Janice Worthen-Caldwell worked for many years as a manager at a home health care agency which provides home health aides to ill or disabled patients in New York City. She was responsible for ensuring that more than 2,000 aides met required standards. In 2006, she sued her employer claiming that the owner had engaged in a pattern of sexual harassment and unwanted and offensive touching dating back to 1990.
Plaintiff, a 50 year old mother of two, claimed that her 57 year old boss made sexually explicit comments and demanded sexual favors from her as a term of employment. This behavior, she claimed, created a hostile work environment, and entitled her to damages under the State Human Rights Law – New York State Executive Law Section 296.
A Kings County jury found for the defense on the State claim, but for the plaintiff on the City Human Rights Law claim added to the case mid-trial (see Inside Information below) and in Worthen-Caldwell v. Special Touch Home Care Services, Inc. (Supreme Court, Kings County, Index # 5012/06), plaintiff was awardedf $1,860,000 for her pain and suffering resulting from the sexual harassment ($1,300,000 past – 19 years, $560,000 future – 11 years).
While the defendant denied the charges of harassment (13 current and former employees testified that plaintiff and her witnesses fabricated facts), plaintiff testified that, on various occasions over the years, the owner:
- sexually assaulted her in the office by forcibly pulling her against him
- slid his hand across her rear end
- forcibly kissed her
- engaged in sexual activity with other women in the office during work hours
This entire matter came to a head in September 2005 after plaintiff returned from a medical leave that year and was transferred from her position as a manager of quality assurance to the accounts receivable department.
Plaintiff’s expert psychiatrist (who was recommended to her by her lawyer after the alleged harassment ended) testified that the sexual harassment caused:
- Post-traumatic stress disorder (PTSD) – feelings of shock and numbness that are permanent and resulted in nightmares and flashbacks
- Major Depression – with symptoms including insomnia, irritability, low self-esteem, changes in appetite, sleep, cognition and suicidal ideations
On appeal, the defense argued that the $1,860,000 pain and suffering award was grossly excessive and now, in Worthen-Caldwell v. Special Touch Home Care Services, Inc. (2d Dept. 2010), the pain and suffering award was conditionally reduced to $250,000 ($200,000 past, $50,000 future). The decision cites no reason for the reduction.
Here are some of the few appellate court cases on the issue of appropriate pain and suffering damages for sexual harassment:
- New York State Dept. of Correctional Services v. New York State Div. of Human Rights (3d Dept. 2008) – $200,000 reduced from $850,000 for a female correctional officer who suffered from increased stress, sleeping and eating difficulties, nosebleeds and adjustment disorder with depressive features
- Kondracke v. Blue (4th Dept. 2000) – $400,000 reduced from $800,000 for female nurse who suffered from major depression, panic disorder and PTSD
Ms. Worthen-Caldwell’s attorney argued that $1,860,000 was a reasonable award in view of the $11,500,000 verdict in the case of Sanders v. Madison Square Garden (U.S. District Court, S.D.N.Y., # 06 Civ. 589), tried in 2007; however, that notorious and well-publicized case (involving New York’s professional basketball team, the New York Knicks), was settled without an appellate resolution and the verdict was for punitive damages not pain and suffering.
- the trial lasted four months and included 20 witnesses
- plaintiff first saw a psychiatrist a few months after she started her lawsuit, was referred to him by her lawyer and saw him a total of 15 times with an additional 20 telephone consultations
- the defense argued strenuously on appeal but without avail that it was unfair to allow plaintiff to add during trial a claim for violation of the new New York City Human Rights Law (construed for the first time in Williams v. New York City Housing Authority, 1st Dept. 2009), a law that is very similar to the state law but allows for a significantly lower burden of proof
- the defense did not present any medical experts to testify to counter the plaintiff’s psychiatrist (a strategy that’s not uncommon when the defense seeks to minimize a sympathetic plaintiff’s damages simply by cross-examining the plaintiff’s experts)