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Dominic v. Consolidated Edison Co.

decided: June 29, 1987.


Appeal from a judgment of the United States District Court for the Southern District of New York (John M. Walker, Judge), entered after a jury trial, finding defendant liable for willful violation of the Age Discrimination in Employment Act ("ADEA") and awarding plaintiff back pay, liquidated damages, front pay, and attorneys' fees and costs. Cross-appeal challenging the district court's front-pay award, refusal to award liquidated damages on the front pay, and limitation of attorneys' fees to the lodestar amount. Affirmed.

Author: Winter

WINTER, Circuit Judge:

On June 17, 1983, plaintiff Joseph Dominic, then age forty-nine, was fired from his job with defendant consolidated Edison Company of New York ("Con Edison"). Dominic brought this action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. the jury rejected Dominic's claim that his discharge was the product of age discrimination but found that Con Edison had willfully fired Dominic in retaliation for his earlier complaints of age discrimination. Con Edison now appeals Judge Walkers' denial of its motion for a directed verdict and for judgment notwithstanding the verdict or a new trial and from his final judgment awarding damages of $169,804.00, and attorney's fees and costs in the amount of $121,076.25 and $7,919.44, respectively. Dominic cross-appeals, claiming that Judge Walker erred when he reduced the jury's award of front pay, refused to double the front-pay award as liquidated damages for Con Edison's willful violation and limited Dominic's attorneys' fees to the lodestar amount. We affirm.


The primary claim on this appeal is the sufficiency of the evidence underlying the jury's finding of retaliatory discharge. We must of course view that evidence in the light most favorable to the plaintiff. See, e.g., Konik v. Champlain Valley Physicians Hosp. Medical Center, 733 F.2d 1007, 1013 (2d Cir.), cert. denied, 469 U.S. 884, 83 L. Ed. 2d 190, 105 S. Ct. 253 (1984).

Dominic's career in Con Edison's management began in 1971 when he became an instructor in an in-house training program. By 1976, he had risen to training Director and was in charge of the Training Center for Con Edison's Power Generation Department. In that capacity, he oversaw seventy course offerings, managed the development of new courses, and supervised between twenty and thirty employees, primarily instructors. During his rise to Training Director, and until early 1981, Dominic received substantial merit raises and excellent performance ratings.

In April 1981, Dominic was informed that, as a result of a company reorganization, the position of Training Director was to be merged into a new position called Manager of Training and Safety. Despite a promise by Dominic's supervisor, James Fry, that Dominic would be promoted to the new position, it was filed in May 1981 by John McNulty. McNulty was seven years older than Dominic, and his appointment as Manager of Training and Safety constituted a demotion from his former position as Plant Manager at Con Edison's East River power station. Simultaneously, Dominic was demoted to the newly created position of Management Training Coordinator and reduced in grade level from twelve to eleven but with not decrease in pay. McNulty thereby became Dominic's superior. These changes were implemented by Daryl Wall, who had become Con Edison's Director of Services for the Power Generation Department in early 1981.

In January 1982, McNulty was apparently disgruntled over his demotion and left Con Edison. Dominic expressed interest in McNulty's former position but was again passed over, this time for Henry Howe. Dominic was forty-eight years old while Howe was thirty-five. Because Dominic possessed more experience than Howe and believed that he deserved the promotion, he called Fry to request a meeting. At the meeting with Fry and Wall on March 5, 1982, Dominic expressed his disappointment at Howe's selection and his belief that his statutory rights under the ADEA had been violated. Wall responded by criticizing Dominic's performance. Dominic then requested to be transferred from Wall's chain of authority, but Wall denied his request.

Management employees at Con Edison are periodically rated by their supervisors in "performance reviews." The employees receive an overall "performance appraisal" that can range from a high of "T," descending through "E," "S," and "F," to a low of "U." In January 1982, Dominic's supervisor, then McNulty, gave Dominic an "E" rating (performance consistently exceeds requirements). During the previous November, however, Fry and McNulty had discussed Dominic's rating. At that time, McNulty had proposed an "E" rating, but Fry believed that only an "S" (performance fully satisfactory and exceeds requirements in some areas) was deserved. Over McNulty's disagreement, an "S" rating was authorized on the company's official December 1981 salary sheets. In March 1982, after the March 5 meeting, Fry learned for the first time that McNulty had rated Dominic an "E" on the performance review instead of the authorized "S" as listed on the salary sheet. Fry than changed Dominic's performance review rating to an "S." Fry also raised the rating that Howe, who had been promoted over Dominic, had received from McNulty in November 1981 from an "S" to an "E." These retroactive changes departed from Con Edison's usual procedures.

Dominic was not informed that his rating had been altered. He discovered the alteration only when his performance reviews were provided to him in late May pursuant to a request that he had made at the March 5 meeting. Dominic wrote to Wall on June 3, 1982, protesting the retroactive change in his rating and again objecting to what he perceived as age discrimination. Later in June, Dominic was transferred from the Training Center to Con Edison's corporate headquarters at Irving Place, where he came under Wall's direct personal supervision. The floor to which Dominic was assigned -- the fourteenth floor -- was occupied by fifty management employees of the Power Generation Department and was undergoing renovation when Dominic arrived. Because of the renovation, Dominic was required to change his work location several times and to endure substandard working conditions. He was eventually assigned to a new modular office on that floor.

At Irving Place, Dominic was assigned certain relatively ministerial tasks, such as the preparation of training schedules, that had previously been performed by clerical personnel. Dominic also continued to be entrusted with most of his former managerial responsibilities. Wall became responsible for reviewing Dominic's performance after his transfer to Irving Place. On January 25, 1983, she gave Dominic a performance review of "F" (meets minimum requirements but clearly requires improvement). Her report recited nine specific deficiencies in Dominic's performance and discounted the difficult working conditions that Dominic had faced, commenting that "most of the people in the [Irving Place] office ha[d] gone through similar inconveniences." Wall's report directed Dominic to develop both a method of organizing his work to meet deadlines and a "very specific results required list." Finally, the report provided that Dominic would "be rerated in 90 days, based on the agree upon results required list." Finally, the report provided that Dominic would "be rerated in 90 days, based on the agreed upon results required." At a meeting on January 25, 1983, Dominic protested this negative review. Wall told Dominic that she considered him on the borderline between an "F" and a "U" (generally weak, does not meet minimum requirements) but was rating him an "F" in the hope that he would improve his performance.

Shortly thereafter, Dominic told Patricia Conroy, personnel supervisor for the Power Generation Department and Wall's assistant, that he planned to file formal age discrimination charges. On March 17, 1983, he did in fact file a complaint with the New York State Division of Human Rights. The next day, fifty-two rather than the specified ninety days after the January 25 meeting, Wall confronted Dominic with a new performance review. This review concluded that Dominic had "made no progress in developing a plan or schedule for any of his projects" and had "not responded to the requests for improvement defined in the January Performance Review." He was given a "U" rating, the lowest possible, and placed on formal ninety-day notice that his performance was unacceptable. Dominic apparently had developed a "results required list" and attempted to present it to Wall prior to March 18, but Wall had cancelled several appointments with him. As a result, Dominic had failed to fulfill the "agreed upon" component required by the January 25 performance review.

A review of Dominic's progress in meeting "results required" for the period after the March 18 meeting reveals that he was assigned more than twenty tasks. On June 17, 1983, ninety days after the March 18 review, Wall concluded that Dominic had not met his requirements in most areas and accordingly terminated his employment with Con Edison. Dominic filed an appeal with Wall pursuant to company guidelines on June 23 but received no response. Wall claimed never to have received his appeal. There was testimony, however, that Conroy forwarded it to her.


After receiving a right-to-sue letter from the Equal Employment Opportunity Commission, Dominic filed his complaint in the district court on October 27, 1983, claiming several violations of the ADEA. Two claims were submitted to the jury: first, the Dominic was discharged on June 17 because of his age, in violation of 29 U.S.C. § 623(a)(1), and, second, that he was discharged because of his allegations of age discrimination, in violation of 29 U.S.C. § 623(d). The jury found that Con Edison had not discriminated against Dominic because of his age but had willfully retaliated against him because of his complaints of age discrimination. The jury concluded that Dominic was entitled to recover $67,902 in back pay and $378,000 in front pay.

Con Edison moved for judgment notwithstanding the verdict or for a new trial, claiming that the verdict of willful retaliation was unsupported by the evidence. Con Edison also argued that the decision whether to award front pay and the amount of such pay were equitable matters to be decided by the court, not the jury. Finally, Con Edison opposed Dominic's application for attorneys' fees. Judge Walker denied Con Edision's motion for judgment notwithstanding the verdict. He acknowledged that the jury could have believed Con Edison's version of the events, i.e., Wall's legitimate dissatisfaction with Dominic's performance, but concluded that sufficient evidence supported Dominic's account as well. He concluded that the jury was entitled to infer a retaliatory motive form: (j) the retroactive lowering of Dominic's performance rating after his first complaints; (ii) evidence that Wall had deliberately deluged him with assignments to cause him to fail; (iii) the early performance reappraisal in March 1983 that cut short the time Dominic had to complete his required work; and (iv) his transfer to difficult working conditions at Irving Place. Moreover, Judge Walker concluded, evidence of Con Edison's purposefully retaliatory behavior coupled with its awareness of Dominic's age discrimination complaints was sufficient to justify a verdict of willful retaliation.

On the issue of front pay, Judge Walker held that "the court rather than the jury should evaluate equitable factors to determine not only whether front pay is warranted but also the amount to be awarded." He found that Dominic was well educated and that $34,000, rather than $378,000, was sufficient front pay to compensate him for the time it would reasonably take him to find comparable employment. He further held that the front pay award, as an equitable substitute for reinstatement, was not subject to the ADEA's liquidated damages provision. He did, however, double the jury's back-pay award as liquidated damages.

Finally, Judge Walker awarded Dominic attorney's fees equivalent to the lodestar amount, reduced only by the fees incurred for EEOC proceedings. He refused to decrease the lodestar figure for time spent on Dominic's unsuccessful claims because he found that those claims were inextricably intertwined with the successful retaliatory discharge claim. Nevertheless, he declined to double the lodestar amount to compensate Dominic's attorneys for the risks they faced, noting that the lodestar amount was far ...

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