07a50034
09-22-2005
David A. Henery, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
David A. Henery v. Department of the Navy
07A50034
September 22, 2005
.
David A. Henery,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 07A50034
Agency No. 02-444466-003
Hearing No. 110-2004-00033X
DECISION
Following its December 17, 2004 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency indicates that it adopts the decision of the EEOC
Administrative Judge (AJ) in the captioned case, finding that the agency
discriminated against complainant on the basis of disability (left knee
amputation residuals) when it failed to provide �handicapped� parking
as a reasonable accommodation. However, the agency disputes the award
of compensatory damages and the restoration of annual and sick leave
ordered by the AJ as remedial relief.<1>
According to the record, the agency employed complainant at its Trident
Refit Facility, Naval Submarine Base, King's Bay, Georgia, during the
relevant time period. Complainant filed a formal EEO complaint with
the agency on February 13, 2002. After conducting a hearing, the AJ
rendered a decision on March 1, 2004, finding that the agency violated
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq., when it failed to provide complainant
with �handicapped� parking as a reasonable accommodation. The AJ then
conducted a second hearing, for the purpose of assessing damages, and
rendered a decision on November 4, 2004 awarding complainant make-whole
relief.
Specifically, the AJ awarded complainant non-pecuniary compensatory
damages in the sum of $15,000.00 for emotional harm, frustration,
negativity, and loss of sleep which he experienced for a four year
period; as well as an additional $50,000.00 for the physical and
mental pain directly associated with the excessive walking itself.
Regarding pecuniary compensatory damages, the AJ determined that
complainant failed to submit his medical bills to demonstrate past
medical expenses, but determined that because approximately one-third
of complainant's future medical care could be reasonably attributed to
the exacerbation of his physical condition due to the discrimination,
he awarded complainant the sum of $2,200.00 for future medical expenses.
The total award of compensatory damages was then $67,200.00.<2> The AJ
also ordered the agency to restore 200 hours of annual leave and 200 hours
of sick leave, finding that although the record did not demonstrate that
complainant was entitled to all of the leave restoration he requested, it
did reflect that complainant used leave that he would not have otherwise
taken except for the discrimination.
On appeal, the agency asserts that the award of compensatory damages is
excessive, noting that the AJ was attempting to improperly assess punitive
damages. Additionally, the agency avers that the award should not be
based on a 4 year period of discrimination, asserting that there were
significant periods of time during which handicap parking was available
to complainant. Moreover, the agency avers that complainant greatly
exaggerated the amount of walking he had to do because of the lack of
handicap parking, noting agency evidence which reflects substantially
lesser amounts, and further avers that complainant failed to take
reasonable measures to mitigate the amount he had to walk. Furthermore,
the agency argues that the AJ's award failed to reduce complainant's award
in consideration of his pre-existing condition, as well as other causes
of physical and emotional pain, to include the stress associated with
the processing of his EEO complaint. The agency also argues that the
AJ's award was extremely excessive when compared to awards in similar
Commission cases. The agency further argues that the award for future
medical expenses is improper due to lack of evidence demonstrating
that complainant will require medical care associated only with the
exacerbation caused by the excessive walking, and that this award is not
proper at all given that there was no award for past medical expenses.
As to the restoration of leave, the agency argues that complainant failed
to show that this leave was associated only with the exacerbation of
his medical condition caused by the agency's discrimination, arguing
that other factors were at play as well.
In response to the agency's appeal, complainant disputes the agency's
claim that the AJ's award is tantamount to punitive damages, noting
that the AJ specifically indicated that such an award is not available
to complainant. Next, regarding the agency's challenge to the number
of trips complainant made to each building at issue, complainant notes
that the AJ specifically considered all of the evidence provided by both
parties, and that complainant's estimate was corroborated by that of
his first line supervisor and another employee as well. Additionally,
complainant argues that the AJ properly assessed the amount of additional
walking by complainant due to the lack of handicapped parking, averring
the mitigating measures suggested by the agency were impractical or
counter-productive to complainant's ability to perform his job.
As to the duration of the harm, the complainant avers that record
evidence clearly reflects that as of the date he was hired in Spring 2001,
despite multiple requests by him and his supervisor, the agency did not
comply with handicapped parking regulations until spring 2003 for the
Waterfront Building, and November 2003 for the Administration Building
(the two facilities were complainant worked). Moreover, complainant
argues that his physical and mental pain endured long after the agency
complied with parking regulations, and that the AJ's award of damages
was properly based on the length of time the complainant suffered because
of the harm resulting from the lack of a reasonable accommodation.
Additionally, complainant argues that the award of compensatory damages
was in keeping with awards in similar Commission cases, citing to two
examples, and also argues that despite the agency's arguments to the
contrary, the AJ did take into account the other causes for the physical
and emotion pain suffered by complainant, noting that the AJ's decision
set forth and applied the relevant legal principles. As to the AJ's award
for future pecuniary compensatory damages, complainant avers that the AJ
properly based it on record evidence, to include a medical statement,
showing that complainant would require future care at the increased
rate he experienced due to the discrimination (noting an increase of
65% commencing in 2001) for the foreseeable future, and limited the
award to the amount of the increase only. As to the restoration of
leave, complainant avers that the agency merely asserts that it is not
supported by record evidence, which complainant disputes, identifying
both record evidence and hearing testimony as to the amount of leave
taken by complainant for medical care due to the excessive walking
resulting from the agency's discrimination.
Analysis and Findings
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
When discrimination is found, the agency must provide the complainant
with a remedy that constitutes full, make-whole relief to restore her
as nearly as possible to the position she would have occupied absent
the discrimination. See, e.g., Franks v. Bowman Transportation Co.,
424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418-19 (1975); Adesanya v. Postal Service, EEOC Appeal No. 01933395 (July
21, 1994). Pursuant to section 102(a) of the Civil Rights Act of 1991,
a complainant who establishes unlawful intentional discrimination under
either Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. or Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. may
receive 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) as part of this "make whole" relief.
42 U.S.C. � 1981a(b)(3). In West v. Gibson, 119 S.Ct. 1906 (1999), the
Supreme Court held that Congress afforded the Commission the authority
to award compensatory damages in the administrative process. For an
employer with more than 500 employees, such as the agency, the limit of
liability for future pecuniary and non-pecuniary damages is $300,000.00.
42 U.S.C. � 1981a(b)(3)
To receive an award of compensatory damages, a complainant must
demonstrate that he or she has been harmed as a result of the agency's
discriminatory action; the extent, nature, and severity of the harm; and
the duration or expected duration of the harm. Rivera v. Department of
the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recons. den.,
EEOC Request No. 05940927 (December 11, 1995); Enforcement Guidance:
Compensatory and Punitive Damages Available Under Section 102 of the Civil
Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.
After a careful review of the record, we discern no basis to disturb
the AJ's award of compensatory damages in this case. Specifically,
we find that the AJ conducted a full hearing on the issue of damages,
and made specific credibility determinations in calculating the amount
of non-pecuniary compensatory damages awarded in this case. Moreover,
notwithstanding the agency's arguments to the contrary, as set forth
above, we find that this award is supported by the record, and that it
is neither punitive, monstrously excessive, nor inconsistent with the
awards made by the Commission in similar cases. In this regard, we
find that the record confirms that the agency was in clear violation
of the Rehabilitation Act in failing to provide adequate handicap
parking at complainant's work facility for a period of many years, and
that complainant's multiple requests went unheeded despite his obvious
physical pain and emotional distress, thereby intensifying the degree
and duration of the harm.
Furthermore, we find that the AJ's award is limited to only the harm
which may be associated with the agency's discrimination, excluding
complainant's pre-existing medical and emotional problems associated
with his motorcycle accident. In particular, we find that the record
confirms the significant increase in complainant's need for medical
treatment shortly after his employment with the agency, and find that the
award of remedies reflects the significant amount of additional harm,
both physical and emotional, caused by the agency's discrimination.
Additionally, we find no error in the AJ's award of pecuniary damages for
future medical expenses, as the long-term effects of the exacerbation
of complainant's condition, and need for future treatment, are well
documented in the record. Likewise, we find that the record supports
a finding that complainant used approximately 200 hours of annual leave
and 200 hours of sick leave (i.e., 10 weeks in total, over a period of
several years) because of the exacerbation of his medical/emotional
condition due to the agency's discrimination. Finally, we find that
although complainant might have described stress associated with the
processing of his EEO complaint, we find no support for the agency's
contention that compensation for this stress was included in the AJ's
award of remedies in this case.
Therefore, for the reasons set forth above, we conclude that the AJ's
findings of fact are supported by substantial evidence, and the AJ
correctly applied the appropriate regulations, policies, and law in the
award of remedies in this case.
Accordingly, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, 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
To the extent that it has not already done so, the agency is ordered
to undertake the remedies ordered by the AJ, as set forth in footnote
no. 1 of this decision.
Within thirty (30) calendar days of the date that this decision becomes
final, the agency shall pay complainant $15,000.00 for emotional harm,
frustration, negativity, and loss of sleep which he experienced for a
four-year period; as well as $50,000.00 for the physical and mental pain
associated with the excessive walking itself, for a total of $65,000.00
in non-pecuniary compensatory damages;
Within thirty (30) calendar days of the date that this decision becomes
final, the agency shall pay complainant the sum of $2,200.00 for future
medical expenses.
Within thirty (30) calendar days of the date that this decision becomes
final, the agency shall restore 200 hours of annual leave and 200 hours
of sick leave to complainant's leave balances.
Within sixty (60) calendar days of the date that this decision becomes
final, the agency shall provide the responsible management officials
in this case with 16 hours of sensitivity training and EEO training
regarding the agency's obligations under the Rehabilitation Act.
The agency will post a notice at its Trident Refit Naval Submarine Base,
King's Bay, Georgia facility, as set fort more fully in the �Posting
Order� paragraph below.
Because complainant is the prevailing party in this case, the agency
shall pay complainant attorney's fees and costs associated with this
appeal, as provided more fully in the �Attorney's Fees� paragraph below.
POSTING ORDER (G0900)
The agency is ordered to post at its Trident Refit Naval Submarine Base,
King's Bay, Georgia 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 22, 2005
__________________
Date
1The AJ also ordered the agency to: take steps to comply with the
ADA Compliance Handbook, in particular to assure that it provides 8
handicap parking spaces as mandated for a lot size of 300 to 400 total
spaces; to have handicap spaces at the main entrance front entrance of
the Administration Building; take steps to improve complainant's access
to the Waterfront; and to develop a reasonable accommodation procedure
per Executive Order 13164. The AJ also advised complainant's counsel to
submit a petition for attorney's fees, presumably including this as part
of complainant's relief. We note that the agency does not dispute this
portion of the AJ's order of relief, and has submitted documentation to
the Commission documenting its compliance efforts with this portion of
the order. Accordingly, this decision is limited to the agency challenge
to the award of compensatory damages and restoration of leave.
2Although the AJ's decision reflects that this total is $67,000.00,
we find that correctly calculated, the sum is actually $67,200.00.