Legal Memorandum: Recovery of Damages for Mental Anguish

Issue: What evidence is necessary to recover damages for mental anguish in an employment discrimination case?

Area of Law: Employee Law, Litigation & Procedure
Keywords: Employment discrimination case; Damages for mental anguish
Jurisdiction: Federal
Cited Cases: 435 U.S. 247
Cited Statutes: None
Date: 03/01/2004


To recover damages for mental anguish, a complainant must show by a preponderance of the evidence that he or she experienced mental suffering or emotional anguish and that the adverse employment decision caused the harm.  Gutierrez v. Regents of the Univ. of Calif., ARB Case No. 99-116, ALJ Case No. 98-ERA-19, 2002 WL 31662915, at *9 (Admin. Rev. Bd. Nov. 13, 2002).  Emotional distress cannot be presumed and compensatory damages for mental and emotional distress cannot be awarded without proof that the injury actually was caused by the adverse employment decision.  Carey v. Piphus, 435 U.S. 247, 263-64 (1978).  The proof must show “the existence and magnitude of subjective injuries with competent evidence.”  Creekmore v. ABB Power Sys. Energy Servs., Inc., Case. No. 93-ERA-24, 1996 WL 171403, at *10 (Off. Admin. App. Feb. 14, 1996).

Case law establishes that this evidence cannot support an award of damages for mental anguish.  For example, in Pogue v. U.S. Dep’t of the Navy, Case No. 87-ERA-21, 1994 WL 897412 (Off. Admin. App. Apr. 14, 1994), the evidence of emotional distress was set forth in five pages of the transcript in which the complainant stated that some of her co-workers had not been friendly to her and that she lost sleep because of the uncertainty about her job.  Id., 1994 WL 897412 at *4.  The complainant also testified that she gained weight before and during her pregnancy and that she was having trouble concentrating and was irritable.  Id.  She […]

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