By Deryn Sumner, May 17, 2017

Just as I did in the June 2016 edition of the newsletter, here are some facts and figures from 2016 decisions from the EEOC’s Office of Federal Operations awarding non-pecuniary compensatory damages.  I’ll repeat my caveat from last year: this is based on my review of all of the decisions issued by OFO in 2016, which I rely on Westlaw and Lexis to accurately upload and provide to me in my search results.  Although I briefly review every decision issued each year to identify the notable ones, it’s entirely possible and quite likely that I missed a few. 

And with that caveat established, on to the trends from 2016.  By my count, the EEOC issued 34 decisions addressing appeals of non-pecuniary compensatory damages last year, a few less than the 40 decisions issued in 2015.  Of those decisions, 10, or 29.4% of the overall number, dealt with awards between $0 and $5,000.  Two decisions involved awards between $5,001 and $10,000.  The highest percentage of decisions, 13, or 38.2% of the 34 decisions, concerned awards between $10,001 and $50,000.  For those of us who aren’t math wizards (raises hand), that means that about 73.5% of decisions issued by the Office of Federal Operations in 2016 concerned awards of less than $50,000.  To round out our survey, 5 cases concerned awards between $50,001 and $100,000, and four cases involved awards over $100,000.

Of these 34 decisions, 18 of them increased the award, 15 affirmed the current award, and one (which I talk about below) decreased the award of non-pecuniary compensatory damages.  Nineteen of these decisions were appeals from Final Agency Decisions, and 15 of them were from final actions implementing or rejecting decisions from administrative judges.

Now, is this to say that complainants very rarely recover significant awards of non-pecuniary compensatory damages?  Of course not.  When there’s liability, smart agencies settle early or choose not to appeal decisions issued by administrative judges.  But it is fair to say that even those complainants who establish liability are not guaranteed a significant payday unless they can provide evidence to show substantial emotional and/or physical harm that can be linked to the agency’s discriminatory actions.

And even if you establish substantial evidence of harm and grab that golden ring of an award of the statutory maximum of $300,000, it can still be grabbed away from you, as the complainant in Alene S. v. USPS, EEOC Appeal No. 0720150033 (April 6, 2016) learned.  There, the administrative judge had awarded that $300,000 maximum after the complainant established discrimination when the agency failed to take the complainant’s medical limitations seriously and failed to accommodate her, made comments about her disability, and retaliated against her. The administrative judge found that the complainant was an example of the “eggshell plaintiff” and as the agency’s actions rendered her unlikely to ever work again, found $300,000 to be appropriate.  The Commission agreed that substantial compensation was appropriate based on the evidence she presented herself, as well as from her psychiatrist, her psychologist, and her sister.  But the Commission agreed with the agency that the award should be reduced because the complainant had pre-existing medical conditions, and the administrative judge did not factor those in.  The Commission reduced the award to $200,000, still a large award, but not the most that could have been awarded.  Rest assured, I’m already hard at work reading the over one thousand decisions issued by OFO in 2017 and will bring the notable ones to the FELTG audience’s attention. Sumner@FELTG.com

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