Monday, December 23, 2013

$450k damages award in discrimination case reduced to $50,000

When you read about a huge verdict in the newspaper, you may not realize that the case is not yet over. The trial court can reduce the size of the verdict if the jury gave the plaintiff too much money. The jury is not given much guidance in setting a damages award. They are basically told to give the plaintiff an amount they deem fair. A bewildered jury then has to put a price on the plaintiff's pain and suffering. Not an easy task. Hence the huge jury awards. In this case, the jury awarded the plaintiff $450,000 in an employment discrimination case. The trial court reduced it to $50,000. To the uninitiated, this may seem a shocking reduction. But it's not. The Court of Appeals affirms.

The case is Dotson v. City of Syracuse, a summary order decided on November 27. Plaintiff alleged she was retaliated against for complaining about pornography in the workplace. The jury awarded her a lot of money. According to the district court ruling, "The jury awarded plaintiff $175,000.00 in compensatory damages against the City of Syracuse; $125,000.00 in compensatory damages against defendant Timothy Gay; and $150,000.00 in compensatory damages against Mark McArdle." That totals $450,000. The trial judge granted the defendants' remittitur motion, ruling that if the plaintiff did not accept $50,000 in damages, she would have to proceed to a second trial on damages. That's common in our world: the plaintiff gets such a choice if the jury is too generous. What's not common is that the plaintiff elected for a second trial on damages. 

At the second trial, the jury awarded plaintiff $225,000 in damages. That's less than the $450,000 that the first jury gave the plaintiff, but the defendant again moved to reduce the damages award. This time defendants blew the deadline for doing so, filing the motion too late (they also filed their notice of appeal too late from the judgment, so their appeal to the Second Circuit is dismissed).

The only time you can appeal the remittur that reduces your damages award (I think) is when you proceed to a second trial. Dotson waited it out and now she can ask the Court of Appeals to bring the verdict back to $450,000. The Second Circuit (Raggi, Pooler and Wesley) rejects plaintiff's argument, keeping the damages at $50,000, ruling that the district court properly considered the evidence and verdicts awarded in similar cases in holding that plaintiff was entitled to $50,000. The Court of Appeals provides no guidance on how the district court reasoned its way through this. For that, we have to go right to the source.

There are many district court rulings in this case, but one after the first trial (that awarded plaintiff $450,000) does focus on the appropriate damages award, and that reasoning was probably applied after the second trial and is relevant to employment lawyers. That decision is found at 2011 U.S. Dist. LEXIS 20374 (N.D.N.Y Mar. 2, 2011). Judge Mordue noted that "At trial, plaintiff's evidence of emotional damages was presented through witness testimony only. Plaintiff testified that as a result of defendants' conduct, she felt, 'watched, exposed, naked and embarrassed'." Although she was taking medication for depression, she "did not seek treatment from any physician, psychologist or psychiatrist as a result of the retaliation. Plaintiff did not present any testimony or evidence establishing any income related damages including lost time from work." Her husband testified that plaintiff was no longer energetic. "She definitely [sic] constantly crying, there would be times where I'd be speaking to her, you know, she'd be fine one minute, I'd go away, come back, she'd be in tears and constantly sleeping,  always tired, and she kind of distanced herself from myself and the children." A sergeant testified that "when she told plaintiff that defendants listened to her telephone calls, plaintiff, 'lost it', 'broke down', cried and went to the bathroom to 'throw up', and felt 'betrayed'." She did not put on an expert witness.

After looking at a wide range of employment discrimination verdicts, Judge Mordue concluded that the case is worth $50,000. The Court reasons:

The evidence at trial failed to establish that plaintiff suffered any permanent emotional injuries, debilitation, physical manifestations or alterations to her lifestyle. Plaintiff's testimony and evidence regarding her damages was brief, conclusory and vague. Plaintiff provided no testimony regarding the duration or consequences of her alleged injuries. Plaintiff did not receive any medical or psychological treatment for her alleged emotional injuries as a result of the retaliation. No experts testified and no medical records were offered or received as evidence to support her claim. As a result of the retaliation, plaintiff claimed that she took Cymbalta, however, she admittedly did not begin taking the medication until five years after the retaliation occurred. Moreover, plaintiff's testimony regarding Cymbalta was not corroborated and plaintiff failed to offer any medical documentation or testimony regarding why she began taking the medication, how long she took the medication, whether it was prescribed by a physician or how she obtained the medication and/or prescription.
Plaintiff's husband testified about his wife's emotional state claiming that she was "constantly crying, sleeping and distant". Mr. Dotson also testified about an "incident that gave him great concern" in late 2003. Mr. Dotson's testimony was not corroborated by plaintiff. Plaintiff did not testify that she was depressed or that she had trouble sleeping. Moreover, the incident involving the golf club and bat allegedly occurred once and plaintiff did not mention this incident during her testimony.

Plaintiff presented no evidence regarding any economic loss including lost time from work or any other income related damages. Plaintiff did not establish that she suffered any change in her job duties or schedule as a result of the retaliatory action. Plaintiff has three children and did not testify that the retaliation caused any disruption in her family or personal life. Due to the nature of plaintiff's evidence regarding her damages and the lack of any corroborating proof, her claims can only be described as "garden variety", at best. Even if the Court categorized plaintiff's injuries as "significant", the $450,000.00  award would still be considered excessive. As the previously cited caselaw dictates, verdicts of this magnitude are generally reserved for "egregious" cases. Here, plaintiff did not establish, nor did she even allege, that she suffered any significant impact upon her physical health or lifestyle.

Moreover, even assuming plaintiff produced evidence regarding damages, the proof at trial did not demonstrate that defendants' conduct was "outrageous" or "shockingly discriminatory" sufficient to warrant such a sizeable award. The retaliatory conduct was not ongoing or continuous nor was it a "pattern of conduct". Indeed, the evidence established that the retaliatory act - eavesdropping on one of plaintiff's recorded telephone conversation - was an isolated instance. Moreover, plaintiff presented no evidence which would permit a reasonable jury to conclude that she was "shocked" or "outraged" by defendants' conduct. Plaintiff never complained to anyone at the Syracuse Police Department about the eavesdropping. At trial, Sgt. DeJesus testified that she told plaintiff in "September 2003", that defendants requisitioned and listened to her telephone conversations. On October 16, 2003, plaintiff filed a second EEOC complaint and failed to even mention the eavesdropping issue. Moreover, while plaintiff claims that she felt "watched, naked and exposed" as a result of the eavesdropping, the evidence established that plaintiff was clearly aware that her telephone conversations at the front information desk were recorded. Based upon the evidence, the circumstances surrounding defendants' retaliatory conduct were not so outrageous as to warrant a nearly half-million dollar verdict.
. . . 
It was unreasonable for the jury to award plaintiff nearly half of a million dollars because plaintiff suffered alleged and unsubstantiated "damages" due to defendants eavesdropping on one telephone conversation when the record established that plaintiff knew that her telephone conversations were being recorded. Applying the "least intrusive standard", $50,000.00 is the maximum amount that would compensate plaintiff for her injuries without being excessive. ... This Court finds that defendants' conduct was not "outrageous and shocking" nor did it result in any significant impact upon plaintiff's health.
If you handle cases like this, take a look at this ruling. The case was not egregious enough for the jury to award six figures in damages. Plaintiff still gets money for her troubles, but at a fraction of what the jury thought she deserved.

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