In Drice v. My Merch. Servs., LLC, 2016 WL 1266866 (E.D.N.Y. Mar. 4, 2016), Eastern District of New York Magistrate Judge Go recommended that plaintiff be awarded (among other damages) $20,000 for emotional distress. (Judge Brodie adopted the Magistrate’s report at 2016 WL 1266948 (E.D.N.Y. Mar. 31, 2016)). The below excerpts are from the Magistrate’s report and recommendation.
In this sexual harassment case, Plaintiff alleged that the President and Chief Executive Officer of her employer My Merchant Services LLC (Jose A. Valerio) subjected her to unwanted sexual advances (by, for example, calling her “beautiful” and a “Haitian princess”, acting flirtatious, and making kissing noises) and that defendants failed to pay her wages in violation of federal and state wage laws. “Unable to tolerate the unwelcome sexual advances by Valerio and the refusal to pay her the wages she earned, plaintiff did not return to work.”
Following defendants’ failure to answer or appear, plaintiff moved for a default judgment. The court granted plaintiff’s motion:
Plaintiff’s allegations that she was subjected to Valerio’s comments and physical touchings are sufficient to state a claim for sexual harassment. Valerio made several romantic overtures to plaintiff and physically touched her in an unprofessional manner. I find that plaintiff’s allegations show that the working conditions were such that a reasonable person would have found the abuse so pervasive or severe as to alter her working conditions. Thus, I recommend that default judgment be granted against My Merchant on this claim.
Turning to the issue of damages, the court recommended, inter alia, that plaintiff be awarded $20,000 (rather than the $60,000 she sought) to compensate her for emotional distress:
Plaintiff states that as a result of defendants’ conduct, she felt then, and still continue[s] to feel, offended, disturbed, and humiliated by the Defendant Valerio’s actions. I have suffered, and continue to suffer, from severe anxiety and depression as a result of Defendants’ sexual harassment and discrimination during my employment. In addition, plaintiff testified that following this episode, there were days when she felt worthless and could not get out of bed. Her emotional distress affected her ability to eat and sleep. Plaintiff did not submit any medical or mental health records in support of her claim for damages. …
For garden variety emotional distress claims, courts have awarded damages ranging from $5,000 to $35,000. In such cases, 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. The middle of the spectrum consists of significant ($50,000 up to $100,000) and substantial emotional distress claims ($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. In contrast, 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.
This Court finds plaintiff’s testimony regarding her emotional distress to be credible. However, despite the substantial distress she may have felt at the time, the duration of her employment was brief. She did not testify to seeking professional help or having prolonged, severe symptoms. Thus, I respectfully recommend awarding plaintiff $20,000 for emotional distress.