The Tenth Circuit Court of Appeals has held that a federal employee who was retaliated against by his employing agency in violation of the Age Discrimination in Employment Act cannot recover damages for emotional distress. In addition, as the compensatory damages awarded by the district court was the sole relief, and that relief was reversed, the Court held that the employee was not entitled to reimbursement for his attorney fees since he was no longer the “prevailing party.”
The plaintiff in Villescas v. Department of Energy, 311 F.3d 1253 (10th Cir. 2002), agreed to testify in another employee’s ADEA case. Subsequent to that decision, the DOE subjected him to an intrusive and visible investigation into his private life and alleged wrongdoing on the job, and then forwarded information from the investigation to the Inspector General. The district court awarded the plaintiff $50,000 in compensatory damages for the humiliation and emotional pain and suffering due to the agency’s actions (the sole relief) and also awarded attorney fees and costs.
The issue before the Court of Appeals was whether the ADEA permits damages for emotional distress in a retaliation claim, and whether such damages are precluded by sovereign immunity. In a private sector ADEA suit, the court is authorized to afford “such legal or equitable relief” that may include “without limitation” judgments compelling reinstatement, back pay, payment of wages, attorney fees, “and an additional equal amount as liquidated damages” in cases of willful violations of the ADEA. It has been established law in most circuits that the “legal or equitable relief” provision does not permit a separate recovery of damages for pain and suffering for private sector litigants.
The ADEA has a separate section for federal employees, allowing them to bring a civil action for “such legal or equitable relief as will effectuate the purposes” of the ADEA. There is no liquidated damages clause in this section. Despite well settled law for private sector litigants, prior to the Tenth Circuit’s decision, no circuit court had decided whether the ADEA may subject the federal government to liability for emotional distress in an age discrimination case based on retaliation. The court pointed out that Congress deliberately prescribed a distinct statutory scheme applicable to federal sector employees and did not make liquidated damages available. Thus, the court concluded that given that Congress declined to make available limited liquidated damages for willful discrimination against federal sector employees, Congress could not have meant to provide unlimited damages for noneconomic injuries such as emotional distress.
The court’s decision regarding the attorney fees issue is also important to note. The court said, quoting from a Supreme Court decision, that a party “prevails” only when actual relief on the merits of his claim “materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Thus, even though the plaintiff obtained the “moral satisfaction of knowing that a federal court concluded that his rights had been violated,” he was not a prevailing party, and the court vacated the award of attorney fees. Presumably, as long as a court orders some type of relief to the plaintiff, e.g. backpay, elimination of a disciplinary action, etc., attorney fees would be awarded to the plaintiff as the prevailing party. Federal employees should also remember that attorney fees and costs in ADEA cases can only be obtained in a federal court action. The EEOC cannot award reimbursement of attorney fees and costs to a prevailing party in an ADEA administrative case.
** 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. **