Despite a massive award from the jury, it looks like the Millennium Broadway Hotel in Times Square will only be paying a relative pittance, reports the Courthouse News Service.
Freddrick MacMillan was a long-tenured employee, working as an engineer for the hotel for more than 20 years. His time there was far from pleasant. He described the experience as "horrible" at trial. While working there, his co-workers had allegedly hurled racial epithets at him. He did the right thing and reported it to his bosses.
Then, one day in 2009, his supervisor showed up with new "souvenirs for his staff." They were voodoo dolls, adorned with black faces and pink lips. One of them was attached to MacMillan's other supervisor's bulletin board by a string in a manner representative of a noose.
MacMillan asked his supervisors if the dolls had anything to do with him. His supervisor denied the connection and referred to them as souvenirs. MacMillan filed suit later that year.
Does that sound excessive to you? It did to the judge. According to Judge Paul Gardephe, MacMillan's emotional distress was of the "garden variety;"
There is no evidence that MacMillan ever sought medical or psychological treatment, that he missed work, that he had any difficulty sleeping, that he lost his appetite, or that his alleged emotional distress had any physical manifestation or disrupted other aspects of his daily life. He remained at work throughout the period of alleged discriminatory acts.
It often becomes difficult to recover for emotional distress in a personal injury lawsuit. Because of the vague nature of "emotional distress" and the fact that every person suffers it differently, it is very difficult to prove, absent testimony from a psychiatrist.
The problem is compounded by the prevalence of the claim. Nearly every employment and personal injury lawsuit, has "emotional distress" tacked on at the end.
Slipped and fell? Ummm, my client had trouble sleeping and had nightmares for months. He also lost his appetite.
Denied a promotion because of your gender? My client missed work, had an upset stomach, and also lost sleep.
It's a claim that is easy to abuse, and as a result, it's a claim that is difficult to win. In almost all emotional distress claims, it's imperative to show some physical symptom of the stress before getting a recovery, though there are a few exceptions.
The judge didn't feel that Freddrick MacMillan met the threshold for emotional distress, and gave him a choice between $130,000 in damages, or a new trial. The parties are now working on a settlement.
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