The Sixth Circuit has rendered a decision regarding a veteran who sued under the Rehabilitation Act of 1973, 29 U.S.C. §791. The Rehab act applies to federal employees who have disabilities. The Americans with Disabilities Act was based in large part on the Rehab Act. In this Sixth Circuit decision, the appellate court affirmed the lower court’s finding tossing out a $4.4 million verdict and instead, requiring Mr. McKelvey to return to his job at higher pay. See the appellate court decision.
James McKelvey lost a hand in Iraq in 2004. He was trying to defuse a roadside bomb. He was hired by the Tank Automotive and Armaments Command (TACOM) in 2006. According to the evidence at trial, his supervisor and co-workers began to ridicule him. They called him "lefty" and "cripple." He was excluded from meetings. His supervisor assigned him menial assignments and less of it than his co-workers, even though they were "slammed" with work. The worker complained. His supervisor and another worker then began referring to him as a "f—ing cripple." He went to EEO, who encouraged Mr. McKelvey to file a written complaint. But, the veteran tried to work it out on his own. The taunting worsened, coming every week. The employee filed a written complaint. The atmosphere did improve somwhat.
Mr. McKelvey continued looking for a new job somewhere else. He complained to the garrison commander in January, 2007, who told him he should just look elsewhere for a new job. Mr. McKelvey found a new job in February, 2007 and quit his job with TACOM. He filed suit later in October, saying he had been discriminated against.
Two claims were dismissed or dropped. He went to trial on the hostile work environment claim and the constructive discharge claim. A jury found in his favor and awarded him $4.4 million as lost future pay on the constructive discharge claim. The jury awarded no compensatory damages on the hostile work environment claim.
After the trial ended, the employer, the Secretary of the Army, filed a motion attacking the findings. The trial judge found in favor of the employer, finding insufficient evidence to support the constructive discharge claim. The trial judge found that in the alternative, the proper remedy for constructive discharge is reinstatement to his old job, not future pay.
So, on appeal, the Sixth Circuit agreed that the proper remedy for constructive discharge is reinstatement. The legal standard for constructive discharge is that the working conditions are so bad that the employee feels compelled to resign. The appellate court found that the conditions were very bad. For some nine months, he was taunted and assigned menial jobs. The garrison commander warned him to find a new job if he did not like the one he had. The appellate court essentially found even with the interlude of better conditions, the employee did quit soon enough to satisfy the definition of "constructive discharge."
But, regarding the front pay, the appellate court found that reinstatement is the preferred remedy. Reinstatement should be granted in the "ordinary" case, said the three judge panel. The appeals court said the Army had offered Mr. McKelvey a new job at higher pay under new supervisors. The court dismissed the plaintiff’s argument that returning would be traumatic. The court said the veteran would be working with four of six new co-workers and new supervisors.
It is extremely rare for a trial judge to order reinstatement. Very rarely does any employer want a worker back who has filed suit. Just as rare is an employee who wants to go back to a poisonous atmosphere. The point of future pay is to avoid poisonous work situations. The court may have been more concerned about the large amount of future pay than the award of future pay itself.
Those of us who deal with such high stress work situations frequently must wonder about the wisdom of sending Mr. McKelvey back to that job. His lawsuit has, I am sure, attracted a lot of attention. Emotions will be very high on both sides if/when he goes back to TACOM.
Mr. McKelvey will receive some $100,000 in lost pay due to the higher salary. But, I am sure he is extremely anxious about going back to where he was harassed so badly. Constructive discharge cases are very difficult. Courts rarely find that working conditions are so bad that a reasonable employee would feel compelled to resign. In some ways, he is fortunate to have won a very hard claim to make. But, as they say, be careful what you seek, because you just might get it. The plaintiff may appeal by asking the full panel of appellate court judges to hear his appeal.