Sixth Cuit Decides Workplace Disability Harassment Case
On Wednesday, the United States Court of Appeals for the Sixth Circuit issued an opinion in McKelvey v. Secretary of United States Army. The facts of the case should make any American upset. The plaintiff, whose hand was blown off when he was trying to defuse a roadside bomb during his United States Army service in Iraq, returned to a civilian position with the Army in Michigan. In that position, he was, according to the record in the case, subjected to rather intense and ongoing harassment by a coworker and his supervisor. Here's how the court of appeals described the events:
In March or April 2006, one of McKelvey's coworkers told him that his supervisor, Alan Parks, was “going around telling everybody you're all fucked up from the war, you're a piece of shit, that he should have never hired you, you're worthless.” R.102 at 63. Parks did not assign McKelvey enough work to keep him busy, even though his coworkers were “slammed” with work. R.102 at 66–67. And the work Parks did assign tended toward the menial. When one employee asked for help moving some boxes, Parks “kind of chuckled and he [said] . . . ‘I'll send McKelvey down. He's worthless anyhow. I'll send the cripple down to you.’ “ R.98 at 21.
Other colleagues were equally abusive. One, Maurice “Bud” Spaulding, got “pretty indignant” about the fact that McKelvey had a handicapped parking permit even though he was not mobility-impaired, and would sometimes call McKelvey “lefty” or “cripple.” R.102 at 64–65. McKelvey initially took these comments to be poor attempts at humor, and he asked Parks's supervisor, Deputy Garrison Commander Robert Graves, to suggest to Parks and Spaulding that they tone it down.
That did not happen. Between June and August 2006, the comments “changed in tone. They didn't seem like they were meant to be a joke, and they were coming more frequently than previously.” R.102 at 70. Parks and Spaulding regularly called McKelvey a “fucking cripple” and became “agitated” with him for no apparent reason. R.102 at 70. Parks continued to assign McKelvey less work than his colleagues. In August or September, McKelvey complained again to Graves about his work environment, but nothing changed. Around this time, McKelvey also sought help from Mark Lewis, the office's Equal Employment Opportunity counselor, who encouraged him to file a formal complaint, but McKelvey preferred to try to work things out on his own. McKelvey began applying for other jobs in the federal government, but could not find any in Michigan.
Things got worse. By September and October, the workplace abuse “picked up a lot,” with the taunting and name-calling becoming a weekly occurrence. R.102 at 80–81. At one point, Parks sought out McKelvey to ask him to destroy boxes of paper in an industrial shredder. McKelvey said he was not comfortable putting his only good hand into the machine, which prompted Parks to call him a “fucking cripple” and walk out of the room. R.102 at 81–82. Parks also excluded McKelvey from a meeting about a planning exercise that McKelvey was supposed to coordinate.McKelvey eventually quit and sued under the Rehabilitation Act. A jury found that he had experienced hostile-environment harassment and was constructively discharged; it awarded no compensatory damages for the harassment, but it awarded over $4 million in front pay for the constructive discharge. The district court then granted a motion for judgment as a matter of law on the constructive discharge claim. It concluded that no reasonable jury could have found that McKelvey was constructively discharged and that in any event the proper remedy for constructive discharge would have been reinstatement, not front pay.
The court of appeals reversed in part and affirmed in part. Disagreeing with the district court, the appellate court concluded that McKelvey had presented sufficient evidence to support a finding of constructive discharge. But the court of appeals concluded that the district court had not abused its discretion in declining to award front pay. The court of appeals remanded "for proceedings consistent with [its] opinion, including a calculation of the amount McKelvey should receive in back pay for the period of time between his discharge and the Secretary’s offer of reinstatement."