Bergerson v. Office of Mental Health, No. 10-1040 (2d Cir. July 21, 2011)

| Jul 22, 2011 | Daily Developments in EEO Law |

Here’s a lesson that some must re-learn, even twenty years after the passage of the 1991 Civil Rights Act that reformed the remedial provisions of Title VII: compensatory damages are an entirely separate kind of relief from make-whole back- and front-pay. The Second Circuit reverses a judge’s order denying make-whole relief on the ground that the jury award of $300,000 in compensatory damages (for pain, suffering and loss of reputation) was enough.

Bergerson v. Office of Mental Health, No. 10-1040 (2d Cir. July 21, 2011): The plaintiff, a probationary employee in hospital security, alleged that she was subjected to a barrage of sexual and racial insults and banter. According to the opinion, “Bergerson made multiple unsuccessful complaints about her workplace environment to her supervisors. In one instance, a female supervisor responded to Bergerson’s complaints by telling her that it was a ‘man’s environment’ and that she should ‘just deal with it.’ ” Eventually, her probationary period ended and she was terminated. She sued for both the harassment and wrongful termination

At trial, the judge reserved all issues of back- and front-pay for himself, and the jury heard no evidence on the issue of lost wages. The jury found for Bergerson and awarded her $580,000 in compensatory damages, for harm to reputation, pain and suffering, and emotional distress, which the judge reduced post-trial to the $300,000 federal statutory cap applicable to an employer of this size (500 or more employees) under 42 U.S.C. §1981a(b)(3). 

The judge then refused to award any lost back- or front-pay (for the plaintiff’s termination) on the ground that the jury’s “substantial damages award satisfie[d]” Title VII’s make-whole policy. The court found that:

“[Bergerson’s] substantial damages award satisfied both of the objectives of Title VII. Instead of merely having to comply with an injunctive order prohibiting racial discrimination and hostility in the work environment, [CNYPC] must pay[Bergerson] $300,000 in compensatory damages as a result of its unlawful employment practices. . . . addition ally, the magnitude of the jury’s award ensures that [Bergerson] will be made whole for her injuries, including any lost wages, pain, suffering, or emotional distress.”

On appeal, the Second Circuit reverses. It holds that Congress, by establishing compensatory damages, did not supplant make-whole relief:

“While a primary purpose of backpay is indeed to return a victim of discrimination to the position she would have found herself in had the violations never occurred, we have never held that an award of backpay is encompassed within a jury’s award of compensatory damages. Indeed, such a view has been foreclosed by § 1981a. Rather, an award of backpay includes ‘what the employee himself would have earned had he not been discharged.’ . . .  An award of backpay is a separate inquiry and requires a district court to make addition al factual findings.

“Because a backpay award requires a separate inquest, a district court may not deny an award of backpay because it believes that an award of compensatory damages is sufficient. Either an award includes backpay or it does not.”

The case is remanded for further findings in the make-whole relief. The panel otherwise affirms the award of attorneys fees and dismissal of the supplemental state law claims.

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