What type of damages can I get from my EEO case?
You are entitled to compensatory (pecuniary) and pain and suffering (non-pecuniary) damages.
What’s the difference between compensatory (pecuniary) damages and pain and suffering (non-pecuniary) damages?
Compensatory damages are “out of pocket” expenses that an employee incurs as a result of the Agency’s discrimination or harassment. These expenses can be quantified to an exact amount established through receipts that are not debatable per se. Examples of compensatory damages include medical expenses, job-hunting expenses, travel expenses for interviews or moving to another location, back pay, physical therapy expenses, psychiatric expenses.
VS.
Pain and suffering (non-pecuniary) damages are losses that cannot be quantified by an exact amount, like emotional pain and injury to character, professional standing, and reputation. Compensatory damages are awarded to compensate for losses or suffering inflicted due to discrimination. The Administrative Law Judge reviews relevant documentation and testimony to determine the dollar amount of pain and suffering an employee suffered.
Can I receive punitive damages in an EEO case against the federal government?
Punitive damages are NOT available against the federal government.
How are compensatory (pecuniary) damages calculated?
You must demonstrate that the Agency’s action caused the harm suffered through appropriate evidence and documentation. Rivera v. Dep't. of the Navy, EEOC Appeal No. 01934156 (July 22, 1994); The Commission Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992), at 11-12, 14; Carpenter v. Dep't. of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Objective evidence in support of a claim for pecuniary damages includes documentation showing actual out-of-pocket expenses with an explanation of the expenditure. See The Commission Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) at 11-12; Carle v. Dep't. of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). The agency is only responsible for damages clearly shown to be caused by the agency's discriminatory conduct. Id. To recover damages, the complainant must prove that the employer's discriminatory actions were the cause of the pecuniary loss. The Commission Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) at 8.
What’s the difference between past pecuniary damages and future pecuniary damages?
Past pecuniary damages refer to expenses incurred prior to the resolution of a complaint through a finding of discrimination, or a voluntary settlement.
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Future pecuniary losses are losses that are likely to occur after resolution of a complaint. See Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991, the Commission Notice No. 915.002 at 9. An award for the loss of future earning potential considers the effect that complainant's injury will have on her ability in the future to earn a salary comparable with what she earned before the injury. Brinkley v. U.S. Postal Service, EEOC Request No. 05980429 (Aug. 12, 1999) citing McKnight v. General Motors Corp., 973 F.2d 1366, 1370 (7th Cir. 1992). See Morrison v. U.S. Postal Service, EEOC Appeal No. 07A50003 (Apr. 18, 2006) (citing Brinkley, supra); Hernandez v. U.S. Postal Service, EEOC Appeal No. 07A30005 (July 16, 2004). Proof of entitlement to loss of future earning capacity involves evidence suggesting that the individual's injuries have narrowed the range of economic opportunities available to her. Carpenter v. Dep't. of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Future pecuniary losses usually come into play when an employee experienced a non-selection and delaying future career advancements and salary increases.
How are compensatory (pecuniary) damages calculated?
Accurately predicting the amount of pain and suffering damages for an EEOC cases against a federal agency can be difficult given the subjective nature of the analysis. The amount should reflect the extent to which the federal government’s discriminatory action directly or proximately caused harm to the employee. The Commission Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to the complainant, and the duration or expected duration of the harm. Id. at 14. In Carle v. Dep't. of the Navy, the EEOC stated that "objective evidence" of non-pecuniary damages may include a statement by the complainant explaining how s/he was affected by the discrimination. Examples of objective evidence include statements from complainant concerning the 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. Id. Statements from others including family members, friends, health care providers can be leveraged to demonstrate how the federal government’s discrimination harmed the Complainant in relation to sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, significant weight loss or gain, or a nervous breakdown. Id. Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his burden in this regard. Id. The more inherently degrading or humiliating the defendant's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id.
Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Service, EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't. of the Navy, EEOC Appeal No. 01922369 (Jan.. 5, 1993)). The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Id.
NOTE – Pain and suffering (non-pecuniary) damages and future pecuniary damages are capped at 300K.