What's a Title VII Case Worth?

The post below describes a "garden variety emotional distress" claim and how Second Circuit Judge Gardephe defines a case brought before him.


Betsy Combier

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That's the question that guides every employment discrimination case. For plaintiffs' lawyers, it comes up at the intake meeting with the potential client. Defendants want an answer in case they lose. Mediators need an answer to help everyone settle the case. Jurors want an answer when they are deliberating (they don't get that guidance, by the way). And the judge needs an answer to resolve a remittitur motion. This case provides some guidance.

The case is MacMillan v. Millenium Broadway Hotel, 2012 U.S. Dist. LEXIS 80765, a Southern District of New York case decided on June 11. The jury found that plaintiff was subjected to racially hostile work environment because a supervisor, Scudero, allowed co-workers to call him "the N word." In 2008, Scudero returned from a trip to New Orleans with six souvenir voodoo dolls that he distributed to managers around the office, to plaintiff's dismay. Plaintiff later saw one of the dolls hanging from a noose in the office. Another was hanging from a bulletin board. Human resources investigated, and some remedial measures went into place, but no one was disciplined or terminated as a result of the voodoo dolls. On top of this, plaintiff's co-worker used a racial epithet in the workplace. The Hotel investigated but was unable to corroborate the use of this epithet.

So that's the liability evidence. The jury awarded plaintiff $125,000 in compensatory damages and $1,000,000 in punitive damages. On defendant's post-trial motion, Judge Gardephe upholds the verdict but reduces the damages award considerably. Plaintiff was not fired from his position over this. He testified that his work environment was "horrible" and the voodoo doll incident "was very detrimental to me." Plaintiff's  daughter testified that plaintiff "was always sad" in working for Scudero and "wasn't as happy anymore" and "wasn't his same self" when Scudero became his supervisor.

Judge Gardephe notes that, in the Second Circuit, there are three kinds of pain and suffering in these cases: garden variety, significant and egregious. He cites Olsen v. County of Nassau, 615 F. Supp. 2d 35, 46 (E.D.N.Y. 2009), for this proposition. Here's the thumbnail:

In 'garden variety' emotional distress claims, 'the evidence of mental suffering is generally limited to the testimony of the plaintiff, who describes his or her injury in vague or conclusory terms, without relating either the severity or consequences of the injury.' Such claims typically 'lack[ ] extraordinary circumstances' and are not supported by any medical corroboration."

"'Significant' emotional distress 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 and evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses.'"

"Finally, 'egregious' emotional distress claims 'generally involve either "outrageous or shocking" discriminatory conduct or a significant impact on the physical health of the plaintiff.'" "In 'significant' or 'egregious' cases, where there is typically evidence of 'debilitating and permanent alterations in lifestyle,' larger damage awards may be warranted."

 This is worth knowing, and Olsen is a case that's worth reading for more insight into this. Each case is different, and not every civil rights violation can result in a large damages award. Plaintiff's case is "garden variety." The trial court is constrained by the evidence outlined above. Plaintiff did not seek medical treatment, miss work or lose any sleep or appetite. "Such evidence, at best, demonstrates 'garden variety' emotional distress. To the very limited extent that McMillan described his injury, he did so in 'vague or conclusory terms' without 'relat[ing] either the severity or consequences of the injury.' His claims were likewise 'not supported by any medical corroboration.'"

Judge Gardephe summarizes the cases in this area. "In the Second Circuit, '[g]arden variety' emotional distress claims 'generally merit $30,000 to $125,000 awards.'" However, "Where a plaintiff offers only sparse evidence of emotional distress, however, courts have reduced such awards to as little as $10,000." The Court distinguishes this case from one that entitled the plaintiff to more compensatory damages:

In Mugavero v. Arms Acres, 680 F. Supp. 2d 544 (SDNY 2010), the plaintiff "testified that her emotional distress from being terminated had specific consequences in the form of increased anxiety and insomnia ... and provided corroborating medical evidence." Moreover, this Court found that "the conduct ... went far beyond typical discipline imposed in the workplace, and threatened Plaintiff's ability to earn a living and practice her profession." Accordingly, the Court determined that "[g]iven that [plaintiff's former supervisor's] action was 'more offensive conduct' than is commonly seen in a 'garden-variety' case, neither the emotional distress award of $100,000 for Mugavero's termination nor the total emotional distress award of $175,000 [representing emotional distress damages of $100,000 for her termination and $75,000 for the supervisor's bad faith request to the Office of Professional Discipline to investigate plaintiff] shocks the conscience or is excessive."

As for punitive damages, the $1 million is reduced to $100,000. "A survey of punitive damage awards in discrimination and retaliation cases reveals that the $1 million award here is excessive and should be reduced significantly." Judge Gardephe adds, "[t]he Court finds that '[t]he defendant's conduct, while meriting some award of punitive damages, was by no means as reprehensible as that in many other [employment] discrimination . . . cases.' Cases upholding punitive damage awards of $200,000 or more generally involve discriminatory or retaliatory termination resulting in severe financial vulnerability to plaintiff, repeated incidents of misconduct over a significant period of time, repeated failures to address complaints of discrimination, and/or deceit. ... The Court concludes that a punitive damage award of no more than $100,000 is proper in this case."