Guest Article, Forensic Psychiatric Evaluations of Emotional Distress Claims
CONTRASTS IN CLAIMS:
EVALUATING EMOTIONAL DISTRESS—Part I—the “Eggshell Plaintiff”
Barbara Long, M.D., Ph.D., A.B.P.N.
Employment law Title VII claims often include allegations of significant emotional distress allegedly caused by reportedly inappropriate remarks, touches, and other behaviors in the workplace. When a supervisor, as opposed to a coworker, has been the alleged instigator of the reportedly offensive behavior, emotional distress claims are frequently enhanced because of the “power differential” between the supervisor and supervisee. Evaluating the validity of such emotional distress claims can be challenging. This paper will describe how expert psychiatric forensic consultation can assist in determining which claims may have merit and which may be false, the ultimate determination to be made by the trier-of-fact.
Case # 1—VALID CLAIM (The case study below was fabricated for teaching purposes, although the psychiatric issues illustrated are drawn from a variety of actual cases and archival data.)
Janice was a 31 year old minority woman, who had worked as a secretary for a construction company for 10 years. Prior to that, she had held a series of short-term positions as office assistant but had left for a better job or personal reasons. In her current job, her supervisor, Jack, was a “rough-and-ready” guy, who had an excellent reputation for his ability to get the job done. A loud, boisterous man, he commanded the respect of the all-male sub-contractors by balancing a stern iron will with a seemingly endless supply of rough jokes that often had off-color, sexual, or racial overtones. He often socialized with his sub-contractors after hours, and his alcohol problem was well-known, since he kept a stash in his office and sometimes was seen to imbibe at work. Management tolerated his personality and habits because of his extraordinary ability to complete construction projects within the time and budgetary limits mandated by contracts.
His overbearing personality style created tension among office staff, who tried to avoid provoking Jack’s anger and never complained to higher management about him. However, Janice was the subordinate that most frequently received his ire, especially when contracts contained spelling, grammatical or other errors, or materials were misfiled. Despite these frequent verbal reprimands, Janice received “meets expectations” on her performance reviews, although her frequent requests for time off for medical reasons was mentioned in most of her reviews. She was always given the same raises as other employees. She tended to isolate herself at work and was considered by others to be quiet and aloof but cooperative when her help was needed.
Jack’s loud verbal confrontations of Janice could be heard throughout the office complex. Others saw her in tears following these incidents, after which Janice often either went home immediately or took the next day off. She usually went to her primary care physician complaining of intense insomnia, anxiety, and depression related to her job or other stressful life problems of various kinds. The physicians usually prescribed anxiolytic, hypnotic, or antidepressant medications, which Janice usually took briefly before discontinuing them on her own. The pattern of verbal abuse by Jack had intensified over the years and grew to include demeaning remarks about Janice’s “stupidity.”
At her performance review on the 10th anniversary of her employment, Jack again began to berate her for ongoing spelling and grammatical errors that had changed the meaning of terms of the contract and caused the client to move the business elsewhere—problems that had occurred from time to time over the course of Janice’s employment. Irate, Jack confronted Janice, called her a name involving a racial epithet, rated her performance as “below expectations,” and denied her a merit raise. She left in tears, went home, and overdosed on her anxiety and hypertension medications. Her brother, who usually visited her apartment daily, found her unconscious and took her to the ER. Coworkers complained to management about Jack’s treatment of Janice. Management investigated and terminated Jack immediately.
In the ER, Janice complained of voices that sounded like Jack’s yelling at her and repeatedly calling her names with racist and sexist content. She disclosed that for several months, the voices had awakened her at night, leaving her anxious and unable to return to sleep. She had complained to her doctors of insomnia, anxiety, depression, and, recently, paranoid ideas, but she had never mentioned the voices until this ER visit. After the current meeting with Jack, the voices had started again, leaving her highly agitated, suspicious of others, and suicidal. She overdosed in order to stop the voices. The ER doctor admitted her to the hospital and started anti-psychotic and antidepressant medication, which decreased her symptoms. However, as before, she discontinued the medications after discharge. She received a medical leave of absence and short-term disability, following which she applied for and received Social Security Disability. After being absent for a year, the company terminated her.
She retained an attorney and filed a complaint with the EEOC, alleging sex and racial harassment/discrimination, hostile work environment, and other torts. After obtaining a “right to sue” letter, she filed her legal complaint, which included a claim of severe emotional distress, exacerbation of a medical condition (hypertension), and permanent disability caused by Jack’s actions, which had created a “hostile work environment.” Her counsel alleged that management was aware of and tolerated Jack’s alcohol problem and propensity to be verbally abusive and intimidating. Defense counsel’s response was that employees, including Janice, had never before complained about Jack’s behavior, and when management was made aware of the problem, it investigated and took appropriate action.
During the litigation process, which was very stressful for Janice, she filed bankruptcy due to inability to make ends meet on a reduced income. She continued to go the ER for situational stresses including those caused by the litigation. She remained unemployed on SSDI. The Independent Psychological Evaluation by the plaintiff’s expert concluded that Janice had PTSD caused by Jack’s verbal abuse, the hostile work environment, and management’s retention and lack of supervision of Jack. Despite a lack of training in HR or management, the expert further opined that Janice had been too intimidated by her supervisor’s “position of authority,” and that the “power differential,” along with inadequate reporting procedures within the company fostered a climate of abuse of which employees, including Janice, were reluctant to complain.
Defendant’s Forensic Psychiatric Analysis of Plaintiff
Counsel for the company requested an Independent Psychiatric Evaluation of her emotional distress claim. Legal, medical, and employment records were reviewed and psychological testing completed. There were coworker affidavits supporting Janice’s perception of Jack’s behavior as chronically verbally abusive. Janice’s past history included being raised in poverty by an alcoholic father who was physically and verbally abusive to all of the 10 children. Once he had called Janice racist names, after she had brought home a report card consisting of mostly Ds and Fs. She graduated from a public high school with a class rank in the lowest 10th percentile. She was a loner all of her life, had been married once, and had no children. Legal history was negative except for two prior bankruptcies during her prior marriage to an alcoholic man who, like her father, was verbally and emotionally abusive. Since her divorce, she had been able to support herself on her income from the defendant company. She had a limited social support system that consisted mainly of her Church and her original family members. Family history included a great uncle who had been institutionalized for schizophrenia. Medical history included longstanding hypertension, a problem that had worsened with age and weight, becoming increasingly difficult to control with medications. Her physician had discontinued a beta blocker due to concerns about depression. Records included over 50 ER visits over the years due to complaints of anxiety, stress, depression, or vague physical complaints that could not be explained medically. These ER visits were related to situational stresses, including work, quarrels with her ex-husband, or thoughts that others, even strangers, were against her.
The psychological testing included the MMPI-2, MCMI-III, Rorschach, SIRS, and Sentence Completion. The first four instruments are standardized tests, while the fifth is a critical items test that can alert the examiner to potential acute psychiatric disturbance possibly requiring intervention. The MMPI-2, the “gold standard” of personality testing, provides information about both Axis I (treatable psychiatric disorders) and Axis II (personality disorders that are developmental in nature, having a significant genetic component as well as potential inputs, such as sexual or physical abuse/neglect). Her MMPI-2 revealed an F scale (exaggeration of symptoms) that was at a level commonly seen in psychiatric inpatients. There was a borderline clinically significant scale on L indicating a view of herself that was more righteous and moral than the general population. Clinical scale elevations included Scales 1 (Somatization), 2 (Depression), 6 (Paranoia), 7 (Anxiety), 8 (Schizophrenia), and Scale 9 (Social Introversion). The computerized interpretive Personal Injury Report was based upon the two-point elevations of Scales 8, 6, and 2 and suggested a breakdown in thinking with significant depression and paranoia. Significant elevations on Scales 7, 9, and 1 suggested accompanying high anxiety, panic, social isolation, and somatic reactivity under stress. MMPI-2 research indicated that this was a generalized distress pattern.
The MCMI-III, a test for personality disorders, showed elevations on Schizoid, Paranoia, and Obsessive Compulsive scales. The Structured Interview of Reported Symptoms, a test for feigning or malingering of psychological symptoms, revealed no primary scales that deviated from “Honest Reporting” of symptoms. One supplementary scale that measured endorsement of everyday problems was elevated. The Sentence Completion contained responses that suggested chronic feelings of emptiness, despair, and self-worthlessness. The Rorschach, which was administered, scored, and interpreted according to the Comprehensive System of John Exner, Ph.D., revealed an individual with a Coping Deficit and thought disorder. Strong pessimistic thinking directed inward was indicated along with problems with emotional control secondary to an elevated number of situational stresses in a woman with a limited supply of emotional resources to cope. Individuals with this result are expected to have frequent “breakdowns,” in which they seek medical or psychological intervention.
The psychiatric Mental Status Examination revealed a depressed and anxious woman who was guarded. There was psychomotor retardation. Thinking revealed paranoid and somatic delusions that involved concerns that Jack or other members of management were out to get her and had been poisoning her food, resulting in physical problems and ER visits. Their voices were arguing day and night, interfering with sleep. Her style of communication revealed looseness of associations consistent with a thought disorder. She had stopped her medications, because she had thought the doctors were part of the company’s conspiracy against her. Diagnoses were Axis I: Paranoid Schizophrenia and Axis II: Personality Disorder, Not Otherwise Specified, with Schizoid and Paranoid features. The evaluation was inconsistent with PTSD.
The expert concluded that although the history suggested a latent schizophrenic process caused by a genetically determined (rather than work-related) Coping Deficit, low-normal IQ, and a predisposition to schizophrenia, a history of physical and emotional abuse by her father and ex-husband, and poor social and overall life adjustment, she had been able to cope by restricting her life to work, Church, family, and medical interventions. This strategy succeeded until the final incident with Jack. Despite the emotional parallels between Jack and her father and ex-husband, parallels that had intensified her emotional responses to Jack’s behavior, the final confrontation had “tipped the scales,” breached her psychological defensive structure, and resulted in a florid psychotic breakdown. Her current ongoing psychotic state and Schizophrenia diagnosis was judged to carry some degree of permanency, although part of the permanency had resulted from her non-compliance with medications and follow up. The expert opined that although there were no guarantees, if she complied with medications and received ongoing psychiatric care, it was more likely than not that her emotional condition would improve. However, it was unlikely that she could ever return to a secretarial position. No opinions were rendered about policies, as this was outside the realm of the expert’s training. The case was settled out of Court.
This case illustrates the psychiatric equivalent of the legal term, “Eggshell Plaintiff.” It illustrates the importance of a comprehensive psychiatric evaluation in order to determine diagnosis and causality in work-related legal claims of emotional distress. Only through a review of records, psychological testing, and a comprehensive psychiatric evaluation could the complicated and interrelated biological, social, and psychological forces be understood sufficiently, so that the question of psychological injury could be fairly assessed.
In this case, the litigant’s claim had merit, even though she had not mitigated her damages. Defense counsel had feared the plaintiff’s expert’s PTSD diagnosis, since this diagnosis permits explicit causality to be assigned to a known causal factor. Although relieved that the evaluation did not support such a diagnosis, since the workplace conduct did not, in the opinion of the expert, rise to the level needed for such a diagnosis, defense counsel had a far worse problem. The defense expert explained that emergence of a florid Schizophrenic process was potentially far more serious from a legal perspective because of the issue of permanency of harm to the individual’s personality functioning.
Also discussed with counsel was the other evidence bolstering the validity of her claim. This included overwhelming coworker support through affidavits, lack of evidence of feigning on the psychological test instruments and in the interview, absence of personal complicating factors (e.g., substance abuse, a prior history of similar claims against prior employers, antisocial behavior, etc.), and evidence that coworkers and management alike knew of her supervisor’s alcoholism and poor control of anger but did not confront him. These factors had to be weighed against her limited IQ, which raised the question of why her poor performance had been consistently rated as “meets expectations,” when it had clearly been poor, increasing Jack’s frustration over time and jeopardizing the company’s relationships with customers.