United States District Court, D. Connecticut
MEMORANDUM OF DECISION
F. Martinez United States Magistrate Judge
plaintiff, Elisabeth Presumey, brought this action against
her former employer, the Board of Education for the Town of
Greenwich, Connecticut, alleging that it failed to
accommodate her disability in violation of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101
et seq. and Connecticut Fair Employment Practices
Act ("CFEPA"), Conn. Gen. Stat. § 46a-51
et seq. (Doc. #55.) The parties agreed on the record
in open court to waive a jury claim as to damages and instead
have the court determine any and all monetary damages. (Doc.
#77 at 140, 143.) After a jury returned a verdict in the
plaintiff's favor as to liability, the court held an
evidentiary hearing on May 3, 2018 on damages and
attorney's fees. The following are the court's
findings of fact and conclusions of law.
August 2008 until December 2012, the plaintiff was employed
by the defendant as a professional assistant working with
special education students. In November 2011, she injured her
shoulder on the job and thereafter requested that she be
placed on light duty pursuant to her physician's
instructions. The defendant responded that it could not
accommodate the plaintiff because there was no light duty
work assignment in her job class. The plaintiff was placed on
leave. The defendant terminated the plaintiff's
employment effective December 3, 2012 on the grounds that she
"ha[s] medical restrictions rendering [her] unable to
perform the core functions of [her] job." (Pl's Ex.
36, Termination letter.) The plaintiff brought suit, alleging
that the defendant failed to provide her a reasonable
accommodation for her disability.
the jury returned a verdict in favor of the plaintiff, the
court denied the defendant's post-trial motions for
judgment as a matter of law and for a new trial. (Doc. #82.)
An evidentiary hearing on damages was scheduled. (Doc. #83.)
The court ordered the parties to file a joint pre-hearing
memorandum setting forth the plaintiff's damages
analysis; the parties' proposed findings of fact and
conclusions of law; the parties' witnesses and exhibits;
and an affidavit regarding plaintiff's request for
attorney's fees. (Doc. #83.) After the evidentiary
hearing, the parties filed post-hearing memoranda. (Doc.
plaintiff seeks back pay, front pay, compensatory damages,
and attorney's fees.
plaintiff requests an award of back pay from December 3, 2012
through June 2018, the anticipated date of judgment, totaling
$162, 241.92 comprised of wages during the school year; wages
from summer school; and contributions to her Health Savings
Account. (Doc. #114 at 4-5.)
award of backpay is the rule, not the exception."
Carrero v. New York City Hous. Auth., 890 F.2d 569,
580 (2d Cir. 1989). The purpose of back pay is to make a
plaintiff whole, that is, to "completely redress the
economic injury the plaintiff has suffered as a result of
discrimination." Saulpaugh v. Monroe Cmty.
Hosp., 4 F.3d 134, 145 (2d Cir. 1993). "This award
should therefore consist of lost salary, including
anticipated raises, and fringe benefits." Id. See
Bergerson v. New York State Office of Mental Health, 652
F.3d 277, 287 (2d Cir. 2011)("[A]n award of backpay
includes what the employee himself would have earned had he
not been discharged.")
defendant argues that the plaintiff should be awarded
"only a nominal back pay amount" because she
"failed to mitigate her damages." (Doc. #107 at 8.)
The defendant challenges the efficacy of the plaintiff's
search and also asserts that in light of the duration of the
plaintiff's employment with prior employers, she would
not have remained with the defendant for this full period of
"prevailing plaintiff in an employment discrimination
action has a duty to mitigate h[er] damages by exercising
reasonable diligence in seeking substitute employment that is
substantially similar to h[er] former employment or risk
having the amount of any damages awarded reduced by the
amount that could have been earned." Evarts v.
Quinnipiac Univ., No. 3:15CV1509(CSH), 2017 WL 6453396,
at *3 (D. Conn. Dec. 10, 2017). See Greenway v. Buffalo
Hilton Hotel, 143 F.3d 47, 53 (2d Cir.
1998)("Victims of employment discrimination are required
to mitigate their damages.") That said, "[t]he
wrongfully terminated employee's duty to mitigate is
minimal." Ramey v. Dist. 141, Int'l Assoc. of
Machinists & Aerospace Workers, No.
99-CV-4341(BMC)(RML), 2010 WL 3619708, at *4 (E.D.N.Y. Sept.
10, 2010). Although it is the plaintiff's duty to
mitigate, "[d]efendant, as plaintiff's former
employer, bears the burden of demonstrating that [the]
plaintiff has failed to satisfy the duty to mitigate."
Bailey v. Grocery Haulers, Inc., No.
3:15CV1835(JBA), 2017 WL 4536111, at *8 (D. Conn. Oct. 11,
2017). In determining whether the employer has met that
burden, the court asks whether the plaintiff "use[d]
reasonable diligence in finding other suitable employment,
which need not be comparable to their previous
positions." Greenway, 143 F.3d at 53 (internal
quotation marks omitted). "The ultimate question is
whether the plaintiff acted reasonably in attempting to gain
other employment or in rejecting proffered employment."
Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 695
(2d Cir. 1998) (internal quotation marks omitted). "This
obligation is not onerous and does not require her to be
plaintiff testified that after her termination in December
2012, she applied for "anything" and
"everything" she could find. (Tr. 5/3/18 at 30.)
She searched for jobs online and in the classifieds. (Tr.
5/3/18 at 30.) She applied online and sent out resumes and
cover letters. It is undisputed that in June 2016, she began
receiving Social Security Disability benefits and did not
look for employment after that. (Doc. #114 at 2.)
court finds that the plaintiff acted reasonably in attempting
to gain employment after her termination until June 2016.
Although the defendant asserts that the plaintiff
"fail[ed] to mitigate by not finding a single job of any
kind from December 2012 to June 2016" (doc. #115 at 11),
"[a] backpay claimant's duty to mitigate her damages
by using reasonable diligence in finding other suitable
employment is not onerous, and does not require her to be
successful in mitigation. . . . Any doubts related to such
proof are to be resolved against the employer." G
& T Terminal Packaging Co. Inc. v. N.L.R.B., 459
Fed.Appx. 19, 23 (2d Cir. 2012). See Vera v. Alstom
Powers, Inc., 189 F.Supp.3d 360, 385 (D. Conn. 2016)
("[Defendant] cites no authority, and the Court found
none, standing for the proposition that a years-long failure
to find comparable employment compels a finding of a failure
to search reasonably.")
said, in June 2016 the plaintiff began collecting disability
benefits and stopped looking for work. (Doc. #114 at 2.) As a
result, her back pay damages are cut off at this juncture.
See Dominic v. Consolidated Edison Co. of New York,
Inc., 822 F.2d 1249, 1258 (2d Cir. 1987) ("[the
plaintiff's] back-pay award would have been cut off or
reduced at the time of his failure to mitigate");
DeMarco v. Ben Krupinski Gen. Contractor, Inc., No.
12-CV-0573 (SJF)(ARL), 2014 WL 3531276, at *14 (E.D.N.Y. July
14, 2014)(plaintiff's back pay damages cutoff as of
November 2011 where "plaintiff made no reasonable
efforts to seek comparable employment after [that point in
time]"); Hopkins v. New England Health Care
Employees Welfare Fund, 985 F.Supp.2d 240, 262 (D. Conn.
2013) (a plaintiff must "use reasonable diligence in
finding other suitable employment." . . . In no way can
social security . . . payments be construed to be
plaintiff is entitled to $102, 795.01 as follows:
plaintiff also seeks summer school wages. The plaintiff did
not claim these damages in the damage analysis set forth in
her pre-hearing submission. See doc. #107. For the
first time at her evidentiary hearing, she testified that in
addition to her normal schedule during the school year, she
worked for the defendant "every summer" for 6 weeks
for which she was paid $500 per week.(Tr. 5/3/18 at 23.) The
defendant argues that the court should not award any damages
for work at summer school because the plaintiff's
testimony is "false." (Doc. #115 at 5.)
order to recover damages, a claimant must present evidence
that provides the finder of fact with a reasonable basis upon
which to calculate the amount of damages. . . . [T]he
[factfinder] is not allowed to base its award on speculation
or guesswork." Bargham v. Wal-Mart Stores,
Inc., No. 3:12CV01361(VAB), 2017 WL 3736702, at *5 (D.
Conn. Aug. 30. 2017) (internal quotation mark and citation
omitted). See also Tse v. UBS Fin. Servs., Inc., 568
F.Supp.2d 274, 308 ...