Chapter § 3-16 Damages

• Jurisdiction: United States

3-16 Damages

3-16:1 Mental Anguish

Plaintiff's lawyers often go wrong in this area and fail to adduce sufficient testimony to support an award. For a textbook model of how to do it, review the following case.

• Stragapede v. City of Evanston, No. 12 C 08879, 2016 U.S. Dist. LEXIS 7370 (N.D. Ill. Jan. 22, 2016) (award of $225,000 based on testimony of plaintiff and his wife; she testified as to what she observed, not her own mental anguish, which is objectionable; testimony as to how proud he was to work for fourteen years for the city; spouse testified that the night before he returned to work from a disability-related condition (open head injury) that "he was like a 10 year old kid in a candy store . . . he was really happy because that night he packed his lunch, laid out his work uniform, had everything prepared"; court notes that because of the nature of the disability, finding a new job would be "daunting"; and court rejects argument that plaintiff failed to mitigate his anguish be seeking professional help or therapy).
• Deloughery v. City of Chi., 422 F.3d 611, 620 (7th Cir. 2005).
• Tullis v. Townley Eng'g & Mfg. Co., 243 F.3d 1058, 1068 (7th Cir. 2001) (no duty to mitigate).

But note that courts will remit the size of an award in cases in which the plaintiff found work shortly after being terminated.

• Schandelmeier-Bartels v. Chi. Park Dist., 634 F.3d 372, 389 (7th Cir. 2011) (reducing $200,000 award because plaintiff found a job ten days after she was terminated and did not testify to any lasting negative emotional or physical effects).

3-16:2 Front Pay

Reinstatement is a preferred remedy to front pay. But where it is unworkable or inappropriate, then front pay may be considered. A point for plaintiffs to keep in mind is that they must plead for reinstatement or, in the alternative for front pay. The failure to do so may result in the striking of the request front pay.

• Breazell v. Permian Trucking & Hot Shot, LLC, No. 7:15-CV-199-XR, 2017 U.S. Dist. LEXIS 111597 (W.D. Tex. July 17, 2017) (though the plaintiff's counsel alluded to a request for front pay at the damages hearing, the plaintiff did not request it in his complaint, and as such, the court did not award front pay in the default judgment).

Note that the plaintiff must continue to seek other work to receive front pay, and it must be in the same type of job they had previously. Moreover, if the plaintiff fails to offer testimony of the appropriate discount rate, the claim will be...