Non-Pecuniary damages are based on severity and duration of harm. Winning requires a great deal of supportive evidence if you wish to succeed.
While it seems that when a definition including similar cases and a case citations including Carpenter, Carter and Cygnar are put in the decision to help the complainant understand their award and entitlements, In my opinion, they are placed so as to remind the judge and the agency to lower the value of the award, and to demand as much evidence and specific evidence to decrease the value of the award. It’s obvious this is the case because the judge includes a reminder not to decide on the award based on passion and to not make the award monstrously excessive. The judge always seem to find the lowest range of awards to compare similar cases, and not the highest range.
I would love to be proven wrong, but if you find or know of some obscure case, by all means send it in the comments or in the contact page.
B. Non-Pecuniary Damages
Non-pecuniary damages are available to compensate the injured party for actual harm, even where the harm is intangible. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984).
Emotional harm will not be presumed simply because the complainant is a victim of discrimination. See Guidance at 5.
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, EEOC Appeal No. 01945652; Guidance 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. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)).
Types of evidence allowed in Non-Pecuniary Damages
1. Statement by Complainant
Objective evidence of non-pecuniary damages may include a statement by the complainant explaining how he or she was affected by the discrimination. Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
2. Statement from others about complainant
Statements from others, including:
- family members
- friends
- health care providers
3. Submit Medical Reports / Documentation
may address the outward manifestations of the impact of the discrimination on the complainant. Id.
The complainant may also submit documentation of medical or psychiatric treatment related to the effects of the discrimination.
However, evidence from a health care provider is not a mandatory prerequisite to establishing entitlement to non pecuniary damages. Sinnott v. Department of Defense, EEOC Appeal No. 01952872 (September 19, 1996).
(In my opinion, not submitting this medical documentation evidence could severely lower your award)
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)).
The Commission also applies two exceptions to this general rule.
First, when a complainant has a pre-existing condition, the agency is liable only for the additional harm or aggravation caused by the discrimination.
Second, if the complainant’s pre-existing condition inevitably would have worsened, even absent the discrimination, the agency is entitled to a proportionate reduction in damages; the burden of proof being
on the agency to establish the extent of this entitlement. Wallis, EEOC Appeal No. 01950510 (citing Maurer v. United States, 668 F.2d 98 (2d Cir. 1981)); Finlay v. United States Postal Service, EEOC Appeal No. 01942985 (April 29, 1997).
The Commission notes, however, that complainant is entitled to recover damages only for injury, or additional
injury, caused by the discrimination. Terrell v. Department. of Housing and Urban Development, EEOC Appeal No. 01961030 (October 25, 1996), aff’d, EEOC Request No. 05970336 (November 20, 1997).
What does the judge consider Emotional Harm?
Complainant has requested non-pecuniary damages for emotional harm in the nature of:
headaches
insomnia
difficulty in concentration
irritability
depression
panic
anxiety attacks
despondency
loss of self esteem
tension
loss of character and reputation
loss of enjoyment of life
stress and inconvenience
Although the record lacks evidence concerning the duration of complainant’s distress, the statements from complainant’s friends represent that the agency’s action altered his behavior in so far as his judgment, patience and self control was compromised and that he suffered from extreme stress and loss of self esteem as a result of the discriminatory non-selection.
The statement from complainant’s physician acknowledges that his depression had more than one cause but
stated that his feeling of “victimization” by the agency is a “great part of the manifestation of his depression.”
We note that the Commission has awarded compensatory damages in cases where the agency’s conduct was
one of several causes of emotional harm. See Economou v. Department of the Army, EEOC Appeal No. 01983435 (August 5, 1999) ($35,000 awarded for period of retaliation which contributed in part to complainant’s depression and anxiety); Terrell, EEOC Appeal No. 01961030 ($25,000.00 award for emotional distress mitigated by evidence that complainant had a number of personal problems that contributed to his distress).
After analyzing the evidence which establishes the emotional injury, sustained by complainant as a result of the agency’s discriminatory action and mitigated by the effects of other personal problems he experienced,
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 $20,000.00. This amount takes into account the severity and the likely duration of the harm done to complainant by the agency’s action.
The Commission further notes that this amount meets the goals of not being motivated by passion or prejudice, not being “monstrously excessive” standing alone, and being consistent with the amounts awarded in similar cases. See Cygnar, 865 F.2d at 848.
