FEDweek

Emotional Distress Justifies Significant Award

The Equal Employment Opportunity Commission recently upheld an administrative judge’s determination that a complainant was entitled to $50,000 in nonpecuniary damages, finding that an agency will have a difficult time avoiding a significant award when the emotional impact of its discrimination leads to unrelenting emotional distress and serious damage to a complainant’s marriage.Complainant v. Department of Justice, EEOC Appeal No. 0720140012 (Jan. 22, 2015).

The administrative judge found that the complainant, an FBI agent, was subjected to discrimination on the bases of race (Arab), national origin (Lebanese), and prior EEO activity.In part, the complainant’s work was more heavily scrutinized; he received a “minimally successful” on four critical elements of his performance appraisal, which prevented him from applying for a position in Beirut; during an overseas investigation, he was not copied on crucial emails; he was not selected for a Joint Terrorism Task Force (JTTF) Coordinator position; and his request for a transfer to the agency’s Miami office was denied.

The agency accepted the finding of discrimination, but rejected the administrative judge’s $50,000 award for nonpecuniary damages, arguing that $25,000 was more appropriate.Nonpecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health.There is no precise formula for determining the amount of damages for nonpecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm.Nonpecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than to punish the agency for the discriminatory action.Furthermore, nonpecuniary damages should not be motivated by passion or prejudice, nor should they be “monstrously excessive.”

While the agency asserted that the administrative judge’s award of $50,000 was monstrously excessive, the Commission found that there was substantial evidence in the record to support the administrative judge’s award.The complainant testified that after he received his “minimally successful” performance rating, he felt like he was being “held hostage” in his city of employment.He tried repeatedly to leave his duty location, but understood that the low rating meant he would be stuck there for the foreseeable future.The complainant’s wife credibly testified that the complainant became increasingly angry and withdrawn during his years in the discriminatory environment.She testified that the family learned to “walk on eggshells” and to stay away from him after the work week, until he could recover his mood, but that the required recovery period lengthened until it consumed entire weekends.

The administrative judge found that the discrimination negatively affected the complainant’s marriage, noting that the complainant’s wife decided to seek a divorce and the couple legally separated five months before the hearing.The Commission found that the administrative judge’s award of $50,000 for nonpecuniary damages was consistent with Commission precedent and ordered the agency to take remedial action, including paying the complainant $50,000 in nonpecuniary damages; removing the “minimally successful” rating from his personnel records; offering him the JTTF position for which he applied; transferring him to another office; and paying him reasonable attorney fees and costs.

* This information is provided by the attorneys at Passman & Kaplan, P.C.