In Holmes v. Department of Veterans Affairs, EEOC Appeal No. 0120082790 (September 29, 2008), the EEOC’s Office of Federal Operations (OFO) awarded the complainant $65,000 for non-pecuniary damages where there was a finding of unlawful harassment against the Department of Veterans Affairs. The complainant worked as a part-time housekeeping aide at the agency’s medical center facility in Detroit, Michigan. While the complainant filed an EEO complaint alleging that he was subjected sexual harassment by his first level supervisor, the agency issued a final decision finding no discrimination.

In the decision, the VA acknowledged that the sexual harassment occurred, but it concluded the agency was not liable because agency management took prompt remedial action when the complainant reported the harassment. The complainant appealed and EEOC reversed the agency’s decision. The EEOC held the agency was liable for the unlawful harassment that the complainant was subjected to because when the complainant reported the harassment to agency management, he was subjected to an involuntary schedule change that adversely affected his employment. See Holmes v. Department of Veterans Affairs, EEOC Appeal No. 0120055036 (November 9, 2007). The EEOC’s decision ordered the agency to take various remedial actions, including the calculation of compensatory damages.

In the agency’s final decision on complainant’s claim for compensatory damages, it held that the documentation the complainant submitted supported an award of $18,500 for non-pecuniary damages. The complainant appealed the agency’s decision, contending that the agency’s award was insufficient. He requested compensatory damages in the amount of $300,000. The complainant provided evidence that for a period covering four years, he suffered depression, sleeplessness, anxiety, irritability, problems with concentration, loss of self-esteem and humiliation. For instance, the complainant testified that as a result of the harassment, he began smoking a pack of cigarettes per day and his alcohol consumption increased significantly. Additionally, his relationship with his co-workers deteriorated, his long-term relationship with his girlfriend ended and he became a loner.

Moreover, the complainant submitted an affidavit from one of his co-workers and a statement from his counselor that corroborated many of his contentions. The co-worker stated, in a period of three to four years, as a result of the harassment, he went from "kind-hearted" and "benevolent" to "hostile" and "untrusting." Also, the co-worker stated the complainant withdrew from social interaction and "began to act as a hermit." The complainant’s counselor stated the complainant "began to alienate himself and sought refuge in excessive drinking and smoking, therefore altering his general physical appearance with a weight increase of 30 lbs."

A complainant who establishes a claim of unlawful discrimination may receive compensatory damages for past and future pecuniary losses (i.e., out-of-pocket expenses) and for non-pecuniary losses (i.e., pain and suffering, mental anguish). See 42 U.S.C. § 1981a(b)(3). However, future pecuniary and non-pecuniary damages are limited to $300,000. To receive compensatory damages, a complainant must submit evidence that establishes the agency’s discriminatory conduct directly or proximately caused the alleged damages. EEOC Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). The amount awarded reflects the extent of the causal nexus between the agency’s discriminatory action and the harm it causes the complainant, the nature and severity of the harm and the duration or expected duration of the harm to the complainant.

Here, the OFO found the evidence submitted by the complainant, including the emotional and physical symptoms described by the complainant, the corroborating testimony from his co-worker and counselor and the duration of the harm, entitled the complainant to an award for non-pecuniary damages in the amount of $65,000. See Hibbert v. Department of Justice, EEOC Appeal No. 0720070036 (October 25, 2007) ($60,000 award for non-pecuniary damages where the agency subjected complainant to racial harassment that resulted in stress, frustration, humiliation and loss of self esteem); Viers v. U.S. Postal Service, EEOC Appeal No. 01A14246 (June 20, 2002) ($65,000 in non-pecuniary damages where the complainant stated that she suffered fatigue, insomnia, martial strain, anxiety, loss of self esteem, depression and withdrawal due to harassment); Brown v. Department of Justice, EEOC Appeal No. 01983712 (June 22, 2000) ($75,000 in non-pecuniary damages where discrimination caused sleeplessness, insomnia, argumentative behavior, depression, anxiety, low self-esteem and increased irritability).

* 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

 

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to

 

http://www.passmanandkaplan.com. http://www.fedweek.com/pubs/index.php This book has been selling for $49.95 plus s&h for over two years, but as a special offer to FEDweek readers, we’ve reduced the price to only $29.95 plus s&h.