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Barham v. Wal-Mart Stores, Inc.

United States District Court, D. Connecticut

August 30, 2017




         On March 8, 2017, a jury awarded Michael Barham (“Plaintiff”) compensatory and punitive damages against Wal-Mart Stores, Inc. and Wal-Mart Stores East, L.P. (“Walmart” or “Defendants”). An evidentiary hearing was held on May 30, 2017 to determine economic damages. The parties dispute the amount of economic damages in this case. Walmart also seeks remittitur as to compensatory damages and the application of a statutory damages cap as to punitive damages. Mot. for Remittitur, ECF No. 593.

         In this memorandum and ruling, the Court addresses Walmart's request for remittitur and sets forth its findings of fact and conclusions of law with respect to economic damages. For the reasons outlined below, Walmart's [593] Motion for Remittitur with respect to non-economic damages is GRANTED IN PART AND DENIED IN PART. Consistent with applicable law, the Court reduces the compensatory damages award to $125, 000 and the punitive damages award to $175, 000. With respect to the economic damages, the Court orders Walmart to reinstate Mr. Barham and award him back pay in the amount of $238, 678 with applicable pre-judgment interest.


         At the conclusion of trial in this matter, the jury found for Mr. Barham on his Title VII retaliatory failure to rehire claim. The jury awarded Mr. Barham a total of $550, 000 in compensatory damages and an additional $5, 000, 000 in punitive damages. Walmart seeks an order of remittitur reducing both of these amounts to a total of $150, 000.

         A. Standard of Review

         “Remittiturs are a common procedure used by the courts to, in effect, reduce the amount of a damage award that the court concludes is impermissibly high.” Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 167 (2d Cir. 2014). “Remittitur is appropriate in two situations: ‘(1) where the court can identify an error that caused the jury to include in the verdict a quantifiable amount that should be stricken, and (2) more generally, where the award is “intrinsically excessive” in the sense of being greater than the amount a reasonable jury could have awarded, although the surplus cannot be ascribed to a particular, quantifiable error.'” Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34, 51 (2d Cir. 2015) (quoting Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir. 1998)).

         “Where there is no particular discernable error . . . a jury's damage award may not be set aside as excessive unless ‘the award is so high as to shock the judicial conscience and constitute a denial of justice.'” Lore v. City of Syracuse, 670 F.3d 127, 177 (2d Cir. 2012) (quoting Kirsch, 148 F.3d at 165). The Court applies this “shocks the conscience” standard when reviewing a motion for remittitur as to a federal claim. See Stampf v. Long Island R. Co., 761 F.3d 192, 206 (2d Cir. 2014) (noting distinction between “the federal ‘shocks the conscience' standard” and New York state law standard); Port Auth. Police Asian Jade Soc. Of N.Y. & N.J. Inc. v. Port Auth. of N.Y. & N.J., 681 F.Supp.2d 456, 469 (S.D.N.Y. 2010) (“When federal law provides the cause of action, remittitur is appropriate when the jury award includes an identifiable error of a quantifiable amount or is so high as to ‘shock the conscience.'”) (citing Kirsch, 148 F.3d at 165).

         When considering a motion for remittitur, “a court should look to awards in comparable cases, bearing in mind the unique facts and circumstances of each case.” Graham v. City of N.Y., 128 F.Supp.3d 681, 713-14 (E.D.N.Y. 2015) (citing Stampf, 761 F.3d at 204, Dotson v. City of Syracuse, 549 F. App'x 6, 8 (2d Cir. 2013), and Tretola v. Cty. of Nassau, 14 F.Supp.3d 58, 83 (E.D.N.Y. 2014)). Because “‘awards for mental and emotional distress are inherently speculative' and the judicial system ‘has an obligation to ensure that such awards for intangibles be fair, reasonable, predictable and proportionate, ' greater scrutiny is given to large jury awards for mental and emotional harm to ensure that they are in line with comparable cases.” Id. at 714 (quoting Turley, 774 F.3d at 162). “[W]hen juries grant large compensatory awards for intangible and unquantifiable injuries, such as emotional distress, pain, and suffering, ” the trial court's discretion is under “substantial constraints.” Turley, 774 F.3d at 162 (quoting Stampf, 761 F.3d at 205).

         B. Discussion

         Walmart asks the Court to limit the jury's compensatory and punitive damages awards in accordance with the $300, 000 statutory cap on non-economic damages. Def. Mem. in Supp. at 3, ECF No. 594. Walmart also seeks a further reduction below the statutory cap for a resulting damages award of $50, 000 in compensatory damages and $100, 000 in punitive damages. Id. Mr. Barham agrees that the damages award must be subject to the statutory cap; however, he argues that any reduction below the combined statutory maximum of $300, 000 would be inappropriate in this case. Pl. Mem. in Opp., ECF No. 604.

         1. Statutory Cap

         42 U.S.C. § 1981a limits the “sum of the amount of compensatory damages awarded … for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages” that may be awarded in Title VII cases. 42 U.S.C. § 1981a(b)(3). Under this statutory restriction, employers with “more than 500 employees” may not be ordered to pay compensatory and/or punitive damages in excess of $300, 000. 42 U.S.C. § 1981a(b)(3)(D).

         The only claim on which the jury found in favor of Mr. Barham was a retaliation claim under Title VII. Thus, the jury's verdict is subject to the limitations described in 42 U.S.C. § 1981a, and the Court limits the jury's combined compensatory and punitive damages award to a total of no more than $300, 000.

         2. Compensatory Damages

         Walmart argues that the jury's non-economic compensatory damages award should be reduced from $550, 000 to $50, 000. According to Walmart, the evidence presented at trial supported only “garden-variety” emotional distress, thus any award above $50, 000 would be excessive in light of compensatory damages awards given in comparable cases. Mr. Barham, on the other hand, insists that $50, 000 is too low, arguing that Walmart's characterization misrepresents the totality of the evidence regarding the severity of Mr. Barham's non-economic damages.

         “Emotional distress awards within the Second Circuit can generally be grouped into three categories of claims: garden-variety, significant, and egregious.” Graham, 128 F.Supp.3d at 714 (quoting Olsen v. Cty. of Nassau, 615 F.Supp.2d 35, 46 (E.D.N.Y. 2009)) (internal quotation marks omitted). “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.” Olsen, 615 F.Supp.2d at 46 (internal quotation marks omitted). “Such claims typically lack extraordinary circumstances and are not supported by any medical corroboration.” Id. (internal quotation marks and alteration omitted).

         In contrast, “significant” emotional distress claims “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.” Id. at 46-47 (internal quotation marks omitted). “Egregious” emotional distress claims generally involve “either outrageous or shocking discriminatory conduct or a significant impact on the physical health of the plaintiff.” Id. at 47 (internal quotation marks omitted); e.g., Caravantes v. 53rd Street Partners, LLC, No. 09 Civ. 7821 (RPP), 2012 WL 3631276, at *22-23 (S.D.N.Y. Aug. 23, 2012) (employee subjected to unwanted sexual acts suffered “significant” emotional distress where harassment led to social isolation, trouble sleeping, sexual dysfunction, marital problems, depressive disorder, post-traumatic stress disorder, and hospital admission for suicidal ideation; plaintiff's testimony was corroborated by wife and treating psychologist); Thorsen v. Cty. of Nassau, 722 F.Supp.2d 277, 292 (E.D.N.Y. 2010) (emotional distress was not “garden variety” where plaintiff saw therapist twice weekly for six months, and both plaintiff and therapist testified at length regarding Plaintiff's anxiety and depression, physical symptoms, and “major stress attack” requiring hospitalization).

         This case falls within the first category of emotional distress awards, “garden-variety” distress.[1] At trial, testimony regarding Mr. Barham's emotional distress came exclusively from Mr. Barham - no other witnesses testified to confirm the claimed emotional harm, and neither Mr. Barham nor any other witness presented any medical evidence suggesting that Mr. Barham's emotional harm had physical or medical ramifications. Mr. Barham described his emotional harm in general terms, stating that he “felt dehumanized” and that he used to be “more upbeat” before the events at issue in this case. See Barham Trial Tr. II., 112:7-12, ECF No. 563. He also confirmed that he did not seek treatment from a psychiatrist or counselor as a result of his distress, explaining that he did not “have any wires loose” and did not feel that he needed mental health services. Id. at 235:11-12.

         Mr. Barham did testify that he lost joint custody of his child as a result of Walmart's actions. Id. at 235:4 - 236:11. According to Mr. Barham, his relocation to a lower-level position in New York following Walmart's refusal to re-hire him in his old position prevented him from visiting his child, making child support payments, and attending court dates, resulting in the loss of joint custody in 2011. Id. Beyond Mr. Barham's general descriptions of his emotional state, this loss of custody is the only concrete example offered regarding his non-economic damages - he did not testify as to any permanent injury or physical impact of his alleged emotional distress, and he did not offer any corroborating testimony, medical or otherwise, regarding his emotional state. Nevertheless, the impact of the loss of joint custody of a child is significant enough to warrant damages for “garden-variety” emotional distress near to or at the top of the permissible range.

         The Court concludes that, on consideration of all evidence offered at trial, Mr. Barham has established “garden-variety” emotional distress. See, e.g., Johnson v. Strive E. Harlem Emp't Grp., 990 F.Supp.2d 435, 456-57 (S.D.N.Y. 2014) (plaintiff proved “garden variety” emotional distress “at best” where she relied on her own testimony regarding her emotional reaction to racial epithets and sexual harassment at work, her loss of energy and confidence, crying, becoming a less effective parent, having trouble sleeping, and seeing two therapists; plaintiff offered no corroborating testimony, nor any evidence of physical manifestations of her distress); Abel v. Town Sports Int'l, LLC, No. 09 Civ. 10388 (DF), 2012 WL 6720919, at *16 (S.D.N.Y. Dec. 18, 2012) (finding “garden variety” emotional distress where plaintiff offered evidence, corroborated by other witnesses, that he was hurt, stressed, “not himself, ” and gained weight); MacMillan v. Millennium Broadway Hotel, 873 F.Supp.2d 546, 561 (S.D.N.Y. 2012) (plaintiff's testimony that his work environment was “horrible” because of racial harassment, and daughter's testimony that plaintiff was “always sad” and “wasn't his same self, ” without evidence of physical manifestations or disruption of daily life, demonstrated “garden variety” emotional distress “at best”).

         “In the Second Circuit, ‘garden variety emotional distress claims generally merit $30, 000 to $125, 000 awards.'” MacMillan v. Millennium Broadway Hotel, 873 F.Supp.2d 546, 561 (S.D.N.Y. 2012) (quoting Olsen, 615 F.Supp.2d at 46) (internal marks omitted); see also Patterson v. Balsamico, 440 F.3d 104, 120 (2d Cir.2006) (upholding the jury's $100, 000 compensatory damages award where “the plaintiff offered testimony of his humiliation, embarrassment, and loss of self-confidence, as well as testimony relating to his sleeplessness, headaches, [and] stomach pains”); Vera v. Alstom Power, 189 F.Supp.3d 360, 379 (D. Conn. 2016) (granting remittitur of non-economic damages award to “$125, 000, which is near the top of the range in ‘garden variety' emotional distress cases....”), appeal dismissed (Aug. 16, 2016); DeCurtis v. Upward Bound Int'l, Inc., No. 09 Civ. 5378 (RJS), 2011 WL 4549412, at *4 (S.D.N.Y. Sept. 27, 2011) (“A review of the relevant case law in this jurisdiction reveals that plaintiffs with garden-variety claims generally receive between $30, 000 and $125, 000.”)

         Taking into consideration the jury's apportionment of non-economic damages relative to punitive damages, which are discussed in further detail below, together with the limitations imposed by the statutory cap under Title VII, the Court hereby orders a remittitur of non-economic damages to $125, 000.

         3. ...

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