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The remedies available to a successful plaintiff under the Americans with Disabilities Act (ADA) and state and local disability discrimination statutes include reinstatement, back pay, injunctive and other equitable relief, compensatory damages for pain and suffering, punitive damages and attorney fees and costs. Persuading a jury or judge to actually award these remedies is another matter. Issues such as the appropriateness and amount of emotional distress or back pay damages can be litigated as intensely as the underlying issue of discrimination itself. This article discusses two important and often hotly contested issues concerning damages under the ADA and state and local disability discrimination statutes: (1) the nature and scope of jury awards for emotional distress; and (2) the ability of employers to reduce back pay recoveries due to an offset or the plaintiff’s inability to work. EMOTIONAL DISTRESS CLAIMS UNDER THE ADA Plaintiffs asserting claims for disability discrimination under the ADA and/or state or local disability discrimination laws often seek compensatory damages for emotional distress. These claims are generally based on the psychological injury a plaintiff contends to have suffered because of alleged harassment by the employer, the employer’s failure to accommodate or the effects of the employer terminating the plaintiff’s employment. As the following cases demonstrate, juries have been known to award a prevailing plaintiff as little as a few thousand dollars or as much as several hundred thousand dollars for emotional distress. Generally, a plaintiff receives a smaller award when the only evidence of emotional distress consists of the plaintiff’s and/or the plaintiff’s spouse’s testimony and he or she has not undergone any treatment by a mental health professional. Further, garden variety claims of emotional distress, such as being upset or losing sleep as a result of the discriminatory behavior, generally will result in lesser damages. Evidence of counseling or psychotherapy will usually support greater damage awards. When the emotional distress is more severe, and a medical provider testifies as to the distress (or there are physical manifestations of it), the award tends to be higher. Additionally, juries appear to award greater damages for emotional distress to plaintiffs who have more severe physical disabilities or who have underlying psychological disabilities. Finally, where a jury awards emotional distress damages that are not supported by the evidence, the court will not hesitate to reduce the award. ILLUSTRATIVE CASE LAWWeissman v. Dawn Joy Fashions, 214 F.3d 224 (2d Cir. 2000) — Steven Weissman suffered a heart attack when he was 31 years old, after which he was terminated from his position as a salesman for defendant Dawn Joy. Six days after the heart attack, Dawn Joy placed Weissman on disability leave. Weissman protested and informed Dawn Joy that his physicians had cleared him to return to work in four to five weeks. A few days later, Dawn Joy informed Weissman that they were busy and “had to hire somebody” to perform his duties. Dawn Joy told Mr. Weissman that when he returned they would attempt to find another position for him. Dawn Joy later filled out a disability form indicating that Weissman had been terminated less than two weeks following his heart attack. The company also canceled his health insurance. Approximately four weeks after the heart attack, Weissman informed Dawn Joy that he was able to return to work. At that time, Weissman filed a complaint with the New York City Commission on Human Rights. A few days later, Dawn Joy responded to Weissman and told him that on advice of counsel they could not speak with him. They also halted their attempts to find him another position. During the trial, Weissman testified that he became “depressed” as a result of his termination and underwent psychotherapy for one year. Additionally, his psychotherapist testified that plaintiff suffered from depression. The jury awarded plaintiff $95,000 for pain and suffering, $75,000 in back pay and $150,000 in punitive damages for termination of employment. The district court later reduced the award for pain and suffering to $65,000 but upheld the award for back pay and punitive damages. On appeal, the Second Circuit upheld the jury verdict but vacated the award of punitive damages on the grounds that the employer’s conduct — attempting to portray Weissman as a poor performer, firing him and canceling his insurance two weeks after his heart attack — was insufficient to support a finding that the employer acted with malice or with reckless indifference to federal law, the relevant standard for awarding punitive damages. � Disanto v. McGraw-Hill Inc.220 F.3d 61 (2d Cir. 2000) — The jury awarded $100,000 for emotional distress, $180,000 in back pay and $1 million in punitive damages for a claim of wrongful termination and hostile work environment based on HIV+ status. The employer, however, was granted judgment as a matter of law. On appeal, the 2nd Circuit upheld the judgment as a matter of law, finding there was no evidence that the plaintiff could perform his job at the time of his discharge. Though the plaintiff testified that he was able to work with an accommodation at the time of his discharge, his psychologist testified that plaintiff was unable to work due to the “severe depression” that resulted from his termination. The court concluded that the New York State Human Rights Law did not require an accommodation at the time plaintiff filed his claim so plaintiff was unable to work under that law, and thus was precluded from receiving damages. Further, the court found that an “unexplained” Social Security Administration report that plaintiff was unable to work since a date approximately 10 months prior to his discharge was evidence that plaintiff was completely disabled, and could not even work if he was accommodated. Thus, plaintiff was precluded from recovering damages under the ADA. � Tanzini v. Marine Midland Bank, 978 F. Supp. 70 (N.D.N.Y. 1997) — The jury awarded plaintiff $200,000 for emotional distress, $80,000 in back pay, $250,000 in front pay and $80,000 in liquidated damages, based on plaintiff’s age discrimination and disability discrimination claims. The district court entered judgment on all but the front-pay award. The emotional distress award was reduced to $30,000, following a motion for judgment as a matter of law or for a new trial. The district court denied defendant’s motion for judgment as a matter of law. Defendant also requested a new trial or remittur to $5,000 on the damage award for emotional distress. The court found that the only evidence to support the claim for emotional distress was the plaintiff’s own testimony that his termination was a “very traumatic experience” and his wife’s testimony that plaintiff suffered “sleepless nights.” Plaintiff offered no evidence of the duration or magnitude of his emotional distress, nor any evidence that he underwent psychological or medical treatment. The court concluded that the award of emotional distress was not supported by the evidence and ordered a new trial, unless the plaintiff accepted a reduced award of $30,000 on the emotional distress damages. The court also granted plaintiff’s motion to amend the judgment by entering judgment for $250,000 in front pay. Further, the court awarded plaintiff attorneys’ fees and costs. � Meling v. St. Francis College, 3 F. Supp. 2d 267 (E.D.N.Y. 1998) — A jury award of $225,000 for pain and suffering and $150,000 for termination of employment upheld following motion for judgment as a matter of law where employer failed to ensure compliance with the ADA. The plaintiff, Barbara Meling, brought a claim against St. Francis College alleging discrimination under the ADA after the college terminated her employment as an assistant professor of physical education. Plaintiff suffered injuries in a car accident during the spring 1993. The resulting injuries, which included a concussion, fractures to her face, and damage to her knee and shoulder, limited her ability to lift objects and to walk for more than a short distance. Despite her injuries and physical limitations, plaintiff continued to work for the remainder of the semester. Plaintiff was unable to return to work for the following two semesters, and St. Francis agreed to a leave of absence. In the fall 1994, Meling provided St. Francis with a doctor’s note stating she could return to work, provided she was assigned to “light duty” assignments. St. Francis informed Meling that there were no light duty positions available and that she could not return to work within the limitations prescribed by her doctor. Meling wrote to St. Francis requesting they reconsider her request and suggesting several accommodations, including St. Francis providing her with an assistant to help her teach. St. Francis wrote back to Meling saying it was “too late” to initiate any of the requested accommodations “even if they were appropriate.” In fact, Meling was capable of teaching most of her classes, because they required no physical activity. Two of her classes — Tae Kwon Do and Exercise and Nutrition and Weight Control — required physical demonstrations, but students could have performed these. Late in 1994, Meling again informed St. Francis of her desire to return to work, but was told that she could not return unless she could “perform all duties and responsibilities as a faculty member.” Further, St. Francis stated that Meling was deemed to have “resigned” at the end of her one-year medical leave of absence. She then filed suit. A jury awarded plaintiff $225,000 for pain and suffering and $150,000 in punitive damages. 1997 WL 463442 (LRP Jury Database). Both defendant and plaintiff appealed. The court denied defendant’s request for judgment as a matter of law or for a new trial, finding that St. Francis simply assumed that plaintiff would be unable to fulfill the job requirements and so failed to consider any of Meling’s requested accommodations. Further, the college never discussed the physical demands of the job with any other physical education teachers or whether Meling could perform the job with reasonable accommodations. Thus, since “St. Francis did nothing to ensure compliance with the ADA,” the jury’s award was upheld. Plaintiff was further awarded $141,125 in back pay and attorneys’ fees. � Fink v. City of New York, 129 F. Supp. 2d 511 (E.D.N.Y. 2001) — Plaintiff was awarded $800,000 in emotional distress damages (capped at $300,000 by the district court) and $91,800 in other compensatory and liquidated damages. On motion for judgment as a matter of law or a new trial, the court ordered either new trial or reduction of the emotional distress award to $125,000. The plaintiff, a New York City firefighter, claimed he was discriminated against based on a perceived disability: hearing loss. Plaintiff alleged that he was subjected to hearing exams and was not allowed to take a make-up promotional exam following his return from military leave. The plaintiff also contended he was retaliated against for attempting to assert his rights by being assigned to “light duty” work and prevented from working overtime. As evidence of emotional distress, the plaintiff and his wife testified that plaintiff’s self-image was destroyed as a result of the way his employer treated him. He further testified that this treatment reminded him of the negative way he was treated when he returned from serving in Vietnam. The court found that although the jury most likely found that the plaintiff’s testimony was credible and that he suffered emotional distress, the award should be reduced to $125,000 in order not to offend the judicial conscience. The court’s remittur was premised on a detailed comparison of the amount of damages awarded to other plaintiffs in cases involving comparable injuries. The decision in Finkprovides attorneys with a useful road map to the range of emotional distress damages a plaintiff can expect to receive based on the type of injury suffered. � Connolly v. Biderman Indus., 1999 WL 1823133 (LRP Jury) (S.D.N.Y. 1999) — The jury awarded $525,000 for back pay and pain and suffering and $350,000 in punitive damages. The case was later settled for an unspecified amount. The plaintiff suffered an ear injury while flying on company business. She informed her employer that she could no longer fly and inquired about another position that did not require air travel. Her employer told her that there were no such positions available, even though there was a vacant position requiring only car travel, for which plaintiff was qualified. The defendant argued that they had no obligation to transfer the plaintiff. The jury found for plaintiff. BACK-PAY DAMAGES AND OFFSETS Plaintiffs in discrimination cases brought under the ADA — or any other anti-discrimination law — generally claim lost wages and benefits, including back pay and front pay, emotional distress damages and punitive damages. When considering damages claims, courts must determine whether the claims comport with the purpose of relief under the federal anti-discrimination laws, which is “to make persons whole for injuries suffered on account of unlawful employment discrimination.” Albermarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975) (Title VII case). In arguing that the relief sought does more than “make persons whole for injuries suffered,” employers often rely on a defense of offset; that is, that plaintiffs are attempting to “obtain a damages windfall by claiming entitlement to lost wages in addition to other [monetary] benefits that they may have already received from a collateral source.” John H. Mason & Christopher L. Ekman, “Defending Against Damages Claims in Discrimination Cases,” 13 Lab. Law. 471, 489 (Winter/Spring 1998). Such a defense is particularly relevant in ADA cases, where allegedly disabled plaintiffs often receive disability benefits from collateral sources such as state disability funds, employer private disability plans or Social Security. The ability to deduct or “offset” these collateral benefits from backpay and front-pay awards can result in significant reductions in the award. The 2nd Circuit has ruled that “the decision whether or not to deduct [collateral] benefits from a [discrimination] backpay award rests in the sound discretion of the district court.” Dailey v. Societ� Generale, 108 F.3d 451, 459-61 (2d Cir. 1997). Following the decision in Societ� Generale, New York courts now conduct an individualized analysis to determine if an offset is appropriate and, in so doing, equitable considerations often weigh heavily. For example, in Meling v. St. Francis College, supra, the plaintiff, a professor fired from defendant college, was awarded $141,251 plus interest in back pay after she succeeded on her ADA claim. Among other motions, defendants moved for denial or modification of the back pay award. Specifically, defendants argued that the money plaintiff received from the college-sponsored disability benefit plan ($25,000), to which the college made premium payments on plaintiff’s behalf, should be deducted from her back pay award because it stemmed directly from the college’s financial contribution. 3 F. Supp. 2d at 275. The court, however, declined to exercise its discretion to deduct the amount of disability benefits from the back pay awarded. In arriving at its conclusion, the court engaged in an equitable analysis, finding that, “If I deduct the � benefits from [plaintiff's] back pay award, [the college] will pay less than it would have, had it not unlawfully fired [plaintiff]. On the other hand, if I refuse to deduct the � benefits, [plaintiff] will receive more than she would have, had she not been terminated. Selecting between these two alternatives, I prefer to confer the unavoidable windfall on the victim of discrimination. Accordingly, I refuse to deduct the � benefits received by [plaintiff] from her back pay award.” Id. at 276. Courts outside New York have, however, conducted similar equitable analyses and determined that an offset is appropriate. See Fredenburg v. Contra Costa County Dep’t of Health Servs., 172 F.3d 1176 (9th Cir. 1999) (plaintiff “certainly would not be entitled to retain disability benefits and, at the same time, recover back pay for the same period”); Wilcox v. Stratton Lumber Inc., 921 F. Supp. 837, 843 (D. Me. 1996) (“a back pay award downwardly adjusted for unemployment benefits will make plaintiff whole, and will also serve a deterrent purpose”). Another damages defense that often arises in the context of ADA cases — and is particularly relevant in light of the “make whole” purpose of the remedies under the anti-discrimination laws — is the claim that plaintiffs should not receive back pay for time periods in which they were not physically or mentally able to work, with or without an accommodation. Unlike the offset argument, which seems to have been met with mixed reviews from courts, courts appear to agree that back pay should not be awarded for periods when plaintiffs cannot work. See Meling, 3 F. Supp. 2d at 276 (“[d]efendants correctly observe that [plaintiff] should not receive a back pay award that reflects payments during time periods in which she would not have been physically able to teach at [the college]“); Flowers v. Komatsu Mining Sys. Inc., 165 F.3d 554, 558 (7th Cir. 1999) (back pay must be specifically calculated and tailored to times when the plaintiff was a qualified individual under the ADA, and was capable of working). THE BOTTOM LINE As the aforementioned cases demonstrate, an ADA plaintiff seeking compensatory damages will be required to prove that he or she suffered concrete emotional or physical injury as a result of the action complained of. If this burden can be met, a substantial award may result. Given the possibility of a substantial recovery, employers need to be prepared in advance of trial to properly defend these claims by seeking discovery of plaintiff’s medical and counseling records and conducting mental examinations. In addition, where appropriate, the service of a damages expert should be retained. Similarly, an award of back pay cannot be presumed, and the parties must be prepared to present evidence to support or defend such a claim. Jill L. Rosenberg is a partner in the employment law department of Orrick, Herrington & Sutcliffe, in New York and a member of the board of advisors of the New York Employment Law & Practice newsletter.

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