By Deryn Sumner

Successful claims for non-pecuniary compensatory damages need two things: evidence of harm and evidence of a connection between the harm and the agency’s actions.  Last month, the Office of Federal Operations issued a decision that clearly articulates the need for complainants to link the harm alleged to the agency’s actions found to be discriminatory.  In Kit R. v. Department of Army, Appeal No. 0120140952 (September 23, 2016), the complainant had great evidence of harm but failed to meet that second requirement.

After establishing that her performance appraisal had been downgraded in retaliation for her prior EEO activity, the complainant submitted statements from herself, her physician, and two of her children.  And on its face, it’s great evidence in support of a large award of compensatory damages.  The complainant stated that her supervisor’s actions caused her to feel angry, insecure, have lowered self-esteem, negatively impacted her sex life, and caused her not to be able to sleep at night but to sleep all day.  Her children, whose ages were not identified in the decision, stated that she did not speak to them for months at a time, that she would use profanity for no reason, her eating habits were impacted, and she would “sleep all day in a very dark house.” Her physician submitted a statement that the complainant slept for approximately four hours every night, experienced fatigue, and even had suicidal thoughts.

Based on this evidence, you may be thinking that the agency would be on the hook for somewhere between $45,000 to $100,000 in compensatory damages.  But the Commission awarded $8,000.  Although there was a lot of evidence of harm, the Commission concluded, “after reviewing these documents, we find that Complainant generally failed to link the retaliatory appraisal to the symptoms and conditions she reported.” Thus, the Commission found an award of $8,000 to be appropriate for the “generalized assertion that she was distressed because of the appraisal.”

It can be very hard to challenge allegations of harm raised by complainants and their friends, family members, and medical care providers.  However, agencies can often effectively argue for reduced awards where, as here, the complainant failed to establish a sufficient link between the harm and the agency’s actions found to be discriminatory and/or retaliatory. [email protected]

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