Gilbert Spencer v. Department of the Treasury 07A10035 05-06-03 . Gilbert Spencer, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency. Appeal No. 07A10035 Agency No. 98-2150 Hearing No. 360-98-8702x DECISION Concurrent with the issuance of its November 16, 2000 final order, the agency filed a timely appeal from the decision of an administrative judge (AJ) on an applicant's complaint of unlawful employment discrimination in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. (Rehabilitation Act). The appeal is accepted pursuant to 29 C.F.R. § 1614.405. ISSUE The issue on appeal is whether the agency discriminated against the complainant on the basis of his disability (monocular vision) when on October 9, 1997, the agency decided not to hire him for the position of Customs Inspector. BACKGROUND In 1979 complainant was in a hunting accident which resulted in the eventual loss of his left eye. In recovery from that accident, complainant found that his lost vision was a detriment to his ability to see, but he learned to compensate for the loss by using cues (or clues) and stimuli. In 1994 complainant began working as a deputy sheriff, and worked a full range of law enforcement duties, including work in investigations, evidence collection, traffic stops, homicide, securing crime scenes, searches of persons and vehicles, narcotics, surveillance, domestic disputes, and interception of illegal contraband. Complainant worked with Customs Agents as part of the Organized Crime Drug Enforcement Task Force, and was employed by the Permian Basin Drug Task Force and the West Texas Narcotics Enforcement Task Force. Sometime before September, 1996, complainant applied for the position of Customs Inspector at the El Paso, Texas duty station. Complainant was recommended for the Customs Inspector position by law enforcement officers from the U.S. Marshals Service, U.S. Customs Service, U.S. Immigration and Naturalization Service, U.S. Border Patrol, a local District Attorney's Office and two Sheriff's Departments, all of whom had worked with him performing a full range of law enforcement functions in both day and night time. At the time of application for the instant position, complainant was skilled in archery, engaged in competitive firearms shooting, was qualified as an expert in the pistol and shotgun, and had a brown belt in karate. Complainant's vision in his right eye was 20/15. On November 25, 1996, complainant was conditionally offered a position with the agency as a Customs Inspector at the El Paso, Texas duty station, pending, among other things, qualification under the agency's medical standards. Complainant underwent medical testing and, on December 17, 1996, an agency physician concluded that complainant had no vision in his left eye, and no depth perception. Report of Investigation (ROI) at 262. Complainant's peripheral vision was not measured. ROI at 263. The agency's medical standards required, among other things, both eyes, with distant vision at least 20/40 in one eye and 20/100 in the other eye, near vision in both eyes at Jaeger 4, correction permitted, and depth perception. ROI at 242, 254. Peripheral vision is not shown as a functional requirement essential to the duties of the Customs Inspector. On February 7, 1997, the agency's health specialist notified complainant that he did not meet the vision requirements for the position, explaining only that complainant did not meet the distant vision requirements. Although this February 7, 1997 notice shows that enclosures were included, the specific enclosures are not identified in this record. Id. No evidence shows that complainant was given a copy of the medical standards or his medical examination, or that he was notified that he did not meet the agency's medical standards because of the absence of depth perception or his inability to see a full visual field. In the February 7, 1997 letter, complainant was given the opportunity to submit additional documentation for consideration by the deciding official, such as 1) a complete copy of his medical records relating to the disqualifying condition and documentation to demonstrate that he met the vision requirements of the position; and/or 2) documentation demonstrating his current ability to perform job duties similar to those required for the position despite his vision condition.<1> In response to this notice, complainant submitted a March 24, 1997 diagnosis which focused on complainant's distance vision. The March 24, 1997 diagnosis showed that complainant had retinal detachment, his vision in his right eye was 20/15, and he had no light perception in his left eye. ROI at 117, 119. Along with this diagnosis Complainant submitted testimonials from law enforcement officers about complainant's abilities to perform law enforcement duties. After reviewing complainant's submission, the agency's vision specialist concluded that because of complainant's failure to have vision in his left eye, he did not meet the agency's vision standards which required, among other things, stereopsis (a form of depth perception) and a full visual field. The vision specialist recommended complainant's rejection from the position. ROI at 294. On June 18, 1997, the agency's health specialist forwarded to the agency's deciding official a letter stating that complainant was disqualified from the position for failure to meet the medical standards. ROI at 237. The health specialist provided a medical summary of complainant which stated that the complainant failed to “meet the medical and physical requirements established for the Customs Inspector position in that he does not have vision in both eyes.” ROI at 239. On September 11, 1997, the agency's deciding official reviewed complainant's pre-appointment medical case file, and concluded that he would not grant a waiver of the agency's medical requirements, because complainant “did not meet the minimum requirements necessary in the area of mono vision. . . .” ROI at 202. On October 9, 1997, the agency rejected complainant from the position of Customs Inspector for failure to meet the agency's medical standards. ROI at 127. On October 20, 1997, complainant wrote to the agency asking that he be granted a waiver of the agency's medical standards and that he be provided with a copy of the agency's medical standards which precluded his selection. Complainant also asked the agency to describe the specific duties and/or tasks required of a customs inspector that he would be unable to perform. ROI at 140-41. In a May 8, 1998 affidavit, complainant attested that he did not receive a response to his October 20, 1997 letter. ROI at 198. At the hearing, the agency's vision specialist testified that he thought the ability to see was based on visual acuity, and complainant showed excellent visual acuity. However, complainant was deficient in stereopsis, a form of depth perception, and he lacked a full visual field. In this witness's view, complainant's lack of depth perception could make him unable to see a concealed weapon, and complainant's reduced visual field amounted to an inability to observe simultaneous events, and posed a direct threat to the safety of complainant or others where simultaneous events were commonly part of the working environment. The witness testified that his conclusion that complainant's reduced visual field posed a direct threat was based on 1) two vision studies of truck drivers which found that monocular drivers and drivers with field defects performed worse than a normal seeing group in a functional field test that required searching a complete 180 degrees of visual field; and 2) his own observations of monocular individuals. HT at 609-14. The witness acknowledged that while he tried to base his decisions on “science,” no studies were available in the law enforcement field which measured a monocular individual's response to law enforcement situations. HT at 614. The agency's expert witness in human performance, job task analysis and development of medical standards testified that peripheral vision (a full visual field) was required to perform safely some essential duties of the Customs Inspector job, such as “pat-down” of individuals for weapons or contraband; crawling in confined areas to look for contraband; walking up and down between stopped and moving vehicles; standing and directing traffic at a land border; cordoning off vehicles for inspection; surveying passengers and determining which persons should be monitored or questioned; talking to citizens, passengers and other agency personnel; and identifying cargo abnormalities. This witness testified that she and a panel of medical specialists reviewed approximately six studies comparing monocular and binocular participants, and found that monocular individuals 1) performed significantly poorer than binocular individuals on tasks at different levels of illumination; 2) could not identify which objects were in contrast; 3) could not determine lengths of objects; 4) could not distinguish between trapezoids and rectangles; and 5) in a simulated driving study responded to stimuli significantly slower than binocular individuals. The agency official responsible for deciding that complainant would not be hired testified that he did not believe complainant was handicapped in his ability to see but that complainant's compensation techniques could not overcome his lack of peripheral vision. Complainant's treating physician testified that complainant's peripheral vision and depth perception were affected by complainant's monocular vision, adding that, in his view, complainant's monocular vision was not a substantial limitation of complainant's ability to see because of complainant's compensation techniques. The AJ concluded that 1) the agency regarded complainant as substantially limited in the major life activity of seeing; 2) the agency failed to perform an individualized assessment of complainant's abilities to determine if complainant could perform the job; 3) the agency arbitrarily disqualified complainant from the position without conducting an independent examination; 4) the agency failed to show a significant risk of substantial harm to the health or safety of complainant or others if complainant were hired for the position; 5) the agency failed to articulate a legitimate nondiscriminatory reason for its actions; and 6) complainant's evidence showed pretext. The AJ ordered that complainant be hired into the position of Customs Inspector, retroactive to November, 1996 when complainant was made a conditional offer of employment. Based on complainant's testimony that he felt dejected and suffered stress, the AJ awarded complainant $40,000 in compensatory damages. The AJ also awarded the complainant a total of $19,057.50 in attorneys fees. On appeal of the merits of complainant's case, the agency argued that 1) complainant's impairment did not substantially limit a major life activity; 2) the agency did not regard complainant's impairment as substantially limiting a major life activity; 3) the AJ's conclusion that the agency arbitrarily disqualified complainant without an independent examination was error and contrary to law; and 4) the AJ's conclusions regarding the agency's articulation and pretext were not supported by substantial evidence. Regarding the remedies ordered by the AJ, the agency argued that the AJ's identification of November, 1996 as the hiring date was not supported by the evidence and the AJ's order that the agency reassess its medical standards and post a notice that the agency discriminated against an applicant for employment, should be reversed. Regarding the AJ's award of compensatory damages, the agency argued that the AJ's award of $40,000 was monstrously excessive. Regarding the AJ's award of $19,057.50 in attorneys fees, the agency argued that the AJ awarded attorneys fees simultaneously with her finding of discrimination on the merits of the case, without giving the agency an opportunity to respond to the complainant's statement of fees, in violation of 29 C.F.R. § 1614.501(e)(i) and Equal Employment Opportunity Commission Management Directive 110 at 11-8 (Nov. 9, 1999) (MD-110). The agency further argued that complainant's attorneys failed to meet their burden of showing the reasonableness of hours worked and rates charged. The agency also objected to the complainant's request for an extension of time in which to file his appeal brief, asserting that complainant was dilatory in preparing the appeal and the delays associated with the holiday season did not justify the grant of extensions.<2> Complainant argued, essentially, that the AJ's decision was supported by the substantial evidence of the record;<3> that complainant was substantially limited in the major life activity of seeing and that the agency regarded complainant as substantially limited in the major life activity of seeing; that the AJ ordered complainant to submit an application for attorneys fees on the date that the agency's closing argument was due, and the agency did not object to this order; that the AJ considered the agency's October 24, 2000 “Agency's Opposition To Complainant's Application For Attorney's Fees” but ruled that the complainant's application for attorneys fees contained sufficient detail of hours spent and rates charged for the AJ to make a decision; and agreed with the agency that complainant's back pay should be calculated from the date complainant would have been hired but for the discriminatory act, rather than November, 1996 as ordered by the AJ. ANALYSIS One bringing a claim of discrimination on the basis of disability has the burden to show that he is an individual with a disability. Ceralde v. United States Postal Service, EEOC Appeal No. 07A00038 (Aug. 2, 2001). An individual with a disability is defined as one who (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a record of such an impairment or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g); Fidurski v. Department of Health and Human Services, EEOC Request No. 05960027 (Feb. 19, 1997). An impairment is substantially limiting when an individual is unable to perform a major life activity that the average person in the general population can perform or is significantly restricted as to the condition, manner or duration under which s/he can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j). Major life activities include seeing. 29 C.F.R. § 1630.2(i). Ordinarily, people with monocular vision will meet the definition of disability as set out in the Americans with Disabilities Act, 42 U.S.C. § 12010 et seq. (ADA), as the absence of an eye is an obvious physiological condition that appears to substantially limit an individual's ability to see. Albertson's Inc. v. Kirkingburg, 527 U.S. 555, 564, 567 (1999). However, when evaluating the effect of the impairment on the major life activity, one must take into account mitigating measures, taken with either artificial aids or the body's own systems, for these mitigating measures may reduce the effect of an impairment on the major life activity so that it is no longer substantially limiting. Id., at 565-66; Sutton v. United Airlines, Inc., 527 U.S. 471, 482-83 (1999). Ultimately, individuals with monocular vision must demonstrate that they have a disability “by offering evidence that the extent of the limitation in terms of their own experience, as in loss of depth perception and visual field, is substantial.” Albertson's, supra, at 567. We conclude that complainant has satisfied this requirement. While complainant had good visual acuity (his vision in his right eye was 20/15), he had no vision in his left eye. A consequence of having no vision in one eye is a diminution of peripheral vision (loss of visual field) and of stereopsis (depth perception). Complainant and the doctors testified that complainant used hearing to make up for the loss of his peripheral vision. However, hearing as a compensation technique cannot compensate for the loss of a visual ability, since hearing does not improve an individual's ability to see peripherally. For that reason, we conclude that complainant's use of hearing did not mitigate his diminished peripheral vision. Additionally, while complainant used shadows and highlights to help him judge depth, he did not dispute the agency's expert's assertion that an individual with diminished stereopsis would have difficulty seeing aberrations in low light. Thus, we cannot conclude that complainant's use of visual clues adequately compensated for his diminished depth perception. Because complainant had no visual abilities that helped him overcome his visual limitations in peripheral vision and depth perception, we conclude that diminished peripheral vision and depth perception are not mitigated, and that complainant's monocularity substantially limits the major life activity of seeing. Complainant is an individual with a disability.<4> A qualified individual with a disability is an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the position he holds or desires, and who with or without reasonable accommodation, can perform the essential functions of the position. 29 C.F.R. § 1630.2(m). Absent a showing that an accommodation presents an undue hardship to the agency, an accommodation must be provided. 29 C.F.R. § 1614.203(c). There is no doubt that complainant could perform the law enforcement duties of the position. Not only did the agency conditionally offer complainant the position of Customs Inspector, but complainant testified he could and had performed those duties which the agency's human performance expert testified that complainant could not perform, including pat downs, crawling and searching in cramped dark spaces, and identifying cargo abnormalities. Clearly, the only bar to complainant's hire was his monocular vision. Accordingly, we find that complainant is a qualified individual with a disability. Because it is clear that the agency did not hire complainant because of his disability, we do not apply the indirect evidence method of proof used by the AJ, but rather proceed to the issue of whether the agency has satisfied its burden of proof to establish that its disparate treatment of complainant based on his disability was justified by a direct threat to safety. Van Parys v. United States Postal Service, EEOC Appeal No. 01991100 (Aug. 22, 2001). A direct threat is a significant risk of substantial harm which cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. § 1630.2(r). If an individual poses a direct threat as a result of a disability, the employer must determine whether a reasonable accommodation would either eliminate the risk or reduce it to an acceptable level. 29 C.F.R. § 1630.2(r) App. If no accommodation exists that would either eliminate or reduce the risk, the employer may refuse to hire an applicant. Id. The determination that an individual poses a direct threat must be based on an individualized assessment of the individual's present ability to perform safely the functions of the job, considering a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. Id. The agency's expert on human performance and job task analysis for the development of medical standards testified that the Final Report of the agency's medical guidelines for Customs Inspectors<5> which she prepared was developed to look at the “level of severity of each disease [condition] that allow[ed] for safe job performance.” HT at 479-80, 485, 488.<6> However, no evidence showed how complainant's apparent disability and compensations were assessed against the job tasks, nor even that complainant was notified that his lack of a full visual field and stereopsis were disqualifiers. Indeed, as seen above, the only explanation for complainant's rejection was contained in the February 7, 1997 letter which recited complainant's lack of distance vision as a disqualifier. Complainant adequately responded to this, but was given no opportunity to respond to the agency's assessment of his depth perception<7> and peripheral vision. Moreover, the agency made no attempt to determine if a reasonable accommodation would either eliminate the perceived risk or reduce it to an acceptable level.<8> While the agency formed some conclusions about complainant's capabilities from studies of monocular individuals, nowhere did the agency individually assess complainant's vision deficiencies and compensations to determine if his deficiencies posed the same risks as found in the studies.<9> Indeed, the agency seems to have given little if any weight to complainant's history of safe, and even exemplary, performance in jobs involving duties and risks similar to those characteristic of the Customs Inspector position for which he applied. See 29 C.F.R. pt. 1630, app. 1630.2(r) (relevant evidence of whether an individual with a disability poses a direct threat may include evidence of the individual's experience in previous similar positions). Compensatory Damages In view of the above findings, we conclude that compensatory damages are appropriately awarded. In her decision, the AJ awarded complainant compensatory damages in the amount of $40,000 for emotional distress based on complainant's testimony that he felt dejected and suffered stress and emotional pain. The AJ did not provide any rationale for her assessment that $40,000 was an appropriate award for the injury suffered. Nonpecuniary damages are limited to the sums necessary to compensate the injured party for his/her actual harm, even where that harm is intangible. Sanchez v. United States Postal Service, EEOC Appeal No. 01975022, citing Carter v. Duncan - Higgins Ltd., 727 F.2d 1225 (D.C. Cir. 1984). Such damages must take into account the severity of the harm and the length of time that the injured party has suffered from the harm. Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Also, the absence of supporting evidence may affect the amount of damages deemed appropriate. See Lawrence v. United States Postal Service, EEOC Appeal No. 01952288. We find that, in this case, complainant's testimony on the extent of his injuries was very limited and not detailed,<10> and when compared with awards made in similar cases,<11> an appropriate award is $5,000. Accordingly, we modify the AJ's award of compensatory damages. Attorneys Fees The agency is required to award attorneys fees for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. Bernard v. Department of Veterans Affairs, EEOC Case No. 01966861 (Jul. 17, 1998). Attorneys fees are computed by determining the lodestar, i.e., the number of hours reasonably expended multiplied by a reasonable hourly rate. 29 C.F.R. § 1614.501((e)(2)(ii)(B); Equal Employment Opportunity Commission Management Directive (MD) 110 at 11-5, citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). All hours reasonably spent in processing the complaint are compensable, and the number of hours should not include excessive, redundant or otherwise unnecessary hours.<12> 110 at 11-5, citing Hensley, supra, 461 U.S. at 434; and Bernard v. Veterans Affairs, supra. The presence of multiple counsel at hearing may be considered duplicative in certain situations, such as where one or more counsel had little or no participation. MD 110 at 11-5, citing Hodge v. Department of Transportation, EEOC Request No. 05920057 (Apr. 23, 1992). A reasonable hourly rate is based on prevailing market rates in the relevant community for attorneys of similar experience in similar cases. MD-110 at 11-6, citing Cooley v. Department of Veterans Affairs, EEOC Request No. 05960748 (July 30, 1998). An application for attorneys fees must include a verified statement of attorney fees, accompanied by an affidavit executed by the attorney of record itemizing the attorneys' charges for legal services. MD-110 at 11-9. A verified statement of fees must include a list of services rendered itemized by date, number of hours, detailed summary of the task, rate, and attorney's name; documentary evidence of the reasonableness of hours, such as contemporaneous time records, billing records or a reasonably accurate substantial reconstruction of time records; and documentary evidence of the reasonableness of the rate, such as an affidavit stating that the requested rate is the attorney's normal billing rate, a detailed affidavit of another attorney in the community familiar with the prevailing community rates for attorneys of comparable experience and expertise, a resume, a list of cases handled, or a list of comparable cases where a similar rate was accepted. Id. While the attorney is not required to record in great detail the manner in which each minute of his time was expended, the attorney does have the burden of identifying the subject matters on which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. Bernard v. Department of Veterans Affairs, supra. Regarding the hours spent by complainant's attorneys on this matter, complainant's fee application itemized pre-hearing, hearing (including hearing preparation) and post hearing hours spent, but did not include a list of services rendered itemized by date and number of hours, and did not provide a detailed summary of the tasks performed. Pre-hearing time for Attorney A, whose experience was limited to civil and criminal matters and who did not assert that he had any experience in discrimination law, was claimed at 45 hours; pre-hearing time for Attorney B, who was experienced in discrimination law, was claimed for 19.5 hours. These attorneys claimed that they met with several fact witnesses who were aware of complainant's work abilities, and that they had to conduct extensive research relevant to the case. The record showed that they submitted three witness lists, but did not show that they participated in discovery. The agency objected to an award of the full 64.5 hours, asserting that 1) the lack of detail made it impossible to determine if any of the pre-hearing hours were pre-complaint hours (only fees incurred in reaching the decision whether the attorney will represent the complainant are compensable at the pre-complaint stage), 29 C.F.R. § 501(e)(1)(iv)); 2) meeting with witnesses should not have consumed more than 24 hours; and 3) because extensive research should not have been required for a lawyer experienced in discrimination law, no more than 24 hours should have been claimed for research. Representation for hearing preparation and hearing (two days, or 16 hours) was limited to Attorney B, who claimed 46 hours. The agency asserted that no more than 24 hours should have been required for preparation of 16 hours of hearing, and the agency requested that the claimed 46 hours of preparation for hearing and actual hearing time should be reduced to 40 hours. Regarding post-hearing time, the agency asserted that attorney B's claimed five hours of post-hearing time must have been devoted to preparation of the fee application as no post-hearing brief was submitted; the agency asserted that five hours spent for the fee application was excessive because the fee application appeared to be “boilerplate” and lacked appropriate and required detail. The agency requested that the post-hearing time be reduced to one hour. The agency supported its contention that the complainant's fee application was “boilerplate” by appending a copy of Attorney B's application for attorney fees in a district court case filed June 1, 2000. This fee application is almost identical to the instant fee application. The agency also asserted that Attorney B's customary billing rate was $150 per hour, and not the claimed $165 per hour. The agency supported this assertion with the June 1, 2000 district court fee application in which Attorney B claimed that his billing rate was $150 per hour. Moreover, Attorney A who had no prior experience in EEO law also claimed a billing rate of $165 per hour. The agency objected that an inexperienced attorney should bill at the same rate as an experienced attorney, and asserted that an appropriate rate for Attorney A was $100 - $125 per hour. The AJ found that complainant's application for attorneys fees contained sufficient detail for her to make a decision, that the case was complex and that the application was reasonable and consistent with similar submissions for fees. For the reasons set out below, we modify the AJ's award on attorneys fees. Regarding the hours worked claimed by Attorney B, where Attorney B, the signatory on the Complainant's Application For Attorneys' Fees, failed to even minimally comply with the requirement of itemization, we cannot conclude that his request is reasonable. Absent any facts on which to base a conclusion about the reasonableness of complainant's application, we conclude that he has not carried his burden of proof here. The agency has met its burden of challenging the complainant's submission, and we agree that the pre-hearing administrative hours should amount to no more than 24 hours for meeting with witnesses, and 24 hours for research. Because 70% of this work was performed by Attorney A, 70% of the hours (33.6) are allocated to Attorney A, and 30% (14.4 hours) are allocated to Attorney B. Similarly, we agree with the agency that the 46 claimed hearing preparation and hearing hours should be reduced to 40; all of these hours are allocated to Attorney B. Finally, the five claimed post-hearing hours which do not detail their purpose, are reduced to three, with ˝ of those hours going each to Attorneys A and B. The total number of compensable hours is 91.<13> Regarding the billing rate, the agency showed that Attorney B billed at a lower rate in a similar case. In the absence of any other information regarding the prevailing community rates for attorneys of comparable experience and expertise, we find that the comparable case (the district court case noted above) shows that Attorney B should be compensated at $150 per hour, not $165 per hour. No evidence was introduced regarding the prevailing community rate for Attorney A, and we agree with the agency's argument that Attorney A's rate should be less than that of Attorney B. Accordingly, we find that Attorney A should be compensated at the rate of $125 per hour. CONCLUSION After a careful review of the record, we modify the AJ's finding of discrimination, as set out above. Therefore, the Commission reverses the agency's final order and remands the matter to the agency to take corrective action in accordance with this Decision and the Order below. ORDER Within 60 days of the date this decision becomes final, the agency shall instate complainant into the position of Customs Inspector, retroactive to the date complainant would have started on the job. To the extent that other agency hires who successfully performed their jobs received step increases, complainant is entitled to be awarded step increases in the same manner as they were awarded to other agency hires. If this position had a career ladder, and if other hires who successfully performed their jobs were promoted within the career ladder, complainant is entitled to additional grades within the career ladder. Complainant's duty station shall be El Paso, Texas, unless the parties agree to a different duty station.<14> Complainant shall be awarded back pay, with interest and benefits, from the date he would have been hired but for the agency's discrimination, to the present. The agency shall determine the appropriate amount of back pay, interest and other benefits due complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. 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." Within 60 days of the date this decision becomes final, the agency is directed to pay attorney fees for 91 hours of work as follows: 35.1 hours for Attorney A at $125/hour, totaling $4,387.50; 55.9 hours for Attorney B at $150/hour, totaling $8,385. Within 60 days of the date this decision becomes final, the agency will pay compensatory damages in the amount of $5,000. Within 60 days of the date this decision becomes final, the agency should consider taking disciplinary action against the individual responsible for making the agency's decision in this matter. If the agency decides to take disciplinary action, it shall identify in its compliance report the action taken. If the agency decides not to take disciplinary action, it shall set forth in its compliance report the reason(s) for its decision not to impose discipline. The agency shall conduct 8 hours of training for the agency employee responsible for the discrimination found herein regarding his duties and obligations under the Rehabilitation Act. 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 of the agency's calculation of back pay and other benefits due complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0900) The agency is ordered to post at its U.S. Customs Service, El Paso, Texas 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). 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 (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: ______________________________ Frances M. Hart Executive Officer Executive Secretariat ___05-06-03_______________ 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 the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 et seq. has occurred at this facility. 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. The Department of the Treasury, U.S. Customs Service, El Paso, Texas, supports and will comply with such Federal law and will not take action against individuals because they have exercised their rights under law. The Department of the Treasury, U.S. Customs Service, El Paso, Texas, has been found to have discriminated against an applicant for employment because of his disability and has been ordered to hire the applicant and pay back pay and damages. The Department of the Treasury, U.S. Customs Service, El Paso, Texas, 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. The Department of the Treasury, U.S. Customs Service, El Paso, Texas, 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: _________________________ 29 C.F.R. Part 16141 The agency's health specialist described this February 7, 1997 letter as the agency's “individualized assessment of the applicant.” ROI at 239, 271. 2 On January 2, 2001, we granted complainant an extension of time in which to file his brief in opposition to the agency's appeal. Complainant's Brief for Appellee was thereafter timely filed. 3 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). 4 While the AJ analyzed whether the agency regarded complainant as an individual with a disability, we find the correct analysis focuses on whether complainant is an individual with a disability. 5 Todd A. Baker, Deborah L. Gebhardt, Valarie A. Sheppard, Development and Validation of Medical Guidelines for United States Customs Service Customs Inspectors and Canine Enforcement Officers, June, 1996. 6 This Final Report describes how medical specialists rated tasks against levels of impairment. Final Report at 28. Medical guidelines were derived for each body system, and collected into a Physician's Manual which allowed examining physicians to compare a candidate's health status with the level of disease/condition that limits or precludes safe job performance. This Physician's Manual was not introduced into the record, nor was any testimony provided about the effect of monocular vision on performance of essential functions of the job. 7 The February 7, 1997 letter was a poorly worded form letter which referred to depth perception as a job duty, but obviously should have referred to diminished depth perception as an impairment. However, nothing in the letter gave complainant notice of the degree of depth perception needed for the job, nor was complainant given an opportunity to show how he has compensated for the loss of binocularly created depth perception. 8 The record revealed that a reasonable accommodation was provided to a customs inspector whom the agency learned had monocular vision. 9 The individualized assessment does not require that the agency have its experts conduct yet another medical examination of complainant, as the agency's brief suggests the AJ implied. However, it must do more than rely on empirical evidence (HT at 181, 183, 630) when assessing the risks presented by complainant's disability. 10 Without elaboration or supporting medical evidence, complainant testified that, as a result of the agency's failure to hire him, he had a sense of emptiness, discouragement and sadness, his sleeping habits were disrupted, and he was irritable. HT at 379-80. 11 Sanchez v. United States Postal Service, supra; ($1,500 in nonpecuniary damages where complainant provided few statements at hearing that he experienced stress at home and at work, and the agency's actions interfered with his enjoyment of life in general); Yates v. United States Postal Service, EEOC Appeal No. 01973250 (Mar. 11, 1999) ($1,500 in nonpecuniary damages where complainant provided only sparse statements during the hearing regarding his emotional distress); Pailin v. Department of Defense, EEOC Appeal No. 01954350 (Jan. 26, 1998) ($2,500 in nonpecuniary damages where complainant was denied training on the basis of race, and testified that she experienced tension, depression, and withdrawal from coworkers); DeMeuse v. United States Postal Service, EEOC Appeal No. 01950324 (May 22, 1997) ($1,500 in nonpecuniary damages where complainant was frisked by a supervisor, and testified to exacerbation of post-traumatic stress disorder); Lawrence v. United States Postal Service, supra ($3,000 in nonpecuniary damages for sexual harassment where complainant presented primarily non-medical evidence that she was irritable, experienced anxiety attacks, and was shunned by her co-workers); Benson v. Department of Agriculture, EEOC Appeal No. 01952854 (June 27, 1996) ($5,000 in nonpecuniary damages where the complainant, his relatives, and his colleagues offered testimony regarding the embarrassment and humiliation complainant suffered as a result of discrimination). 12 This Management Directive can be found at www.eeoc.gov. 13 Complainant's Brief of Appellee disagreed with the agency's conclusions about the attorneys fees application, but did not address the agency's arguments on number of hours spent on this matter, or on billing rates. 14 In his formal complaint, complainant asked that he be stationed at the Port of Presidio, Texas. Because the injury here concerned complainant's rejection at the El Paso, Texas duty station, the remedy is directed to the El Paso, Texas duty station.