The Odds are in Complainants’ Favor When They Appeal Agency Awards of Compensatory Damages

By Deryn Sumner, May 17, 2017

As I noted in another article discussing trends in cases awarding non-pecuniary compensatory damages in 2016, 18 of the 34 cases issued by the Commission increased the amount awarded.  Some of these increases were significant, and I will discuss a few here.

First, in Marguerite W. v. Dept. of Labor, EEOC Appeal No. 0120142727 (December 21, 2016), the agency issued a FAD awarding $4,500 in nonpecuniary compensatory damages in response to the Commission’s Order in EEOC Appeal No. 0120110728 (January 9, 2013).  The original case dealt with a complainant with a vision impairment who needed a flat screen monitor.  She got one, but when her supervisor, the Area Director, found out she had one, he took it away and gave it to the Assistant Area Director.

Although the complainant also raised other allegations of harassment and violations of the confidentiality of her medical information, the Commission only found discrimination with regard to the monitor being taken away and appropriate alternative accommodations not being provided and ordered the agency to investigate her entitlement to compensatory damages and issue a FAD.

The agency did so, finding $4,500 to be appropriate, and the complainant appealed.  The Commission increased the award to $30,000 and found that the agency failed “to address a situation that was inherently degrading and humiliating” and found persuasive testimony from the complainant and her husband that she suffered emotional harm and physical pain from the actions, which left her without accommodation for three months.  The Commission found it appropriate to increase the award by more than $25,000.

In what was I believe the largest increase in 2016, the Commission awarded an additional $105,000 to the complainant in Vaughn C. v. Dept. of Air Force, EEOC Appeal No. 0120151396 (April 15, 2016).  The agency had awarded $20,000 in response to an order from the Commission requiring the agency to investigate and issue a FAD on remedies after finding the complainant was subjected to racially motivated harassment, including use of the n-word, which caused his constructive discharge from employment.  The Commission said the following:

The Agency asserted that Complainant failed to provide adequate evidence of the harm. We disagree. In response to the Agency’s request for documentation, Complainant provided a statement detailing the physical and emotional toll taken on him due to the ongoing harassment that resulted in his resignation from his position with the Agency. In that statement, Complainant indicated he experienced increasing anxiety, difficulty concentrating, a loss of appetite, high blood pressure and severe headaches. He also noted that his physical and emotional relationship with his wife was negatively affected. Complainant also submitted documentation from his mental health counselor that indicated that he lost his motivation to work; felt anxious; developed insomnia; experienced a change in appetite and drinking resulting in a 15-20 pound weight gain; had difficulties with fatigue and focus; and had feelings of hopelessness. She also indicated that he became paranoid that the coworker would physically harm his family, even going to the extent of developing a ‘safety plan’ in that eventuality. The record also included statements from coworkers in support of Complainant’s claims.

Given all of that, the Commission found $20,000 was not enough to compensate the complainant and increased the award to $125,000. Sumner@FELTG.com