Delia v. Potter
Filing
197
ORDER re 192 Letter filed by Patrick Delia. See the attached Memorandum and Order addressing the issue of the remedies available to Plaintiff. Ordered by Judge Denis R. Hurley on 2/27/2014. (O'Connor, Madeline)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------X
PATRICK DELIA,
Plaintiff,
MEMORANDUM & ORDER
03-CV-3367 (DRH) (AKT)
- against PATRICK R. DONAHOE, POSTMASTER
GENERAL US POSTAL SERVICE,
Defendant.
------------------------------------------------X
HURLEY, Senior District Judge:
On July 10, 2003, Plaintiff Patrick Delia (“Plaintiff”) initiated the instant
employment discrimination action against his former employer, the United States Postal Service
(the “Postal Service”). By Memorandum and Order dated May 23, 2012 (“Summary Judgment
Decision”), the Court granted in part and denied in part the Postal Service’s motion for summary
judgment. Presently pending before the Court is Plaintiff’s application seeking clarification as to
the scope of damages available to Plaintiff. Since the resolution of any outstanding factual issue
is reserved for the trial of this matter, the Court renders this decision to guide the parties, to the
extent possible, as to the remedies the Court believes are available to Plaintiff. Nonetheless, it is
important that the parties are aware that the remedies Plaintiff may seek at trial depend, in large
part, upon the facts ultimately presented and established at trial.
Background
The background of this action is set forth fully in the Summary Judgment Decision. See
Delia v. Donahoe, 862 F. Supp. 2d 196, 199-209 (E.D.N.Y. 2012). A brief summary of the facts
relevant to this application follows.
In 1999, while working at a postal facility in Western Nassau, Plaintiff received two
Letters of Warning, and was placed on an emergency suspension without pay. It was alleged that
Plaintiff spoke threateningly to a supervisor during a phone call after having been incorrectly
penalized by the supervisor for being unavailable during a night shift. According to Plaintiff, the
supervisor then solicited incriminating stories about Plaintiff from other employees and
requested an investigation by a postal inspector. The investigation revealed that Plaintiff had not
listed certain violation convictions on his application. The Postal Service issued Plaintiff a
Notice of Removal.
Plaintiff filed a grievance with the Postal Service regarding the Notice of Removal. As a
result of the grievance, an arbitrator determined in July 2000 that the charges against Plaintiff of
workplace violence had not been proven, but the charge that Plaintiff had failed to list violation
convictions on his job application had been proven. The Postal Service reinstated Plaintiff to
full-time employment in August 2000 at a different location in Nassau County (the “Hempstead
Facility”) at the same level of grade and pay. The arbitration decision provided that Plaintiff
would be terminated in the future if he committed an act warranting termination, and did not
award Plaintiff back pay as it instead treated Plaintiff’s removal as an unpaid suspension period
for falsifying his employment application.
Plaintiff worked at the Hempstead Facility for almost two years, until June 12, 2002, at
which time he was issued a Notice of Removal for Improper Conduct and Failure to Follow
Instructions (“2002 Notice of Removal”). The 2002 Notice of Removal, which provided that
Plaintiff’s employment would be terminated as of July 15, 2002, was prompted by misconduct
Plaintiff committed while attending job training, including violating the training facility’s no
smoking policy and disabling a smoke detector and fire enunciator. An arbitrator determined
2
that Plaintiff’s misconduct warranted termination. However, prior to the official termination of
Plaintiff in April 2004, Plaintiff filed the instant action alleging that the Postal Service violated
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), by
discriminating against him based upon his national origin, and by retaliating against him because
he had filed administrative complaints of discrimination.
As a result of the Postal Service’s motion for summary judgment, the following of
Plaintiff’s claims survive: 1) his discrimination claims based upon the first Letter of Warning
issued in 1999, his emergency placement on unpaid off-duty status, and the August 10, 1999
Notice of Removal; and 2) his retaliation claims based upon the second Letter of Warning issued
in 1999, his emergency placement on unpaid off-duty status, and the August 10, 1999 Notice of
Removal. See Delia, 862 F. Supp. 2d at 226.
Discussion
I.
Plaintiff’s Contentions
Plaintiff argues that if he successfully proves his discrimination and retaliation claims at
trial, he “is entitled to economic damages from the time of his first removal to the present,
including back pay, lost future pay and benefits, and lost pension, as well as compensatory
damages for past and future mental pain and suffering and mental anguish.” (Pl.’s Letter Mem.
at 3.)
Plaintiff argues that the purpose of Title VII remedies is to the make the victim of
discrimination whole and restore him to the economic position he would have occupied had he
not been discriminated against. (Id.) According to Plaintiff, he is entitled to recover for those
damages he would not have sustained “but for” the Postal Service’s discriminatory conduct.
(Id.) Plaintiff argues that, but for the Postal Service’s discrimination, he never would have been
3
fired. (Id. at 4.) Specifically, Plaintiff argues that he never would have violated the smoking
policy during his training for the Postal Service in Oklahoma, if he had not been discriminated
and retaliated against by the Postal Service in 1999, and subsequently reinstated and assigned to
perform work outside of his normal job duties at the Hempstead facility that ultimately sent him
for the training.1 (Id.; Letter Reply at 2.) In addition, Plaintiff argues that had it not been for the
alleged discriminatory acts that caused his suspension, the investigation, and the issuance of a
Notice of Removal in 1999, there would not have been any grounds on which to base a “last
chance” provision in the 2000 arbitration award (“Last Chance Agreement”). (Pl.’s Letter Mem.
at 5.) Plaintiff contends that “[w]hether there is a causal link is a question for the jury.” (Letter
Reply at 1.)
II.
The Postal Service’s Contentions
The Postal Service agrees that Plaintiff may seek damages for the time period of June 15,
1999 through August 11, 2000, when Plaintiff had been placed on an unpaid, off-duty status, as
well as compensatory damages relating to the two letters of warning issued in 1999.2 (Def.’s
Letter Mem. at 3-4.) However, the Postal Service contends that Plaintiff is not entitled to any
additional equitable relief beyond back pay for any period of time subsequent to Plaintiff’s
reinstatement on August 12, 2000. (Id. at 4.)
It is the Postal Service’s position that Plaintiff is not entitled to additional equitable relief
other than back pay for the unpaid period between June 15, 1999 and August 11, 2000 because
Plaintiff was made “whole” when he was reinstated by the Postal Service. (Id.) The Postal
1
Plaintiff claims that he was employed as a “Mail Processing Mechanic” for the Postal Service, but when
he was reinstated and assigned to the Hempstead facility, “there was no equipment on which a Mail Processing
Mechanic . . . could work,” so Plaintiff was “reduced to performing work outside his job title and job description
such as policing the bathrooms and other custodial duties.” (Pl.’s Letter Mem. at 2.)
2
The Postal Service states, and Plaintiff does not dispute, that Plaintiff was paid through June 14, 1999,
and that Plaintiff’s unpaid period began on June 15, 1999. (Def.’s Letter Mem. at 2 n. 2.)
4
Service argues that Plaintiff’s reinstatement “cut off any damages flowing from the 1999
disciplines because, with the exception of the discrete back pay issue . . . , [P]laintiff’s
reinstatement restored him to the same economic position that he would have been in but for the
1999 disciplines.” (Id.) The Postal Service further argues that “[P]laintiff had the opportunity to
continue working full-time until retirement after reinstatement and to enjoy all the benefits
associated with [Postal Service] full-time employment.” (Id.)
In addition, the Postal Service contends that Plaintiff’s termination in 2002 was the result
of his own conduct, i.e., disabling a smoke detector and violating the Postal Service training
facility’s no smoking policy, which occurred three years after, and had nothing to do with, the
alleged discriminatory and retaliatory conduct that occurred in 1999. (Id. at 5.) According to the
Postal Service, “Plaintiff’s ability to commit such infractions was not exclusive to Oklahoma and
was not caused by his presence there, much less by the 1999 discipline.” (Def.’s Letter Mem. at
8). Furthermore, the Postal Service refutes Plaintiff’s claim that he would not have attended the
training in Oklahoma in 2002, where he committed the acts that ultimately led to his termination,
but for his reinstatement at the Hempstead facility. (Id.) On the contrary, the Postal Service
argues that Plaintiff repeatedly attended training in Oklahoma, and asserts that Plaintiff himself
admitted that he had been asked to attend training in Oklahoma while he worked at the Western
Nassau Facility in 1998. (Id.) Finally, the Postal Service argues that Plaintiff’s misconduct at
the training facility provided a legitimate, independent basis for terminating Plaintiff regardless
of the Last Chance Agreement. (Id. at 6.)
III.
Analysis
Since there is no dispute that Plaintiff is entitled to seek back pay for the time period
from June 15, 1999 through August 11, 2000, when Plaintiff had been placed on an unpaid, off5
duty status (“Unpaid Suspension Period”), the only remaining issues are whether Plaintiff is
entitled to seek: 1) compensatory damages and additional equitable relief for the Unpaid
Suspension Period; 2) compensatory damages and equitable relief for the time period from
August 12, 2000, when Plaintiff had been reinstated, through July 15, 2002, the date when
Plaintiff was terminated pursuant to the 2002 Notice of Removal (“Reinstatement Period”); and
3) compensatory damages and equitable relief for the time period subsequent to Plaintiff’s
termination on July 15, 2002 (“Termination Period”). The Court will address each time period in
turn.
A. Compensatory Damages and Additional Equitable Relief for the Unpaid
Suspension Period from June 15, 1999 through August 11, 2000
“The remedial provisions of Title VII authorize front and back pay.” Noel v. N.Y. State
Office of Mental Health Cent. N.Y. Psychiatric Ctr., 697 F.3d 209, 213 (2d Cir. 2012) (citing 42
U.S.C. § 2000e-5(g)(1)). “[A] lost wages award – whether in the form of back pay or front
pay—is an equitable remedy” to be determined by the court. Broadnax v. City of New Haven,
415 F.3d 265, 271 (2d Cir. 2005). The Second Circuit has stated that “[t]he purpose of back pay
is to ‘completely redress the economic injury the plaintiff has suffered as a result of
discrimination.’ ” E.E.O.C. v. Joint Apprenticeship Comm. of Joint Indus. Bd. of the Elec.
Indus., 164 F.3d 89, 101 (2d Cir. 1998) (quoting Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134,
145 (2d Cir. 1993)). Thus, “[a]n award of back pay . . . should ordinarily consist of lost salary,
including anticipated raises, and fringe benefits.” Id.
The Postal Service agrees that Plaintiff is entitled to “damages for his unpaid period from
June 15, 1999 through August 11, 2000,” but argues that “[P]laintiff is not entitled to any
additional equitable relief beyond back pay” for the Unpaid Suspension Period. (Def.’s Letter
Mem. at 4.) While it is unclear the exact “damages” the Postal Service agrees Plaintiff is entitled
6
to seek, and what “additional equitable relief” the Postal Service believes Plaintiff is not entitled
to seek, Plaintiff is entitled to seek back pay for the Unpaid Suspension Period, which includes,
as a matter of law, lost earnings and fringe benefits. See Noel, 697 F.3d at 213 (“Back pay is ‘an
amount equal to the wages the employee would have earned from the date of discharge to the
date of reinstatement, along with lost fringe benefits such as vacation pay and pension benefits.’
”) (quoting United States v. Burke, 504 U.S. 229, 239 (1992), superseded by statute on other
grounds).
Additionally, although the Postal Service agrees that Plaintiff may seek compensatory
damages relating to the two letters of warning issued in 1999, Plaintiff is entitled to seek
compensatory damages for the entire Unpaid Suspension Period for the emotional distress he
suffered, provided that Plaintiff establishes at trial that the compensatory damages were caused
by the alleged unlawful conduct.3 See 42 U.S.C. § 1981a(a)(1); Lore v. City of Syracuse, 670
F.3d 127, 179 (2d Cir. 2012) (upholding jury’s award of compensatory damages for emotional
distress suffered by plaintiff as a direct result of defendants’ retaliatory conduct); United States v.
City of New York, 276 F.R.D. 22, 37 (E.D.N.Y. 2011) (stating that “victims of intentional
employment discrimination may recover compensatory damages under § 1981a(a)(1) if they
prove that the discrimination caused them emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, or other nonpecuniary losses”) (citation and internal quotation
marks omitted).4
3
It is undisputed that Plaintiff may not recover more $300,000 in compensatory damages. 42 U.S.C. §
1981a(b)(3)(D).
4
The Court notes that while damages awarded under section 706(g) of the Civil Rights Act of 1964, i.e.,
awards of front pay and back pay, are a form of equitable relief to be determined by the Court, damages awarded
under 42 U.S.C. § 1981a, i.e., compensatory damages, are legal damages that are submitted to the jury. See 42
U.S.C. § 2000e-5(g); Broadnax, 415 F.3d at 271; McCue v. State of Kan., Dep’t of Human Res., 165 F.3d 784, 792
(10th Cir. 1999).
7
B. Compensatory Damages and Equitable Relief for the Reinstatement Period of
August 12, 2000 to July 15, 2002
The Postal Service argues that Plaintiff is not entitled to equitable relief for the
Reinstatement Period because Plaintiff’s reinstatement made him “whole,” and restored him to
the same economic position that he would have occupied but for the alleged discriminatory and
retaliatory conduct. According to the Postal Service, any award of front pay for the
Reinstatement Period would result in a “windfall” for the Plaintiff who had already been made
whole by his reinstatement.5 Additionally, the Postal Service argues that Plaintiff is not entitled
to compensatory damages for the Reinstatement Period because “Plaintiff cannot demonstrate a
direct relationship between the 1999 disciplinary actions and any alleged emotional distress he
suffered post-reinstatement while working in a different setting under different supervisors.”
(Def.’s Letter Mem. at 5 n. 4.)
Plaintiff, on the other hand, argues that he was not reinstated to the same position he
would have occupied had the alleged discriminatory conduct not occurred. Plaintiff asserts that
he was originally employed as a “Mail Processing Mechanic” for the Postal Service, but when he
was reinstated and assigned to the Hempstead facility after the occurrence of the alleged
discriminatory acts, “there was no equipment on which a Mail Processing Mechanic . . . could
work,” so Plaintiff was “reduced to performing work outside his job title and job description
such as policing the bathrooms and other custodial duties.” (Pl.’s Letter Mem. at 2.)
5
The Postal Service designates the economic damages Plaintiff seeks for the Reinstatement Period as front
pay. “An award of front pay is an alternative to reinstatement where reinstatement is ‘inappropriate.’ ” Bergerson
v. N.Y. State Office of Mental Health, Cent. N.Y. Psychiatric Ctr., 652 F.3d 277, 287 (2d Cir. 2011) (citation
omitted). Ordinarily, front pay is compensation awarded for the time after judgment, see Noel, 697 F.3d at 213,
whereas, here, judgment has not been reached. Nonetheless, the Postal Service’s designation of the economic
damages for the Reinstatement Period as front pay is understandable because it is an award of economic damages
for a period of time in which the Plaintiff had been reinstated after the alleged discriminatory conduct occurred.
8
“An award of front pay is an alternative to reinstatement where reinstatement is
‘inappropriate.’ ” Bergerson, 652 F.3d at 287 (citation omitted). The Postal Service argues that
Plaintiff was reinstated on August 12, 2000 to full-time employment at the Hempstead Facility,
at the same level of grade and pay, and, therefore, an award of front pay in addition to Plaintiff’s
reinstatement would create a “windfall” recovery for Plaintiff. Plaintiff does not dispute that he
was reinstated at the same level of grade and pay, but argues that he was reinstated to a different
position with different duties than the position he previously had held as a Mail Processing
Mechanic.
An award of front pay is intended to make a plaintiff economically whole. See Pollard v.
E.I. du Pont de Nemours & Co., 532 U.S. 843, 846 (2001) (stating that “front pay is simply
money awarded for lost compensation . . . in lieu of reinstatement); Noel, 697 F.3d at 213
(stating that front pay is an award for lost compensation and is considered to be “wages”).
Moreover, front pay is an alternative remedy to reinstatement. Bergerson, 652 F.3d at 287.
Accordingly, once a plaintiff is provided with the remedy of reinstatement, the alternative
remedy of front pay is presumably unavailable. However, in this case, the Court notes that
Plaintiff argued upon his opposition to summary judgment that “at some point after his
reinstatement, his overtime opportunities in Hempstead were eliminated.” Delia, 862 F. Supp.
2d at 206. Thus, Plaintiff claims that his reinstatement caused him to suffer economic harm, i.e.,
lost overtime wages, and, therefore, the remedy of reinstatement did not make him economically
whole. For this reason, Plaintiff may seek an award of economic damages for the Reinstatement
Period to the extent that Plaintiff can prove that, but for the Postal Service’s alleged unlawful
conduct, he would not have suffered a loss in overtime wages. See Holness v. Nat’l Mobile
Television, Inc., 2012 WL 1744847, at *4 (E.D.N.Y. Feb. 14, 2012) (stating that a plaintiff must
9
“provide the court with competent evidence from which to calculate his lost overtime with any
‘reasonable basis’ ”), report and recommendation adopted as modified, 2012 WL 1744744
(E.D.N.Y. May 15, 2012); Iannone v. Frederic R. Harris, Inc., 941 F. Supp. 403, 411 (S.D.N.Y.
1996) (stating that the purpose of Title VII remedies is to restore victims “to the economic
position they would have occupied but for the intervening unlawful conduct of employers”)
(citation and internal quotation marks omitted).6
Plaintiff also seeks compensatory damages for his past mental pain and suffering. As
mentioned previously, compensatory damages are legal damages which should be submitted to
the jury. Since a reasonable jury could find that Plaintiff suffered mental pain and suffering
during the Reinstatement Period, including emotional anguish from being reinstated to a less
prestigious position, as a direct result of the alleged unlawful conduct, Plaintiff may also seek
compensatory damages for the Reinstatement Period.
C. Compensatory Damages and Equitable Relief for the Termination Period from July
15, 2002 to Present
The Postal Service argues that Plaintiff is not entitled to front pay or compensatory
damages for the Termination Period because Plaintiff was “properly terminated,” and his
termination was the direct result of his own misconduct, “which occurred three years after the
1999 discipline and which had nothing to do with it.” (Def.’s Letter Mem. at 5 & n. 4.) The
Court agrees.
Title VII damages are awarded to restore victims of discrimination “to the economic
position they would have occupied but for the intervening unlawful conduct of employers.”
Iannone, 941 F. Supp. at 411 (citation and internal quotation marks omitted). Further, “[t]he
6
Although Plaintiff argues in his reply that it was illegal for the Postal Service to place him in two
maintenance positions upon his reinstatement, he provides no legal support for his argument which could provide
the basis for an award of damages for the Reinstatement Period.
10
same ‘but for’ causation analysis which has been applied to [economic] damages applies to
compensatory damages.” Clarke v. One Source, Inc., 2002 WL 31458238, at *6 (S.D.N.Y. Nov.
1, 2002).
In this case, no reasonable jury could find that but for the Postal Service’s alleged
discriminatory and retaliatory acts in 1999, Plaintiff would not have been terminated for
disabling a smoke detector and violating the Postal Service training facility’s no smoking policy.
Although Plaintiff cites Clarke v. One Source, Inc., 2002 WL 31458238 (S.D.N.Y. Nov. 1,
2002), to support his argument that but for the Postal Service’s discrimination he never would
have been terminated, (Pl.’s Letter Mem. at 3-4), the facts in Clarke are vastly distinguishable.
In that case, the plaintiff, a porter for a company that provided cleaning and maintenance
services in commercial buildings, filed numerous complaints with the New York State Division
of Human Rights claiming, inter alia, that he had not been given a permanent porter position
because he was black. Clarke, 2002 WL 31458238, at *1. Shortly after filing one of his
complaints, the plaintiff was suspended from work for a failure to perform his duties. Id. Within
days after being suspended, the plaintiff solicited a letter of recommendation from a tenant in the
building where he worked, in violation of company rules. Id. Thereafter, the plaintiff was
terminated for violating the company’s rules. Id. The court in Clarke determined that “the jury
was entitled to find that but for the improper suspension by [d]efendant of [p]laintiff in violation
of Title VII, [p]laintiff would not have solicited a work recommendation from a tenant and
would not have been lawfully terminated.” Id., at *5.
Here, as the Postal Service contends, Plaintiff’s “termination occurred more than 3 years
after the 1999 employment actions (as opposed to a mere 6 days as in Clarke), involved
misconduct wholly unrelated to the 1999 disciplinary actions (as opposed to directly resulting
11
from the disciplinary action as in Clarke), and was proposed by supervisors who were not
involved in the 1999 disciplinary actions.” (Def.’s Letter Mem. at 7.) Thus, the causal nexus
between Plaintiff’s termination for disabling a smoke detector and violating the Postal Service
training facility’s no smoking policy, and the Postal Service’s alleged discriminatory conduct, is
far too attenuated to constitute a direct relationship. Accordingly, Plaintiff is not entitled to seek
any damages or equitable relief for the Termination Period as a matter of law.
Conclusion
For the reasons set forth herein, Plaintiff may seek back pay and compensatory damages
for the Unpaid Suspension Period, and economic damages in the form of lost overtime wages, as
well as compensatory damages for the Reinstatement Period. The Plaintiff is not entitled to
equitable relief or compensatory damages for the Termination Period.
SO ORDERED.
Dated: Central Islip, New York
February 27, 2014
/s/____________________
Denis R. Hurley
Senior District Judge
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?