The EEOC recently ruled in favor of employees in two appeals challenging compensatory damage awards, substantially increasing both awards. Pursuant to the Civil Rights Act of 1991, a complainant who establishes his or her claim of discrimination may receive, in addition to equitable remedies, up to $300,000 in compensatory damages for non-pecuniary losses (pain and suffering, mental anguish), plus past and future pecuniary losses (out-of-pocket expenses). To obtain relief, the complainant must submit evidence to show that the agency’s discriminatory conduct caused the losses for which damages are sought.


In Philippe v. Social Security Administration, EEOC Appeal No. 01A43924 (December 8, 2005), the complainant, who had a seizure disorder, requested a transfer to an office closer to her home as a reasonable accommodation. The Commission found that this transfer was not an undue hardship because the agency had transferred eight others from her office to the office she requested to be transferred to in recent years. Complainant stated that, “The discrimination caused a lot of medical problems I would not have had otherwise.” Complainant also submitted medical bills for hospital stays, doctor visits, psychiatric visits, lab tests, and medications. After reviewing complainant’s statement and bills, the agency awarded complainant only $4,687 in medical expenses (with $25,000 in non-pecuniary damages and $9,510 in other pecuniary damages). The agency maintained that complainant did not establish that her medical expenses were incurred as a result of its conduct, arguing that complainant’s seizure condition would have required ongoing medical treatment and medication even if the agency had not denied her reassignment request.


The EEOC disagreed, pointing to two letters written by complainant’s physicians. In one letter, “Doctor L” states that complainant was “[A]t a higher risk of having more seizures if she is overly tired. To have to drive 25 or more miles at the end of the long work day might predispose [her] to some potential problems.” In the second letter, “Doctor C” indicated that complainant was able to perform regular duties on a regular basis, but that her commute could “impact on her condition,” because fatigue “sometimes triggers seizures.” The EEOC found that since these letters were available to the agency when the complainant made her reassignment requests, it was aware that complainant’s commute could negatively impact her health. Thus, the EEOC held that there is a nexus between the agency’s denial of her requests for a reassignment and the complainant’s medical expenses. The EEOC awarded the complainant an additional $32,341 for medical expenses.


In Rucker v. U.S. Postal Service, EEOC Appeal No. 01A45275 (December 15, 2005), another case where the EEOC found disability-based discrimination, the administrative judge (AJ) reduced the complainant’s compensatory damages award to $4,000, finding that the complainant had a “heightened sensitivity” to the discrimination. On appeal, complainant argued that his award of compensatory damages should not have been diminished because the Commission’s policy is that “a tort feasor takes the victims as it finds them.” The agency argued that an award greater than $4,000 would be “monstrously excessive.” The Commission concurred with complainant that his “heightened sensitivity” cannot be viewed as a “pre-existing condition” used to diminish his compensatory damage award. The Commission relied on the AJ’s findings that complainant credibly testified as to the nature and severity of his emotional distress, to include anger and crying, withdrawal from his family, and no longer attending church from October 1997 to April 1998. Based on the testimony, the Commission decided that the AJ’s award of $4,000 in compensatory damages was not supported by substantial evidence and that the evidence supports an award of $8,000.


* 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.