Putting a dollar value on pain and suffering in civil rights cases is one of the trickiest parts of the job, both for the lawyers who have to advise their clients, and for the jurors who are asked to make a decision. The only way to assess these damages awards is to compare them with damages in other cases. Post-verdict, the courts have the opportunity to tell us what these cases are worth. This is one of those cases.
The case is Miller v. City of Ithaca, 3:10-cv-597 (GLS/DEP), 2015 U.S. Dist. LEXIS 168614 (N.D.N.Y. Dec. 17, 2015). This is a retaliation case brought under Title VII and state law. The jury said the City retaliated against plaintiff, a City police officer, in giving him undesirable beat assignments. The jury valued that case at $220,000. The jury also said the City gave plaintiff a retaliatory Notice of Discipline (NOD), awarding him $260,001 in damages for that claim. The City wants these awards reduced, so the district court applies the remittitur analysis.
Judge Sharpe notes that courts have devised "a three-tiered framework for gauging the excessiveness of emotional damage awards." The least severe "garden variety" damages range from $30,000 to $125,000. More significant emotional distress falls within the $100,000 to $500,000 range. "Significant claims are based on more substantial harm or more offensive conduct, are sometimes supported by medical testimony or evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses." Bear in mind that the jury is not told about this framework. The court just tells the jury to give the plaintiff an amount that will fairly compensate her for the pain and suffering. This is why you see huge damages awards in the newspaper for some cases, and peanuts for other cases that are worth much more.
The $220,000 for the beat assignments is too high, Judge Sharpe says. "Miller's own testimony demonstrates that he suffered minimal symptoms as a result of the beat assignments change." In summarizing plaintiff's testimony, the Court writes:
I had had stress from the constant things that they did to me, and then the Notice of Termination was just -- it was like the nail in the coffin that just was the worst thing ever. I knew that they had -- as they said, tryin' to force me out one way or another, but I never thought that they would stoop to that level of retaliation. Miller's testimony clarified that the harm from the beat assignments change was "drastically different" from that of the NOD, with the former being less severe because he "still knew [he] had a job, still was workin', [he] had everything that [he] needed, so to speak, in terms of takin' care of [his] family." Miller explained that he "had some problems from when" his beats were changed, "[b]ut [he] was dealin' with it." Additionally, Miller claimed that he started to feel the effects of the beat assignments change on the night of July 20, which impossibly predated the change to his beats by three days. Miller's subjective testimony about the seemingly minimal effect that the change in beats had on him places the verdict as to that claim into the garden variety category.
The judge reduces the pain and suffering for the beat assignments claim from $220,000 to $50,000. Anything more than that is a windfall, the Court says, based on sympathy for Miller.
The jury also gave plaintiff $260,001 for the NOD. The following summarizes Miller's evidence on his pain suffering from the NOD: "Miller offered proof that, as a result of defendants' liable conduct, he suffered sleeplessness, hypervigilance, depression, anger, erectile dysfunction, agoraphobia, aniexty, panic attacks, incontinence, shaking, headaches, fearfulness, weight loss, and drinking problems. He sought medical treatment and was prescribed medication in connection with his symptoms."
This evidence will net you a lot of money at trial, if you prove your claim. As Miller suffered "significant" pain and suffering under the three-tiered damages model in the Second Circuit, the district court allows the $260,001 damages award to stand.
This is Part IV of my series of blog posts on pain and suffering. Someone needs to compile a summary of all pain and suffering awards in the federal courts in the Second Circuit. The judges sort of do this for us when they have to decide a post-trial motion analyzing a jury award. But these decisions of course do not summarize all the cases. Some scholars have written up summaries, but they are not always updated, and lawyers and parties are left to guess about what the cases are worth. This makes settlement talks difficult, both when talking with opposing counsel and with clients.
The case is Wharton v. County of Nassau,, No. 10-CV-0265, 2015 U.S. Dist. LEXIS 100308 (E.D.N.Y. July 30, 2015). Plaintiff alleged that defendants discriminated against him based upon his race and religion, and retaliated against him for complaining about defendants' discriminatory employment practices. For example, he claimed he was denied a religious accommodation in retaliation for complaining about discrimination. He also received a Notice of Personnel Action that accused him of misconduct on the job. The jury found in his favor and awarded him $375,000 in pain and suffering. What that too much money? The district court says "yes."
Here is the evidence on plaintiff's emotional suffering.
Wharton presented testimony at trial that the issuance of the [Notice of Personnel Action] and the Department's denials of time-off requests affected him emotionally. He testified that the Department's treatment made him feel "singled out" and "ostracized"--like he was "not really part of the team." Wharton also claimed that he was concerned about his safety at work after he received the NOPA.
Wharton's wife of thiry-eight years testified that Wharton's behavior at home changed after he received the NOPA. He "felt betrayed," she said, "[t]he trust from the department that he thought that he had wasn't there." According to his wife, Wharton's emotional problems manifested themselves physically--he wasn't as "interactive with the family," was less intimate with his wife, developed headaches, and had trouble sleeping.
To cope with his emotional issues, Wharton sought "pastoral counseling" from his bishop, Roger Clark Seaver, and from Reverend Algernon Hannah, an associate pastor at his church. Hannah testified that he knew Wharton for twenty-five to thirty years and provided religious counseling to him for a decade. Hannah testified that between 2007 and 2009 he observed that Wharton became "depressed about what was happening on the job." Hannah acknowledged, however, that he had no clinical training. On cross examination, Hannah admitted that Wharton never discussed any physical manifestations of his unhappiness. Hannah also admitted on cross-examination that Wharton's son had been arrested during the time he was feeling depressed at work and that Wharton felt embarrassed because of the incident.
Wharton also claimed that he was damaged professionally. He testified that his "professional relationship with coworkers [and] supervisors" became "tainted" and his "reputation with other clergy, [and] other volunteers" was also damaged. Wharton also asserted that the NOPA stunted his opportunity to get a master's certification as a chaplain, which he planned to obtain with the support of a religious organization. Finally, Wharton testified that he felt the NOPA "affected [his] opportunity for mobility within the department as far as promotions." However, Wharton admitted that he was not fined, demoted, suspended, or terminated. Moreover, he had to take and pass an exam before he could be promoted from Corrections Officer to Corporal.
The courts have agreed upon a range of damages available to employment discrimination plaintiffs. "At the low end of the continuum are what have become known as 'garden-variety' distress claims in which district courts have awarded damages for emotional distress ranging from $5,000 to $35,000." You get these damages when "the evidence of harm was presented primarily through the testimony of the plaintiff, who describes his or her distress in vague or conclusory terms and fails to describe the severity or consequences of the injury." The middle of the spectrum, what we call "significant" damages, ranges from $50,000 to $100,000. "These 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 or evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses." The "egregious" emotional distress claims, however, can be worth in excess of $100,000. But "more recently, Courts have sanctioned jury damages ranging from $30,000 to $125,000 for 'garden-variety' emotional distress."
The judge reduces plaintiff's pain and suffering to $60,000, a sharp reduction from $375,000. Here is the reasoning:
Wharton was not demoted, fined, or terminated as a result of any of Defendants' actions. Although he claimed that the NOPA affected his promotion opportunities, he admitted that he did not pass the exam necessary to be promoted from corrections officer to corporal. Thus, his only compensable damages were for emotional distress. The evidence is clear, however, that Wharton's emotional distress did not rise above the garden-variety. Wharton and his wife testified that Defendants actions caused him to feel "ostracized," "betrayed" and concerned about his safety. Wharton's wife also testified that he "wasn't as interactive with the family," was less intimate, developed headaches, and had trouble sleeping. Reverend Hannah, who provided Wharton with "spiritual counseling," also testified that Wharton became "depressed," however, Hannah acknowledged that he had no clinical training, and admitted that Wharton never discussed physical manifestations of his unhappiness. Wharton never sought medical attention for emotional distress and did not introduce testimony from a medical professional. The evidence in this case therefore does not support the $375,000 in compensatory damages awarded by the jury, a verdict above and beyond damages awards in cases where plaintiffs suffered "significant" or "egregious" emotional distress.
The great mystery in valuing civil rights cases is how much money the jury might award the plaintiff if the plaintiff prevails at trial. That calculation looms over the case. During litigation, the parties will talk about settlement periodically, especially after the judge pushes them to do so. Once the lawyer decides what the case might be worth (based on the strength of the case and the nature of plaintiff's emotional distress), she has to sell that number to the client, who will naturally want more money. Hey, we all want more money. Except that defendants don't want to pay any money. Everyone walks away unhappy, which makes it a good settlement. One way to assist in this process is by reviewing case law to see what the judges are up to.
The case is Stevens v. Rite Aid Corp., No. 6:13-CV-783, 2015 U.S. Dist. LEXIS 127312 (N.D.N.Y. Sep. 23, 2015). Plaintiff was a pharmacist who was fired because he was unable to administer injections for immunizations, and "suffers from trypanophobia, also called needle phobia." The jury awarded him $900,000.00 in pain and suffering.
This is how the parties argued post-trial about the pain and suffering:
Defendant argues that the jury's verdict of $900,000 in compensatory damages is not supported by the evidence at trial, contending: "Plaintiff's alleged damages were solely for garden-variety emotional distress and are far beyond the maximum damages supported by the evidence at trial." Plaintiff counters that his emotional damages are supported by his own testimony about the emotional toll that his termination placed on him, particularly due to the facts that he was no longer able to financially provide for his family which was very troubling for him because he had a difficult childhood growing up in poverty; and by his wife's testimony that Plaintiff could not eat, lost weight to the extent that he "looked like, you know, a cancer patient," often woke up "thrashing around," had sleepless nights, and had nightmares - symptoms she described as "profound." Plaintiff argues that based on the Jury's $900.000.00 compensatory damage award, "the evidence in this case supports a finding that Mr. Stevens' claim for emotional distress fell somewhere on the continuum between 'significant' and 'egregious,' thereby justifying the Jury's award of $900,000 in compensatory damages in this case."
The judge decides that plaintiff is really entitled to $125,000 in pain and suffering. That number is in line with similar cases. As Judge McAvoy writes, "there was no medical testimony or evidence corroborating the emotional distress that Plaintiff suffered, nor was there evidence of any medical or psychological treatment obtained by Plaintiff to address his distress and its symptoms. While Plaintiff's and his wife's testimony about the emotional effects of a discharge at age 57 was compelling, it did not elevate it beyond the 'garden variety' category. 'Courts have sanctioned jury damages ranging from $30,000 to $125,000 for 'garden-variety' emotional distress.'" If you want to see the other cases that provided guidance in this area, take a look at the opinion.
$125,000 is still a lot of money. But it's not $900,000. So I am sure the plaintiff is disappointed. But I wonder what the jury would think about this. The judge always tells the jury that "the case is in your hands" and "you are the sole judges of the facts." For the most part, that's true. When the summations are done and the judge reads out the jury instructions, the cases is in their hands. And most factual findings are not disturbed on appeal. But the jury has no idea that the damages awards will be closely reviewed by the attorneys and the court for the next few months (or longer) to decide if the jury really got it right. And very often, at least as far as the court is concerned, the jury does not get it right. The judge will not provide much guidance to help the jury fix a pain and suffering amount, other than to "give the plaintiff an amount that you think is fair." The jury is not given a chart containing prior damages awards, and it may not even know the judge will review the propriety of the damages post-trial. Nor does the jury give any reason for the damages award. It just writes in a number and turns in the verdict to the court clerk. What is really happening is that the damages awards for pain and suffering are quasi-advisory verdicts. The provide a starting point for the judge to second-guess the amount.
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..
The courts routinely tell us what civil rights cases are worth, but you have to go out of your way to see the trends in compensatory damages (as opposed to lost wages and other out-of-pocket damages that are easier to calculate). How do you put a price on pain and suffering? This recent EDNY case offers some guidance.
The case is Styka v. My Merchants Services, 14 Civ. 6198, 2016 U.S. Dist. LEXIS 34238 (E.D.N.Y March 15, 2016). Plaintiff sued her former employer for sexual harassment and other violations. The employer defaulted, so the court found liability for the plaintiff. The trial court then heard evidence on damages. The Magistrate Judge summarizes the evidence as follows:
After Plaintiff started working for Defendant My Merchants Services, Mr. Valerios began making racially discriminatory comments, saying that Plaintiff was his "white Polish girl" and "whitey reddish girl," and calling her a "Polack." He made these comments every day and in front of Plaintiff's coworkers and the company's clients. One month into her employment, Mr. Valerios began directing sexual comments at Plaintiff, including saying that he wanted to touch and have sex with Plaintiff. Plaintiff testified that he made these comments daily. At one point, Mr. Valerios offered to pay Plaintiff more money if she would agree to have sex with him once per week. Mr. Valerios also made sexual comments daily to Plaintiff via text message, when she was at work and home. Plaintiff testified about many explicit texts that Mr. Valerios sent.
Plaintiff told this guy to leave her alone, but the harassment continued. She threatened to call the police. In addition, "Plaintiff explained that his behavior made her feel vulnerable, and that she was careful not to wear 'inappropriate' clothing to work. Plaintiff was also going through a divorce at the time, which Mr. Valerios knew, and she was unable to leave her position for financial reasons. Mr. Valerios told Plaintiff that he knew she needed him and could not leave her job." As to pain and suffering, she further testified:
she also began seeking treatment for symptoms that Plaintiff states are a result of Defendants' discrimination and sexual harassment. Her symptoms had begun in February and March 2014. Plaintiff described being unable to get out of bed in the morning and not wanting to be around her daughter and her boyfriend during that time. She also reports that her new employer told her that she has trouble looking into people's eyes, and that it was difficult to have meetings and conversations with her. She still sees a psychiatrist once per month to treat her symptoms. She takes the prescription drug, Lexapro, to treat her anxiety and depression. Plaintiff also experiences fluctuations in her weight and feelings of helplessness, hopelessness and worthlessness; she has trouble sleeping through the night; and she has fatigue and loss of energy. Plaintiff testified that she did not have these symptoms and diagnoses before she worked for Defendants. Although Plaintiff was going through a divorce around the same time that she worked for Defendants,
Plaintiff testified that she felt strong when she was leaving her husband, but that Mr. Valerios's behavior made her feel violated and as if she were "nothing" or a "piece of meat."
What is her pain and suffering worth? The court provides the framework for these damages:
"Cases in the Second Circuit involving awards for emotional distress can generally be grouped into three categories of claims: 'garden-variety,' 'significant' and 'egregious.'" In garden-variety claims, in which appropriate damages range from $5,000 to $35,000, "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." In significant claims cases, in which appropriate damages range from $50,000 to $100,000, the claims "are based on more substantial harm or more offensive conduct, are sometimes supported by medical testimony or evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses." Id. (internal quotation omitted). "Finally, 'egregious' emotional distress claims, where courts have upheld awards of over $100,000, have only been warranted where the discriminatory conduct was outrageous and shocking or where the physical health of plaintiff was significantly affected.'"
The court finds that plaintiff suffered significant pain and suffering, and it recommends that the district judge award her $120,000. This takes into account her significant distress but also the fact that she had other stressful events taking place in her life. The work-related distress continues after two years. In fixing the damages, courts will review other cases to ensure that the damages are not too high. The magistrate judge summarizes damages awards in other sexual harassment cases, as follows:
Equal Emp't Opportunity Comm. v. Suffolk Laundry Svcs., Inc., 12 Civ. 409 (MKB) (ARL), Order on Consent Decree, ECF No. 88 (E.D.N.Y. Nov. 30, 2015) (defendant agreed to pay $582,000 to seven plaintiffs who complained that defendant's manager physically and verbally sexually harassed them, including allegedly regularly touching them on their buttocks, hips, and backs, forcibly kissing them and making comments about their appearance and body parts); Echevarria v. Insight Med., P.C., 72 F. Supp. 3d 442, 445 (S.D.N.Y. 2014) (upholding jury award of $50,000 in compensatory damages where plaintiff was sexually harassed over a two-month period via text and in-person by her supervisor and then fired when she rejected his sexual advances; plaintiff's social worker testified at trial that plaintiff was subsequently diagnosed with post-traumatic stress disorder and major depressive disorder); Offei v. Mahmoud Abdel-Salam Omar, 2012 U.S. Dist. LEXIS 80171, 2012 WL 2086294, at *7 (S.D.N.Y. May 18, 2012) (awarding $250,000 in damages for one-time incident of sexual assault where plaintiff experienced severe emotional distress that required her to take anti-anxiety medication on a daily basis); Manzo v. Sovereign Motor Cars, Ltd., No. 08 Civ. 1229 (JG) (SMG), 2010 U.S. Dist. LEXIS 46036, 2010 WL 1930237, at *1 (E.D.N.Y. May 11, 2010), aff'd 419 F. App'x 102 (2d Cir. 2011) (upholding jury award of $50,000 in compensatory damages where plaintiff was sexually harassed by her supervisor over a five-month period, fired for rejecting his sexual advances and suffered significant psychological and emotional distress; evidence was also introduced at trial that plaintiff's supervisor used plaintiff's "precarious financial situation" to exert power over her); Becerril v. E. Bronx NAACP Child Dev. Ctr., 08 Civ. 10283 (PAC) (KNF), 2009 U.S. Dist. LEXIS 76376, 2009 WL 2611950, at *6 (S.D.N.Y. Aug. 18, 2009), adopted by 08 Civ. 10283 (PAC) (KNF), 2009 U.S. Dist. LEXIS 85383, 2009 WL 2972992 (S.D.N.Y. Sept. 17, 2009) (awarding $50,000 in compensatory damages in pregnancy discrimination case where plaintiff's symptoms of emotional distress lasted a few months after defendants terminated her employment); Boodram v. Brooklyn Developmental Ctr., 2 Misc. 3d 574, 773 N.Y.S.2d 817, 835 (Kings Cty. Civ. Ct. 2003) (upholding jury award of $172,000 in pain and suffering damages where plaintiff was grabbed sexually at least 20 times by her employer); see also Rodriguez, 2014 U.S. Dist. LEXIS 47978, 2014 WL 1347369, at *7 (awarding $10,000 in emotional distress damages where plaintiff was sexually harassed by her employer for one day before quitting her job); Jowers v. DME Interactive Holdings, Inc., 00 Civ. 4753 (LTS) (KNF), 2006 U.S. Dist. LEXIS 32536, 2006 WL 1408671, at *13 (S.D.N.Y. May 22, 2006) (awarding $15,000 in pain and suffering where plaintiff was discriminated against over several months but did not seek medical treatment for her injuries); Laurie Marie M. v. Jeffrey T.M., 159 A.D.2d 52, 53, 559 N.Y.S.2d 336 (1st Dep't 1990), aff'd, 77 N.Y.2d 981, 575 N.E.2d 393, 571 N.Y.S.2d 907 (1991) (upholding jury award of $200,000 in compensatory damages for plaintiff's battery and intentional infliction of emotional distress claims where plaintiff was sexually touched as a child by her stepfather).
Bear in mind that other judges use a different three-tiered damages schedule, offering the plaintiffs much more money. See, e.g., Olsen v. Cty. of Nassau, 615 F. Supp. 2d 35, 46-47 (E.D.N.Y. 2009) ("'Garden variety' emotional distress claims 'generally merit $30,000 to $125,000 awards'").
This guy sued the police for false arrest after they arrested him for a sexual assault that he did not commit. The case arose when the victim identified plaintiff as the attacker after seeing him walking in her neighborhood; she said plaintiff "looked like" the attacker. Is that identification too uncertain for the police to think twice about arresting him? It is not.
The case is Keith v. City of New York, a summary order decided on March 7. While plaintiff says the victim did not positively identify him as the attacker, in context, her testimony suggests she gave a definitive identification. The police also contemporaneously understood that she gave a definitive identification. "There is no reason to believe that the victim was using the phrase 'looked like' to communicate uncertainty," and the Court "will not permit Keith to manufacture a genuine issue of material fact by 'reading the victim's statement out of context." In addition, there are no cases that suggest that "in order for a witness's identification of a perpetrator to provide probable cause, it must be made with complete certainty." Since the officers are seeking dismissal based on qualified immunity -- which allows them to dismiss the case if they acted reasonably under the circumstances -- a reasonable officer in this situation could have concluded that probable cause existed to arrest plaintiff for the sexual assault.
Plaintiff also sues for malicious prosecution. That claim also fails, as probable cause is a defense to that claim as well. While the probable cause test for malicious prosecution is "slightly higher than the standard for false arrest cases," information from an informed citizen accusing someone of a specific crime is enough to provide the police with probable cause. Here, after plaintiff's arrest, the victim positively identified him once again, this time during a lineup.
Here is a comprehensive ruling on the rights of a female inmate in state prison who says she was physically abused by correction officers. The Court of Appeals says she may have enough evidence for trial.
The case is Harris v. Fisher, decided on March 15. Harris took the cotton from her mattress and pasted it to the windows in her cell so that no one could see inside. This was against the rules, so the officers entered her cell to remove the cotton. When plaintiff said there was no cotton left, she said they threw her to the ground, lifted her clothing "and forcibly opened her legs to allow the male officer to visually inspect her genitals for any additional cotton." On the summary judgment motion, the officers did not deny doing this.
Harris has a Fourth Amendment limited right to bodily privacy. She wins the case if she has a legitimate expectation of bodily privacy and the prison does not have sufficient justification to intrude on those rights. The analysis here is quite complex. Harris prevails on the summary judgment motion because the search was too intrusive in that (1) it was a visual bodily cavity search (2) conducted by male and not female officers and (3) it is unclear why the search was conducted in such a violent and forceful manner. Also, the Court says, it is hard to see the justification for the search. The officers don't really provide a reason supported by the record. Hypothetical reasons don't count. What is more, nothing suggests that possessing cotton (even in your genitalia) violates prison rules.
Harris also sues under the Eighth Amendment, which prohibits cruel and unusual punishment. On her testimony, she may satisfy the subjective element of this case (that the officers intended to violate her rights) because the officers deny that the search even took place. On the objective element (that the violation was harmful or serious enough to reach constitutional dimensions, plaintiff can win even if there was no actual contact with her genitalia. The visual inspection may be enough to win the case. This was also not a de minimus violation; she was thrown to the ground and they forcibly opened her legs, and she may have suffered a physical injury.
A suburban community on Long Island wanted to rezone public property so it could sell the property to developers and close a budget gap. Initially, the village was going to allow for multi-family zoning. Then the community objected, and the village instead rezoned the property for mostly single-family homes. The district court found the village liable under the Fair Housing Act for intentional discrimination, and the Court of Appeals affirms.
The case is MHANY Management v. County of Nassau, decided on March 23. After the Village of Garden City took up the initial zoning change for multi-family housing, residents objected, using what the district court interpreted as racial code-words. People worried that the property would consist of "affordable housing." Others said (1) the housing would not fit within the "flavor and character" of Garden City; (2) the apartments would have too many people living in them; and (3) the development would be an affront to those who had moved there from Queens, where multi-family housing led to overcrowded apartments and overburdened schools. After the community objected to the rezoning, unlike the initial rezoning process which moved at a snail's pace, the village quickly changed its plans, moving to rezone the property so that most of the housing would be single-family. The district court said the rezoning would have a disparate impact on potential minority homeowners.
The Court of Appeals (Pooler, Lohier and Droney) finds the district court was able to find the village liable for intentional discrimination under the Fair Housing Act. This case tells us how much authority the district courts have in reaching factual findings. From the Second Circuit's ruling, I cannot see any overt racial comments from the community in opposition to the multi-family rezoning. But the village's abrupt change of course in cutting the usual procedural corners to mostly exclude multi-family housing in the aftermath of citizen complaints that fell within the realm of racial objections was enough to find that the village capitulated to racial objections. That capitulation violates the civil rights laws, even if the government decisionmakers themselves were not racists. The crux of the Second Circuit's reasoning on the racial fears is below:
In considering the sequence of events leading up to the adoption of R‐T zoning, the district court also focused closely on the nature of the citizen complaints regarding R‐M zoning. Citizens expressed concerns about R‐M zoning changing Garden City’s “character” and “flavor.” In addition, contrary to Garden City’s contentions that any references to affordable housing were isolated, citizens repeatedly and forcefully expressed concern that R‐M zoning would be used to introduce affordable housing and associated undesirable elements into their community. Residents expressed concerns about development that would lead to “sanitation [that] is overrun,” “full families living in one bedroom townhouses, two bedroom co‐ops” and “four people or ten people in an apartment.” Other residents requested that officials “guarantee” that the housing would be “upscale” because of concerns “about a huge amount of apartments that come and depress the market for any co‐op owner in this Village.”
The district court also noted Garden City residents’ concerns about the Balboni Bill and the possibility of creating “affordable housing,” specifically discussing a flyer warning that property values might decrease if apartments were built on the Site and that such apartments might be required to include affordable housing under legislation pending in the State legislature. This flyer came to the attention of at least two trustees, as well as Fish and Schoelle. Concerned about the Balboni Bill, Garden City residents urged the Village officials to “play it safe” and “vote for single family homes.” Viewing this opposition in light of (1) the racial makeup of Garden City, (2) the lack of affordable housing in Garden City, and (3) the likely number of minorities that would have lived in affordable housing at the Social Services Site, ‐ the district court concluded that Garden City officials’ abrupt change of course was a capitulation to citizen fears of affordable housing, which reflected race‐based animus.
The Second Circuit also cites social science research to the effect that "people believe that the majority of public housing residents are people of color, specifically African American." Research also shows that the public comments are "recognized code words about low-income minority housing."
The district court's authority to resolve factual issues about the community's intent and the village's capitulation is quite broad and almost unreviewable on appeal. The village argued that the abrupt change in course in rezoning the property was simply efficient government decisionmaking. It also noted that no one said anything explicitly racial. But the civil rights laws recognize that racism can be subtle. As the Second Circuit notes:
Garden City’s argument appears to boil down to the following – because no one ever said anything overtly race‐based, this was all just business as usual. But the district court was entitled to conclude, based on the Arlington Heights factors, that something was amiss here, and that Garden City’s abrupt shift in zoning in the face of vocal citizen opposition to changing the character of Garden City represented acquiescence to race‐based animus.
Evidence rulings in mortgage fraud case The world needs more Second Circuit decisions on the rules of evidence. Here's one that talks about "habit evidence," admissibility and the "best evidence" rule.
The case is Crawford v. Tribeca lending Corp., decided on March 8. Plaintiff sues over a fraudulent mortgage loan. She met with defendant's representative at Idlewild Airport to give signature samples on a blank sheet of paper. But she never agreed to the loan and that the company used the signature samples to forge mortgage documents. Defendants say this is all untrue and that plaintiff signed actual loan documents. The jury ruled against plaintiff, and the Court of Appeals (Cabranes, Parker and Lynch) affirms. The appeal raises a series of evidentiary issues that do not get much attention in the Second Circuit.
First, the company had a witness testify that he was the one who met with plaintiff at the airport, that she signed actual loan documents and that he had handled more than a thousand similar loan signings in his career, sometimes 10 per week during the 2004-05 mortgage refinancing craze. This was permissible habit evidence under Rule 406, which says, "Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness." We never see habit cases in the Court of Appeals, maybe because the district courts have discretion in ruling on evidentiary issues and nobody bothers to appeal those rulings. As habit under Rule 406 "describes one's regular response to a repeated specific situation," the jury was allowed to hear how Decarolis went about his business.
Second, the trial court allowed the jury to see 34 loan documents. Only three were originals, the rest photocopies. These records were not hearsay but proof that plaintiff entered into the loan agreement. The copies were also authentic under Rule 901, as the company put on witnesses who said the copies were true copies and not fakes. As Rule 901 "does not erect a particularly high hurdle" and is "satisfied if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification," the trial court properly allowed the jury to see the copies.
Third, the best evidence rule arises on appeal. Under Rule 1002, you have to use originals to prove the content of a writing. But that rule has exceptions. A copy is OK if "all the originals are lost or destroyed, and not by the proponent acting in bad faith." As the trial court did not abuse its discretion in finding the originals had been lost and there was no bad faith, it was permissible for the jury to see the copies.
The Court of Appeals has clarified the law governing associational discrimination claims under the Americans with Disabilities Act. The new test devised by the Court narrows the opportunities for plaintiffs to win under this statute.
The case is Graziadio v. Culinary Institute of America, decided on March 17. I have written about the Family and Medical Leave Act portions of the case at these links. This is a good case for FMLA plaintiffs, and the Second Circuit (Calabresi, Lohier and Lynch) vacates summary judgment for the employer under that statute. But the Court also says plaintiff has no case under the ADA's associational discrimination provision.
Briefly, plaintiff worked at CIA. Her son has diabetes. She was given the runaround when she sought FMLA leave to care for her son, and was eventually fired for abandoning her position. But she also sued under the ADA, which prohibits "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.." Borrowing from other Circuits that have already weighed on on this, the Court of Appeals for the first time tells us what this provision means.
to sustain an “associational discrimination” claim under the ADA, a plaintiff must first make out a prima facie case by establishing: 1) that she was qualified for the job at the time of an adverse employment action; 2) that she was subjected to adverse employment action; 3) that she was known at the time to have a relative or associate with a disability; and 4) that the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision.
The third prong of that test comes with an additional set of legal standards:
In evaluating what circumstances serve to raise such an inference, we draw significant guidance from the Seventh Circuit’s decision in Larimer v. International Business Machines Corp., 370 F.3d 698 (7th Cir. 2004), which outlined “[t]hree types of situation[s]” or theories that would give rise to a claim of associational discrimination: 1) “expense,” in which an employee suffers adverse action because of his association with a disabled individual covered by the employer's insurance, which the employer believes (rightly or wrongly) will be costly; 2) “disability by association,” in which the employer fears that the employee may contract or is genetically predisposed to develop the disability of the person with whom he is associated; and 3) “distraction,” in which the employer fears that the employee will be inattentive at work due to the disability of the disabled person.
The distraction theory of associational discrimination might apply in Graziado's case, because she had to miss work because of her disabled son. But as the Second Circuit sees it, she has no case under the ADA. She has not presented evidence that she was fired because the CIA suspected distraction or that her concern for her son would cause her to work inadequately. Instead, she has presented evidence that she was fired because CIA thought she had taken too much leave from work to care for him. A subtle difference, but a difference.
In a footnote, the Court of Appeals says that employees like plaintiff who suffer termination because of a sick relative are not without a remedy. "In at least some such cases, employees who require accommodation in their work schedule to care for a family member with a disability may be able to take FMLA leave." The Court also notes that, under the ADA's associational discrimination provision, employees are not entitled to a reasonable accommodation; that accommodation is only available when the plaintiff-employee is disabled, not when a loved one is disabled. While it is true that the FMLA might protect employees who are fired because, like plaintiff, they have to miss work to care for a loved one, that statute is more limited in scope than the ADA. Under the FMLA, you are not covered unless you worked at least one year for the employer and logged at least 1,250 hours that year. Also, employers are not covered under FMLA unless they have 50 employees. The ADA does not have these technicalities, and it covers employers with at least 15 employees.
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.