07A20046
09-16-2003
Rudy C. Vindiola, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Rudy C. Vindiola v. United States Postal Service
07A20046
September 16, 2003
.
Rudy C. Vindiola,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 07A20046
Agency No. 4F-926-0152-00
Hearing No. 340-A1-3282X
DECISION
On May 11, 2001, an Administrative Judge (�AJ�) of the U.S. Equal
Employment Opportunity Commission (�EEOC� or �the Commission�) issued
a decision finding that the agency had violated Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq., when:
complainant was not permitted to return to work on and after December 7,
1998;<1> and
in a February 1999 conversation, the agency's medical consultant
improperly disclosed complainant's medical information to the Postmaster
(P1).
The AJ made the following factual findings: at all times relevant to this
complaint, complainant was employed by the agency as a Distribution Clerk,
at the Ontario, California Postal Facility. On December 7, 1998, while
on the job, complainant suffered a grand mal seizure which caused him
to lose consciousness, fall against postal equipment and cut his scalp.
Complainant was taken to the hospital by ambulance. On December 10, 1998,
the agency's medical consultant (C1) received a note from complainant's
neurologist (N1), which stated that complainant could return to his
regular duties as of that day, with the restriction of no driving.
Subsequently, C1 received an authorization dated December 14, 1998,
releasing from N1 to C1 �all medical information concerning epileptic
seizures.� On December 17, 1998, C1 received another letter from N1
stating that complainant had suffered a seizure and had been in a motor
vehicle accident, and that N1 recommended that complainant take certain
medications and have other diagnostic tests.
The AJ found that C1 required more information, however, before she
would clear complainant to return to work. On December 17, 1998,
C1 requested from �the physician that prescribed the psychotropic
medications, the hospital medical records, results of the MRI, EEG and
a serum Dilantin level from treating physician.� On January 21, 1999,
complainant presented the agency with another letter from N1 stating
that he was being treated for seizures, specifying his medication,
and stating that he could return to work �in a structured environment
where there are people around him,� but that he could not drive for at
least six months after his last episode, or operate any heavy equipment.
In February 1999, C1 telephoned N1, and spoke with one of N1's nurses
(T1), who recited the results of complainant's tests to C1. Specifically,
T1 asserted that complainant's MRI and EEG were both normal. T1 also
recited complainant's Dilantin level. C1 contacted the Postmaster
(P1) and disclosed that complainant had been prescribed medication for
a mental illness. Subsequently, on March 22, 1999, C1 received more of
complainant's medical records, including numerous test results, laboratory
reports, N1's notes reflecting complainant's progress with medication,
and a note from N1 indicating �no recurrence of seizures since last visit,
seizures well controlled.�
The AJ found that on March 23, 1999, C1 sent an electronic message to P1
informing him that complainant was still �not medically clear to return
to work,� because complainant had not provided medical information
from the physician who prescribed his psychotropic medication and
because it �appeared� that complainant was being treated by a mental
health specialist from whom complainant had refused to provide medical
information. Complainant presented a note from his treating physician
(X1), indicating that complainant had been diagnosed with a mental
disorder (unrelated to his seizures), but refused to provide any
information beyond that. C1 then sent a memorandum to P1 requesting
that he ask complainant to have his physician provide answers to
numerous additional questions about complainant's mental illness.
Complainant did not do so. The AJ found that it was undisputed that
as of April 1999, C1 required �extensive records about [c]omplainant's
medical history without any limitations whatsoever, including all mental
health records and other records . . . � Due to complainant's refusal
to provide unlimited information concerning his mental health records,
he was not permitted to return to work.
The AJ found that the agency violated the Rehabilitation Act, and
awarded the following corrective relief: (1) reinstatement, with back
pay, minus amounts earned in mitigation, with retroactive seniority and
full benefits; (2) attorney's fees and costs; (3) posting of a notice
for 30 days, stating that the agency will not discriminate based on
perceived disability and returning employees to work; and $10,000.00
for non-pecuniary damages.<2>
In its final order, the agency did not adopt the AJ's decision.
On appeal, the agency asks the Commission to affirm its final order,
and argues that the AJ's findings are not supported by substantial
evidence in the record. The agency argues that complainant was kept
off work until he provided adequate medical documentation regarding
whether he could safely return to work, and with what restrictions.
The agency additionally asserts �[s]hould the Administrative Judge's
decision stand it would serve to preclude employers from asking if an
employee is medically capable of doing a job without facing liability
for perceiving their employees as being disabled.� Agency Brief in
Support of Appeal, at 1.
In his cross-appeal, complainant asks the Commission to reverse
the agency's finding of no discrimination. Complainant additionally
requests that the non-pecuniary damage award be increased to $90,000.00.
Complainant further requests $2,497.42 in pecuniary damages, and explains
that �complainant's health benefits were terminated on March 10, 2000
and had not been re-instated at the time of the [AJ] decision in this
matter . . . .� Thus all medical expenses incurred by complainant, and
his wife who was covered by his health plan, are expenses incurred as a
direct result of the agency's refusal to return complainant to work.�<3>
Complainant's Brief in Support of Appeal on the Issue of Damages, at 6.
Complainant submitted receipts for these expenses.<4>
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 Administrative Judge's conclusions of law
are subject to a de novo standard of review, whether or not a hearing
was held.
The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination by
federal employees or applicants for employment. See Enforcement Guidance
on Disability-Related Inquiries and Medical Examinations of Employees
Under the ADA (July 27, 2000) (July 2000 Guidance); Enforcement Guidance
on the ADA and Psychiatric Disabilities (March 25, 1997) (March 1997
Guidance); and Enforcement Guidance: Preemployment Disability-Related
Questions and Medical Examinations Under the ADA (October 10, 1995).
Because the restrictions on employers with regard to disability-related
inquiries and medical examinations apply to all employees, and not
just to those with disabilities, it is not necessary to inquire whether
the employee is a person with a disability. July 2000 Guidance, at 3.
Instead, we focus on the issue of whether the agency's order that
complainant provide medical documentation about his full history of
mental health before returning to duty was lawful. See Clark v. United
States Postal Service , EEOC Request No. 01992682 (November 21, 2001).
The Rehabilitation Act places certain limitations on an employer's ability
to make disability-related inquiries or require medical examinations of
employees. An employer may make disability-related inquiries or require
a medical examination of an employee only if the inquiry or examination
is job-related and consistent with business necessity. 29 C.F.R. �
1630.14(c). The Commission has addressed this question and has stated
that this requirement is met when the employer has a reasonable belief,
based on objective evidence, that (1) an employee's ability to perform
essential job functions is impaired by a medical condition; or (2) that
an employee poses a direct threat due to a medical condition. See July
2000 Guidance, at 6-9. Objective evidence is reliable information,
either directly observed or provided by a credible third party, that
an employee may have or has a medical condition that will interfere
with his ability to perform essential job functions or will result in
direct threat. Id., at 7. Where the employer forms such a belief, its
disability-related inquiries and medical examinations are job-related
and consistent with business necessity. Id.
In the instant case, the agency's initial requirement that complainant
produce documentation was reasonable given that complainant had a seizure
at work, lost consciousness, and fell, cutting his scalp. This incident
gave the agency a reasonable belief that complainant might pose a direct
threat to himself and/or others. Thus, the agency's initial requests for
documentation related to his seizures were job-related and consistent
with business necessity. 29 C.F.R. � 1630.14(c). However, by April
1999, complainant's neurologist had provided sufficient documentation
for the agency to reasonably conclude that complainant did not pose a
direct threat to himself or others. The agency's additional inquiries
beginning in or about April 1999 (including the list of questions about
complainant's history of mental health) exceeded the permissible scope
of inquiry. Accordingly, the agency has violated the Rehabilitation Act.
Because complainant was not permitted to return to work due to his refusal
to provide documentation which was illegally required by the agency,
complainant is entitled to reinstatement and backpay, retroactive to
April 1999.
Furthermore, the AJ's determination that C1's disclosure of complainant's
medical information to P1 violated the Rehabilitation Act, is supported
by substantial evidence in the record. We note that 29 C.F.R. �
1630.14(c)(1) prohibits disclosure of medical information about employees
to managers except under limited circumstances, such as being necessary
to comply with the duty of reasonable accommodation.
Compensatory Damages
In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that
Congress afforded the Commission the authority to award compensatory
damages in the administrative process. Section 102(a) of the CRA,
codified as 42 U.S.C. � 1981a, authorizes an award of compensatory damages
as part of the �make whole� relief for intentional discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended.
Section 1981a(b)(3) limits the total amount of compensatory damages
that may be awarded to each complaining party for future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, and other non-pecuniary losses, according to the
number of persons employed by the respondent employer. The limit for
an employer with more than 500 employees, such as the agency herein,
is $300,000.00. 42 U.S.C. � 1981a(b)(3)(D).
The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in Enforcement Guidance:
Compensatory and Punitive Damages Available Under � 102 of the Civil
Rights Act of 1991, EEOC Notice No. 915.002, (July 14, 1992) (Guidance).
Briefly stated, the complainant must submit evidence to show that the
agency's discriminatory conduct directly or proximately caused the losses
for which damages are sought. Id. at 11-12, 14; Rivera v. Department of
the Navy, EEOC Appeal No. 01934157 (July 22, 1994) aff'd, EEOC Request
No. 05940927 (December 11, 1995). The amount awarded should reflect
the extent to which the agency's discriminatory action directly or
proximately caused harm to the complainant and the extent to which other
factors may have played a part. See Guidance at 11-12. The amount of
non-pecuniary damages should also reflect the nature and severity of the
harm to complainant, and the duration or expected duration of the harm.
Id. at 14.
In Carle v. Department of the Navy, the Commission explained that
evidence of non-pecuniary damages could include a statement by the
complainant explaining how he was affected by the discrimination.
EEOC Appeal No. 01922369 (January 5, 1993). Statements from others,
including family members, friends, and health care providers could
address the outward manifestations of the impact of the discrimination on
the complainant. Id. The complainant could also submit documentation
of medical or psychiatric treatment related to the effects of the
discrimination. Id. Non-pecuniary damages must be limited to the sums
necessary to compensate the injured party for the actual harm and should
take into account the severity of the harm and the length of time the
injured party has suffered from the harm. Carpenter v. Department of
Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
After a thorough review of the record, we find that the AJ's award
of $10,000.00 is supported by substantial evidence in the record.
We note that non-pecuniary compensatory damages are designed to remedy
a harm and not to punish the agency for its discriminatory actions.
See Memphis Community School Dist. v. Stachura, 477 U.S. 299, 311-12
(1986) (compensatory damages determination must be based on the actual
harm sustained and not the facts of the underlying case). Further,
the duration (which was nearly three years in time) and severity of
the harm suffered render this award within the realm of reasonable.
Therefore, we conclude that $10,000.00 is adequate, and not excessive,
to compensate complainant.
We now address complainant's claim for pecuniary losses. Complainant
contends that due to being unemployed, he incurred medical expenses which
he would not have incurred but for the agency's discriminatory refusal
to allow him to come back to work. Specifically, complainant's medical
benefits ended March 10, 2000, and complainant had medical expenses
totaling $2,497.42, which he was required to pay out of his own pocket.
We find that complainant is entitled to $2,497.42 in pecuniary losses.
CONCLUSION
We conclude that the AJ's findings of discrimination are supported by
substantial evidence in the record. We concur with the AJ's order of
non-pecuniary damages in the amount of $10,000.00, but modify the order
of relief to the extent that complainant is also entitled to $2,497.42
in pecuniary damages. The Commission REVERSES the agency's final action
of August 14, 2001, and directs the matter to the agency to take remedial
actions in accordance with this decision and the ORDER below.
ORDER
To the extent that it has not already done so, within 60 days from the
date of this decision, the agency is ordered to:
offer complainant reinstatement to his Distribution Clerk position, with
back pay (retroactive to April 1999), minus amounts earned in mitigation,
with retroactive seniority and full benefits;
pay compensatory damages to complainant in the amount of $12,497.42;
pay attorneys fees in the amount of $27,825.00 and costs in the amount
of $756.00;
provide EEO training, with special emphasis on the agency's obligations
under the Rehabilitation Act, to the agency official(s) found to have
discriminated against complainant; and
The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the compliance officer. If the agency decides to take
disciplinary action, it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
POSTING ORDER (G0900)
The agency is ordered to post at its Ontario, California Post Office,
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 (KO501)
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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 16, 2003
__________________
Date
1 The record indicates that as of September 6, 2001, when the AJ issued
her decision, complainant had still not returned to work.
2 The AJ did not award complainant any pecuniary damages.
3 Complainant states that he has subtracted $130.00 from the costs that
he incurred because under his former medical plan he would have been
obligated to pay that amount.
4 The parties do not challenge the AJ's award of attorney's fees and
costs.