By Michael Rhoads, March 15, 2022

Compensatory damages are available in cases of intentional discrimination under Title VII and the Rehabilitation Act, 42 USC 1981a(b), as well as the Genetic Information Nondiscrimination Act (GINA). While past pecuniary damages (do you have a receipt for that?) and future pecuniary loss (I’m going to have to keep paying how much?!?) are relatively cut and dried, non-pecuniary damages (emotional harm, or pain and suffering) are less certain to predict.  Looking at a couple of the EEOC’s recent cases on non-pecuniary damages is a good reminder that what your agency might award, and what the EEOC might award on appeal, could vary greatly.

Bill A. v. U.S. Postal Service, EEOC Appeal No. 2020003332 (June 3, 2021).

In 2017, the complainant was diagnosed with major depressive disorder, and suffered from anxiety and insomnia. He began to take medication. The agency sent him home, refused to allow him to come to work, and suspended him, among other things. The complainant was separated from the agency effective April 2019. He claimed that due to the agency’s actions, he suffered from gastrointestinal issues, hearing voices, and suicidal thoughts. The complainant had filed two previous complaints, and amended his second complaint, which is addressed here. As a part of the amendment to the second complaint, the complainant’s wife provided an affidavit confirming the complainant’s symptoms had worsened since the complainant was separated from the agency.

In a prior EEO complaint, the agency awarded $85,000 to the complainant. The agency took this amount into consideration when issuing $2,000 in non-pecuniary damages related to the amended complaint. The agency concluded the complainant’s conditions were “mostly pre-existing” and the prior damages paid by the agency covered these conditions.

The Commission modified the final agency decision from $2,000 to $35,000, finding the agency fell short on the reasonable accommodation process when it failed to consider reassignment as a reasonable accommodation for the complainant’s disability. The Commission opined, “The Agency’s suggestion that Complainant’s claim for non-pecuniary damages consisted of little more than speculation is offensive in light of …” the Commission’s previous decision awarding the Complainant $85,000.  The Commission decided the first payment should not inform how much the second payment should be, considering each decision covered two different time periods.

It is also important to note that in non-pecuniary damages cases, the complainant does not have to present medical evidence. The complainant does bear the burden of proof, but in this case, he submitted an affidavit from his wife to prove his claim.  Also, the agency did not refute his evidence in the first case. The Commission took this into consideration when deciding on the appeal.

Stanton S. v. U.S. Postal Service, EEOC Appeal No. 2019004097 (Apr. 15, 2021).

In this case, the complainant requested a religious accommodation. His religion did not permit him to work on Sundays.  However, management ordered him to be trained as a backup to work on Sundays if the need would arise. Training for the role took place on Sundays. Management issued two removal notices when the complainant missed three training dates. The EEOC ordered the agency to investigate the claims. The agency found no discrimination in its final decision.  On appeal, the Commission found the complainant established a prima facie case of religious discrimination because the agency could not show undue hardship, and sent the case back to the agency to determine the damages to be paid to the Complainant. The agency estimated the complainant was off work for approximately four months and awarded him $10,000. The complainant appealed the Agency’s compensatory damages.

In its decision, the Commission cited: “Complainant has the burden of proving the existence, nature and severity of the alleged emotional harm.”  Man H. v. Dept. of Homeland Security, EEOC Appeal No. 0120161218 (May 2, 2017). The complainant may report as evidence emotional harm, such as stress, anxiety, interference with a firmly held religious belief, etc.  However, the lack of supporting evidence may affect the amount of damages related to a case. Also, non-pecuniary damages are meant to repair the damage caused by the harm to the complainant – not to punish the agency. The Commission cited three similarly situated cases, and accordingly raised the amount of the non-pecuniary damages to $30,000.

For expert advice on how to handle compensatory damages, join Bob Woods on Thursday, March 24 from 1 – 2 pm ET for Damages and Remedies in Federal Sector EEO Cases. One hour of your time could save your agency tens of thousands of dollars in compensatory damages! Stay safe, and remember, we’re all in this together. [email protected]

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