By Deryn Sumner

As I promised last week, here are some facts and figures from decisions awarding non-pecuniary compensatory damages issued by the EEOC’s Office of Federal Operations in calendar year 2015.  I’ll start with a caveat.  This is based on my review of the decisions issued by the EEOC’s Office of Federal Operations which I rely on Westlaw to accurately provide to me.  Although I briefly review every decision that makes it to Westlaw for publication to find the notable ones, it’s entirely possible, and rather likely, I missed a few. 

By my count, in 2015, the Office of Federal Operations issued 40 decisions addressing awards of non-pecuniary damages in either Final Agency Decisions (FADs) or final actions issued after decisions from administrative judges.  The lowest award was, not surprisingly, $0 (Gregg Y. v. TVA, EEOC No. 0120132920 (November 17, 2015)) and the highest award was $250,000 (Augustine S. v. DHS, EEOC No. 0720110018 (October 22, 2015)).  Nineteen decisions addressed appeals of awards issued by agencies in FADS and 21 addressed appeals filed by either party regarding awards issued by administrative judges.  Of the 21 decisions addressing awards issued by administrative judges, the Commission affirmed them with three exceptions: in Complainant v. Dep’t of Transportation, EEOC No. 0120120933 (February 20, 2015) the EEOC increased an award from $45,000 to $60,000 and in Complainant v. DHS, EEOC No. 0720130035 (October 20, 2015), the EEOC increased an award from $55,000 to $125,000.

The only decrease of an award occurred in Complainant v. Dep’t of Air Force, EEOC No. 0720090009 (June 5, 2015), where the EEOC decreased an award from an administrative judge of $100,000 to $25,000, finding the administrative judge’s award was improperly “punitive” in nature.

In the 40 decisions addressed, the EEOC increased the award of compensatory damages in fifteen of those cases.  Twenty-four decisions awarded $50,000 or less in compensatory damages. Only eight of the decisions awarded non-pecuniary compensatory damages of $100,000 or more.  There were some common awards as well, which to me highlighted the imprecise nature of trying to compensate people for emotional and physical harm with money.  Four decisions awarded $10,000; five decisions awarded $50,000; and four decisions awarded $60,000.  Did these employees suffer exactly these specific amounts of harm?  Of course not.  The process is imperfect and based on assumptions and guesswork.

The biggest monetary change as a result of an appeal was Brendon L. v. USPS, EEOC No. 0120141161 (February 3, 2015), where the Commission increased an award of $13,000 issued by an agency in a FAD to $175,000.  Other notable increases were Complainant v. TVA, EEOC No. 0120133384, 0120133385 (September 15, 2015) (increasing an award from $1,000 to $35,000); Complainant v. Dep’t of Veterans Affairs, EEOC No. 0120140216 (February 25, 2015) (increasing the award from $30,000 to $100,000); and Complainant v. USPS, EEOC No. 0120141161 (February 3, 2015) (increasing the award from $13,000 to $150,000).  These cases reflect an agency’s tendency to undervalue claims of damages when issuing awards in FADs.  Sumner@FELTG.com

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