Damages Award More Than Tripled

In Deirdra Brown-Fleming v. Eric Holder, Attorney General, EEOC Appeal No. 0120082667 (October 28, 2010), the EEOC's Office of Federal Operations (OFO) more than tripled a combined damage award to Deirdra Brown-Fleming, a former U.S. Attorney in Huntsville, Ala. Ms. Brown-Fleming brought a discrimination claim against the U.S. Department of Justice based on race, sex, and reprisal after the agency denied her request to attend training [in France], and then terminated her six weeks later.

The administrative judge initially found that the agency had discriminated against the complainant and ordered reinstatement, a clean record, back pay and benefits, approval of Brown-Fleming's training request, mandatory training to staff at the agency facility, consideration of "taking appropriate disciplinary action against all responsible management officials still employed with the agency," and posting a notice. In addition, the Commission ordered the agency to provide her with front pay in the event that she rejected the offer of reinstatement. Following a supplemental investigation into compensatory damages, the agency awarded $40,000 in compensatory damages, and $15 for medical expenses.

The complainant appealed the damage awards. Following her appeal, the OFO increased the compensatory damages award from $40,000 to $150,000, and increased the pecuniary damages from $15 for medical expenses, only, to $39,121.59. The AJ apparently based this award solely on the testimony of Brown-Fleming, as the OFO noted that "evidence from a health care provider is not a prerequisite for recovery of compensatory damages," that "expert testimony ordinarily is not required to ground money damages for mental anguish or emotional distress," and that "a complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his/her burden in this regard." The OFO based its finding on review of record evidence showing that Ms. Brown-Fleming was "harmed as a result of the Agency's discriminatory action," enumerating a lengthy catalogue of emotional and physical harm: "the record establishes that despite Complainant's pre-existing conditions and additional stressors, the Agency's discriminatory termination was the proximate cause of her emotional and physical problems. Specifically, the record shows that Complainant suffered from depression, anxiety, stress, insomnia, difficulty concentrating, disassociation, crying spells, social isolation, damage to her professional reputation, withdrawal from relationships, short-term memory loss, nightmares, panic, worsening abdominal pain, worsening hypertension, dramatic weight-loss, and worsening psoriasis brought on by stress."

The pecuniary damages award compensated Fleming-Brown for losses she sustained in premature tax liability and loss of interest for having to liquidate her retirement account. She was able to document the account value at the time of liquidation; brokerage fees; a penalty, and a premature tax liability, as well as foregone interest lost as a result of having to liquidate her account, for a total of $39,121.59.

The OFO's analysis of the claims for pecuniary damages underscores the importance of good record-keeping. The complainant submitted documentation supporting all the above claims, and the OFO upheld the claims. She submitted an additional claim for $3,668.71 for copies, supplies, meals, hotel expenses, airfare, delivery costs, and depositions taking place in 2003. However, the OFO denied that part of the claim because she failed to attach any supporting receipts or other documentary evidence.

Two final notes for practitioners and potential claimants: First, as in its Chastain decision in November 2010 [see the 12/22/10 FEDweek], the OFO cited somewhat dated authority for the increased damages award, citing two cases from 2001 and 2000 that had also upheld $150,000 pecuniary damages awards. Future claimants may wish to press for even higher sums to factor in increases in the cost of living index in the past decade, especially because compensatory damages awards, unlike back pay awards, do not include interest. Second, this case is another example of the extreme time delays faced by claimants before the EEOC. Brown-Fleming lost her job in May of 2002; this decision was issued more than eight years and five months later.

* 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 https://www.passmanandkaplan.com.