Friday, April 15, 2016

Valuing pain and suffering in employment cases (Part IV)

This is Part IV of my series of blog posts on pain and suffering. Someone needs to compile a summary of all pain and suffering awards in the federal courts in the Second Circuit. The judges sort of do this for us when they have to decide a post-trial motion analyzing a jury award. But these decisions of course do not summarize all the cases. Some scholars have written up summaries, but they are not always updated, and lawyers and parties are left to guess about what the cases are worth. This makes settlement talks difficult, both when talking with opposing counsel and with clients.

The case is Wharton v. County of Nassau,, No. 10-CV-0265, 2015 U.S. Dist. LEXIS 100308 (E.D.N.Y. July 30, 2015). Plaintiff alleged that defendants discriminated against him based upon his race and religion, and retaliated against him for complaining about defendants' discriminatory employment practices. For example, he claimed he was denied a religious accommodation in retaliation for complaining about discrimination. He also received a Notice of Personnel Action that accused him of misconduct on the job. The jury found in his favor and awarded him $375,000 in pain and suffering. What that too much money? The district court says "yes."

Here is the evidence on plaintiff's emotional suffering.

Wharton presented testimony at trial that the issuance of the [Notice of Personnel Action] and the Department's denials of time-off requests affected him emotionally. He testified that the Department's treatment made him feel "singled out" and "ostracized"--like he was "not really part of the team." Wharton also claimed that he was concerned about his safety at work after he received the NOPA.

Wharton's wife of thiry-eight years testified that Wharton's behavior at home changed after he received the NOPA. He "felt betrayed," she said, "[t]he trust from the department that he thought that he had wasn't there." According to his wife, Wharton's emotional problems manifested themselves physically--he wasn't as "interactive with the family," was less intimate with his wife, developed headaches, and had trouble sleeping.

To cope with his emotional issues, Wharton sought "pastoral counseling" from his bishop, Roger Clark Seaver, and from Reverend Algernon Hannah, an associate pastor at his church. Hannah testified that he knew Wharton for twenty-five to thirty years and provided religious counseling to him for a decade. Hannah testified that between 2007 and 2009 he observed that Wharton became "depressed about what was happening on the job." Hannah acknowledged, however, that he had no clinical training. On cross examination, Hannah admitted that Wharton never discussed any physical manifestations of his unhappiness. Hannah also admitted on cross-examination that Wharton's son had been arrested during the time he was feeling depressed at work and that Wharton felt embarrassed because of the incident.

Wharton also claimed that he was damaged professionally. He testified that his "professional relationship with coworkers [and] supervisors" became "tainted" and his "reputation with other clergy, [and] other volunteers" was also damaged. Wharton also asserted that the NOPA stunted his opportunity to get a master's certification as a chaplain, which he planned to obtain with the support of a religious organization. Finally, Wharton testified that he felt the NOPA "affected [his] opportunity for mobility within the department as far as promotions." However, Wharton admitted that he was not fined, demoted, suspended, or terminated.  Moreover, he had to take and pass an exam before he could be promoted from Corrections Officer to Corporal.
The courts have agreed upon a range of damages available to employment discrimination plaintiffs. "At the low end of the continuum are what have become known as 'garden-variety' distress claims in which district courts have awarded damages for emotional distress ranging from $5,000 to $35,000." You get these damages when "the evidence of harm was presented primarily through the testimony of the plaintiff, who describes his or her distress in vague or conclusory terms and fails to describe the severity or consequences of the injury." The middle of the spectrum, what we call "significant" damages, ranges from $50,000 to $100,000. "These claims differ from the garden-variety claims in that they are based on more substantial harm or more offensive conduct, are sometimes supported by medical testimony or evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses." The "egregious" emotional distress claims, however, can be worth in excess of $100,000. But "more recently, Courts have sanctioned jury damages ranging from $30,000 to $125,000 for 'garden-variety' emotional distress." 

The judge reduces plaintiff's pain and suffering to $60,000, a sharp reduction from $375,000. Here is the reasoning:

Wharton was not demoted, fined, or terminated as a result of any of Defendants' actions. Although he claimed that the NOPA affected his promotion opportunities, he admitted that he did not pass the exam necessary to be promoted from corrections officer to corporal. Thus, his only compensable damages were for emotional distress. The evidence is clear, however, that Wharton's emotional distress did not rise above the garden-variety. Wharton and his wife testified that Defendants actions caused him to feel "ostracized," "betrayed" and concerned about his safety. Wharton's wife also testified that he "wasn't as interactive with the family," was less intimate, developed headaches, and had trouble sleeping. Reverend Hannah, who provided Wharton with "spiritual counseling," also testified that Wharton became "depressed," however, Hannah acknowledged that he had no clinical training, and admitted that Wharton never discussed physical manifestations of his unhappiness. Wharton never sought medical attention for emotional distress and did not introduce testimony from a medical professional. The evidence in this case therefore does not support the $375,000 in compensatory damages awarded by the jury, a verdict above and beyond damages awards in cases where plaintiffs suffered "significant" or "egregious" emotional distress.

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