EEOC Awarding More for Emotional Distress
By Laura D. Francis
In the past four years, the Equal Employment Opportunity Commission's Office of Federal Operations (OFO) has been much more likely to either approve larger emotional damages awards or increase such awards substantially from the amounts awarded by administrative judges, federal EEO practitioner Josh Bowers told BNA Sept. 20. He said in researching past EEOC emotional damages awards in preparation for settlement negotiations, he stumbled upon a pattern of EEOC approving or ordering emotional damages — or nonpecuniary — awards of $150,000 or more since 2007, "far more than they've ever done in the past."
Bowers speculated that OFO decision makers began looking at the higher jury awards that discrimination plaintiffs were receiving at jury trials — even though emotional distress damages are capped at $300,000 under the Civil Rights Act of 1991. Although the EEOC commissioners review federal sector cases on rare occasions, the vast majority are decided by career federal employees, and so Bowers said that he did not believe that the plaintiff friendly damages trend was due to a change in administration.
EEOC 'Dismissed' as Forum
Bowers said many plaintiffs' attorneys like himself "dismissed" EEOC as a forum in which to appeal an administrative judge's decision because of historically low emotional distress damages awards. He explained that, under the process for resolving federal sector EEO issues, a federal employee has a choice after his or her formal complaint is investigated — allowing the employing agency to resolve the complaint through a final agency decision (FAD), hold a hearing before an EEOC A1, or file a complaint in federal court.
The employee may appeal either a FAD or an decision to OFO. EEOC emotional damages awards were "dramatically less" prior to 2007, when there was a "bright-line change," Bowers said. He noted that half the EEOC awards of $150,000 or more came in 2007 or later.
Highest Award 10 Years Ago
According to Bowers, the most EEOC has awarded in emotional distress damages has been $250,000 in Munno v. USDA, EEOC Appeal No. 01A01734 (Feb. 8, 2001), which was increased from an original award of $150,000. Munno involved a federal manager with "serious psychological and emotional injuries" who still was capable of performing her duties and was qualified for a promotion into senior management, Bowers noted. That case was 10 years ago, and "it's disappointing that there haven't been companion cases" since then, he said. However, "for me the increases were the most significant," Bowers said. The largest increase was in Padilla v. USPS, EEOC Appeal No. 0120090062 (Sept. 21, 2010), Where EEOC increased an emotional distress damages award of $15,000 to $165,000. There, the plaintiff faced a hostile work environment and termination, and as a result lost custody of his daughter, lost friends, slept in his car, frequently went without food, was unable to afford medical care, and lacked health insurance.
Bowers cited, by name, 10 other cases in which there were substantial increases in emotional distress damage awards.
Other substantial increases included:
- Brown-Fleming v. DOJ, EEOC Appeal No. 0120082667 (Oct. 28, 2010)— $40,000 FAD award increased to $150,000;
- Lopez-Rosende v. USPS, EEOC Appeal No. 0120102789 (Nov. 30, 2010)— $35,000 AJ award increased to $150,000;
- Chastain v. Navy, EEOC Appeal No. 0120102409 (Nov. 17, 2010)— $15,000 AJ award increased to $115,000; and
- Gray v. DOI, EEOC Appeal No. 0120072136 (July 24, 2009)— $10,000 FAD award increased to $100,000, plus EEOC added a $6,100 tax enhancement to the employee's back pay award.
Larger Awards Upheld
Other recent EEOC cases upheld larger emotional distress damages awards:
- Linehan v. Marion Cnty. Coroner's Ofice, EEOC Appeal No. 1120080001 (Aug. 24, 2009)— $200,000 award upheld;
- Blount v. DHS, EEOC Appeal No. 0720070010 (Oct. 21, 2009)— $200,000 award upheld;
- Calm v. USPS, EEOC Appeal No. 0720060029 (Sept. 5, 2008)— $175,000 award upheld;
- Estate of Roop v. DHS, EEOC Appeal No. 0720090056 (Oct. 21, 2010)— $150,000 award upheld;
- Solomon v. Navy, EEOC Appeal No. 0720070071 (March 3, 2008)— $150,000 award upheld; and
- Tyner v. VA, EEOC Appeal No. 0720060032 (Oct. 23, 2007)— $150,000 award upheld.
Despite the upward trend in damages awards, Bowers still criticized the $300,000 cap, which he said has been reduced in value in the 20 years since its passage because it has not been adjusted for inflation. "You can't have any ceiling on damages and not adjust it to inflation," Bowers said. Failing to do so is the equivalent of a "slow motion repeal" of the provision, he said.