The case of Mallard v. Progressive Choice Ins. Co. beautifully illustrates a point I discuss with all clients who want to make an emotional distress claim, and provides a good stepping-off point to discuss the reality of damages in a wrongful termination case.
Sometimes I will get a call from a potential client within minutes after they were fired by their employer. They want to sue for wrongful termination and they want to sue NOW!
But what is the employee going to sue for? Union workers and government employees will sometimes sue to get their jobs back, but 99% of the time when someone calls me wanting to sue for wrongful termination, they want to sue for damages. They understand that even if they could sue to get their job back, it would not be a very pleasant environment to work. They want money.
So let’s look at that. Fifteen minutes after an employee has been fired, what damages have they suffered? When I ask the caller that question, they answer, “I was fired!” Yes, but what are your damages? “I was fired!”
Rather than to go on all day in this fashion, I explain. Damages are something you can put a dollar sign in front of. Being fired is not a damage, although obviously it can CAUSE damages. But 15 minutes after a termination, an ethical attorney should explain that there are no real damages at that point.
Let’s do the math. If the employee was making, say, $25 an hour, and they were fired two hours before their shift ended, then the damages at that moment they are calling me are $50, at least in terms of lost wages. But let’s carry it out a little. Let’s assume for our hypothetical that the employee had seen the writing on the wall and had already sent out some feelers for a new job before the axe fell. She makes a few calls, and a week later she starts a new job with the same title that pays $30 per hour with better benefits. What are her damages then?
Well, she went a week without being paid, so she lost $1,000 in wages. If the termination was wrongful, her old employer should at least cut her a check for $1,000 to reimburse her for the lost wages, right? But wait a second. Because of the termination, she will make $10,000 more for the year than if she hadn’t been fired, because now she is making $5 per hour more. Fair’s fair. If you thought her employer should pay her for what she lost as a result of the termination, then it is only fair that she should pay to the employer the money she gained as a result of the termination, right?
I’m speaking tongue in cheek of course, but I want you to think in terms of the real damage to our terminated employee. Last week I discussed all the damages that flow from a wrongful termination, and if you look at that list, assuming our employee did not suffer any setback to her career track, then there are no significant damages a week after termination.
“But what about emotional distress damages?”, the caller asks. That’s a valid question. If your employer wrongfully terminated you, you might have suffered some emotional distress damages, and those are recoverable on a wrongful termination claim. But an ethical attorney then needs to explain what you open yourself up to when you claim emotional distress.
Which leads us to today’s case review.
This case has nothing to do with wrongful termination, but it illustrates the risks and realities of pursing an emotional distress claim. In the case, Progressive Insurance issued an automobile insurance policy to Winly Mallard. She was involved in an auto accident, and her medical expenses exceeded the policy limits, so she proceeded under her insurance policy’s uninsured motorist claim because the driver of the other car involved in the accident did not have liability insurance.
A quick aside here. All the commercials you see with the helpful insurance agents are bull. Yes, you will be fine if you are in an accident that involves only property damages and perhaps some minor medical expenses, but if you ask for anything challenging, the insurance company will fight your coverage.
That was what happened to Winly Mallard. An attorney by the name of Rivers J. Morrell III was retained by Progressive Insurance to fight Mallard’s claim. As part of the discovery process, Morrell propounded form interrogatories to Mallard on Progressive’s behalf. Those form interrogatories required Mallard to list all of her injuries from the accident. In her written response, she stated that she had suffered injuries to her neck and back, but Mallard also stated that she was having difficulty sleeping, and suffered “[s]hock” and “[n]ervous anxiety.” In addition, she stated she was pursuing a claim for loss of earning capacity.
There it is. Just like a wrongfully terminated employee who wants to assert emotional distress, Mallard had put at issue her mental health. Is she having trouble sleeping because of the accident and/or injuries, or is there something else that could be troubling her? Morrell quite properly needed answers to those questions if he was going to properly defend Progressive Insurance, so Mallard’s mental health records were subpoenaed from health care providers identified in her verified responses.
Understandably, Mallard felt very invaded. She filed a complaint alleging claims for invasion of privacy and abuse of process against Morrell and Progressive Insurance, based on the act of subpoenaing third parties to obtain Mallard’s mental health records. As a result, Mallard ended up paying a huge bill for Morrell’s attorney fees, because you can’t sue for the emotional distress you suffer in a legal action, at least not under these circumstances.
If you think it was bad for Mallard, you should see what happens to plaintiffs who throw in a cause of action for “loss of consortium”. You see, many attorneys think adding the spouse of a plaintiff is a good way to add another source for recovery of damages. They allege that the employee suffered emotional distress as a result of the wrongful termination, and the spouse then joins in the action, claiming that he or she was also injured by the termination, because the spouse is being less affectionate and sexual as a result of the termination. Really, your spouse is being less sexual? Then tell us, prior to the termination, how often did you have sex? Who would normally initiate that sex? Was your spouse’s responsiveness to the sex any different after the termination? All fair questions if you are suing saying the sex changed after the termination.
Moral of this story: Clients must be made aware that making an emotional distress claim leaves them open to very intrusive questions and discovery. That does not by any means mean that it is never appropriate to assert such a claim, but it should only be done after much consideration.
Your energy should be spent on finding work.
Here is a reality that probably no other attorney will explain to you. The average personal income in America is $46,000 per year, or $3,833 per month. This means that three months after termination, the average employee has suffered $11,499 in lost wages. If an attorney takes your action a week after you were fired, and you find work three weeks later, your total lost wages might be just $3,833. As set forth above, until you find a new job, you really won’t know if you lost money or made money as a result of the termination. The “real” damages in a wrongful termination action are the future lost wages, which can occur if the termination forced you to take a lower position, and it takes years to get back to where you were. Again, however, we can’t know whether that is the case unless and until you get a new job.
For these reasons, it is my policy not to take a wrongful termination case until the employee has been out of work at least three months. I’ll counsel the employee on how to preserve the case so that there is no prejudice during those three months, but following a termination, the former employee should be devoting his or her time to finding a new job, not litigation over the old one.
If you’ve just been fired, this may not be very satisfying, because you are anxious to show your former employer that you are not going to take this terrible conduct lying down. However, believe it or not it was fired employees who taught me that this is the best way to go. All those many years ago when I started taking wrongful termination cases, I would sign them up as soon as I determined that the termination violated the law. But very often, the client would call a few weeks later, explaining that they had found new work, that the job was a million times better, that being fired had turned out to be the best thing that had ever happened to them, and that as a result they no longer wanted to pursue the action.
If you suspect you have been wrongfully terminated, then by all means contact an attorney to discuss the matter. If you are talking to an attorney who wants only to make a quick score without regard to whether you have suffered any significant damages, then the attorney will probably sign you up immediately. If your goal is only to extract a small settlement in a few months, then you may be well served by such an attorney. If on the other hand you want to recover the actual damages you suffered, in full, then you should devote your time to finding work, and pursue the action a little later when you know the true consequences of the termination.