How do courts put a dollar value on pain and suffering in employment discrimination cases?

In this employment discrimination case, the jury found that the defendants discriminated and retaliated against the plaintiff because of his national origin. It also found the employer subjected plaintiff to a hostile work environment. The jury awarded the plaintiff $250,000 for pain and suffering and $2 million in punitive damages. Both awards are reduced, shedding light on judicial thinking in these areas.

The case is Lewis v. American Sugar Refining, Inc. a district court ruling issued on August 17. I write about the alleged juror misconduct issue on Tuesday, at this link. Now I write about the compensatory damages. I helped to defend the verdict post-trial. Megan Goddard and Nathaniel Charny tried the case in April 2018.

Over the last few years, district courts in New York have settled upon a three-tiered damages calculation for employment discrimination cases. We got "garden-variety," significant and egregious. Post-trial, the judge decides which of these categories best fits the plaintiff's pain and suffering, and the damages award -- reached by the jury after careful and thoughtful deliberation -- is sometimes cheerfully tossed in favor of a new number for the plaintiff, who now has a choice: accept the new damages amount or proceed to a new trial on damages.

In the garden-variety equation, courts can live with damages in the range of $30,000 to $125,000. For significant damages, courts will allow $100,000 to $500,000. For egregious damages, it can reach seven figures. "Evidence in a garden-variety claim is generally provided by the plaintiff, who describes the mental suffering in 'vague or conclusory terms, without relating either the severity or consequences of the injury.'" Contrast that with significant damages cases: "A claim of significant emotional distress differs from that of a garden-variety claim because it is 'based on more substantial harm or more offensive conduct, [is] sometimes supported by medical testimony and evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses.' Courts find emotional distress significant when plaintiffs provide extensive testimony of physical manifestations of their mental anguish, such as hair and weight loss, insomnia, or repeated nightmares, testify to loss of familial and marital relations, have their testimony supported by a mental health professional and corroborated by one or more co-workers, and when plaintiffs continue to experience emotional damage as of the time of trial." Many of these cases involve a battle between garden-variety and significant damages.

The court in this case says Lewis suffered only garden-variety damages. Here is how Judge Kelly summarizes the damages evidence:

Plaintiff testified that Defendant Ramphal repeatedly harassed him by using the phrase “you people,” which he and witness Gaffney both interpreted to mean the “n word,” would use the company’s walkie-talkie system, which operated on the same frequency as many of the departments, in a manner that made Plaintiff feel “ridicul[ed],” “degraded,” and “very distraught,” and created an atmosphere on the plant floor where other employees would make fun of Plaintiff. Plaintiff testified that he suffered anxiety at work as a result of having to interact and/or ask questions of Defendant Ramphal, became “very distraught” by how he was treated, spent time in the restroom because “[he] felt like [he] was going to throw up a few times[,]” and at one point did throw up. Plaintiff explained that the physical manifestation of his emotional distress was the result of Defendant Ramphal’s behavior and the lack of response from Defendant ASR. Plaintiff testified that he believed Defendant Ramphal was trying to get him fired, that the increased, improper discipline was part of that attempt, and that his job was in “jeopardy.”

Plaintiff also testified to seeking treatment from a mental health professional over a period of approximately a year and a half. At the sessions, Plaintiff testified that he spoke about the relationship with his child and his worries of how the company’s retaliation could affect his ability to provide, see, and maintain a relationship with his child. Plaintiff also testified that he was prescribed Wellbutrin and Prozac, which he took over the course of a year, but only on weekends or later in the evening out fear of becoming overly relaxed while operating heavy machinery.

Plaintiff’s testimony was supported by witness Schullere, with whom Plaintiff has been friends with since elementary school and who has known Plaintiff throughout his entire career with the company. Schullere testified that he and Plaintiff speak weekly, and that during the time Plaintiff was supervised by Defendant Ramphal, he observed Plaintiff’s demeanor “chang[ing] drastically[,]” as Plaintiff became “filled with anxiety” and “very depressed.” Schullere also testified that Plaintiff would frequently speak to him about Defendant Ramphal and the work situation generally, and that Plaintiff “was extremely worried” about losing employment and the negative ramifications it could have on the custody dispute. Seeing the “toll” Plaintiff’s work situation was having on “[Plaintiff’s] entire life,” his observation that “[he] had never seen [Plaintiff] at that state,” and his belief that “[Plaintiff] was just too devastated to go on without getting any kind of help[,]” Schullere recommended Plaintiff seek treatment.

The court rules these are garden-variety and not significant damages, even though the plaintiff took medication, sought therapy and had a corroborating witness as to his pain and suffering. These issues are not an exact science, and the jury is not provided with these guidelines when it deliberates on the value of a plaintiff's claims. The trial court therefore says the $250,000 pain and suffering award is too high and the plaintiff should only be entitled to $115,000.