Calculation of Damages Payable
Complainant has claimed that he should be awarded $100,000.00 in punitive
damages for pain and suffering. However, since punitive damages are not
allowed, we must calculate the amount of non-pecuniary compensatory
damages to which complainant is entitled. As stated previously,
complainant testified that, due to the agency’s actions, his depression
increased, and he felt bad about himself, suffered emotional harm, loss
of enjoyment of life, mental anguish, injury to character and damage
to his reputation, loss of status, alienation, humiliation, marital
difficulties, and other inconveniences. Furthermore, complainant’s wife
indicated that complainant suffered emotional harm, loss of enjoyment
of life, mental anguish, injury to character, marital difficulties, and
other inconveniences. However, we find that record reflects that some
of complainant’s problems may have been caused by factors other than
the discrimination. For example, in complainant’s wife’s statement she
indicated that complainant had suffered from depression as a result of
the Frankfurt, Germany incident. Complainant’s wife also acknowledged
that complainant had previously suffered from depression, but argued
that his condition was exacerbated by the discrimination. We note,
however, that there is no statement from his physician or other evidence
to support his claim. While evidence from a health care professional
is not a mandatory prerequisite for recovery of compensatory damages for
emotional distress, it is useful in cases involving the exacerbation of
an illness. See Lawrence v. United States Postal Service, EEOC Appeal
No. 01952288 (April 18, 1996).
Taking into account the evidence of non-pecuniary damages submitted by
the complainant, the Commission finds that complainant is entitled to
non-pecuniary damages in the amount of $15,000. We note that complainant
cannot show a nexus between the events that occurred in Nairobi, and the
discrimination that he suffered when he was not assigned to the Acting
Division Director position, as this nexus is too speculative. Further,
we note that the record clearly establishes that complainant suffered from
depression prior to the discriminatory act, and as such, his pre-existing
condition must be considered in making the award. Accordingly, we find
that $15,000 takes into account the severity of the harm suffered, and is
consistent with prior Commission precedent. See Ford v. Department of
Veterans Affairs, EEOC Appeal No. 07A40065 (August 17, 2004) (awarding
$15,000.00 based on complainant’s testimony that the discriminatory
non-selection caused feeling of unfair treatment and trouble in his
marriage); Roppuld v. Small Business Admin., EEOC Appeal No. 07A20141
(Aug. 6, 2003) (awarding $10,000 where complainant was discriminatorily
removed from a supervisory position and he experienced depression, weight
loss, mental anguish, and loss of professional reputation); Wood v. Dep’t
of Veterans Affairs, EEOC Appeal No. 01A15274 (Jan. 6, 2003) (awarding
$15,000 where complainant experienced, among other things, loss of job
opportunities, stress and depression as a result of the discrimination,
but where complainant did not submit medical evidence to support a link
to physical conditions); Hvizdak v. United States Postal Serv., EEOC
Appeal No. 07A20112 (June 30, 2003) (awarding $15,000 where complainant
suffered depression, financial stress and loss of reputation, but where
complainant did not submit medical documentation); Koch v. Department
of Transportation, EEOC Appeal No. 01975988 (April 3, 2000) (awarding
$16,000 where discrimination based on complainant’s witness testimony
that she suffered approximately four years of emotional distress with
physical symptoms and noting that her depression and symptoms were in
large part the result of her lymphoma).
CONCLUSION
Accordingly, the agency’s decision is modified. Complainant is awarded
non-pecuniary damages in the amount of $15,000.00. The agency is directed
to comply with the Order below.
