Don’t be so quick to sign the settlement agreement. It probably contains calculation errors.
Figuring out how much a judge should award non-pecuniary damages is quite difficult especially because of calculation errors by your agency. You may have little say, or not enough time to respond once the EEOC sends you the commissions decision. Instead we recommend you be fully prepared in anticipation of winning.
Since your federal agency will be making the calculations, and always try to offer the minimum, we recommend not to sign any settlement agreement accepting such a small award. Instead, we recommend that your federal agency give you documents describing exactly how they came up with their numbers. There are often calculation errors in these awards by your federal agency.
As noted above, the federal agency used a per day formula to calculate complainant’s non-pecuniary damages award, concluding that an award of $4,900.00 was appropriate. On appeal, complainant argues that an award based on her earnings and the loss of her career is appropriate.<5>
There is no formula for devising non-pecuniary damages
We note that there is no formula for devising non-pecuniary damages and that awards should be based on the facts of a particular case, the severity and length of harm, and awards in similar cases. As previously stated, there are often calculation errors in these awards by your federal agency.
How to get a bigger settlement award
We recommend to research similar cases to yours, noting case citations that are not only similar to your case, but also cases where the complainant had a favorable outcome.
In the following examples, the AJ cited rather thrifty outcomes, when he cited awards in similar cases:
Several Commission decisions have awarded compensatory damages in cases somewhat similar to complainant’s. In Rountree v. Department of Agriculture, EEOC Appeal No. 01941906 (July 7, 1995), the Commission ordered an award of $8,000 in non-pecuniary damages where the complainant’s statement and a psychologist’s report indicated that some, not all as in the case at hand, of complainant’s emotional distress over a 12-month period, including feelings of inadequacy, failure and depression, were the result of a discriminatory performance appraisal and the denial of bonus pay.
Sounds like PTSD before PTSD was a diagnosis
In Bever v. Department of Agriculture, EEOC Appeal No. 01953949 (October 31, 1996), the Commission ordered an award of $15,000 in non-pecuniary damages where the complainant’s situational anxiety was shown to be linked to harassment, the complainant was required to take medication as a result thereof, and the complainant’s symptoms included uncontrolled crying, weight gain, and depression.
In Hull v. Department of Veterans Affairs, EEOC Appeal No. 01951441 (September 18, 1998). A complainant testified to feelings of incompetency and worthlessness, stress and sleep problems over several months brought on by the agency’s discrimination in the form of unfair AWOL charges, accusations of misconduct, and other reprimands. The complainant also established that he had visited a psychologist several times. The Commission awarded him $12,000 in non-pecuniary damages.
In Johnson v. Department of the Interior, EEOC Appeal No. 01961812 (June 18, 1998). The Commission awarded a complainant $35,000 in non-pecuniary damages where the complainant testified to depression and stress, and was diagnosed with dysthymia, a type of depression, caused by unfair work assignments, a fully successful performance appraisal, and harassment.
