07a00025and01a03882
01-19-2001
David A. Franklin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Midwest Area), Agency.
David A. Franklin v. United States Postal Service
07A00025; 01A03882
January 19, 2001
.
David A. Franklin,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Midwest Area),
Agency.
Appeal Nos. 07A00025 and 01A03882
Agency No. 4I-6880-1121-95
Hearing No. 320-96-8203X
DECISION
Introduction
Complainant and the agency both timely initiated appeals concerning
complainant's equal employment opportunity (EEO) complaint of unlawful
employment discrimination based on sex (male) and disability (degenerative
arthritis of the right knee) in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),<1>
as amended, 29 U.S.C. � 791 et seq., when (1) he was denied light duty
in or about April, 1995, and (2) he was denied reassignment outside his
craft in or about July, 1995.<2> The appeals are hereby consolidated,
and are accepted pursuant to 29 C.F.R. � 1614.405. For the following
reasons, the agency's final order is REVERSED.
Issues Presented
The issues presented on appeal are: (1) whether the agency's appeal
is subject to dismissal pursuant to 29 C.F.R. � 1614.505(a)(4); (2)
if the agency's appeal is considered on the merits, whether the EEOC
AJ's decision erred in finding that complainant is an "individual with
a disability" under the Rehabilitation Act; and (3) assuming the AJ's
finding of liability was proper, whether the amount of non-pecuniary
compensatory damages awarded was excessive.
Background
The record reveals that complainant commenced employment at the agency's
facility in Bossier City, Louisiana as a part-time flexible (PTF) City
Letter Carrier in 1988, and in 1994 was granted a voluntary transfer to
the same position at the Main Postal Unit facility in Omaha, Nebraska.
At the time of his hire, complainant was identified as a 10% disabled
veteran, with a knee condition. At all times relevant to the instant
case, complainant has had degenerative arthritis of the knee with a
guarded prognosis. Hearing Transcript (HT) at 25. On November 2,
1994, while delivering mail, complainant stepped on wet leaves while
going down stairs, fell, and sustained an injury. He returned to work
but performed clerical duties and other limited duty assignments at
the agency's Business Center in Omaha until the end of December, 1994.
Based on a November, 1994 report submitted by his attending physician,
complainant's medical restrictions during this time included "no prolonged
walking or standing (only as tolerated)," no climbing, kneeling, or
squatting, no work requiring use of right foot or leg, and no climbing
ladders or working at heights. See Record of Investigation (ROI) at 120.
On January 13, 1995, complainant's claim to the Department of Labor for
worker's compensation was denied on the basis of a failure to show that
the injury was causally related to his employment. Upon learning of this
determination, pending complainant's request for reconsideration, the
agency transferred complainant to its Pacific Street facility in Omaha.
He performed Manual Distribution on a temporary basis for three weeks,
and was then assigned to another temporary duty in the stamp destruction
facility for three months. The stamp destruction work entailed eight
hours of standing daily, and lifting heavy boxes. The agency expressed
no concern at that time that the duties were not within the physical
limitations cited by complainant's physicians, or that they posed any
safety risk. On March 22, 1995, complainant's request for reconsideration
of the denial of his worker's compensation benefits was denied based on
insufficient evidence to establish the fact of injury.
By letter dated April 25, 1995, in an effort to obtain other light duty
for complainant, the Customer Service Support Supervisor inquired of
all managers in the Omaha area whether they had any light duty for a PTF
city carrier (i.e., not contemplating a craft transfer). Subsequently,
the agency's Manager of Customer Service Operations in the City of Omaha
(S1) advised complainant that the agency had no more light duty work for
complainant. Complainant then requested sick leave, and also contacted
the agency's Human Resources Office and requested a permanent light duty
assignment within his medical limitations.
On May 2, 1995, after complainant had been on sick leave approximately
one week, his supervisor (S2) requested a fitness-for-duty examination
for complainant based on his sustained absence from work due to his
medical condition. On May 15, 1995, complainant provided the agency a
letter from his treating orthopedic specialist, requesting that due to
complainant's degenerative arthritis, he be reassigned to a position in
which he did not have to walk long distances or spend extended periods
of time on his feet without the opportunity to sit. The complainant
had no restrictions on his ability to lift. The orthopedist recommended
that complainant minimize walking and standing on the job, and seek a
desk job.
By letter dated June 7, 1995, complainant was ordered by the Postmaster to
attend a fitness-for-duty examination to determine if complainant was able
to perform the carrier position. The agency's physician was not asked
to assess the complainant's capacity to perform any other positions with
the agency. In her June 19, 1995, fitness-for-duty examination report,
the agency's physician stated:
Examination shows both knees to be in bad shape with marked grinding &
crepitus on movement, but with minimal pain. X-ray showed the right knee
to be in horrible shape. His diagnosis is that of severely degenerating
knees. In my opinion, he cannot perform the duties of a carrier and
will never again be able to in an adequate capacity . . . . Basically he
is limited to a sit down position where walking and standing is minimal
and no bending or getting on his knees is allowed.
ROI Exhibit C-3; see also Administrative Judge Exhibit (AJE) 1 (parties'
factual stipulations). On June 21, 1995, the agency's Occupational
Health Nurse Administrator indicated in a memorandum that in the agency
physician's opinion, complainant's continued employment was predicated on
performing "'sit down' type work, for the most part, walking and standing
must be minimal, and bending at the knees and ambulating on the knees
must be completely avoided." AJE 1. On June 22, 1995, complainant's
second request for reconsideration of the denial of worker's compensation
benefits was denied.
S1 did not consider accommodation of complainant at this juncture,
but rather, on June 30, 1995, advised complainant that he could
request a craft transfer, request disability retirement, or resign,
and further that if he failed to select one of these options he would be
involuntarily terminated. See HT at 58, 67, 81, 86-87, 89. By letter
dated the same day, complainant requested reassignment from the Letter
Carrier craft to the Clerk Craft. By letter dated July 3, 1995,
three days after complainant mailed his request for craft transfer,
complainant was advised by S1 that his physical condition and the
functional requirements of a distribution or window clerk position
prohibited complainant's reassignment to such a position. By letter
dated July 19, 1995, complainant was further advised that his request
for reassignment to the Processing and Distribution Plant was denied.
S1 concedes that there were vacant positions to which complainant could
have been reassigned in the Customer Services area and the Processing
and Distribution Plant. In particular, complainant had suggested to S1
that a Computerized Forwarding Systems (CFS) or window clerk position
would be suitable given his restrictions. HT at 26. The then-Acting
Human Resources Manager, however, advised S1 and complainant that
because the test for the CFS position had recently been administered,
complainant was ineligible. HT at 27. No offer was made to re-administer
the test to complainant as a reasonable accommodation. Further,
S1 did not offer complainant any accommodation within any Clerk Craft
position on the ground that agency policy was not to offer long-term or
permanent accommodations, and the complainant's physical restrictions
were permanent. HT at 60. In addition, the agency refused to transfer
complainant to a long-term distribution or window clerk position within
the Clerk Craft because those jobs were awarded to bidders on the basis
of seniority. S1 made this determination notwithstanding that complainant
advised management he was willing to forfeit his seven years of seniority
and start in the Clerk Craft as a PTF worker in order to maintain his
employment.
S1 also did not consider providing a rest bar or chair for complainant
as an accommodation which would have permitted him to perform a window
clerk position. S1 believed this would create a safety hazard, and would
project the wrong "image" to postal customers. HT at 66-67, 76, and 80.
S1 admitted that given the fourteen offices in the Omaha facility, he
might have found a window distribution clerk booth in which placement
of a stool would not pose a safety hazard. HT at 92-93. S1 also
did not consider modification of distribution or window clerk duties
allowing sit-down time for complainant, because S1 believed that if such
accommodations were permitted and an employee was injured, the agency
would be liable. HT at 75. Further, S1 concluded that accommodating
complainant by reassignment to Flat Distribution duties would create a
risk of future injury or harm. HT at 69. Finally, in what S1 concedes
was "an agency oversight," he failed to consider transferring complainant
to a Level 4 CFS position, which was a "sit down" job, the occupants of
which included at least one employee using a wheelchair who performed
all of the duties of the position. HT at 78-79, 106.
On July 7, 1995, complainant was advised by the Processing and
Distribution Center Lead Plant Manager (S3) that more information was
necessary in order for S3 to address his request for reassignment.
S3 requested complainant's medical and leave history, statements from
his supervisors, and a letter from his treating physician. ROI at 150.
Complainant submitted a physician's letter dated July 11, 1995,
which stated that he had "a history of significant medial compartment
degenerative arthritis which has resulted in varus deformity," and "as a
result of this, this patient is unable to walk up stairs and he is unable
to walk long distances," since these activities caused severe pain and
"will tend to increase the degenerative process for him." The letter
noted that in addition to degenerative arthritis, complainant had a tear
of the medial meniscus of the knee, and that walking up and down stairs
or walking long distances would exacerbate the problem and ultimately
cause complainant to require a surgical knee replacement. The letter
recommended that it was "impossible" for complainant to continue as a
letter carrier, and recommended "transfer to a job where he can sit at
a desk." ROI at 116; HT at 29-30.
By letter dated July 19, 1995, S3 advised complainant that despite his
alleged failure to provide all the information requested in S3's July
7, 1995 letter, the required information was nonetheless acquired,
and his request for reassignment was denied because: (1) his physical
restrictions precluded him from performing the functional requirements
of a distribution clerk or mailhandler; (2) he had an allegedly
unsatisfactory history of four accidents in five years, one of which
was an allegedly "at fault" motor vehicle accident; and (3) he had used
too much sick leave. ROI at 148. S3 also contends that reassignment
was denied based on complainant's alleged failure to provide requested
medical information. HT at 30. According to S3, complainant was not an
employee of the caliber acceptable for a transfer, and even if complainant
was physically able and medically cleared to perform Clerk Craft duties,
S3 would have denied the reassignment based on complainant's record of
sick leave use. HT at 145.
Based on this notification that the agency would not accommodate him
through any means, including reassignment, complainant utilized his
remaining accrued leave and then once again requested a light duty
assignment by letter to the Omaha Postmaster. Absent any forthcoming
accommodation, complainant applied for and received disability retirement,
which became effective on October 3, 1995.
Complainant filed a formal EEO complaint with the agency on August 25,
1995, alleging that the agency had discriminated against him as referenced
above. At the conclusion of the investigation, complainant was provided
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
decision finding that complainant had established discrimination based
on disability, but not based on sex, when he was denied accommodation
and instead was discharged. Specifically, the AJ rejected the agency's
argument that accommodating complainant by reassignment to a window clerk
position with a stool would constitute an undue hardship or direct threat.
The AJ noted that undue hardship cannot be established based on fears or
prejudices toward the individual's disability or concern for the agency's
"image" in the eyes of its customers, and that the agency had failed to
make the requisite individualized inquiry regarding the nature, extent,
and duration of the alleged risk of harm.
Further, the AJ found that although S1 claimed that the agency was exempt
from reassigning complainant to the Clerk Craft because it would violate
seniority provisions in the collective bargaining agreement (CBA),
the referenced CBA provision was inapplicable in this case because
complainant advised management at the time he requested reassignment
that he was willing to waive his seven years of seniority and move to the
bottom of the seniority list as a PTF in the Clerk Craft. Moreover, the
AJ noted that the agency conceded that it never considered accommodating
complainant in the Clerk Craft as a window-distribution clerk, or as a
CFS clerk. The AJ further found that the physician who conducted the
FFD limited the assessment to the duties of a letter carrier position,
and therefore did not provide a medical basis for the agency to deny
reassignment as an accommodation.
Finally, the AJ found that the agency's assertion that complainant was
not eligible for reassignment because of his leave record not only
failed to excuse its denial of accommodation, but also provided an
independent ground for finding unlawful retaliation. The AJ found
that complainant took long-term sick leave only after the agency was
no longer willing to accommodate his disability by assigning him to
a position the essential functions of which he could perform with or
without accommodation. The AJ concluded that the agency therefore
improperly sought to penalize complainant for work missed during
leave taken as a reasonable accommodation. The AJ further found that
management officials' assertions that accommodation was denied because
of complainant's accident record, and for failure to provide requested
medical information, were unsupported. The AJ found that notwithstanding
the agency's assertions to the contrary, the evidence of record did not
support that complainant had ever been in an accident for which he was
deemed at fault, and moreover, the agency had granted him a voluntary
transfer in 1994 notwithstanding his prior accident record. The AJ
further found that complainant had demonstrated prompt compliance with
every agency request for medical information.
The AJ awarded various items of relief, including, inter alia,
reinstatement retroactive to April 29, 1995, with back pay, leave,
and benefits restored, $2,000 in pecuniary damages, and $150,000 in
non-pecuniary compensatory damages. The agency's final order declined,
without specificity, to fully implement the AJ's decision, and filed a
simultaneous appeal in accordance with 29 C.F.R. � 1614.110(a).
On appeal, the agency argues that: (1) the AJ improperly concluded that
complainant is an "individual with a disability" within the meaning of
the Rehabilitation Act; and (2) assuming complainant is an "individual
with a disability," the AJ's award of non-pecuniary compensatory damages
in the amount of $150,000 was excessive.
In his own appeal from the agency's final order, complainant contends
that: (1) the agency's appeal must be dismissed under 29 C.F.R. �
1614.505(a)(4) for failure to comply with the interim relief notice
provisions contained therein; and (2) if the agency's appeal is considered
on the merits, the AJ's findings and conclusions were supported by the
record and are legally correct.<3>
Analysis and Findings
A. Complainant's Motion to Dismiss Agency's Appeal
We deny complainant's motion to dismiss the agency's appeal. Pursuant to
29 C.F.R. � 1614.505(a)(4), when the agency appeals and the case involves
removal, separation, or suspension continuing beyond the date of appeal,
the agency must:
notify the Commission and the employee in writing at the same time it
appeals that the relief it provides is temporary and conditional, and,
if applicable, that it will delay the payment of any amounts owed but
will pay interest . . . Failure of the agency to provide notification
will result in the dismissal of the agency's appeal.
Complainant contends that the agency failed to provide the requisite
written notice "at the same time" it appealed, because notice was
given approximately ten days following the April 18, 2000 filing of the
agency's notice of appeal, and that the agency's appeal is therefore
subject to dismissal. The agency counters that its non-compliance
should be excused because the AJ did not advise the agency of the
applicability of the notice provision, and because it promptly remedied
its noncompliance. The agency notes that in the preamble accompanying
this newly-revised regulation, the Commission stated that the revision
was intended "to more closely track the MSPB's interim relief provision."
64 Fed. Reg. 37,644, 37,649 (1999). The MSPB does not dismiss appeals in
such circumstances if the failure to comply with the interim relief notice
requirements was inadvertent and promptly corrected when discovered.
See, e.g., Franklin v. Department of Justice, 71 M.S.P.R. 583, 590
(1996); Johnson v. Department of Justice, 67 M.S.P.R. 494, 497 (1995);
Barcliff v. Department of the Navy, 62 M.S.P.R. 428, 432 (1994).
The parties dispute whether or not the agency's failure to issue the
written notification in timely fashion was inadvertent. Based on
our review of the parties' submissions, we conclude that the agency's
noncompliance was inadvertent and promptly corrected, and we decline
to dismiss the appeal. See 29 C.F.R. � 1614.604(c). Accordingly,
we review the parties' appeals on the merits.
B. Rehabilitation Act Claim
1. Individual With A Disability
With respect to complainant's disability discrimination claim, complainant
must first establish that he is a "qualified individual with a disability"
within the meaning of the Rehabilitation Act. An individual with a
disability is one who: (1) has a physical or mental impairment that
substantially limits one or more major life activities; (2) has a record
of such impairment; or (3) is regarded as having such an impairment.
Major life activities include, but are not limited to, caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. A "qualified" individual with a disability is
one who satisfies the requirements for the employment position he holds
or desires and can perform the essential functions of that position with
or without reasonable accommodation.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). All legal conclusions by an AJ are subject to de
novo review by the Commission, regardless of whether or not a hearing
was held.
The AJ concluded that complainant was an "individual with a disability"
because his degenerative knee impairment substantially limited him in the
major life activities of walking and standing, and alternatively working.
On appeal, the agency contends, inter alia: (1) the medical evidence only
showed complainant was restricted from walking long distances or standing
for extended periods; (2) complainant testified at the hearing that in
performing his three-month light duty assignment in Stamp Destruction, he
was on his feet eight hours per day lifting heavy boxes; (3) complainant
testified at the hearing that his condition had remained approximately the
same since his 1995 requests for accommodation, and he could still walk
around and stand on his feet eight hours per day; (4) when complainant
was employed as a computer salesman from December 1997 to July 1998,
he was on his feet ten to twelve hours per day carrying heavy boxes; and
(5) a Functional Capacity Evaluation performed by a physical therapist
in July, 1998, stated that complainant is capable of constant standing,
walking, and bending, and frequent climbing.
Based on a careful review of the record, we find that notwithstanding the
agency's contentions, complainant was an individual with a disability
within the meaning of the Rehabilitation Act at the time of his 1995
requests for accommodation. Specifically, because the medical evidence
establishes that complainant's knee impairment medically limited him to
"minimal" walking and standing, and precluded him entirely from bending,
getting on his knees, and climbing up or down any stairs, complainant
was substantially limited in the major life activities of standing
and walking. See, e.g., Henry v. United States Postal Service, EEOC
Appeal No. 01965235 (May 13, 1999) (two-hour standing restriction rendered
complainant substantially limited in the major life activity of standing).
In so finding, we note that the agency's characterization of complainant's
1995 medical records is not supported by the record. As detailed above,
based on a fitness-for-duty examination conducted in the spring of 1995,
the agency's own physician and Occupational Health Nurse Administrator
both reported that due to complainant's degenerative arthritis, he could
only tolerate a position that involved minimal walking and standing, and
was not allowed to bend or to get on his knees. ROI Exhibit C-3; see also
AJE Exhibit 1. Complainant's own physicians issued similar restrictions,
also noting that complainant was prohibited from walking up and down
any stairs. While the agency is correct that complainant admitted
he performed job assignments contrary to these medical restrictions,
complainant clearly testified that it was only in the absence of duties
which permitted him to sit that he stood in order to remain employed.
See HT at 42. Moreover, the record reveals that these restrictions
applied for several years, and therefore complainant was substantially
limited in walking on a long-term basis. Other activity which the
agency cites as inconsistent with complainant's medical restrictions
occurred several years after complainant sought accommodation, following
an intervening change in his restrictions. Specifically, the AJ found
that on July 29, 1998, complainant's physician updated complainant's
functional capacity evaluation, indicating that complainant could
work at a medium-heavy physical demand level. On December 29, 1998,
another physician examined complainant and determined that he was
physically qualified for a window clerk/distribution clerk position at
the agency, based upon the job description. The relevant time frame for
assessing whether complainant is substantially limited in any major life
activities is the time at which accommodation is requested. Based on
the evaluations of the agency's and complainant's physicians alike, at
the time complainant sought accommodation in the spring of 1995, he was,
at a minimum, substantially limited in standing and walking, and therefore
is an "individual with a disability" for purposes of the instant claim.
2. Denial of Reasonable Accommodation
As noted above, the agency's appeal brief on the merits only raises the
issue of whether or not complainant is an individual with a disability
within the meaning of the Rehabilitation Act. "Although the Commission
has the right to review all of the issues in a complaint on appeal,
it also has the discretion not to do so and may focus only on the
issues specifically raised on appeal." Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-10 (November
9, 1999).
In the instant case, based on a careful review of the record, we concur
with the AJ's additional findings and conclusions. With respect to
whether complainant is a "qualified" individual with a disability, the
inquiry is not limited to the position actually held by the employee, but
also includes positions that the employee could have held as a result of
job restructuring or reassignment. See Van Horn v. United States Postal
Service, EEOC Appeal No. 01960159 (October 23, 1998). When an employee
cannot perform the essential functions of his current position because
of a disability, and no accommodation is possible in that position,
reasonable accommodation includes reassignment to another position.
Ignacio v. United States Postal Service, EEOC Petition No. 03840005
(September 4, 1984), aff'd, 30 M.S.P.R. 471 (Spec. Pan. February 7,
1986). While the agency is not obligated to create a new position for
complainant, it must make a good faith effort to locate a vacant, funded
position for which complainant was qualified. Therefore, "[o]nly after
determining that reassignment to a vacant position was not possible
or would result in an undue hardship, would the Rehabilitation Act
permit the agency to conclude that [a complainant] is not a qualified
individual with a disability." Kitaura v. United States Postal Service,
EEOC Petition No. 03980089 (March 11, 1999).
Based on the agency's failure to even attempt to reassign complainant
to a position for which he was qualified, we must conclude that the
agency failed to satisfy its obligation under the Rehabilitation Act.
See Flowers v. United States Postal Service, EEOC Appeal No. 01984878
(September 9, 1999); Lowery v. United States Postal Service, EEOC
Appeal No. 01961852 (October 31, 1997). We also concur with the AJ's
rejection of the agency's affirmative defenses, for the reasons stated
in the AJ's decision. Further, based on the factual findings made by
the AJ, which are supported by substantial evidence, we concur with her
conclusion that this is not a case where the agency made a "good faith
effort" to reasonably accommodate complainant. Therefore, the agency is
not relieved of its obligation to award appropriate compensatory damages
for its failure to provide complainant with reasonable accommodation.
See Teshima v. United States Postal Service, EEOC Appeal No. 01961997
(May 5, 1998).
We note that the AJ analyzed complainant's disability discrimination
claim as one of disparate treatment as well as reasonable accommodation.
We need not reach any separate disparate treatment claim based on
disability in light of our finding that the agency is liable for denying
complainant reasonable accommodation. To the extent the AJ also appears
to have concluded that the agency intentionally discriminated against
complainant based on his disability when it denied him accommodation,
we note that "[n]o finding of discriminatory intent, and no adverse
employment action, is required in order to conclude that an agency
failed to provide a reasonable accommodation to a qualified individual
with a disability." Hughes v. United States Postal Service, EEOC Appeal
Nos. 01A00168 and 01A01521 (April 20, 2000).
C. Non-Pecuniary Compensatory Damages
The agency contends on appeal that the AJ's award of $150,000 in
non-pecuniary compensatory damages is excessive.<4> We disagree, and
uphold the award.
Section 102(a) of the 1991 Civil Rights Act authorizes an award
of compensatory damages for post-Act pecuniary losses, and for
non-pecuniary losses, such as, but not limited to, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to character and reputation, and loss of health. In this
regard, the Commission has authority to award such damages in the
administrative process. See West v. Gibson, 527 U.S. 212 (1999).
Compensatory damages do not include back pay, interest on back pay, or
any other type of equitable relief authorized by Title VII. To receive
an award of compensatory damages, a complainant must demonstrate that he
has been harmed as a result of the agency's discriminatory action; the
extent, nature and severity of the harm; and the duration or expected
duration of the harm. Rivera v. Department of the Navy, EEOC Appeal
No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC
Request No. 05940927 (December 11, 1995); EEOC's Enforcement Guidance:
Compensatory and Punitive Damages Available Under Section 102 of the Civil
Rights Act of 1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992)
(�Guidance�).
Non-pecuniary and future pecuniary damages against the agency here at
issue are limited to a maximum amount of $300,000. The Commission
notes that the amount of a non-pecuniary damage award should not be
"monstrously excessive" standing alone, should not be the product of
passion or prejudice, and should be consistent with the amount awarded
in similar cases. See Ward-Jenkins v. Department of the Interior, EEOC
Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago,
865 F.2d 827, 848 (7th Cir. 1989)).
While the Commission recognizes that complainant did not adduce medical
evidence of any diagnosis or treatment for his alleged depression, the
record reveals that the agency's conduct caused extensive symptoms of
emotional distress, resulting in changes in complainant's personality,
the ending of his marriage, severe strains in his relationships with those
close to him, including his children, and diminished enjoyment of life.
In the instant case, based on testimony by complainant and his wife,
the AJ found that when the craft transfer was denied, complainant was
devastated. At age 37, his life career choice of working for the agency
was over, and his whole world had been built around his job. Prior to
denial of reassignment to a Craft position, complainant exhibited a good
sense of humor, enjoyed being around people, spent time outdoors, and
had fun with his two children. Following his disability retirement,
however, he became withdrawn, gloomy, purposeless, and depressed.
In addition, notwithstanding his extensive job search, which included
sending out literally thousands of job applications for private sector
and government positions, complainant was unable to find comparable
work at the same salary he earned while employed at the agency. He was
unemployed from June through October 1995 and for three weeks in August
1997, and during the other periods took various night or part-time jobs
at a lower salary than he earned at the agency.
The AJ further found that the impact of his loss of employment on his
marriage and family life was devastating to complainant. His wife
became the sole wage earner, and even after complainant found employment,
his wife's wages remained the major source of family income. According
to complainant's wife, his daughters, born in 1982 and 1983, did not
understand why complainant could not find a "dad" job as opposed to a
"college kid" job, and complainant was embarrassed and humiliated by his
inability to support his family. The AJ found that complainant blamed
himself for this outcome and experienced shame and a loss of self esteem.
The AJ found that complainant, his wife, and children attended family
counseling, see HT at 15, but that because of the strained family
relationships, complainant and his wife separated. Since financial
constraints prevented him from moving out of the family home, complainant
relocated to a separate part of the house from his wife and their
children. The AJ noted that "[t]he demeanor of the complainant and
[his wife] persuasively demonstrated their sincerity and the devastating
impact of the agency's conduct on their lives, including the break-up
of their marriage of seventeen years." The AJ further concluded that
complainant's severe emotional distress arose immediately following the
discrimination, and was proximately caused thereby, and that the agency
failed to establish that any other events or conditions contributed to
the distress experienced by complainant.
Based on the objective evidence reviewed above, we find that complainant
proved he experienced significant emotional distress which was caused by
the agency's failure to consider reassignment and complainant's resulting
medical retirement. Contrary to the agency's contention that the AJ
erred in awarding significant non-pecuniary compensatory damages in the
absence of medical testimony, we note that evidence from a health care
provider is not a mandatory prerequisite for recovery of compensatory
damages for emotional distress. Economou v. Department of the Army, EEOC
Appeal No. 01983435 (August 5, 1999); Bernard v. Department of Veterans
Affairs, EEOC Appeal No. 01966861 (July 17, 1998). Complainant's own
testimony, along with the circumstances of a particular case, can suffice
to sustain his burden, but the absence of supporting evidence may affect
the amount of damages deemed appropriate in a particular case. Id.
Moreover, an award of compensatory damages for non-pecuniary losses,
including emotional harm, should reflect the extent to which the
agency's discriminatory action directly or proximately caused the harm
and the extent to which other factors also caused the harm. See Johnson
v. Department of Interior, EEOC Appeal No. 01961812 (June 18, 1998).
Accordingly, after analyzing the evidence which establishes the
emotional injuries sustained by complainant and upon consideration of
damage awards reached in comparable cases, we find that the AJ's award
of non-pecuniary damages in the amount of $150,000 was consistent with
the evidence in the record as well as Commission precedent. See, e.g.,
Booker v. Department of Defense, EEOC Appeal No. 07A00023 (August 10,
2000) ($150,000 in non-pecuniary damages awarded where as a result of
agency's actions, complainant experienced severe depression).
Conclusion
Based on the foregoing analysis, after a careful review of the record,
the parties' arguments and responses on appeal, and evidence not
specifically discussed in this decision, complainant's motion to dismiss
the agency's appeal is denied, and the agency's final order is REVERSED.
The Commission hereby finds that complainant was discriminated against
on the basis of disability when the agency failed to accommodate him,
and orders the agency to take remedial action in accordance with this
decision and the ORDER below.
ORDER (C0900)
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall retroactively reinstate complainant to his
former position at the Omaha, Nebraska Main Postal Unit facility.
Complainant shall be given a minimum of fifteen days from receipt of
the offer of placement within which to accept or decline the offer.
Failure to accept the offer within the time period set by the agency
will be considered a rejection of the offer, unless complainant can
show that circumstances beyond his control prevented a response within
the time limit. Prior to reporting for duty, complainant shall provide
the agency with a current assessment of his medical condition and any
current medical restrictions. Given complainant's change in limitations
during the processing of the instant complaint, it is imperative that
this medical assessment provided by complainant to the agency reflect
current restrictions, if any, and therefore the assessment should be
performed within sixty (60) days prior to date complainant submits the
documentation thereof to the agency. Upon receipt of this information,
if it indicates that complainant cannot perform the essential functions
of his position with or without accommodation, the agency shall assign
complainant to a vacant position, the essential functions of which he
can perform with or without accommodation. The agency shall take all
steps necessary to ensure that, once complainant returns to work, he is
provided with reasonable accommodation of his disability.
2. Within sixty (60) calendar days of the date this decision becomes
final, the agency is directed to award complainant back pay, with
interest, less interim earnings, for all wages and benefits lost
between April 29, 1995, and the date he returns to duty, declines the
non-conditional offer of reinstatement provided for in paragraph (1)
above, or was otherwise unable to return to duty. The agency shall
determine the appropriate amount of back pay, interest, and other benefits
due complainant, pursuant to 29 C.F.R. � 1614.501(c). The complainant
shall cooperate in the agency's efforts to compute the amount of back
pay and benefits due, and shall provide all relevant information requested
by the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
3. The complainant's sick leave used from April 29, 1995 through his
termination shall be restored.
4. The complainant's record of use of leave without pay commencing in
June, 1995, shall be expunged.
5. The complainant's benefits and compensation, including Thrift Savings
Plan contributions, shall be retroactively restored, and his seniority
date in the Clerk Craft shall commence as of April 29, 1995.
6. Within thirty (30) days of the date this decision becomes final, the
agency shall issue a check to complainant for $150,000 in non-pecuniary
compensatory damages and $2,000 in past pecuniary compensatory damages.
7. The agency shall provide training regarding reasonable accommodation
under the Rehabilitation Act to all managers who were involved in handling
complainant's requests for accommodation, with special attention to the
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans With Disabilities Act, Number 915.002 (March 1,
1999).
8. The agency shall pay complainant attorney's fees and costs, if proven,
in accordance with the "Attorney's Fees" section of this order appearing
below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
INTERIM RELIEF (F0900)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 29 C.F.R. � 1614.502(b).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency's request. See 29 C.F.R. � 1614.502(b)(3).
POSTING ORDER (G0900)
The agency is ordered to post at its Omaha, Nebraska Main Postal Unit
facility copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
January 19, 2001
__________________
Frances M. Hart
Executive Officer
Executive Secretariat
__________________
Date
1 The Rehabilitation Act was amended in 1992
to apply the standards in the Americans with Disabilities Act (ADA)
to complaints of discrimination by federal employees or applicants for
employment.
2 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 29 C.F.R. Part 1614, where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov.
3Neither party has raised on appeal complainant's sex discrimination
claim. Based on our review of the record, we concur with the AJ's finding
that complainant failed to prove sex discrimination by a preponderance
of the evidence, for the reasons set forth in the AJ's decision.
4The agency does not challenge, and we do not disturb, the AJ's additional
award to complainant of $2,000 in past pecuniary damages.