The case is Saber v. New York State Department Financial Services, 2018 WL 3491965 (S.D.N.Y. July 27, 2018). The plaintiff is an Iranian-born professional who suffered discrimination and retaliation based on his national origin. He worked for a state agency, which makes this case all the more unusual, since the state is not a mom-and-pop employer and trains its personnel not to discriminate. But for some people, all the training in the world is not going to make a difference. Maybe the jury in this case wanted to teach the state a lesson in awarding plaintiff $2.5 million dollars. But post-trial, the judge teaches us a lesson in remittur, and a dramatic one at that. The court reduces the pain and suffering award to $$125,000, as dramatic a reduction as you'll ever see.
The court notes that you can get emotional distress damages even without seeking medical treatment, and even if the distress does not manifest itself in physical symptoms. But courts also look to similar cases to see if the damages are too high. The court classifies this case as "garden variety" emotional distress (as opposed to significant or egregious) because the plaintiff did not seek medical attention. The court also bears in mind that the damages cap under Title VII for large employers is $300,000, so that's the ceiling against the State of New York. Under the cases, the upper limit for garden variety damages is $125,000, and that's what plaintiff gets in this case.
Plaintiff and his wife testified about his emotional distress. I seem to remember that, in the past, plaintiffs would get more money if other witnesses corroborate their pain and suffering, but this trend seems to have subsided. In this case, the trial court simply adopts the $125,000 (judge-made) cap on garden variety damages. Here is the testimony on this issue, which references the discriminatory comments directed toward plaintiff (who is from Iran) including "yellow cake" (a supervisor's comment about plaintiff hiding nuclear material) and waterboarding, which brings to mind Middle East torture:
At the trial, Plaintiff testified that he felt “extremely uncomfortable ... because people turn and stare at you” in response to Logan’s “yellow cake” comment and that he felt “very, very much offended,” “very angry,” and “also upset and concerned” in response to Gollop’s “waterboarding” comment. Plaintiff described feeling “that I am always the target ... And when you go to work, you absolutely do not know what can set off something very negative and uncomfortable,” leaving him feeling “very insecure about the future and very isolated, and looking over the shoulder constantly.” He also testified that he was sleeping less and at times felt humiliated and embarrassed. Plaintiff’s wife similarly testified that Plaintiff “has become more reserved and ... doesn't like to engage with people that much, and kind of upset” and that Plaintiff “cannot sleep good and cannot sleep long,” “is very distracted” and that he listens to music a lot “to get peace with music, like holding himself.” Plaintiff has not sought treatment for any physical or mental conditions associated with the injuries he alleges were attributable to the actions of DFS that form the basis of this lawsuit.
The court, in a second ruling, also awarded plaintiff front pay, or future lost income. The court decides not to reinstate plaintiff to his old position, as that will cause untold tension in the workplace. So the court instead compensates plaintiff for the lost wages. At 65 years old, the court says, plaintiff is unlikely to find a comparable position. So the court gives him five years' front pay. Front pay awards vary from case to case, as courts try to ensure the awards are not too speculative. Five years works in this case. Here is the analysis:
t
age 65, Plaintiff is unlikely to obtain a position with another
employer for the next five years with a comparable level of
responsibility and compensation; a new employer is unlikely to hire and
train Plaintiff for a position comparable to CRMS, given how close
Plaintiff is to retirement. The position that DFS is offering Plaintiff
also is not comparable to the CRMS position, as Plaintiff’s duties,
level of responsibility, status, and working conditions would remain
unchanged, albeit with an increased salary.
An
award of front pay for a 5-year period is not unduly speculative.
Plaintiff has worked at DFS or its predecessor since 2001. He rose
through the ranks and has remained at DFS since then. Plaintiff states
that he intends to retire at age 70, in five years, in order to maximize
his social security annuity and his New York State pension. See, e.g., Chisholm v. Memorial Sloan—Kettering Cancer Center, 824 F.Supp.2d 573, 577 (S.D.N.Y. 2011) (award of front pay for two years found to be warranted); Hill v. Airborne Freight Corp.,
No. 97 Civ. 7098, 2003 WL 366641, at *5 (E.D.N.Y. Feb. 20, 2003)
(awarding front pay for approximately one year and collecting cases); Padilla v. Metro-North Commuter R.R., 92 F.3d, 117, 126 (2d Cir. 1996) (awarding front pay for over 20 years); Bethlehem Steel Corp., 958 F.2d at 1189 (2d Cir. 1992) (awarding front pay for a 17-year period).
Saber v. New York State Dep't of Fin. Servs., No. 15 CIV. 5944 (LGS), 2018 WL 3611718, at *5 (S.D.N.Y. July 27, 2018)
t
age 65, Plaintiff is unlikely to obtain a position with another
employer for the next five years with a comparable level of
responsibility and compensation; a new employer is unlikely to hire and
train Plaintiff for a position comparable to CRMS, given how close
Plaintiff is to retirement. The position that DFS is offering Plaintiff
also is not comparable to the CRMS position, as Plaintiff’s duties,
level of responsibility, status, and working conditions would remain
unchanged, albeit with an increased salary.
An
award of front pay for a 5-year period is not unduly speculative.
Plaintiff has worked at DFS or its predecessor since 2001. He rose
through the ranks and has remained at DFS since then. Plaintiff states
that he intends to retire at age 70, in five years, in order to maximize
his social security annuity and his New York State pension. See, e.g., Chisholm v. Memorial Sloan—Kettering Cancer Center, 824 F.Supp.2d 573, 577 (S.D.N.Y. 2011) (award of front pay for two years found to be warranted); Hill v. Airborne Freight Corp.,
No. 97 Civ. 7098, 2003 WL 366641, at *5 (E.D.N.Y. Feb. 20, 2003)
(awarding front pay for approximately one year and collecting cases); Padilla v. Metro-North Commuter R.R., 92 F.3d, 117, 126 (2d Cir. 1996) (awarding front pay for over 20 years); Bethlehem Steel Corp., 958 F.2d at 1189 (2d Cir. 1992) (awarding front pay for a 17-year period).
Saber v. New York State Dep't of Fin. Servs., No. 15 CIV. 5944 (LGS), 2018 WL 3611718, at *5 (S.D.N.Y. July 27, 2018)
An
award of front pay for a 5-year period is not unduly speculative.
Plaintiff has worked at DFS or its predecessor since 2001. He rose
through the ranks and has remained at DFS since then. Plaintiff states
that he intends to retire at age 70, in five years, in order to maximize
his social security annuity and his New York State pension. See, e.g., Chisholm v. Memorial Sloan—Kettering Cancer Center, 824 F.Supp.2d 573, 577 (S.D.N.Y. 2011) (award of front pay for two years found to be warranted); Hill v. Airborne Freight Corp.,
No. 97 Civ. 7098, 2003 WL 366641, at *5 (E.D.N.Y. Feb. 20, 2003)
(awarding front pay for approximately one year and collecting cases); Padilla v. Metro-North Commuter R.R., 92 F.3d, 117, 126 (2d Cir. 1996) (awarding front pay for over 20 years); Bethlehem Steel Corp., 958 F.2d at 1189 (2d Cir. 1992) (awarding front pay for a 17-year period).
Saber v. New York State Dep't of Fin. Servs., No. 15 CIV. 5944 (LGS), 2018 WL 3611718, at *5 (S.D.N.Y. July 27, 2018)
An award of front pay for a 5-year period is not unduly speculative. Plaintiff has worked at DFS or its predecessor since 2001. He rose through the ranks and has remained at DFS since then. Plaintiff states that he intends to retire at age 70, in five years, in order to maximize his social security annuity and his New York State pension. See, e.g., Chisholm v. Memorial Sloan—Kettering Cancer Center, 824 F.Supp.2d 573, 577 (S.D.N.Y. 2011) (award of front pay for two years found to be warranted); Hill v. Airborne Freight Corp., No. 97 Civ. 7098, 2003 WL 366641, at *5 (E.D.N.Y. Feb. 20, 2003) (awarding front pay for approximately one year and collecting cases); Padilla v. Metro-North Commuter R.R., 92 F.3d, 117, 126 (2d Cir. 1996) (awarding front pay for over 20 years); Bethlehem Steel Corp., 958 F.2d at 1189 (2d Cir. 1992) (awarding front pay for a 17-year period).Overall, plaintiff is awarded back pay of $121,231, discounted front pay of $185,926 and discounted pension loss of $168,167.
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