FEDweek

Federal Legal Corner: Relief Award Increased

The EEOC increased an agency’s award of compensatory damages from $3,500 to $50,000 for pain and suffering resulting from unlawful retaliation in Louis Welker v. U.S. Department of Agriculture, Appeal Nos. 0120120330 and 0120093426 (7/27/12). Welker, a GS-15, had worked as a branch chief at the agency’s Agricultural Research Center in Beltsville, Md. and attended annual meetings in Australia as the agency representative but was subsequently replaced. While the agency final decision of his EEO complaint upgraded Welker’s performance appraisal and allowed him to attend an annual meeting in Australia, it only awarded $3,500 in compensatory damages although he had sought $100,000.

Welker then notified the agency that it had failed to comply with its final decision in regard to his attendance at the annual meetings in Australia, but the agency still only awarded one additional meeting. On appeal to the Office of Federal Operations, EEOC, Welker argued for at least a four-year commitment to attend the annual meetings and challenged the $3,500 award. The OFO agreed with Welker that he was entitled to a multiple-year commitment to attend the annual meetings. It said:

"In fact, the record indicates that Complainant would have served as the Agency’s AAHL/ASAG representative for each year after February 2005 if the Agency had not retaliated against Complainant by removing him from this assignment. As such, at the time of appeal, Complainant had been wrongfully deprived of his appointment as the Agency’s representative at AAHL/ASAG meetings and discussions for at least four years…In order to rectify the ongoing effects of the Agency’s retaliatory actions, we find that Complainant must henceforth be designated at the Agency’s representative to the AAHL/ASAG Committee and meetings as long as ASAG pays the cost for him to attend."

The EEOC also found that Welker had provided detailed statements regarding the effects of the unlawful reprisal on his life, including emotional distress and the physical effects of his blood pressure becoming elevated to dangerously high levels, chest pains, abdominal pains, and bloating. The Commission also awarded pecuniary damages for medical treatment beginning in 2005 but refused to award compensation for lost earning capacity. It found that the evidence, aside from Welker’s bare assertions, was inadequate to "base a finding of likely duration of Complainant’s diminished future earning capacity and the extent of his economic losses. See Ghazzawi v. U.S. Postal Serv., EEOC Appeal No. 01A15327 (Apr. 22, 2002)."

* 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.

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/CM/Custom/Federal-Employees-Survival-Guide.asp. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.