917-902-7979 917-902-7979

Representative Cases

Ved Parkash v. Utilisave Corp. 295 A.D.2d 330

Ved Parkash, Appellant,
v.
Utilisave Corporation et al., Respondents.

Second Department,

(June 3, 2002)

In an action, inter alia, for a judgment declaring that the plaintiff is not contractually obligated to pay certain fees to the defendants pursuant to an auditing agreement dated July 8, 1994, the plaintiff appeals from an order of the Supreme Court, Queens County (Price, J.), dated May 21, 2001, which, among other things, denied his motion for summary judgment on his first cause of action for declaratory relief.

Ordered that the order is affirmed, with costs.

The Supreme Court properly determined that issues of fact preclude the award of summary judgment to the plaintiff on his first cause of action (see Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878; Reiner v Wenig, 269 AD2d 379). The auditing agreement dated July 8, 1994, is ambiguous as to whether the parties intended the defendants to be compensated for the services rendered to the plaintiff.

Furthermore, the Supreme Court correctly sustained the defendants’ counterclaim to recover damages based on unjust enrichment. The plaintiff may not deny the existence of a contract to support his motion for summary judgment, and then invoke that very contract as a means to avoid quasi-contractual liability (see Wilmoth v Sandor, 259 AD2d 252, 254; Curtis Props. Corp. v Greif Cos., 236 AD2d 237, 239). As there is a bona fide dispute as to the existence and scope of a contract, the defendant may proceed on theories of breach of contract and quantum meruit (see Breslin Realty Dev. Corp. v 112 Leaseholds, 270 AD2d 299).

The plaintiff’s remaining contentions are without merit.

Altman, J.P., S. Miller, McGinity and Schmidt, JJ., concur.

Copr. (c) 2004, Randy A. Daniels, Secretary of State, State of New York.

Parkash v Utilisave Corp.

END OF DOCUMEN

American Telephone & Utility Consultants, Inc., Appellant,
v.
Beth Israel Medical Center, Respondent.

Supreme Court, Appellate Division, First Department, New York

(August 14, 2003)

Order, Supreme Court, New York County (Charles *835 Ramos, J.), entered April 26, 2002, which, to the extent appealed from, granted defendant’s motion to dismiss the cause of action for unjust enrichment, unanimously reversed, on the law, without costs, the motion denied, and the cause of action reinstated.

While the existence of a valid and enforceable contract governing a particular subject matter ordinarily precludes recovery in quasi-contract for events arising out of the same subject matter (Clark-Fitzpatrick, Inc. v Long Is. RR. Co., 70 NY2d 382, 388 [1987]), where there is a bona fide dispute as to the existence of a contract or where the contract does not cover the dispute in issue, plaintiff may proceed upon a theory of quantum meruit and will not be required to elect his or her remedies (Joseph Sternberg, Inc. v Walber 36th St. Assoc., 187 AD2d 225, 228 [1993]). Here, in view of the bona fide dispute over whether, as plaintiff contends and defendant denies, the High Tension Tariff and Power for Jobs programs are within the scope of the parties’ contracts, dismissal of plaintiff’s unjust enrichment claim with respect to those programs was premature (see ME Corp. v Cohen Bros., 292 AD2d 183, 185- 186 [2002]).

We have considered and rejected defendant’s remaining contentions.

Concur–Andrias, Saxe, Sullivan and Ellerin, JJ.

Copr. (c) 2005, Randy A. Daniels, Secretary of State, State of New York.

N.Y.A.D.,2003.

American Tel. & Util. Consultants v Beth Israel Med. Ctr.

END OF DOCUMENT

United States District Court,
S.D. New York.
William P. SHANNON, Plaintiff,
v.
FIREMAN’S FUND INSURANCE COMPANY, Defendant.

No. 00 CIV. 1528(SAS).

March 1, 2001.

Former employee brought action under New York State Human Rights Law (NYSHRL) and New York City Human Rights Law against employer, alleging he was unlawfully terminated because of his age. Following jury verdict for employee, the District Court, Scheindlin, J., pursuant to parties’ agreement, determined the amount of back pay and/or front pay that employee was entitled to and held that: (1) employee satisfied duty to mitigate, and thus was entitled to back pay award; (2) addition of prejudgment interest to fringe benefit component of back pay award was inappropriate; (3) appropriate rate of prejudgment interest applied to back pay award was nine percent; (4) court would not deduct unemployment benefits from employee’s back pay award; (5) award of front pay to employee was appropriate until he reached age of 65; (6) court would not award lost life insurance benefits; and (7) court would award lost social security benefits.

So ordered.

West Headnotes

[1] Civil Rights 1573
78k1573 Most Cited Cases
(Formerly 78k402)

[1] Civil Rights 1765
78k1765 Most Cited Cases
(Formerly 78k454)

Under federal and New York law, prevailing employee in discriminatory termination action must attempt to mitigate his damages by using reasonable diligence in finding other suitable employment, but employee need not go into another line of work, accept a demotion, or take a demeaning position.

[2] Civil Rights 1573
78k1573 Most Cited Cases
(Formerly 78k402)

[2] Civil Rights 1765
78k1765 Most Cited Cases
(Formerly 78k454)

Under federal and New York law, if employee following discriminatory termination rejects an offer of substantially similar employment, he loses his right to lost pay as damages.

[3] Civil Rights 1535
78k1535 Most Cited Cases
(Formerly 78k377.1)

[3] Civil Rights 1744
78k1744 Most Cited Cases
(Formerly 78k453)

Under federal and New York law, employer bears burden to prove that employee in discriminatory termination action failed to satisfy his duty to mitigate.

[4] Civil Rights 1573
78k1573 Most Cited Cases
(Formerly 78k402)

[4] Civil Rights 1765
78k1765 Most Cited Cases
(Formerly 78k454)

Under federal and New York law, employer can prove that employee in discriminatory termination action failed to satisfy his duty to mitigate by showing that (1) suitable work existed and (2) employee did not make reasonable efforts to obtain it.

[5] Civil Rights 1535
78k1535 Most Cited Cases
(Formerly 78k377.1)

[5] Civil Rights 1744
78k1744 Most Cited Cases
(Formerly 78k453)

Under federal and New York law, if employer can show that employee in discriminatory termination action failed to make reasonable effort to seek comparable employment in mitigation of damages, employer is relieved of its burden to prove that suitable work existed.

[6] Civil Rights 1765
78k1765 Most Cited Cases
(Formerly 78k454)

Decision of terminated employee, who prevailed in age discrimination action under New York law, not to follow up a conversation he had with potential employer about a job opportunity did not constitute a failure to satisfy his duty to mitigate, and thus employee was entitled to back pay award; potential employer never offered employee a job, employer did not show that potential position was substantially similar to position lost, and decision was reasonable considering employee was still employed at time, had been fired from potential employer before, and was not required to take job he would have likely found demeaning. N.Y.McKinney’s Executive Law § 296; New York City Administrative Code, § 8-107.

[7] Civil Rights 1571
78k1571 Most Cited Cases
(Formerly 78k401)

[7] Civil Rights 1765
78k1765 Most Cited Cases
(Formerly 78k454)

Under federal and New York law, when awarding back pay to prevailing employee in discriminatory termination action, District Court should place employee in position he would have been in absent discrimination and back pay award should not be designed to punish employer or provide windfall to the employee.

[8] Interest 39(2.45)
219k39(2.45) Most Cited Cases
Under federal and New York law, decision to award prejudgment interest on back pay awarded to prevailing employee in discriminatory termination action is left to discretion of district courts.

[9] Interest 39(2.45)
219k39(2.45) Most Cited Cases

Under federal and New York law, to determine whether award of prejudgment interest on back pay award is appropriate to prevailing employee in discriminatory termination action, District Court must consider: (1) need to fully compensate wronged party for actual damages suffered, (2) considerations of fairness and relative equities of award, (3) remedial purpose of statute involved, and/or (4) such other general principles as are deemed relevant by court.

[10] Civil Rights 1765
78k1765 Most Cited Cases
(Formerly 78k454)

[10] Interest 39(2.45)
219k39(2.45) Most Cited Cases

Addition of prejudgment interest to fringe benefit component of back pay awarded to terminated employee, who prevailed in his age discrimination claim under New York law, was inappropriate; adding prejudgment interest to award would have exceeded “make whole” objective of back pay. N.Y.McKinney’s Executive Law § 296; New York City Administrative Code, § 8-107.

[11] Interest 38(1)
219k38(1) Most Cited Cases

Under federal and New York law, what rate of prejudgment interest to apply to back pay award to prevailing employee in discriminatory termination action is generally matter committed to district court’s discretion.

[12] Interest 31
219k31 Most Cited Cases

In age discrimination action brought pursuant to New York State Human Rights Law (NYSHRL) and New York City Human Rights Law, appropriate rate for prejudgment interest applied to back pay awarded to terminated employee was nine percent rate provided by New York statute. N.Y.McKinney’s Executive Law § 296; N.Y.McKinney’s CPLR 5004; New York City Administrative Code, § 8-107.

[13] Civil Rights 1765
78k1765 Most Cited Cases
(Formerly 78k454)

District Court would not deduct unemployment benefits received by terminated employee from his back pay award in his age discrimination action under New York law; fairness dictated that “windfall” should be awarded to victim of discrimination rather than perpetrator. N.Y.McKinney’s Executive Law § 296; New York City Administrative Code, § 8-107.

[14] Civil Rights 1765
78k1765 Most Cited Cases
(Formerly 78k454)

Because former employee had not been employed since his unlawful termination, he did not have compensable back pay loss with respect to paid leave, in age discrimination action under New York law; since defendant’s employees were not allowed to carry unused time over into following year and were not compensated for unused time, most plaintiff could have lost was value of paid leave to which he would have been entitled as employee at company, but which he was not entitled to at his subsequent employment. N.Y.McKinney’s Executive Law § 296; New York City Administrative Code, § 8-107.

[15] Civil Rights 1571
78k1571 Most Cited Cases
(Formerly 78k401)

[15] Civil Rights 1765
78k1765 Most Cited Cases
(Formerly 78k454)

Under federal and New York law, award of front pay to prevailing employee in discriminatory termination action is exclusively within district court’s discretion.

[16] Civil Rights 1571
78k1571 Most Cited Cases
(Formerly 78k401)

[16] Civil Rights 1765
78k1765 Most Cited Cases
(Formerly 78k454)

Under federal and New York law, in deciding whether award of front pay is appropriate to prevailing employee in discriminatory termination action, district court should consider: (1) whether reinstatement is either impossible or impracticable, (2) whether plaintiff has reasonable prospect of obtaining comparable employment, and (3) whether calculation of front pay would involve undue speculation.

[17] Civil Rights 1765
78k1765 Most Cited Cases
(Formerly 78k454)

Award of front pay to sixty-three year old former employee, who prevailed in age discrimination action under New York law, was appropriate, where reinstatement was not an option and employee had no reasonable prospect of obtaining comparable employment. N.Y.McKinney’s Executive Law § 296; New York City Administrative Code, § 8-107.

[18] Civil Rights 1765
78k1765 Most Cited Cases
(Formerly 78k454)

Sixty-three year old former employee, who prevailed in his age discrimination action under New York law, was entitled to front pay until he reached the age of 65, as any award past that time would have been unduly speculative; at time of termination, employee told manager that he wanted to work at least until he was 65, he told his sister he wanted to work three more years so he could retire comfortably, and he would become eligible for his full pension at age 65. N.Y.McKinney’s Executive Law § 296; New York City Administrative Code, § 8-107.

[19] Civil Rights 1765
78k1765 Most Cited Cases
(Formerly 78k454)

District Court would not award former employee, who prevailed in his age discrimination action under New York law, lost life insurance benefits, absent evidence that employee could not obtain comparable term life policy. N.Y.McKinney’s Executive Law § 296; New York City Administrative Code, § 8-107.

[20] Civil Rights 1571
78k1571 Most Cited Cases
(Formerly 78k401)

[20] Civil Rights 1765
78k1765 Most Cited Cases
(Formerly 78k454)

Under federal and New York law, lost social security benefits incurred as result of a discriminatory termination may be included in front pay award when damages are proven with reasonable certainty.

[21] Civil Rights 1765
78k1765 Most Cited Cases
(Formerly 78k454)

In age discrimination action under New York law, District Court would award former employee lost social security benefits incurred as a result of his unlawful termination, since loss was proven with reasonable certainty. N.Y.McKinney’s Executive Law § 296; New York City Administrative Code, § 8-107.

*227 Michael P. Graff, Michael Siskin, Kurzman Karelsen & Frank, LLP., New York City, for Plaintiff.

Lawrence Piekes, Wiggin & Dana, Stanford, CT, for Defendant.

MEMORANDUM OPINION AND ORDER

SCHEINDLIN, District Judge.

Plaintiff, William P. Shannon, brought this action pursuant to the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 286, and the New York City Human Rights Law (the “City law”), N.Y.C. Admin. Code § 8-107, alleging that the defendant, Fireman’s Fund Insurance Company (“Fireman’s Fund”), unlawfully *228 terminated him because of his age. [FN1] The case was tried before a jury and on December 22, 2000, the jury returned a verdict in favor of Shannon. [FN2] During pre-trial proceedings, the parties agreed that in the event Shannon prevailed at trial, the Court would determine the amount of back and/or front pay to which Shannon is entitled. [FN3]

FN1. Jurisdiction is based upon diversity of citizenship pursuant to 28 U.S.C. § 1332.

FN2. The jury awarded Shannon $80,000 as compensation for emotional suffering caused by the unlawful termination.

FN3. New York courts have ruled that all money damage awards under the NYSHRL are legal remedies. See Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1189 (2d Cir.1992) (citing Murphy v. American Home Prods. Corp., 136 A.D.2d 229, 527 N.Y.S.2d 1, 2 (1988)). Thus, federal courts applying New York law have found that the question as to whether a plaintiff is entitled to an award of back or front pay should generally be decided by a jury. See Epstein v. Kalvin-Miller Int’l, Inc., No. 96 Civ. 8158 (PKL), 2000 WL 1761052, at *1 (S.D.N.Y. Nov. 29, 2000).

Shannon seeks back pay from the date of his termination through the date of judgment, as well as front pay until he reaches the age of seventy. Fireman’s Fund argues that Shannon is entitled to neither back nor front pay because Shannon failed to satisfy his duty to mitigate. Further, Fireman’s Fund argues that an award of front pay would be unduly speculative, and at the very least, any front pay award should extend only until Shannon reaches the age of sixty-five. The parties have submitted a joint stipulation to the Court listing amounts to be used in calculating Shannon’s award of back and/or front pay depending on the Court’s assessment of the disputed legal issues. See 2/8/01 Damages Stipulation (“Stip.”).

I. DISCUSSION [FN4]

FN4. The legal principles applicable to the issues concerning awards of front and back pay under the federal anti-discrimination statutes, such as Title VII and the ADEA, also apply to cases arising under State and City law. See, e.g., Griffin v. William M. Mercer, Inc., No. 101146/96, 1998 WL 1050968, at *12 (N.Y.Sup. March 25, 1998) (applying legal principles derived from federal law to a case arising under NYSHRL).

A. Mitigation of Damages

[1][2][3][4][5] A prevailing plaintiff must attempt to mitigate his damages “by using ‘reasonable diligence in finding other suitable employment.’ ” Dailey v. Societe Generale, 108 F.3d 451, 455 (2d Cir.1997) (quoting Ford Motor Co. v. EEOC, 458 U.S. 219, 231, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982)). To satisfy his duty to mitigate, the plaintiff “need not go into another line of work, accept a demotion, or take a demeaning position.” Ford Motor, 458 U.S. at 231, 102 S.Ct. 3057. However, if a plaintiff rejects an offer of substantially similar employment, he loses his right to pay after such rejection. See Taylor v. Records, No. 94 Civ. 7689, 1999 WL 124456, at *25 (S.D.N.Y. Mar. 8, 1999). It is the defendant’s burden to prove that plaintiff failed to satisfy his duty to mitigate. See Dailey, 108 F.3d at 456. This may be done by showing that (1) suitable work existed and (2) the plaintiff did not make reasonable efforts to obtain it. See id. If the defendant can show that the plaintiff failed to make a reasonable effort to seek comparable employment, the defendant is relieved of its burden to prove that suitable work existed. See Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 53-55 (2d Cir.1998).

[6] Fireman’s Fund contends that Shannon failed to satisfy his duty to mitigate by not pursuing a conversation he had *229 with Tim Guiltinan, [FN5] a manager at AIG, about a possible job opportunity. [FN6] The circumstances surrounding this conversation were as follows. After Shannon was notified of his termination, he immediately appealed the decision to Michael Miller, the Executive Vice President of Fireman’s Fund. See Trial Transcript (“Tr.”) at 208. After confirming to Shannon that the decision was final, Miller, on his own initiative, contacted Guiltinan, who in turn called Shannon and informed him that there might be a job for him at AIG. See id. at 209; 5/10/00 Deposition of William P. Shannon (“Pl.Dep.”) at 92. Although this conversation occurred after Shannon was notified of his termination, Shannon was still working at Fireman’s Fund at the time. [FN7] See Tr. at 208.

FN5. Many years earlier, Guiltinan and Shannon had been colleagues at William H. McGee & Co., Inc., which was acquired by Fireman’s Fund in April of 1999.

FN6. Defendant does not contend that Shannon failed to satisfy his duty to mitigate damages in any respect other than by virtue of his refusal to consider the possible job opportunity at AIG.

FN7. Shannon was notified of his termination on September 8, 1999, but continued to work at Fireman’s Fund until September 17, 1999. He remained on Fireman’s Fund’s payroll until October 1, 1999. See Tr. at 206.

During the conversation, Guiltinan told Shannon that he might be able to get him a job with an annual salary equal to what he was making at Fireman’s Fund. [FN8] See id. at 209-10; Pl. Dep. at 92. The specifics of the position were not discussed nor was an actual offer ever made. See Tr. at 210-11; Pl. Dep. at 92. Shannon told Guiltinan that he was not interested in working for AIG. See Tr. at 211; Pl. Dep. at 92. Shannon had previously been fired from AIG in 1979 [FN9] and had not heard one “good word” about AIG from any of his acquaintances employed there. See Tr. at 210-11, 263; Pl. Dep. at 92.

FN8. Shannon was making $75,000 at the time of his termination. See Tr. at 210.

FN9. Shannon was with an affiliate of AIG, Star Associates, when he was fired. See Transcript of 1/4/01 Hearing (“1/4/01 Tr.”) at 64. Star Associates is now defunct. See id.

Shannon’s decision not to follow up this conversation did not constitute a failure to satisfy his duty to mitigate. First, Guiltinan never offered a job to Shannon. The conversation was very general. According to Shannon, Guiltinan stated only that he “might have a job for [him].” Pl. Dep. at 92. By contrast, in Taylor, supra, the court limited a plaintiff’s back pay award because she was offered and in fact rejected a substantially similar position at a higher salary five months after her termination. See 1999 WL 124456, at *25-26 (emphasis added).

Second, defendant has not shown that the position that Guiltinan described was substantially similar to Shannon’s position at Fireman’s Fund. In order to be substantially similar, “the new position must afford [the plaintiff] virtually identical promotional opportunities, compensation, job responsibilities, working conditions and status as the former position.” Reilly v. Cisneros, 835 F.Supp. 96, 100 (W.D.N.Y.1993), aff’d, 44 F.3d 140 (2d Cir.1995). During their conversation, Guiltinan never provided Shannon with any details regarding the position at AIG. [FN10]

FN10. A description of the position cannot be found anywhere in the record.

Third, under the circumstances, Shannon’s decision not to follow up this conversation was not unreasonable. See Gueye v. Air Afrique, No. 92 Civ. 6625, 1995 WL 234711, at *9 (S.D.N.Y. Apr. 20, 1995) (“[T]he employer must establish that the *230 course of conduct plaintiff actually followed was so deficient as to constitute an unreasonable failure to seek employment.”) (internal quotations and citations omitted); Reilly, 835 F.Supp. at 101 (“The basic question is whether a plaintiff’s rejection was unreasonable.”). Although the conversation with Guiltinan occurred after he was given notice, Shannon was still working at Fireman’s Fund. Shannon testified that he “thought [he] was still employed [with Fireman’s Fund] when [he] got the call”, see Tr. at 208, and he still hoped that he would be retained by Fireman’s Fund. See Pl. Dep. at 93-94. Further, Shannon had previously been fired from AIG and did not initiate the conversation with Guiltinan. See id. at 92. Under the law, Shannon was not required to pursue a job opportunity that, assuming it came to fruition, he more than likely would have found to be “demeaning.” See Ford Motor, 458 U.S. at 231, 102 S.Ct. 3057.

In sum, Fireman’s Fund has failed to sustain its burden of proving that Shannon failed to mitigate. As a result, plaintiff is entitled to back pay. [FN11]

FN11. Whether or not Shannon is entitled to front pay is dependent on an evaluation of additional factors, see infra, Part I.C.

B. Back Pay

[7] When awarding back pay, a court should place a victim of unlawful discrimination in the position he would have been in absent the discrimination. See EEOC v. Joint Apprenticeship Comm. of the Joint Ind. Bd. of the Elec. Ind., 186 F.3d 110, 123 (2d Cir.1999); Thornley v. Penton Publ’g, Inc., 104 F.3d 26, 31 (2d Cir.1997). The Second Circuit has encouraged district judges “to fashion remedies designed to ensure that victims of age discrimination are made whole.” Whittlesey v. Union Carbide Corp., 742 F.2d 724, 727-28 (2d Cir.1984). A back pay award should “not [be] designed to punish an employer or provide a windfall to the employee.” Meling v. St. Francis Coll., 3 F.Supp.2d 267, 275 (E.D.N.Y.1998) (citation omitted).

With these principles in mind, I now turn to the issues in dispute: (1) whether Shannon is entitled to prejudgment interest; (2) whether the award should include unemployment insurance benefits; and (3) whether the award should include compensation for unused paid leave.

1. Prejudgment Interest

[8] An award of prejudgment interest is designed “to prevent an employer from attempting ‘to enjoy an interest-free loan for as long as it can delay paying out back wages.’ ” Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 145 (2d Cir.1993) (quoting Clarke v. Frank, 960 F.2d 1146, 1153-54 (2d Cir.1992)). While the decision to award prejudgment interest is left to the discretion of the district courts, the Second Circuit has stated that “[t]o the extent … that damages awarded to the plaintiff represent compensation for lost wages, it is ordinarily an abuse of discretion not to include pre-judgment interest.” Gierlinger v. Gleason, 160 F.3d 858, 873 (2d Cir.1998) (internal quotations and citation omitted). Fireman’s Fund does not contest Shannon’s entitlement to prejudgment interest on the portion of the back pay award representing lost wages.

[9][10] However, Fireman’s Fund asserts that prejudgment interest should not be awarded with respect to the fringe benefit component of the back pay award. The fringe benefit component consists of lost pension benefits, 401(k) benefits, health insurance benefits and basic life insurance. To determine whether an *231 award of prejudgment interest is appropriate, the Court must consider a variety of factors including “(i) the need to fully compensate the wronged party for actual damages suffered, (ii) considerations of fairness and the relative equities of the award, (iii) the remedial purpose of the statute involved, and/or (iv) such other general principles as are deemed relevant by the court.” Wickham Contracting Co., Inc., v. Local Union No. 3, 955 F.2d 831, 834 (2d Cir.1992) (citations omitted). In this case, adding prejudgment interest to the fringe benefit component of the back pay award would exceed the “make whole” objective of back pay. Thus, an award of prejudgment interest with respect to these benefits is inappropriate. See generally, Sharkey v. Lasmo (AUL Ltd.), 214 F.3d 371, 375-76 (2d Cir.2000) (specifically noting that the court should decide whether it is appropriate to award prejudgment interest to portions of a back pay award other than lost wages).

a. The Proper Rate

[11][12] What rate of prejudgment interest to apply is generally a matter committed to the court’s discretion. See Rao v. New York City Health and Hosps. Corp., 882 F.Supp. 321, 327 (S.D.N.Y.1995). Because this action was brought pursuant to State and City law, Shannon asserts that the 9% rate provided by N.Y. C.P.L.R. § 5004 should apply. [FN12] Section 5004 of the C.P.L.R. states: “Interest shall be at the rate of nine per centum, except where otherwise provided by statute.” New York courts have consistently applied the 9% rate to back pay awarded to plaintiffs in actions brought under the NYSHRL. See, e.g., New York State Div. of Human Rights v. Marcus Garvey Nursing Home, 249 A.D.2d 549, 672 N.Y.S.2d 130, 131 (1998); Burke v. Crosson, 213 A.D.2d 963, 623 N.Y.S.2d 969, 971 (1995); State Div. of Human Rights v. Gissha White Plains Corp., 107 A.D.2d 750, 484 N.Y.S.2d 603, 604 (1985); McIntyre v. Manhattan Ford, Lincoln-Mercury Inc., 176 Misc.2d 325, 672 N.Y.S.2d 230, 236-37 (1997). Fireman’s Fund has not objected to this rate. [FN13] See Miner v. City of Glens Falls, No. 89-CV-918, 1992 WL 349668, at *14 (N.D.N.Y. Nov. 12, 1992), aff’d, 999 F.2d 655 (2d Cir.1993) ( “[A]bsent an agreement to the contrary, the 9% rate [set by N.Y. C.P.L.R. § 5004] would appear to be appropriate.”); Malarkey v. Texaco, Inc., (S.D.N.Y 1992) (applying the New York statutory rate apparently without objection from the defendant). Accordingly, a 9% rate of prejudgment interest shall be applied to the lost wages component of Shannon’s back pay award.

FN12. Courts in this Circuit have consistently applied the United States fifty-two week treasury bill rate, referred to in 28 U.S.C. § 1961, to awards of back pay under Title VII. See, e.g., Ware v. ABB Air Preheater, Inc., No. 91-CV-37S, 1995 WL 574464, at *9-10 (W.D.N.Y.1995); Rao, 882 F.Supp. at 327, 329 (S.D.N.Y.1995); McIntosh v. Irving Trust Co., 873 F.Supp. 872, 882-84 (S.D.N.Y.1995); Frank v. Relin, 851 F.Supp. 87, 91 (W.D.N.Y.1994). However, unlike the plaintiffs in these cases, Shannon has not asserted a claim under federal law.

FN13. In its submissions to the Court Fireman’s Fund did not indicate what rate it deemed appropriate.

2. Unemployment Benefits

The Second Circuit has explicitly stated that the decision whether or not to deduct benefits received from a collateral source, such as unemployment benefits, from an award of back pay rests in the sound discretion of the district court. See Dailey, 108 F.3d at 460. However, the Second Circuit has addressed the issue in dicta, noting that although

*232 collateral source payments do represent an additional benefit to the plaintiff, we note a sister circuit’s view that “[a]s between the employer, whose action caused the discharge, and the employee, who may have experienced other noncompensable losses, it is fitting that the burden be placed on the employer.”

Promisel v. First Am. Artificial Flowers, Inc., 943 F.2d 251, 258 (2d Cir.1991) (quoting Maxfield v. Sinclair Int’l, 766 F.2d 788, 795 (3rd Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986)). A majority of the courts in this circuit have relied on this reasoning in not deducting unemployment benefits from back pay awards. See, e.g., Meling, 3 F.Supp.2d at 275-276; Perez v. Manhattan Jeep Eagle, No. 92 Civ. 9521, 1997 WL 76519, at *1-2 (S.D.N.Y. Feb. 24, 1997); Iannone v. Frederic R. Harris, Inc., 941 F.Supp. 403, 411-413 (S.D.N.Y.1996); Azar v. TGI Friday’s, Inc., 945 F.Supp. 485, 500-01 (E.D.N.Y.1996); Brooks v. Fonda-Fultonville Cent. Sch. Dist., 938 F.Supp. 1094, 1109-10 (N.D.N.Y.1996).

[13] Fireman’s Fund argues that Shannon will receive a “windfall” if the Court does not offset the back pay award by the amount of unemployment benefits Shannon received after his termination. However, because unemployment benefits are paid by a state agency rather than by Fireman’s Fund directly, either Shannon or Fireman’s fund will receive this “windfall” no matter how the benefits are treated. [FN14] In short, fairness dictates that the “windfall” be awarded to the victim of the discrimination rather than the perpetrator. See Meling, 3 F.Supp.2d at 275; Iannone, 941 F.Supp. at 412-413. Accordingly, the unemployment benefits received by Shannon shall not be deducted from his back pay award.

FN14. Fireman’s Fund also argues that because it contributes to the general unemployment insurance trust fund from which unemployment benefits are paid such benefits cannot be considered to derive from a “truly” collateral source. This argument is unavailing. See NLRB v. Gullett Gin Co., 340 U.S. 361, 364, 71 S.Ct. 337, 95 L.Ed. 337 (1951) (in rejecting the argument that because the employer contributed to the state’s unemployment compensation fund the unemployment compensation amounted to a direct rather than a collateral benefit, the Court noted that “payments to the employees were not made to discharge any liability or obligation of [the employer], but to carry out a policy of social betterment for the benefit of the entire state.”). In both Stratton v. Dep’t for the Aging, 922 F.Supp. 857, 866 (S.D.N.Y.1996) and Williams v. Sec’y of Navy, 853 F.Supp. 66, 72 (E.D.N.Y.1994), cases where the courts deducted unemployment benefits from back pay awards, the defendants, both public agencies, effectively paid the unemployment compensation. That is not the case here.

3. Paid Leave

[14] Employees at Fireman’s Fund accrue a certain amount of paid leave each year. However, employees are not allowed to carry over any unused time into the following year and Fireman’s Fund does not compensate an employee for time not used in a given year. Therefore, the most Shannon lost was the value of the paid leave to which he would have been entitled as an employee at Fireman’s Fund, but which he was not entitled to at his subsequent employment. See Bonura v. Chase Manhattan Bank, N.A., 629 F.Supp. 353, 358 (S.D.N.Y.1986); see also Rivera v. Baccarat, Inc., 34 F.Supp.2d 870, 876 (E.D.N.Y.1999) (calculating the lost leave time by taking the difference between the paid leave to which plaintiff would have been entitled at her old job and the amount she received at her subsequent jobs and multiplying the difference by the value of each day of leave). Because Shannon has not been employed since his termination at Fireman’s Fund, *233 he has not established a compensable loss with respect to paid leave.

4. Calculation

Using the figures provided by the parties and in accordance with the above rulings, Shannon’s back pay award shall consist of:

1. Lost wages: $101,916.77
2. Pension: $ 17,132.99
3. 401(K): $ 5,264.10
4. Health Insurance Benefits: $ 952.43
5. Basic Life Insurance Benefits: $ 212.00

TOTAL: $125,478.29

Offset by:
1. Severance Payment: $ 57,847.20

TOTAL BACK
PAY AWARD: $ 67,631.09
———–

C. Front Pay [FN15]

FN15. For the same reasons set forth in Parts I.B.3, supra, Shannon’s front pay award shall not include damages for unused paid leave.

[15][16] An award of front pay is exclusively within a court’s discretion. See Banks v. Travelers Cos., 180 F.3d 358, 364 (2d Cir.1999); Dominic v. Consolidated Edison Co., 822 F.2d 1249, 1257–58 (2d Cir.1987). In deciding whether an award of front pay is appropriate, a court should consider (1) whether “reinstatement [is] either impossible or impracticable” (2) whether the plaintiff has a reasonable prospect of obtaining comparable employment; and (3) whether the calculation of front pay would involve “undue speculation.” Whittlesey, 742 F.2d at 729; see also Padilla v. Metro-North Commuter R.R., 92 F.3d 117, 125-26 (2d Cir.1996) (“A front pay award serves a necessary role in making victims of discrimination whole in cases where the factfinder can reasonably predict that the plaintiff has no reasonable prospect of obtaining comparable alternative employment.”) (internal quotations and citation omitted); Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1182 (2d Cir.1996) (in order to qualify for front pay a plaintiff must have been diligent in seeking comparable employment).

[17] Fireman’s Fund acknowledges that reinstatement is not an option in this case. Fireman’s Fund argues that front pay is unwarranted because Shannon has not shown that he has no reasonable prospect of obtaining comparable employment. I disagree.

Shannon has testified to the steps he has and continues to take in order to find a job. See 1/4/01 Tr. at 45-46. Shannon has attended job fairs, talked to employment agencies and recruiting firms, and sent numerous letters to companies via the internet. See id. Other than the decision not to follow up the conversation with Guiltinan, Fireman’s Fund does not dispute that Shannon has been diligent in his job search. Despite Shannon’s efforts and some words of encouragement from the recruiting firms, Shannon has been unable to find a job. In light of this and the fact that Shannon is sixty-three years old, the prospect of Shannon finding a job comparable to the one he had at Fireman’s Fund is less than likely. Cf. Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir.), cert. denied, 530 U.S. 1261, 120 S.Ct. 2718, 147 L.Ed.2d 983 (2000) (noting that it is important for a court reviewing an ADEA case to bear in mind that at the time of the ADEA’s enactment Congress found that older workers were disadvantaged in retaining employment and regaining it after being discharged). Accordingly, an award of front pay is appropriate in this case.

*234 1. The Extent of the Front Pay Award

Shannon seeks an award of front pay through the age of seventy. Fireman’s Fund argues that any award of front pay should extend only until Shannon reaches age sixty-five. I agree with Fireman’s Fund.

[18] Although Shannon has testified that he intended to work at Fireman’s Fund until age seventy, see 1/4/01 Tr. at 43, prior to his termination Shannon had given no thought as to when he would retire. See id. at 42. Immediately upon his termination, however, Shannon told Edward Helfers, Shannon’s manager, and Miller, that he wanted to work until he was at least sixty-five years old. See id. at 56-57. At the time of the termination, Shannon also indicated to his sister that all he wanted was to work three more years so he could retire comfortably. [FN16] See id. at 58.

FN16. Shannon was terminated a couple of months after he turned sixty-two.

Even if Shannon intended to work until he was seventy, which is not at all clear from the record, any front pay award extending past age sixty-five would be unduly speculative. See Rivera, 34 F.Supp.2d at 878 (“Under no circumstances can [an] award [of front pay] be based on undue speculation.”). Further, Shannon becomes eligible for his full pension when he turns sixty-five. See Padilla, 92 F.3d at 126 (affirming an award of front pay award through the time plaintiff became eligible to receive his full pension); Buckley v. Reynolds Metals Co., 690 F.Supp. 211, 216 (S.D.N.Y.1988) (awarding front pay until plaintiff “reached the regular retirement age of sixty-five”). Accordingly, an award of front pay through age sixty-five is appropriate in this case.

2. Life Insurance

[19] Fireman’s Fund provides each of its employees with a $50,000 group term life insurance policy through the Hartford Insurance Company (“Hartford”). After his termination, Shannon secured a continuation of that policy for $400 a year. See Transcript of 1/25/01 (“1/25/01 Tr.”) at 3. On July 7, 2001, Shannon will no longer be eligible for this term life policy. See id. Shannon asserts that despite searching for a comparable replacement insurance, the only life insurance policy he has been able to obtain is a $50,000 whole life insurance policy from Hartford. This policy has an annual premium of $3,147.22. Shannon requests that this Court grant him damages for lost life insurance benefits equal to the amount of the annual premium for this policy times the number of years the Court determines he would have worked had he not been unlawfully terminated. [FN17]

FN17. The Court has determined that Shannon would have worked until age sixty-five.

Shannon’s assertion that he could not obtain a comparable term life policy is not based on any evidence in the record. While Shannon argues that his heart condition prevents him from passing the physicals required by those companies offering individual term life policies, see 1/25/01 Tr. at 3-5, he has failed to submit any evidence to this effect. [FN18] Therefore, Shannon’s request for lost life insurance benefits is denied.

FN18. In addition, the whole life policy is more valuable than the term life policy offered by Fireman’s Fund. Unlike the term life policy, the whole life policy has a cash value which may be redeemed at any time. See 1/25/01 Tr. at 4. Accordingly, awarding Shannon the damages he seeks would go beyond making him “whole.”

*235 3. Social Security Contributions

[20][21] Lost social security benefits incurred as a result of an unlawful termination may be included in a front pay award when the damages are proven with a reasonable certainty. See Miner, 1992 WL 349668, at *9-10. During a telephone conference held on February 16, 2001, the Court directed Shannon to submit calculations delineating the amount of lost social security benefits he incurred as a result of his unlawful termination. Upon review of the calculations, I find that Shannon is entitled to $3,533.70 in lost social security benefits.

Shannon provided the Court with calculations of his current estimated monthly retirement benefits, and his estimated monthly retirement benefits if he had worked at Fireman’s Fund until age sixty-five. See 2/22/01 Letter and Spreadsheets from Michael Siskin, Attorney for the Plaintiff (“2/22/01 letter”). These calculations were done in accordance with a worksheet published by the Social Security Administration. See id.; see also “How Your Retirement Benefit is Figured”, attached as Ex. B to Plaintiff’s 1/17/01 Letter Brief Regarding Damages. The difference in the monthly benefits was then multiplied by the number of months in Shannon’s future life expectancy, as set forth in New York’s Pattern Jury Instructions. See 2/22/01 Letter; see also 1 N.Y. PJI3d 1402-06, Civil, App. A (2001). The total loss of monthly benefits was then reduced to present value. See 2/22/01 Letter.

Summary Chart for Shannon’s Lost Social Security Benefits:

Estimated

Current Monthly Life

Estimated Benefit Difference Expectancy Present

Monthly (Retired or Loss Per For a 63-64 Value For

Benefit at 65) Month Male Total Loss Total Loss

$1,507.41 $1,535.82 $28.41 17.3 or 191 $5,426.31 $3,533.70

months

4. Calculation [FN19]

FN19. All amounts have been reduced to present value. See Stip. at 3.

Using the figures provided by the parties and in accordance with the above rulings, Shannon’s front pay award shall consist of:

1. Wages: $114,003.35
2. Pension: $ 43,521.41
3. 401(K): $ 6,840.20
4. Health Insurance Benefits: $ 4,756.15
5. Lost Social Security Benefits: $ 3,533.70

TOTAL FRONT
PAY AWARD: $172,654.81
———–

II. CONCLUSION

Based on the foregoing, Shannon is entitled to $240,285.90 in back and front pay. The parties shall submit a proposed judgment on notice within five business days of the date of this Memorandum Opinion and Order. [FN20]

FN20. On February 2, 2001, Fireman’s Fund moved for an order pursuant to Fed.R.Civ.P. 62(b), to stay any proceedings to enforce the judgment in this matter. While Shannon does not oppose such a stay, Shannon requests that Fireman’s Fund be required to post a bond as a condition of the stay. See Plaintiff’s 2/9/01 Letter Response to Defendant’s Motion to Stay Execution of the Judgment at 1. The parties shall meet and confer as to the amount of a bond. If they cannot agree, they may seek the assistance of the Court.

SO ORDERED.

136 F.Supp.2d 225, 85 Fair Empl.Prac.Cas. (BNA) 765

Motions, Pleadings and Filings (Back to top)

. 1:00CV01528 (Docket) (Feb. 28, 2000)

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