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.