The EEOC’s Office of Federal Operations overturned an Agency’s decision limiting a complaint’s non-pecuniary (compensatory) damages to $1500 in the case Smith v. Department of Veterans Affairs (VA), Appeal No. 0120113591 (August 15, 2013), increasing the award to $10,000. Smith had prevailed in an earlier Equal Pay Act claim alleging that he was underpaid for three years of GS-13 level work he performed for the VA, so the EEOC remanded the decision to the agency for a damages determination.The EEOC noted specifically that case law allowed a complainant to “recover under both the Equal Pay Act and Title VII for the same period of time so long as he does not receive duplicate relief for the same wrong.29 C.F.R. Section 1620.27(b).”

The OFO affirmed the agency’s ruling that the complainant failed to prove entitlement to any pecuniary damages, especially since the complainant failed to submit any receipts, invoices, or other documentation.The OFO held, however, that Smith had received unequal pay for more than three years, and that his emotional state was aggravated by the unequal pay.The OFO limited the compensatory damages to those arising from unequal pay, but nonetheless found, based on the complainant’s testimony and statements from treating medical providers, that “an award of $10,000 for nonpecuniary, compensatory damages is appropriate.”The agency had only awarded $1,500 in nonpecuniary, compensatory damages.

Because the Equal Pay Act already allowed for “liquidated” damages (double back pay), however, the OFO allowed the agency to offset the payment of liquidated damages, and so required the agency to pay compensatory damages “only to the extent these compensatory damages exceeded the liquidated damages in this case.”Because total back pay and liquidated damages exceeded $86,000, Smith did not likely net any additional award upon entry of the OFO decision.

* 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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