Compensatory Damages, Punitive Damages and Remittitur under federal, NY State and NY City Law
Sponsored by NELA/NY
March 28, 2008
Updated July 10, 2008
Joshua Friedman, Esq.
In 1991, Congress amended Title VII to provide recovery for psychological injury and punitive damages. The amendment capped the sum of compensatory and punitive damage awards for intentional discrimination according to a sliding scale up to $300,000. 42 USC § 1981a(b) The amendment also added the right to a trial by jury for compensatory and punitive damages. 42 USC § 1981a(c). At the same time Congress amended Section 1981, 42 USC § 1981, to allow for its use in cases of intentional employment discrimination. Congress expressly excluded § 1981 from the Title VII caps. 42 USC § 1981a(b)(4).
In 1991, the New York City Human Rights Law was amended to create the City Law as we know it. The new law provided uncapped compensatory and punitive damages for employment and other types of discrimination. Title 8 of the Administrative Code of the City of New York.
It has taken seventeen years for the courts to develop guidelines on what forms of conduct cause psychological injury and what evidence is necessary to establish it under federal, NY state and NY City Law. These guidelines, explored below, are plainly a work in progress.Compensatory Damages
Types of Cases Where Serious Psychological Injury Is Likely
The conduct most likely to cause serious emotional injury is a hostile work environment created by a supervisor. The most common example likely to cause serous injury is severe sexual harassment with physical contact or a threat of such contact.
To understand why, consider the diagnostic criteria for PTSD:
- The victim experienced, witnessed, or has been confronted with an event or events that involve actual or threatened death or serious injury, or a threat to the physical integrity of oneself or others and the victim's response involved intense fear, helplessness, or horror;
- Recurrent and intrusive distressing recollections or dreams, Intense psychological distress at exposure to events that remind the victim of the trauma; and
- Efforts to avoid thoughts, feelings, or conversations associated with the trauma, activities, places, or people that arouse recollections of the trauma, inability to recall an important aspect of the trauma, markedly diminished interest or participation in significant activities, feeling of detachment or estrangement from others, or restricted range of affect (e.g., unable to have loving feelings)
The harm is caused by the manager's power to terminate employment or destroy the victim's reputation and the knowledge that she has to come to work every day and endured what amounts to a form of torture. The feeling of helplessness is compounded when complaints do not end the harassment.
Such conduct can cause PTSD, major depression, and other serious psychological injury.
See, e.g., Kondracke v. Commissioner, 277 A.D.2d 953; 716 N.Y.S.2d 533; 2000 N.Y. App. Div. LEXIS 11599 (4th Dep't 2000)($400,000 award for emotional distress from Commissioner of NYSDHR under State law: remittitur denied; petitioner suffered from major depression, panic disorder, and post-traumatic stress disorder that were causally related to the harassment and discrimination endured at the Center over several months. The incidents of harassment and discrimination were numerous and continuous throughout their employment at the Center and included threats of physical harm by their co-workers.)
The effect is particularly acute in paramilitary organizations like police forces where the commanding officer has even greater power over the victim.
>Humig v. Dep’t of Corrections, $850,000 compensatory damages award, Commissioner Gibson (the pattern of harassment and retaliation perpetrated by the officer’s supervisors and co-workers caused serious emotional distress and jeopardized her life and safety), rev’d in part, New York State Dept. of Correctional Services v. New York State Div. of Human Rights, 2008 WL 2682073, 3 (N.Y.A.D. 3 Dept.) (N.Y.A.D. 3 Dept.,2008)(Reducing compensatory damages to $200,000: “an award of compensatory damages must be based on pecuniary loss and emotional injuries actually suffered . . . 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. . . . ” (did the 3d Dep’t mis-apply Transit Authority ?))
See, e.g., Sorrenti v. City of New York, 2007 WL 2772308, 8 (N.Y.Sup. 2007)(under the City Law)(Denying remittitur of $491,706.00 jury verdict for psychological injury under the City Law: This court finds that the jury, among other proven factors, was able to assess the long term effects of Hall's harmful stereotyping of Sorrenti and discriminatory denial of Sorrenti's career opportunity with YSS has had on his mental and emotional state and which was compounded by CITY/NYPD employees' ongoing retaliatory acts of “abuse, intimidation and humiliation ...” , Sorrenti's episodes of suicidal ideation and current diagnosis of major reactive depression and Sorrenti's ongoing need for psychotropic medication.; and
Katt v. City of New York, 151 F.Supp.2d 313, 369 (S.D.N.Y.,2001) (denying remittitur of $400,000 emotional distress award based on sexual harassment)(City Law)(The evidence established a sufficient basis from which a reasonable jury could find (and evidently did find) that the sexual harassment Katt experienced at the Seventh Precinct proximately caused her mental suffering. Katt testified that the sexual harassment caused, and continues to cause, severe emotional distress, which has manifested itself in various forms, including intestinal disorders and respiratory problems, vomiting, inability to hold down a job, and fear of intimate relationships with men. . . . . Defendants cite no case in which a plaintiff in a similar circumstance-suffering from permanent mental disabilities, unable to work, unable to maintain sexual intimacy, unable even to perform household chores-was required to remit an award for compensatory damages for emotional distress comparable to the amount at issue here. An award of $400,000 is no doubt a considerable one, but there was ample testimony in this case that the Seventh Precinct's pervasive and sexually hostile work environment has caused the plaintiff substantial and permanent psychological damage.)
Expert psychiatric testimony can be helpful in these cases in order to provide a diagnosis and an estimate of the duration of the injury.
One issue which frequently arises in sexual harassment cases is prior abuse (parental, spousal or rape being most common) and concomitant psychological injury. Should such vulnerability work to the plaintiff's or defendant's benefit? It will work to the defendant’s benefit if defendant's discrimination merely exacerbated plaintiff's injury (caused by actions other than defendants), in which case at most the defendant is responsible for the decline in plaintiff's mental condition caused by the discrimination. However, if the plaintiff was functioning well before the discrimination, without significant impairment caused by the prior trauma, the discrimination most likely caused suffering the plaintiff would not otherwise have experienced, in which case the plaintiff benefit’s from the eggshell doctrine.
See e.g., Brady v. Wal-Mart Stores, Inc., 455 F.Supp.2d 157, 197 (E.D.N.Y. 2006), a failure to promote case with some hostile work environment aspects, the court remitted a much larger jury verdict under NY State law for emotional distress to $600,000, noting "a lifetime of struggling with [cerebral palsy] left Brady particularly susceptible to emotional harm flowing from the discrimination to which the defendants subjected him. See Bialik v. E.I. Dupont de NeMours & Co. Inc., 142 Misc.2d 926, 929, 539 N.Y.S.2d 605 (N.Y.App.Div.1988) (characterizing plaintiff as a “ ‘mental eggshell’ ready to be cracked”).
One earlier Second Circuit decision under federal law held that the eggshell skull doctrine has only been applied to pre-existing physical conditions and declined to extend the doctrine to psychological injury. Ragin v. Macklowe Real Estate Co., 6 F.3d 898 (2d Cir. 1993).
Other conduct which can cause severe emotional injury is retaliation and constructive termination. The adverse conduct found in retaliation and constructive termination cases is often very similar to hostile work environment harassment.
See, eg, Osorio v. Source Enterprises, Inc., 2007 WL 683985, 5 (S.D.N.Y.) (S.D.N.Y.,2007)(NY State and City Law $4 million in compensatory damages for retaliatory termination: plaintiff testified at some length about the emotional distress and damage to reputation caused by the retaliation, including how defendant’s retaliation caused her to feel depressed and anxious and to feel embarrassed in front of others in the industry, as well as causing her difficulty during subsequent job interviews and professional events and the like. . . . Plaintiff, having risen from humble beginnings to the position of Editor-in-Chief of this prominent publication, only to be summarily dismissed in retaliation for filing a complaint of gender discrimination, might reasonably have suffered, as she averred, substantial emotional distress and reputational harm-and a jury, having found that such retaliation was intentional, could reasonably have concluded, under any standard, to award substantial damages.)
Termination cases where discrimination is established solely by circumstantial evidence are considerably less likely to produce severe emotional injury because they do not usually involve injurious harassing conduct. There are a number of exceptions, however, such as where the plaintiff is particularly vulnerable. See, eg,:
Sogg v. Amer. Airlines, Inc., 193 A.D.2d 153; 603 N.Y.S.2d 21 (1st Dep’t 1993)(Jury verdict of $400,000 for emotional distress under NYSHRL: failure to promote and termination based on disability (heart condition) age and sex. 27-year career worked her way up to “second in command” only to be denied a deserved promotion and ultimately terminated. Plaintiff was particularly vulnerable because it was difficult for her to find another position)
Ramirez v. New York City Off-Track Betting Corp., 1996 WL 210001, 5 (S.D.N.Y 1996)(Remittitur of emotional distress verdict to $500,000 under §1983: "the loss of employment, the loss of health insurance and benefits, and the emotional pain of being arbitrarily and summarily dismissed aggravated plaintiff's psychological problems to such an extreme extent that he ceased to be able to function in society. Further, there was substantial evidence to support a finding that this inability to function would persist indefinitely into the future.") aff'd in relevant part, rev'd in part, 112 F.3d 38 (2d Cir. 1997)
In re New York City Transit Auth.,78 N.Y.2d 207, 577 N.E.2d 40, 573 N.Y.S.2d 49 (N.Y. 1991)(NY Court of Appeals reversing remittitur of NYSDHR Commissioner's award of $450,000 for emotional distress: denial of light duty routinely offered to men resulted in pregnant bus driver's miscarriage)
Cavagnuolo v. Baker & McKenzie, 1993 WL 766865, 9 (N.Y.Div. of Human Rights Human Rights 1993)($500,000 from the Commissioner for emotional distress and humiliation. Discriminatory termination of AIDS victim by law firm after his Karposi's Sarcoma became visible. Defendant took from him the one thing left in his life of meaning)
Evidence Necessary to Support Emotional Distress Awards
Psychiatric treatment is highly probative of serious psychological injury. However the absence of psychiatric treatment is not particularly probative of an absence of psychiatric injury.
People often suffer in silence. Many people will not or cannot due to lack of insurance seek medical attention for their emotional distress. Sometimes they tell their family physician they are having a lot of stress at work and receive a prescription for antidepressants. They may tell their dentist they are grinding their teeth at night and receive a bite plate. Or receive treatment for sexual dysfunction which they began to experience after the harassment. All of this evidence is probative of psychological injury and potentially admissible. But it is a common misconception that there is a requirement that the plaintiff demonstrate treatment to recover substantial damages for emotional distress.
In reversing the Second Department’s initial conclusion that the $450,000 award could not be sustained without evidence of treatment or physical manifestations, the New York Court of Appeals instructed the Appellate Division that:
The existence of compensable mental injury may be proved, for example, by medical testimony where that is available, but psychiatric or other medical treatment is not a precondition to recovery. Mental injury may be proved by the complainant’s own testimony, corroborated by reference to the circumstances of the alleged misconduct.
In re New York City Transit Auth., 78 N.Y.2d 207, 577 N.E.2d 40, 573 N.Y.S.2d 49 (N.Y. 1991)($450,000 based solely on testimony of plaintiff); Meacham v. Knolls Atomic Power Laboratory, 381 F.3d 56, 78 (2d Cir. 2004)(accord $125,000).
In addition to Transit Authority, and Meacham, supra, there are cases decided in state and federal court, under NY State and NYC Law which expressly recognize that the testimony of the plaintiff, often supported by the testimony of her friends, family or co-workers, is sufficient to support a significant emotion distress award, without the testimony of a treating or expert medical provider. See, eg,:
Osorio v. Source Enterprises, Inc., 2007 WL 683985, 5 (S.D.N.Y.) (S.D.N.Y.,2007)(Refusing to grant remittitur of $4 million in compensatory damages under the City Law based on testimony of plaintiff)
In Re Town of Hempstead, 233 A.D.2d 451, 649 N.Y.S.2d 942 (2d Dep’t 1996)($500,000 for sexual harassment under NY State law based on testimony of plaintiff and friend)
New York City Police Dept. v DeLeon, Sup Ct, NY County, July 28, 1992, Altman, J., Index No. 40191/92, aff’d, 201 AD2d 260, 608 N.Y.S.2d 827 (1994), lv denied, 83 NY2d 757) ($250,000 based solely on testimony of victim of retaliation)
119-121 East 97th Street Corp. v. New York City Com'n on Human Rights, 220 A.D.2d 79, 85, 642 N.Y.S.2d 638, 642 (N.Y.A.D. 1 Dept.,1996)(Denying remittitur of $100,000 emotional distress award by NYCCHR: "The testimony of the complainant alone will suffice to sustain an award for mental anguish (Cullen v. Nassau County Civil Service, 53 N.Y.2d 492, 497, 442 N.Y.S.2d 470, 425 N.E.2d 858). Further, evidence of mental treatment is not required for a finding of mental anguish [citing DeLeon, supra])).
Broome v. Biondi, 17 F.Supp.2d 211 (S.D.N.Y.,1997), a jury awarded $114,000 each in emotional distress damages under the City Law to two tenants whose application to sublease a cooperative apartment was rejected on the basis of race, solely on their testimony of embarrassment and humiliation caused by the discriminatory approval process, being reduced to tears, and her husband’s testimony as to his anger and shame for not having defended his wife.
In the Second Circuit, the term "Garden Variety" emotional distress implies a case in which the defendant is not entitled to a Rule 35 exam of the plaintiff by a psychiatrist because the plaintiff is not seeking compensation for permanent or serious psychiatric injury. It also implies that any award for emotional distress in excess of $30,000 may be reduced to that amount. Patterson v. Balsamico, 440 F.3d 104, 120 (2d Cir. 2006)(the Court was reminded of its $30,000 limit in cases such where "the evidence of the harms suffered was limited to Patterson's testimony alone, and there was no evidence that any medical treatment was required.")
In Meacham v. Knolls Atomic Power Laboratory, 381 F.3d 56, 78 (2d Cir. 2004)(accord $125,000) the Second Circuit held that the so called Garden Variety doctrine did not apply at all to cases under State and City Law, relying on the NY Court of Appeals holding in Transit Authority that the plaintiff’s testimony alone was enough to support a significant emotional distress award. However there are also decisions under federal law in the Second Circuit upholding significant emotional distress awards, without medical testimony, supported only by the testimony of the plaintiff and a friend or family member to suggest that the Garden Variety doctrine is flexible. See, eg,:
Phillips v. Bowen 278 F.3d 103, 111 -112 (C.A.2 (N.Y.),2002)(affirming the district court's refusal to remit a $400,000 emotional distress award for retaliation for exercising her first amendment rights: Plaintiff did not offer medical testimony or prove physical injury, however she "and her boyfriend testified in detail about her emotional distress, physical illness, and the effects of defendants' conduct on her lifestyle and relationships. Phillips' co-workers testified about the deterioration they observed in Phillips."
Fink v. City of New York, 129 F.Supp.2d 511, 538 (E.D.N.Y. 2001) (Remitting to $175,000 an emotional distress award under the ADA, proved by the testimony of the plaintiff and his wife: The fact that Fink did not go to a psychiatrist when he experienced the symptoms of emotional distress to which he testified, an omission to which courts often seem to give significant weight, should not necessarily have led either a jury or this court to conclude that his symptoms were somehow more likely to be fabricated or insignificant. . . . It is not unreasonable to suppose that an individual such as Fink, a man used to working among men in the military and in the fire department" would not "have gone 'running off to some shrink,' and endured the stigma often associated with such visits" and "therefore, the absence of medical evidence should not be weighted too heavily against Fink.")
There is no $30,000 cap under Title VII. The “Garden Variety” doctrine appears to be vulnerable to legal challenge. The fact that it has not been thus far suggests that it benefits some plaintiffs who are using it to avoid Rule 35 exams. The recent jury verdict in Browne-Sanders v. MSG, a sexual harassment and retaliation case, is an example. The jury awarded $11.7 million in punitive damages but the plaintiff intentionally avoided making a case for psychological injury.
Practical Techniques for Accessing Psychological Injury
In personally injury cases the attorney has some well established tools for proving damages. He can put a radiologist on the stand to explain an X-Ray of a broken bone. There is usually not going to be a dispute in the case of a clear break.
Psychological injury is more difficult to prove. Psychiatrists cannot read minds, and conflicting expert testimony and reports in these cases are the rule. Because the assessment of suffering is inherently subjective it is not possible accurately to predict what amount a jury will award for psychological injury.
It is possible, however, to identify cases where an extremely large jury verdict for psychological injury is likely, and likely to be sustained by the court.
Severe psychological injury is usually accompanied by certain behavior and symptoms (DSM IV criteria for diagnosis of major depression and PTSD). It's usually noticed by friends, family and quite often co-workers (whose testimony juries often find more credible than expert testimony).
There are some common changes that victims of serious psychological injury undergo in behavior and physical function. Their socialization patterns change. The plaintiff may withdraw from friends and family. He or she may become angry with children for no apparent reasons, or stop seeing a circle of friends.
Victims of serious psychological injury frequently experience changes in appetite and weight, often accompanied by a purchase of new clothing to accommodate the weight change. There are often changes in sleep patterns, dreaming (nightmares waking the plaintiff). There may be hair loss or prolonged intestinal disturbance. Panic attacks accompanied by rapid heartbeat are not uncommon.
Loss of function is another common problem. A plaintiff may become tearful for no apparent reason, when exposed to stimuli which trigger flashbacks, and become unable to function on the job. For some, their depression is so deep they become completely unable to work and socialize.
One cannot value psychological injury the same way a personal injury lawyer values a torn meniscus. As discussed infra, even discrimination proved solely through circumstantial evidence, where there has been no hostile work environment, can produce significant awards, when compensatory and punitive damages are combined.
But if you are trying to figure out whether the plaintiff is likely to hit one out of the ball park, look to changes in the plaintiff’s socialization and the types of problems described above.
Compensatory Damages, Punitive Damages and Remittitur under federal, NY State and NY City Law (Continued)