EEOC Awards Substantial Compensatory Damages

The EEOC recently issued two decisions awarding substantial compensatory damages for pain and suffering to the employees. Moore v. U.S. Postal Service, No. 0720050084, 2007 WL 788181 (3/6/07); Burton v. Dept. of the Interior, No. 0720050066, 2007 WL 788183 (3/7/07). In Moore, the commission awarded $120,000 after reversing the agency's final action, finding that complainant was denied assistance in loading and unloading his truck which led to a rotator cuff injury precluding him from working. The EEOC denied the agency appeal in Burton, upholding the administrative judge's (AJ's) award of emotional damages for the employee's removal from leasing projects and a hostile work environment.

In Moore, the award of non-pecuniary compensatory damages was based on a physical injury and included back pay and front pay. Despite two surgeries, the complainant continued to suffer pain, and his shoulder was not stabilized enough to treat the torn rotator cuff. Front pay may be awarded in lieu of reinstatement when 1) no position is available; 2) the subsequent working relationship would be antagonistic; or 3) the employer has a record of long-term resistance to anti-discrimination efforts, citing Brinkley v. U.S. Postal Service, EEOC Request No. 05980429 (8/12/99). Where an agency has diminished an employee's future earning power due to discrimination, future compensatory damages may be awarded. The commission held that the awards for pain and suffering and loss of wage earning capacity are subject to the statutory cap of $300,000 for compensatory damages, limiting the award for future pecuniary losses to $180,000.

The award of damages in Burton was based on the severe emotional distress suffered by the complainant, including anxiety, depression, humiliation, sleep deprivation, suicidal thoughts, and social withdrawal from friends and family. Based on the complainant's mental and physical disorders, including post-traumatic stress, major depression, non-epileptic seizures, panic attacks, memory loss, migraines, and stomach problems, the AJ found that the employee suffered from loss of enjoyment of life, interference with family relationships, and permanent diminishment in the quality of her life. However, the commission reversed the AJ's award of future lost wages because the objective evidence was inadequate to make an award for any claimed impact on complainant's future earning potential, the likely duration of her disabilities, and the extent of her economic losses, citing Ghazzawi v. U.S. Postal Service, EEOC Appeal No/ 01A15327 (4/23/02).

While there is no precise formula for determining the amount of damages for non-pecuniary losses, excluding expenses incurred by the complainant, the EEOC has held that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. Loving v. Dept. of Treasury, EEOC Appeal No. 01955789 (8/29/07); Rountree v. Dept. of Agriculture, EEOC Appeal No. 01941906 (7/7/95). However, the commission has also held that an award should not be "monstrously" excessive standing alone, should not be the product of passion or prejudice, and should be consistent with wards in other similar cases. Ward-Jenkins v. Dept. of Interior, EEOC Appeal No. 01961483 (3/4/99). Having an experienced employment attorney and the use of medical and other expert testimony can greatly assist in obtaining substantial awards for pain and suffering and the loss of future wage earning capacity.

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