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Presumey v. Town of Greenwich Board of Education

United States District Court, D. Connecticut

June 5, 2018



          Donna F. Martinez United States Magistrate Judge

         The 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.

         I. Procedural Background

         From 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.[1]

         After 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. ##114, 115.)

         II. Discussion

         The plaintiff seeks back pay, front pay, compensatory damages, and attorney's fees.[2]

         A. Back Pay

         The 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.)

         "An 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.")

         B. Mitigation

         The 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 time.

         A "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 successful." Id.

         The 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.)

         The 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.")

         That 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 'employment.'")

         The plaintiff is entitled to $102, 795.01 as follows:

School year


Dec 2012-2013

$17, 491.91


$27, 984.15


$27, 984.15


$29, 334.80

$102, 795.01

         C. Summer School

         The 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.[4](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.)

         "In 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 ...

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