01991245_r
02-20-2002
Yaakob G. Hakohane, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Yaakob G. Hakohane v. Department of Defense
01991245
February 20, 2002
.
Yaakob G. Hakohane,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01991245
Agency No. 94-03-008
Hearing No. 100-95-7171X
DECISION
The instant appeal is from the agency's October 28, 1998 decision denying
complainant's request for compensatory damages.
BACKGROUND
On April 5, 1994, complainant filed a formal complaint alleging that the
agency discriminated against him on the basis of disability when he was
removed from his Management Analyst, GS-353-7 position, effective February
4, 1994, during the probationary period of his employment. Complainant
further alleged that the agency failed to reasonably accommodate his
disability while he was employed, contending that the agency did not
provide him with the support that he needed to help him organize and
structure his work. The agency accepted the complaint, and after an
investigation, complainant requested a hearing before an Administrative
Judge (AJ). Following the hearing, the AJ issued a decision finding that
the agency discriminated against complainant on the basis of disability
by failing to provide him with the accommodations he needed to perform
the essential functions of his position and by terminating him when his
performance did not meet the agency's expectations. The agency issued
a decision rejecting the AJ's decision and found no discrimination.
Complainant appealed the agency decision finding no discrimination
to the Commission. On January 5, 1998, the Commission issued a
decision reversing the agency's decision and found that complainant
was discriminated against on the basis of disability. Hakohane
v. Department of Defense, EEOC Appeal No. 01956411 (Jan 5, 1998),
req. for reconsideration denied, EEOC Request No. 05980348 (July 30,
1998). In the January 5, 1998 decision, the Commission ordered the
agency to provide complainant the following remedy (among other remedies):
The agency shall conduct a supplemental investigation pertaining to
appellant's entitlement to compensatory damages for the period commencing
July 29, 1993. The agency shall afford appellant sixty (60) calendar
days to submit evidence in support of his claim for compensatory damages.
Within thirty (30) days of its receipt of appellant's evidence, the
agency shall issue a final decision determining appellant's entitlement
to compensatory damages, together with appropriate appeal rights.
Subsequently, the agency issued a decision dated October 28, 1998, finding
that complainant was not entitled to compensatory damages. The agency
found that because complainant did not submit evidence of compensatory
damages, the agency was unable to conduct a supplemental investigation.
The instant appeal is from the agency's October 28, 1998 decision.
On appeal, complainant requests an award of �compensatory damages in an
amount calculated to fairly compensate him for emotional harm suffered
as a result of the [a]gency's unlawful discrimination,� and $6,370.00
in attorney's fees.
ANALYSIS AND FINDINGS
The agency, in its October 28, 1998 decision, found that complainant had
not submitted any evidence that he was entitled to compensatory damages.
The agency, on appeal, argues that, pursuant to the Commission's Order
in EEOC Appeal No. 01956411, it was complainant's responsibility to
gather and submit evidence of the amount of compensatory damages without
any action by the agency. However, the agency admits, on appeal,
that it received �some affidavits made in 1995 that were attached to
[complainant's] first appeal.� The agency argues that, although it was
aware of the affidavits, the affidavits were never part of the record.
We find that the affidavits attached to complainant's brief in EEOC Appeal
No. 01956411 are part of the record and should have been addressed by
the agency.
Furthermore, complainant has shown a good faith effort to supply the
agency with information, despite the agency's inaction. By letter
dated September 17, 1998, complainant's attorney contacted the agency
regarding compensatory damages. Specifically, the September 17, 1998
letter notes that complainant's attorney contacted the agency by letter
dated September 3, 1998, regarding the matter but did not get a response.
Complainant argues that, subsequently, complainant's attorney placed
a telephone call to the agency regarding the matter and the agency did
not return the telephone call. Complainant's attorney then wrote the
September 17, 1998 letter recounting the events, and again, asked the
agency to �[k]indly contact [him] as soon as possible to advise� him on
the steps the agency is taking and any necessary steps complainant must
take. The agency responded by letter dated September 23, 1998, assuring
complainant that �the agency is reviewing [complainant's] entitlement
to compensatory damages� and will comply with all aspects of the order.
Complainant's attorney wrote another letter dated September 24, 1998,
stating that he had left three telephone messages for the agency that
had not been returned. Complainant's attorney, in the September 24,
1998 letter, demands the agency conduct an investigation regarding
compensatory damages and requested, again, that the agency call him
�right away.� Complainant's attorney contacted the agency again by letter
dated October 1, 1998. The agency responded by letter dated October 22,
1998 stating that �the agency is continuing to review [complainant's]
entitlement to compensatory damages.� On October 28, 1998, the agency
representative wrote a letter to complainant's attorney stating: �My job
as the agency representative is not to provide you with legal advice on
compliance with the EEOC's Order in this case - it might be malpractice
to do so.� On the same day, the agency issued the instant decision to
deny compensatory damages.
Complainant, in good faith, attempted to provide the agency with
information regarding compensatory damages. The agency admits to
having at least �some affidavits made in 1995" regarding compensatory
damages. The burden, pursuant to the Commission's Order in EEOC Appeal
No. 01956411, is on the agency to conduct the supplemental investigation.
The agency had enough evidence and willingness on the part of complainant
to conduct a supplemental investigation, yet failed to conduct the
investigation, or even advise complainant on the necessary course
of action to take. Moreover, the agency has not attempted to rebut
complainant's evidence submitted in 1995, or the evidence submitted
with the instant appeal. Therefore, we find that complainant's entire
submission of evidence of compensatory damages is properly before the
Commission for review and we shall determine whether complainant is due
any compensatory damages.
Where a discriminatory practice involves the provision of a reasonable
accommodation, compensatory damages may not be awarded where the
employer demonstrates good faith efforts to identify and reasonably
accommodate complainant. Pitchford v. United States Postal Serv.,
EEOC Appeal No. 01973982 (Dec. 12, 2000) (citing 42 U.S.C. � 1981a(a)(3)).
The agency has not claimed or shown a good faith effort to make the
reasonable accommodations in this matter. Further, the Commission
found, in its January 5, 1998 decision, that the agency was notified by
the Virginia Department of Rehabilitative Services (VDRS) as to what
accommodations were necessary. Hakohane, EEOC Appeal No. 01956411.
Specifically, VDRS advised the agency that necessary accommodations
included clear instruction, written and oral feedback, involvement in
the continued development of the internship program, and a mentor. Id.
VDRS also suggested job coaching. Id. The agency provided oral feedback,
but failed to implement any other suggested accommodation. Id.
The record contains substantial evidence of the serious emotional effects
of both the agency's failure to reasonably accommodate complainant
over an extended period of time and its termination of him during the
probationary period. Complainant submitted objective evidence through
his own affidavit and affidavits from professionals in the medical field
which attest to the physical, emotional, and behavioral manifestations
of his emotional distress caused by the agency's failure to accommodate
and the discriminatory termination. According to these affidavits
and complainant's brief on appeal, complainant suffered from anxiety,
distress, panic attacks, feelings of loss of control, upset, anger,
disappointment, interference with concentration, confusion, despair,
fear, shame, embarrassment, degradation, sadness, humiliation, dread,
and a �loss of momentum in life.� The statements show that complainant
suffered extreme feelings of depression, paranoia, panic and self-doubt as
a result of being fired from employment that he spent years to obtain. The
evidence shows that he was shocked by being handcuffed and escorted out
to the agency's facility by an armed guard, after being paraded around
the grounds for approximately fifteen minutes. After his termination,
he had an episode which resulted in hospitalization for a form of mania.
Complainant states that the termination caused the �break up� with his
longtime girlfriend with whom he dated for 10 years, and separation from
his longtime roommate. Complainant also states that he suffers from
financial fears, suffers from a loss of sleep and had trouble getting
out of bed after the termination. Complainant feels a loss of self
sufficiency which increased his humiliation and sense of worthlessness
when forced to apply for government benefits to support himself.
Our review of complainant's evidence in support of compensatory damages
indicates that it is detailed, credible, and corroborated. We find that
the evidence is sufficient to show that the agency's failure to reasonably
accommodate complainant and discriminatorily terminate complainant caused
the emotional distress detailed by complainant. The agency has submitted
no evidence to rebut complainant's evidence showing causation and harm.
Section 102(a) of the 1991 Civil Rights Act authorizes an award
of compensatory damages for all post-act pecuniary losses, and for
non-pecuniary losses, such as, but not limited to, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to character and reputation, and loss of health. To receive an
award of compensatory damages, a complainant must demonstrate that he has
been harmed as a result of the agency's discriminatory action; the extent,
nature and severity of the harm; and the duration or expected duration
of the harm. Rivera v. Department of the Navy, EEOC Appeal No. 01934157
(July 22, 1994); req. for reconsid. denied, EEOC Request No. 05940927
(December 8, 1995); EEOC's Enforcement Guidance: Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights Act of
1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992) (�Guidance�).
A complainant is required to provide objective evidence that will allow
an agency to assess the merits of his request for damages. See Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
The award should take into account the severity and duration of the harm.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July
17, 1995). Non-pecuniary and future pecuniary damages are limited
to an amount of $300,000.00. The Commission notes that for a proper
award of non-pecuniary damages, the amount of the award should not be
�monstrously excessive� standing alone, should not be the product of
passion or prejudice, and should be consistent with the amount awarded
in similar cases. See Ward-Jenkins v. Department of the Interior,
EEOC Appeal No. 01961483 (March 4, 1999) (citation omitted).
In determining compensatory damages, the Commission strives to make
damage awards for emotional harm consistent with awards in similar cases.
Insofar as complainant submitted evidence of emotional distress, we note
that the Commission has awarded compensatory damages in cases somewhat
similar to complainant's case in terms of the harm sustained. See e.g.,
Carpenter, EEOC Appeal No. 01945652 (July 17, 1995) (failure to reasonably
accommodate - awarding $75,000 in non-pecuniary damages for deterioration
in complainant's medical and emotional condition resulting in his
disability retirement; specific harm included: aggravation of asthma,
panic attacks, insomnia, digestive problems, loss of spirit, social
withdrawal, feelings of hostility and irritability, and loss of libido);
Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861
(July 17, 1998) (failure to reasonably accommodate and failure to select
complainant for a lateral reassignment - awarding $80,000 in non-pecuniary
damages for trouble sleeping and onset of grinding and clenching of teeth
at night; complainant also suffered irritability, anger, humiliation,
fear, moodiness, embarrassment, was short-tempered and hopeless which
resulted in a break up with an 11 year relationship with his girlfriend).
The Commission finds this case analogous to the above referenced
cases with respect to the nature, severity, and duration of the harm.
After considering the nature of the agency's discriminatory failure
to reasonably accommodate complainant and the agency's discriminatory
termination of complainant, in conjunction with the unrebutted evidence
of non-pecuniary damages submitted by complainant, the Commission finds
that complainant is entitled to non-pecuniary compensatory damages in
the amount of $90,000.00. Complainant has not claimed that he suffered
any pecuniary damages. Finally, we note that this award is not motivated
by passion or prejudice, is not �monstrously excessive� standing alone,
and is consistent with the amounts awarded in similar cases. We further
find that since there is a finding of discrimination, and complainant
prevailed here, complainant is entitled to additional attorney's fees
for the instant appeal pursuant to the Order herein.
The agency's decision is REVERSED and REMANDED for further processing
in accordance with this decision and Order herein.
ORDER
Within 30 days of the date this decision becomes final, the agency is
ORDERED to pay complainant non-pecuniary compensatory damages in the
amount of $90,000.00. Proof of payment must be sent to the Compliance
Officer, as referenced herein.
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 (K0501)
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
February 20, 2002
__________________
Date