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E E O
COMPENSATORY
DAMAGES AND
CONSEQUENTIAL
DAMAGES
AN
OVERVIEW
| Compensatory Damages in EEO Cases and
MSPB Mixed Cases
A. Legal basis for compensatory
damages. § 102 of the Civil Rights Act of 1991, 105 Stat. 1071, Pub.
L. No. 102-166, 42 U.S.C. § 1981a. For a detailed explanation see
the EEOC’s somewhat dated enforcement guidance on compensatory and punitive
damages which is available on the EEOC’s website www.eeoc.gov/docs/damages.txt.
While the EEOC’s guidance also covers punitive damages such damages are
not available for cases against federal, state and/or local governmental
agencies or entities.
B. What are compensatory damages. Compensatory damages include damages for past pecuniary loss (out of pocket loss), future pecuniary loss, and non-pecuniary loss (emotional harm). These damages are available for cases against federal, state and/or local governmental agencies or entities. Future pecuniary losses are the same expenses if they will continue after the litigation. Non-pecuniary losses. These losses ore for the intangible injuries of emotional harm such as emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. Other such losses could include injury to professional standing, injury to character and reputation, and loss of health. Past pecuniary losses are excluded from the cap. Back pay is excluded from the cap it is not considered to be an element of compensatory damages. Front pay is excluded from the cap for the same reason. Not available for breach of settlement agreement claims. Not available in Rehabilitation Act cases where the Employer made a good faith effort to reasonably accommodate the complainant. Not available for complaints founded on claims the EEO process itself caused damages. Not available for acts of discrimination occurring before November 21, 1991. Discovery is essential to defend these claims. EEOC will allow testimony at hearing even if compensatory damages were never mentioned or claimed prior to hearing. This assumes complainant has not failed to meet the requirements of a pre-hearing order. Don’t assume that a bifurcated hearing on damages means you don’t need initial discovery on compensatory damages. Use discovery to tie down the claims and basis for the claims. Practice strategies must be tailored to the case. Complainants who are represented by counsel.
B. What are consequential damages. The 1994 amendments failed to define consequential damages. It authorized "back pay and related benefits, medical costs incurred, travel damages, and any other reasonable and foreseeable consequential [damages.]" C. Need for a Causal Connection. Damages must be reasonable and foreseeable and must stem from the whistleblowing activity. Retroactive to October 29, 1994. Use discovery to tie down the claims and
basis for the claims.
III. Conclusions. B. Discovery has become even more important. Management may need to hire experts to review evidence, conduct investigations and/or testify. C. Management may need to change its established settlement parameters. ------------------------------- EQUAL EMPLOYMENT OPPORTUNITY COMMISSION WICHITA DISTRICT OFFICE
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RESPONDENT’S INTERROGATORIES AND REQUESTS
INSTRUCTIONS: These are interrogatories and requests for documents. They are issued to you under regulations of the Equal Employment Opportunity Commission, an Agency of the federal government by the Respondent in the above-captioned proceeding. You are required to respond to these discovery requests within 30 days of receipt or a motion to compel discovery will be filed. These requests cover documents and information in your possession and also documents and information not in your possession, which are in your control, such as medical files retained by your physician. These discovery requests are continuing in nature. For each response state the source of the information or document provided. The requested materials must be produced at the Defense Contract Audit Agency, Office of General Counsel, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219. DEFINITIONS: A. "Identify," "identifying," and "identification" when referring to a natural person means to provide an identification sufficient to notice a deposition of such person and shall include his or her full name, business address, business telephone number and each of his or her positions during the applicable period of time covered by any answer referring to such person. B. "Identify," "identifying," and "identification," when used in reference to a writing or document shall include the date on the document, the general nature and description of the document, the name of the person who prepared the document and the name of the person having custody of the document. Interrogatories 1. For each and every allegation of discrimination contained in the complaint which is the subject of this matter which the Complainant claims resulted in his suffering adverse consequences of any type, including but not limited to his claims for pain, suffering, humiliation and medical consultation, state the relief Complainant is requesting, including the amount of any claimed monetary relief and its basis. For the Complainant's allegation that he is suffering from emotional stress as a result of the Respondent’s failure to hire him (ROI at 14) and to the extent that Complainant is asserting a claim in 1, above, that he suffered from pain, suffering and humiliation (including but not limited to emotional, physical or mental stress) or another illness or other medical condition, for each and every such claim: 2. State the correct scientific or medical term identifying the illness or condition. 3. State the date that Complainant was medically diagnosed as having this illness or condition. 4. State the name, official title, and credentials of the individual(s) who diagnosed this illness or condition. 5. State the factual information on which that diagnosis was based and identify the source of that information. 6. State the date(s), length of each examination and the medical and/or clinical means used to examine Complainant relative to this illness or condition. 7. State the date(s), type(s), and result(s) of all scientific, medical and/or psychiatric tests ordered by and /or administered to Complainant relative to this illness or condition. 8. State the date(s) and type(s) of all individual therapy sessions attended by Complainant relative to this illness or condition. 9. Identify the individual(s) who conducted the examinations, tests and individual therapy sessions referenced in 6, 7 and 8, above. 10. Identify the medical, psychiatric and other records created as a result of the examinations, tests and individual therapy sessions referenced in 6, 7 and 8, above. 11. Identify each witness, including expert/medical witnesses, who will be called to testify on the Complainant’s behalf and specify in detail the nature and substance of testimony you expect each witness to give. 12. Identify all documentary records, including
but not limited to receipts, invoices, and billing statements which support
the monetary amount claimed for each adverse consequence claimed in interrogatory
1, above.
Request for the Production of Documents 1. Provide a copy of all records/documents that the Complainant identified in 10 and 12, above. The information and documents sought in Interrogatories 1-12 and Request for Production 1 will help the Agency develop evidence on any damages the Complainant has suffered should it be determined that he has suffered from discrimination of any type. Interrogatories 9 and 11 and Request for Production 1 will also allow the Agency to determine what individuals it wishes to depose and what, if any, documentary evidence and testimony will need to be utilized in the Agency’s own case. The hearing is the sole portion of the administrative process wherein the Agency may compel the Complainant to produce underlying medical records and examine treating physicians. Respectfully submitted,
Paul N. Bley
Hypothetical
You have been assigned a new EEO case and have just received the Acknowledgement Order from the EEOC Administrative Judge. The ROI reveals that the Complainant, a black female, is claiming non-promotion, based on her sex and race, to a GS-13 position that she applied for. The selectee was a white male. Complainant also claims that her first- and second-line supervisors were creating a hostile work environment by calling her "the fat girl." The file reveals that Complainant’s husband, when picking her up from work, would ask anyone around (including both of Complainant’s supervisors) whether "my fat girl" was ready to go home. The ROI also reveals that the Complainant, the two supervisors and co-workers frequently refer to each other by descriptive nicknames. Examples include: "stringbean", "fat boy", "lard butt" and "stud muffin." Complainant’s first-line supervisor is a white female. Complainant’s second-line supervisor (who was the selecting official for the promotion) is a black male. "Stud muffin" was the white male selectee. The formal complaint, written and submitted by Complainant’s attorney requests back pay, front pay, compensatory damages (for humiliation, emotional pain, mental anguish, and loss of enjoyment of life) in the amount of $600,000.00. The complaint also requests $10,000 for medical costs and $500,000.00 in punitive and exemplary damages. Questions: Would you act differently if the complaint did not mention compensatory damages, punitive damages or medical costs? Would this answer depend on whether Complainant has legal representation? What is your best estimate of your agency’s maximum exposure as to total damages? Assign an estimated value for each category of damages. Assuming discovery yields documentation
and information showing Complainant has been treated recently for a number
of serious psychological problems including depression and attachment disorder.
What follow up discovery and actions would you need to take based on this
information? Would you consider changing your tentative witness list?
Number 2
You have been assigned a new MSPB case. The Office of Special Counsel (OSC) has not notified Appellant that it will seek corrective action on Appellant’s behalf. It has now been five months after Appellant’s request for corrective action with the OSC was filed and the OSC acknowledged receipt of the request a week after it was filed. The Appellant was terminated while serving in his initial probationary period. He alleges in his appeal that he was terminated because of his race and sex, and because he engaged in protected whistleblowing activity. Appellant is a white male. The appeal, written and submitted by Appellant’s attorney requests back pay, front pay, compensatory damages (for humiliation, emotional pain, mental anguish, and loss of enjoyment of life) in the amount of $600,000.00. The appeal also requests $10,000 for medical costs and $500,000.00 in punitive and exemplary damages and. Questions: Would you act differently if the Appellant did not mention compensatory damages, punitive damages or medical costs? Would this answer depend on whether Appellant has legal representation? What is your best estimate of your agency’s maximum exposure as to total damages? Assign an estimated value for each category of damages. Assuming discovery yields documentation
and information showing Appellant has been treated recently for a number
of serious psychological problems including depression and attachment disorder.
What follow up discovery and actions would you need to take based on this
information? Would you consider changing your tentative witness list?
Paul N. Bley, Esq.,
Assistant General Counsel, Defense Contract Audit Agency, (703) 767-3219.
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