01993233
08-27-2002
Daniel McManaway, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Daniel McManaway v. United States Postal Service
01993233
August 27, 2002
.
Daniel McManaway,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01993233
Agency No. 4H-370-0071-98
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful employment discrimination 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), as amended, 29 U.S.C. � 791 et seq.<1>
The appeal is accepted for the Commission's de novo review pursuant to
29 C.F.R. � 1614.405. For the following reasons, we affirm in part and
reverse in part the agency's final decision.
BACKGROUND
The record reveals that complainant was an applicant for employment
with the agency in Nashville, Tennessee. Complainant applied for the
position of Distribution Clerk, PS-05, and was reached from the hiring
register for an interview. He was selected for the position and sent
for an agency medical examination and assessment. The agency contract
physician determined that it was necessary for a specialist to further
examine complainant because of his documented history of back pain.
Consequently, an orthopaedist performed a fitness for duty examination
noting that the Distribution Clerk position would require the ability
to lift seventy pounds, carry in excess of forty-five pounds and push,
pull, walk, stand, climb, and bend for more than eight hours per day.
The orthopaedist performed a physical examination of complainant
and found that he displayed no abnormal findings and demonstrated
full range of motion. Plain x-rays of the thoracic and lumbar spine
revealed no significant abnormalities and no changes inconsistent �with
just physiologic aging and mild degenerative change normal for his age.�
However, based on complainant's history of back pain while in the military
and his resulting service disability, the orthopaedist determined that
complainant would not be �a good candidate for the Distribution Clerk
position and would present an increased risk for recurrent back problems.�
After reviewing the orthopaedist's report, the agency contract
physician rated complainant as a �moderate risk� and noted that with
the accommodations of �moderate lifting� and �bending limited to 4
hrs/day,� complainant could perform the essential functions of the
position effectively and safely. The agency then contacted complainant
by letter and informed him that he had been found medically unable to
perform the duties of the position. The letter stated that the duties
of a Distribution Clerk are �arduous and require the incumbent to be
in good physical condition, involve continuous standing , stretching,
reaching, and may require lifting sacks of letter mail or parcel post
weighing up to 70 pounds.� The letter further indicated that since
complainant had a service connected disability of 30% or more, the
Office of Personnel Management (OPM) would review his case and either
affirm or reverse the agency's determination as to medical unsuitability.
By letter dated February 27, 1998, OPM affirmed the agency's decision.
Complainant sought EEO counseling and filed a formal complaint alleging
that the agency discriminated against him on the bases of his race
(White) and disability (history of back pain) when he was found medically
unsuitable for the position. At the conclusion of the investigation,
complainant was informed of his right to request a hearing before an
EEOC Administrative Judge or alternatively, to receive a final decision
by the agency. By letter dated October 23, 1998, complainant requested
that the agency issue a final decision.
In its final decision and for reasons we are unable to ascertain,
the agency assumed that complainant was substantially limited in his
ability to perform manual tasks and concluded that he was not a qualified
individual with a disability within the meaning of the Rehabilitation
Act because:
It is obvious from the specialist[�s] comments that he felt that your
safety would be endangered if you were required to perform the essential
functions of a distribution clerk position.
(Final Agency Decision, March 2, 1999, at 4). The agency further found
that complainant's claim of race discrimination was not supported because
two applicants in complainant's protected class were selected. On appeal,
complainant contends that one of the selectees was misidentified as
White when he was really Hispanic. Complainant also states that �his
disability from the Army was no more than a tool used by� the agency.
The agency requests, without comment, that we affirm its final decision.
ANALYSIS AND FINDINGS
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. 29 C.F.R. � 1630.2(g). Major life activities include,
but are not limited to, caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 1630.2(i). Sitting, standing, lifting, and reaching are also
recognized as major life activities. Interpretive Guidance on Title I
of the Americans With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(i).
The medical evidence in the record consists of a rating decision by
the Department of Veterans Affairs and the aforementioned evaluations
generated by the agency in order to determine whether complainant was
medically suitable for the position of Distribution Clerk.<2> Upon
our review of both assessments, the Commission finds that complainant
was not an individual with a disability under the first prong of the
definition under the Rehabilitation Act because the record does not
support a finding that complainant's history of back pain substantially
limited any of his major life activities.
However, the Commission finds that the agency regarded complainant as
having an impairment which substantially limits the major life activity
of working. An agency regards an individual as substantially limited
in the major life activity of working if it thinks the individual has
an impairment that significantly restricts him or her from currently
performing a class of jobs or a broad range of jobs in various classes. 29
C.F.R. � 1630.2(j)(3). The agency's contract physician examined
complainant and, after reviewing the results of the orthopaedist's
examination, concluded that complainant posed a moderate risk because
he would only be medically qualified for the position if he could be
accommodated by only doing moderate lifting and not having to bend more
than four hours per day. Based on the contract physician's evaluation,
the agency determined that complainant's restrictions were not compatible
with the �arduous� requirements of a Distribution Clerk position which
involve �continuous standing, stretching, reaching, and may require
lifting sacks of letter mail or parcel post weighing up to 70 pounds.�
The Commission concludes that the agency thus regarded complainant as
unable to perform a broad range of jobs in various classes requiring heavy
lifting, continuous standing, pushing, pulling, bending, and reaching.
Complainant must next show that he is a �qualified person with a
disability.� 29 C.F.R. � 1630.2(m). A �qualified individual with
a disability� is an individual who satisfies the requisite skill,
experience, education, and other job-related requirements of the
employment position and who, with or without reasonable accommodation,
can perform the essential functions of such position. Id. Based upon the
facts in the record, we find that complainant has demonstrated that he
is a qualified individual with a disability inasmuch as he was selected
for the position at issue, pending the outcome of a medical suitability
determination. The agency, however, found, based upon his thoracic
degenerative disc disease, that complainant posed a direct threat and
was therefore unsuitable for employment. 29 C.F.R. � 1630.2(r).
In order to exclude an individual on the basis of possible future injury,
the agency bears the burden of showing there is a significant risk, i.e.,
high probability of substantial harm. A speculative or remote risk is
insufficient. The agency must show more than that an individual with a
disability seeking employment stands some slightly increased risk of harm.
Selix v.United States Postal Service, EEOC Appeal No. 01970153 (March
16, 2000). Moreover, such a finding must be based on an individualized
assessment of the individual that takes into account: (1) the duration
of the risk, (2) the nature and severity of the potential harm, (3) the
likelihood that the potential harm will occur, and (4) the imminence of
the potential harm. Interpretive Guidance on Title I of the Americans
With Disabilities Act, Appendix to 29 C.F.R. � 1630.2(r). A determination
of significant risk cannot be based merely on an employer's subjective
evaluation, or, except in cases of a most apparent nature, merely on
medical reports. Rather, the agency must gather and base its decision
on substantial information regarding the individual's work and medical
histories. Mantolete v. Bolger, 767 F.2d 1416, 1422-1423 (9th Cir. 1985).
The agency made its decision to find complainant unsuitable for employment
based on the contract physician's assessment that complainant would
be a moderate risk of future injury if he was not accommodated with
only moderate lifting and bending limited to four hours per day.<3> A
review of the contract physician's physical examination indicates that
complainant was normal in every respect, that he had no current physical
limitations or restrictions, that he had a kidney stone in 1987, that he
experienced a leg cramp after running, that he was injured during the
Gulf War when a pole fell on him, and that he had a service connected
disability of 10% for his back, 10% for short term memory loss; and 10%
for right hand residuals. Review of the orthopaedist's evaluation,
upon which the contract physician relied, indicated that complainant,
as noted above, displayed no abnormal findings and demonstrated full
range of motion. Based on these evaluations, the agency determined
that the strenuous duties of the Distribution Clerk position would place
complainant's personal health and safety in jeopardy.
Having carefully considered the evidence of record, the Commission finds
that the agency failed to meet its burden of showing a high probability
of substantial harm. The agency's finding of unsuitability was not
explained in any detail, nor did it address the duration of the risk
posed by complainant's history of back pain, the nature and severity of
the potential harm, the likelihood that the potential harm will occur,
and the imminence of the potential harm. Since the Commission finds that
there is no evidence to support the agency's conclusion that complainant
posed a direct threat, we conclude that the agency's denial of employment
to complainant was in violation of the Rehabilitation Act.<4>
COMPENSATORY DAMAGES
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her claim of unlawful discrimination
may receive, in addition to equitable remedies, compensatory damages
for past and future pecuniary losses (i.e., out of pocket expenses)
and non-pecuniary losses (e.g., pain and suffering, mental anguish).
42 U.S. C. � 1981a(b)(3). For an employer with more than 500 employees,
such as this agency, the limit of liability for future pecuniary and
non-pecuniary damages is $300,000.00. Id. In West v. Gibson, 527
U.S. 212 (1999), the Supreme Court held that the Commission has the
authority to award compensatory damages in the federal sector EEO process.
The particulars of what relief may be awarded, and what proof is
necessary to obtain that relief, are set forth in detail in EEOC's
Enforcement Guidance, Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991 (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). 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. Guidance at 11-12.
The amount of non-pecuniary damages should also reflect the nature and
severity of the harm to the complainant, and the duration or expected
duration of the harm. Id. at 14.
Non-pecuniary damages are available to compensate an injured party for
actual harm, even where the harm is intangible. Carter v. Duncan-Higgins,
Ltd., 727 F.2d 1225 (D.C. Cir. 1984). Emotional harm will not be
presumed simply because the complainant is a victim of discrimination.
Guidance at 5. The existence, nature, and severity of emotional harm must
be proved. Id. The method for computing non-pecuniary damages should
typically be based on a consideration of the severity and duration
of harm. Guidance at 8; Carpenter v. Department of Agriculture,
EEOC Appeal No. 01945652 (July 17, 1995). We note that for a proper
award of non-pecuniary damages, the amount of the 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)).
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 or she 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. However, evidence from a health care provider is not a mandatory
prerequisite to establishing entitlement to non-pecuniary damages.
Sinnott v. Department of Defense, EEOC Appeal No. 01952872 (September
19, 1996).
In support of his claim for non-pecuniary damages, complainant submitted
a statement describing the aggravation, frustration and humiliation he
felt when he was denied employment. Complainant was extremely frustrated
because he believed he was qualified and capable of performing the duties
of the position. He stated:
All I ever wanted in life was to retire from the Army and go to work
for the Post Office. I was so excited and telling everyone about the
benefits.
(Report of Investigation at 13). Complainant further explained that his
humiliation stemmed from some people believing and others confronting
him as to whether he was not hired because he failed the agency's
drug test. Complainant stated that he was unemployed and felt like his
world was falling apart. Ultimately, his marriage began to suffer from
the strain of financial stress, and he wondered if his wife would be
better off without him. He had to turn to his family for money which
left complainant feeling defeated because up until then, his family
had always been able to turn to him. Complainant finally found a job
where he states that for twelve hours per day, he stacks fifty pound
bags for much less money than he would have earned at the Post Office.
In conclusion, complainant stated even after eight months he still felt
emotionally wounded by the agency's actions.
Based on complainant's unrebutted statement, the Commission concludes
that the agency's discriminatory action caused complainant to suffer
emotional distress. There is no evidence that complainant suffered from
a pre-existing mental or emotional condition prior to the agency's action.
To compensate him for his emotional distress, the Commission finds that an
award of compensatory damages in the amount of $10,000.00 is appropriate.
See Gancayco v. United States Postal Service, EEOC Appeal No. 01A00471
(November 7, 2001). This amount takes into account the severity and the
likely duration of the harm done to complainant by the agency's action.
The Commission further notes that this amount meets the goals of not
being motivated by passion or prejudice, not being "monstrously excessive"
standing alone, and being consistent with the amounts awarded in similar
cases. See Cygnar, 865 F.2d at 848.
CONCLUSION
After a careful review of the record, including complainant's arguments
on appeal and arguments and evidence not specifically discussed in this
decision, the Commission affirms in part and reverses in part the agency's
final decision.
ORDER
1. Within sixty (60) days of this decision becoming final, the
agency shall offer complainant the position of Distribution Clerk or a
substantially equivalent position at an agency facility within thirty
miles of complainant's home. 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.
2. The agency shall award complainant back pay with interest and other
benefits due complainant, for the period from January 1, 1998 to the date
he enters into or declines to enter into duty. The agency shall determine
the appropriate amount of back pay with interest and other benefits
due complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty
(60) days after the date this decision becomes final. The complainant
shall cooperate in the agency's efforts to compute the amount of backpay
and benefits due, and shall provide relevant information requested by
the agency. If there is a dispute regarding the exact amount of backpay
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. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall pay complainant $10,000.00 in non-pecuniary
compensatory damages.
4. The agency shall conduct training for its human resource personnel
at its Nashville, Tennessee facilities regarding their obligations under
the Rehabilitation Act.
5. The agency is 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
foregoing corrective actions have been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Nashville, Tennessee 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 (K0501)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
August 27, 2002
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an order by the United States Equal
Employment Opportunity Commission dated ___________ which found
that a violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. has occurred
at this facility in Nashville, Tennessee.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
This facility was found to have violated the Rehabilitation Act
when it failed to establish that an applicant for employment posed
a direct threat that would disqualify him for the position he sought.
The facility was ordered to award the employee with a position, back pay,
compensatory damages, and proven attorney fees. This facility was also
ordered to provide relevant agency officials with training regarding
their obligations under the Rehabilitation Act . This facility will
ensure that officials responsible for personnel decisions and terms and
conditions of employment will abide by the requirements of all federal
equal employment opportunity laws and will not retaliate against employees
who file EEO complaints.
This facility will comply with federal law and will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, federal equal employment
opportunity law.
Date Posted: _____________________
Posting Expires: _________________
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 The rating decision by the Department of Veterans Affairs was submitted
to OPM by complainant after the agency found him to be unsuitable.
3 We note that complainant did not seek this accommodation nor did he
represent on appeal that he would need this accommodation in order to
perform a Distribution Clerk's duties.
4 The Commission finds no violation of Title VII because complainant
failed to set forth evidence from which a reasonable fact finder
could draw an inference of race discrimination. Furnco Construction
Corp. v. Waters, 438 U.S. 567, 576 (1978). In reaching this conclusion,
we note that at least one White applicant was selected for the position
and at least one applicant outside of complainant's protected class was
not selected.