David A. Henery, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 22, 2005
07a50034 (E.E.O.C. Sep. 22, 2005)

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.