In assessing the extent to which non-pecuniary damages should be paid,
the AJ discredited the testimony of the agency’s expert witness, Dr. L,
a psychiatrist:
… [Dr. L’s] report and testimony evidenced a bias against complainant
which detracted from the objectivity of his opinions regarding
[appellant’s] claims, and rendered his conclusions much less persuasive
than [Dr. W’s] conclusions. The harsh tone of [Dr. L’s] report, the
lack of a reasonable basis for a number of his conclusions, and certain
of his examination questions and statements create a significant doubt
about [Dr. L’s] objectivity and the validity of his ultimate conclusions
regarding the causation, severity, and duration of distress [appellant]
experienced.
The AJ cited examples of credible, uncontroverted testimony by appellant
regarding untoward remarks by Dr. L, such as a comment about his “other
Black patients” who are “[n]ever satisfied with anything [they] are
given,” and questions about how much money appellant hoped to receive
from the litigation. The AJ also cited hearing testimony in which
Dr. L characterized appellant’s pursuit of her EEO complaint variously
as character assassination of the agency personnel involved and a
diversion of government workers from other work. The AJ also noted
Dr. L’s testimony when he was questioned regarding his description of
appellant as “unprincipled,” in which Dr. L indicated that he disapproved
of appellant’s attempt to seek financial compensation for her injuries.
By final agency decision dated December 4, 1995, the agency accepted the
AJ’s recommended findings of discrimination on Issues 4 and 7. The agency
awarded appellant relief as follows: (a) no pecuniary damages, on the
ground that appellant’s health insurance had covered all such expenses;
(b) payment of bills for psychotherapy up to a total of $4500, as bills
are submitted, but only to the extent that such bills are not covered by
appellant’s health insurance; (c) non-pecuniary damages for “moderate”
pain and suffering in the amount of $50,000, reduced by 15 percent
to account for other, intervening factors, and discounted by another 5
percent to account for pain and suffering attributable to those matters on
which appellant had not prevailed, for a total of $40,000; (d) attorney
fees; (e) a posted notice of discrimination; and (f) EEO training for
Mid-Pacific Region staff, and assurances of whatever corrective action
might be necessary to prevent recurrence of discrimination.
With regard to the amount of non-pecuniary compensatory damages,
the agency noted its disagreement with the AJ’s characterization of
appellant’s injury as “severe.” The agency relied on the testimony
of Dr. L, who opined, essentially, that the extent of whatever injury
appellant sustained was far less than that estimated by Dr. W, as
evidenced by appellant’s high functioning during the period of time she
was supposed to have been devastated by the agency’s actions.
The sole issue on appeal is the amount of compensatory damages to which
appellant is entitled. The agency maintains that appellant sustained
only “moderate” injury, as evidenced by her high functioning during the
relevant time period. Appellant, however, argues that she was severely
injured, and requests, inter alia, non-pecuniary damages in the amount
of $255,000.
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2. Expert Testimony of Dr. W<2>
Dr. W, a Board-certified clinical and forensic psychologist, examined
appellant on two occasions in early 1995. As a result of his examinations
and testing, Dr. W concluded that appellant had an underlying Borderline
Personality Disorder “which accounts for her severe reactions to workplace
inequities.” Dr. W diagnosed appellant as having major Depression
and Adjustment disorder with Anxiety. Dr. W stated that appellant was
“depressed at clinical levels in the context of an avoidant, insecure,
frightened, mistrustful underlying personality structure.” Dr. W stated
that appellant suffered an Acute Distress Disorder at the time of the
reassignment, and has since experienced brief recurrent episodes of
Major Depressive Disorder, departing from a baseline dysthymia. Dr. W
opined that appellant’s depressive condition had not yet returned to
its pre-December 1991 level. Dr. W stated:
… The reassignment, following successful efforts to resolve prior
[EEO] complaints, was a rejection that was traumatic for her. it was
humiliating and it represented loss of control in a person who had
struggled all her life to gain a sense of control of her own self and
her own destiny. Perceived humiliation and rejection to a person of
her personality configuration is particularly traumatizing and accounts
credibly for the clinical syndromes evident on interviewing and testing.
Dr. W opined that appellant would need continuing counseling for
nine to twelve months after the second hearing in order to return
her psychological status and functioning to what is was prior to the
reassignment.
