A recent decision from the Kentucky Supreme Court has clarified the quantum of proof required to support a claim for emotional distress damages in employment discrimination cases. See Banker v. Univ. of Louisville Athletic Assoc., Inc., 466 S.W.3d 456 (Ky. 2015). The decision is important for Kentucky employers because it addresses an unsettled area of the law which is often sharply disputed in employment litigation.
In Banker, the court upheld a jury’s $300,000 emotional distress damages award for a plaintiff who did not receive any medical treatment and whose evidence at trial consisted solely of her own testimony and the testimony of her mother. Id. at 463-64. In so ruling, the court confirmed that expert medical or scientific proof is not required to establish emotional distress damages in an employment discrimination case. The decision clears up an ambiguity which has lingered since the court’s decision in Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012), in which the court held that a plaintiff alleging a claim for negligent infliction of emotional distress must present expert medical or scientific proof to support the claim. Id. at 17-18. Following Osborne, it was unclear to practitioners and courts alike whether the holding in Osborne extended to other areas of the law, including employment discrimination claims. Banker has put any such uncertainty to rest.
The plaintiff in Banker was an assistant track and field coach at the University of Louisville. Shortly after she was hired in September 2007, the plaintiff alleged that she was subjected to a sexually hostile work environment and that she was required to perform tasks her male counterparts were not. The plaintiff subsequently made several complaints to various officials within the university. The plaintiff’s employment was terminated in May 2008, several weeks after she had lodged a complaint with the university’s affirmative action/sexual harassment officer. The university’s stated reason for its decision to terminate the plaintiff’s employment was unsatisfactory job performance and inappropriate workplace behavior. The plaintiff countered that her discharge was in retaliation for the complaints of discrimination and harassment she had previously made.
The plaintiff subsequently filed suit in Jefferson Circuit Court alleging various discrimination and retaliation claims under the Kentucky Civil Rights Act (KRS 344.010 et seq.). The jury found for the plaintiff on her retaliatory discharge claim and awarded her $300,000 in emotional distress damages and $71,875 in back wages. The sole evidence the plaintiff offered in support of her claim for emotional distress damages was her own testimony and the testimony of her mother. The plaintiff testified that “she suffered significant stress with accompanying loss of appetite, weight loss, depression, and sleep disturbance.” Banker, 466 S.W.3d at 463. Similarly, the plaintiff’s mother testified that the plaintiff “seemed stressed and lost weight during her time at the University,” and that the plaintiff “was devastated when she lost her job.” Id. The plaintiff did not offer any expert medical testimony in support of her claim. Nor did the plaintiff offer any testimony or medical records from a treating physician, as she had not received any medical treatment. Id. Thus, the plaintiff did not offer any medical evidence whatsoever in support of her claim for emotional distress damages. Her claim was supported solely by her own (and her mother’s) bare testimony. Yet, the jury awarded her $300,000 in emotional distress damages.
On appeal, the Kentucky Court of Appeals reversed the trial court’s denial of the university’s motion for JNOV on the plaintiff’s retaliatory discharge claim. The court of appeals found that there was no evidence of causation between the plaintiff’s complaints and her discharge, and that she therefore could not establish a prima facie case of retaliation. As a result, the court of appeals had no occasion to reach the issue of whether the damages award was appropriate.
On discretionary review, the Kentucky Supreme Court reversed the court of appeals and reinstated the jury verdict in favor of the plaintiff, finding that the record contained adequate evidence on which the jury could have found in favor of the plaintiff on her retaliation claim. As to the damages award, the university argued that the evidence was not sufficient to support an award of $300,000. The court rejected this argument, finding that “while we might not have awarded the amount this jury did, we cannot say that the damage award bore no relationship to the evidence of loss.” Id. at 464. As to the sufficiency of the evidence, the court simply found, “Banker and her mother testified that Banker suffered significant emotional distress both before and after her wrongful discharge.” Id. For the court, this simple testimony was enough to support a $300,000 emotional distress award.
In so finding, the court put to rest any notion that expert medical testimony – or indeed, any medical evidence at all – is necessary to support a claim for emotional distress damages in a Kentucky employment discrimination case.
Nick Birkenhauer is an attorney in the law firm of Dressman Benzinger LaVelle, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky.
