The late great federal judge Charles L. Brieant used to tell the lawyers who gathered for the weekly calendar calls that every case has to be "dropped, settled or tried." And if you were among the lawyers who showed up each Friday for a status conference, oral argument or a discovery dispute, you can still hear Judge Brieant's voice. He would say this with an air of resignation, that one way or another, each case has to proceed, unless the parties decide to bring it to a close. (What the judge did not mention was that there was a fourth option: cases could be dismissed on summary judgment).
At some point about 10 years ago, the SDNY decided to send every employment discrimination case to mediation. Most of these cases were settling after the parties had taken multiple depositions and exchanged documents. Why not try to resolve them at the early stages? Mandatory mediation meant that lawyers had to talk about settlement early in the process. That means we have to discuss dollars and cents. And the first thing that plaintiffs' lawyers discover in talking settlement with their clients is that everyone thinks his case is worth more than it is. Which is why it's good to see what the courts have to say about the dollar value of pain and suffering.
The case is Bouveng v. Nyg Capital LLC, 2016 U.S. Dist. LEXIS 44283 (S.D.N.Y. Mar. 31, 2016), a lengthy decision that followed a sexual harassment trial in which the jury awarded the plaintiff $500,000 on her quid pro quo sexual harassment claims under the state and federal law. Defendants then filed a motion to reduce that award as excessive. Judge Gardephe provides much guidance about what these cases are worth.
We start with familiar language that has made the rounds in the Southern and Eastern Districts of New York.
[e]motional distress awards . . . can generally be grouped into three categories of claims: "garden-variety," "significant" and "egregious." 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. "Garden variety" emotional distress claims generally merit $30,000 to $125,000 awards.
"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 $30,000 to $125,000 range is not always the standard in the 2d Circuit. Other cases, as reflected in this blog post, place the garden-variety value at $5,000 to $30,000. So if you are a plaintiff's lawyer and defense counsel hits you with the lower range, remind him that other courts see it differently. The opposite holds true if you are defense counsel.
The district court summarizes plaintiff's evidence about her pain and suffering resulting from the sexual harassment and her termination:
Plaintiff testified that — when she submitted to Wey's sexual advances for the first time — she "felt so used and weak and . . . was so ashamed that [she] let [it] happen." After each subsequent sexual encounter, Bouveng "just felt more and more weak. That [she] didn't mean anything. That everything that [she] felt and thought, that it didn't matter. [She] felt useless" and "ashamed." Chemme Koluman testified that Plaintiff seemed "more stressed than usual" in February 2014, at about the time that Plaintiff decided to stop having sex with Wey.
There is also evidence that Plaintiff suffered emotional distress as a result of her termination from NYGG, which — a reasonable jury could have found — was caused by her rejection of Wey's sexual advances. Plaintiff testified that Wey's conduct at that time left her "in shock." Wey, Koluman, and Weiss testified that Plaintiff seemed, "angry," "upset," and "stressed" as a result of her termination. Wey's anger, screaming, use of profanity, and violent behavior on the day of Plaintiff's termination , and the surrounding circumstances, tend to support the evidence indicating that Plaintiff suffered emotional distress as a result of her termination.
Plaintiff also testified that the flurry of emails Wey sent to her family and friends — which accused her of consorting with a "naked, dirty, totally drunk" "homeless black man," "par[tying] like crazy," and leading a "double life" — were "embarrassing" and "scary." Plaintiff felt that Wey was "[t]rying to humiliate [her] in front of [her] family," and "trying to make [her] look bad in front of everyone [she] know[s] in order to isolate [her]." Plaintiff also felt "stressed . . . out" because of "the impact and effect [Wey's emails] had on [her] father." Plaintiff testified that Wey's emails "affected [her] a lot and . . . got [her] really upset, stressed, scared that [Wey] would keep on contacting [her father]."
Judge Gardephe does not minimize plaintiff's pain and suffering. He notes that "Wey's behavior — in the context of an employment relationship — was outrageous." But this is what we call "garden variety" emotional distress. As Judge Gardephe puts it, "Plaintiff described her emotional distress in largely 'vague or conclusory terms, without relating either the severity or consequences of the injury' in a meaningful way. Whatever emotional distress she suffered as a result of her termination appears to have been brief and transitory. There was no evidence of continued shock, nightmares, sleeplessness, weight loss, or humiliation, or of an inability to apply for a new position or to enjoy life in general. Plaintiff's claims of emotional distress were likewise "not supported by any medical corroboration.'" She also did not seek mental health treatment. Nor did she appear to suffer long term emotional distress as a result of the discrimination.
After reviewing other sexual harassment cases where the jury awarded damages, the judge concludes that the jury gave her too much money. "Because cases 'approving multi-hundred-thousand dollar awards for emotional damages all involve post-traumatic stress disorder' or medical evidence of some other psychological harm, the jury's $500,000 award cannot stand. Moreover, sexual harassment cases that have sustained awards greater than $150,000 have generally involved pervasive harassment that took place over a number of years." The judge settles on $150,000 for plaintiff. Here's the reasoning:
Because (1) much of Plaintiff's testimony regarding her emotional distress is "vague or conclusory"; (2) there is almost no evidence of any sort that Plaintiff has suffered any long-term emotional distress; (3) Plaintiff offered no medical corroboration for her emotional distress, and Defendant offered medical testimony demonstrating that Plaintiff has suffered no long-term consequences from Wey's sexual harassment, this Court concludes that an award of $150,000 constitutes "the maximum that [can] be upheld . . . as not excessive" on her sexual harassment claims. This amount will compensate Plaintiff for the emotional distress, humiliation, embarrassment, and stress she suffered for a number of months as a result of Wey's outrageous sexual harassment, but recognizes the absence of evidence suggesting any long-term effects or consequences..
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Stephen Bergstein is a civil rights lawyer in Orange County, N.Y. He has briefed or argued more than 200 appeals in the state and federal courts.