EEOC Increases Emotional Distress Award
After the hearing, the EEOC administrative judge reinstated Chastain to a detail position outside of his branch and awarded $84,634 in back pay, but only $15,000 for emotional distress damages. As additional relief, the AJ awarded mandatory EEO training for management at the workplace, changes in the agency's policies concerning EEO counseling, and posting of a notice of discrimination.
Chastain appealed the compensatory damages award as too low. The OFO agreed and awarded an additional $100,000 in damages, reviewing record evidence showing that:
"Complainant was devastated by the Agency's actions . . . [in] that he suffered significant weight gain; an inability to sleep; nightmares; aggravation of physical injuries; stomach distress; change in personality; loss of enjoyment in life; withdrawal from family and friends; increased use of alcohol; lack of desire to socialize; isolation; bouts of anger [that] he suffered from depression; that without counseling and medication Complainant's prognosis for recovery was only "fair." Complainant also provided testimony that the Agency's discrimination resulted in a deterioration of his relationship with his wife and daughter leading to separation and pending divorce and only being permitted to see his youngest daughter every other weekend and holiday. The record further shows that these conditions began at the time of his resignation and are, to a large extent, ongoing."
The OFO also found that the $15,000 awarded by the AJ was inadequate when compared with awards in similar cases "where complainants have suffered emotional harm similar in severity and duration to the emotional harm Complainant suffered in the instant case." Cases cited included two from 2003 awarding $115,000 and $125,000 respectively, where emotional and physical harm included nightmares, fear, financial problems, mental anguish, headaches, muscle spasms, and problems at home with family; and a 2004 award of $115,000 where the emotional distress included post- traumatic stress disorder, anxiety attacks, irritability, and inability to participate in social events. The OFO opinion reiterated that the increased sum compensated for emotional distress caused by the agency's retaliatory actions and met other legal guidelines set forth by U.S. appellate courts.
Practitioners and potential claimants should note that the earlier EEOC decisions on which the OFO based the increased damages award here are six or seven years old. Future claimants may wish to press for even higher sums to factor in increases in the cost of living index, especially because compensatory damages awards, unlike back pay awards, do not include interest.
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.