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Reichman v. Bonsignore

decided: May 11, 1987.

MARJORIE REICHMAN, PLAINTIFF-APPELLEE,
v.
BONSIGNORE, BRIGNATI & MAZZOTTA P.C., BONSIGNORE, BRIGNATI & MAZZOTTA P.C. PENSION PLAN, DEFENDANTS-APPELLANTS



Appeal by Bonsignore, Brignati & Mazzotta P.C. and Bonsignore, Brignati & Mazzotta P.C. Pension Plan from judgment of the United States District Court for the Southern District of New York, Robert J. Ward, J., finding they had violated the ADEA and ERISA in discharging Marjorie Reichman, Appellants challenge both the basis and the scope of the judgment. Affirmed.

Author: Feinberg

Before: FEINBERG, Chief Judge, MESKILL and ALTIMARI, Circuit Judges.

FEINBERG, Chief Judge:

Bonsignore, Brignati & Mazzotta P.C. (BBM) and Bonsignore, Brignati & Mazzotta P.C. Pension Plan (the Pension Plan) appeal from a judgment of the United States District Court for the Southern District of New York, Robert J. Ward, J., finding that BBM, by firing plaintiff-appellee Marjorie Reichman, had violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (ADEA), and the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq. (ERISA). Appellants argue that the district court committed reversible error by allowing prejudicial evidence on the ADEA and ERISA claims and that the evidence was insufficient to support judgment on the latter. Appellants also claim that, in any event, the district court erred in awarding liquidated damages under the ADEA,, that the imposition of liquidated damages precluded the award of prejudgment interest and that the grant of attorney's fees to plaintiff was excessive. We affirm.

I. Background

In August 1974, BBM, an architectural firm, hired Reichman as a bookkeeper. Shortly after she started working at BBM, Reichman, who was then 54 years old, began participating in the Pension Plan. During the ensuing years, Reichman was promoted to comptroller; her duties included handling and supervising a variety of bookkeeping and accounting functions. In September 1984, ten months before Reichman's pension rights would have fully vested, BBM fired her. Upon her discharge, Reichman received approximately $43,500 in a lump sum payment, the amount of her vested pension benefits. However, almost $60,000 in unvested pension benefits, which Reichman would have been entitled to had she remained at BBM for another ten months, remained in the Pension Plan.

Reichman brought suit against BBM and the Pension Plan, contending that BBM discharged her in order to prevent her pension benefits from fully vesting, in violation of both ERISA and the ADEA. The ADEA claim was tried before a jury an the ERISA claim to the court. Appellants contended that Reichman's discharge was due to inadequate job performance. The jury and the court rejected appellants' proffered explanation for the discharge as pretextual and found for Reichman on her claims. The jury awarded Reichman compensatory damages of $85,280 for lost wages and benefits on the ADEA claim and the court allowed the same amount as damages in the alternative on the ERISA claim. Since the jury also found that appellants' violation of the ADEA was willful, the court awarded an additional $85,280 as liquidated damages on the ADEA claim. The court also awarded $10,780.75 in prejudgment interest on these awards and $165,522.59 in attorney's fees and costs.

Appellants attack both the ADEA and the ERISA verdicts as being against the weight of the evidence. They also contend that Reichman failed to show a willful violation of the ADEA, but argue that if the liquidated damages award is affirmed an award of prejudgment interest is precluded. Finally, appellants argue that the award of attorney's fees an costs is excessive.

II. Discussion

A. Sufficiency of the Evidence. Appellants contend that the record does not support Reichman's claim that BBM fired her in order to save about $60,000 in pension costs. they argue that the court abused its discretion under Rule 403 of the Federal Rules of Evidence by allowing the jury to consider on the ADEA claim irrelevant evidence and arguments about Reichman's pension. Appellants claim that the resulting prejudice requires a new trial. By the same logic, appellants argue on the ERISA claim that the court's finding that Reichman was fired "to prevent her from attaining the fully vested pension benefits" was clearly erroneous and that the other evidence was insufficient to show an ERISA violation. Appellants' contentions on these points require little discussion since there clearly was evidence that Reichman's firing resulted in roughly $60,000 in savings, sufficient to support findings by the jury and the court of an unlawful motivation for Reichman's discharge.

At trial, Bernard Goldberg, who was responsible for calculating BBM's annual pension contributions, testified as appellants' expert witness. Goldberg testified that had Reichman not been terminated by BBM, her vested pension benefit would have increased by almost $60,000 when she reached age 65, ten months after the date she was fired. On cross-examination, Goldberg admitted that the funding for this $60,000, which had already been paid into the Pension Plan, remained in the Pension Plan and could be used to defray the costs of the future funding requirements of the pensions of other BBM employees. Although Goldberg testified that BBM's pension contribution would be only $6,034 less in the first year after Reichman's discharge than it otherwise would have been and hat the amount of savings in future years could not be currently determined, his testimony also supported the conclusion that the Pension Plan was $60,000 richer because of Reichman's discharge.

Appellants argue that there was no real savings from Reichman's discharge because the $60,000 that would have gone to Reichman had to be used to fund the pension plans of the two employees hired to replace her. If Reichman had retired in ten months, however, BBM would still have had to fund the pensions of her replacements, in addition to paying Reichman the $60,000. The jury certainly could have concluded that appellants anticipated Reichman would retire when her pension became fully vested; indeed, it only awarded Reichman salary and health benefits for the period until she turned 65. Thus, there was ample basis for the triers of fact to determine that appellants fired Reichman to save money from her pension. Accordingly, we will not disturb the determination of the jury or the judge on the ADEA and the ERISA claims.

B. Liquidated Damages. The ADEA mandates "liquidated," or double, damages for a prevailing plaintiff in the case of "willful violations" of the statute. 29 U.S.C. § 626(b). As part of a special verdict, the jury found that "defendants acted wilfully, that is, that . . . the defendants deliberately, intentionally and knowingly discharged the plaintiff because of her age, and knew that, or showed reckless disregard for whether, such conduct was unlawful." The district court, finding this verdict "amply supported" by the evidence, added $85,280 as liquidated damages to the $85,280 compensatory damages award.

Appellants now argue for the first time that the evidence was insufficient to support a finding of willfulness because there was no direct evidence that the principals of BBM knew they were violating the ADEA. At trial, however, appellants did not seek a directed verdict on the specific issue of willfulness, nor did they object to either the submission of the willfulness issue to the jury or to the form of the special interrogatory concerning willfulness. Under these circumstances, where the specific contention was never called to the district court's attention, "appellate review of the sufficiency of the evidence on that point is inappropriate." Hegger v. Green, 646 F.2d 22, 27 (2d Cir. 1981) (citations ...


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