28 F.3d 1323 (2nd Cir. 1994), 770, Sands v. Runyon

Docket Nº:770, Docket 93-6164.
Citation:28 F.3d 1323
Party Name:Michael SANDS, Plaintiff-Appellant, Emmelyn Logan-Baldwin, Esq., Appellant, v. Marvin RUNYON, Postmaster General, United States Postal Service; U.S. Postal Service; U.S. Postal Service, Buffalo Division of the North East District; Charles Schubert, individually and as MSC Manager/Postmaster; Nathan Canter, individually and as Area Medical Officer;
Case Date:July 01, 1994
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 1323

28 F.3d 1323 (2nd Cir. 1994)

Michael SANDS, Plaintiff-Appellant,

Emmelyn Logan-Baldwin, Esq., Appellant,


Marvin RUNYON, Postmaster General, United States Postal

Service; U.S. Postal Service; U.S. Postal Service, Buffalo

Division of the North East District; Charles Schubert,

individually and as MSC Manager/Postmaster; Nathan Canter,

individually and as Area Medical Officer; Fran McGovern,

individually and as Personnel Assistant; Alton J. Coleman,

individually and as General Supervisor, Defendants-Appellees.

No. 770, Docket 93-6164.

United States Court of Appeals, Second Circuit

July 1, 1994

Argued Jan. 24, 1994.

Page 1324

[Copyrighted Material Omitted]

Page 1325

Emmelyn Logan-Baldwin, Rochester, NY, for plaintiff-appellant.

Peter R. Maier, Appellate Staff, Civ. Div., U.S. Dept. of Justice, Washington, DC (Robert S. Greenspan, Appellate Staff, Civ. Div., Frank W. Hunger, Asst. Atty. Gen., Patrick H. NeMoyer, U.S. Atty., Anne VanGraafeiland, Asst. U.S. Atty., U.S. Dept. of Justice, of counsel), for defendants-appellees.

Before: WALKER, JACOBS, Circuit Judges, and DALY, District Judge. [*]

JACOBS, Circuit Judge:

Plaintiff-Appellant Michael Sands applied to the United States Postal Service for employment as an operator of a letter sorting machine ("LSM"), and was rejected on the sole ground that Sands's chronic knee pain rendered him medically unfit for the job. It is undisputed on appeal that the Postal Service's determination constituted unlawful handicap discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. Secs. 701-797b (the "Rehabilitation Act"). The Postal Service ultimately hired Sands in February 1984, approximately nine months after wrongfully refusing to do so. The United States District Court for the Western District of New York (Telesca, J.) awarded Sands $51,459.54 in back pay and prejudgment interest, directed the Postal Service to restore the annual sick leave Sands would have accrued had he not suffered discrimination, and awarded attorney's fees (including disbursements) in the amount of $23,587.43. On appeal, Sands contests the district court's denial of certain categories of damages and certain other forms of relief, and the district court's calculation of attorney's fees. Sands's counsel appears here as an appellant to contest the district court's ruling that the award of attorney's fees discharges Sands's obligation to pay fees under the retainer agreement.

Applying the same remedies available to a plaintiff under Title VII of the Civil Rights Act of 1964, we affirm in part, reverse in part and in part vacate and remand.

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In September or October of 1983, Sands submitted his application to become an LSM operator at the Rochester, New York office of the Postal Service. He took an examination for the position in March 1984, and was notified in April that he had scored 83.5, and that 10 points would be added to account for his status as a disabled veteran. This was a passing score, and the Postal Service decided to hire plaintiff for the position beginning May 26, 1984, subject to a physical examination.

The Postal Service's Medical Officer, Dr. Nathan Canter, examined Sands on May 21, 1984, at which time Sands told the doctor that he suffered from chronic pain and discomfort in both knees. Dr. Canter concluded that Sands was for that reason medically unfit to perform the duties of an LSM operator. On July 27, 1984, the Postal Service sent Sands official notice of its determination and of his right to appeal.

Sands pursued an administrative appeal, and on February 16, 1985, the Postal Service notified Sands that it had reversed its initial decision and was hiring him as an LSM operator effective immediately.

In the interim between the date Sands should have been hired (May 26, 1984) and the date he was actually hired (February 16, 1985), the union representing Postal Service employees entered into a new collective bargaining agreement with the Postal Service. That agreement added approximately thirty months to the time required for newly hired employees to reach the top salary step within a particular salary level. In order to secure for himself the advantage of the old contract, Sands asked to be assigned a seniority date of May 26, 1984. The Postal Service refused his (initially informal) request.

On September 16, 1986, after pursuing his administrative remedies, Sands commenced suit in the Western District of New York against Marvin Runyan, the Postmaster General; the United States Postal Service; and four other officials of the Postal Service individually and in their official capacity. The complaint alleged that the Postal Service's failure to hire him on May 26, 1984 violated the Rehabilitation Act, Sands's rights under the First and Fifth Amendments, and the New York State Human Rights Law.

In January 1989 the district court referred the case to a magistrate judge as special master, who issued a report in December 1990 recommending (i) that all claims be dismissed except the Rehabilitation Act claim against the Postmaster General, and (ii) that, as to that surviving claim, summary judgment be granted in favor of the plaintiff. In April 1991 the district court issued a decision largely adopting the magistrate judge's recommendations. Relevant to this appeal, the district court granted summary judgment in favor of Sands as to liability on his Rehabilitation Act claim, and postponed consideration of relief pending further proceedings.

The original order required that all evidence respecting monetary and affirmative relief be submitted by June 24, 1991. Following a number of extensions, the district court ordered that all discovery be closed as of August 8, 1991; received written submissions; and on April 20 and 22, 1993 conducted an evidentiary hearing. On May 5, 1993 the district court issued an order addressing most of the forms of relief demanded by Sands. The district court ordered that Sands was entitled to back pay, and credit for sick leave and annual leave that he would have earned had he been hired on May 26, 1984. The district court declined to order: retroactive promotion; retroactive employer's contributions to plaintiff's Thrift Savings Plan account; removal of negative information allegedly placed in Sands's personnel file; insertion of a favorable work appraisal in his personnel file; and an injunction barring retaliatory action against plaintiff. The district court also awarded attorney's fees (including disbursements) in the amount of $23,587.43, and directed that $10,131 of the attorney's fee award be credited to plaintiff to reflect the $10,131 that plaintiff had previously paid his lawyer under their retainer agreement. To resolve some small discrepancies, the court ordered the Postal Service to recalculate plaintiff's back pay award and prejudgment interest in accordance with its decision.

Page 1327

In June 1993, the district court entered a final order awarding plaintiff $51,459.54, including prejudgment interest, ordering restoration of annual and sick leave that he would have earned had he been hired in May 1984, and awarding attorney's fees in accordance with its earlier decision. Sands appealed and the Postal Service cross appealed. On the advice of the Solicitor General, the Postmaster General moved to dismiss his cross appeal, which motion was granted.

Sands appeals nearly every single aspect of the final award. Thus Sands challenges:

The failure to grant each measure of relief denied by the district court;

The failure to award credits for lost wages resulting from time plaintiff spent in administrative appearances, trial preparation and the damage hearing, a measure of relief sought by Sands but not addressed by the district court;

The computation of back pay and prejudgment interest thereon;

The computation of attorney's fees.

In addition, Sands's counsel challenges the order allocating part of the attorney's fee award to Sands for the reimbursement of money he paid his attorney during the course of the litigation.


The Rehabilitation Act provides (at 29 U.S.C. Sec. 794a(a)(1)) that a successful plaintiff shall have available the same remedies that would be available to a plaintiff pursuant to section 717 of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e-16. This entails an "order [of] such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ... or any other equitable relief as the court deems appropriate." 42 U.S.C. Sec. 2000e-5(g). "[T]he purpose ... [is] to make persons whole for injuries suffered on account of unlawful employment discrimination." Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975). The many issues raised on this appeal require that we address the concept and application of "make whole" relief in employment discrimination cases.

We generally review such remedial relief on an abuse of discretion basis. See Franks v. Bowman Transp. Co., 424 U.S. 747, 770, 96 S.Ct. 1251, 1266, 47 L.Ed.2d 444 (1976) ("The fashioning of appropriate remedies [for employment discrimination] invokes the sound equitable discretion of the district courts."); Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d 1140, 1149 (2d Cir.) (when employment discrimination established, district court has broad power to fashion relief it believes appropriate), cert. denied, --- U.S. ----, 112 S.Ct. 337, 116 L.Ed.2d 277 (1991). However, when the district court is sitting as a factfinder, as for example when computing the measure of money damages, we will reverse the computation of damages only if clearly...

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