The Fruits of Garden Variety Emotional Distress

By: Jonathan R. Ksiazek

When plaintiffs in employment cases seek damages for emotional harm caused by the defendant without professional treatment, courts often refer to these damages as garden variety emotional distress. Because of the strong connection between a plaintiff’s emotional life and their employment, careful consideration must be given to these types of damages. As several recent trial verdicts from the Northern District of Illinois show, garden variety emotional distress can often turn into a bounty for a plaintiff.

What are garden variety emotional distress damages?

A plaintiff with a strong emotional jury appeal, in and of itself, can help lead to a substantial verdict. Yet, in both a settlement and at trial it is inherently difficult to place a monetary value on emotional distress. This is especially true when a plaintiff claims to have suffered emotional injury but did not seek professional help. Thus, “[e]valuating issues as subjective and elusive as emotional damages is a task [courts] leave in the first instance to the common sense and collective judgment of juries.” Schandelmeier-Bartels v. Chicago Park Dist., 634 F.3d 372, 388 (7th Cir. 2011).

Magistrate Judge Cole in the Northern District has defined garden variety distress as “the generalized insult, hurt feelings and lingering resentment which anyone could be expected to feel given the defendant’s conduct; the normal distress experienced as a result of the [claimed injury]; the negative emotions that [plaintiff] experienced essentially as the intrinsic result of the defendant’s alleged conduct, but not the resulting symptoms or conditions that she might have suffered; the generalized insult, hurt feelings, and lingering resentment that does not involve a significant disruption of the plaintiff’s work life and rarely involves more than a temporary disruption of the claimant’s personal life.” Flowers v. Owens, 274 F.R.D. 218, 225–26 (N.D. Ill. 2011). Another court succinctly expressed that garden variety distress is “the distress that any healthy, well-adjusted person would likely feel as a result of being so victimized.” Kunstler v. City of N.Y., 2006 WL 2516625, at *9 (S.D.N.Y. Aug. 29, 2006).

Based on these definitions, courts will typically allow plaintiff seeking garden variety emotional distress to testify to their own emotions and the disruption to their life but not to any specific medical condition associated with those emotions. See, e.g., Santelli v. ElctroMotive, 188 F.R.D. 306, 309 (N.D. Ill. 1999) (limiting plaintiff’s testimony to “[b]are testimony of humiliation or disgust”); Flowers, 274 F.R.D. at 227 (noting that the plaintiff could abide by Santelli’s formulation of garden-variety damages by testifying that he felt depressed, anxious, and dejected).

The Risks of Garden Variety Emotional Distress at Trial  

Two recent cases in the Northern District of Illinois show the danger of underestimating the value of garden variety emotional distress damages.

In Sanchez v. Catholic Bishop of Chicago, 16 C 6983, 2018 WL 6192205 (N.D. Ill. 2018), the plaintiff worked as a parish assistant for the defendant. Sanchez alleged that she was terminated in retaliation for complaining about another co-worker viewing pornography on an office computer.  Sanchez, 2018 WL 6192205, at *3-4. The case proceeded to trial in November 2017, and Sanchez was awarded $200,000 in compensatory damages for her emotional pain and suffering caused due to her termination. Id., at *11. In addition, the jury awarded Sanchez $500,000 in punitive damages. Id. While Sanchez did not seek professional help from a counselor or psychiatrist, there was substantial testimony regarding the central nature of the church to Sanchez’s social and spiritual life before her termination. Id., at *11-12.  Testimony also showed that Sanchez had difficulty sleeping, gained weight, and lost friends due to her termination. Id., at *11.

The court upheld the jury’s award of emotional distress damages in the amount of $200,000 because, even though “the award is higher than the Seventh Circuit has deemed appropriate in some Title VII cases[,]” Sanchez “presented more evidence of emotional distress than the plaintiff in either of [those] cases.” Id., at *12.  The court also considered the award appropriate due to the combination of Sanchez’s loss of an income stream and the significant damage caused to her religious and social life. Id. Sanchez shows that powerful emotional testimony can resonate with a sympathetic jury.

A very recent decision by Judge Kennelly in the Northern District of Illinois illustrates similar risks. In Morris v. BNSF Railway Company, 15 cv 2923, (N.D. Ill. August 22, 2019), an African-American plaintiff who worked as a conductor for BNSF was discharged after violating internal BNSF rules. Morris alleged that his termination violated Title VII and Section 1981 because other similarly situated Caucasian employees with violations were not terminated. After a four-day trial, the jury awarded Morris $375,000 in compensatory damages for emotional distress and $500,000 in punitive damages.

The Morris court examined the award of $375,000 in post-trial motions filed by BNSF. The court recalled that Morris provided “fairly restrained” testimony about the mental and emotional consequences of his termination. Morris’s testimony did include references to the fact that he had to ask friends and family for financial help, his car was repossessed and that he was evicted from his home as a result of losing his job. The court reduced Morris’s award from $375,000 to $275,000 because “[a]lthough Morris described losing his home and his car, as well as the shock, anger, and confusion that attended his wrongful termination, there was no evidence at trial about ongoing psychological problems or associated physical symptoms.”

Both Sanchez and Morris reflect the risks of going into settlement or trial with the presumption that emotional distress damages of a “garden variety” may not be substantial. These cases show that when making or considering settlement demands in Title VII cases, emotional distress cannot be overlooked.   Even without professional help, a plaintiff whose life has been upended through the loss of a job can receive six-figure damages solely for emotional loss, in addition to any lost wages, punitive damages, and attorney’s fees.


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