05980174
04-29-1999
Joe A. Kannikal, Appellant, v. Janet Reno, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Joe A. Kannikal, )
Appellant, )
)
v. ) Request No. 05980174
) Appeal No. 01960146
Janet Reno, ) Agency No. P-93-8330
Attorney General, ) Hearing No. 170-95-8096X
Department of Justice, )
(Federal Bureau of Prisons), )
Agency. )
___________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On December 15, 1997, appellant initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in Joe
A. Kannikal v. Janet Reno, Attorney General, Department of Justice,
(Federal Bureau of Prisons), EEOC Appeal No. 01960146 (October 9, 1997),
received by appellant on October 23, 1997.<1> EEOC Regulations provide
that the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation or material fact,
or misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the previous decision is of such exceptional nature as to have
substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
For the reasons stated below, the Commission GRANTS appellant's request.
ISSUE PRESENTED
Whether appellant raised a claim for compensatory damages prior to his
request for reconsideration.
BACKGROUND
Appellant filed a complaint in which he alleged that the agency
discriminated against him on the bases of national origin (Indian), color
(brown), reprisal (prior EEO activity) and age (44) by not reinstating
him to his former position. The agency investigated the complaint
and referred the matter to an administrative judge (AJ) for a hearing.
Appellant did not present any documents or testimony on the issue of
his entitlement to damages during the investigation or at the hearing.
The AJ issued a recommended decision on May 11, 1995, in which she found
discrimination and ordered the agency to reinstate appellant and provide
back pay and other appropriate relief. Since appellant never raised the
damages issue, the AJ's order for relief did not include a damages award.
Appellant does not appear to have raised the damages issue until August
15, 1995, shortly before the agency issued its final decision of no
discrimination. In this letter, which is addressed to the agency's
complaints adjudication officer, appellant stated: "I shall reserve my
right to file a claim for compensatory damages as per EEOC guidelines,
if needed." The agency issued its final decision of no discrimination on
August 31, 1995. Appellant thereafter appealed the agency's decision.
Neither his appeal statement nor any of the documents submitted in
support of his appeal make any reference to compensatory damages.
The previous decision upheld the AJ's discrimination finding. In its
order for relief, the previous decision directed the agency to: reinstate
appellant to his former position as a physician's assistant, retroactive
to November 30, 1992; award appropriate back pay and other benefits that
appellant would have received had he not been discriminated against;
ensure that appellant would not be subjected to harassment on account of
his participation in the EEO process; provide training to the officials
identified in appellant's complaint; award attorney's fees; and post
a notice. The order does not mention compensatory damages.
In his request for reconsideration, appellant argues that he is entitled
to compensatory damages by virtue of our previous decision's finding
of discrimination. In support of his request, appellant submitted a
contemporaneous declaration in which he stated that he did not request
damages in his complaint because the agency never informed him that he had
the right to do so before he filed his complaint. He also stated that,
on August 15, 1995, he made a formal request to be awarded compensatory
damages. This "formal request," turned out to be the letter that he
had written to the complaints adjudication officer. This letter,
as previously noted, does not make a definitive claim for damages.
Rather, it indicates that appellant might file a claim for damages at
some unspecified future date. The declaration accompanying appellant's
request for reconsideration and his August 1995 letter to the complaints
adjudication officer constitutes the only references that appellant
makes to compensatory damages in the entire record.
In paragraph (4) of his declaration, appellant states that his belief that
he was being discriminated against caused him to experience depression,
suicidal tendencies, irritability, sleeplessness, anxiety, loss of
appetite, loss of energy, loss of ability to concentrate, and loss of
enjoyment of life. In paragraph (6), appellant stated that he became
irritable with his wife, to the point that the couple had discussed
divorce for the first time in their 16 years of marriage. In paragraph
(7), appellant states that he lost 15 pounds as a result of not eating.
Apart from this declaration, there are no corroborating documents or
statements in his appeal which tend to corroborate his claims.
In paragraphs (8) through (11), appellant indicated that he incurred $500
in expenses for therapy throughout 1993, after he filed his complaint.
However, the record does not contain any documentation of those expenses,
either in the investigative record, the hearing exhibits, or among the
exhibits accompanying the appeal.
In paragraph (17), appellant stated that he received an updated notice of
available remedies, dated January 1994. This notice does specify that
compensatory damages are available as a remedy. He further states
that he reviewed this notice and compared it to the relief he received
pursuant to the previous decision. He stated that he discovered that the
remedies listed in the notice now included compensatory damages, but that
the previous decision did not explicitly include compensatory damages.
He did not, however, indicate the date on which he first received a copy
of this updated notice of remedies.
The agency did not respond to appellant's request for reconsideration.
ANALYSIS AND FINDINGS
Appellant bases his claim for damages exclusively on the previous
decision's finding of discrimination. He appears to be confused about
the nature of the compensatory damages remedy. Unlike back pay and other
equitable remedies, compensatory damages are not automatically awarded
upon a finding of discrimination. To prevail on a claim for damages,
appellant must also show that he suffered harm that was causally
connected to the agency's discriminatory acts. See EEOC Enforcement
Guidance: Compensatory and Punitive Damages Available under � 102 of
the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992).
Appellant's declaration in support of his request for reconsideration,
in which he sets forth symptoms of the emotional distress that he
experienced, constitutes acceptable evidence of compensatory damages.
Lawrence v. United States Postal Service, EEOC Appeal No. 01952288
(April 18, 1996).
Claims for compensatory damages may be raised at any time prior to
the filing of a request for reconsideration. Turner v. Department
of Veterans Affairs, EEOC Request No. 05950960 (January 30, 1998). In
this case, appellant's August 1995 letter to the complaints adjudication
officer put the agency on notice that he might file a claim for damages.
Appellant sent this letter before the agency issued its final decision,
and therefore had the right to present evidence in support of his claim
for damages.<2> We will accordingly modify the previous decision's
order for relief, as set forth below.
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds appellant's
request meets the criteria of 29 C.F.R. �1614.407(c), and it is the
decision of the Commission to grant appellant's request. The decision
of the Commission in Appeal No. 01960146, as modified herein, remains
the Commission's final decision. The agency is directed to comply with
the order below. There is no further right of administrative appeal
from the decision of the Commission on this request for reconsideration.
ORDER (C1092)
1. The agency shall unconditionally offer appellant reinstatement into a
Physicians Assistant position at its Loretto, Pennsylvania, facility or
another facility, if mutually agreed to by both the agency and appellant,
retroactive to November 30, 1992.
2. The agency shall determine the appropriate amount of back pay and
other benefits, pay raises, cost of living increases and career ladder
promotions that appellant would have received had he been reinstated as of
November 30, 1992, pursuant to 29 C.F.R. � 1614.501 no later than sixty
(60) calendar days after the date this decision becomes final. Appellant
shall cooperate in the agency's efforts to compute the amount of back pay
and benefits due, and shall provide all relevant information requested
by the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to appellant for the
undisputed amount within sixty (60) calendar days of the date the agency
determines the amount it believes to be due. Appellant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision."
3. The agency shall conduct a supplemental investigation on the issue of
appellant's entitlement to compensatory damages in connection with the
acts of discrimination at issue in his complaint. The agency shall afford
appellant the opportunity to present objective evidence establishing a
causal relationship between the agency's refusal to reinstate him and any
expenses he incurred or any emotional distress he suffered, including
but not limited to: bills and receipts from health care providers and
counselors; personal statements and statements from family members,
friends, health care providers as well as other witnesses; and any other
evidence relevant to the outward manifestations of emotional distress.
4. The agency shall ensure that appellant will not be harassed in any
way because of his participation in the EEO process and shall provide
training to the responsible management officials involved in our
finding of discrimination regarding their supervisory and management
responsibilities under all EEO laws.
5. If appellant 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.
6. The agency shall post at the Loretto, Pennsylvania, 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 insure 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.
7. The agency shall submit a report of compliance, as provided in the
statement entitled "Implementation of the Commission's Decision." The
report shall include supporting documentation verifying that the
corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If
the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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) (Supp. V 1993). If the appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
__04-29-99________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat1In a letter dated December 12, 1997, the
Commission granted appellant an extension until December 29, 1997,
to file his request for reconsideration. Since the Commission
received appellant's request on December 15, 1997, the request
is timely.
2
Evidence may be taken the form of a statement by appellant describing his
emotional distress, and statements from witnesses, both on and off the
job, describing the distress. To properly explain the emotional distress,
such statements should include detailed information on physical or
behavioral manifestations of the distress, information on the duration
of the distress, and examples of how the distress affected appellant
day to day, both on and off the job. In addition, the agency should have
asked appellant to provide objective and other evidence linking ... the
distress to the unlawful discrimination ....
Objective evidence may include statements from appellant concerning
his emotional pain or suffering, inconvenience, mental anguish, loss of
enjoyment of life, injury to professional standing, injury to character
or reputation, injury to credit standing, loss of health, and any other
non-pecuniary losses that are incurred as a result of the discriminatory
conduct. Such evidence may also include statements from others, including
family members, friends, and health care providers, that address the
outward manifestations or physical consequences of emotional distress,
including sleeplessness, anxiety, stress, depression, marital strain,
humiliation, loss of self-esteem, excessive fatigue, or a nervous
breakdown. Objective evidence may also include documents indicating a
complainant's actual out-of-pocket expenses related to medical treatment,
counseling, and so forth, related to the injury caused by the agency's
discriminatory action.
Carle v. Dept. of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).