Once a claim of discrimination is brought against the federal agency, the agency and the EEOC administrative judges (AJ) search for legal precedence to either dismiss, or reduce the award that should be given to the complainant, in the unlikely chance they win their EEOC Discrimination claim and have filed in a timely manner.
In this example, the federal agency uses Carpenter vs. Department of Agriculture, which clearly require a great deal of evidence to prove severity and duration of emotional harm. Most complainants cannot present the required evidence, therefore the claims award is automatically reduced from the getgo.
B. Non-Pecuniary Damages
Non-pecuniary damages constitute the sums necessary to compensate the injured party for actual harm, even where the harm is intangible.
We note that non-pecuniary losses for emotional harm are more difficult to prove than pecuniary losses.
See Guidance at 5. Emotional harm will not be presumed simply because the complainant is a victim of discrimination. Id. The existence, nature, and severity of emotional harm must be proved. Id. The method for computing non-pecuniary damages should typically be based on a consideration of the severity and duration of harm.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
In determining the severity of the harm, consideration should be given to all resulting damage of the discrimination, for example, whether the harm was accompanied by occasional sleeplessness, or a nervous breakdown resulting in years of psychotherapy. Guidance at 8. The duration of the emotional harm is also relevant, meaning that a complainant who has suffered from severe depression for two months may be awarded less money than a complainant who has suffered from severe depression for a year.
Id. at 8. We note that for a proper award of non-pecuniary damages, the amount of the award should not be “monstrously excessive” standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Ward – Jenkins v. Department of the Interior, EEOC Appeal No. 01 961483 (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 827 , 848 (7th Cir. 1989)).
Finally, we note that the Commission applies the principle that “a tortfeasor takes its victims as it finds them.” Wallis v. United States Postal Service, EEOC Appeal No. 01950510 (November 13, 1995)
(quoting Williamson v. Handy Button Machine Co., 817 F.2d 1290 , 1295 (7th Cir. 1987)).
We note that the Commission has awarded compensatory damages in cases somewhat similar to complainant’s case in terms of the harm sustained.
See, e.g., Brown v. Department of Justice, EEOC Appeal No. 01983712 (June 22, 2000) ($75,000.00 in non-pecuniary damages where the agency’s discrimination caused sleeplessness, insomnia, argumentative behavior, depression, anxiety, low self esteem, increased irritability, and aggravation of complainant’s post traumatic stress syndrome); Ward Jenkins v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) ($50,000 in non-pecuniary damages for retaliation which exacerbated pre-existing Borderline Personality Disorder); Johnson v. Department of the Interior, EEOC Appeal No. 01961812 (June 18, 1998) ($37,500.00 in non-pecuniary damages where medical evidence established depression and related symptoms as a result of the agency’s discrimination); Turner v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518 (April 27, 1998) ($40,000 in non-pecuniary damages for physical pain, loss of enjoyment of life and loss of health sustained by complainant as a result of harassment); Wallis v. United States Postal Service, EEOC Appeal No. 01950510 (November 13, 1995) ($50,000.00 in non-pecuniary damages where the discrimination aggravated of pre-existing emotional condition).
After analyzing the evidence which establishes the physical and emotional harm sustained by complainant and upon consideration of damage awards reached in comparable cases, the Commission finds that complainant is entitled to an award of non-pecuniary damages in the amount of $40,000.00. We find this case analogous to the above – referenced cases, with respect to the nature, severity and duration of the harm. In reviewing the evidence, we find that complainant has suffered physical and emotional harm in the form of anxiety, depression, insomnia, tearfulness and helplessness. Complainant, who was diagnosed with Major Depression stated that her depression often made her avoid getting out of bed, and impeded decision making and concentration. The record also reveals complainant suffered a 30 pound weight gain between 1992 and 1993. Complainant spoke of other physical manifestations such as pressure and pounding in her chest, as well as nightmares. The record reveals complainant sought treatment for her depression for over a year, and was prescribed anti-depressant medication for several years. Finally, we note that this award is not motivated by passion or prejudice, is not “monstrously excessive” standing alone, and is consistent with the amounts awarded in similar cases. See Cygnar, 865 F.2d at 848.
Complainant argues on appeal that she has not been reimbursed for leave taken as a result of the discrimination. A request for compensation for leave taken, due to emotional distress, as a result of discrimination, is a claim for equitable relief, not compensatory damages. McGowan – Butler v. Department of Treasury, EEOC Request No. 059 40636 (September 9, 1994). Pursuant to the order in Smith v. United States Postal Service, EEOC Appeal No.01954735 (August 21, 1997), the agency was ordered to restore all leave. To the extent the agency has not yet done so, they are ordered to comply. If complainant believes the agency has not complied with the prior decision, she is advised to file a petition for enforcement as directed in the paragraph below.
