Friday, July 11, 2008

What is a case worth? The Appellate Division tells us.

That's the question that lawyers and litigants ask all the time. Back pay is easy to calculate, but what about pain and suffering? There are few guidelines in the statutes governing this issue, but the case law does provide some guidance. This week, the Appellate Division in Albany did just that, reducing an $850,000 damages award to $200,000.

The case is New York State Dept. of Correctional Services v. New York State Division of Human Rights, decided on Juy 10. The employee, Alicia S. Humig, was the only female correction officer on her cell block at Wende Correctional Facility. A hearing officer found that she was subjected to a hostile work environment and discrimination based upon her gender and sexual orientation through a co-worker's obscene language and offensive conduct, which her employer did not remedy. In fact, Humig was retaliated against for complaining about the discrimination. The hearing officer awarded Humig $850,000 for pain and suffering.

While upholding the findings of liability, the Third Department significantly reduced the damages award: "We cannot agree, however, that the award of $850,000 for Humig's emotional distress is reasonably related to the wrongdoing, supported by the record and comparable to other awards for similar injuries. It is well settled that 'an award of compensatory damages must be based on pecuniary loss and emotional injuries actually suffered' as a result of discrimination, and '[c]are must be taken to insure that the award is . . . not punitive.'"

Here is the extent of Humig's pain and suffering:

As a result of the discriminatory actions by Wright, she suffered from increased stress, sleeping and eating difficulties, nosebleeds, and that she was physically, mentally and emotionally upset and needed counseling for what her counselor diagnosed as "adjustment disorder with depressive features." Notably, however, Humig attended only four counseling sessions, and she does not claim that she took any leave or was prescribed any medication due to the resulting distress. She testified that Wright's actions caused her to fear for her life and she believed that other correction officers might not come to her aid if a dangerous situation developed.

But this evidence is not enough support the high damages award, at least according to cases decided by the New York courts. Note that while she received counseling, she only went four times. While she suffered serious emotional distress, she did not take leave or any medication for it. The Appellate Division assesses Humig's pain and suffering at $200,000, still a lot of money, but nowhere near $850,000.

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