Quick Hits
- A California appellate court reinstated a $13.1 million jury verdict in a gender discrimination case, rejecting trial court limits on noneconomic damages.
- The court found the trial court had erroneously found a cap on damages for noneconomic damages, even when limiting claims to “usual” distress.
- The court further held that witnesses are competent to testify to their own retirement plans to support future economic damages.
In Glick v. City of Los Angeles, the California Court of Appeals, Second Appellate District, found the “trial court abused its discretion by capping a jury’s damages for what the trial court called “garden-variety emotional distress,” and “erroneously” rejected the plaintiff’s own testimony about future economic damages.
Background
The case involved an internal investigation of police officers stemming from allegations made by an individual arrested on suspicion of driving under the influence of alcohol (DUI). The suspect had alleged mistreatment and that officers failed to request medical attention in a timely manner. Two male police officers who were investigated and disciplined, Stephen Glick and Alfred Garcia, alleged that the department treated them differently from female officers involved in the arrest. They filed a lawsuit alleging gender discrimination and retaliation under California’s Fair Employment and Housing Act (FEHA).
A jury awarded Glick $8,621,358 (including $5 million in past noneconomic damages, $3 million in future noneconomic damages, and $621,358 in future economic damages) and Garcia $4.5 million (including $3 million in past and $1.5 million in future noneconomic damages). The trial court conditionally granted a new trial unless Glick accepted a reduction to $250,000 and Garcia to $125,000. Both plaintiffs rejected the remittitur.
Decision
The Second Appellate District reversed and reinstated the original jury verdicts in full. First, the court held that the trial court improperly set a fixed standard or judicial cap for noneconomic damages. Even when plaintiffs stipulate under Code of Civil Procedure section 2032.320 “that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed,” damages are not limited to “usual” mental and emotional distress without expert testimony.
The appellate court said the trial court had effectively treated such a stipulation as a ceiling on damages. Further, the appellate court emphasized that emotional distress within jurors’ common experience requires no expert testimony, and a jury’s assessment of the severity and duration of that distress is entitled to deference.
Second, the court held that Glick was competent to testify about how the city’s allegedly discriminatory actions changed his plans to retire at fifty years of age rather than fifty-five. This testimony, combined with a forensic economist’s analysis, substantially supported the $621,358 future economic damages award. The trial court erred in considering such testimony inadmissible, “confusing” credibility with admissibility. Even the possibility of Glick changing his mind and receiving “‘a windfall’ or ‘double recovery’ did not render his testimony inadmissible.”
Key Takeaways
This decision may prompt employers to reassess their potential exposure to damages in FEHA litigation. The Glick decision indicates that “garden-variety” emotional distress claims are not subject to a cap on damages. Employees who forego a mental health expert and limit their claims to the “usual” emotional distress experienced by someone subjected to discrimination are not, as a matter of law, limited to modest damages. Employers defending these cases may no longer be able to rely on a section 2032.320 stipulation as a practical damages ceiling, and early assessments may want to account for the possibility that a jury may find plaintiffs sympathetic enough, even without supporting medical evidence.
At the outset of any litigation, employers may want to build up affirmative evidence to challenge a plaintiff’s claimed emotional distress. Evidence regarding the causation of any such distress and the presence of any alternative stressors, as well as the plaintiff’s overall credibility, is key. Additional means of discovery, including targeted interrogatories, depositions of percipient witnesses to the plaintiff’s claimed emotional distress, and subpoenas to any relevant healthcare providers are also vital, and may help lay the foundation to compel a mental examination notwithstanding any proposed stipulation.
Additionally, when considering a section 2032.320 stipulation, it may be worthwhile to negotiate additional terms designed to constrain the scope of emotional distress claims at trial. Such negotiations can help narrow the scope of the claimed emotional distress and further establish a record that may support motions in limine, jury instructions, or even appellate challenges.
Further, with the appellate court accepting the officer’s testimony to his retirement plans as evidence of future economic damages, employees may feel emboldened to testify about how discrimination disrupted their career and retirement plans without corroborating documentary evidence. Employers may not be able to rely on admissibility objections to such testimony.
Finally, the underlying facts underscore the litigation risk created by inconsistent internal investigations. The jury found that the alleged differential treatment of male and female officers provided compelling evidence of discriminatory animus. Employers may wish to ensure that workplace investigations apply consistent standards regardless of the protected characteristics of the employees involved.
Ogletree Deakins’ California offices and Workplace Investigations and Organizational Assessments Practice Group will continue to monitor developments and will provide updates on the California, Employment Law, and Workplace Investigations and Organizational Assessments blogs as additional information becomes available.
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