2018 Federal Sector Training Conference Remedies and Orders of Relief Kevin McEvoy – Washington Field Office Terrie Brodie – San Francisco District Office August 29, 2018

Remedies Available Remove/expunge records Reinstatement Promotion/selection Back pay Front pay Compensatory damages Attorney fees and costs Training for supervisors/managers Reasonable accommodation Posting Mixed-motive cases: When Agency demonstrates by clear and convincing evidence that it would have taken same action absent discrimination, liability is established, but remedy limited to declaratory relief and attorney fees (where permitted by statute).

Back pay Title VII, ADEA & Rehab Act Back pay is not comp damages so not subject to caps. Complainant must be ready, willing and able to work. Includes leave, health insurance, overtime and retirement. Interest on back pay only under Title VII and Rehab Act. No interest on back pay for ADEA claims or for reprisal claims where underlying EEO claim based on age discrimination. Complainant has a duty to mitigate damages. However, it is Agency’s burden by preponderance of evidence to show Complainant hasn’t mitigated damages. Collateral source rule applies to unemployment benefits although Complainant may need to repay state. Slightly different rule applies to FECA benefits.

Front Pay Title VII, ADEA & Rehab Act Not comp damages so not subject to cap In lieu of reinstatement when No position is available. Future working relationship too antagonistic. Long-term resistance to anti-discrimination efforts by employer. Available only when Complainant is not working but able to work (otherwise comp damages).

Compensatory Damages Title VII & Rehabilitation Act (good faith defense in RA cases) Not available under ADEA Finding under ADEA and Title VII (Determination whether liability rests on interrelated bases or each basis individually) Pecuniary Past pecuniary losses not subject to cap where actual out-of pocket expenses shown. Collateral source rule. Nonpecuniary No presumption of entitlement Appellate decisions to support award Tax liability

Attorney fees Title VII & Rehab Act No attorney fees under ADEA Prevailing market rate As of time of award even if services began years previously. Out of town counsel issues: Reasonable hourly rate based on prevailing market rates in relevant community for attorneys of similar experience in similar cases. Travel costs may not be recovered when Complainant located in area where competent counsel available, but Complainant retains an attorney from another part of the country. Burden is on the Agency to show that a Complainant’s decision to retain out of town counsel was unreasonable. Partially successful – Fees not fractionable when issues intertwined and involve same common core of facts. Costs (transcripts, expert witness fees, etc.)

Non-selection Multiple prevailing Complainants for same position. Cannot award full relief to more than one Complainant. AJ may order that selection process be re-created, or AJ may order a supplemental investigation to determine which Complainant would have been selected.

Responsible Agency Officials AJ may order: Training Relocation of harasser AJ may recommend but not order: Discipline AJ may not order: Apology

Punitive and liquidated damages No punitive damages against government. No ADEA liquidated damages against government.