By Deryn Sumner

I think that it is worthwhile for practitioners who represent employees and employers to be aware of cases awarding higher awards of compensatory damages.  Although $300,000 is the maximum award under the Civil Rights Act of 1991, most non-pecuniary damage awards fall in the range of $5,000 to $50,000 (something I’ll be talking about in more detail in next month’s newsletter).  Having examples of what it takes to actually get a six-figure award can be helpful for agency representatives talking to complainant’s counsel about what may be unrealistic settlement expectations and complainant’s counsel talking to their clients about…well, likely about their unrealistic settlement expectations.  Further, agency representatives should know about these higher awards so that where complainants do present substantial evidence of damages, the agency representative can competently provide a litigation risk assessment to the agency.

Let’s consider the recent Commission case of Vaughn C. v. Dept. of Air Force, EEOC No. 0120151396 (April 15, 2016). This decision addressed an agency’s award of $20,000 in non-pecuniary compensatory damages, issued after the Commission previously found in EEOC No. 0120123332 (September 10, 2014) that the complainant had been subjected to six months of egregious racial discrimination by co-workers, including use of the n-word, which caused him to resign. The Commission found the agency was liable for the harassment as the first-line supervisor failed to take prompt and effective action to address the harassment, and further found that the harassment resulted in making the complainant’s work environment so intolerable, a reasonable person would have felt compelled to resign.  After entering a finding of discrimination, the Commission remanded the complaint to the agency for investigation of the complainant’s entitlement to compensatory damages.

The agency instructed the complainant, through his attorney, to submit evidence in support of his claim for compensatory damages. The complainant submitted a statement saying that as a result of the harassment, he “had difficulty concentrating, a loss of appetite, high blood pressure, severe headaches and increased anxiety. He said his physical and emotional relationship with his wife was affected, and that he was frequently short-tempered with her, taking out his issues at work on her. In April 2011, he began to see a professional counselor to help him deal with the effects of the harassment at work.” The complainant also provided notes from his counselor which “indicated that Complainant’s mental status had changed. He worried about work often; felt anxious; developed insomnia; experienced a change in appetite and drinking resulting in a 15-20 pound weight gain; had difficulties with fatigue and focus; and had feelings of hopelessness. He also feared that the coworker would become physically violent towards him and his family, and gave family members pictures of the coworker and told them to make sure they did not allow her into the house and made sure all doors and windows were locked. He even devised a “safety plan” to make sure the coworker did not harm his family. The counselor also noted that the complainant would avoid going to the parking lot until after the coworker left work.

Based on this evidence, the agency found an award of $20,000 to be appropriate, and complainant appealed, seeking an increase of the award to $300,000.  After consideration of the evidence presented by the complainant, the Commission found an increase to $125,000 to be appropriate to compensate the complainant for the physical and emotional harm he suffered as a result of the agency’s actions. The Commission found that the complainant provided support for his claims and the award was consistent with prior Commission precedent.

Now, given my reading of other compensatory damages cases, the award does seem a bit high given that the complainant only provided a statement from himself and notes from his counselor.  I would have expected to see more medical documentation and statements from family members, friends, and perhaps a psychiatrist or psychologist in support of the award.  Keep in mind that when assessing claims for damages, we do not look at the underlying conduct, although the egregiousness of the conduct can sometimes be a factor, but rather the nature of the harm as a result of the conduct.  The Commission found $125,000 appropriate and given the egregious and hateful conduct at issue here, I have no doubt that the complainant suffered from substantial physical and emotional harm as a result of the workplace harassment.  Sumner@FELTG.com

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