Compensatory Damages Ordered

In Hollingsworth v. Department of Commerce, 2012 MSPB 12 (Feb. 1, 2012), the Merit Systems Protection Board held that Kimberly Hollingsworth was entitled to compensatory damages after an arbitrator’s decision to the contrary. The arbitrator found that the agency failed to accommodate Hollingsworth’s disability and reversed her removal, but denied Hollingsworth’s requests for compensatory damages and attorney fees without making any specific findings as to these claims. The Board granted Hollingsworth’s request for an administrative judge’s review of the arbitrator’s decision on compensatory damages. In her appeal of the denial of compensatory damages, Hollingsworth declined a hearing and asked for a decision on the written record.

The administrative judge found that Hollingsworth was entitled to receive $6,464.50 in pecuniary damages and $10,000 in nonpecuniary damages. Pecuniary damages are available for out-of-pocket expenses shown to be related to discriminatory conduct. Hollingsworth was awarded as pecuniary damages reimbursement of payments made for health insurance premiums, job search mileage and a tax penalty incurred as a result of her removal. Nonpecuniary damages include compensation related to emotional pain, suffering, inconvenience and mental anguish. As a result of Hollingsworth’s removal, her preexisting medical conditions worsened, and she experienced emotional distress, as well as professional and financial harm, entitling her to nonpecuniary damages.

Per the Board’s instructions, the administrative judge then returned the record to the Board for issuance of a final decision on Hollingsworth’s request for review of the arbitration decision and her request for compensatory damages. The Board upheld the administrative judge’s findings but increased the amount of nonpecuniary damages owed to Hollingsworth from $10,000 to $15,000. In assessing the amount of nonpecuniary damages owed, the Board considered circumstances in factually similar cases to determine that her damage award should be increased. The Board found that the degree, type and duration of the harm alleged was comparable to those asserted in cases awarding nonpecuniary damages in amounts both larger and smaller than the amount recommended by the administrative judge.

The Board determined that $15,000, the amount of nonpecuniary damages awarded in Collington v. U.S. Postal Service, EEOC Appeal No. 01A03359 (Aug. 30, 2002), was a suitable amount to award Hollingsworth. In that case, the respondent’s existing medical condition was the same as Hollingsworth’s, but the emotional harm Collington experienced was of shorter duration and somewhat greater intensity. The Board noted that nonpecuniary damages are not subject to precise quantification in making their determination.