On May 2, 2012, the Equal Employment Opportunity Commission’s Office of Federal Operations (OFO) issued its decision in Coopwood v. Department of Transportation, EEOC Appeal No. 0120083127. Rejecting the Agency’s arguments, OFO increased Coopwood’s nonpecuniary compensatory damages award from $35,000 to $150,000 and ordered the agency to pay Coopwood back pay.

Coopwood was an FAA air traffic controller who was transferred to Knoxville, Tenn., in 1999 from another facility that had closed. Under FAA policy, air traffic controllers who complete facility-specific training receive "facility certification," a status which entitles controllers to a significant increase in base pay, as well an additional 10-25 percent differential for certain specific duty assignments. Coopwood, who is African-American, was subjected to severe racial harassment aimed at interfering with her training to receive facility certification in Knoxville, including a person writing "KKK" on an aircraft data tag during her training and two incidents where nooses were left at Coopwood’s workstation; the agency then portrayed Coopwood’s inability to receive facility certification as her failure to compete training rather than the result of harassment. The agency terminated Coopwood’s training for facility certification in March 2003, two months after she had filed an EEO complaint. The agency transferred Coopwood to Andrews Air Force Base "based upon [her] failure to successfully complete the developmental training requirements". Coopwood then successfully received facility certification at Andrews in January 2004, after only seven months of training.

Coopwood ultimately filed a request for hearing on her EEO complaint, then withdrew the request for hearing. The agency issued a Final Agency Decision (FAD) finding no discrimination. Coopwood appealed the FAD, and OFO reversed, finding race discrimination and EEO reprisal. Coopwood v. Department of Transportation, EEOC Appeal No. 0120054544 (July 10, 2007). OFO remanded the case back to the agency for determination of Coopwood’s entitlement to back pay and for a supplemental investigation to compute Coopwood’s entitlement to compensatory damages. After a supplemental investigation, the agency issued a new FAD, asserting that Coopwood was only entitled to $35,000 in nonpecuniary compensatory damages, and denying any back pay to Coopwood. Coopwood then appealed this second FAD.

On appeal, OFO rejected the agency’s arguments for limiting Coopwood’s damages, and increased her compensatory damages award from $35,000 to $150,000. The agency had argued that Coopwood’s attorney had assisted witnesses in drafting affidavits corroborating Coopwood’s injuries, and that the similarities between the affidavits rendered the witness affidavits not credible. OFO found nothing inappropriate in the attorney’s drafting assistance, reasoning that the similarities between these non-identical affidavits were more likely caused by the fact that the witnesses were merely describing the same incidents.

OFO further found that the agency had inappropriately downplayed Coopwood’s symptoms in the second FAD, and that her injuries were more similar to those suffered by complainants in cases where OFO had previously awarded $150,000 in compensatory damages. OFO further held that the agency’s denial of back pay was inappropriate. OFO found that Coopwood would have constructively achieved facility certification in Knoxville no later than October 2000 had the agency not harassed her, and therefore she was entitled to back pay attributable to the facility certification from October 2000 to January 2004 (when Coopwood received facility certification at Andrews AFB).

OFO specifically awarded back pay not just for the increased base pay, but also for the expected differential for certain specific duty assignments. OFO ordered the agency to conduct a new supplemental investigation to determine the exact amount of differential pay Coopwood would have earned in Knoxville, had she been facility certified from October 2000 onward. OFO further affirmed other portions of the remedies awarded in the second FAD which were not disputed on appeal, including pecuniary damages for relocation and counseling expenses and attorneys’ fees and costs.

* 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.

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