Hitting the Jackpot: The Commission's Six-Figure Damage Awards.

Mitchell Kastner, Esq.

The Civil Rights Act of 1991 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. The CRA limits the total amount of compensatory damages that may be awarded to 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 persons employed by the discriminating employer. The limit for an employer with more than 500 employees, such as a federal agency is $300,000.  Punitive damages cannot be awarded against the United States. 42 U.S.C. s 1981a (b) (1); York v. Dept. of the Navy, EEOC Appeal No. 01930435 (February 25, 1994).

Compensatory damages may be awarded for the past pecuniary losses, future pecuniary losses, and non-pecuniary losses which are directly or proximately caused by the agency's discriminatory conduct. Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N-915.002 (July 14, 1992), at 8. Pecuniary losses are out-of-pocket expenses that are incurred as a result of the employer's unlawful action, including job-hunting expenses, moving 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, an offer of full relief, or a voluntary settlement. Id. at 8-9. Future pecuniary losses are losses that are likely to occur after resolution of a complaint. Id. at 9. Non-pecuniary losses are emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. Id. This article reviews three  EEOC appellate decisions in which the Commission awarded at least $100,000 to complainants for mental anguish in an effort to identify the factors which the complainants must emphasize in trying their cases before an Administrative Judge from the Equal Employment Opportunity Commission.

The Commission has held compensatory damages award for mental anguish should fully compensate a complainant for the harm caused by the agency's discriminatory action even if the harm is intangible. Chow v. Caldera, EEOC Appeal No. 01981308 (August 5, 1999). There are no precise formulae for determining the amount of damages payable for non-pecuniary losses. Damage awards for non-pecuniary losses that have been assessed by juries and courts have varied substantially from one another. Id. However, an award of compensatory damages for non- pecuniary losses, including emotional harm, should reflect the extent to which the respondent's discriminatory action directly or proximately caused the harm and the extent to which other factors also caused the harm. Id. 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.

In Chow, supra, the Commission’s Office of Federal Operations (OFO), awarded the appellant $100,000 in compensatory damages for mental anguish she suffered (and physical sequelae) when her supervisor harassed her after she spurned his sexual advances. The appellant testified that she began feeling uncomfortable around her supervisor in March 1993 when he began making sexual comments to her. After appellant rejected his advances, the supervisor became hostile to her. According to appellant, she became upset, nervous and began experiencing abdominal pains, chest pains and headaches in May 1993. Additionally, she testified that she experienced difficulty breathing and sleeping due to nightmares, and that she gained weight and began losing her hair. She further testified that she became so depressed that she did not want to socialize with others, she stopped jogging, walking her dog and, eventually, she broke up with her boyfriend. Affidavits from several of appellant’s acquaintances corroborate her contentions.

In August 1993, appellant began seeing a psychologist two to three times a month. The record indicates that appellant was subsequently placed on anti- anxiety medication. She subsequently was prescribed anti-depressant medication. Appellant’s psychologist indicated that she would require 12 to 18 months of additional treatment after September, 1995. Using the lower estimate, the Commission calculated the duration of appellant’s distress would have been 42 months.

In awarding the appellant $100,000 for "the psychological and physical injuries experienced by appellant," OFO emphasized that the size of its award was predicated on the "severity and duration" of appellant’s injuries. On the severity factor, I believe that the physical sequelae of Ms. Chow’s psychological injuries made her mental anguish more believable. For example, Ms. Chow could have hardly faked her hair loss; and provided her psychologist tied in her hair loss to her discrimination-induced anxiety, this physical manifestation of the psychological injury confirms not only the existence of mental anguish but also its severity.

On the duration factor, I believe the Commission was more influenced by Ms. Chow’s recognition of the importance of this factor by adducing her psychologist’s statement on future treatment than by the actual estimate of the length of future treatment. For my survey of the Commission’s cases show that it is the rare complainant indeed who bothers to introduce any evidence on the duration of her/his psychological injury. By contrast, even the neophyte personal injury attorney would request the evaluating physician to give an estimate on the permanency of the injury in his/her report. In many jurisdictions juries are permitted to place a monetary value on each day in a span of time in which the plaintiff is expected to suffer pain. In those jurisdictions, it is critical for the evaluating physician to predict how long the injury will endure; and it is only slightly less critical for the physician to estimate the duration of the injury in jurisdictions that don’t permit per diem calculations. The secret then to maximizing non-pecuniary damages in discrimination cases is to treat them as the routine personal injury cases that they are.

Less novel factors increasing the damage award in Chow were the affidavits Ms. Chow’s friends gave, corroborating her physical and psychological injuries; the prescription tranquilizers and antidepressants she took to control her mental anguish; the interruption of her daily activities, not to mention the termination of her relationship with her boyfriend. But the key to the Chow award was transforming an "intangible" psychic injury to one that was more substantial and therefore believable by introducing expert testimony establishing that her physical symptoms were derived from her mental anguish.

Does that mean that unless a victim of intentional discrimination loses her hair, the Commission will remain skeptical of the existence of her mental anguish, let alone the severity of it? Not always. There are other psychogenic  disorders that the Commission has recognized like loss of weight and gain of weight; stomach problems; and sleeplessness are but a few of them. Still and all, there are more than a few among us who have had episodes of insomnia for no apparent reason; and even more who have inexplicably gained and lost hundreds of pounds. Moreover,  are all intestinal ailments always caused by emotional upset? I think not. By contrast, the mind-body connection between stress and sudden hair loss is unbreakable especially where the loss had not occurred before the discrimination.  

Would a victim of discrimination feign symptoms so severe that her/his physician would order him/her to be hospitalized? It's possible, but not likely; for that reason, hospitalization of the victim is reliable evidence of the acuteness of the victim's mental anguish. Stephanie Brinkley was hospitalized for depression after she was sexually harassed, and the Commission awarded her $110,000 in non-pecuniary compensatory damages.  Brinkley v. Runyon, EEOC Appeal No. 01953977 (January 23, 1998). 

Ms. Brinkley was hired by the Postal Service in 1989 as a Distribution Clerk and was subsequently promoted to Supervisor, Distribution Operations. From the time she was hired, Ms. Brinkley was harassed by a co-worker, whom the Commission labeled simply as Employee A, who was in the habit making lewd comments about women's body parts and bragging about his sexual prowess. Menacingly,  Employee A boasted about how dangerous he was.

 In June 1993, Ms. Brinkley, who then was Employee A's supervisor, told Employee A that his comments had to stop. They did not stop, and in July 1993 she notified the Manager, Distributions Operation about the problems that both she and other female employees had  with Employee A, who in turn ordered Ms. Brinkley, the victim, to counsel Employee A about sexual harassment.  She did and he filed a grievance against her, after which he took sick leave for stress. While convalescing at a VA hospital, Employee A threatened Ms. Brinkley, a fact she learned about on August 11, 1993. That same day

According to Ms. Brinkley, on September 6, 1993, she saw someone who looked like Employee A drive by her house. She left her house and when she returned she discovered that her dogs' collars had been severed. She reported this incident to Manager, Distributions Operation who insinuated to her that she should get a  gun, which she did in November 1993.

 After Employee A returned to work, management for a short-time detailed Ms. Brinkley to a different tour, but then returned her to the tour on which Employee A, with predictable results: he came into her area and glared at her. Although Ms. Brinkley notified Manager, Distributions Operation of the visual threat , he did nothing. 

 In November 1993, Ms. Brinkley began feeling "hopeless and suicidal" and she resumed seeing a psychologist who had been treating her the previous year for marital problems.  By December 1993 Ms. Brinkley was not able to administer the correct dosage of insulin for her diabetic child, as a consequence of which he husband had to return home from South Korea where he was serving in the military.  A psychiatrist who began treating Ms. Brinkley  in late 1993 noted that her symptoms  included depressed mood, insomnia, change in appetite, loss of energy, impaired memory and concentration, hopelessness, and various gastrointestinal problems. The psychiatrist diagnosed Ms. Brinkley as suffering from a Major Depressive Disorder under the Diagnostic and Statistical Manual and he prescribed an antidepressant. The psychiatrist recommended that Ms. Brinkley be hospitalized, but instead she  and her family took a vacation in order to "get away from the situation."

After Ms. Brinkley returned from vacation,  Employee A continued to come into her work area and, on one occasion, he walked by her and said, "In due time," which she reasonably perceived as a threat. Although she again complained about Employee A to her superiors, they told her there was nothing which could be done to Employee A because it was her word against his. (In fact, it was his word against the words of several women workers.) The final straw occurred on  April 14, 1994 while Ms. Brinkley was attending a training class on sexual harassment. Someone may have said something or Ms. Brinkley have read something, but something occurred in the class which caused Ms. Brinkley to have an emotional breakdown, as result of which she was hospitalized for two weeks and never returned to work with the postal service. 

By letter dated August 25, 1994, the psychologist expressed her opinion that Ms. Brinkley should never return work for the Postal Service:

   [Ms. Brinkley] has reported to me that the environment at the [agency] since her acknowledgment of sexual harassment has deteriorated to such a degree that she feels unable to return to the work site ... Currently she is unable to tolerate going to a post office to mail a letter, let alone imagine returning to work. A schedule of desensitization procedures has not as yet been successful in having her enter a postal building

 By letter dated August 31, 1994, the psychiatrist stated that Ms. Brinkley's  "symptom complex continues to readily meet the criteria for a diagnosis of a Major Depressive Disorder, now chronic." The psychiatrist noted that Ms. Brinkley was now on her third antidepressant medication, and that, with the failure to resolve the issues related to her EEO complaint, "her status in fact has deteriorated with an increasingly prominent anxiety component and related avoidance of all settings or situations that serve as a reminder of the Postal Service." The psychiatrist opined that the resolution of Ms. Brinkley's illness and any statement relevant to prognosis "revolves around some definitive and final action on her complaint of harassment." In this regard, the psychiatrist opined that, in the absence of such action, it would be impossible to predict when appellant would be able to return to duty.

 At the EEOC hearing, the Postal Service tried to prove that Ms. Brinkley's injury may have been related to factors other than discrimination. In this regard, the psychiatrist was asked, hypothetically, whether marital problems similar to those experienced by Ms. Brinkley  could contribute to a depressive episode. The psychiatrist answered they could contribute to the episode, but he went on to point out that none of the hypothetical circumstances mentioned would be sufficient to produce a major depressive episode.

Likewise, the psychologist testified that although she initially saw Ms. Brinkley in December 1992 for marital problems, Ms. Brinkley  did not appear depressed and did not suffer any impairment in her basic life skills. The psychologist went on to testify that her treatment of Ms. Brinkley after late 1993  focused "99 percent on what was occurring at her work site."

The amount of space the Commission devoted to this testimony is perplexing in that the Postal Service conceded that but for its discrimination, Ms. Brinkley would not have sustained a psychological injury; after all, the Postal Service did award Ms. Brinkley $35,000 in compensatory damages for pain and suffering, which it could not have done without finding that its discrimination was the proximate cause of the injury. .  Accordingly, it would appear as though the Postal Service was arguing that it was entirely liable for the extent and severity of her injury.  In that regard,  On that argument, the Postal Service had an ally in Ms. Brinkley's psychiatrist who conceded that conditions other than those which the Postal Service had created contributed to Ms. Brinkley's injury.  The Commission cited a string of its decision apparently for the proposition that the existence of pre-existing conditions does not bar a compensatory damage award for psychic pain and suffering, which of course was not the Postal Service's point.  The Commission ought to have placed a dollar amount on Ms. Brinkley's injury from all sources and then apportioned the amount that the Postal Service was liable to pay.  

In awarding Ms. Brinkley $110,000, the Commission explicitly took into account the  on the severity and the duration of the harm Ms. Brinkley suffered, just as it had taken into the same two factors into account in awarding damages in Chow.  On the severity factor, the Commission seemed to pay most attention to the more tangible and verifiable manifestations of Ms. Brinkley's mental anguish.  First on the list was Ms. Brinkley's hospitalization; second was Ms. Brinkley's inability to administer insulin to her diabetic daughter; and third was her permanent disability from working for the Postal Service.  These sequelae were all verified by Ms. Brinkley's family, friends, and caregivers.  Indeed, it is hard to overemphasized just how critical was expert testimony to the Commission's large award; if the Commission were not impressed, it would not have devoted so much space in the decision to recount the testimony of Ms. Brinkley's psychologist and psychiatrist.  On duration, the Commission inexplicably did not make a finding on how long Ms. Brinkley was expected to suffer mental anguish.  In its FAD, the agency agreed to pay Ms. Brinkley future psychotherapy expenses for a year; the Commission extended the period to three years; but the length of psychotherapy is not necessarily co-extensive with the length of the injury.   For it is not unusual for a patient to terminate therapy when there is nothing further that can be done to cure the injury. The most relevant evidence on permanency was the testimony of Ms. Brinkley's psychiatrist that her injuries would last indefinitely until there was "some definitive and final action on her complaint of harassment."

The grandparent all the Commission's six-figure mental anguish awards is Finlay v. Runyon, EEOC Appeal No. 01942985 (April 29, 1997). In a complaint dated February 18, 1992, Ms. Finlay, then a Letter Carrier, PS-05,  alleged that she had been, and continued to be, subjected to hostile work environment sexual harassment. Following investigation of the complaint, Ms. Finlay requested a hearing and the Administrative JudgeJ found that Ms. Finlay had been sexually harassed and recommended, among other relief, that the Postal Service pay her compensatory damages for pain and suffering.   The Postal Service adopted the AJ's finding of discrimination and awarded Ms. Finlay $25,000 in compensatory damages for mental anguish.  Ms. Finlay then appealed to OFO.

In his recommended decision, the AJ found Ms. Finlay's male coworkers had uttered comments of a sexual nature which evidenced a demeaning attitude toward women and utilized sexually graphic language. The AJ further found that the agency failed, even as of the hearing date, to take corrective, curative, and preventive action after being put on notice that sexual harassment was occurring; further, that the agency misrepresented its response to the sexual harassment. 

 Ms. Finlay testified at the hearing that the sexual harassment she suffered made her feel frustrated and angry, undermined her self-esteem, and impaired her ability to function in general. She stated that the harassment made her feel "dirty" and "violated," and caused her to become concerned about the physical safety of herself and other females in the workplace. She stated that she became an "outcast" among her coworkers, and that she had been put out of a job she loved. Her husband testified that after the discrimination began, she was miserable, became upset and cried, and "couldn't stand going to work in the morning." He noted that before the discrimination, his wife loved her job and would request overtime, frequently working 60 hours per week, and that she almost never took sick leave. He stated that before the discrimination, she was very social and active, and that she socialized with her coworkers, who began to ostracize her after the harassment started. He  stated that his wife used to be very happy, but now is "like a fish out of water" because she can no longer work at her job. He stated that she has become lethargic, and has no desire to go anywhere or do anything. He stated that she is angry and "incredibly depressed," and has lost her "wit and charm and creativity." He further noted that she had stopped exercising and has gained weight. He further noted that their marital relationship has become strained; their communication is poor and their sex life has suffered, and they have attempted marriage counseling, without positive results.

Ms. Finlay's treating psychologist testified that he has treated her since April 28, 1992. He stated that she had presented symptoms of recurring nightmares, recurring memories of harassment, depletion, and estrangement in social and intimate relationships. He stated that he initially diagnosed her with "problematic stress disorder," and referred her to  another clinical psychologist for testing and evaluation. The evaluating psychologist made a diagnosis of post-traumatic stress disorder (PTSD), late onset; major depression, single episode; and severe stress. The treating psychologist noted that PTSD is a condition which results from a stressor which is "outside the range of usual human experience." He opined that Ms. Finlay's traumatic reaction to the discriminatory environment would have been less severe if the agency had been responsive to her concerns and supportive of her.

The treating psychologist went on to state that Ms Finlay cried frequently, and displayed physical symptoms including headaches, stomach distress, and fatigue, was estranged from her husband, and has had difficulty concentrating. He stated that she was unable to work, and expressed amazement that she had able to work at all while she was being harassed. He stated that he expected her to remain in therapy for at least another year. He stated that he did not know whether she would be able to return to work for the agency, given that exposure to the same environment which caused her condition could exacerbate her condition.

   In 1991, Ms. Finlay lost her home in a fire. The treating psychologist acknowledged that she had experienced, and was continuing to work through, grief over the loss of her home. But he explicitly distinguished appellant's grief at her loss from her "rage" over her mistreatment in the workplace, and the effects of that mistreatment on her well-being.  In his report, the treating psychologist stated that he considered  Ms. Finlay to be "extremely credible."  Likewise, the evaluating psychologist noted in his report that the results of the tests he conducted  were highly consistent with Ms. Finlay reported history and symptoms and, in essence, that she was not "faking" her condition.

In awarding Ms. Finlay $100,000 for mental anguish, the Commission stated that it taken into account "the severity and duration of the harm done to appellant, in that appellant has sustained a severe psychological injury which has thus far affected her for some four years, and is expected to affect her for an indeterminate amount of time to come." 

In Chow, the the irrefutable evidence of severe psychological injury was the hair loss; in Brinkley it was the hospitalization; and in Finlay, I submit, it was the report from the OWCP-retained psychiatrist. A medical expert retained by a government disability agency is more objective than one retained by an insurance company, but not by much. OWCP does not have to order a claimant to undergo an independent medical examination; it could pay the claim on the basis of the medical information submitted. Accordingly, when OWCP orders an independent medical examination, it sends the message to the examiner that OWCP has some doubts about the nature and extent of the injury; and if the examiner wants to keep receiving referrals...you get the picture.  There is no doubt but that the report from the psychiatrist went along way to dispel any doubts that the Commission might have about the existence of Ms. Finlay's injury, its severity, and its duration.  As proof that the Commission harbored these doubts, OFO took pains to emphasize that Ms. Finlay's evaluating psychologist had a made a point of stating that she was not faking her injuries--a conclusion corroborated by the treating psychologist, who found her "extremely credible." 

On the duration criterion, the question I raise speciously is whether a complainant must have suffered for at least four years by the case is heard before the Commission will render a six-figure damage award? What I do not suggest speciously is that complainant better have an expert give an opinion about duration and permanency of the injury, lest complainant receive ten cents on the dollar.  At all costs, the complainant wants to prevent the AJ from thinking, "She'll get over it."

In any personal injury case, the nature and extent of the injury and the duration of the injury are the cornerstones on which any substantial award or settlement is based; the same holds true for a discrimination case before EEOC in which the employee is seeking to be compensated for mental anguish.

The opinions expressed in the articles found in Federal Workplace Law Update are those of the attorneys and law firms submitting those articles. The materials and information found on this Web site provide a broad overview of many legal areas but are not intended as legal advice. If such advice or service is required, a licensed practitioner should be consulted.