07A20113
08-06-2003
Cathy F. Henry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Cathy F. Henry v. United States Postal Service
07A20113
August 6, 2003
.
Cathy F. Henry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 07A20113
Agency No. 4G-780-0203-01
Hearing No. 360-A0-8456X
DECISION
On June 11, 2002, an administrative judge (�AJ�) of the U.S. Equal
Employment Opportunity Commission (�EEOC� or �the Commission�) issued
a decision finding that the agency had violation Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq., when, subsequent to October 30, 2000, complainant was not
allowed to return to work for approximately one year without a statement
of safety, even though she had a doctor's release.<1>
The AJ awarded the following corrective relief: (1) benefits and back
pay at the rate complainant would have earned during that time, plus
interest, from March 1, 2001 through August 15, 2001; (2) twenty hours
of EEO sensitivity training courses to be attended by all managers and
204B supervisors in Corpus Christi, Texas, covering an employee's right
to work in an environment free from discrimination that violates the
Rehabilitation Act; (3) a posting of a notice at the facility in question,
stating that the agency will not discriminate based on employees'
membership in protected groups; (4) $4,561.44 in past pecuniary damages;
and (5) $35,000.00 in non-pecuniary damages.<2>
In its final order, the agency did not implement the AJ's decision.
On appeal, the agency asks the Commission to affirm its final order.
The agency contends that the AJ failed to properly apply the law to the
facts of the case and awarded remedies beyond what is reasonable under
the circumstances. Specifically, the agency argues that the record
does not establish that complainant is an individual with a disability.
The agency further argues that complainant was not able to perform the
essential functions of her position because at times relevant to this
complaint, complainant was unable to drive, which is an essential function
of the City Letter Carrier position. Additionally, the agency contends
that complainant never �properly� made a request for accommodation.
The agency further contends that even if discrimination were to be found,
the award of compensatory damages was excessive given that other traumatic
events in complainant's life contributed to the harm that she sustained.
In her objection to the agency's appeal, complainant asks the Commission
to reverse the agency's final order and find that she was discriminated
against on the basis of her disability when she was not permitted to
return to work between October 2000 and October 2001. Complainant also
asks to be compensated retroactive to December 1, 2000, instead of
March 1, 2001. She explains that the agency officials stated that
the reason they ultimately decided to return complainant to work in or
about October 2001 was that she had no driving restrictions, however,
complainant provided evidence that as early as December 1, 2000, her
doctor released her to full duty with no restrictions. Complainant also
requests additional compensation plus interest for pecuniary damages
relating to the sale of her car, as well as for being unable to pay
her child support arrears due to having no income. Complainant also
requests $5,000.00 for the costs of paying an attorney to represent her
in court regarding her child support arrears. Finally, complainant
requests that the responsible management officials should be required to
undergo forty hours of training regarding their responsibilities under
the Rehabilitation Act.
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). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An Administrative Judge's conclusions of law
are subject to a de novo standard of review, whether or not a hearing
was held.
The Rehabilitation Act places certain limitations on an employer's ability
to make disability-related inquiries or require medical examinations of
employees.<3> The Commission has addressed this question and has stated
that an employer may require a medical examination of an employee only if
the examination is job-related and consistent with business necessity.
See Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans with Disabilities Act
(ADA) (July 27, 2000) (web version) (Guidance), at 5. This requirement
is met when the employer has a reasonable belief, based on objective
evidence, that (1) an employee's ability to perform the essential job
functions is impaired by a medical condition; or (2) that an employee
poses a direct threat due to a medical condition. See Guidance at 14.
Objective evidence is reliable information, either directly observed or
provided by a credible third party, that an employee may have or has a
medical condition that will interfere with his/her ability to perform
essential job functions or will result in direct threat. Id. Where the
employer forms such a belief, its disability-related inquiries and medical
examinations are job-related and consistent with business necessity. Id.
We also note that, in the context of medical inquiries, a complainant
need not establish that she is an individual with a disability in order
to prevail under the Rehabilitation Act. See Guidance at 5.
The following factual findings by the AJ are supported by substantial
evidence in the record: Complainant submitted a letter to the agency
from her treating psychiatrist (P1), indicating that she could return to
work on October 30, 2000, with the restriction that she should only work
part-time, with no driving. See Report of Investigation (ROI), at p. 12.
On or around the same time, the agency gave complainant a return-to-work
clearance form to be completed and signed by P1. The agency also
required a specific statement from P1 that complainant could return to
work without hazard to herself or others. P1 did not, however, provide
the specific statement that the agency required. On December 1, 2000,
P1 released complainant back to regular duties without restrictions.
See ROI at 12. The agency continued to refuse to permit complainant to
return to work on the basis that P1 continued to refuse to state that
complainant posed no risk of harm to herself or others.
On or about February 2, 2001, complainant submitted a letter from her
family doctor (F1) saying that she could return to work at no risk
of harm to herself or others.<4> Complainant was still not permitted
to return to work. On or about March 20, 2001, complainant offered to
see a doctor of mutual agreement at the agency's expense. Subsequently,
on or about May 8, 2001, complainant signed a release allowing the agency
to contact P1 to obtain information regarding the safety of her returning
to work. Complainant was not offered the opportunity to return to work
until approximately July 2001, when the postal medical officer determined
that the statements already made by P1 were the best that he was going
to get. Complainant had surgery unrelated to her depression in August
2001, and recuperated until approximately October 2001, at which point
she returned to work.
The agency argues that its regulations require that every employee who
has been hospitalized must provide a physician's statement stating
unequivocally that the employee is fit for duty without hazard
to themselves or others. The agency asserts that complainant was
not permitted to return to work because of her failure to provide
an adequate release. The agency also contends that it had reason
to question complainant's ability to safely perform an essential job
function (driving) due to P1's initial representation that complainant
had a driving restriction.
We find that the agency has failed to prove that after December 1,
2000 (the point at which complainant was released with no driving
restrictions), it had any reasonable basis upon which to believe that (1)
complainant's ability to perform her essential job functions was impaired
by her medical condition; or (2) that she posed a direct threat due to
her medical condition. In the absence of any evidence that the agency
reasonably believed that complainant's ability to perform her essential
job functions would be impaired by her medical condition, we find that
the agency made an impermissible request for an additional statement
from P1, as a condition of complainant's return to work. Accordingly,
we find that the agency made an improper medical inquiry in violation
of the Rehabilitation Act.<5>
Compensatory Damages
In West v. Gibson, 119 S.Ct. 1906 (1999), the Supreme Court held that
Congress afforded the Commission the authority to award compensatory
damages in the administrative process. Section 102(a) of the CRA,
codified as 42 U.S.C. � 1981a, authorizes an award of compensatory damages
as part of the "make whole" relief for intentional discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended.
Section 1981a(b)(3) limits the total amount of compensatory damages
that may be awarded to each complaining party for future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, and other non-pecuniary losses, according to the
number of persons employed by the respondent employer. The limit for
an employer with more than 500 employees, such as the agency herein,
is $300,000.00. 42 U.S.C. � 1981a(b)(3)(D).
The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in Enforcement Guidance:
Compensatory and Punitive Damages Available Under � 102 of the Civil
Rights Act of 1991, EEOC Notice No. 915.002, (July 14, 1992) (Guidance).
Briefly stated, the complainant must submit evidence to show that the
agency's discriminatory conduct directly or proximately caused the losses
for which damages are sought. Id. at 11-12, 14; Rivera v. Department of
the Navy, EEOC Appeal No. 01934157 (July 22, 1994) aff'd, EEOC Request
No. 05940927 (December 11, 1995). The amount awarded should reflect
the extent to which the agency's discriminatory action directly or
proximately caused harm to the complainant and the extent to which other
factors may have played a part. See Guidance at 11-12. The amount of
non-pecuniary damages should also reflect the nature and severity of the
harm to complainant, and the duration or expected duration of the harm.
Id. at 14.
In Carle v. Department of the Navy, the Commission explained that
evidence of non-pecuniary damages could include a statement by the
complainant explaining how he was affected by the discrimination.
EEOC Appeal No. 01922369 (January 5, 1993). Statements from others,
including family members, friends, and health care providers could
address the outward manifestations of the impact of the discrimination on
the complainant. Id. The complainant could also submit documentation
of medical or psychiatric treatment related to the effects of the
discrimination. Id. Non-pecuniary damages must be limited to the sums
necessary to compensate the injured party for the actual harm and should
take into account the severity of the harm and the length of time the
injured party has suffered from the harm. Carpenter v. Department of
Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Complainant testified that due to the agency's discriminatory action,
she had no income, and therefore, she had to put her children on medicaid
and welfare for that year. Additionally, she testified that she could
not pay her bills, and that her car was repossessed and she owes a
deficiency in the amount of $4,561.44. Complainant testified that she
also got behind on her child support payments, and had to pay an attorney
to represent her in court regarding her inability to pay child support.
Complainant testified that she suffered embarrassment and humiliation,
and stress over how she was going to support herself and pay child support
for her children. Complainant further testified that because she could
not afford to go to the doctor for treatment, she suffered from lack of
sleep and lack of energy.
After a thorough review of the record, we find that the agency's award
of $35, 000.00 in non-pecuniary damages is appropriate. We find that
complainant's emotional distress was caused partially by previous
traumatic experiences in her life, and that a $35,000.00 award is
consistent with other cases wherein the discriminatory action was found
to be one of several factors contributing to the harm suffered by the
complainant. See e.g. Feris v. Environmental Protection Agency, EEOC
Appeal No. 01983167 (September 18, 1998) ($35,000.00 in non-pecuniary
damages where discrimination was on factor, along with stress from
involvement in the EEO process, which caused employee's tension,
damaged self-esteem, anxiety, anger and sleeplessness); Economou
v. Department of the Army, EEOC Appeal No. 01983435 (August 5, 1999)
($35,000.00 in non-pecuniary damages where discrimination contributed
to employee's emotional distress and sleeplessness, but size of award
was mitigated by other factors contributing to the symptoms). We point
out that non-pecuniary compensatory damages are designed to remedy
a harm and not to punish the agency for its discriminatory actions.
See Memphis Community School Dist. v. Stachura, 477 U.S. 299, 311-12
(1986) (stating that compensatory damages determination must be based
on the actual harm sustained and not the facts of the underlying case).
Therefore, we conclude that $35,000.00 is adequate, and not excessive, to
compensate complainant. We further find that the AJ's additional award
of pecuniary damages was proper in that complainant has substantiated
her claim of loss as to her car, but not as to her child support arrears.
CONCLUSION
We concur with the AJ's finding of discrimination and order of
non-pecuniary damages in the amount of $35,000.00, as well as $4,561.44
in past pecuniary damages. We modify the AJ's order to the extent that
complainant is entitled to benefits and back pay at the rate she would
have earned, plus interest, retroactive to December 1, 2000, as opposed
to March 1, 2001. The Commission REVERSES the agency's final order
of July 29, 2002, and instructs the agency to take remedial actions in
accordance with this decision and the ORDER below.
ORDER
To the extent that it has not already done so, within 60 days from the
date of this decision, the agency is order to:
pay benefits and back pay at the rate complainant would have earned,
plus interest, from December 1, 2000 through August 15, 2001;
require twenty hours of EEO sensitivity training courses to be attended
by all managers and 204B supervisors in Corpus Christi, Texas, covering
an employee's right to work in an environment free from discrimination
pursuant to the Rehabilitation Act;
consider taking appropriate disciplinary action against the responsible
management officials. The Commission does not consider training to
be disciplinary action. The agency shall report its decision to the
compliance officer. If the agency decides to take disciplinary action,
it shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline. If any of the responsible management officials
have left the agency's employ, the agency shall furnish documentation
of their departure date(s);
pay complainant $4,561.44 in past pecuniary damages; and
pay complainant $35,000.00 in non-pecuniary damages.
The agency is further directed to submit a report of complainant, as
provided into the statement entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER
The agency is ordered to post at its General Mail Facility in Corpus
Christi, Texas, 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 (H1092)If complainant has been represented by an attorney
(as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 (KO501)
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) (1994 & Supp. IV 1999). 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 (M0701)
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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 6, 2003
__________________
Date
1 Complainant also raised a second issue regarding her alleged denied
requests for leave to attend doctor appointments. The AJ, however, found
no discrimination as to that issue, and as neither party challenges the
AJ's findings on that issue, we will not address it herein.
2 The AJ did not award attorney's fees and costs because complainant
testified that she was not represented by an attorney.
3 We note that although the AJ analyzed the case differently, we find
that the appropriate analysis is whether the agency's actions were in
accordance with 29 C.F.R. � 1630.14.
4 Complainant explains that the following events transpired: after having
asked P1 many times to provide the statement that the agency required,
she visited the agency doctor (D1). Complainant told D1 that her family
physician (F1) had also treated her depression, and D1 told her that it
would be acceptable to obtain the required statement from F1. However,
after she provided the statement from F1, the agency still denied her
request to return to work.
5 We note that this is always a fact-specific determination. In some
cases, such an inquiry would not be improper under the standards
articulated in the Commission's guidance and regulations. Under the
circumstances of the instant case, however, and based on the AJ's factual
findings which are supported by substantial evidence in the record,
the medical inquiry at issue was improper.