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Brown v. Junction Pool Commons, Inc., No. 07-1378 (2d Cir. Dec. 2, 2008); Boyd v. Wilmington Police Dept., No. 07-1731 (3d Cir. Dec. 2, 2008)

| Dec 1, 2008 | Daily Developments in EEO Law |

Here are two judgments from jury trials, both affirmed entirely on appeal (in unpublished opinions from the Second and Third Circuits) and each containing small nuggets of insight.

Brown v. Junction Pool Commons, Inc., No. 07-1378 (2d Cir. Dec. 2, 2008) :  Here’s a section 1981 case (non-employment — she was being evicted from her place of residence) where the plaintiff obtained a $300,000 emotional distress award.  The district court later carved the award down, by remittitur, to $90,000.  But the defendant believed that even $90,000 was excessive in case where only lay (and no expert) testimony supported the damages.  The Second Circuit nevertheless upholds the reduced award.  “It is undisputed that Brown is seeking damages only for emotional distress caused by her experience of discrimination; it is also undisputed that she does not have any medical documentation of specific distress. Looking to analogous cases, we nevertheless find that the District Court’s award was not excessive.”  Experience tells me that $90,000 is on the high side, so this is a useful case to keep tabbed for future reference.

Boyd v. Wilmington Police Dept., No. 07-1731 (3d Cir. Dec. 2, 2008):  The employee sued (and lost) under Title VII for a lost promotion.  At trial, the plaintiff argues, the district court judge erred in denying him the right “to cross-examine Lieutenant Mitchell Rock, a defense witness, regarding Lt. Rock’s alleged use of racial slurs.”  The Third Circuit nevertheless affirms the verdict. “We conclude that the District Court did not abuse its discretion in upholding the ruling that this evidence was properly excluded under FRE 403. The evidence had little to no probative value because Lt. Rock had absolutely no role in the Wilmington Police Department’s promotion process and Lt. Rock was never in a supervisory position to Boyd; furthermore, the evidence would have been highly prejudicial and confusing.”  We do not, I suppose, conclude that a witness’s use of racial slurs might have some bearing on the credibility of that witness in a race discrimination trial. (Or maybe that wasn’t argued below.)

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