Tuesday, June 12, 2012

How much time does the AJ give you to make whole?


1. The agency shall afford complainant sixty (60) days to submit additional evidence in support of his claim for "make whole" relief.


There are no precise formulae for determining the amount of damages for non-pecuniary losses.  Smith, EEOC Appeal No. 01943844.  Damage awards for non-pecuniary losses that have been assessed by juries and courts have varied significantly.  
EEOC Notice No. N 915.002 at 13


(THIS MEANS THAT YOU MAY OBTAIN A LARGER AWARD OUTSIDE OF EEOC)


While the limit for an employer with more than 500 employees, such as the instant agency, is $300,000 for compensatory damages, this amount does not include back pay, interest on back pay, or any other type of equitable relief authorized by Title VII, such as your TSP thrift savings plan, monthly additions and matching pay plus interest, sick leave and paid leave, break violations, promotions or step increases, benefits. 
EEOC Notice No. N 915.002 at 13.

(If I missed something, please let me know ASAP, by mentioning in comments below)

AFGE mentions in their discrimination handbook, depending on the AJ or district court judge, the $300,000 compensation maximum is per violation of discrimination. Good luck on getting a judge who treats every violation as another $300,000. As they may be quite rare. (if you can supply citations were the judge treated each one separately, please comment below with the citations)

2. If complainant has not yet submitted proof of damages in accordance with the FAD, the agency shall request complainant to submit such proof, and shall allow complainant at least forty-five (45) days from the date of its request to do so. Within forty-five (45) days of receiving complainant's proof, the agency shall issue a new FAD limited to the issue of complainant's entitlement to compensatory damages.

Note: You should already have the evidence prepared, before the 60 days, as not all AJ's use the 60 day rule.

Is this next step of figuring out how much the award should be worth, a new court battle? The agency always seems to aim for the lowest amounts, while the complainant is almost never satisfied. The end result is a breach.


(4)  The issue of compensatory damages is REMANDED to the Hearings Unit of

the appropriate EEOC District Office.  The agency is directed to submit

a copy of the complaint file to the EEOC Hearings Unit within fifteen

(15) calendar days of the date this decision becomes final.  The agency

shall provide written notification to the Compliance Officer at the

address set forth below that the complaint file has been transmitted to

the Hearings Unit. Thereafter, the Administrative Judge must be assigned

to further process the issue of compensatory damages in accordance with

the regulations.

----------------

A.  Non-pecuniary Compensatory Damages



1. Legal Standards for an Award of Compensatory Damages



Section 102(a) of the Civil Rights Act of 1991 (CRA 1991), 105 Stat. 1071,

Pub. L. No. 102-166, codified at 42 U.S.C. § 1981a, authorizes an award of

compensatory damages as part of the "make whole" relief for intentional

discrimination in violation of Title VII of the Civil Rights Act of

1964, as amended.  Section 1981a(b)(2) indicates that:

compensatory damages do not include back pay, interest on back pay, or any other


type of equitable relief authorized by Title VII.

Section 1981a(b)(3) limits the total amount of compensatory damages that may be awarded

each complaining party for:

future pecuniary losses

  • emotional pain
  • suffering
  • inconvenience
  • mental anguish
  • loss of enjoyment of life
  • and other non-pecuniary losses


 according to the number of individuals employed by the respondent employer.  The limit for an employer with more than 500 employees, such as the instant agency, is $300,000.

42 U.S.C. § 1981(b)(3)(D).



The Commission has held that compensatory damages are recoverable in

the administrative process.  Jackson v. United States Postal Service,

EEOC Appeal No. 01923399 (Nov. 12, 1992), req. to reopen den., EEOC

Request No. 05930306 (Feb. 1, 1993).  Regarding complainant's claim of

age discrimination, however, we find that compensatory damages are not

awardable for claims arising under the Age Discrimination in Employment

Act (ADEA) of 1967.  Falks v. Department of the Treasury, EEOC Request

No. 05960250 (Sept. 5, 1996) (citations omitted).  To receive an award


of compensatory damages, a complainant must demonstrate that she has


been harmed as a result of the agency's discriminatory action; 



  • extent of the harm
  • nature of the harm
  • severity of the harm
  • duration of the harm
  • or expected duration of the harm



Leperi v. Department of Agriculture, EEOC Appeal No. 01964107 (Apr. 2, 1998) (citing Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for reconsideration den., EEOC Request No. 05940927 (Dec. 8, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N 915.002 at 11-12, 14 (July 14, 1992)).



Compensatory damages may be awarded for:

  • past pecuniary losses
  • future pecuniary losses
  • non-pecuniary losses which are directly or proximately caused by the agency's discriminatory conduct.  



EEOC Notice No. N 915.002 at 8.  


Pecuniary losses are out-of-pocket expenses incurred as a result of the employer's unlawful action including:

  • job-hunting expenses
  • moving expenses
  • medical expenses
  • psychiatric expenses
  • physical therapy expenses
  • and other quantifiable out-of-pocket expenses


Id.

Past pecuniary losses are the pecuniary losses that are incurred prior to the resolution of a complaint via a finding of discrimination or a voluntary settlement.  

Id. at 8-9.

Future pecuniary losses are out-of-pocket expenses that are likely to occur after resolution of
a complaint.  Id. at 9.  

Non-pecuniary losses are losses that are not subject to precise quantification, including:

  • emotional pain
  • suffering
  • inconvenience
  • mental anguish
  • loss of enjoyment of life
  • injury to professional standing
  • injury to character and reputation
  • injury to credit standing
  • loss of health.  
  • Id. at 10.




A compensatory damages award should fully compensate a complainant for

the harm caused by the agency's discriminatory action even if the harm

is intangible.  Id. at 13.  Thus, a compensatory damages award should


reimburse a complainant for proven pecuniary losses, future pecuniary


losses, and non-pecuniary losses.

Smith v. Department of Defense, EEOC Appeal No. 01943844 (May 9, 1996).  






A complainant has a duty to mitigate her pecuniary damages.  EEOC Notice No. N 915.002 at 9.  If a respondent can prove that a complainant failed to mitigate pecuniary damages, then the damages award should be reduced to reflect all losses that could have been avoided with reasonable diligence.  Id. at 9-10.

There are no precise formulae for determining the amount of damages for

non-pecuniary losses.  Smith, EEOC Appeal No. 01943844.  Damage awards

for non-pecuniary losses that have been assessed by juries and courts

have varied significantly.  EEOC Notice No. N 915.002 at 13.  An award

of compensatory damages for non-pecuniary losses, including emotional

harm, should reflect the extent to which the respondent's discriminatory

action directly caused the harm and the extent to which other factors

also caused the harm.  Id. at 11-12.  An award of compensatory damages

for non-pecuniary losses should also reflect the nature and severity of

the harm and the duration or expected duration of the harm.  Id. at 14.



Compensatory damages may be awarded for all pecuniary and non-pecuniary

losses post-dating the November 21, 1991 effective date of CRA 1991.

See Landgraf v. USI Film Products, 511 U.S. 244 (1994).  In Carle

v. Department of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993),

the Commission described the type of objective evidence that an agency

may obtain when assessing the merits of a complainant's request for

emotional distress damages:



[E]vidence should have taken the form of a statement by [complainant]

describing her emotional distress, and statements from witnesses, both

on and off the job, describing the distress.  To properly explain the

emotional distress, such statements should include detailed information

on physical or behavioral manifestations of the distress, information on

the duration of the distress, and examples of how the distress affected

[complainant] day to day, both on and off the job.  In addition, the

agency should have asked [complainant] to provide objective and other

evidence linking . . . the distress to the unlawful discrimination. . . .



Objective evidence may include statements from the complainant

concerning his emotional pain or suffering, inconvenience, mental

anguish, loss of enjoyment of life, injury to professional standing,

injury to character or reputation, injury to credit standing, loss

of health, and any other non-pecuniary losses that are incurred as a

result of the discriminatory conduct.  Smith, EEOC Appeal No. 01943844.

Statements from others, including family members, friends, and health

care providers could address the outward manifestations or physical

consequences of emotional distress, including sleeplessness, anxiety,

stress, depression, marital strain, humiliation, loss of self-esteem,

excessive fatigue, or a nervous breakdown.  Id.
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Martin Luther King Jr.

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