Three words of caution. First, this is a really long post. Please read it carefully and frequently for a better understanding of this topic. Second, understand that this is a very high level summary of damages for discrimination claims. Entire law school classes are spent teaching how to classify and prove damages. Third, understanding damages for discrimination claims requires a lot of research, study, and contemplation. All this post is going to do is debunk some of the myths of damages for discrimination and lay out the major categories of damages that may be available in discrimination claims.
There is a lot of confusion, and a lot of bad information in the community of Federal employees as to what damages are available to them in a claim of discrimination (either before the EEOC or as an affirmative defense in an MSPB Appeal, or in a mixed-case complaint or appeal to the EEOC or MSPB).
For example, most Federal Employees that I talk to believe that all of their damages for discrimination are capped at $300,000. This is not accurate. Many employees do not know that certain categories of damages are not capped.
While the specific amounts of damages that are available or possible in each case typically requires considerable time and evaluation by an attorney and/or consulting or testifying experts, there are some general categories of damages you should be aware of.
The purpose of this post is to provide a general description of those categories with some examples. A word of caution: there is a whole school of legal study that theorizes on types of remedies, whether they are actual or non-pecuniary, compensatory or consequential, taxed or non-taxed, etc. This breakdown is not meant to lay out legal theory and I do not contend that my categorization of damages is legally precise. This breakdown and description is to provide you with an idea of how to consider what damages you might seek in your EEO Complaint or MSPB Appeal (involving discrimination affirmative defenses).
Two rules of thumb to keep in mind:
First, you will need to prove that the remedy you seek is causally connected to the discrimination. For example, the Agency is not liable for all medical costs that you have after a finding of discrimination – they may only be liable for those medical costs that are the result of the discrimination.
Second, you will need to “prove-up” your damages to the Judge, and many times to Agencies in settlement discussions. This is a legal term of art, basically meaning that you submit evidence of the damages, and that the evidence be reliable, trustworthy, and tend to prove the amount of the damages and their connection to the discrimination.
That being said, there are generallyfour categories of damages you should consider in claims of discrimination:
Actual Compensatory Damages (not capped)
Non-Pecuniary Compensatory Damages (capped)
Attorneys’ Fees and Costs
1) Equitable Relief.
Many times, courts cannot fix a certain wrong with money. When this is the case, only “equity” will remedy the wrong. Equity often comes in the form of ordering one party or the other to do something, or take some action that doesn’t involve writing a check.
For example, whenever there is a finding of discrimination, the EEOC typically orders that the Agency publically post a notice of finding of discrimination. The EEOC may order training for managers, or that the Agency train you. The EEOC may order you reinstated to a job, or transferred to another location, or that the Agency explore discipline for its managers.
While not all of these are possible or even common in most cases, they are examples of “equity” – a Court ordering a Party to do something to “right the wrong” that cannot be fixed with payment of money.
2) Financial Remedy – Actual Compensatory Damages
Most times that the MSPB or the EEOC finds discrimination, you will have lost some amount of money out of pocket as a result of the discrimination. These are called Actual Compensatory Damages.
In some situations, you may have lost some amount of money out of your pocket that you will have to pay into the future – these are what I callActual Future Compensatory Damages.
In short, your damages fit into this category if you can produce a piece of paper that quantifies the amount. For example: medical bills for treatment of medical conditions resulting from the discrimination (past and future estimates).
Another example: if you had to relocate because of the discrimination, this might be compensable. The most common example is Back-Pay and Interest, but these are required to be paid under the Civil Rights Act and/or the Backpay Act, so they are not technically actual compensatory damages, although you would do fine to include them in your computations of actual compensatory damages.
TSP Contributions, catch-up contributions, and payment of dividends/interest that would have been earned but for the discrimination are an often-overlooked category of actual compensatory damages, and can often be quite substantial.
If you can produce a receipt for an item of damages, or an estimate from a professional (doctor, accountant, economist, etc) for future costs likely to be incurred because of the discrimination, it is an actual compensatory damage. These damages are NOT capped. In fact, the Agency can be liable for these damages whether they are $1 or $1,000,000.
For this reason, we advise our clients to save every receipt for every cost they incurred because of the discrimination – moving expenses, medical bills, prescription bills, health insurance premiums, life insurance premiums, etc. Save your credit card statements, save your bank account statements and if you can, cancelled checks (or printouts from your bank’s website). These costs add up, and if the Agency is liable, it can be required to pay them.
[One word of caution regarding medical bills – the Agency is liable for the WHOLE cost of medical treatment, regardless of what your co-pay is. That is because the Agency that discriminates isn’t entitled to freeload on your insurer’s willingness to pay benefits for harm caused by a third party. This can be very dangerous to you – if you do not request these damages, in some cases, an insurance company can secure a lien (or may have already secured a lien) against you for the cost of healthcare attributed to an injury caused by a third-party. If an Agency attorney tries to argue that you are only entitled to your co-pay, red flags and sirens should appear in your mind’s eye and mind’s ear. I highly recommend you contact an attorney, as state and federal law can really put you in a bind here with your insurance company. Don’t expect the Agency attorney to know about this either – I have run into more than one government attorney that thinks the Agency can offset medical damages by what a third-party insurance carrier has paid, and this is not at all the case.]
3) Financial Remedy – Non-pecuniary Compensatory Damages
In any discrimination case, you are going to suffer damages that don’t produce a receipt or that are difficult to quantify or fix a dollar amount to. These types of damages are called Non-Pecuniary Compensatory Damages. These are the damages that are capped at $300,000. If you think about it, this is a hard job for an EEOC or MSPB Judge and, I think, maybe the hardest part of a Judge’s job after finding discrimination. After all, how do you put a dollar on things that aren’t measured in dollars?
This is another question for another day, but help your Judge out – give them good, solid, reliable, and consistent evidence on which to base their quantifications. If you ask a Judge for $300,000, and only give him/her your testimony that you have really suffered, you are on a fools’ errand. If, on the other hand, you provide affidavits from co-workers, friends and family, statements from doctors and professional economists, you are giving a good amount of evidence to help that AJ choose the right number.
You should, in any damages pleadings, seek the full amount, and force the Agency to file a Motion to reduce these damages to the cap. This is for a couple of reasons. The only way Agency’s learn (if at all) is through seeing how much of an impact discrimination has, financially. Second, you (or sometimes an AJ) may misclassify a category of damages, and this gives you a foundation to argue for a reclassification on appeal.
What are some examples of Non-Pecuniary Compensatory Damages:
Physical Pain and Suffering – usually requires a doctor to testify that as a result of the medical condition that resulted from the discrimination, you had actual physcial pain. You can provide lay testimony, but it’s not going to be “worth” much as legal evidence.
Emotional Distress – again, usually requires a medical care provider to testify that as a result of the discrimination, you suffered emotional distress. You can and should use lay statements, testimony and affidavits from friends, family members, colleageus, etc., who can testify about the symptoms they observed, but an EEOC or MSPB Judge is going to have a hard time overlooking competent medical testimony that ties all of your lay testimony together.
Loss of Consortium – if the discrimination affected your ability to have sexual relations with your spouse, you will need your spouse to offer testimony on this point. This is a tough one for a lot of folks – giving examples of when, how often, and how the most private part of their marriage was impacted by the discrimination is, in many ways, demeaning and degrading. I have been disgusted by more than one immature Agency attorney that giggles through this testimony, or attempts to marginalize it by being petty or juvenile on cross-examination. However, done correctly, it can be a significant factor in support of larger amounts of non-pecuniary compensatory damages.
Loss of Enjoyment of Life, sometimes called Loss of Society – if the discrimination caused you to withdraw from your normal activities and social circles, you will want to include statements from your friends and family about this.
Loss of Future Earning Capacity – this is a tough one to grasp, and a virtually untapped category of damages in most discrimination cases. Most Agency attorneys aren’t aware that this is a category of damages – they are taught, like many Complainant’s, that Compensatory Damages are for pain/suffering alone. If, as a result of your discrimination, you have suffered lost earning capacity in the future, it can often be quite substantial. This is different from back-pay or front-pay. It is a quantification – most commonly by a Forensics Economist – of how the discriminatory act has limited your ability to increase your wage-earning power throughout the rest of your life. It is based on the idea that everyone has a “Work Life Expectancy”, and that throughout most folks Work Life, they will continue to see larger and larger pay increases. This type of damage will be rare in short suspensions, but could well be substantial in a non-selection for promotion action, or removals, constructive suspensions, etc. You will, invariably, require a Forensic Economist to prove up this category.
There are many other types of non-pecuniary compensatory damages, but the 5 listed above are the most common ones.
4) Attorneys Fees and Costs.
It goes without saying that you might recover your attorneys’ actual hourly rate and costs when there is a finding of dsicrimination. Don’t overlook things like consultation fees (even when you didn’t retain the attorney), deposition transcripts, etc. You will most likely need receipts, and a declaration from the attorney or invoice from a court reporter, but fees and expenses of this type are commonly recoverable.
No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.
If you are a Federal Employee, and would like to speak with an attorney about potential damages available to you in the EEOC Complaint and Hearing process, or if you would like to discuss legal representation with a lawyer before the Equal Employment Opportunity Commission (EEOC), contact the Law Offices of Eric L. Pines, PLLC.