Opinion
94-CV-0915E(Sc).
November 8, 2000
Harvey P. Sanders, Eq., For Plaintiff.
Kevin M. Kearney, Esq., For Defendant.
MEMORANDUM AND ORDER
Plaintiff Kohlbrenner filed suit against her former employer Victor Balata Belting Co. Inc., d/b/a Buffalo Weaving and Belting Company ("BWB") for gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the New York Human Rights Law, N.Y Exec. Law § 296. Familiarity with the underlying facts is presumed. Kohlbrenner was to be laid off from her regular position as a Weaver and, pursuant to the union contract then in effect, attempted to bump the only employee with less seniority than herself — the calendar helper, Jerome Pilarski — by qualifying for his position. Kohlbrenner was determined by BWB to have failed to qualify for the calendar helper position and was laid off. This lawsuit ensued. After trial, the jury found that Kohlbrenner had been considered as having failed to qualify for the calendar helper position — fired therefrom — due to intentional gender discrimination by BWB and that she had thereafter mitigated her damages. However, the jury also found that Kohlbrenner had not proven any damages beyond her lost wages and the other emoluments of her employment and consequently it did not award her any compensatory damages, leaving this Court to determine and quantify any entitlement to the equitable remedies of front pay and back pay pursuant to 42 U.S.C. § 2000e-5(g). According to the jury's finding, Kohlbrenner's employment at BWB was illegally terminated January 28, 1994. Kohlbrenner subsequently filed for Social Security disability benefits, stating that she had become permanently disabled and unable to work as of February 11, 1994. Kearney Aff. Ex. P (Kohlbrenner Dep. at 18-19). The Social Security Administration awarded her disability benefits on November 22, 1994 finding that she had become disabled February 11, 1994. Kearney Aff. Ex. P (Social Security Administration Award Letter). There is therefore a period of ten business days between the date Kohlbrenner ceased being compensated by BWB and the date she became permanently disabled and unable to work.
Prior to instituting this action, Kohlbrenner filed for bankruptcy. Mark J. Schlant was appointed by the Bankruptcy Court as Trustee for Kohlbrenner. Schlant is therefore the named plaintiff although Kohlbrenner remains the real party in interest.
The facts are more fully recounted in the Memorandum and Order dated February 11, 1997 which granted in part and denied in part BWB's Motion for Summary Judgment.
The Social Security disability payments were awarded from and after August 1994 because disability must have continued for five months before payments begin. Kearney Aff. Ex. P (Social Security Administration Award Letter).
As a result of her application for disability benefits, Kohlbrenner received $2,556 from the Social Security Administration in 1994 and has been receiving $639 per month (plus applicable cost of living increases) thereafter. Further, she has been receiving disability benefits under her BWB pension in the amount of $178.20 per month from August 15, 1994 to date. Kohlbrenner received $3,264 in unemployment compensation from February 13, 1994 to September 4, 1994 although the Social Security Administration later found that she had been permanently disabled and unable to work during this period. She also received unemployment compensation in the amount of $326 for the period between her last pay check from BWB and the date she became disabled.
The equitable remedy of back pay is designed to "completely redress the economic injury the plaintiff has suffered as a result of discrimination" by providing compensation for lost wages, anticipated raises and fringe benefits from the date of discharge until the date of judgment. Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 144-145 (2d Cir. 1993). However, because a plaintiff is only entitled to be compensated for injuries suffered as a direct result of the discrimination, back pay is not available for any period during which the plaintiff was disabled. Id. at 145. The reasoning underlying this rule is that a person would not be entitled to salary while disabled and thus wages lost during such period are not the result of the discrimination. Ibid. "The remedy in a discriminatory discharge case is intended to compensate a plaintiff only for losses suffered as a result of defendant's discrimination, and does not extend to granting back pay for a period when a plaintiff would have been unable, due to an intervening disability, to continue employment." Thornley v. Penton Publishing Inc., 104 F.3d 26, 31 (2d Cir. 1997). The rule in the Second Circuit is clear — viz., no back pay is available to a plaintiff during a period of disability.
There was and is no evidence of any loss by Kohlbrenner of an anticipated raise or a fringe benefit in the period between her discharge and disability.
Internal citations and quotation marks omitted.
Kohlbrenner contends that this rule does not apply to her because, although she has been and is disabled, she would not have become disabled but for the discrimination. "There is no evidence in the record that shows Ms. Kohlbrenner would ever have become disabled if she had continued working. Ms. Kohlbrenner's disability is not related to some physical injury she suffered that was unrelated to work ***." Pl.'s Mem. on Lost Wages at 6. The source and nature of Kohlbrenner's disability is her pre-existing Crohn's disease, which she alleges was aggravated by the discriminatory discharge, and depression caused by such discharge. Kearney Aff. Ex. P (Kohlbrenner Dep. at 18-19). Kohlbrenner testified at trial about her ailments and such evidence was available for consideration by the jury in determining compensatory damages. However, in not awarding Kohlbrenner any compensatory damages, the jury necessarily found that she had not proven that the discrimination caused her to become disabled. The undersigned therefore holds that Kohlbrenner is entitled to back pay for the period from January 28, 1994 — the day her employment was unlawfully terminated by BWB — through February 11, 1994 — the day she became permanently disabled. This period includes a total of ten business days for which Kohlbrenner should have been compensated. At the time she was terminated, Kohlbrenner was being paid at the rate of $9.86 per hour. Pl.'s Trial Ex. 44 (Pay statement ending 1/30/94). Her compensation will be based upon the number of hours worked during this period by Pilarski, because he took her place as calendar helper following her termination. Pilarski worked a total of 83 hours over these ten days. Pl.'s Trial Exs. 110-119 (Calender Daily Production Record). Pilarski worked 40.5 hours during the week of January 31 to February 4 and 42.5 hours during the week of February 7, 1994 to February 11, 1994. Kohlbrenner is thus entitled to be compensated for 80 hours at the rate of 9.85 per hour and 3 hours at the rate of $14.78, because any hours in excess of 40 in a single work week are compensated at time and a half pursuant to the union agreement then in effect. The total award for back pay is therefore $832.34.
Kohlbrenner will not be awarded compensation to cover health care benefits, because pursuant to ¶ 8.14 of the contract between BWB and the United Rubber, Cork, Linoleum and Plastic Workers of America, Local 246, BWB continues to pay health care benefits for an employee removed from the active payroll through the 30th calendar day following her or his removal. Kearney Aff. Ex. C. Pursuant to this agreement, BWB would have paid its share of Kohlbrenner's health care premiums during the period between her discharge and the onset of her disability. BWB compensated Kohlbrenner for her remaining vacation time upon her termination, so the Court need not take such into account and there were no holidays during this period. Pl.'s Trial Ex. 44 (Pay statements ending 9/25/94).
BWB argues that the award of back pay should be offset by the $326 in unemployment compensation that Kohlbrenner received for the period between her termination and the onset of her disability. Stravino Letter of June 15, 2000. The rule in the Second Circuit, is that "the decision whether or not to deduct unemployment benefits from a Title VII back pay award rests in the sound discretion of the district court." Dailey v. Societe Generale, 108 F.3d 451, 460 (2d Cir. 1997). Insofar as Kohlbrenner was not collecting both disability and unemployment during the period for which back pay is being awarded, the undersigned, in his discretion will not deduct the $326 in unemployment compensation received by Kohlbrenner from her award of back pay. BWB further argues that the $3,264 in unemployment compensation received by Kohlbrenner while she was disabled, should be deducted from her back pay. It states that the equitable remedy of back pay should be negated entirely because of Kohlbrenner's "unclean hands, and her fraudulent conduct" in receiving both disability and unemployment during the period from February 13, 1994 until September 4, 1994. Def.'s Reply Mem. on Back Pay at 1, 5-6. Such is not — at least now — before this Court and, pursuant to his discretion, the undersigned will not deduct the $3,264 in unemployment benefits received by Kohlbrenner from her back pay award so as to reduce it to zero, in that the back pay awarded does not cover such period. Any illegal or improper "double-dipping" by Kohlbrenner in such regard is not before this Court.
Kohlbrenner also seeks front pay up until she attains the age of 65 — a period of twenty years — even though she is completely disabled and unable to work. The decision to award the equitable remedy of front pay lies within the discretion of the court. Greenbaum v. Svenska Handelsbanken, NY, 979 F. Supp. 973, 987 (S.D.N.Y. 1997); Saulpaugh, at 145. A plaintiff cannot collect front pay when she is disabled and unable to work, because front pay is an alternative to reinstatement and therefore is not available to one who cannot work. Hatter v. Fulton, No. 92 CIV 6065 (WK), 1997 WL 411623, at *6 (S.D.N.Y July 21, 1997). An award of front pay is made when reinstatement is neither possible nor practicable and the undisabled plaintiff has no "reasonable prospect of obtaining comparable alternate employment". Bonura v. Chase Manhattan Bank, N.A., 629 F. Supp. 353, 362 (S.D.N Y 1986). Kohlbrenner is not entitled to an award of front pay because the Court's discretion to award this equitable remedy was nullified February 11, 1994 when Kohlbrenner became and thereafter continued to be totally disabled. As the remedies of bad pay and front pay are designed to put the plaintiff in the position she would have been in had the unlawful discrimination not occurred, the Court holds that an award of back pay in the amount of $832.34 with interest, to compensate Kohlbrenner for the ten days of lost work between the date she was unlawfully discharged and the date her compensation by BWB would have ceased due to her disability, will put her in the position she would have been in if not for the unlawful discriminatory discharge. Kohlbrenner argues that the jury took the fact that the Court would determine back pay and front pay into account in determining compensatory damages and would have awarded her compensatory damages had it been aware that the Court would award ten days of back pay and no front pay. Pl.'s Mem. on Lost Wages at 5. This argument is purely speculative and, had the jury done such, it would not have been applying the law but rather substituting its judgment for the Court's regarding the equitable remedies of back pay and front pay. The jury determined that Kohlbrenner was not entitled to any compensatory damages and such determination is separate and distinct from the Court's determination of back pay and front pay. This argument deserves no further comment.
Finally, the Court is required to address the issue of pre-judgment interest on the back pay award. Title VII "authorizes a district court to grant pre-judgment interest on a back pay award" and, although the award of pre-judgment interest is discretionary, it is "ordinarily an abuse of discretion not to include pre-judgment interest in a back-pay award." Clarke v. Frank, 960 F.2d 1146, 1153-1154 (2d Cir. 1992). The interest on back pay must be compounded annually in order to achieve the objective of making the plaintiff whole. Saulpaugh, at 145; Gierlinger v. Gleason, No. 89-CV-0686E(F), 1999 WL 222604, at *2 (W.D.N.Y. Apr. 2, 1999). The Court has broad discretion in determining how to compute pre-judgment interest. Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 56 (2d Cir. 1998). Kohlbrenner asserts that the interest should be calculated pursuant to 26 U.S.C. § 6621 et seq. and be compounded monthly — Pl.'s Mem. on Lost Wages at 1 —; however, this provision is applicable to the calculation of interest on sums resulting from the overpayment or underpayment of federal income tax. The Court will therefore determine the rate of interest based on the average rate for Treasury bills during the relevant period pursuant to 28 U.S.C. § 1961 which is frequently used by courts in this Circuit to calculate pre-judgment interest. Gierlinger, at 2. The average rate of Treasury bills over the period from February 11, 1994 when Kohlbrenner's disability cut off her entitlement to back pay, to date is 5.52%. The Court has awarded Kohlbrenner $832.34 in back pay, therefore the applicable interest on this amount over the relevant period, compounded annually is $316.64.
Internal citations and quotations omitted.
Accordingly it is hereby ORDERED that BWB shall pay Kohlbrenner $1,148.98 which constitutes back pay in the amount of $832.34 combined with pre-judgment interest in the amount of $316.64.