman sent an EEO complaint to TVA’s EO office, which was stamped “received” on November 22, 1996. There are no incorporated attachments to Putman’s EEO complaint; rather, Putman states, as his claim of discrimination, “Handicap and when I returned to work in 1989 that I had all-time job.” EEO Complaint of Halbert E. Putman of November 22, 1996, at 2. On December 11, 1996, in a notice of receipt and acceptance of discrimination complaint, TVA’s EO office characterized Putman’s claim to be that he was discriminated against in the September 30, 1996, reduction in force in which he was terminated. On April 4, 1997, Putman was informed in a letter from TVA’s EO office that the investigation of his complaint had been completed and that a final agency decision would be forthcoming. One hundred eighty days after filing of his EEO complaint, on September 16, 1997, Putman filed his initial complaint in the present action. Putman contends that at the time he was employed at Widows Creek, his injured hand and arm constituted impairments which substantially limited him in the major life activity of working. Putman alleges that because of his impairment, he could not (and cannot) lift more than ten pounds with his. right hand and arm and he could not (and cannot) use tools that vibrate. Further, he claims, he was (and is) unable to perform a broad class of jobs such as those of pipefitter, boilermaker, steamfitter, carpenter, or ironworker. He also claims that TVA had a record of such a disability and that it regarded him as having such a disability. B. Muscle Shoals Plaintiff, Barbara Ho-vater. Hovater came to work for TVA in May of 1984 as a clerk work processor, SB-2, at the Muscle Shoals records center. She received a grade increase in salary to SB-3 not long after being employed by TVA. On January 11, 1988, while exiting her automobile, Hovater slipped on a patch of ice and began to fall. In an effort to right herself, she twisted her back, causing lumbar strain with mild spondylolisthesis of L5-S1. As a result, Hovater was off from work for three weeks and, when she returned to work, she was restricted from lifting in excess of twenty pounds. Originally meant as a temporary restriction to give her back time to recover, the limitations remained in place, as Hovater’s back problems allegedly refused to improve. On December 14, 1989, Hovater’s supervisor, frustrated with Hovater’s limitations, informed her that occasional lifting of seventy-five pounds was an essential function of her job that she had best begin performing, else she would be terminated. Hovater was still on lifting restrictions from her physicians, when, on November 23, 1990, she was told that, because of her medical restrictions, she would be terminated from her job on December 31, 1990. After her termination, Hovater received benefits from OWCP starting in January of 1992. Hovater was hired back to work in February of 1994 as a Clerk-Word Processor, SB-3, the same level and category of position she occupied prior to her December, 1990, termination. Her job was, she avers, a special OWCP position created in the Printing Service at the Muscle Shoals facility. Although she was to be a word processing clerk, Hovater states that she had nothing to do at her job and was not given a word processor on which to perform her ostensible job. Indeed, soon after her employment by TVA, she was told by her manager that she was likely to by laid off because there were insufficient funds in his budget to pay her salary. In January of 1996, Hovater received notice that she was being transferred to TVAS. On July 24, 1996, she was informed that she would be terminated in a reduction in force on September 30, 1996. That date came, and Hovater was terminated. Hovater contacted a counseling specialist at TVA’s EO office on August 1, 1996, requesting assistance in resolving a complaint of discrimination related to her termination. That counseling specialist transferred the issue to another counselor, who contacted Hovater on August 2, 1996. On August 6, 1996, the counselor met with Hovater in Muscle Shoals, Alabama, and discussed Hovater’s complaints with her. The counselor noted Hovater’s complaints that because of her age and disability, TVA had terminated her in the 1996 reduction in force, denied her training and productive work, and caused her to suffer workplace resentment. On August 28, 1996, Hovater also sent a letter requesting assistance to the director of EO compliance. After confronting management with Hovater’s concerns and receiving an unfavorable response, the EO counselor conducted a follow-up interview with Hovater on September 24, 1996, to inform her that her complaints had gone unresolved. On October 16, 1996, the EO counselor sent Hovater written notice of the completion of counseling. On October 22, 1996, Hovater completed an EEO complaint and sent it to TVA’s EO office. The complaint was received on November 22, 1996. In that complaint, Hovater first references the pre-complaint counseling report as providing the description of her claims. Also, in an attachment drafted by her counsel, she reiterates her earlier claims of discrimination based on age and disability. On November 14,1996, a notice of receipt and acceptance of discrimination complaint that lists only the reduction in force claims was sent to Hova-ter. She did not object to the characterization. On March 7, 1997, Hovater was informed in a letter from TVA’s EO office that the investigation of her complaint had been completed and that a final agency decision would be forthcoming. The EO office issued a final agency decision on September 29, 1997. In that decision, TVA determined that Hovater failed to state claims of disability and age discrimination. While TVA determined that Ho-vater was part of a protected class for purposes of the Age Discrimination in Employment Act, it concluded nonetheless that it had a legitimate non-discriminatory reason for her termination. With respect to Hovater’s claims that TVA discriminated against her because of her disability — her back injury and depression — TVA determined that those claims failed due to the absence of a disability. First noting Hovater’s claims that her back injury “substantially limits her ability to sit, walk, vacuum and work” and that her depression substantially limits her ability to work, the decision states that no substantial limitations ensued from the impairments and even questions the sustained existence of those impairments: To determine if an employee is disabled under the Rehabilitation Act, the factfinder must evaluate whether the employee is “significantly restricted” in her ability to perform a major life activity, as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. In making this determination, the fact-finder may consider the nature and severity of the impairment, its duration or expected duration, and any permanent or long-term impact. The complainant’s extensive medical record indicates that she suffered mild lumbar strain when she slipped on the ice in January 1988. As a result of the injury, her physician recommended a 20 to 25 pound lifting limitation. Despite the complainant’s assertions that her injury limited her ability to sit, stand, vacuum, bend over, etc; the medical record indicates that the injury did not significantly restrict her ability to perform such major life activities. Indeed, the complainant’s doctor cleared her to return to work, albeit with a lifting restriction. He also repeatedly urged her to walk and exercise so as to strengthen her lower back. She was also advised to lose weight. ‡ sfi # ❖ ❖ H* Although the complainant alleges that she suffers from clinical depression, she has produced no medical evidence to demonstrate that her condition substantially limits a major life activity. The only documentation of her mental impairment is a psychologist’s note, dated February 20, 1985, which states that prior treatment was effective. Moreover, the complainant has not demonstrated that she informed her supervisors that she was under treatment for depression, nor has she demonstrated that she requested an accommodation for this condition. It is telling that the Statement of Complaint, filed by the complainant’s attorney, refers only to her back injury as the basis for handicap discrimination; it does not mention her depressive condition. The complainant’s immediate supervisor, John Williams, ... stated that he was unaware that she suffered from depression. TVA Final Agency Decision on Claims of Barbara Hovater of September 29, 1997, at 9-10. In addition, TVA refused to find that it regarded Hovater’s impairment as a disability or that it had a record of her impairment as a disability. Within thirty days of receipt of the final agency decision, on October 24, 1997, Hovater filed her complaint in the instant case. In that complaint, Hovater abandons claims premised on age discrimination. In her later complaints, she further chooses not to revive those claims. Hovater does not contend that her injured back and her depression constitute impairments which actually substantially limit her in the major life activity of working. She does not state a broad class of jobs that she cannot perform. However, she does claim that TVA had a record of such a disability and that it regarded her as having such a disability. C. Nuclear Reemployment Initiative Program (“REIN”) Plaintiffs. Allegedly, in spite of attempts to reduce the number of employees receiving work-mens’ compensation through direct rehiring of workers by TVA facilities, by 1990, OWCP “charge backs” — those payments made to OWCP by TVA to reimburse the former for disbursing benefits to the latter’s injured employees — were rapidly rising. The Plaintiffs contend that to slow the rising costs of OWCP “charge backs,” TVA initiated its REIN Program to increase the rehiring of former employees receiving FECA benefits, but capable of working in some capacity. Pointing to an attachment to a July 11, 1990, memo titled “Attachment, Nuclear Power (NP) Reemployment Initiative (REIN) Instruction,” the Plaintiffs aver that the REIN Program was set up for the sole purpose of hiring individuals receiving FECA benefits and later terminating them such that TVA would no longer be required to pay those benefits. In particular, the Plaintiffs make reference to the last part of paragraph number 1 in the attachment, which states that: the work duties of the REIN employees should not be the same primary duties assigned to other employees in the manager’s area. This difference is necessary to eliminate future problems with competitive levels for reduction in force purposes. Managers should not consider REIN employees when determining their continued staffing needs.... Although the employees hired under the REIN Program worked at a variety of TVA’s facilities, the Program itself was funded entirely through the Operations and Management budget of the Corporate Nuclear Human Resources (“NHR”) Program existing in Chattanooga, Tennessee. According to the Plaintiffs, TVA created jobs specifically for the REIN employees out of “bits and pieces” of work previously assigned to employees occupying non-REIN positions. In so doing, TVA called into existence competitive areas and levels composed only of those employees rehired off of its OWCP “charge back” roster. As part of the REIN Program, at various times, TVA offered Plaintiffs Bailey, L. Chandler, Coats, Crow, Desruisseaux, Dutton, Greene, Mansell, Massey, Miles, Mullins, Rainer, Shores, Speer, Smart, Smith and Williams reemployment with TVA, which they accepted. The REIN Plaintiffs were initially assigned to work on Nuclear Power programs. As their positions were budgeted out of NHR, the REIN Plaintiffs did not compete for retention in reductions in force against individuals doing similar work in the TVA facilities at which the Plaintiffs were employed. “Budget reductions were imposed on TVA’s Nuclear Corporate Human Resources department in 1994 and 1995.... ” Mullins v. Crowell, Lead case no. CV 97-S-1897, Memorandum Opinion entered July 1, 1998, at 3 (N.D.Ala.), affirmed sub nom., Hill v. Crowell, 98-6603 (11th Cir. March 5, 1999) (unpublished opinion). Many of the REIN Plaintiffs were continuously employed in their positions for periods ranging from two to four years until, “in the summer of 1995 or 1996, they were informed that their positions in the REIN Program had been identified as at risk, and were targeted for surplus.” Defendants’ Brief in Support of their Motion for Summary Judgment at 22. Thereafter, the REIN Plaintiffs were transferred to TVAS, the ostensible purpose of which was to give those individuals whose jobs were eliminated an opportunity to apply for different positions in the TVA system and to obtain skills that would permit them to become qualified for other positions with TVA. While at TVAS, however, the REIN Plaintiffs allegedly remained untrained and were offered no positions that they were qualified to accept. The REIN Plaintiffs continued to receive the same salary they had received in their REIN positions and remained in the same competitive areas and levels while with the TVAS. Almost one year after being transferred to TVAS, the REIN Plaintiffs were notified that their positions in the REIN Program were to be eliminated in September of either 1996 or 1997. In September of 1996 or 1997, the jobs of the REIN Plaintiffs were eliminated through a reduction in force. 1. Thomas L. Bailey. In September of 1981, Bailey, a maintenance pipefitter for TVA at its Browns Ferry Nuclear Power Plant, ruptured a disc in his back while attempting to open a pipe valve. Although causing him pain in his back, right hip and leg, the injury did not prevent him from returning to his work as a pipefitter, although in a light duty capacity. After his injury, Bailey continued to work as a pipefitter until 1985 and as a pipefitter foreman with medical restrictions until March 31, 1989, when he was terminated through a reduction in force. According to Bailey, he was terminated because TVA was unable to find another position with TVA in which he could work given his restrictions. From this point forward, Bailey alleges, he was incapable of resuming work as a pipefitter and he became unable to perform work in other craft fields, including construction. Following the 1989 reduction in force, Bailey applied for and received full compensation benefits from OWCP. In 1991, he was hired through the REIN Program as an Engineering Aide, SE-3; TVA did not hire him into any position which involved his skills as a pipefitter. As an Engineering Aide, SE-3, Bailey’s work first consisted of logging documents and hand delivering documents to different sections of the Browns Ferry Nuclear Plant. Bailey next worked in a materials supply room providing materials to plant workers. Purportedly, while employed in the REIN Program, he was referred to by a superior, Greg Pickleton, as a “crippled secretary.” Bailey successfully performed the relatively unimposing duties and functions of his Engineering Aide, SE-3, position until in 1995, when he was transferred to TVAS. One year later, on September 30, 1996, Bailey was terminated in a reduction in force of which he was notified on July 24, 1996. Throughout the period of his employment in the REIN program, Bailey received as “accommodations” the use of a posturepedic chair and an advantageous parking space. On August 23, 1996, Bailey contacted the EO office at TVA for discrimination counseling. During counseling, Bailey complained not only of his termination in a reduction in force, but also contended that “during the period of his employment he was not provided any productive work or meaningful training.” TVA Precomplaint Counseling Report of Thomas L. Bailey at 3. TVA responded, during the counseling period, that Bailey was not the subject of discrimination. Counseling was completed on October 1, 1996, and notice of the completion of counseling was sent to him on October 9,1996. Thereafter, on October 15, 1996, Bailey sent an EEO complaint to TVA’s EO compliance office, which was received by TVA on October 21, 1996. In his EEO complaint, he asserts that he was subjected to discrimination when he was terminated by TVA. Bailey also attached to his EEO complaint a document drafted by his attorney, which states his claims with more detail. In the attachment, Bailey avers that “when TVA offered Thomas L. Bailey the [engineering aide] job, TVA did not mean to employ him permanently, or train him, or place him in a regular TVA position ...,” contrary to earlier assertions. Attachment to EEO Complaint of Thomas L. Bailey of October 21, 1996, at 2. TVA sent Bailey a copy of the notice of receipt and acceptance of his discrimination complaint on November 1, 1996, which lists only Bailey’s termination claim as a challenged employment action. Bailey did not contest TVA’s characterization of his claims. However, Bailey gave affirmed affidavit testimony on November 13, 1996, in which he complained, again, that TVA did not give him training and did not provide him the opportunity to transfer into non-REIN positions. On March 24, 1997, Bailey was informed by TVA that it had completed its investigative report. No final agency decision was issued within one hundred eighty days of his filing of his EEO complaint. Therefore, on August 18, 1997, Bailey filed his first complaint in the present action. Bailey alleges that, as a consequence of his back injury, he was advised by a physician to lift no more than twenty pounds and was told to avoid climbing stairs and ladders. In the Plaintiffs’ brief in opposition to the Defendants’ fourth motion for summary judgment and in the Plaintiffs’ assorted complaints, Bailey claims to be disabled because his back injury substantially limits him in the’ major life activity of working, he has a record of such a disability and he is regarded by TVA as being so disabled. To demonstrate that he suffers a substantial impairment to his ability to work, Bailey claims that he is unable to perform his craft, pipefitting, because of his impairments and that pipe-fitting constitutes a class of jobs. 2. Lonner T. Chandler. At some time in 1986, TVA employed L. Chandler at its Browns Ferry Nuclear Plant. On June 26, 1989, while building some scaffolding, L. Chandler strained his back. Following the injury to his back,