United States of America v. City of New York

Filing 974

MEMORANDUM AND ORDER: It is ORDERED that black victims of the City's discriminatory entry-level firefighter exams will be entitled to compensatory damages for noneconomic harm only if they can establish on an individualized basis one or more sp ecific forms of compensatory damages that have been previously recognized in the common law of tort. The noneconomic benefits of the job of New York City firefighter---on which the court held a bench trial in August 2011--are not relevant to the comp ensatory damages owed to claimants, and so the Special Masters shall not award damages based on a valuation of the differences between those benefits and claimants' actual life experiences. Claimants may attempt to obtain damages for emotional d istress, loss of enjoyment of life, inconvenience, and lost future earning capacity, in accordance with the definitions and case law discussed in this Memorandum and Order. They may also seek damages for forms of noneconomic harm that the court has n ot addressed, but may be awarded such damages only if an award would be consistent with the principles discussed above. The City's request that the court revisit its certification of the non-hire victim and delayed-hire victim subclasses is DENIED. So Ordered by Judge Nicholas G. Garaufis on 9/18/2012. (Lee, Tiffeny)

FILED
us

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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IN CLERK'S OFFICE
DISTRICTCOURTE.D.NY

* SEP 1 8 2012 *
BROOKLYN OFFICE

UNITED STATES OF AMERICA,
Plaintiff,

MEMORANDUM & ORDER

-and-

07-CV-2067 (NGG) (RLM)

THE VULCAN SOCIETY, INC.,for itself and on
behalfofits members, JAMEL NICHOLSON, and
RUSEBELL WILSON, individually and on.behalf
of a subclass ofall other victims similarly situated
seeking classwide injunctive relief,
ROGER GREGG, MARCUS HAYWOOD, and
KEVIN WALKER, individually and on behalf of a
subclass of all other non-hire victims similarly
situated; and
CANDIDO NuNEZ and KEVIN SIMPKINS,
individually and on behalf of a subclass of all other
delayed-hire victims similarly situated,
Plaintiff-Intervenors,
-againstTHE CITY OF NEW YORK,
Defendant.

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NICHOLAS G. GARAUFIS, United States District Judge.
Today the court discusses how compensatory damages for noneconomic harm are to be
awarded to black victims of the City of New York's discriminatory entry-level firefighter exams.
Although the court held a bench trial in August 2011 to determine the noneconomic benefits of
the job of New York City firefighter, it now concludes that those benefits are not relevant to the
compensatory damages owed to claimants, and thus declines to make findings of fact based on
the bench trial. Instead, a claimant may be granted compensatory damages only if he or she
1

makes an entirely individualized showing of one or more of certain limited categories of
damages that have been recognized and defined in the common law of tort, which the court
describes below. The court also denies the City's request that it revisit its certification of the
non-hire victim and delayed-hire victim subclasses.

I.

BACKGROUND
The court assumes the reader's familiarity with the background of this case, and will

review only certain portions of the procedural history here.
On January 13,2010, this court held the City liable for engaging in a pattern or practice
of intentional discrimination against black applicants for the job of firefighter, in violation of
Title VII of the 1964 Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"); 42
U.S.C. § 1981; the Equal Protection Clause of the Fourteenth Amendment; New York Executive
Law § 296(1)(1) ("NYSHRL"); and New York City Administrative Code § 8-107(1)(a)
("NYCHRL"). (Disparate Treatment Liability Op. (Docket Entry # 385).) The parties then
entered into the remedial phase of this litigation.
The court had previously certified, for the liability phase only, a mandatory class of black
firefighter applicants who had allegedly been harmed by the City's hiring practices. (Docket
Entry # 281.) After the court held the City liable, Plaintiff-Intervenors sought certification of a
class of black victims for the purposes of awarding them compensatory damages for
noneconomic harm. (Docket Entry # 401.) They also filed a motion for summary judgment as
to the aggregate amount of those damages. (Docket Entry # 577.)
On June 6, 2011, the court certified a single subclass of black victims (the "noneconomic
loss subclass"), pursuant to Federal Rule of Civil Procedure 23(b)(3), with respect to two issues
common to their claims for compensatory damages for noneconomic harm. (See First Remedial

2

Cert. Order (Docket Entry # 640) at 33.) The court noted that it would address in a separate
opinion Plaintiff-Intervenors' motion for summary judgment, and that, to the extent that there
were any disputed genuine issues of material fact regarding compensatory damages, the court
would hold a bench trial on those issues in August 2011. (ld. at 31 n.16, 48.)
Soon after that decision, the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131
S. Ct. 2541 (2011). On July 8, 2011, the court issued an opinion addressing the effect of
Wal-Mart on its class certification decision. (Second Remedial Cert. Order (Docket Entry
# 665).) Although the court denied the City'S motion to decertify the liability-phase class, it

granted the City'S motion to decertify the noneconomic loss subclass in light ofWal-Mart. (ld.
at 19,21,58.) The court found that "the fact and extent of claimants' noneconomic losses,"
unlike the calculation of backpay, were "not susceptible to classwide proof' (id. at 34); rather,
these issues required individualized assessments of "how significant the intangible benefits of the
job [of firefighter] were to [a] particular claimant," and "whether the claimant obtained other
intangible benefits from interim employment that tend [ed] to diminish the magnitude of the
intangible benefits lost because of discrimination" (id. at 26, 28). As a consequence of this
finding, the court denied Plaintiff-Intervenors' motion for summary judgment as to the aggregate
amount of classwide compensatory damages. (ld. at 35.) However, the court certified two
subclasses of non-hire victims and delayed-hire victims as to certain common remedial phase
issues under Rule 23(b)(3). (ld. at 58.) It found that a number of remedial issues could be
resolved on a classwide basis, including aggregate backpay, retroactive seniority, priority hiring
relief, and, with respect to compensatory damages for noneconomic losses, the characteristics of
a New York City firefighter's job that may have resulted in intangible benefits to particular
claimants. (ld. at 43-44.) The court concluded that these common questions predominated over

3

individualized questions, and that a class action was superior to other methods for fairly and
efficiently adjudicating Plaintiff-Intervenors' claims. (ld. at 42-51.) The court further noted
that, "[a]fter class proceedings resolve[d] common questions of fact relating to the characteristics
of a firefighter's job, the individual claims process would be concerned primarily with
establishing those facts unique to each individual claimant's claims for loss of enjoyment of
life." (ld. at 46.)
In August 2011, the court held a bench trial to determine the noneconomic benefits ofthe
job of New York City firefighter. On June 29, 2012, the parties submitted Proposed Findings of
Fact and Conclusions of Law ("FOF") based on the bench trial regarding the compensatory
damages owed to claimants for their noneconomic harm. (City FOF (Docket Entry # 910); Int.
FOF (Docket Entry # 911).) Plaintiff-Intervenors asserted that the noneconomic benefits of the
job of firefighter include: (1) flexibility and control over work schedules, which permit
firefighters significant time for other activities like spending time with their families, holding
second jobs, and pursuing further education (Int. FOF ~~ 2-12); (2) economic security (id.
~~

13-22); (3) respect from the community and a sense of pride (id.

~~

23-27); (4) pleasure in the

job itself and a sense of fulfillment in overcoming challenges to help others (id.
(5) valued camaraderie in the firehouse community (id.
(id.

~~

~~

~~

28-31);

32-34); and (6) overall job satisfaction

46-48). Plaintiff-Intervenors requested that the court direct the Special Masters assigned

to hold hearings for individual claimants to compare the particular attributes of the firefighter job
with the positive and negative aspects of the positions held by particular claimants to determine
the value of the qualitative differences (if any) between the actual life experiences of victims and
the benefits they would have obtained from the firefighter position. (ld. at 17.) The City'S FOF
discussed, among other things, the risks, unpredictability, and emotional toll inherent in the

4

firefighter job (City FOF ~~ 15-79), and argued that claimants are not entitled to compensatory
damages unless they can "establish that one or more of their senses were impaired or that they
c[ould] no longer engage in particular activities as a result of' the City's discrimination (id.
~ 85), or "that the lost opportunity to become a NYC firefighter caused emotional distress for

[them] personally" (id.

~

86).

On July 25, 2012, the court issued an Order stating that the parties' FOF "d[id] not
sufficiently address whether the court has the authority under federal and New York law to
award the forms of compensatory damages discussed by Plaintiff-Intervenors," and directed the
parties to submit supplemental briefing on these issues. (Supp. Briefing Order (Docket Entry
# 932) at 1-2.) Plaintiff-Intervenors submitted their supplemental brief on August 8, 2012,
arguing that claimants are entitled to "plenary" compensatory damages "for any and all proven
adverse consequence of racial discrimination." (lnt. Supp. Mem. (Docket Entry # 938) at 2-3.)
The City filed a response on August 22, 2012, arguing that Plaintiff-Intervenors should be
entitled to seek only damages for loss of enjoyment life and for pain and suffering, and that these
categories of damages are strictly circumscribed. (See City SUpp. Mem. (Docket Entry # 954) at
1, 13.) The City further argued that the court should revisit its Rule 23(b)(3) certification of the
non-hire and delayed-hire subclasses "in light ofPlai'ntiff-Intervenors' current effort to recover
plenary compensatory damages." (ld. at 12.)

II.

COMPENSATORY DAMAGES FOR NONECONOMIC HARM
Plaintiff-Intervenors argue that they are entitled to the full range of compensatory

damages they seek under three provisions federal law-Title VII, 42 V.S.c. § 1981, and 42
V.S.C. § 1983-and two provisions of state law-the NYSHRL and the NYCHRL. (lnt. Supp.
Mem. at 1.) The court does not agree with Plaintiff-Intervenors that these provisions authorize

5

damages for any conceivable noneconomic harm that might be considered appropriate to make
the victims of the City's discrimination whole. Instead, for the reasons that follow, federal and
New York law permit the court to award damages only in specific categories that have been
recognized and defined in the common law of tort, such as emotional distress, loss of enjoyment
of life, inconvenience, and lost future earning capacity; the noneconomic benefits of the job of
firefighter are not relevant to those categories. I
The court will begin by discussing generally the kinds of damages authorized by the
federal (Part II.A) and state (Part II.B) statutes at issue. The court will then discuss more
specifically how claimants may attempt to establish the forms of damages authorized by the
federal and state statutes (Part II.C).

A.

Federal Law
1.

Title VII

Before 1991, "a plaintiff seeking a monetary award for disparate treatment ... under
Title VII could recover only back pay and front pay," not compensatory damages. Robinson v.
Metro-North Commuter R.R. Co., 267 F.3d 147, 157 (2d Cir. 2001), overruled in part on other
grounds by Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011). The Civil Rights Act of 1991 (the
"1991 Act") amended Title VII to authorize "compensatory and punitive damages in disparate
treatment disputes." Id. at 158; see also Williams v. Pharmacia Opthalmics, Inc., 926 F. Supp.
791, 794 (N.D. Ind. 1996) ("Williams I") ("The availability of compensatory damages apart from

Plaintiff-Intervenors argue that, "[b]ecause claimants have not yet had the opportunity to proffer evidence
of the variety of noneconomic harms they may have suffered, it is premature to place any limitations on the types of
harms they may assert." (lnt. Supp. Mem. at 18-19.) The court disagrees. Although "the variety of noneconomic
harms [claimants] may have suffered" is an evidentiary question, whether those harms are properly compensable is a
question oflaw. The court may not be able to anticipate every single kind of harm that victims will claim to have
suffered, but it sees no problem with setting the legal contours of the kinds of harms that are compensable. To the
contrary, it would be inefficient and unnecessarily costly to the City to permit claimants to proffer evidence of
noneconomic harms that are not legally compensable.

6

back and front pay demonstrates Congressional recognition that discriminatory employment
practices inflict injuries beyond mere loss of a paycheck or reduction in wages and benefits, and
Congressional intent that victims of employment discrimination should be compensated for those
non-pecuniary injuries. ").
Specifically, the 1991 Act provides that Title VII plaintiffs who have been subjected to
"unlawful intentional discrimination ... may recover compensatory and punitive damages as
allowed in subsection (b) of this section," so long as they "cannot recover under section 1981."
42 U.S.c. § 1981a(a)(1). Subsection (b) then provides that "[t]he sum of the amount of
compensatory damages awarded under this section for future pecuniary losses, emotional pain.

suffering. inconvenience. mental anguish. loss a/enjoyment a/life. and other nonpecuniary
losses, and the amount of punitive damages awarded under this section, shall not exceed for each
complaining party" certain specified amounts that depend on the size of the employer. 42 U.S.C.
§ 1981 a(b )(3 ) (emphasis added).
As the court has repeatedly emphasized in this litigation, "the purpose of Title VII is to
make persons whole for injuries suffered on account of unlawful employment discrimination,"
and to place such persons, "as near as may be, in the situation [they] would have occupied if the
wrong had not been committed." Albermarle Paper Co. v. Moody, 422 U.S. 405, 417-19 (1975).
But where (as here) Congress sees fit to enumerate a specific list of terms in a statute, a court
must attempt to give meaningful effect to those terms. See

Wein~erger

v. Hynson, Westcott

& Dunning, Inc., 412 U.S. 609, 633 (1973) ("[A]II parts ofa statute, if at all possible, are to be

given effect. "). It is therefore unsurprising that the Second Circuit has held that Title VII
plaintiffs "who seek compensatory damages in addition to individualized equitable relief must [ ]
prove that the discrimination caused them 'emotional pain, suffering, inconvenience, mental

7

anguish, loss of enjoyment of life, [or] other nonpecuniary losses." Robinson, 267 F.3d at 160
(emphasis added) (quoting 42 U.S.C. § 1981a(b)(3)). In other words, a grant of compensatory
damages under § 1981 a must be tailored to the terms listed in the statute.
The specific terms listed in § 1981 a related to nonpecuniary losses--emotional pain,
suffering, inconvenience, mental anguish, and loss of enjoyment of life-are each associated
with categories of damages that have been recognized and defined in the common law of tort.
See, e.g., Miller v. Love's Travel Stops & Country Stores, Inc., No. 06-CV-1008 (D), 2008 WL
2025065, at * 1 (W.D. Okla. May 6, 2008) ("Oklahoma law permits the recovery in tort of
damages for mental anguish and emotional distress ...."); Hare v. H & R Indus., Inc., No.
OO-CV -4533, 2002 WL 777956, at * 1 (E.D. Pa. Apr. 29, 2002) (both tort law and Title VII
entitle plaintiff to "compensatory damages for pain and suffering"); Mayer v. Belton Corp., No.
86-CV-5871, 1989 WL 98003, at *3 (E.D. Pa. Aug. 17, 1989) ("Under Section 929 of the
Restatement of Torts (Second), plaintiffs are entitled to recover damages for the inconvenience
and discomfort caused by their inability to live in their home for approximately four and one-half
months."); McDougald v. Garber, 73 N.Y.2d 246, 254 (1989) (damages for loss of enjoyment of
life recoverable in personal injury action).
These specific terms should be interpreted in accordance with their common law
definitions for several reasons. First, it is a "settled principle of statutory construction that,
absent contrary indications, Congress intends to adopt the common law definitions of statutory
terms." Whitfield v. United States, 543 U.S. 209, 213 (2005); see also In re Halpin, 566 F.3d
286,292 (2d Cir. 2009) ("[A]s a general rule, undefined statutory terms should be construed in
accordance with their common-law meaning."). Moreover, Title VII's legislative history
suggests that the statute was intended to provide "tort-like damages." 137 Congo Rec. S15,348,

8

S15,383 (Oct. 29, 1991) (statement of Sen. Jeffords); see also 137 Congo Rec. H1666 (Mar. 12,
1991) (statement of Rep. Michel) (characterizing the new provision for compensatory damages
as a "tort-style approach" to employment law). Courts have also noted that "compensatory
damages [under § 1981a] are limited by 'tort-like principles.'" Pappas V. Watson Wyatt & Co.,
No. 04-CV-304 (EBB), 2007 WL 4178507, at *4 (D. Conn. Nov. 20, 2007) (collecting cases); cf.
Staub V. Proctor Hosp., 131 S. Ct. 1186, 1191 (2011) ("[W]hen Congress creates a federal tort it
adopts the background of general tort law. ").
Recognition that § 1981 a's specific terms should be given their common law meanings
assists the court in interpreting § 1981a's catchall term "other nonpecuniary losses." 42 U.S.C.

§ 1981a(b)(3). Under the well-known canon of construction of "ejusdem generis," when.
Congress lists specific terms followed by a general term, a court interprets the general term "to
embrace only objects of the same kind or class as the specific ones." United States V. Amato,
540 F.3d 153, 161 (2d Cir. 2008). As Plaintiff-Intervenors point out (see Int. Supp. Mem. at 18),
this principle must not be applied "woodenly." Ali

V.

Fed. Bureau of Prisons, 552 U.S. 214,227

(2008). For example, it does not apply where there is no ambiguity as to the expansive (or
unlimited) nature of the general phrase, such as when the term "any" precedes the general
phrase. See, e.g., id. at 218-19 (refusing to apply the rule of ejusdem generis to the term "any
other law enforcement officer" in part because "Congress' use of 'any' to modify 'other law
enforcement officer' [wa]s most naturally read to mean law enforcement officers of whatever
kind"); Harrison V. PPG Indus., Inc., 446 U.S. 578, 588-89 (1980) (refusing to apply the canon to
limit the phrase "any other final action" because there was "no uncertainty in the meaning of the
phrase"). Nor does the doctrine apply "when the specific terms preceding the general one do not

9

themselves have a common attribute from which a 'kind or class' may be defined." Amato, 540
F.3dat 160.
Here, however, the ejusdem generis canon is fully applicable. The court does not find a
total lack of uncertainty in the meaning of "other nonpecuniary losses" because the term contains
no particular indicia of expansiveness, such as the addition of the word "any" in the statutes in
Ali and Harrison. And the specific terms listed in § 1981 a do indeed "have a common attribute
from which a 'kind or class' may be defined." Id. As discussed above, these categories are
associated with previously recognized common law tort damages. Section 1981 a's catchall
category should thus be interpreted along those lines as well. See Amato, 540 F.3d at 161.
Certain non-enumerated forms of damages authorized by § 1981a's catchall category
have already been identified by federal courts and by the Equal Employment Opportunity
Commission ("EEOC"), such as injury to professional standing, injury to character and
reputation, lost future earning capacity, and injury to credit standing. See, e.g., Migis v. Pearle
Vision, Inc., 135 F.3d 1041, 1053 (citing EEOC, Compensatory and Punitive Damages Available
Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 § II(A)(2) (July
14,1992) ("EEOC Guidance")); Williams v. Pharmacia, Inc., 137 F.3d 944, 952 (7th Cir. 1998)
("Williams II"). These kinds of damages are properly swept within § 1981 a's catchall category
because, like the enumerated categories, they are associated with recognized forms of common
law tort damages. See, e.g., Williams II, 137 F.3d at 952 ("An award oflost future earnings is a
common-law tort remedy."); Robinson v. C.I.R., 70 F.3d 34,36 (5th Cir. 1995) (damages for
"injury to credit reputation" were "damages for tort-like personal injuries"); Varela v. Another
Way, No. 06-CV-796 (PCT) (SMM), 2006 WL 2091711, at *2 (D. Ariz. July 21, 2006) ("An
action for damages to reputation 'lies ... in the tort of defamation. '" (quoting Fleming v. Dep't

10

of Pub. Safety, 837 F.2d 401, 409 (9th Cir. 1988))); Wagnerv. U.S. Dep't of Housing and Urban
Dev., 835 F. Supp. 953, 958 (E.D. Ky. 1993) (noting that "alleged damages for injury to
professional reputation ... sound[ed] in tort"). As will be discussed in Part II.C, however, the
same cannot be said of most of the forms of damages that Plaintiff-Intervenors seek in their
FOF?
2.

Sections 1983 and 1981

As discussed above, the court has held the City liable under §§ 1983 and 1981 as well as
Title VII.3 (See Disparate Treatment Liability Op. at 40-61.) Although the texts of these statutes
do not address damages specifically, the Supreme Court has held that both permit compensatory
damages for noneconomic harm. See Carey v. Piphus, 435 U.S. 247, 255-56 (1978) (§ 1983);
Johnson v. Ry. Express Agency, 421 U.S. 454, 459-60 (1975) (§ 1981). Thus, the question is
whether those provisions permit the same, broader, or more limited damages than § 1981 a. The
court concludes that these statutes authorize the same basic forms of damages as § 1981a,
namely those that have been previously recognized and awarded in the common law of tort.

Plaintiff-Intervenors quote the EEOC Guidance for the proposition that "'[o]ther nonpecuniary losses could
include injury to professional standing, injury to character and reputation, injury to credit standing, loss of health,
and any other nonpecuniary losses that are incurred as a result of the discriminatory conduct.'" (Int. SUpp. Mem. at
17 (emphasis added by Plaintiff-Intervenors) (quoting EEOC Guidance § I1(A)(2».) Plaintiff-Intervenors appear to
be suggesting that the EEOC's use of the word "any" implies that it interprets § 1981a to authorize any conceivable
compensatory damages that can be determined to result from discriminatory conduct. And indeed, if § 1981 a itself
had used the word "any," the court might agree. Cf. Ali, 552 U.S. at 218-19; Harrison, 446 U.S. at 588-89. But the
Supreme Court has held that the EEOC's interpretive guidelines do not receive deference pursuant to Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Nat'l R.R. Passenger Corp. v.
Morgan,536 U.S. 101, III n.6 (2002). The EEOC's "interpretations are 'entitled to respect,' ... but only to the
extent that those interpretations have the 'power to persuade.'" Christensen v. Harris Ctv., 529 U.S. 576, 587 (2000)
(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944». The same is true of the EEOC's adjudicatory
positions. See Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618,643 n.11 (2007), superseded by statute on
other grounds as as recognized in Vuong v. N.Y. Life Ins. Co., No. 03-CV-I075 (TPG), 2009 WL 306391, at *8
(S.D.N.Y. Feb. 6, 2009). To the extent that the EEOC interprets Title VII to authorize compensatory damages for
all conceivable noneconomic harm, the court finds this interpretation unpersuasive for the reasons discussed above,
particularly because the EEOC provided no analysis in support of any such interpretation.
Section 1983 permits victims of discrimination to recover for violations of the United States Constitution,
and § 1981 permits victims to recover for violations of the right "to make and enforce contracts" equally.

11

The Supreme Court has "repeatedly noted that 42 U.S.C § 1983 creates a species oftort
liabilitt and has held that, "when § 1983 plaintiffs seek damages for violations of constitutional
rights, the level of damages is ordinarily determined according to principles derived from the
common law of torts." Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305 (1986). The
Court has further noted that "compensatory damages may include not only out-of-pocket loss
and other monetary harms, but also injuries such as 'impairment of reputation, personal
humiliation, and mental anguish and suffering. '" Id. at 307 (alteration omitted) (quoting Gertz v.
Robert Welch, Inc., 418 U.S. 323, 350 (1974». These are the same kinds of well-known tort
damages that are authorized by § 1981a, as discussed above. 4
The Supreme Court has similarly suggested that antidiscrimination statutes like § 1981
"sound[] basically in tort." United States v. Burke, 504 U.S. 229,240 (1992); see also Tillman v.
Wheaten-Haven Recreation Ass'n, Inc., 517 F.2d 1141, 1143 (4th Cir. 1975) ("An action
brought under [§ 1981] is fundamentally for the redress of a tort."); Pappas, 2007 WL 41785007,
at *3 ("The effect of the [1991 Act] was to bring Title VII into line with other 'tort-like' civil
rights legislation [including § 1981]."). And consistent with this principle, lower courts in
§ 1981 cases (including cases cited by Plaintiff-Intervenors (see Int. Supp. Mem. at 4-5» have
awarded damages corresponding to recognized common law categories of the kind enumerated
in § 1981a. See, e.g., Cowan v. Prudential Ins. Co. of Am., 852 F.2d 688, 690 (2d Cir. 1988)
(awarding damages for "severe emotional distress, humiliation, and loss of self-esteem");
As the Second Circuit has noted, "'the common law is not an infallible guide for the development § 1983. '"
Townes v. City of N.Y., 176 F.3d 138, 148 (2d Cir. 1999) (quoting Akickes v. S.H. Kress & Co., 398 U.S. 144,232
(1970) (Brennan, 1., concurring in part and dissenting in part». "In cases where common law and § 1983 principles
conflict, 'the task will be the more difficult one of adapting common-law rules of damages to provide fair
compensation for injuries caused by the deprivation ofa constitutional right." Id. (quoting Carey, 435 U.S. at 258).
Here, however, the court finds no conflict between common law and § 1983 principles that would justify a departure
from the ordinary rule that § 1983 damages are determined according to tort principles. After all, the § 1981 a
addition to Title VII-the statute specifically designed to provide relief for victims of employment discriminationcontemplates the same kinds of common law damages held to be compensable in Stachura and its predecessors.
(See Part II.A, supra.)
4

12

Muldrew v. Anheuser-Busch,

Inc~,

728 F.2d 989, 992 (8th Cir. 1984) (award for "mental anguish

and emotional distress" stemming from loss of a job); Tucker v. Red Apple Supermarkets, Inc.,
No. 88-CV-5592 (LBS), 1989 WL 34056, at *2 (S.D.N.Y. Mar. 31, 1989) ("Damages [under

§ 1981] may include recovery for emotional harm, degradation and humiliation." ).
Plaintiff-Intervenors agree that, "[i]n adopting the Civil Rights Act of 1991, ... one of
Congress's purposes was to ensure that the same range of compensatory damages available to
victims of race discrimination under § 1981 was also available to victims of discrimination under
Title VII." (Int. Supp. Mem. at 5.) Of course, Plaintiff-Intervenors believe that both Title VII
and § 1981 permit them to obtain compensatory damages for all conceivable noneconomic
harms. (See id. at 4-6.) They point to no case, however, in which a court awarded Title VII,
§ 1981, or tort damages for harms other than those falling within the recognized categories
discussed above, nor is the court aware of any. Instead, their argument appears to be based
entirely on a single word of dicta in a Supreme Court opinion discussing § 1981.
In Patterson v. McLean Credit Union, 491 U.S. 164 (1989), a case that preceded the 1991
Act, the Supreme Court held that a claim for racial harassment-in contrast to racial
discrimination in the course of making or enforcing a contract-was not actionable under
§ 1981. Id. at 189; cf. 42 U.S.C. § 1981(a) ("All persons within the jurisdiction of the United
States shall have the same right in every State and Territory to make and enforce contracts ... as
is enjoyed by white citizens .... "). The Court reasoned that its holding was necessary to
"preserve the integrity of Title VII's procedures without sacrificing any significant coverage of
the civil rights laws." Id. at 182. The Court then added in a footnote:
Unnecessary overlap between Title VII and § 1981 would also serve to upset the
delicate balance between employee and employer struck by Title VII in other
respects. For example, a plaintiff in a Title VII action is limited to a recovery of
backpay, whereas under § 1981 a plaintiff may be entitled to plenary
13

compensatory damages, as well as punitive damages in an appropriate case. Both
the employee and the employer will be unlikely to agree to a conciliatory
resolution of the dispute under Title VII if the employer can be found liable for
much greater amounts under § 1981.
Id. at 182 n.4 (emphasis added). The Court's decision in Patterson has since been superseded by
the 1991 Act, which amended the definition of "make and enforce contracts" in § 1981 to
include "the enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship." 42 U.S.C. § 1981(b).
Plaintiff-Intervenors latch onto Patterson to argue that, "[e]ven before the passage of the
Civil Rights Act of 1991, ... it was well established that prevailing parties under 42 U.S.C.
§ 1981 were entitled to 'plenary compensatory damages. '" (Int. Supp. Mem. at 4 (quoting
Patterson, 491 U.S. at 182 n.4).) Then, after arguing that the 1991 Act was intended to ensure
that Title VII victims could obtain the same range of compensatory damages as § 1981 victims,
Plaintiff-Intervenors conclude that the 1991 Act's compensatory damages provision "should be
read as incorporating the full range of 'plenary' compensatory damages available under § 1981,"
i.e., "damages for the broadest range of harms that an employee or applicant subject to
discrimination might experience." (ld. at 5-6.)
Once again, the court agrees with Plaintiff-Intervenors' premise that § 1981 and Title VII
plaintiffs may obtain similar forms of compensatory damages, but disagrees with their view of
the effect of Patterson. Patterson provided no explanation or even an indication of what it meant
by "plenary compensatory damages"-it may have meant simply that a § 1981 plaintiff could
recover the full range of tort-like damages (in contrast to backpay), or that a plaintiff could
recover compensatory damages in an unlimited amount. And· it is unsurprising that the Court did
not explain what it meant by "plenary compensatory damages" because it had no reason to
address the kinds of damages authorized by § 1981, let alone by § 1981 a (which had not yet been
14

enacted). Even if the Supreme Court meant "plenary" in the way that Plaintiff-Intervenors
believe it did (which is far from clear), the court declines to read a single word of dicta, without
analysis, in a footnote of an opinion, which is no longer good law, as establishing the principle
that both § 198 I and § 198 I a now authorize all conceivable forms of compensatory damages,
including forms unheard of in the common law upon which the statutes were presumed to be
modeled. Cf. Heck v. Humphrey, 512 U.S. 477, 482 (1994) (dicta from previous opinion was
"an unreliable, if not unintelligible, guide" because that opinion "had no cause to address, and
did not carefully consider, the damages question before [the Supreme Court] today"); Jimenez v.
Walker, 458 F.3d 130, 143 (2d Cir. 2006) ("Dicta [is] not and cannot be binding." (internal
quotation marks omitted)).
In sum, the court concludes that §§ 198 I and 1983 authorize similar forms of damages to
Title VII under § 198 I a, namely forms that have been previously recognized and awarded in the
common law of tort. These categories are discussed in more detail in Part II.C.
B.

New York State and City Law

Both the NYSHRL and the NYCHRL permit awards of compensatory damages to
victims of discrimination. See N. Y. Exec. Law § 297(4)(c) (providing for compensatory
damages in the administrative process); id. § 297(9) (providing for damages in a judicial
proceeding); N.Y. City Admin. Code § 8-120(8) (providing for compensatory damages in the
administrative process); N.Y. City Admin Code § 8-502(a) (authorizing damages in a civil
action). The New York Court of Appeals has

recogni~ed

that such damages are authorized by

New York law, and has noted that compensation under New York law, unlike under federal law,
does not depend on a showing ofintent to discriminate. See Cullen v. Nassau Cty. Civ. Servo
Comm'n, 53 N.Y.2d 492, 495-96 (1981); cf. Ocher V. Goldwater Memorial Hosp., 450 F. Supp.

15

2d 275, 283 (S.D.N.Y. 2006) (observing that federal discrimination law acts as a floor, not as a
ceiling, for New York law).
Although case law on the subject is sparse, the court concludes that the NYSHRL and the
NYCHRL authorize forms of well-recognized common law tort damages similar to the federal
statutes discussed above, such as humiliation and mental anguish, see, e.g., Consol. Edison Co.
v. N.Y. State Div. of Human Rights, 77 N.Y.2d 411, 421 (1991) (collecting cases); Cullen, 53
N.Y.2d at 496, inconvenience, see, e.g., Matter of Mukattash v. Human Rights Comm'n of
Westchester, 97 A.D.3d 584, 586 (N.Y. App. Div. 2d Dep't 2012), and loss of enjoyment oflife,
see, e.g., McDougald, 73 N.Y.2d at 254. The court is aware of no case in which a New York
court has awarded NYSHRL, NYCHRL, or tort compensatory damages for noneconomic harms
other than those falling within the recognized categories. Indeed, the New York Court of
Appeals has noted that "[d]amages for nonpecuniary losses ... stand[] on less certain ground
than does an award for pecuniary damages" because they are based on a "legal fiction" that such
losses can be compensated monetarily, McDougald, 73 N.Y.2d at 254, and has accordingly
strictly circumscribed its definitions of the forms of compensatory damages available to
plaintiffs, as discussed in the next section. The NYSHRL and NYCHRL will thus be interpreted
similarly to the federal statutes in terms of the kinds of compensatory damages that are available.

C.

How Claimants May Establish Compensatory Damages

With these concepts in mind, the court now discusses more specifically how victims may
attempt to establish the forms of compensatory damages authorized by federal and state law. 5
Plaintiff-Intervenors have proposed that claimants establish damages based on "a surveyor questionnaire
which seeks information about the characteristics of their interim employment (or unemployment) and the actual
noneconomic damages they assert," as opposed to taking the deposition of each eligible claimant. (lnt. Supp. Mem.
at 4 n.l; see also id. at 16 & n.7.) The City disagrees with this suggestion. (See City Supp. Mem. at 9.) The court
will not decide the issue at this time. The Special Masters and the parties shalI address this issue-in light of the
principles set forth in this Memorandum and Order-as part of the briefing scheduled in December 2012 on "Phase
IV" of the claims process. (See Order of Sept. 7,2012.)

16

As an important preliminary matter, the court disagrees with Plaintiff-Intervenors (see
Int. FOF at 17) that claimants may obtain damages based on a valuation of the differences
between the noneconomic benefits of the job of firefighter and the benefits of claimants' actual
life experiences. Indeed, the noneconomic benefits of the job of firefighter alleged in
Plaintiff-Intervenors' FOF-such as flexibility and control over work schedule, stability,
community respect, pride, job pleasure, and camaraderie-are not relevant to the compensatory
damages owed to claimants. The court is aware of no case in which a discrimination plaintiff
who was denied employment received damages based upon a valuation of the noneconomic
benefits of the position that he was denied, despite the fact that if such damages were available,
the court would expect such a valuation to occur in most failure-to-hire cases. Instead, the
damages that have been awarded in federal and state discrimination cases have been based on
entirely individualized showings of one or more of the previously recognized common law tort
categories, which bear little resemblance to Plaintiff-Intervenors' requested damages. In other
words, the court has found no federal or state discrimination case law calling into question the
conclusions the court drew in Parts II.A. and II.B: that the federal and state discrimination
statutes the City has violated only authorize compensatory damages associated with previously
recognized common law tort categories.
The court will discuss four main categories of compensatory damages that claimants may
attempt to seek: (1) emotional pain, suffering, and mental anguish; (2) loss of enjoyment of life;
(3) inconvenience; and (4) lost future earning capacity based on reputational harm. The court
does not foreclose the possibility that claimants may be able to establish damages for other forms
of noneconomic harm, but these four categories are currently the ones that have been briefed
(other than forms of damages that the court has already concluded are not compensable). To the

17

extent that a claimant seeks damages for other forms of noneconomic harm, the Special Master
assigned to adjudicate in the first instance the claimant's case must inquire into whether an
award of such damages would be consistent with the principles set forth in this opinion, i.e.,
whether the award would address a category of noneconomic harm that has been recognized as
compensable in the common law of tort.
I.

Emotional Pain, Suffering, and Mental Anguish

Plaintiff-Intervenors argue that they may obtain damages for "emotional pain, suffering
,and mental anguish as a result of the lost opportunity to obtain the firefighter job." (lnt. Supp.
Mem. at 12.) These noneconomic harms-which may broadly be termed "emotional distress"are clearly compensable in a Title VII suit, see 42 U.S.C. § I 981a(b)(3) ("emotional pain,
suffering, ... [and] mental anguish"), a § 1983 suit, see Stachura, 477 U.S. at 307 ("mental
anguish and suffering"), a § 1981 suit, see Cowan, 852 F.2d at 690 ("severe emotional distress"),
and a suit under New York law, see Cullen, 53 N.Y.2d at 496 ("mental anguish").
It is well-established, however, that a plaintiff attempting to establish emotional distress

damages under federal law must prove "actual injury," Patrolmen's Benevolent Ass'n of N.Y. v.
City of N.Y., 310 F.3d 43,55 (2d Cir. 2002) (emphasis added), based on "evidence of concrete
emotional problems," EEOC v. Yellow Freight Sys., Inc., No. 98-CV -2270 (THK), 2002 WL

31011859, at *34 (S.D.N.Y. Sept. 9,2002) (emphasis added); see also Dejesus v. Village of
Pelham Manor, 282 F. Supp. 2d 162, 178 (S.D.N.Y. 2003) (same). The Second Circuit has made
clear that federal law does not require a discrimination victim to show either (I) physical
manifestations of emotional distress or (2) that he or she sought medical treatment for the
emotional injury, see Patrolmen's, 310 F.3d at 55-56, but it has also stated:
A plaintiff's subjective testimony, standing alone, is generally insufficient to
sustain an award of emotional distress damages. Rather, the plaintiff's testimony
18

of emotional injury must be substantiated by other evidence that such an injury
occurred, such as the testimony of witnesses to the plaintiffs distress, or the
objective circumstances of the violation itself.
Id. at 55 (citations omitted); see also Reiter v. Metro. Transp. Auth. of N.Y., No. 01-CV-2762
(JGK), 2003 WL 22271223, at *7 (S.D.N.Y. Sept. 30,2002) (finding that the discussion in
Patrolmen's of the proof required to obtain emotional distress damages applies to both Title VII
and § 1983 cases); Dejesus, 282 F. Supp. 2d at 177 ("[E]motional distress damages can not be
established by mere subjective statements by the plaintiff, without corroboration, when the
plaintiff does not indicate any physical manifestations of her distress. ").
As with federal law, New York law requires a plaintiff to prove actual emotional injury
caused by the discrimination. See Cullen, 53 N.Y.2d at 497 ("The record must contain proof that
the complainant in fact suffered mental anguish or humiliation .... "). New York law, unlike
federal law, generally permits a plaintiff to establish emotional distress damages based on his or
her testimony alone. See id. ("[M]ental anguish or humiliation ... may be established through
the testimony of the complainant alone .... "); Iroquois Nursing Home, Inc. v. N.Y. State Div. of
Human Rights, 55 A.D.3d 1285, 1286 (N.Y. App. Div. 4th Dep't 2008) (citing Matter ofN.Y.
City Transit Auth. v. State Div. of Human Rights, 78 N.Y.2d 207,216 (1991)). But
"[ c]ompensatory damages for emotional distress may not be presumed simply because a plaintiff
suffered discrimination; rather, they must be proved." Yellow Freight, 2002 WL 31011859, at
*34 (plaintiff had not demonstrated "mental anguish or humiliation" under New York law
because of the "dearth of evidence regarding mental injury"); see also McIntosh v. Irving Trust
Co., 887 F. Supp. 662, 665 (S.D.N.Y. 1995) (noting that New York law has rejected a ''per se
rule that once a defendant is found liable ... the plaintiff is entitled to damages for mental
anguish"); Ware v. ASS Air Preheater, Inc., No. 91-CV-37 (S), 1995 WL 574464, at *7

19

(W.D.N.Y. Sept. 28,1995) (upholding jury's denial of emotional distress damages under New
York law where "the only evidence that plaintiff suffered compensable mental distress damages
was plaintiffs own testimony that he 'felt terrible' and 'lost the will to function in his normal
capacity"').
In sum, under both federal and New York law, claimants may not obtain compensatory
damages for emotional distress based merely on the fact that they were unable to obtain work in
their chosen occupation. Cf. Del Valle v. Nat'l Basketball Ass'n, 42 F. Supp. 2d 334, 341
(S.D.N.Y. 1999) (plaintiffs testimony that "her 'dreams and goals' were crushed" by being fired
was insufficient to warrant award of compensatory damages); Cullen, 53 N.Y.2d at 497
(rejecting the argument that plaintiffs "discrimination must have diminished her self-esteem and
with it her incentive for self-improvement" without tangible proof of mental anguish and
humiliation, and noting that "sensitivity or stoicism, as the case may be, is as variable and
individualistic in its existence and in its degree as are human beings"). Under New York law,
emotional distress may generally be established based on a claimant's own testimony alone, see
Cullen, 53 N.Y.2d at 497, but federal law generally requires corroborating evidence (which does
not have to be in the form of physical symptoms or the seeking of medical treatment), see
Patrolmen'S, 310 F.3d at 55-56. In either case, claimants must show that they have suffered
actual emotional injury based on proof of concrete emotional problems. See id. at 55; Yellow
Freight, 2002 WL 31011859, at *34; Cullen, 53 N.Y.2d at 497.
2.

Loss of Enjoyment of Life

Plaintiff-Intervenors argue next that claimants are entitled to recover damages for loss of
enjoyment of life. (lnt. Supp. Mem. at 7-10.) Such damages are authorized for Title VII

20

disparate treatment claims, see 42 U.S.C. § 1981a(a)(l), and New York law, see McDougald, 73
N.Y.2d at 254, but only in the limited circumstances discussed below.
The Second Circuit has described damages for loss of enjoyment of life, in a case brought
pursuant to the Federal Tort Claims Act, as follows:
The concept of loss of enjoyment of life provides compensation for the
deprivation or impairment of the senses or of one's ability to engage in those
activities and perform those functions which were part of the victim's life prior to
the injury. . .. Proof of loss of the normal pursuits and pleasures of life ... does
not depend on evidence of the injury or the accompanying physical sensations and
emotional response. Rather, a "before and after" method of proof is used which
requires evidence of (l) the nature and extent of plaintiffs lifestyle prior to being
injured, and (2) the limited lifestyle of the plaintiff afterwards.
Rufino v. United States, 829 F.2d 354, 359 n.8 (2d Cir. 1987) (emphases added) (internal
quotation marks omitted). In other words, damages for loss of enjoyment of life may be granted
only if a plaintiff shows impairment of his ability to engage in activities that he previously
enjoyed. So far as the court is aware, virtually every case that has discussed the concept of loss
of enjoyment of life has defined it similarly. See, e.g., Allen v. Wal-Mart Stores, Inc., 241 F.3d
1293,1297-98 (10th Cir. 2001) ("A plaintiff can support her claim for loss of enjoyment of life
damages by presenting evidence that she refrains from participating in activities she previously
enjoyed .... "); Furey v. United States, 458 F. Supp. 2d 48,56 (N.D.N.Y. 2006) ("[L]oss of
enjoyment of life [ ] compensates for the frustration and anguish caused by the inability to
participate in activities that once brought pleasure."); cf. Sedie v. United States, No.
08-CV-04417 (EDL), 2010 WL 1644252, at *24 (N.D. Cal. Apr. 21,2010) (awarding damages
for loss of enjoyment of life where plaintiff experienced "curtailment of strenuous exercise
which he previously enjoyed"); Schumacher v. Cooper, 850 F.Supp. 438, 453 (D.S.C. 1994)
(awarding damages for loss of enjoyment oflife where plaintiff "no longer engage[d] in the

21

recreational activities he enjoyed so much before, including playing with his two young
children"); but see Kurncz v. Honda North Am., Inc., 166 F.R.D. 386, 387 (W.D. Mich. 1996).6
The New York Court of Appeals has similarly described loss of enjoyment of life as "the
frustration and anguish caused by the inability to participate in activities that once brought
pleasure," and considers loss of enjoyment of life to be a subcategory of traditional pain and
suffering damages, which it describes as "the effect of [plaintiff s] injuries on the plaintiff's
capacity to lead a normal life." McDougald, 73 N.Y.2d at 257 (emphases added); see also id. at
258-59 (Titone, J., dissenting) (arguing that loss of enjoyment of life should be considered
separate from pain and suffering but describing it as loss of "[t]he capacity to enjoy life"
(emphasis added)). Thus, New York law is perhaps even clearer than federal law in its limitation
of damages for loss of enjoyment of life to plaintiffs who have been rendered severely impaired
in their ability (or entirely unable) to perform activities that they previously enjoyed.
Plaintiff-Intervenors contest this definition of loss of enjoyment of life in three ways.
First, they argue that cases like Rufino and McDougald are "inapposite" because they
were applying the definitions of loss of enjoyment of life in personal injury cases, and "it is
inappropriate to import limits upon recovery for loss of enjoyment of life from ... personal
injury law." (Int. Supp. Mem. at 7, 20.) But the court has already concluded that the forms of
compensatory damages available to victims of discrimination under federal and state lawincluding damages for loss of enjoyment of life-should be interpreted in accordance with their
In Kumc~ the court rejected the defendant's contention that "plaintiffs in Michigan can only recover for
the subsequent loss of activities they enjoyed before an injury," and found that the "law provides for the denial of
future enjoyment." 166 F.R.D. at 387 (second emphasis added). To the extent that Kurncz is contrary to the Second
Circuit's definition of loss of enjoyment of life, the court must follow the latter. But it may indeed be consistent; the
plaintiff in Kumcz sustained head injuries in a car accident that may have resulted in the "deprivation or impairment
of the senses," which the Second Circuit in Rufino described as an alternative manner--other than loss of the
"ability to engage in those activities and perform those functions which were part of the victim's life prior to the
injury"-in which a plaintiff may prove loss of enjoyment of life. 829 F.2d at 359 n.8. And in any event, Kumcz
described loss of enjoyment of life as "the denial of life's pleasures," 166 F.R.D. at 388, which strikes the court as
.very different from simply being denied ajob that the person would have found pleasurable.
6

22

common law tort definitions. (See Part II.A-B, supra.) Cf. Staub, 131 S. Ct. at 1191 ("[W]hen
Congress creates a federal tort it adopts the background of general tort law."). The definitions
courts have supplied in personal injury cases are therefore applicable.
Second, Plaintiff-Intervenors argue that "[c]ourts awarding damages in civil rights cases
have not imposed the same restrictions that are applied in the state-law personal injury context
and have not required physical injury, impairment of senses or loss of the ability to perform
functions previously performed, as was required by Rufino." (Int. Supp. Mem. at 7.) But the
cases Plaintiff-Intervenors cite for this proposition (see id. at 7-9) are either (1) fully consistent
with Rufino's principle, see, e.g., Hogan v. Bangor & Aroostook R.R. Co., 61 F.3d 1034, 1037
(l st Cir. 1995) (affirming award of damages for loss of enjoyment of life where plaintiff
"became depressed, withdrawn, and gave up his usual activities," and where "[h]is wife, who
had previously cared for their children, went to work in a shoe factory in order for the family to
have medical insurance" (emphases added»; Connolly v. Bidermann Indus., U.S.A., Inc., 56 F.
Supp. 2d 360, 362-363 (S.D.N. Y. 1999) (affirming award of damages for loss of enjoyment of
life to plaintiff who had lost her hearing); or (2) did not involve loss of enjoyment of life
damages at all, see, e.g., Banai v. Sec'y, U.S. Dep't of Housing & Urban Dev. ex reI. Times, 102
F.3d 1203, 1207-08 (lith Cir. 1997) (affirming award of damages for emotional distress in Fair
Housing Act ("FHA") case involving plaintiffs whose home had been devastated by a hurricane);
Sec'y, U.S. Dep't of Housing & Urban Dev. ex reI. Herron v. Blackwell, 908 F.2d 864,873
(11 th Cir. 1990) (upholding award for damages in FHA case for "embarrassment, humiliation,
and emotional distress"); Sec'y, U.S. Dep't of Housing & Urban Dev. ex. reI. Guard v. Ocean
Sands, Inc., H.U.D.A.LJ. 04-90-0231-1,1993 WL 343530, at *20 (Sept. 3, 1993) (awarding

23

damages for "embarrassment, humiliation, and emotional distress"). These cases are thus of no
help to Plaintiff-Intervenors.
Third, Plaintiff-Intervenors argue that "limiting recovery in the context of employment
opportunity laws to the losses of pleasures already enjoyed makes no sense" because

"opportunity is a forward, not backward, looking concept." (lnt. Supp. Mem. at 20-21.) This
point is misguided in several respects. For one thing, the Supreme Court has stated specifically
that, "[u]nlike certain other forms of relief, compensatory damages are quintessentially backward
looking." Landgrafv. USI Film Prods., 511 U.S. 244, 283 (1994) (emphasis added). Moreover,
the logic of Plaintiff-Intervenors' argument-that in order to make discrimination victims whole,
loss of enjoyment of life should encompass both pleasures that the victims have not yet
experienced and those they have previously enjoyed (see Int. Supp. Mem. at 21 }-would apply
equally to personal injury victims, who could also potentially be deprived of "opportunities" that
they have never experienced before; and yet the Second Circuit has made clear in the personal
injury context that loss of enjoyment of life involves "a 'before and after' method of proof ...
which requires evidence of[ ] the nature and extent of plaintiffs lifestyle prior to being injured."
Rufino, 829 F.2d at 359 n.8 (emphasis added). In other words, the court finds no compelling
reason to distinguish between the discrimination and personal injury contexts for the purposes of
defining loss of enjoyment of life. And even if it could find a good policy reason for doing so,
the court would reject such a distinction because, as discussed in Part II.A, the federal
discrimination statutes should be interpreted according to tort law principles.
The bottom line is that the court is not aware of any federal or state case in which a
discrimination victim was awarded damages for loss of enjoyment of life because of his inability
to enjoy the benefits of a job that he was denied and never had. Based on the case law and

24

principles discussed above, the court concludes that such damages are not available. To obtain
damages for loss of enjoyment of life, a claimant must establish that the City'S discriminatory
hiring practices impaired his ability to engage in particular activities that were part of the
claimant's life prior to the discrimination. 7 See Rufino, 829 F.2d at 359 n.8; McDougald, 73
N.Y.2d at 257.
3.

Inconvenience

Next, Plaintiff-Intervenors argue that "[s]ubclass members will likely [ ] assert damages
based upon inconvenience." (Int. Supp. Mem. at 10.) Such damages are explicitly authorized by
the 1991 Act, see 42 U.S.C. § 1981a(b)(3), and also may be available under New York law, see
Mukattash, 97 A.D.3d at 586 (upholding award of compensatory damages where plaintiffs
testified that defendant's "refusal to install an adequate ramp" caused them "inconvenience and
stress").
However, the court is aware of no authority suggesting that claimants may be able to
recover damages based on the positive conveniences of the job of firefighter, such as firefighters'
ability to take 22-23 free days per month (Int. FOF ~ 2), to take time off as they desire (id.
16), to care for their children themselves without arranging for others to do so (id.
concomitantly pursue other jobs or further schooling (id.

~~

~~

~~

3,

5-8), and to

10-11). (See also Int. Supp. Mem. at

12.) Rather, the dictionary definition of "inconvenience" that Plaintiff-Intervenors themselves
provide (see id. at 10-11) defines the term as something that is "unsuited or unadapted to
personal needs or comfort" or "something that gives trouble, embarrassment, or uneasiness," and
that "disturbs or impedes." Webster's Third New Int'l Dictionary Unabridged (1986). In other
For example, a claimant may not obtain damages for loss of enjoyment of life simply because he was
"denied the opportunity, available to FDNY firefighters, to spend significant time caring for [his] children or ailing
parents" (lnt. Supp. Mem. at 7 n.5), but he may recover if his failure to obtain a firefighter position made him
incapable of the degree of child-rearing of which he previously was capable-if, for example, his failure of the
entry-level firefighter exam made him depressed to the point that he could no longer properly care for his children.

25

words, claimants may establish damages only through an individualized showing of negative
inconveniences that they personally experienced as a result of discrimination-for example, if a
claimant was unemployed for some time or worked in a particularly inconvenient occupation as
interim employment.
This may seem at first to be a distinction without a difference, but this limited definition
is the only one that finds support in case law (as well as the dictionary), and thus the only one
that comports with the court's general conclusion that federal and state law authorize forms of
compensatory damages that have been previously recognized and awarded at common law. See,
~,

Tullis v. Townley Eng'g & Mfg. Co., 243 F.3d 1058, 1068-69 (7th Cir. 2001) (awarding

inconvenience damages where plaintiff "was without work for nine to ten months," which
disrupted his family life, forced him to borrow money from his family and friends, and resulted
in his lights and phone being shut off, and where his "new job [] was as a trucker, which
required him to be away from home"); Rubin v. Air China Ltd., No. 1O-CV-5510 (LHK), 2011
WL 2463271, at *4 (N.D. Cal. June 21, 2011) (finding that "the inconvenience of being trapped
for hours in an unfamiliar airport [wa]s a compensable element of damages for delay in air
travel" but noting that the plaintiff could recover damages only "if he c[ould] show that the
inconvenience he suffered ha[ d] an economic component ... independent of his other economic
damages claims"); Cozzo v. Parish of Tangipahoa, No. 98-CV-2728, 2000 WL 6280, at *8 (E.D.
La. Jan. 3, 2000) (inconvenience damages for plaintiff who was evicted from her home).
4.

Lost Future Earning Capacity Based on Reputational Harm

Finally, Plaintiff-Intervenors seek damages for "lost future earning capacity." (Int. Supp.
Mem. at 16-18.) According to Plaintiff-Intervenors, this nonpecuniary injury "is distinct from
the loss of income that would been earned from the job itself (which is remedied by an award of

26

back and front pay)," and "compensates victims for the intangible loss of experiences that would
have resulted in enhanced earning capacity, such as additional schooling, experience in a trade or
profession, or the building of a business." (Id. at 16.) They argue that because "FDNY
firefighters have significant opportunity to pursue education, e.g., studying to become nurses and
lawyers, and to work a second job or run a business, many subclass members may assert a claim
for lost future earning capacity." (Id. at 16-17 (internal quotation marks and citations omitted)
(citing Int. FOF ~~ 10-11).) The court agrees that damages for lost future earning capacity may
be granted in Title VII cases, but finds this category of damages to be more limited than
Plaintiff-Intervenors suggest.
Section 1981 a does not explicitly authorize damages for lost future earning capacity, but
this form of damages is properly swept within its catchall category of "other nonpecuniary
losses." 42 U.S.C. § 1981a(b)(3). As the Seventh Circuit has noted, "[a]n award oflost future
earnings is a common-law tort remedy" and is therefore an "appropriate" form of damages
"under Title VII." Williams II, 137 F.3d at 952. The court has further held that a plaintiff
seeking to recover for lost future earning capacity "must produce competent evidence suggesting
that his injuries have narrowed the range of economic opportunities available to him," i.e., "that
his injury has caused a diminution in his ability to earn a living." Id. (internal quotation marks
omitted).
Importantly, however, the case law makes clear that the "injury" resulting in a diminution
in the plaintiff's ability to earn a living cannot be simply a denial of employment; a plaintiff must
show that the discrimination he suffered caused a reputational harm-injury to his professional
standing, character, or reputation-which in tum resulted in a narrowing of economic
opportunities. See, e.g., id. at 953 ("The lost future earnings award ... compensates [plaintiff]

27

for a lifetime of diminished earnings resulting from the reputational harms she suffered as a
result of[defendant's] discrimination."); Sanders v. Madison Square Garden, L.P., No.
06-CV-589 (GEL), 2007 WL 2254698, at *13 (S.D.N.Y. Aug. 6,2007) ("[W]here an employee
can expect to encounter increased difficulty in finding comparable employment due to injury to
her professional standing caused by an employer's unlawful conduct, the employee may recover
for the added difficulty in the form of compensatory damages." (internal quotation marks and
alteration omitted)); Mahony v. KeySpan Corp., No. 04-CV-554 (SJ), 2007 WL 805813, at *7
(E.D.N.Y. Mar. 12,2007) ("When reputational injury caused by an employer's unlawful
discrimination diminishes a plaintiffs future earnings capacity, [she] cannot be made whole
without compensation for the future earnings she would have received absent the employer's
discrimination" (quoting Williams II, 137 F.3d at 953)); Hite v. Vermeer Mfg. Co., 361 F. Supp.
2d 935, 947 (S.D. Iowa 2005) (plaintiff could not obtain damages for lost future earnings
because she had "offered nothing to support her assertion that her unlawful discharge taint [ed]
her employment record"); Mattenson v. Baxter Healthcare Corp., No. 02-CV-3283, 2004 WL
2967428, at *4 (N.D. Ill. Nov. 30, 2004) ("[L]ost future earnings is a common-law tort remedy
available to plaintiffs in a Title VII case ... [that] compensates a plaintiff for a lifetime of
diminished earnings resulting from the reputational harms the plaintiff suffers as a result of the
employer's discrimination."); Williams I, 956 F. Supp. at 1466 ("'[L]ost earning capacity' [ ] is
closest to the notion of an injury to professional standing, and akin to injuries to reputation or
character."). In other words, damages for lost future earning capacity are akin to those available
in the common law tort of defamation. Cf. Valer~ 2006 WL 2091711, at *2 ("An action for
damages to reputation 'lies ... in the tort of defamation.'" (quoting Fleming, 837 F.2d at 409)).

28

The court is aware of no case awarding damages for lost future earning capacity based on
an injury other than reputational hann. Plaintiff-Intervenors have provided no authority for an
award of damages based merely on the fact that the position they were denied would have
permitted them significant free time to pursue other employment or educational opportunities,
and the court concludes that claimants' inability to pursue further work or education would not
cause them the kind of "reputational injury" recognized at common law. Plaintiff-Intervenors
have also failed to provide support in the common law for their theory that the denial of the
reputational benefits of a position-such as the "[l]oss ofthe[] extraordinary prestige of being a
firefighter" (lnt. Supp. Mem. at 18}--can entitle them to damages for lost future earning
capacity. The case law permits damages only if the discrimination tainted the existing reputation
of the victim and if this reputational harm resulted in diminished employment opportunities.
In sum, in order to obtain damages for lost future earnings, claimants must produce
"competent evidence" that the City's discriminatory practices caused damage to their
professional standing, character, and reputation-beyond simply the denial of the prestige
benefits of the firefighter position-and that this injury "caused a diminution in [their] ability to
earn a living." Williams II, 137 F.3d at 952.

III.

THE NON-HIRE VICTIM AND DELAYED-HIRE VICTIM SUBCLASSES
As noted above, the court's July 8, 2011, Memorandum and Order certified subclasses of

non-hire victims and delayed-hire victims as to common remedial phase issues under Rule
23(b)(3), concluding that a number of common questions predominated over individualized
questions and that a class action was superior to other methods for fairly and efficiently
adjudicating Plaintiff-Intervenors' claims. (Second Remedial Cert. Order at 42-51.) The City
now asks the court to "revisit the issue of predominance in light of Plaintiff-Intervenors' current

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effort to recover plenary compensatory damages." (City SUpp. Mem. at 12.) It argues that "the
resolution of individual claimants' compensatory damages claims will prove to be
time-consuming, burdensome, and costly," and cites as an example Plaintiff-Intervenors' request
for emotional distress damages, which "will entail the discovery of medical records and
testimony from witnesses that will complicate the discovery process." (Id.)
The court has, however, rejected Plaintiff-Intervenors' argument that they are entitled to
plenary compensatory damages. (See Part II, supra.) In any event, even assuming that the
court's decision today will introduce more burdens into the compensatory damages inquiry than
it eliminates-for example, by necessitating discovery of the claimants' emotional state-this
does not significantly change the reasoning of the court's July 8, 2011 Memorandum and Order.
It is still true that the members ofthe non-hire victim and delayed-hire victim subclasses share

numerous questions of fact and law, including the major liability questions, the process for
determining which claimants have been victims of discrimination, aggregate backpay, retroactive
seniority, and priority hiring relief (see Second Remedial Cert. Order at 37, 42-45); that "[e ]ven
if the court were to decide against certifying the two subclasses under Rule 23(b)(3), the City
will still have to litigate individual issues-such as mitigation--on an individual basis" (id. at
46); and that "the marginal burden of litigating individual compensatory damages questions in
the individual claims process is slight" (id. at 46).
The City's request that the court revisit its certification ofthe non-hire victim and
delayed-hire victim subclasses is therefore denied.

IV.

CONCLUSION
For the reasons set forth above, it is ORDERED that black victims of the City'S

discriminatory entry-level firefighter exams will be entitled to compensatory damages for

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noneconomic harm only if they can establish on an individualized basis one or more specific
forms of compensatory damages that have been previously recognized in the common law of
tort. The noneconomic benefits ofthe job of New York City firefighter---on which the court
held a bench trial in August 2011-are not relevant to the compensatory damages owed to
claimants, and so the Special Masters shall not award damages based on a valuation of the
differences between those benefits and claimants' actual life experiences. Claimants may
attempt to obtain damages for emotional distress, loss of enjoyment of life, inconvenience, and
lost future earning capacity, in accordance with the definitions and case law discussed in this
Memorandum and Order. They may also seek damages for forms of noneconomic harm that the
court has not addressed, but may be awarded such damages only if an award would be consistent
with the principles discussed above.
The City's request that the court revisit its certification of the non-hire victim and
delayed-hire victim subclasses is DENIED.
SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brooklyn, New York
September ~, 2012

NiCHOLAS G. GARAUP\S
United States District Judge

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