EEOC Trend: Dramatic Increase in EEOC Emotional Distress Awards

By on October 7, 2011 in Current Events with 60 Comments

By
Josh Bowers

Josh F. Bowers represents Federal employees nationwide from his office in Silver Spring, Maryland. Mr. Bowers was awarded Lawyer-of-the-Year from the Metropolitan Washington Employment Lawyers Association.  For information visit: www.JoshBowersLaw.com

For employee advocates, it has long been the common wisdom that for large non-pecuniary awards (emotional distress), a case should be filed in U.S. District Court and not placed before an Administrative Judge of the U.S. Equal Employment Opportunity Commission.  It is time now for employee advocates to reconsider that decision.  The EEOC has sent two very clear signals that past non-pecuniary awards by the Commission are no longer considered adequate.  In just the past two years the Commission issued a significant number of decisions that dramatically increased non-pecuniary (emotional distress) damages awards.  In only four years, the Commission issued more than half of the 24 decisions that awarded $150,000 or more for non-pecuniary damages.

It is not clear from the EEOC’s decisions if there was an institutional decision to dramatically increase non-pecuniary damages awards or if this is result of decisions in individual cases reflecting research on 20 years of jury awards and appellate decisions. No matter how this trend began, it is a welcome change from the many disappointingly small non-pecuniary damages awards by the Commission in the past.  This is a grand way to celebrate the 20th anniversary of the amendment to the Civil Rights Act that provided compensatory damages.  The $300,000 cap on compensatory damages remains and is now also 20 years old.   Each year the value of $300,000 has been gradually devalued by inflation.  It will take an act by Congress to correct the cap on damages.    

 

EEOC DECISIONS THAT INCREASED EMOTIONAL DISTRESS DAMAGES JUMPED SUBSTANTIALLY SINCE 2009

Fonda-Wall v. Department of Justice, EEOC Appeal No. 0720060035 (July 29,
2009)(The Commission increased an Administrative Judge’s award of emotional
distress damages from $150,000 to $200,000).

Padilla v. U.S. Postal Service, EEOC Appeal No. 0120090062 (September 21,
2010)(The EEOC increased an Administrative Judge’s award of $15,000
emotional distress award to $165,000)

Brown-Fleming v. Dep’t of Justice, EEOC Appeal No. 0120082667 (October 28,
2010)(The EEOC increased a Final Agency Decision award of $40,000 in
emotional distress to $150,000).

Lopez-Rosende v. U.S. Postal Service, EEOC Appeal No. 0120102789 (November
30, 2010)(EEOC increased an Administrative Judge’s award of $35,000 for
emotional distress to $150,000).

Chastain v. Department of the Navy, EEOC Appeal No. 0120102409 (November,
17, 2010) request for reconsideration denied, EEOC Request No. 0520110240
(March 31, 2011)(Commission increased an Administrative Judge’s award of
$15,000 to $115,000 for emotional distress).

Gray v. Department of Interior, EEOC Appeal No. 0120072136 (July 24,
2009). (EEOC increased an FAD award of $10,000 for emotional distress to
$100,000 and added a $6,100 tax enhancement on back pay).

Conrad v. Department of Justice, EEOC Appeal No. 0120090690 (April 9,
2010), request for reconsideration denied EEOC Request No. 0520100327 (February
4, 2011)(Commission increased a Final Agency Decision award of $40,000 for

emotional distress damages to $100,000).

 

EEOC HAS ISSUED FEW REDUCTIONS OF EMOTIONAL DISTRESS DAMAGES AND ONLY ONE REDUCTION SINCE 2005.

Sainz v. Department of the Treasury, EEOC Appeal No. 0720030103 (September
19, 2008)($132,000 award reduced to $100,000).

Turton v. Norton, EEOC Appeal No. 07A50040 (September 29, 2005) request
for reconsideration denied 05A60221($300,000 non-pecuniary award reduced to
$110,000.)

VanDesande v. Postmaster General, EEOC Appeal No. 07A40037 (2004) ($200,000
non-pecuniary award reduced to $150,000)

Booker v. Department of Defense, EEOC Appeal No. 07A00023 (August 10,
2000).($195,000 non-pecuniary award reduced to $150,000).

Santiago v. Caldera, EEOC Appeal No. 01955684 (October 14, 1998)($300,000
non-pecuniary award reduced to $125,000).

 

OVER HALF OF THE EEOC’S 24 NON-PECUNIARY AWARDS OVER $150,000 WERE ISSUED SINCE 2007

Below is a complete list of the Commission’s awards of $150,000 or more in
non-pecuniary (emotional distress) damages. Over half of the awards were
issued by the Commission since 2007:

Munno v. Department of Agriculture, EEOC Appeal No. 01A01734 (February 8,
2001)(The Commission increased an award of $150,000 in emotional distress
damages to $250,000).

Linehan v. Marion County Coroner’s Office, EEOC Appeal No. 1120080001
(August 24, 2009)($200,000 for emotional distress damages)

Fonda-Wall v. Department of Justice, EEOC Appeal No. 0720060035 (July 29,
2009)(The Commission increased an Administrative Judge’s award of emotional
distress damages from $150,000 to $200,000).

Blount v. Department of Homeland Security, EEOC Appeal No. 0720070010
(October 21, 2009), request for reconsideration denied EEOC Request No.
0520100148 (April 16, 2010)($200,000 for emotional distress damages)

Glockner v. Department of Veteran’s Affairs, EEOC Appeal No. 07A30105
(Sept. 23, 2004)($200,000 for emotional distress damages.)

Sebek v. Attorney General, EEOC Appeal No. 07A00005 (March 8,
2001)($200,000 for emotional distress damages) The Administrative Judge’s award of
$200,000 was upheld by the Commission.

Stiehl v. Postmaster General., EEOC Case No. 150-2004-00433X
(Administrative Judge Decision, Miami District Office, Sept. 12, 2008)($200,000 for
emotional distress damages)

Looney v. Department of Homeland Security, EEOC Appeal No. 07A40124,
01A53252 (May 19, 2005), ($195,000 for emotional distress damages.)

Mack v. Department of Veterans Affairs EEOC Appeal No. 01983217 (June 23,
2000) request for reconsideration denied, EEOC Request No. 05A01058 (October
26, 2000)($185,000 for emotional distress damages).

Cahn v. United States Postal Services, EEOC Appeal No. 0720060029
(September 5, 2008)($175,000 for emotional distress damages).

Padilla v. U.S. Postal Service, EEOC Appeal No. 0120090062 (September 21,
2010)(The EEOC increased an Administrative Judge’s award of $15,000
emotional distress award to $165,000).

Brown-Fleming v. Dep’t of Justice, EEOC Appeal No. 0120082667 (October 28,
2010)(The EEOC increased a Final Agency Decision award of $40,000 in
emotional distress to $150,000).

Estate of Roop v. Department of Homeland Security, EEOC Appeal No.
0720090056 (October 21, 2010)($150,000 for emotional distress)

Lopez-Rosende v. U.S. Postal Service, EEOC Appeal No. 0120102789 (November
30, 2010)(EEOC increased an Administrative Judge’s award of $35,000 for
emotional distress to $150,000).

Solomon v. Department of the Navy, EEOC Appeal No. 0720070071 (March 3,
2008) ($150,000 for emotional distress damages).

Goodridge v. Social Security Administration, EEOC Appeal No. 07200500261
(November 15, 2006) reconsideration denied 0520070216 (February 27,
2007)(Award of $150,000 emotional distress damages).

Tyner v. Dept. of Veterans Affairs, EEOC Appeal No. 0720060032 (October
23, 2007)($150,000 for emotional distress damages).

Furch v. Department of Agriculture, EEOC Appeal No. 07A40094 (2005)(
$150,000 for emotional distress).

Kloock v. Postmaster General, 01A31159 (2004)(The Commission increased an
Agency FAD award of $5,000 for emotional distress to $150,000).

VanDesande v. Postmaster General, EEOC Appeal No. 07A40037
(2004)(Administrative Judges award of $200,000 for emotional distress damages to $150,000
because the judge had not accounted for the fact that despite his mental
condition, the complainant was able to train successfully as a
firefighter/EMS and complete his probationary period.)

Estate of Nason v. Postmaster General, EEOC Appeal No. 01A01563
(2001)($150,000 for emotional distress damages).

Franklin v. United States Postal Service, EEOC Appeal No. 07A00025;
01A03882 (January 19, 2001)($150,000 for emotional distress damages).

Booker v. Department of Defense, EEOC Appeal No. 07A00023 (August 10,
2000)(The Commission reduced an Administrative Judge’s award $195,000 for
emotional distress damages to $150,000).

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