**How "Exclusive" is "Exclusive"?**

**The Federal Employees' Compensation Act and**

**Compensatory Damages in Discrimination Cases**

[MAJOR WILLIAM R. KRAUS]{.smallcaps}**\***

# I. Introduction

The Federal Tort Claims Act[^1] (hereinafter FTCA) was created to be a
limited waiver of the federal government's sovereign immunity[^2] from
claims by individuals. Federal employees face an additional limitation
under the Federal Employees' Compensation Act[^3] (hereinafter FECA).
The FECA, which created the U. S. Government's workmen's compensation
program, is the exclusive remedy for workplace injuries suffered by
federal sector employees. Over time, the Secretary of Labor, who has
decisional authority on the scope of the FECA, has determined that the
FECA covers emotional injuries and, if caused by harassment or
discrimination, the program can compensate such injuries.

However, it is not an uncommon practice for federal employees to file
FECA claims for injuries arising from alleged discriminatory practices
and pursue (simultaneously or sequentially) a claim for compensation for
the same injuries in a discrimination case under the FTCA. In these
cases, the government has consistently alleged that such a claim is
barred because the FECA is the exclusive remedy for workplace injuries.
In response, federal courts have engaged in "judicial engineering" by
ruling that the FECA either (1) does not cover emotional injuries and
(2) even if it did cover such harms, it is not the exclusive remedy for
harms suffered due to discrimination. The end result is FECA is only
exclusive when the courts say it is. This is clearly not the intent of
the law, and has resulted in cases where the same issues are litigated
several times, each time being judged by a different standard in a
different forum.

This article discusses the evolution of the law in this area and
explores possible alternatives to the present system.

# II. The Federal Tort Claims Act

The Federal Tort Claims Act provides a limited waiver of the United
States' sovereign immunity in cases of

> injury or loss of property or personal injury caused by the negligent
> or wrongful act or commission of any employee . . . while acting
> within the scope of his office or employment, under circumstances
> where the United States, if a private person, would be liable to the
> claimant in accordance with the law of the place where the act or
> omission occurred.[^4]

As a prerequisite to suit under the FTCA, a claimant must first present
the claim to the appropriate federal agency and have it formally denied
or have the agency fail to act on the claim within the statutory time
frame.[^5] The statute further provides that the

> acceptance by the claimant of any such award, compromise, or
> settlement shall be final and conclusive on the claimant, and shall
> constitute a complete release of any claim against the United States
> and against the employee of the government whose act or omission gave
> rise to the claim, by reason of the same subject matter.[^6]

Even though a waiver of governmental liability for tortious injuries,
the FTCA has restrictions. Among the specific exemptions are: (1) Any
claim based upon an act or omission of an employee in the execution of
their statutory or regulatory duties, or based upon the exercise or
performance (or failure to exercise or perform) of a discretionary
function or duty; (2) Any claim for which a remedy is provided by
statute under admiralty; (3) Any claim arising out of assault, battery,
false imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or interference with
contract (law enforcement officers excluded); (4) Any claims from
combatant activities during time of war; and (5) Any claim arising in a
foreign country. [^7] Within these parameters, the FTCA provides the
exclusive means for pursuing tort claims against the federal government.
Federal employees face a further limitation on the waiver of sovereign
immunity from the FECA.

# The Federal Employees' Compensation Act

# A. Overview 

The Federal Employees' Compensation Act is designed to address "the need
of compensating federal employees who become injured or disabled in the
course of their employment."[^8] The Act establishes a comprehensive
program to address these claims.

In 1949, Congress revised the Act to provide greater benefits and to
address the large number of claims being filed under the Federal Tort
Claims Act. The need for this revision was clearly explained in the
Senate Report:

> Some 80,000 of our federal men and women workers suffer accidents
> every year. In about 11,000 of these cases benefits for disability or
> death are payable. The present act affords only illusory security for
> most workers or their families. The present bill is therefore of vital
> importance to all federal workers, not only to those injured, but to
> those who face the possibility of injury in their employments
> involving varying hazards. With the knowledge that if injured or
> killed, they or their families will have a measure of security which
> will not require solicitation of charity or outside help of friends,
> the employees of our Government will have the support of a strong
> moral factor.

**. . . .**

The savings to the Government by the elimination of costly and needless
claims and litigation under the Federal Tort Claims Act, Suits in
Admiralty Act, Public Vessels Act, and the like, which presently weigh
heavily upon the Government and involve considerable expense to defend
will be eliminated, offsetting in substantial part the increased cost in
compensation benefits.[^9]

*1. The Procedural Structure of the FECA*

Procedurally, the FECA requires employees,[^10] or eligible
beneficiaries,[^11] to submit a claim following a certain format[^12]
and time period,[^13] and provides for the review and award on the
claim.[^14] Of particular note is that the agency cannot request a
hearing, question the claimant, or make argument.[^15] If the agency
requests a copy of the transcript, it is allowed fifteen days to submit
comments or additional materials for inclusion in the record, which the
claimant is allowed to review and comment upon.[^16] In short, the FECA
was designed to be a non-adversarial process for limited recovery which
would be readily accessible to federal employees.

The Act specifies the conditions under which compensation will be
paid[^17] and the types of benefits available.[^18] It details the
levels of disability and the compensation schedules for each type of
injury,[^19] as well as the types of compensation payable in the event
of the death of the employee.[^20] The Act also specifically provides
for the retention of the employee's rights under the Civil Service
system.[^21] This particular provision states that if an individual
resumes employment with the federal government, "the entire time during
which the employee was receiving compensation under this chapter shall
be credited to the employee for the purposes of within-grade step
increases, retention purposes, and other rights and benefits based upon
length of service."[^22] If an employee can return to work, the Act
provides specific terms for either returning to an earlier position or
to a reasonable alternative position.[^23]

*2. Defining "Injury"*

The FECA defines an "injury" as including injury by accident, a disease
proximately caused by the employment, damage to or destruction of
medical braces, artificial limbs, and other prosthetic devices; and the
lost time to repair or replace such devices.[^24] Over the course of
time, the Secretary of Labor, through the Employees Compensation Appeal
Board (hereinafter ECAB), has viewed the term "injury" to include a
variety of physical and emotional conditions, such as post traumatic
stress disorder caused by sexual harassment;[^25] intentional infliction
of emotional distress brought on by harassment;[^26] and chronic
depression resulting from sexual harassment.[^27]

3.  *Judicial Review*

Judicial review of any decision to grant or deny compensation under the
FECA is specifically precluded.[^28] The statute provides:

> The action of the Secretary or his designee in allowing or denying a
> payment under this subchapter is
>
> \(1\) final and conclusive for all purposes and with respect to all
> questions of law and fact; and
>
> \(2\) not subject to review by another official of the United States
> or by a court by mandamus or otherwise.[^29]

This provision has helped the FECA maintain itself as a non-adversarial
process focused on providing a prompt remedy for workplace injuries.
Addressing this aspect of the FECA, as it relates to discrimination
claims, the courts have repeatedly bumped up against this provision,
[^30] as will be seen later in this article.

*4. The FECA as an Exclusive Remedy*

Of specific importance to this discussion is that the FECA limits
governmental liability by providing the exclusive means of recovery for
federal employees. The Act provides:

> The liability of the United States or an instrumentality thereof under
> this subchapter or any extension thereof with respect to the injury or
> death of an employee is exclusive and instead of all other liability
> of the United States or the instrumentality to the employee, his legal
> representative . . . and any other person otherwise entitled to
> recover damages from the United States or the instrumentality because
> of the injury or death in a direct judicial proceeding in a civil
> action, or in admiralty, or by an administrative or judicial
> proceeding under a workmen's compensation statute or under a federal
> tort liability statute.[^31]

The United States Senate, in enacting the exclusivity provision, gave
the following rationale:

> Workmen's compensation laws, in general, specify that the remedy
> therein provided shall be the exclusive remedy. The basic theory
> supporting all workmen's compensation legislation is that the remedy
> afforded is a substitute for the employee's (or dependent's) former
> remedy at law for damages against the employer. With the creation of
> corporate instrumentalities of Government and with the enactment of
> various statutes authorizing suits against the United States for tort,
> new problems have arisen. Such statutes as the Suits in Admiralty Act,
> the Public Vessels Act, the Federal Tort Claims Act and the like,
> authorize in general terms the bringing of civil actions for damages
> against the United States. The inadequacy of the benefits under the
> Employees' Compensation Act has tended to cause federal employees to
> seek relief under these general statutes. Similarly, corporate
> instrumentalities created by the Congress among their powers are
> authorized to sue and be sued, and this, in turn, has resulted in
> filing of suits by employees against such instrumentalities based upon
> accidents in employment.
>
> This situation has been of considerable concern to all Government
> Agencies and especially to the corporate instrumentalities. Since the
> proposed remedy would afford employees and their dependents a planned
> and substantial protection, to permit other remedies by civil action
> or suits would not only be unnecessary, but would in general be
> uneconomical, from the standpoint of both the beneficiaries and the
> Government.[^32]

The Supreme Court has repeatedly addressed the exclusivity provision. As
the Court noted in *Weyerhaeuser S.S. Co. v. United States*,[^33] the

> concern of the Congress was to provide federal employees a swift,
> economical, and assured right of compensation for injuries arising out
> of the employment relationship, regardless of the negligence of the
> employee or his fellow servants, or the lack of fault on the part of
> the United States. The purpose of section 7(b) \[now section
> 8116(c)\], added in 1949, was to establish that, between the
> government on the one hand, and its employees and their
> representatives or dependents on the other, the statutory remedy was
> to be exclusive.[^34]

In *Lockheed Aircraft Corp. v. United States,*[^35] the Court stated:

> In enacting this provision, Congress adopted the principle
> compromise--the "*quid pro quo*"--commonly found in worker's
> compensation legislation: employees are guaranteed the right to
> receive immediate, fixed benefits, regardless of fault and without the
> need for litigation, but in return they lose the right to sue the
> government.[^36]

The concept that employees covered by FECA for injuries suffered on the
job lose their right to pursue suits under the FTCA has been uniformly
noted by the circuit and district courts.[^37] As the court in *Gill v.
United States*[^38] stated so concisely, "\[t\]he heart of the system is
an implicit bargain: employees are granted surer and more immediate
relief in return for foregoing more expensive awards outside the
system."[^39]

As discussed earlier, Congress had very clear goals in pursuing this
course. By ensuring adequate compensation of injuries, it sought to
preclude the necessity of reaching beyond the FECA's coverage, and at
the same time, sought to model the FECA after the various state
workmen's compensation laws. What is imminently clear is congressional
intent to make the FECA the *exclusive remedy* for workplace injuries in
the federal sector.

# B. Reviewing Compensation Claims

In assessing federal workmen's compensation claims, the standard used by
the ECAB and the Office of Workmen's' Compensation Programs (hereinafter
OWCP) is, "whether the actual conditions of employment are the proximate
cause of a disability."[^40] One of the clearest explanations of the
causation standard can be found in *In the Matter of Joseph S. Heller
and Department of the Air Force, San Antonio Air Materiel Area, Kelly
Air Force Base, Texas.*[^41] In *Heller*, the claimant sought
compensation for a disabling condition which he claimed was the result
of mistreatment by his supervisors and coworkers; working in an unheated
building; and religious discrimination.[^42] The appeals board stated
that, "\[i\]t is the appellant's burden to prove, by reliable, probative
and substantial evidence that the conditions of employment were
competent[^43] to and did cause or materially aggravate the physical or
other impairments giving rise to his disability."[^44] The mere
concurrence of a disability within a period of employment is not
sufficient to make such disability compensible.[^45]

The causation requirement has been applied with equal force in cases of
emotional injury. *In the Matter of Hurley Furr and Navy Department,
U.S. Naval Shipyard, Charleston, S.C.*,[^46] the claimant sought
compensation for an anxiety neurosis, which he claimed was the result of
suddenly losing the lights while he was working inside a fuel oil tank.
The appeals board stated that the "fact that the existing disability . .
. is psychogenic in nature does not defeat the claim, provided such
disability is in fact the proximate result of the employment
incident."[^47]

In 1976, the seminal case on causation and emotional injuries was
decided by the ECAB--*In the Matter of Lillian Cutler and Department of
Labor, Office of Workmen's Compensation Programs, Chicago, Ill.*[^48]
Ms. Cutler, a GS-7, applied for two vacancies that were to be filled at
either GS-9 or GS-11, but she was not selected for either. She found out
about the selection decision through a notice that was released in her
office.[^49] The issue presented to the ECAB was "whether appellant's
disability, caused by her disappointment in not receiving a promotion
for which she had applied, constituted an injury sustained while in the
performance of duty."[^50] Appellant claimed she suffered a "shock to
her system" when she found out about the non-selection decision by
receiving an office memo without being personally told. The disability,
an anxiety neurosis and temporary elevation in blood pressure, allegedly
resulted from her reaction to not being selected for promotion.[^51]
During her hearing, appellant also alleged racial, religious, and
personal prejudice were involved in the non-selection decision.[^52]

Ms. Cutler's claim was denied. In its decision, the Board set forth the
limits for recovery in emotional injury claims under the FECA,
addressing first the standard for what is to be considered compensible:

> Workers' compensation law does not apply to each and every injury or
> illness that is somehow related to an employee's employment. As
> pointed out in the recent *Compendium on Workmen's Compensation,*
> issued by the National Commission on State Workmen's' Compensation
> Laws appointed by the President, "Workmen's compensation is presently
> intended to provide coverage for certain work-related conditions, not
> all of the workers' health problems."
>
> There are situations where an injury or illness has some connection
> with the employment but nevertheless does not come within the concept
> or coverage of workers' compensation. . . .
>
> There are injuries that occur in the course of the employment and have
> some kind of causal connection with it but nevertheless are not
> covered because they are found not to have arisen out of the
>
> employment. . . .
>
> Where an employee experiences emotional stress in carrying out his
> employment duties, or has fear and anxiety regarding his ability to
> carry out his duties, and the medical evidence established that the
> disability resulted from his emotional reaction to such situation, the
> disability is generally regarded as due to an injury arising out of
> and in the course of the employment. [^53]

The Board then turned to what did not qualify as compensible:

> In contrast, the Board has held that "a disabling condition resulting
> from an employees' feeling of job insecurity *per se* is not
> sufficient to constitute 'a personal injury sustained while in the
> performance of duty' within the meaning of . . . the Federal
> Employees' Compensation Act." Likewise, "assuming that appellant was
> unhappy doing inside work, desired a different job, brooded over the
> failure to give him the kind of work he desired for which the
> establishment considered him unsuitable, and as a result of such
> brooding appellant became emotionally disturbed, causing an out-break
> of dermatitis, this does not establish 'a personal injury sustained
> while in the performance of duty' within the meaning of . . . the
> Federal Employees' Compensation Act."[^54]

The *Cutler* case clearly set forth the limits of the FECA in cases
concerning emotional injuries. Unlike physical injuries, where it is
usually easy to pinpoint causation, emotional injuries evade such
precise identification. Having established that such injuries are
compensible, and under what circumstances such claims will be
compensated, the ECAB began to address emotional injuries based upon
discrimination and harassment.

# C. Discrimination Based Injuries under the FECA

The ECAB standards for assessing claims of emotional injuries arising
from harassment have evolved over time. *In the Matter of Stanley Smith,
O.D. and Department of the Navy, Philadelphia Naval Shipyard*,[^55] the
claimant alleged his hypertension was the result of "harassment from
supervisors over a prolonged period of time."[^56] The ECAB stated that
the issue in such cases was "not whether, in fact, there was harassment
but whether the employee's disabling emotional reaction was precipitated
or aggravated by the conditions of employment."[^57]

Five years later, the claimant in the case *In the Matter of Anna J.
Backman and Department of the Navy, Puget Sound Naval Shipyard*[^58]
alleged that her emotional distress was "caused by 'discrimination,
\[and\] retaliation in the form of harassment for my attempts to resolve
my complaints of discrimination.'"[^59] The OWCP rejected the claim,
ruling that the evidence failed to show that the disability was the
result of her emotional reaction to her regular or specially assigned
work duties, or to the requirements imposed by the employment; and that
the disability was not due to, aggravated, precipitated, accelerated, or
proximately caused by conditions of her employment.[^60] Appellant
sought reconsideration, and submitted the findings to an equal
employment opportunity complaints examiner. The examiner's findings
included resentment of the claimant by other employees; that she was the
victim of a sexually explicit practical joke early in her career; and
that she was regarded as a disruptive force because she was a female in
an otherwise all-male workforce. The OWCP advised the claimant that the
issue was "not whether appellant was discriminated against but whether
there was a causal relation between the disability claimed and the
conditions of employment."[^61]

The case then went to the ECAB which found that it was "not in a posture
for decision," citing both *Cutler* and *Smith*.[^62] The ECAB ruled
that the OWCP needed to make detailed findings of fact with respect to
the claimant's allegations. The issue was which findings dealt with
conditions of regular or specifically assigned work duties, and whether
the OWCP should take account of the findings of the EEO complaint
examiner. The ECAB held this whole package should be given to an
impartial medical specialist to determine if "appellant's emotional
condition was precipitated or aggravated by the conditions of her
employment, and if so, whether the condition caused disability for work
during the period in issue."[^63]

In *In the Matter of Joseph R. Wilson and Department of Transportation,
Federal Aviation Administration, Air Traffic Control Center*,[^64] the
claimant alleged that his "'acute anxiety, irritability, and depression'
were caused by 'racial harassment.'"[^65] In support of the claim, he
submitted a statement describing general pressures on the job, and
specifically alleged he was referred to by a racial slur and was
otherwise targeted by his supervisors and coworkers. The OWCP rejected
the claim, stating the factual and medical evidence "failed to establish
that he had sustained any disability in the performance of duty."[^66]

Affirming the OWCP decision, the ECAB reiterated the position that, in
cases of emotional injury caused by harassment or discrimination, "the
issue, generally speaking, is not whether in fact there was harassment
or discrimination, but whether the disabling emotional reaction was
precipitated or aggravated by conditions of employment."[^67] Stating
that the claimant bore the burden to present "reliable, probative and
substantial medical evidence"[^68] establishing the causal relationship
between the conditions of employment and the claimed injury, the ECAB
held the claimant had not carried his burden.[^69]

Prior to the *Wilson* case, the ECAB had remained true to its role as a
non-adversarial forum for review of workmen's compensation claims. The
only factor relevant to them was the connection between the employee's
duties and conditions of employment, and the injury claimed. This all
changed with the case of *Pamela Rice and U.S. Postal Serv.*[^70] In
*Rice,* the claimant filed for compensation for acute bowel dysfunction.
Claimant alleged that she was harassed by her co-workers because of her
condition. Among the evidence submitted were medical records that showed
the claimant was diagnosed as having "a schizophrenic reaction with
paranoid features."[^71] The OWCP denied the claim, finding that
claimant had not met her burden to show that the condition was causally
related to her employment. The hearing representative also noted that
the claim of harassment was moot because, even if it occurred, it did
not constitute a factor of employment for compensation purposes under
the FECA.[^72]

On appeal, the ECAB found that the claimant had not met her burden
regarding either the physical or mental condition relying on the
harassment and discrimination standards set out in *Cutler* and *Smith.*
The ECAB then addressed the issue of harassment by stating:

> An Office hearing representative in an October 14, 1986 decision
> improperly interpreted this principle as meaning that harassment, even
> if it occurred, did not constitute a factor of employment[^73] for
> purposes of compensation under the Act. Actions of an employee's
> supervisor which the employee characterizes as harassment can
> constitute factors of employment giving rise to coverage under the
> Act, and the Board's function in such cases is to determine whether
> the evidence establishes that the supervisor's actions contributed to
> the employee's disabling reaction.[^74]

This position was further clarified in *Kathleen Walker and Department
of the Air Force,*[^75] where the claimant alleged she had contracted a
cardiac and emotional condition caused by her work environment that was
aggravated by harassment from her supervisors. Affirming the OWCP's
decision to deny benefits, the ECAB took the opportunity to clarify its
position in *Rice*, explaining:

> To the extent that disputes and incidents alleged as constituting
> harassment by co-workers and supervisors are established as occurring
> and arising from appellant's performance of her regular duties, these
> could constitute employment factors.
>
> The Board notes, however, that unfounded perceptions of harassment . .
> . do not constitute employment factors. Consequently, these are not
> considered to be employment factors.[^76]

In 1992, the issue of evidence of harassment or discrimination was
"clarified" again in *In the Matter of William P. George and U.S. Postal
Serv., Post Office, Anniston, Ala.*[^77] In *George*, the claimant
alleged that job-related stress and harassment had resulted in
depression and anxiety. In affirming the decision to deny the claim, the
ECAB stated that, "for harassment or discrimination to give rise to a
compensible disability under the Act, *there must be evidence that
harassment or discrimination did in fact occur.* Mere perceptions of
harassment or discrimination are not compensible under the Act."[^78]

This "clarification" altered the FECA's historic role. Originally, the
FECA had provided a non-adversarial process designed to provide
"immediate, fixed benefits, regardless of fault,"[^79] with the focus on
the nexus between injury and workplace factors. This role was now
changed to one in which the FECA imposed on claimants the duty to not
only show a disability and a causal connection to their employment, but
also actual discrimination or harassment, without any standard upon
which to judge that evidence. Further, this change very likely provoked
more agency responses in an attempt to avoid any finding of
discriminatory conduct for since FECA actions are often filed
concurrently with equal employment opportunity claims.

In *In the Matter of Abe E. Scott and Department of the Navy, Long Beach
Naval Shipyard, Long Beach, Cal.,*[^80] the ECAB gave a concrete example
of conduct that might qualify for coverage under the Act. The claimant
sought coverage for a stress condition. He alleged the condition was
caused by, among other job-related factors,

> racial discrimination by the foreman; use of racial epithets by the
> foreman; use of such racial epithets as "ape," 'brownie," and "nigger"
> by coworkers (who put pictures of apes on his locker); the foreman's
> referring to blacks as "you people" and saying that "you people ought
> to be satisfied with being allowed to work in the field at all," and
> attempts to provoke a confrontation with the claimant.[^81]

Finding insufficient evidence had been presented, and that use of the
term "apes" was applied to all apprentices, regardless of race or ethnic
origin, the OWCP denied the claim [^82]

On appeal, the ECAB found the case was "not in a posture for decision,"
explaining that "error or abuse by the employing establishment in an
administrative or personnel matter, or evidence that the employing
establishment acted unreasonably in the administration of a personnel
matter, may afford coverage."[^83] The Board went on to state two
instances where the claimant had submitted evidence of error or abuse.
The first was when a supervisor attempted to provoke a fight with
claimant. The second was in the use of the term "ape."[^84] In finding
that this conduct might be compensible, the ECAB wrote that, "remarks
which are established by the evidence of record need not be racial in
nature for coverage to apply. Under the circumstances of this case, the
Board finds the use of the epithet "apes" was derogatory and constituted
harassment."[^85] In making this finding, the Board sent the case back
to OWCP to have a physician determine what connection, if any, existed
between these facts and the claimant's condition.[^86]

The cases discussed above show the evolution of FECA coverage as it was
extended beyond simple physical disability cases into the realm of
emotional disorders. As a result of this process, it began to be applied
to claims of emotional harm based upon harassment and discrimination.
Initially, the ECAB attempted to ignore the issue of discrimination or
harassment, and tried to focus solely on seeking a causal relationship
between the alleged condition and a condition of employment. Later, it
began to require proof of harassment or discrimination to establish a
basis for coverage. Strangely enough, these changes occurred without
issuance of any clear standards for analyzing such claims, and despite
the fact that, in an area as rich in disputed facts and issues as
discrimination claims, these changes were applied to a process designed
to be non-adversarial.

# IV. Title VII of the Civil Rights Act of 1964

The Civil Rights Act of 1964,[^87] makes it illegal to discriminate
against any person in any matter affecting hiring; terms or conditions
of employment; efforts to seek employment; membership in a labor
organization; or participation in a training program.[^88] This, along
with the creation of the Equal Employment Opportunity Commission,[^89]
(hereinafter EEOC) form the contents of what is now commonly known as
Title VII. In enacting Title VII, the House of Representatives stated:

> The purpose of this title is to eliminate, through the utilization of
> formal and informal remedial procedures, discrimination in employment
> based on race, color, religion, or national origin. The title
> authorizes the establishment of a Federal Equal Employment Opportunity
> Commission and delegates to it the primary responsibility for
> preventing and eliminating unlawful employment practices as defined
> under the title.[^90]
>
> **A. Procedural Structure and Standards of Proof.**

The procedural steps for a federal employee to pursue a complaint before
the EEOC are set out in the Code of Federal Regulations.[^91]
Essentially, the employee must first file an administrative complaint
with the respective agency.[^92] Following the agency's investigation,
if no settlement is reached, the complainant may request an
administrative hearing.[^93] Once the agency head has made a final
decision (termed a Final Agency Decision), the complainant has the
option of filing an appeal with the EEOC or filing suit in federal
district court.[^94]

Title VII sets the standards for proving different types of employment
discrimination.[^95] In cases of allegations of impermissible
consideration of race, color, religion, sex or national origin in
employment practices, the complainant must demonstrate that a prohibited
factor (i.e. race, sex, age) "was a motivating factor for any employment
practice, even though other factors motivated the practice."[^96] The
standard of proof in these cases is proof by preponderance of the
evidence. There are two types of theories of employment discrimination a
claimant may pursue: disparate-treatment and disparate impact.[^97] Both
can be divided into single-motive or mixed-motive cases. The Supreme
Court first recognized the single motive disparate treatment concept in
*McDonnell Douglas Corp. v. Green.*[^98] The Court later recognized that
a company may have acted for both legal and illegal reasons, introducing
the mixed motive concept in *Price Waterhouse v. Hopkins.*[^99]

Cases of individual disparate-treatment occur when the claimant alleges
the employer treated him or her less favorably than others due to his
race,[^100] religion, color, national origin or sex. [^101] In such
cases the complainant must prove, (a) that a pattern of harassment or
intimidation exists; (b) that the employer knew or should have known of
the illegal conduct; and (c) the employer failed to take reasonable
steps to cure the conduct.[^102] In order for the action to be
harassment, it must be shown that it was "sufficiently pervasive so as
to alter the conditions of the victim's employment and creates a hostile
work environment."[^103]

The second type of discrimination claim is based on "disparate impact,"
where it is alleged that an employer's policy or practice resulted in
the complainant being treated differently from others because of race,
color, religion, sex or national origin.[^104] The analytical model for
disparate impact and for age discrimination claims[^105] originated with
the disparate treatment analysis in *McDonnell Douglas.* The Court
originally established a three step model, which time and precedent have
turned into a four step model for mixed-motive cases.[^106]

The *McDonnell Douglas* model first requires the complainant to
establish a *prima facia* case. This requires proof that the complainant
is (a) a member of a protected class under Title VII; (b) that he/she
applied for, and was qualified for, a position for which applicants were
sought; (c) that he or she was not selected; and (d) that applicants are
still being sought, or the selectee is not in the same group as the
complainant. Second, the employer must prove that the motives for its
decisions were non-discriminatory. Third, the complainant seeks to prove
that the employer's proffered reason is merely a pretext to mask its
actual, discriminatory reason.[^107] Finally, the employer seeks to show
that, even if a discriminatory motive was present, it would have taken
the same action for other, non-discriminatory reasons. [^108]

# Remedies under Title VII

In redressing the effects of discrimination, the powers provided under
Title VII are extensive. These powers include enjoining the employer
from engaging in unlawful employment practices, and ordering "such
affirmative action as may be appropriate, which may include but is not
limited to, reinstatement or hiring employees, with or without backpay,
or any other equitable relief deemed appropriate."[^109]

The EEOC was not given the power to award compensatory damages to
successful plaintiffs until the passage of the Civil Rights Act of
1991.[^110] This Act provided for an award of up to \$300,000 in cases
against the federal government, filed under either Title VII[^111] or
the Rehabilitation Act of 1973.[^112] The damage award is meant to
compensate for "future pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other
nonpecuniary losses."[^113] Punitive damages are available, but may not
be imposed against the United States.[^114] Addressing the definition of
"compensatory damages," the EEOC has viewed them as damages to
"compensate" a complainant for losses or suffering inflicted due to
intentional discriminatory conduct.[^115] In explaining its reasons for
providing for compensatory damages, the House of Representatives Report
stated:

> Victims of *intentional* discrimination often endure terrible
> humiliation, pain, and suffering while on the job. This distress often
> manifests itself in emotional disorders and medical problems, which in
> turn cause victims of discrimination to suffer out-of-pocket expenses
> and other economic losses as a result of the discrimination. That is
> the basis for the extension of monetary remedies for intentional
> discrimination to cover women and minorities. The Committee intends to
> confirm that the principle of anti-discrimination is as important as
> the principle that prohibits assaults, batteries and other intentional
> injuries to people.[^116]

Explaining its decision in more detail, the House Report focused on the
desire to make victims of discrimination whole for "injury to their
careers, mental and emotional health, and self-respect and
dignity."[^117] The report further noted that, prior to the enactment of
the legislation, the out-of-pocket expenses suffered were not
compensible through equitable remedies. "The limitation of relief under
Title VII to equitable remedies often means that victims of intentional
discrimination may not recover for the very real effects of
discrimination."[^118]

In the report's six page discussion of the issue, the FECA and its
provisions are not mentioned once, either as being applicable or
inapplicable. The clear focus of the report, and the legislation, was on
addressing the inequity of forms of compensation available based upon
the type of discrimination claimed. The Congress was not focusing on
"alternative means" of addressing such a claim, although the report
recognizes and encourages alternative means of dispute resolution.[^119]
It is curious that Congress did not consider the FECA as a partial
source of available compensation, since the ECAB had ruled that
emotional harms were compensible under the FECA as far back as
1961,[^120] and that harassment and discrimination could form a possible
basis for work-related injury as early as 1987.[^121]

# C. The EEOC's Compensatory Damages Standard

Having been vested with the power to grant compensatory damages to
federal employees, the EEOC was now faced with analyzing when
compensatory damages were appropriate and how much to award without
benefit of specific standards of proof. In *Roundtree v. Department of
Agriculture,*[^122] the EEOC started laying the ground work for a set of
standards by ruling that compensatory damages were awardable for past
and future pecuniary losses, and for non-pecuniary losses which are
directly or proximately caused by the discriminatory conduct.
*Roundtree* also defined pecuniary and non-pecuniary losses, stated that
the complainant had a duty to mitigate any loss, and further determined
that pain and suffering were compensible.[^123] In *Jackson v. United
States Postal Serv.,* the EEOC placed the duty to prove damages on the
complainant, "by objective evidence."[^124] What qualifies as "objective
evidence" was explained in *Carle v. Department of the Navy*[^125] which
stated it includes such things as statements from witnesses, medical
reports and records, and a statement from the complainant. In *Adesanya
v. U.S. Postal Serv.,*[^126] the Commission held that past pecuniary
loses can be proven by any type of objective evidence showing the need
for the cost and its value. Examples given included receipts, canceled
checks or copies of bills.

The EEOC addressed the issue of causation in *Carpenter v.
Glickman*,[^127] where it ruled that an agency's liability was limited
to damages clearly shown to be caused by the discriminatory conduct. If
the agency sought to contest the damages, then it carried the burden to
prove that outside factors were the cause for the damages and not the
discrimination. [^128] *Carpenter* also provided that any award for
compensatory damages must meet two goals -- that it must not be
"monstrously excessive" standing alone, and that it be consistent with
similar awards made in similar cases.[^129]

# V. Comparing FECA and Title VII

# A. Reviews by the Appellate Courts

*1. The FECA in general*

Despite the statutory prohibition on judicial review of FECA decisions,
the federal courts have often found themselves reviewing cases where the
FECA is involved. In the earliest cases, the courts were focusing on
"whether there was a substantial question as to whether or not the
injury occurred in the performance of the employee's duty."[^130] It was
universally accepted that the FECA was the exclusive remedy for federal
employees, and that the decision of the Secretary of Labor was
non-reviewable.[^131] As the Fifth Circuit noted in *Benton v. United
States*, [^132]

> The structure of the FECA and the language of section 8128(b) convince
> us that Congress' intent was that the courts not be burdened by a
> flood of small claims challenging the merits of compensation decisions
> . . . and that the Secretary should be left free to make the policy
> choices associated with disability decisions.[^133]

Even attempts to avoid FECA coverage, either by returning compensation
checks,[^134] by rejecting the FECA process entirely,[^135] or by
presenting diverse theories of possible recovery,[^136] have not
succeeded in piercing its exclusivity.

In 1979, the 5th Circuit decided *Avasthi v. United States,*[^137] where
the plaintiff alleged he had slipped and fallen on the steps of his
office building on the way to his vehicle. Plaintiff wanted nothing to
do with the FECA and refused to apply for coverage. He argued that he
wanted to use the FTCA because it provided "damages that greatly exceed
any potential award of FECA benefits."[^138] The court focused on
"whether there was at least a substantial question that Avasthi's injury
occurred 'in the performance of his duty.'"[^139] The court allowed for
the possibility of non-exclusivity by holding that a substantial
question did exist regarding FECA coverage and that resolution of that
question belonged to the Secretary of Labor.[^140] In the end, Avasthi
was required to pursue the FECA remedies first, and if the FECA was held
to be applicable, it would be his exclusive remedy.[^141]

In Grijalva v. United States,[^142] a federal employee was involved in
an accident with a U.S. Army vehicle and, after obtaining FECA coverage,
filed suit under the FTCA.[^143] The district court ruled against the
plaintiff, holding (a) that the FECA is the exclusive remedy for federal
employees; and (b) that the Secretary of Labor's decision to cover
injuries is final and non-reviewable.[^144] In an attempt to gain access
to the FTCA, the plaintiff alleged she was not "in performance of her
duties" at the time of the accident; that her supervisor gave erroneous
information to the OWCP; and that the accident affected her mental
capacity to make an informed and voluntary application under the FECA.
The court swept all this aside, ruling that the Secretary's decision was
dispositive, non-reviewable, and final. Any appeal would have to be to
the Secretary through the Department of Labor's administrative
process.[^145]

*2. Discrimination Cases*

Despite the apparently conclusive holdings in cases like *Avasthi* and
*Grijalva*, in discrimination cases, the goal of the federal circuit
courts has seemingly been to craft broad remedies, regardless of the
exclusivity language in the FECA. While this approach has preserved the
goals of Title VII, it completely undermines the congressional intent
behind the FECA's exclusivity provisions.

In 1983, the Sixth Circuit decided *DeFord v. Secretary of Labor and the
Tennessee Valley Auth.*[^146] Plaintiff, a Tennessee Valley Authority
(hereinafter TVA) engineer, provided information during a Nuclear
Regulatory Commission investigation into alleged problems in the energy
division. Shortly thereafter, DeFord was moved to his old branch, with
the loss of supervisory status. Illness forced him to stop working for
the TVA. He filed an administrative discrimination complaint, based upon
his treatment following the investigation and the illness, he claimed,
resulted from that treatment. The Secretary of Labor ruled in DeFord's
favor, and ordered remedial action, including placing DeFord on
administrative leave with pay for the period he lost as a result of his
illness.[^147] Both DeFord and the TVA appealed, and the Administrative
Law Judge (ALJ) ruled in favor of DeFord. The Secretary of Labor adopted
the ALJ's findings and remedies, except for payment of damages. Both
sides appealed.

In addressing the administrative leave remedy, the TVA argued that it
amounted to an invention of "terms, conditions, and privileges" which
were not previously available to DeFord. . . ."[^148] After noting that
this remedy was not one provided for by Congress in enacting 42 U.S.C.
Section 5851,[^149] the court described the TVA's position: if this
remedy was struck down, "DeFord might either have the option of
exercising or be compelled to exercise certain rights under the
\[FECA\]."[^150] The Secretary of Labor raised three concerns regarding
the application of the FECA to this case. First, that the FECA only
assures reinstatement to a particular job when an employee recovers from
a disability. Second, that compensation awarded under the FECA is not
premised on fault, is not reviewable, and may not be adequate in a given
case; and third, because FECA entitlements are not dependent upon fault,
the deterrent effect of fault-based orders issued by the Secretary might
be lost.

In its review, the appellate court wrote that a "hybrid remedy" between
FECA and the Employee's Protection statute was not appropriate. The
court reasoned that FECA was "little or nothing more than a workmen's
compensation act . . ." and in analyzing the two statutes, decided that
since section 5851 provided for full compensation, a hybrid remedy was
inappropriate.[^151] The court continued by stating that the FECA only
compensated disability or death due to personal injury, and that this
did not appear to cover claims for discrimination, mental distress or
loss of employment. The court wrote, "\[n\]either the language of the
statute itself nor the policy foundations underlying the workmen's
compensation acts support a conclusion that intentional discrimination
is to be viewed as causing an 'injury' subject to FECA coverage."[^152]
Finally, the court noted as an aside that the Secretary of Labor has the
statutory power to decide the FECA's coverage and, since the Secretary
had "strenuously" argued it did not apply in this case, the court saw no
interest to be served by requiring DeFord to file an FECA claim. "He
obviously made an election between the two and we are aware of no reason
why he should not be allowed to do so."[^153]

Three years later, the Third Circuit addressed the same issue in *Miller
v. Bolger.*[^154] Plaintiff, a white postal employee, testified at a
Civil Service Commission hearing on behalf of a black co-worker. Miller
alleged that, as a result of his testimony, he became the subject of
harassment, abuse, and physical attack from co-workers and supervisors.
He alleged that he suffered physical injuries that disabled him and he
applied for, and received, FECA benefits. In 1982, Miller filed suit
under Title VII alleging retaliation for testifying.[^155] Defendant
Postmaster General filed a motion for summary judgment, arguing that the
court did not have jurisdiction as the FECA was the exclusive remedy for
the plaintiff, and that certain damages sought were compensatory and not
available under Title VII.[^156] The district court considered only the
exclusivity issue, and ruled the FECA did not preclude Title VII
action.[^157]

On appeal, the court discussed in some detail the statutory framework of
the FECA and the remedies available under Title VII. In focusing on the
FECA's exclusivity provision, the court held that the FECA was not
designed to exclude liability under Title VII. It cited, in support of
this position, the FECA's legislative history and noted that Title VII
does not address the FECA as limiting recovery for discrimination.[^158]
The court also cited *DeFord's* holding that FECA did not compensate
claims arising out of discrimination.[^159] The court considered it
"particularly significant" that the relief available to Miller under the
two statutes was not identical and that the FECA does not provide for
recovery of any pay for periods prior to a finding of physical
disability, whereas Title VII does so provide. The court also noted the
difference in pay recoverable and the recovery of attorney's fees.
[^160] Finally, the court wrote:

> \[I\]f we were to agree with the Postmaster General's theory that FECA
> recovery constitutes an election by the employee and divests the
> federal court of subject matter jurisdiction in Title VII cases, there
> would be no vehicle by which a federal employee could secure an order
> directing reinstatement, if warranted. Such a result would defeat the
> important amelioratory public purpose expressed in Title VII of
> eliminating discrimination. Given the dissimilarity of relief
> available under FECA and Title VII, it is evident that exclusivity
> would leave Miller without full compensation for his Title VII
> injuries.[^161]

The defendant's argument that such a ruling usurped the Secretary of
Labor's power to decide the scope of FECA's coverage was also not
persuasive. The court held that the ruling on FECA's applicability in
this case was not affected by its opinion. The relief sought was
"additional and different."[^162] This finding came despite the fact, as
the court *itself* noted, that FECA had paid benefits to the plaintiff
and that FECA coverage is statutorily exclusive.

In 1990, the Ninth Circuit had its first say on the issue. In *Sheehan
v. United States,*[^163] the plaintiff, an army civilian employee,
alleged she was the victim of sexual harassment by her supervisor.
Sheehan filed suit under the FTCA, alleging (1) that her immediate
supervisor's conduct caused humiliation and emotional distress, and (2)
that her supervisors failed to take action to stop the harassment,
resulting in a claim of negligent infliction of emotional
distress.[^164] The district court granted defendant's motion for
summary judgment on the first claim and dismissed the second cause of
action, finding intentional infliction of emotional distress was
excluded from the FECA and that the FECA was her exclusive remedy.
[^165]

After remanding the first claim,[^166] the circuit court addressed the
government's argument of FECA preemption. The court noted that the
district court had dismissed the second claim because the Secretary of
Labor had ruled that, while the FECA covers such claims, Sheehan's
injury was not causally related to her employment and therefore not
covered.[^167] The court went on to hold that, consistent with *DeFord*
and *Guidry v. Durkin,*[^168] emotional distress is *not* covered by the
FECA, and neither are injuries from intentional discrimination. Further,
the court held it could review the Secretary's decision that FECA
covered claims for emotional distress because "this interpretation of
the statute \[has\] been foreclosed by *Guidry*. The Secretary's
decision was therefore precluded by FECA. We have appellate jurisdiction
where the Secretary 'is charged with violating a clear statutory mandate
or prohibition.'"[^169] It appears that the Ninth Circuit overlooked the
fact that it is the Secretary who is given the sole authority to
determine the scope of the FECA, without that determination being
subject to judicial review. Later, the court recognized its oversight
and, in an attempt to correct it, stated that it was "withdrawing" the
proclamation in its entirety.[^170]

The Tenth Circuit weighed in on the debate three years later in
*Swafford v. United States,*[^171] where a Postal Service employee
alleged sexual harassment by another employee, and failure of the Postal
Service to prevent or stop that harassment. Plaintiff first filed a FECA
claim, and received compensation because "the claimant's chronic
depression was aggravated by \[her federal\] employment."[^172] Two
months later Swafford filed administrative FTCA claims on behalf of
herself and her husband. The claims were denied and suit was filed. The
district court granted summary judgment to the government on the grounds
that Title VII was the exclusive remedy for sex discrimination,
including sexual harassment, and the plaintiff appealed.[^173]

On the appeal, the United States argued that Swafford's claim was barred
because (1) the decision by the Secretary of Labor, granting FECA
coverage, blocked the FTCA claim; (2) the Civil Service Reform Act and
the Postal Reorganization Act are the exclusive avenues for challenging
Postal Service personnel actions; and (3) Title VII is the exclusive
remedy for sexual discrimination cases.[^174] The court recognized that
the FECA is the exclusive remedy for the workplace injuries of federal
employees. In doing so, it cited its earlier ruling in *Cobia v. United
States,* where it had ruled that the Secretary's decision in FECA cases
is final, is not subject to judicial review, and is the exclusive
remedy.[^175] The court also cited similar holdings from *Lockheed
Aircraft Corp. v. United States, Jones v. Tennessee Valley Auth.,* and
*Avasthi v United States.*[^176]

In opposition, the plaintiff cited *Sheehan* to support her argument
that the FECA does not bar an FTCA claim. The court, however, stated it
was not persuaded by *Sheehan's* reasoning, noting *Sheehan's* reliance
on *DeFord* for the proposition that the FECA did not cover claims for
discrimination or mental distress.[^177] It then noted that the Sixth
Circuit "in a later opinion \[*McDaniel v. United States*[^178]\],
recanted the position taken in *DeFord*."[^179] The court adopted the
logic in *McDaniel* stating, "\[t\]he Secretary of Labor, not the Tenth
Circuit, has the final say as to the scope of FECA."[^180] Having so
decided, the court ruled that Swafford's FTCA suit was barred by FECA,
and it declined to address the other arguments advanced by the
government.[^181]

The Ninth Circuit again addressed the issue in *Nichols v. Frank.*[^182]
In *Nichols*, the plaintiff alleged she was subjected to sexual abuse
and harassment by her supervisor for about six months. She filed an EEO
complaint and was diagnosed as having Post Traumatic Stress Disorder
(PTSD). She sought and received compensation under the FECA. The
district court found for plaintiff, and awarded back pay for two and a
half years - minus the benefits she received under FECA. The Postal
Service, found liable for the supervisor's misconduct, appealed the
finding that it was liable for the supervisor's misconduct as well as
the damage award. It argued that the exclusivity provisions under the
FECA barred additional awards for damages beyond the FECA award
previously received.[^183]

In rejecting the postal service's argument, the appeals court held that,
while the FECA precluded additional awards for harms arising from the
work-related injury, it did not block additional awards for "harms that
fall *outside* FECA's definition of 'injury.'"[^184] The court reasoned
that the harms suffered by sex discrimination were (1) not an "injury by
accident;" (2) "not a disease proximately caused by the employment;" and
(3) not damage to a prosthetic device, all of which are enumerated
injuries compensated by FECA. It stated that since the relief sought did
not fall within these criteria, an additional award was appropriate.
Further, it stated that "\[o\]ur conclusion is not only compelled by the
plain language of FECA and Title VII, but also by common sense."[^185]
The court explained that under the Postal Service's argument, if victims
of discrimination developed PTSD, they could only seek relief under the
FECA, but if no disorder developed, they could seek greater relief under
Title VII, an "unjust result" never intended by Congress.[^186] Finally,
the court concluded that relief under Title VII, in the form of back
pay, was "equitable" but under FECA since it qualified as
"compensation."[^187]

These decisions, with the exception of *Swafford*, show a pattern in the
circuit courts of giving FECA a very narrow construction[^188] and
clearly favoring the broader remedies of Title VII. This attempt at
judicial engineering ignores what the Supreme Court in *Lockheed* called
the *quid pro quo*[^189]--that the FECA, which OWCP and ECAB had
interpreted to include emotional injuries arising from workplace
discrimination, was designed to provide a "surer and more immediate
relief in return for foregoing more expensive awards outside the
system."[^190] Persons who chose to seek the more immediate relief
available through the FTCA, in lieu of pursuing the discrimination issue
and the possibility of higher awards under the FECA, should be left to
make the choice. Instead, the courts have sought to engineer a result
that would insure a broad remedy and advance Title VII's goals at the
same time by allowing access to both Acts.

The distinctions made by the courts to support their decisions, such as
the finding in *Nichols* that back pay was "equitable," under Title VII
but "compensatory" under the FECA, are ones without a difference.[^191]
Clearly, the FECA does not compensate all harms suffered by
discrimination, but plaintiffs seeking relief under FECA face a lower
standard of proof with surer and immediate recovery. If they wish to
pursue greater relief, they should be free to forego FECA and pursue
Title VII, as was proposed in *DeFord*. Pursuing such a course would
subject them to the higher standard of proof imposed by the EEOC, but
that is the *quid pro quo* for the substantially greater relief that the
EEOC can provide.

*3. Emotional Injury Cases*

In *Guidry v. Durkin*,[^192] a Department of the Navy civilian employee
filed suit in state court against Durkin, another Navy civilian
employee. The suit alleged that Durkin had libeled Guidry by stating
that he did not want Guidry assigned to work for him. The case was
removed to federal district court, where a motion for summary judgment
was sought and granted to the defendant. Plaintiff appealed, alleging
that four statutes could provide a basis for his claims. The first two
were the FTCA and the FECA. The Ninth Circuit first dismissed the FTCA
as a basis, ruling that defamation actions are expressly barred by the
statute.[^193] Turning to the FECA, the court started by noting that it
was only a workmen's compensation statute which would bar recovery for
any other type of injury or death. However, the court also stated that
the FECA does not cover claims for emotional distress, and therefore
FECA was inapplicable to this case and not an exclusive remedy.[^194]

Three years later, in 1990, the Ninth Circuit decided *Sheehan v. United
States*, discussed above.[^195] While mainly focusing on the
discrimination issue, the court did address the issue of FECA's coverage
of emotional injuries. In doing so, the court relied on *DeFord* and
*Guidry* in deciding that such injuries were not within the scope of
FECA's provisions.[^196]

Just one year later, the Sixth Circuit addressed the scope of FECA's
coverage in *Jones v. Tennessee Valley Auth.*[^197] In *Jones*, a TVA
employee filed suit alleging his supervisors harassed and intimidated
him in order to force him to suppress his findings of alleged safety
violations. As a result of this conduct, plaintiff contended he suffered
from PTSD.[^198] Suit was filed in May 1987. By March 1990, the district
court had dismissed or granted summary judgment to defendants on all the
counts of plaintiff's complaint. In July 1990, the OWCP awarded
plaintiff coverage under FECA for work related stress. In addressing the
FECA claim, the Court of Appeals held that the FECA applied to the TVA
and that the compensation for "work related stress," was therefore the
exclusive remedy for plaintiff's injury.[^199]

In 1992, the Sixth Circuit returned to the issue of FECA's coverage of
emotional injuries in *McDaniel v. United States.*[^200] Plaintiff, a
middle management postal employee, alleged he was the victim of
harassment and intimidation by a new postmaster. This harassment
allegedly continued until McDaniel was transferred to a different office
and shift. This alleged conduct brought on a psychological condition
requiring hospitalization, and he filed claims under the FECA and FTCA.
Both claims were denied. Plaintiff filed suit in 1991 under the FTCA,
seeking compensation for intentional infliction of emotional distress.
The U.S. filed for dismissal, alleging that the case was pre-empted by
the Civil Service Reform Act and the FECA. The district court dismissed,
ruling FECA pre-empted the FTCA suit and the plaintiff appealed. While
the appeal was pending, the Secretary of Labor vacated his earlier FECA
orders and sought further examination of the case by a psychiatrist,
after which there would be a *de novo* review.[^201]

McDaniel, citing *DeFord,* argued that FECA did not cover claims based
upon non-physical emotional distress.[^202] After first noting that
*DeFord* dealt with discrimination, and therefore the language relied
upon was dicta, the court stated that, "the Secretary of Labor, not the
Sixth Circuit, has the final say as to the scope of FECA. . . ."[^203]
Finding the Secretary had decided that McDaniel's claim was cognizable
under FECA, the court observed that this was consistent with its ruling
in *Jones v. Tennessee Valley Auth.* The court explained that "\[t\]he
Secretary's award of benefits conclusively established the applicability
of FECA; thus, the Jones court did not err in omitting discussion of
DeFord's contrary position."[^204] Similarly, the court rejected
plaintiff's second argument, that the case should have been stayed, or
remanded, pending action by the Secretary of Labor. The court stated
that, "\[w\]hether the Secretary ultimately grants coverage is
irrelevant for our purposes in the instant case. '\[O\]nce an injury
falls within the coverage of FECA, its remedies are exclusive and no
other claims can be entertained by the court.'"[^205]

The broader result of *McDaniels* was to implicitly overrule every case
that had cited *DeFord* for the proposition that emotional injuries are
not covered by FECA, and to set the stage for courts to recognize that
FECA can be an alternative remedy for claims of injuries suffered in
discrimination cases.

Finally, in 1993, the Ninth Circuit re-examined its *Sheehan* decision
in *Figueroa v. United States*.[^206] Plaintiff, one of 25 employees
injured in the rupture and clean-up of an electrical transformer on Navy
property, filed an FTCA action against the United States and 12
individuals who supervised the toxic clean-up. They sought damages for
current and potential future injuries and for emotional distress. The
United States moved to dismiss, claiming FECA barred the FTCA action.
The district court agreed that the question of FECA coverage should be
resolved by the Secretary of Labor and dismissed.

In addressing the FECA argument, the Ninth Circuit said that there were
two types of FECA coverage questions. One type addressed whether FECA
covered a particular type of injury, a question of scope of
coverage.[^207] The second type focused on whether or not FECA coverage
was available based upon the facts surrounding when the injury occured.
The court stated that it did "not read *Sheehan* as altering the general
rule that when a claim arguably falls under FECA, the question of
coverage should be resolved by the Secretary."[^208] In this case, it
ruled that Figueroa's claim was colorable under FECA. In doing so, the
court noted the Department of Labor had already held emotional distress
may be a disability when it is causally related to a claimant's federal
employment in *In the Matter of Lillian Cutler and Department of Labor,
Office of Workmen's Compensation Programs, Chicago, Ill.* Accordingly,
it held, the district court properly dismissed the FTCA claim to allow
the Secretary of Labor to decide the FECA issue.

A review of these cases which focused on FECA's coverage of emotional
injuries shows the courts started out following the logic of *DeFord*,
ruling that the FECA did not cover such claims. Then, *McDaniel* cut
away that pillar, signifying a return to the earlier view that the
Secretary of Labor, not the courts, are vested with the authority to
decide FECA's scope. In total, while there is no clear, unified position
on the interaction between FECA and emotional injuries arising from
discrimination, there is at least room to argue that alternative means
of addressing these types of claims should be considered.

# B. Reviews by the District Courts

To close this section, it is appropriate to review how some of the
district courts in this area have approached the issue of FECA
excusivity. While the majority (8 of 14 cases) take the position that
FECA is not the exclusive remedy when claims of discrimination or
emotional harm are involved, several courts have ruled to the contrary,
and two chose to sit on the fence and leave the decision to the
Secretary of Labor. While each group will be briefly discussed here,
what is significant is not so much the result, but the rationale.

1.  *Discrimination Cases*

Most of the district courts which have held FECA was not the exclusive
remedy in cases of discrimination or emotional harm based their
decisions on the circuit decisions in *DeFord, Sullivan,* and
*Miller*.[^209] In *George v. Frank*,[^210] the plaintiff, a postal
employee, filed suit alleging sex discrimination under Title VII. The
defendant, arguing that the court lacked subject matter jurisdiction to
decide plaintiff's claim for damages because FECA was the exclusive
remedy, moved to dismiss. The court ruled that FECA does not foreclose
the plaintiff's claim for damages.[^211] In discussing its rationale,
the court wrote that

> the genesis of this litigation is Title VII gender discrimination . .
> . which is not limited to remedies such as reinstatement and back pay,
> and may include such things as front pay, medical expenses and
> attorneys fees. . . . The question as to FECA coverage, which is most
> commonly associated with work-related accidents and diseases, clearly
> fails to preclude George's request to pursue her *discrimination*
> claim under the umbrella of equitable remedies available under Title
> VII.[^212]

In *Gergick v. Austin*,[^213] plaintiff filed suit alleging retaliation
for supporting an EEO claim filed by several co-workers. The fourth
count of the complaint sought compensation for intentional infliction of
emotional distress. The defendant, citing the FECA's exclusivity
provision, contended that the claim in count four was barred.[^214] In
upholding the claim in Count IV, the court cited *DeFord, Guidry,
Sheehan,* and *Newman*, to support its position that emotional injuries
fell outside of FECA's coverage.[^215] The court further stated, "\[i\]n
the instant case I have concluded that mental distress is not an injury
which is cognizable under FECA."[^216]

Finally, while the court in *Johnson v. Sullivan*[^217] also held that
FECA was not the exclusive remedy, it noted that recovery received under
the FECA would offset the ultimate damages award under the
discrimination claim.

Two cases have straddled the fence on FECA's exclusivity in these types
of cases: *Williams v. United States*,[^218] and *Eure v. United States
Postal Serv*.[^219] In *Williams*, the court, citing *Avasthi,* sent the
case back to the Secretary of Labor to determine the issue of FECA
coverage.[^220] In *Eure*, the court took the same action, noting that
FECA "is a substitute for the tort suit."[^221]

*2. Emotional Injury Cases*

A number of district courts have held that FECA bars a claim for
emotional injuries, starting with *Metz v. United States*.[^222] In
*Metz*, the wife of a deceased federal employee filed an FTCA suit
alleging that she and her husband suffered emotional and physical harm
as a result of his being exposed to the disease Anthrax during secret
tests conducted at his workplace. The husband had received FECA coverage
during his lifetime as a result of the injuries he suffered from the
disease. The government argued that FECA's coverage was exclusive, and
the claim should be dismissed. The plaintiff countered by arguing that
intentional infliction of emotional distress was not covered by FECA,
and cited *Deford, Sullivan,* and *Newman* to support the point. The
court granted the government's motion to dismiss on the grounds that the
injury was caused by the disease, and such injuries were clearly covered
by the terms of FECA. As such, the emotional harms were derivative of
that injury, and therefore FECA was the exclusive remedy.[^223]

In 1991, the Northern District of Texas addressed this area in
*Alexander v. Frank*.[^224] The plaintiff filed suit against the Postal
Service alleging age, handicap, sex discrimination, and reprisal.
Plaintiff had previously filed for, and received, FECA compensation for
the alleged injuries and for later relapses she had suffered. In filing
suit, plaintiff sought the difference between the 75% of wages she
received from FECA and what she would have gotten had she continued to
work. The Postal Service argued that the court lacked jurisdiction to
hear the claim for compensatory damages.[^225]

The court agreed with the Postal Service, citing *Lockheed* and
*Grijvala*. In explaining its decision, the court wrote:

> The law forbids the Court from awarding such a remedy because FECA
> provides that an employee may receive no other remuneration from the
> United States while she receives workmen's compensation. Accordingly,
> to award Alexander the remedy she seeks in this case would
> "irreconcilably conflict with the federal worker's compensation
> statutory scheme established by the Federal Employees' Workmen's
> Compensation Act."[^226]

Also decided in 1991 was the case of *Castro v. United States,*[^227] in
which the plaintiff, a postal employee, brought an FTCA action alleging
intentional infliction of emotional distress and unlawful imprisonment.
Plaintiff claimed she was brought into work when she was ill and not
allowed to leave her supervisor's office.[^228] Plaintiff had filed for
and received FECA coverage for the emotional injuries she claimed to
have suffered from the incident. The United States argued that, having
received FECA coverage, plaintiff was barred from seeking further
compensation. The plaintiff responded by citing *Sheehan*, arguing that
emotional injuries were outside the scope of FECA.[^229]

The court ruled against the plaintiff citing *Cutler.*[^230] The court
said that the Secretary of Labor had the ultimate authority to decide
the scope of FECA's coverage, and had decided that plaintiff's emotional
injuries could be covered. The court explained plaintiff had sought and
received coverage for her emotional injury, and that the FECA award was
her exclusive remedy.[^231] This case was the first and only time a
district court cited the ECAB as authority on the scope of FECA's
coverage.

In *Staubler v. Runyon*,[^232] plaintiff had brought suit under the
Rehabilitation Act,[^233] seeking compensation for harms suffered as a
result of discrimination she faced because of her disability. At trial,
the jury ruled for plaintiff, but the court set aside the jury's verdict
and ruled for defendant, based upon its earlier motion for judgment. In
its opinion, the court ruled that the Rehabilitation Act was not
applicable in the case since plaintiff was seeking compensation for the
same injury for which she had received FECA coverage. FECA, the court
held, was clearly the exclusive remedy, and the decision to grant
coverage in this case was not subject to judicial review.[^234] The
court went on to say:

> It would be an abuse of the purpose and meaning of both the FECA and
> the Rehabilitation Act to allow an employee to claim FECA benefits,
> including prolonged assignments of limited duty, on the basis of an
> "injury," and then claim that the "injury" was in fact a "handicap"
> under the Rehabilitation Act.[^235]

Plaintiff sought to counter this argument by citing *Miller*.[^236] The
court rejected this approach, stating that plaintiff's claim of
discrimination was based upon the same on-the-job injuries for which the
FECA had paid benefits.[^237] The court noted that, in cases like
*Miller*, where the injury *followed* some form of discrimination, the
FECA would not be the exclusive remedy because the injury would have
arisen from prohibited discrimination. In this case, however, the injury
came first and the discrimination arose out of that injury. As such,
FECA was the exclusive remedy.[^238]

The court's logic in the *Staubler* case is curious, in that it made
discrimination cases based upon handicap potentially different from all
other kinds of discrimination claims, including other handicap
discrimination cases, depending upon when the condition occurred. The
logic is sort of a hybrid of the inquiry in earlier FECA cases, wherein
the issue was when and where the injury occurred. If the injury occurred
on the job, and discrimination followed because of that injury, this
opinion would bar compensation beyond what FECA provided. If the injury
was not workplace related or if it followed as a result of
discrimination, the FECA was not the claimant's exclusive remedy. This
was true even though, in the latter case, FECA may very well have paid
such a claim.

Overall, what can be seen from the district court cases is a tendency to
follow the circuit courts in providing the broadest remedies possible in
cases of discrimination. Currently lacking among the federal courts is a
consistent approach to determining the exclusivity of the FECA remedy
for emotional injuries. Also needed is a recognition of the Secretary of
Labor's exclusive right to determine the scope of FECA's coverage.
Despite the decisions that FECA can cover emotional injuries, even when
the injury is caused by discrimination in the workplace, the courts have
been less than willing to recognize the FECA's clear mandate to the
Secretary of Labor in this area.

# C. The EEOC and FECA

The EEOC has addressed the FECA and compensatory damages in two cases.
In *Jackson v. Runyon, Postmaster General, United States Postal
Serv.*,[^239] plaintiff was a postal employee who filed a formal EEO
complaint alleging sex, color, age, and physical handicap
discrimination, and reprisal. In responding to the claim, the agency
argued that the FECA was the exclusive remedy for federal employees
seeking compensatory damages in work-related injuries. After reviewing
the provisions of the FECA, and discussing the Supreme Court decision in
*Lockheed Aircraft*, the EEOC ruled that FECA was not the exclusive
remedy. The Commission stated that "by its very language" the FECA is
limited to a worker's compensation statute or federal tort liability
statute.[^240] Further, the Commission stated that prior court
decisions, and one other Commission decision, had held that FECA was not
the exclusive remedy for injuries in discrimination cases.[^241] The
Commission concluded: "we find that Congress did not intend this
worker's compensation statute to be the exclusive remedy for a federal
employee bringing a complaint alleging discrimination and harassment,
including a request for compensatory damages related to mental stress
and high blood pressure."[^242]

In the footnotes, the Commission discussed the EEOC case of *Davis v.
United States Postal Serv.,*[^243] where the Commission had ruled that
recovery of FECA benefits did not preclude a back pay claim under Title
VII, as it viewed the remedy to be "an equitable one." In a later
footnote, the Commission noted that while the FECA is not the exclusive
remedy, an award of compensatory damages is not intended to provide
double recovery to an EEO complainant.[^244] In discussing this
decision, it is worth noting that the EEOC's review of case law in this
area is hardly comprehensive, and it ignores the fact that a decision of
the Secretary of Labor as to the scope of FECA is "not subject to review
by another official of the United States or by a court by mandamus or
otherwise."[^245] The EEOC, however, in a desire to maintain its private
domain, makes short work of "the usurper." A further analysis of the
value FECA can provide to the EEOC process shows that it may not be wise
to discard it outright.

In *Finlay v. United States Postal Serv.*,[^246] the appellant filed a
claim for sexual harassment, alleging injuries of post-traumatic stress
disorder and major depression. The OWCP accepted her claim for
compensation for these injuries under the FECA, and began to pay
compensation benefits. The agency accepted the administrative judge's
finding of discrimination, but modified the scope of recovery. Appellant
was awarded \$25,000 in nonpecuniary compensatory damages, and denied
front and back pay, and past and future compensatory damages by the
agency. On appeal, the EEOC rejected the agency's position that
appellant was not entitled to back pay because she had received the FECA
benefits. The EEOC held that the FECA was not the exclusive remedy for
losses from unlawful discrimination, but that the agency could offset
the amount paid under the FECA from what was due in back pay. The EEOC
made a similar ruling regarding front pay, but found that, in this case,
front pay was not available because appellant was totally disabled and
therefore not available for work.

In looking at the claim for compensatory damages, the EEOC held that
appellant was entitled to an award because the emotional harms were
causally related to the sexual harassment. In determining the amount,
the EEOC said that since OWCP's payments were reimbursed by the agency,
they could be used to offset the pecuniary damages awarded to appellant.
Accordingly, appellant's claim for past pecuniary damages for
psychotherapy were denied, since medical expenses were paid by the FECA.
Similarly, future pecuniary damages for psychotherapy were also denied
because the FECA covered them. Finally, the EEOC ruled that appellant
was entitled to compensation for future loss of pay and benefits. In
order to avoid double recovery, however, the amount of the future
damages could be offset by the amount the FECA paid for
wage-replacement.

A review of the EEOC decisions in these cases finds it holding firm to
its view that the FECA and discrimination actions are mutually exclusive
processes meant to compensate different harms. Of interest, though, is
the EEOC's recognition that the FECA does compensate some aspects of the
same harms that the EEOC is designed to redress, namely, emotional
injuries arising from discrimination. As such, it will reduce the award
to the complainant in those areas where it believes the EEOC and the
FECA overlap (payment of medical bills and wage replacement, etc.).
Apparently, this is all the EEOC is prepared to concede to the FECA. In
doing so however, the EEOC ignores two important facts. First, that FECA
is the statutorily exclusive remedy for workplace injuries received by
federal employees, and that any other form of compensation for these
injuries is prohibited; and second, that the decision is not subject to
review by any official or court. Consequently, if FECA coverage is
granted, the EEOC is precluded from addressing the exclusivity or
applicability of the FECA to any claim.

# V. Alternatives

Several things are clearly apparent from the prior discussion of the
case law in this area. First, the Department of Labor is under the
impression that emotional injuries, even if arising from discrimination,
are compensible under the FECA. Second, the federal courts are divided
as to the issue of FECA's interaction in discrimination cases, but
largely have ruled that it is not the exclusive remedy. Third, the EEOC
is not prepared to concede to the FECA any involvement in compensating
discrimination based emotional injuries, except where it is obvious that
the two systems will overlap. Finally, the present system of multiple
litigation in different forums with different standards of proof is
ineffective, a waste of judicial resources, and is not properly
effectuating the purpose of either statute. The focus now shifts to what
would be a better, more efficient alternative. In that vein, two options
come to mind.

# A. Alternative One

The first alternative is that the EEOC be required to use the standards
set forth under the FECA in assessing and compensating the physical and
emotional injuries occurring from workplace discrimination and
harassment. This would impose a limit on compensation for injuries
claimed in discrimination cases, and any expenses arising from them, to
those levels established under the FECA. Compensation for harms not
covered by FECA, such as back pay, as well as equitable remedies
(reinstatement, corrections to personnel records, etc.), could be
obtained from the remedies available under Title VII and its
implementing regulations. Between the two systems, claimants could be
"made whole" without multiple litigation and while still recognizing the
role of the FECA. It is important to note that this alternative would
not effect a "simple, straight-forward" workmen's compensation case,
where no discriminatory act is alleged. Absent an allegation of
discrimination, this alternative would not apply.

*1. Required Legislative Action*

Several legislative actions would be required to effect this
alternative. First, the EEOC would have to be vested with the exclusive
jurisdiction in all cases where injury is claimed in conjunction with,
or resulting from, a claim of discrimination. Second, an amendment would
be needed to require the EEOC to assess emotional and physical injuries
according to the standards set out by the FECA, and to compensate them
based upon the scale devised under the FECA. Third, the EEOC would have
to be precluded from granting any monetary awards for the injury portion
of the claim, to include pain and suffering, beyond what FECA would
compensate. The amendment should also make clear that the EEOC is still
free to employ any equitable remedies necessary to effectuate the
purpose of eliminating discriminatory conduct.

Legislative enactments would also be required to amend the
administrative process under the FECA. First, the OWCP would need to be
precluded from hearing cases of workplace injuries based upon
discrimination. Second, the amendment would have to require the OWCP to
forward the claim to the EEOC. Third, an amendment would be required to
prevent the ECAB from reviewing the decision to transfer the claim to
the EEOC, or to limit any review to whether the injury is alleged to be
causally related to discriminatory treatment.

There are a number of points both for and against this alternative, each
of which will be addressed in its respective groups.

*2. Arguments Supporting this Alternative*

*a. Conforms with FECA's exclusivity provision*

Adopting this alternative would be consistent with the statutory
provision that FECA is the exclusive remedy for workplace injuries. It
would also be consistent with the statutory grant of power to the
Secretary of Labor to determine FECA's scope. The previously cited
decisions of the ECAB, that FECA can compensate injuries resulting from
proven discrimination, places FECA squarely into this process.

This alternative has found support in a number of federal courts. Cases
such as *Alexander v. Frank*, *Castro v. United States*, and *Staubler
v. Runyon*, have uniformly held that FECA's exclusivity provision
clearly limits recovery for the emotional injuries suffered from
incidents in the workplace. Several circuit courts have concurred in
this view in cases like *McDaniel v. United States*, *Figueroa v. United
States*, and *Jones v. Tennesse Valley Auth.*, where allegations of
harassment or discrimination were added.

It is also consistent with the fact that "compensation acts are
habitually given a liberal construction in order to effectuate their
intended purposes," and that "such a rule of construction is for the
benefit of the employee so that liberal coverage under the Act may be
provided."[^247] The exclusivity provision in FECA does not specifically
include discrimination cases. Nor, for that matter, does the Civil
Rights Act of 1964 mention FECA's role in addressing harms from
discrimination. These facts do not work to bar FECA's application in
this area, and to rule they do runs counter to the liberal reading
normally accorded such statutes and takes an unnaturally narrow view of
the interaction of the two statutes. The Secretary of Labor has
repeatedly ruled that FECA applies to these types of harms. The fact
that Congress was silent on the matter does not, in and of itself,
dictate that the FECA is inapplicable, nor do the EEOC's rulings create
such a result. A review of the EEOC's decisions in this area shows its
research into case law is seriously lacking and its rejection of the
FECA appears to be more parochial than analytical.

The matter comes to a simple point--"exclusive" should be allowed to
mean "exclusive." Where the issue is injury caused by workplace
discrimination, the FECA should dictate the level and amount of
compensation. Where the remedy required is based on equitable harms from
discrimination, which the FECA clearly does not compensate, then the
equitable remedies under Title VII should prevail.

*b. Advances Judicial Economy*

The current process has claimants filing claims before the OWCP and the
EEOC. The result is two different processes, two different standards of
proof, both seeking to compensate harms arising from the same allegedly
discriminatory conduct. This is the same type of conduct decried in
*Staubler v. Runyon* as being "an abuse of the purpose and meaning of
both the FECA and the Rehabilitation Act."[^248]

Vesting exclusive jurisdiction in the EEOC would allow for a single
adjudication of all issues before a single body. A review of the FECA's
case law shows it lacks any standard by which to analyze allegations of
discrimination, even though the ECAB's decisions require the claimant to
prove discrimination actually occurred.[^249] The EEOC is obviously
better suited to review these types of claims. Such a review would be
consistent with the FECA's proof requirement. As the ECAB has held, if
there is no discrimination, then there was no causation between the
injury and the workplace conduct, and therefore no basis for recovery
under FECA. The EEOC can easily make this determination. What the EEOC
lacks is a clearly defined standard for compensating such harms when
discrimination is found. FECA can instantly provide that.

This approach also brings several benefits to potential claimants.
First, it reduces the legal expense of pursuing a claim, since counsel
will not have to duplicate the case before two different forums. Second,
it will streamline and simplify the process, creating a faster means of
recovery, consistent with FECA's original goal, and make for a better
understanding by the claimants. Third, a clear standard for compensating
these types of harms will foster settlement by injecting a certain
degree of "realism" on the part of all parties engaged in the process.

*c. Provides a Quantifiable Standard of Recovery*

In granting the EEOC the power to award compensatory damages, the
Congress neglected to require, or supply, a standard upon which to
assess what would be an appropriate amount of compensation in
discrimination cases. Many would rightly argue this is consistent with
other types of tort cases, wherein a jury or court would decide an
appropriate award given the specific facts of each case.[^250] In the
case of discrimination claims, however, we find ourselves in what some
practitioners call "the comp damages lottery." The absence of case law
precedent, combined with the absence of a clear standard for assessing
claims, results in complainants seeking the full \$300,000, regardless
of scope or extent of their injuries, and refusing to settle for less.

The EEOC, to date, has been of little help in this realm, having ruled
the standard of review for compensatory damages is "that the award not
be monstrously excessive."[^251] This kind of standard does little to
assist parties in assessing claims or negotiating a settlement.

Using FECA's compensation standards would serve to remedy this. The use
of this system would serve to promote realistic case assessment and
would foster serious settlement negotiations. The FECA, through the
published decisions of the ECAB, has a significant body of case
law[^252] to call upon in assessing claims. The FECA also possesses
clear standards of proving damages and causation, which the EEOC lacks.
The benefit of adopting this system of assessment would be almost
immediate and substantial.

*d. Precludes Double Recovery*

Although the courts and EEOC recognize the potential for double recovery
and allow for offset to prevent it, the potential for persons to file
actions in both forums and receive double compensation still exists.
Unifying the system into one action would eliminate this opportunity for
abuse.

A review of the EEOC's caselaw leaves one with a fuzzy feeling as to how
the EEOC arrives at the amount of compensation awarded. Once claimants
clear the obvious "reimbursement" aspects of the claim, the ultimate
award amounts are scattered like stars in the heavens, with no apparent
rhyme or reason.[^253] The unification of the system, utilizing FECA's
standards of compensation and EEOC's analysis of discrimination and
equitable remedies, would bring some order while decreasing the
potential for abuse.

*e. Permits Parties to Obtain "Whole Relief"*

One of the biggest objections raised by the federal courts to
recognizing FECA as an exclusive remedy in discrimination cases has been
their concern that its limited damages provisions would not permit
"whole relief" for the complainant,[^254] or worse, would deprive some
of relief but not others.[^255] While one must concede the FECA's
limitations, joining FECA's compensation provisions to the EEOC's
equitable powers would ensure full compensation, while still making FECA
the exclusive remedy for the emotional injuries suffered. Limits on the
action rights of federal employees is hardly new, so the limitation on
the amount of compensation available to a federal employee has precedent
behind it.

Some federal courts, for example in *Nichols v. Frank*, have argued that
imposing FECA limits on one who suffers emotional injuries, but not on
one who does not, would be inherently unfair. The fact is that anyone
who is compensated in an EEO case is being compensated for "pain and
suffering" -- whether from a quantifiable emotional harm or from the
"harm" caused by having to endure discriminatory treatment. The fairness
comes in treating everyone with a uniform standard of compensation.
Under this alternative, the standard would be FECA's. Compensation in
discrimination cases is not meant to be a "cash cow" or lottery, but to
remedy harms. Applying a consistent standard will effect that purpose.

Other federal courts, such as in *Miller v. Bolger*, have argued that if
the "FECA is exclusive" argument prevails, "there would be no vehicle by
which a federal employee could secure an order directing reinstatement,
if warranted. Such a result would defeat the important ameliatory public
purpose expressed in Title VII of eliminating discrimination."[^256]
Such an "all or nothing" position is not at issue here, as this proposed
alternative combines FECA's and the EEOC's powers, advancing the goals
of both statutes.

*f. Preserves the Goals of Title VII and FECA*

Another concern advanced by the federal courts is that making FECA the
exclusive remedy will sacrifice the objective of Title VII -- to
eliminate discrimination. This concern is based upon the courts'
perception that people will not seek to pursue a discrimination claim if
the ultimate recovery is limited to FECA's standards alone. If FECA is
the only remedy, the lack of equitable remedies will prevent full
recovery and FECA's focus on financial compensation for injuries makes
it totally unsuited to addressing discrimination.

In response, this alternative would combine the remedies of the EEOC and
FECA, so the only real effect would be to limit the amount of financial
compensation available to federal employees in redressing emotional
injuries. The ability to receive both equitable and financial remedies
would remain essentially intact, and would thereby adequately respond to
these concerns. If the concern is that people will not seek to fight
discrimination unless there is a sufficient "profit motive," then one
should question both the motive and the desirability of crafting a
remedy scheme that appeals to such a motive.

*g. Puts Discrimination Cases Before the Proper Agency*

One of the distinct advantages of this alternative is that the EEOC is
unquestionably more competent to assess discrimination claims than the
OWCP or ECAB is. As shown earlier in this article, the evolution of case
law under FECA has placed the burden on the claimant to prove that
discrimination actually occurred, and to show that the injury and the
conduct are causally related. What is readily apparent is that FECA has
no standard to assess a claim of discriminatory conduct. Placing the
claim before the EEOC eliminates the need to prove discrimination twice,
as well as taking advantage of the EEOC's vast experience and case law
in assessing and fully compensating these claims.

*3. Arguments Opposing this Alternative*

*a. Opposition from EEOC and Department of Labor*

The first level of resistance to this proposed alternative is likely to
be "turf-oriented." More specifically, the current position of the
parties is to preserve their jurisdictionand the funding that goes with
it. The case law previously reviewed sets out the two sides fairly
clearly. The Department of Labor believes the FECA covers emotional
injuries, no matter how they are suffered, so long as they arise out the
workplace. The EEOC disagrees that FECA is the exclusive remedy for
injuries appearing to have arisen from discriminatory conduct.

Having stated its position, the Department of Labor would contend that
FECA is, by law, the exclusive remedy for any workplace injury suffered
by federal employees, and the cause of the injury is irrelevant to the
issue of jurisdiction. As such, emotional or physical injuries arising
from discrimination are with the FECA's penumbra, and such cases should
not be taken from its jurisidction.

The EEOC, on the other hand, would contend that neither the Civil Rights
Act of 1964 nor the Federal Employees' Compensation Act gave the
Department of Labor exclusive jurisdiction in discrimination cases. The
EEOC would further contend that the Civil Rights Act of 1964 did not
make the FECA applicable to the EEOC's analysis of injuries in
discrimination cases. As such, the EEOC is not bound by the FECA in any
way when addressing compensation in discrimination claims. The EEOC
would point out that FECA is not able to adequately analyze
discrimination claims, and if discrimination is found, it cannot
properly remedy such conduct. The EEOC would specifically cite FECA's
narrow compensation options and the absence of any equitable or
injunctive remedies. In light of all this, the EEOC would argue that
FECA plays no role in discrimination cases at all.

*b. FECA is Supposed to be "Non-Reviewable"*

Another area of opposition would be to FECA's "non-reviewability
clause." If the EEOC were required to apply the FECA's compensation
standards, would that cloak the EEOC's judgment on all aspects of the
complaint in FECA's non-reviewable status? It could be argued that the
EEOC's finding of discrimination, upon which FECA compensation is based,
would be exempt from review, in the same manner that FECA's evaluation
of evidence is sacrosanct. There would be two ways of dealing with this
issue and both would require a legislative instruction. One method would
be to dictate that the underlying decision of discrimination could be
reviewed, but if discrimination were found, the award of compensatory
damages would not be reviewable. The other option is that the entire
EEOC decision, in cases where injuries are alleged, would not be subject
to review. In light of the nature of discrimination cases and the many
complex facets of both facts and statutory rules, the former option
seems better suited to addressing this aspect of the proposal.

Another issue would be jurisdictional. Would the EEOC have automatic
jurisdiction of all discrimination cases where any harm is alleged, or
only emotional harms? What if the injury is not rooted in discriminatory
conduct, but is a concurrent issue? Since the EEOC can provide
compensation for "pain and suffering," will this still be permitted once
FECA is implemented, or will this counter FECA's "exclusivity"?

In looking at these questions, the FECA covers all workplace injuries.
It was handling physical harms long before it ever accepted emotional
injuries, so it is likely that any harm, based upon a claim of
discrimination, would go to the EEOC under this alternative. If the
claimed harm is not rooted in a discrimination claim, then FECA would
retain primary and exclusive jurisdiction. The final issue, on "pain and
suffering" compensation, is resolved by the proposal itself. Since this
proposal inserts FECA as the exclusive form of monetary compensation for
injuries, then a separate award for "pain and suffering" would not be
warranted, since it would be covered by the FECA's overall compensation.
Of course, this presents us with the situation discussed in *Nichols v.
Frank.*[^257]

*c. The Remedy Would be Based upon Harm Alleged*

Under the argument discussed in *Nichols*, if a victim of discrimination
developed an emotional injury, he could only be compensated under FECA.
If, however, he did not develop any emotional or physical harm, he would
be entitled to the greater relief available under Title VII. Addressing
this issue requires one to adopt one of two points of view. In the first
point, people who do not develop a "condition" as a result of
discriminatory conduct could still be compensated under FECA by altering
the FECA to cover the pain and suffering aspect of their claim. The
second point of view is that compensatory damages are meant to
compensate for injuries and harm. If a complainant does not suffer an
injury or harm, then no compensation is merited. It is not unfair to
deny compensation to someone who does not suffer an injury and to
compensate a person who does. In fact, the EEOC has recognized that an
agency "takes the victim as \[it\] find\[s\] them,"[^258] so if the
victim suffers no injury, or bears a heightened sensitivity to
discriminatory treatment, the agency and the complainant must live with
that fact.

*d. Forces Complainant to meet the Higher Burden of Proof*

Some would argue that making the EEOC the exclusive forum for cases of
injuries arising from discrimination would deprive a claimant of the
benefit of the lower burden of proof and swifter recovery available
under the FECA. This argument would contend that those who might forego
an EEOC case, out of lack of resources or fear of being unable to meet
the higher burden of proof that the EEOC imposes, would be precluded
from obtaining the relief they otherwise could get if they could
petition FECA alone.

In response, vesting the EEOC with primary jurisdiction insures that
meritorious claims will be brought and addressed. If a claimant has a
meritorious claim, then there should be no fear of raising it. If the
claim will not withstand the scrutiny of the EEOC, then it is unlikely
to meet the FECA's requirement to prove actual discrimination either. In
point of fact, since the FECA lacks any written standard of proof for
showing discrimination, it is speculation at best to say that FECA's
"standard" is lower than the EEOC's. While some may lose as a result of
this alternative, the overall benefit to judicial resources, promotion
of settlement, and streamling of the process will more than outweigh
those who would lose from this aspect of the alternative.

*4. Additional Issues Regarding Changing Forums*

Before leaving this alternative it is necessary to discuss two possible
scenarios regarding the operation of this proposed system. The first
entails what happens when a claimant, having filed a FECA claim not
linked to any discriminatory treatment, at some point changes its theory
and alleges that the injury arose from discrimination. According to this
alternative, the claim would then be transferred to the EEOC as its
would be the agency with primary jurisdiction over such claims. The
focus of this alternative is to adjudicate all claims in one forum.
Raising the discrimination claim is beyond FECA's ability to redress,
and therefore transferring the case to the EEOC makes possible a
complete settlement of the claims before a single forum.

The second scenario entails a situation where the complainant has filed
before the EEOC and does not prevail. Is he then able to turn the case
into a simple workplace injury claim before FECA? According to this
alternative, a decision by the EEOC would be dispositive, beyond
pursuing the appeals one would normally have available through the EEOC.
The complainant would not be able to pursue the claim through the FECA
process, as his claim would have been adjudicated by the EEOC. This is
necessary to prevent people from trying to "forum shop" in an attempt to
find some agency that will grant them redress.

# B. Alternative Two

The second alternative allows the claimant to choose where to raise his
claim--either before the EEOC or the FECA. Claimants would be bound to
follow the procedural rules and standards of the forum they chose,
however, their choice would be final and binding. No one would be
permitted to file in both forums, and once a judgment was rendered, the
claimant would be foreclosed from pursuing the claim in the other arena.

*1. Required Legislative Action*

Effectuating this alternative would also require legislative action.
Both the EEOC and FECA would need to be amended to preclude them from
accepting any claim for injuries based upon, or arising out of a claim
of discrimination, once the claimant had filed a claim in either forum.
Such a provision is not without precedent, as the EEOC binds
complainants when they elect between the EEOC process and a negotiated
grievance procedure.[^259] Whether the claim was finally adjudicated, or
was dismissed on procedural grounds, would not alter the prohibition. No
further alteration would be required, as the claimant would simply be
following the rules and procedures of the chosen forum.

*2. Arguments Supporting this Alternative*

*a. Provides Claimant Maximum Control*

One of the strongest points in favor of this alternative is it gives the
claimant maximum control over his claim. This was a point strongly
favored in *DeFord v. Secretary of Labor*, where the court wrote, "Even
if the FECA could be read such that it might otherwise apply to this
case, DeFord should be allowed to make an election between alternative
payments and benefits due him under administrative frameworks provided
by Congress."[^260] As such, since both agencies would claim to assert
jurisdiction in this area, the individual claimant should have the right
to chose the forum he feels will best suit his needs and interests.
Having chosen the forum themselves, claimants can have little legitimate
complaint for being held to their choice. The further advantage to
claimants in having the choice is that both forums offer different
remedies.

*b. Claimants can Choose the Forum Best Suited to Their Claim*

In the case of the EEOC, the available remedies are both compensatory
and equitable, and can compensate all aspects of the harms suffered. The
FECA, while limited in the scope of compensation, carries a lower
standard of proof, and the compensation can be almost indefinite in
duration. Further, while the EEOC will not order reinstatement if a
complainant is unable to work because of his condition, the FECA
specifically provides for reinstatement should the claimant recover
within one year, and for priority consideration after that period. There
is an additional advantage to choosing the FECA -- no appeal of the
decision. Unlike the EEOC, the FECA is non-reviewable, therefore the
award would be more immediate and could not be held hostage to appeals
in an attempt to overturn the decision or force a smaller, negotiated
settlement.

Allowing claimants to choose forums also gives recognition to what the
Supreme Court recognized as the *quid pro quo* Congress established in
creating the FECA, namely a non-adversarial process with a lower
standard of proof and speedy resolution in exchange for limited
recovery.[^261] Since the claimant is presumably capable of making an
educated decision, he should be allowed to understand and to elect to
make the trade off.

*c. Eliminates Potential for Multiple Litigation and Double* *Recovery*

Since the decision of the claimant would be binding, the choice of forum
would eliminate the potential for multiple litigation with potentially
conflicting results. This would prevent a situation where the FECA would
deny a claim for injuries based upon discrimination, only to see the
EEOC find discrimination and then grant compensation. The election would
be a more efficient use of judicial resources and be more cost efficient
for the claimants, who would only need to litigate the claim once.

This election would also prevent the possibility of double recovery.
Since one forum would handle the claim, there would be no chance for
obtaining recovery in a subsequent claim before the other agency. This
would eliminate the issue of offsetting one award when paying another as
well.

*3. Arguments Against this Alternative*

*a. Ignores FECA's Exclusivity and Objective*

The FECA was designed to be a limitation on the government's waiver of
sovereign immunity, which was created by the Federal Tort Claims Act.
Allowing parties with a work-related injury to circumvent the FECA and
choose to pursue the claim before the EEOC would be to ignore FECA's
exclusivity and the reason for its existence. Supporters of FECA would
also point to the EEOC's lack of a system for determining compensation
for such claims.

Further objections could be raised against the FECA and its components.
First would be the lack of a basis to analyze discrimination claims, and
the fact that FECA, as a non-adversarial process, is not suited to
handling something as contentious as a discrimination claim. Even
further, the limited recovery system set forth in the FECA makes it ill
suited to adequately compensate claims of discrimination. Finally,
FECA's limited scope would make it totally ineffective in dealing with
the discriminatory conduct itself. It is even possible that a claimant,
who has a legitimate discrimination claim, might file under FECA because
it is without an appeals process and has a lower standard of proof. This
would create a disservice to the claimant, who's claim might be better
served by the EEOC; and the system at large, because a FECA claim would
leave the allegedly discriminatory conduct unaddressed.

While this alternative allows for the possibility that the underlying
discrimination could remain unaddressed, there are other methods to
address discriminatory behavior besides a suit by employees. To believe
that everyone who is discriminated against will opt for the FECA process
over the EEOC is not only taking a limited view toward society's
tolerance of discrimination, but is also ignoring the role class action
suits play in the EEO arena. There is no provision for a class action
FECA suit, since FECA is an individualized remedy. While not primarily
designed to analyze discrimination cases, FECA is building a body of
case law on the standard of proof and analysis of these types of claims,
and the causation standard for linking injury to conduct is already well
established.

*b. Objectives of Title VII would not be Advanced*

As noted above, there is a fear that this alternative would cause so
many plaintiffs to choose FECA's "path of least resistance," that the
objectives of Title VII would begin to suffer. Some would express
concerns that meritorious cases of discrimination would not be addressed
because the claimant lacked the funds necessary to pursue a claim in the
face of the EEOC's higher standards of proof. Others would point to the
FECA's lack of equitable remedies as proof that it is not suited to
address discrimination, and that those claims it did address would
partially compensate the claimant while leaving discrimination intact.

Not only does the general trend of EEO cases militate against this, as
does the class action process, but also the fact that people alleging a
physical or mental injury from discrimination would still be drawn to
the EEOC's process and greater levels of recovery. It is a rare thing
indeed for a complainant to file a discrimination case seeking only
monetary compensation. They often seek a host of other remedies, from
corrections of records to reinstatement. These forms of compensation not
available under the FECA will continue to draw plaintiffs to this
process. Further, the EEOC's well established process of informal
investigations and internal agency procedures are likely to continue to
be the first resort for those who feel they are victims of
discrimination. The FECA is totally lacking in this sort of informal
process.

The real threat posed by this alternative is that plaintiffs will
completely abandon the FECA's remedies in favor of the larger recovery
available before the EEOC, despite the higher standard of proof and
appeal rights. Further, the willingness of the plaintiff's bar to front
the costs of pursuing such claims would ensure that that goals of Title
VII would always have an ample number of advocates. While some will
likely be drawn by the simpler standard of proof and swifter recovery,
the number FECA would likely draw away would be small. In many cases,
discrimination is one of several factors being alleged, and not
necessarily the primary cause of the injury.

*c. Potential for Agency Abuse*

Some might argue that since the claimant can choose the forum for his
claim, the agency may seek to bind the claimant to choosing one forum or
the other by the terms of the employment contract. The FECA's limited
damages, the absence of a finding by the EEOC of discrimination, along
with the remedial orders that may go with it, and the speed of the
process would likely find agencies favoring the FECA and seeking to bind
employees to that forum upon hiring.

The immediate counter argument to this concern is the substantial amount
of caselaw which holds that waiver of future discrimination claims is
violative of public policy and therefore void.[^262] As such, there is
no opportunity for the agency to impose such a binding contractual
condition.

*4. Additional Issues Regarding the Choice of Forums*

As with the first alternative it is necessary to discuss possible
scenarios regarding the operation of this proposed system. The first
scenario involves a claimant, having filed an FECA claim not linked to
any discriminatory treatment, and at some point changing his theory and
alleging that the injury arose from discriminatory conduct. Under this
alternative, would plaintiffs be foreclosed from changing forums and
pursuing a claim before the EEOC? While the basic format of this
alternative would state they could not, it would be necessary to decide
whether there is a strong enough public demand to address discrimination
so as to allow a person to change forums in this situation.

One possible suggestion would be to require that the OWCP determine
whether the conduct, as initially alleged by the claimant in making his
claim for compensation, could have been characterized as being based in
discrimination. If the claimed conduct would lead one to believe he had
a basis for a discrimination claim, then no change in forum should be
permitted. If the evidence revealed during the FECA process creates a
belief that discriminatory conduct was the cause of the injury, then a
change in forum to the EEOC could be permitted. It would be incumbent
upon Congress to clearly address this scenario in making the legislative
changes necessary to implement this alternative.

The second scenario entails a situation where the complainant has filed
before one forum and failed. Is he then able to turn the case into a
simple workplace injury claim before FECA? As under the first
alternative, a decision by either agency would be dispositive, beyond
pursuing whatever appeals one would normally have available through that
agency's process. Adjudication by one agency would be total and final as
regards the other agency. This would prevent people from trying to
"forum shop" in an attempt to find some agency that will grant them
redress and, since claimants chose the forum to begin with, there would
be little basis for complaint should they be denied the right to raise
the issue somewhere else.

**VI. Conclusion**

This article has reviewed the evolution of the FECA and the EEOC as they
interact in the area of workplace injuries. The political forces which
resulted in the creation of the Civil Rights Act of 1964, and its later
amendment to provide for compensatory damages, left us with two systems
addressing the same injury from different angles. The end result is that
the "exclusive" remedy for workplace injuries of federal employees --
the FECA -- is not "exclusive" in the eyes of the EEOC. The FECA is
exclusive in this area in the eyes of the people who run the FECA
process, and the courts are split, with most engineering a result to
favor of fighting discrimination. On the same account, the EEOC has now
been thrust into the realm of compensating injuries caused by workplace
discrimination without any standard for assessing the appropriate level
of compensation. Six years after the power has been granted to them,
they have advanced little on the road to setting forth an identifiable
standard. There is a better way of dealing with this situation that will
aid both the claimants, the agencies and the overall goals of both
statutes. The question is, will anyone take the steps necessary to
"tweak the process" and bring the needed relief?

[^1]: \* *Major Kraus (B.A., Kean College of New Jersey; J.D., Cleveland
    State University) is the Chief of Civil Law at Twenty-First Air
    Force, McGuire AFB, New Jersey. He is a member of the U.S. Supreme
    Court Bar, and the Bar of Ohio. He extends his thanks to Ms Jackie
    House, USAF/GC, and Mr. Kirk Underwood, Department of Justice, for
    their supervision of this article.*

    ^?^ 28 U.S.C. §§ 2671-2680 (1994).

[^2]: The doctrine of sovereign immunity prevents suits against the
    United States except where Congress has specifically allowed
    exemptions. *See* Block v. North Dakota, 461 U.S. 273, 287 (1983).

[^3]: 5 U.S.C. §§ 8101-8152 (1994).

[^4]: 28 U.S.C. § 2672 (1994).

[^5]: *Id.* § 2675.

[^6]: *Id.* § 2672.

[^7]: *Id.* § 2680.

[^8]: [S. Rep. No]{.smallcaps}. 93-1081 (1974), *reprinted in* 1974
    U.S.C.C.A.N. 5341.

[^9]: [S. Rep. No]{.smallcaps}. 81-836 (1949), r*eprinted in* 1949
    U.S.C.C.A.N. 2125. *See* Woodruff v. U.S. Dept. of Labor, 954 F.2d
    634, *reh'g denied,* 961 F.2d 224 (11^th^ Cir. 1992); Wallace v.
    United States, 669 F.2d 947 (4^th^ Cir. 1982).

[^10]: Employees are broadly defined by the Act. 5 U.S.C. § 8101 (1994).
    Even individuals rendering services similar to covered civil service
    jobs may be considered employees. *See* Lance v. United States, 70
    F.3d 1093 (9^th^ Cir. 1995).

[^11]: Such beneficiaries are generally family members. For a list of
    eligible members, see 5 U.S.C. § 8109 (1994).

[^12]: 5 U.S.C. § 8121 (1994).

[^13]: *Id.* at § 8122.

[^14]: *Id.* at § 8124.

[^15]: Employing agency attendance at hearings and submission of
    evidence, 20 C.F.R. § 10.135 (1996).

[^16]: *Id.*

[^17]: 5 U.S.C § 8102 (1994).

[^18]: *Id.* §§ 8103-04.

[^19]: *Id.* §§ 8105-16.

[^20]: *Id.* §§ 8133-34 .

[^21]: *Id.* § 8151.

[^22]: *Id.* § 8151(a).

[^23]: *Id.* § 8151(b).

[^24]: *Id.* § 8101(5).

[^25]: Nichols v. Frank, 42 F.3d 503 (5th Cir. 1994); Sheenan v. United
    States, 896 F.2d 1168, 1173 (9th Cir. 1990).

[^26]: Jones v. Tennessee Valley Auth., 948 F.2d 258, 261 (6th Cir.
    1991); McDaniel v. United States, 970 F.2d 194 (6th Cir. 1992).

[^27]: Swafford v. United States, 998 F.2d 837 (10th Cir. 1993).

[^28]: For an opposing view on the preclusion of judicial review, see
    Czerkies v. Department of Labor, 73 F.3d 1435 (7th Cir. 1996).

[^29]: 5 U.S.C. § 8128(b) (1994).

[^30]: Cobia v. United States, 384 F.2d 711 (10th Cir. 1967); Bailey v.
    United States Army, 451 F.2d 963, 965 (5th Cir. 1971); and Grijalva
    v. United States, 781 F.2d 472, 474 (5th Cir. 1986).

[^31]: 5 U.S.C. § 8116(c) (1994).

[^32]: [S. Rep. No]{.smallcaps}. 93-108, (1974) *reprinted in* 1974
    U.S.C.C.A.N. 2136.

[^33]: Weyerhaeuser S.S. Co. v. United States, 372 U.S. 597, 10 L. Ed.
    2d 1, 83 S.Ct. 926 (1963).

[^34]: *Id.* at 601.

[^35]: Lockheed Aircraft Corp. v. United States, 460 U.S. 190 (1983).

[^36]: *Id.* at 193 (citation omitted).

[^37]: See Avasthi v. United States, 608 F.2d 1059, 1060 (5th Cir.
    1979); Smith v. Office of Personnel Management, 778 F.2d 258, 261
    (5th Cir. 1985); Johnson v. Merit Sys Protection Bd, 812 F.2d 705,
    708 (Fed. Cir. 1987); Swafford v. United States, 998 F.2d 837 (10th
    Cir. 1993); Czerkies v. Department of Labor, 73 F.3d 1435, 1437 (7th
    Cir. 1996); Metz v. United States, 723 F. Supp. 1133, 1137 (D. Md.
    1989).

[^38]: Gill v. United States, 641 F.2d 195 (5th Cir. 1981).

[^39]: *Id.* at 197.

[^40]: In the Matter of Shedrick N. Jackson and Veterans Administration,
    Veterans Administration Hospital, N. Little Rock, Arkansas*,* 8 Em.
    Comp. App. Bd. 119 (1955).

[^41]: In the Matter of Joseph S. Heller and Department of the Air
    Force, San Antonio Air Materiel Area, Kelly Air Force Base, Texas,
    13 Em. Comp. App. Bd. 199 (1961).

[^42]: *Id.*

[^43]: Read as meaning "capable of or consistent with. . . ."

[^44]: 13 Em. Comp. App. Bd. at 200; *See also* In the Matter of Estelle
    M. Kasprzak and Veterans Administration, VA Hospital, Wood,
    Wisconsin*,* 27 Em. Comp. App. Bd. 339, 342 (1976).

[^45]: 13 Em. Comp. App. Bd. at 200.

[^46]: In the Matter of Hurley Furr and Navy Department, U.S. Naval
    Shipyard, Charleston, S.C., 13 Em. Comp. App. Bd. 42 (1961).

[^47]: *Id.* at 44.

[^48]: In the Matter of Lillian Cutler and Department of Labor, Office
    of Workmen's Compensation Programs, Chicago, Ill., 28 Em. Comp. App.
    Bd. 125 (1976).

[^49]: *Id.* at 126.

[^50]: *Id.*

[^51]: *Id*. at 127.

[^52]: *Id*. at 128 n.1.

[^53]: *Id*. at 129.

[^54]: *Id*. at 131.

[^55]: In the Matter of Stanley Smith, O.D. and Deparment of the Navy,
    Philadelphia Naval Shipyard, 29 Em. Comp. App. Bd. 652 (1973).

[^56]: *Id*. at 653.

[^57]: *Id*. at 656.

[^58]: In the Matter of Anna J. Backman and Department of the Navy,
    Puget Sound Naval Shipyard, 30 Em. Comp. App. Bd. 118 (1978).

[^59]: *Id.* at 120.

[^60]: *Id*. at 123.

[^61]: *Id*.

[^62]: *Id.* at 124.

[^63]: *Id*. at 125.

[^64]: In the Matter of Joseph R. Wilson and Department of
    Transportation, Federal Aviation Administration, Air Traffic Control
    Center, 30 Em. Comp. App. Bd. 384 (1979).

[^65]: *Id.* at 385.

[^66]: *Id.* at 388.

[^67]: *Id*.

[^68]: *Id.*

[^69]: *Id.*

[^70]: In the Matter of Pamela R. Rice and United States Postal Serv.,
    Post Office, Sacramento, CA*,* 38 Em. Comp. App. Bd. 838 (1987).

[^71]: *Id.* at 840.

[^72]: *Id*. at 841.

[^73]: The ECAB has never clearly identified what qualified as a "factor
    of employment," beyond stating that an employee has to provide "a
    factual statement identifying employment factors alleged to have
    caused or contributed to the presence or occurrence of the disease
    or condition. . . ." *Id.* at 846.

[^74]: *Id.* at 842. See also In the Matter of Georgia F. Kennedy and
    Department of the Air Force, McClellan AFB, Cal., 35 Em. Comp. App.
    Bd. 1151 (1984).

[^75]: In the Matter of Kathleen D. Walker and Department of the Air
    Force, Air Force Logistics Center, Tinker AFB, Oklahoma, 42 Em.
    Comp. App. Bd. 603 (1991).

[^76]: *Id.* at 608. *See also* In the Matter of David W. Shirey and
    U.S. Postal Serv., Post Office, Erie, Pa., 42 Em. Comp. App. Bd. 783
    (1991); In the Matter of George A. Ross and U.S. Postal Serv., Post
    Office, Los Angeles, Cal., 43 Em. Comp. App. Bd. 346 (1991); In the
    Matter of Donna Faye Cardwell and Veterans Administration, Regional
    Office and Insurance Center, Philadelphia, Pa, 41 Em. Comp. App. Bd.
    730 (1990).

[^77]: In the Matter of William P. George and U.S. Postal Serv., Post
    Office, Anniston, Ala*.,* 43 Em. Comp. App. Bd. 1159 (1992).

[^78]: *Id.* at 1169 (emphasis added). S*ee also* In the Matter of
    Frederick D. Richardson and U.S. Postal Serv., Post Office, Mobile,
    Ala., 45 Em. Comp. App. Bd. 454 (1994); In the Matter of Eileen P.
    Corigliano and Department of the Treasury, U.S. Mint, West Point,
    N.Y., 45 Em. Comp. App. Bd. 581 (1994).

[^79]: Lockheed Aircraft Corp. v. United States*,* 460 U.S. 190, 193, 74
    L. Ed. 2d 911, 103 S. Ct. 1033 (1983).

[^80]: In the Matter of Abe E. Scott and Department of the Navy, Long
    Beach Naval Shipyard, Long Beach, Cal., 45 Em. Comp. App. Bd. 165
    (1993).

[^81]: *Id.* at 166-167.

[^82]: *Id*. at 170.

[^83]: *Id*. at 171.

[^84]: *Id.* at 166.

[^85]: *Id*. at 173.

[^86]: *Id.* at 174.

[^87]: The Civil Rights Act of 1964, 42 U.S.C. §§ 1975-1981 (1994).

[^88]: 42 U.S.C. § 2000e-2 (1994).

[^89]: 42 U.S.C. § 2000e-4 (1994). The EEOC provides oversight and
    direction to federal agencies concerning employment discrimination
    complaints. *See* Procedural Regulations, 29 C.F.R. §1601.1 (1996).

[^90]: H. Rep. No. 914 (1964), *reprinted in* 1964 U.S.C.C.A.N. 2401.

[^91]: Federal Sector Equal Employment Opportunity, 29 C.F.R. § 1614
    (1994).

[^92]: *Id.* § 1614.105.

[^93]: *Id.* §§ 1614.108(f) and 109.

[^94]: *Id.* § 1614.110.

[^95]: For an excellent review of Title VII claims in the federal
    sector, see Robert E. Sutemeier, *Theories of Discrimination in
    Federal Sector Employee Litigation,* 35 [A.F. L. Rev]{.smallcaps}.
    19 (1991).

[^96]: 42 U.S.C. § 2000e-2 (m) (1994).

[^97]: International Bhd. of Teamsters v. United States, 431 U.S. 324,
    335-36 (1977); Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).

[^98]: McDonnell Douglas Corp. v. Green*,* 411 U.S. 792, 802-04 (1973).

[^99]: Price Waterhouse v. Hopkins*,* 490 U.S. 228, 232 (1982). Note,
    the passage of the Civil Rights Act of 1991 amended Title VII and
    reversed part of the *Price Waterhouse* holding. *See* Civil Rights
    Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991).

[^100]: *See* Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987);
    Snell v. Suffolk Co., 782 .2d 1094 (2d Cir. 1986); Walker v. Ford
    Motor Co., 684 F.2d 1355 (11th Cir. 1982).

[^101]: Harris v. Forklift Sys. Inc., 510 U.S. 17, 20 (1993) citing
    Meritor Savs Bank v. Vinson, 477 U.S. 57 (1986). For a good overview
    on handling sexual discrimination claims in the Air Force, see Gail
    D. Reinhart, *Sex Discrimination,* 35 [A.F. L. Rev]{.smallcaps}. 53
    (1991).

[^102]: *See* Davis v. Monsanto Chemical Co., 858 F.2d 345 (6th Cir.
    1988); Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982);
    Vaughn v. Pool Offshore Co., 683 F.2d 922 (5th Cir. 1982).

[^103]: 42 U.S.C. § 2000e-5 (g) (1994).

[^104]: International Bhd. of Teamsters v. United States, 431 U.S. 324,
    335-36 (1977); Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).

[^105]: For a good introduction to age discrimination cases, see Marilyn
    A. Gordon, *Age Discrimination in Employment,* 35 [A.F. L.
    Rev]{.smallcaps}. 63 (1991).

[^106]: Jean Calhoun Brooks, Note, *Employment Discrimination -- The
    Supreme Court Liberates Title VII Mixed Motive Cases from the
    Procrustean Bed. Of the McDonnell Douglas/Burdine Pretext Model* --
    *Price Waterhouse v. Hopkins*, 25 [Wake Forest L. Rev]{.smallcaps}.
    345, 345-46 (1990).

[^107]: Griggs v. Duke Power Co., 401 U.S. 424 (1971); Ablemarle Paper
    Co. v. Moody, 422 U.S. 405 (1975).

[^108]: This fourth step is explained in depth in Brooks, *supra* note
    106. For a thorough analysis of the first three steps, see
    Sutemeier, *supra* note 95.

[^109]: 42 U.S.C. § 2000e-5(g) (1994).

[^110]: 42 U.S.C. § 1981a(b) (1994). For a comprehensive discussion of
    the EEOC's cases on Compensatory Damages, see Comment*, Grasping the
    Intangible: A Guide to Assessing Non-Pecuniary Damages in the EEOC
    Administrative Process*, 46 [Am. U. L. Rev]{.smallcaps}. 189 (1996).

[^111]: 42 U.S.C. § 1981a (b)(3)(D) (1994).

[^112]: 29 U.S.C. § 791 *as amended by* 42 U.S.C. § 1981A(c)(2) (1991).
    The Act provides coverage for handicap discrimination. For an
    in-depth introduction to the Act, see Richard F. Richards, *Handicap
    Discrimination in Employment: The Rehabilitation Act of 1973,* 39
    [Ark. L. Rev.]{.smallcaps} 1 (1985).

[^113]: 42 U.S.C. § 1981a (b)(3) (1994).

[^114]: 42 U.S.C. § 1981a (b)(1) (1994).

[^115]: EEOC Policy Guidance on Compensatory and Punitive Damages Under
    1991 Civil Rights Act, (July 7, 1992).

[^116]: H. Rep. No. 102-40(I) (1991), *reprinted in* 1991 U.S.C.C.A.N.
    552.

[^117]: *Id.* at 604.

[^118]: H. Rep. No. 102-40(II) (1991), *reprinted in* 1991 U.S.C.C.A.N.
    718.

[^119]: *Id*. at 735.

[^120]: In the Matter of Hurley Furr and Navy Department, U.S. Naval
    Shipyard, Charleston, S.C., 13 Em. Comp. App. Bd. 42 (1961).

[^121]: In the Matter of Pamela R. Rice and United States Postal Serv.,
    Post Office, Sacramento, CAU.*,* 38 Em. Comp. App. Bd. 838 (1987).

[^122]: Roundtree v. Department of Agriculture, EEOC Appeal No. 01941906
    (July 7, 1995) 95 FEOR 3223 (citing Jackson v. United States Postal
    Serv., EEOC Appeal No. 01923399 (Nov. 12, 1992) (which required the
    complainant to prove by objective evidence that he incurred
    compensatory damages, and that the damages were proximately caused
    by the discriminatory conduct)).

[^123]: *Id.* at 7-9.

[^124]: Jackson v. United States Postal Serv., EEOC Appeal No. 01923399
    (Nov. 12, 1992).

[^125]: Carle v. Department of the Navy, EEOC Appeal No. 01922369 (Jan.
    5, 1993).

[^126]: Adesanya v. U.S. Postal Serv.*,* EEOC Appeal No. 01933395 (July
    21, 1994).

[^127]: Carpenter v. Glickman*,* EEOC Appeal No. 01945526 (July 17,
    1995).

[^128]: *Id.* at 11 n.5.

[^129]: EEOC Apeal No. 01922369 (Jan. 5, 1993) (citing Cygnar v. City of
    Chicago, 865 F.2d 827, 848 (7^th^ Cir. 1989).)

[^130]: Bailey v. Department of the Army, 451 F.2d 963 (5th Cir. 1971);
    Avasthi v. United States*,* 608 F.2d 1059 (5th Cir. 1979); Bruni v.
    United States, 964 F.2d 76 (1st Cir. 1992).

[^131]: *See* 42 U.S.C. § 2000e-2 (m) (1994); *see also* Gill v. United
    States*,* 641 F.2d 195 (5th Cir. 1981), Hicks v. Gates Rubber Co.,
    833 F.2d 1406 (10^th^ Cir. 1987), Snell v. Suffolk Co., 782 F.2d
    1094 (2d Cir. 1986); Walker V. Ford Motor Company, 684 F.2d 1355
    (11th Cir. 1982).

[^132]: Benton v. United States, 960 F.2d 19 (5th Cir. 1992).

[^133]: *Id*. at 22 (citing Rodrigues v. Donovan, 769 F.2d 1344 (9th
    Cir. 1985)).

[^134]: Gill v. United States, 641 F.2d 195 (5th Cir. 1981).

[^135]: *See* Avasthi v. United States*,* 608 F.2d 1059 (5^th^ Cir.
    1979).

[^136]: Saltzman v. United States, 104 F.3d 787 (6th Cir. 1997)
    ("Plaintiffs cannot avoid the exclusive and limited nature of relief
    under FECA by labeling their various damages as an array of
    different claims to which defendant is subject, some covered by FECA
    and some not.").

[^137]: Avasthi v. United States*,* 608 F.2d 1059 (5^th^ Cir. 1979).

[^138]: *Id.* at 1061.

[^139]: *Id.*

[^140]: *Id.*

[^141]: *Id.*

[^142]: Avasthi v. United States*,* 781 F.2d 472 (5th Cir. 1986).

[^143]: *Id.* at 473.

[^144]: *Id.* at 474.

[^145]: *Id.*

[^146]: DeFord v. Secretary of Labor and the Tennessee Valley Auth*.,*
    700 F.2d 281 (6th Cir. 1983).

[^147]: *Id*. at 284.

[^148]: *Id*. at 289.

[^149]: Energy Sources Development, Employee Protection, 42 U.S.C. §
    5851 (1995).

[^150]: 700 F.2d at 289.

[^151]: *Id*. at 290.

[^152]: *Id*. at 290.

[^153]: *Id*. at 291.

[^154]: Miller v. Bolger*,* 802 F.2d 660 (3d Cir. 1986).

[^155]: *Id.* at 661.

[^156]: *Id.*

[^157]: 802 F.2d at 661.

[^158]: *Id.*

[^159]: *Id.* at 664-665.

[^160]: *Id.*

[^161]: *Id.* at 665.

[^162]: *Id.* at 666.

[^163]: Sheehan v. United States, 896 F.2d 1168 (9th Cir. 1990).

[^164]: *Id.* at 1169,.

[^165]: *Id.* at 1168-69.

[^166]: The court remanded, holding that the district court *was* the
    appropriate forum for the intentional infliction of emotional
    distress claim. *Id.* at 1173.

[^167]: *Id.* at 1173.

[^168]: Guidry v. Durkin, 834 F.2d 1465 (9th Cir. 1987).

[^169]: *Id*. at 1474 (citations omitted).

[^170]: Sheehan v. United States*,* 917 F.2d 424 (9th Cir. 1990) (Of
    course, a court doesn't "withdraw" language from an earlier opinion;
    it overrules it.).

[^171]: Swafford v. United States, 998 F.2d 837 (10th Cir. 1993).

[^172]: *Id.* at 838.

[^173]: *Id.* at 838-39.

[^174]: *Id.* at 841.

[^175]: *Id.* (citing Cobia v. United States, 384 F.2d 711 (10th Cir.
    1967), *cert. denied,* 390 U.S. 986, 88 S.Ct. 1182, 19 L.Ed.2d. 1290
    (1968)).

[^176]: 998 F. 2d at 839-841 (citing Lockheed Aircraft Corp. v. United
    States, 460 U.S. 190 (1983), Jones v. Tennessee Valley Auth., 948
    F.2d 258 (6th Cir. 1991), Avasthi v. United States, 608 F.2d 1059
    (5th Cir. 1979)).

[^177]: 998 F.2d at 840 (discussing Sheehan v. United States, 917 F.2d
    424 (9^th^ Cir. 1990)).

[^178]: McDaniel v. United States*,* 970 F.2d 194 (6th Cir. 1992).

[^179]: 998 F.2d at 840.

[^180]: *Id.* at 841.

[^181]: *Id.*

[^182]: Nichols v. Frank, 42 F.3d 503 (5th Cir. 1994).

[^183]: *Id.* at 507-508.

[^184]: *Id.* at 515.

[^185]: *Id.*

[^186]: *Id.*

[^187]: *Id.* at 516.

[^188]: Note the language in *DeFord*: "\[I\]t is little or nothing more
    than a workmen's compensation act." Deford v. Secretary of Labor and
    the Tennessee Valley Auth., 700 F.2d 281, 290 (6^th^ Cir. 1983).

[^189]: Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193, 103
    S. Ct. 1033, 74 L. Ed. 2d 911 (1983).

[^190]: Gill v. United States*,* 641 F.2d at 197.

[^191]: 42 F.2d at 515-516.

[^192]: Guidry v. Durkin, 834 F.2d 1465 (9th Cir. 1987).

[^193]: *Id.* at 1471.

[^194]: *Id.* at 1472.

[^195]: Sheehan v. United States, 896 F.2d 1168 (9th Cir. 1990). *See
    supra,* text accompanying notes XX-XX.

[^196]: *Id.* at 1174.

[^197]: Jones v. Tennessee Valley Authority*,* 948 F.2d 258 (6th Cir.
    1991).

[^198]: *Id*. at 260.

[^199]: *Id.* at 265.

[^200]: McDaniel v. United States, 970 F.2d 194 (6th Cir. 1992).

[^201]: *Id.* at 196.

[^202]: *Id.* (citing DeFord v. Secretary of Labor, 700 F.2d 281, 290
    (6th Cir. 1983)).

[^203]: 970 F.2d. at 196.

[^204]: *Id.* at 197 (discussing Jones v. Tennessee Valley Auth., 948
    F.2d 258, 261 (6th Cir. 1991).

[^205]: *Id.* at 197.

[^206]: Figueroa v. United States, 7 F.3d 1405 (9th Cir. 1993).

[^207]: *Id.* at 1407.

[^208]: *Id.* at 1408.

[^209]: *See* Karnes v. Runyon, 912 F. Supp. 280 (S.D. Ohio 1995);
    Callanan v. Runyon, 930 F. Supp. 1285 (D. Minn. 1994); Underwood v.
    United States Postal Serv., 742 F. Supp. 968 (M.D. Tenn. 1990);
    Newman v. Legal Serv. Corp., 628 F. Supp. 535 (D.D.C. 1986);
    Sullivan v. United States*,* 428 F. Supp. 79 (E.D. Wisc. 1977).

[^210]: George v. Frank*,* 761 F. Supp. 256 (S.D. NY 1991).

[^211]: *Id.* at 259 (relying upon Miller v. Bolger, 802 F.2d 660 (3d
    Cir. 1986), and Nichols v. Frank, 42 F.3d 503 (5^th^ Cir. 1994)).

[^212]: *Id.*

[^213]: Gergick v. Austin, 764 F. Supp. 580 (W.D. Mo. 1991).

[^214]: *Id.*

[^215]: *Id.* at 581 (citing DeFord v. Secretary of Labor, 700 F.2d 281,
    290 (6th Cir. 1983), Guidry v. Durkin, 834 F.2d 1465 (9th Cir.
    1987), Sheehan v. United States, 896 F.2d 1168 (9th Cir. 1990),
    Newman v. Legal Serv. Corp., 628 F. Supp. 535 (D.D.C. 1986)).

[^216]: 764 F. Supp. at 581.

[^217]: Johnson v. Sullivan, 764 F. Supp. 1053 (D. Md. 1991).

[^218]: Williams v. United States, 565 F. Supp. 59 (N.D. Miss.1983).

[^219]: Eure v. United States Postal Serv., 711 F. Supp. 1365 (S.D.
    Miss. 1989).

[^220]: 565 F. Supp. At 60.

[^221]: 711 F. Supp. At 1365.

[^222]: Metz v. United States, 727 F. Supp. 1133 (D. Md. 1989).

[^223]: *Id.* at 1137.

[^224]: Alexander v. Frank*,* 777 F. Supp. 516 (N.D. Tex. 1991).

[^225]: *Id.* at 525.

[^226]: *Id.* at 524 (citations omitted).

[^227]: Castro v. United States*,* 757 F. Supp. 1149 (W.D. Wash. 1991).

[^228]: *Id.* at 1150.

[^229]: *Id.* at 1151.

[^230]: *Id.* (citing In the Matter of Lillian Cutler and Department of
    Labor, Office of Workmen's Compensation Programs, Chicago, Ill., 28
    Em. Comp. App. Bd. 125 (1976)).

[^231]: 757 F. Supp. at 1151.

[^232]: Staubler v. Runyon*,* 892 F. Supp. 228 (W. D. Mo. 1994).

[^233]: 29 U.S.C. § 701.

[^234]: 892 F. Supp. at 231.

[^235]: *Id*. at 229.

[^236]: *Id.* at 231 (citing Miller v. Bolger, 802 F.2d 660 (3d Cir.
    1986)).

[^237]: *Id.* at 230 (The court ruled that this case was more analogous
    to *Alexander v. Frank,* 777 F. Supp. 516 (N.D. Tex. 1991), than it
    was to the decision in *Miller.*).

[^238]: 892 F. Supp. at 231.

[^239]: Jackson v. Runyon, Postmaster General, United States Postal
    Serv., EEOC Petition No. 05930306 (Feb. 1, 1993).

[^240]: *Id*. at 4.

[^241]: *Id.* (citing Miller v. Bolger, 802 F.2d 660 (3d Cir. 1986),
    Nichols v. Frank, 42 F.3d 503 (5^th^ Cir. 1994), Davis v. United
    States Postal Serv., EEOC Petition No. 04900010 (Dec. 29, 1990)).

[^242]: EEOC Petition No. 05930306 (Feb. 1, 1993) at 4.

[^243]: *Id.* n.4 (discussing Davis v. United States Postal Serv., EEOC
    Petition No. 04900010 (Dec. 29, 1990).

[^244]: *Id.* at n.6.

[^245]: 5 U.S.C. § 8128(b)(2).

[^246]: Finlay v. United States Postal Serv*.,* EEOC Appeal No. 01942985
    (Apr. 29, 1997).

[^247]: DeFord v. Secretary of Labor, 700 F.2d 281, 290 (6th Cir. 1983)
    (citing United States v. Udy, 381 F.2d 455, 456 (10th Cir. 1967);
    DeSousa v. Panama Canal Co., 202 F.Supp. 22, 25 (S.D.N.Y. 1962)).

[^248]: 892 F. Supp. at 229.

[^249]: In the Matter of William P. George and U.S. Postal Serv., Post
    Office, Anniston, Ala*.,* 43 ECAB 1159 (1992).

[^250]: Of course, this would then run afoul of courts holding that
    discrimination cases are not tort actions. If they were, the FTCA
    would apply. If the FTCA applied, then FECA would be the exclusive
    remedy for federal employees.

[^251]: Carpenter v. Glickman, EEOC Appeal No. 01945526 (July 17, 1995).

[^252]: The complete set currently contains over 45 volumes.

[^253]: A brief review of the EEOC decisions in this area shows awards
    ranging from \$1,000, *Mullins v. Runyon,* EEOC 01954362, May 22,
    1997, through \$100,000, *Finlay v. Runyon,* EEOC 01942985, Apr. 29,
    1997. As the EEOC noted in *Roquemore v. Runyon,* EEOC 01951930,
    Mar. 31, 1997:

    > The Commission reminds the parties that there are no precise
    > formulas for determining the amount of damages for non-pecuniary
    > lossess. An award of compensatory damages for non-pecuniary
    > losses, including emotional harm, should reflect, however, the
    > extend which appellant has established that the agency's actions
    > directly or proximately caused the harm. . . .

[^254]: *See* George v. Frank, 761 F. Supp. 256 (S.D. Md. 1991); Miller
    v. Bolger, 802 F.2d 660 (3d Cir. 1986).

[^255]: *See* Staubler v. Runyon, 892 F. Supp. 228 (W.D. Mo. 1994);
    Nichols v. Frank, 42 F.3d 503 (9th Cir. 1994).

[^256]: Miller v. Bolger, 802 F.2d 660, 665 (3rd Cir. 1986).

[^257]: Nichols v. Frank, 42 F.3d 503 (9^th^ Cir. 1994).

[^258]: April v. Glickman, EEOC Appeal No. 01963775.

[^259]: Federal Sector Equal Employment Opportunity, 29 C.F.R. §
    1614.301.

[^260]: DeFord v. Secretary of Labor, 700 F.2d 281, 290 (6th Cir. 1983).

[^261]: Lockheed Aircraft Corp. v. United States, 460 U.S. 190 (1983).

[^262]: *See* Alexander v. Gardner-Denver Co., 415 U.S. 36, 39 L.Ed. 2d
    147, 94 S.Ct. 1011 (1974); Rogers v. General Elec. Co., 781 F.2d 452
    (5th Cir. 1986); EEOC v. Cosmair, Inc., 821 F.2d 1085 (5th Cir.
    1987); Royal v. Secretary of Health and Human Serv., EEOC Appeal No.
    01903626 (1990).