Foos v. Monroe Boces #2

Filing 22

ORDER granting in part and denying in part 13 Motion for Judgment on the Pleadings. Signed by Hon. Michael A. Telesca on June 29, 2011. (MK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
WILLIAM FOOS,
Plaintiff,

10-CV-6221
DECISION
and ORDER

v.
MONROE-2 ORLEANS BOCES,
Defendants.
_______________________________________

Plaintiff, William Foos (“Plaintiff”), brings this action
pursuant to the Age Discrimination in Employment Act, 29 U.S.C. §§
621 et seq. (“ADEA”) and the New York State Human Rights Law, N.Y.
Executive Law §§

290, et seq. (“NYSHRL”), alleging that Monroe-2

Orleans BOCES (“Defendant”) declined to hire him because of his
age. See Compl., Docket #1. Defendant moves to dismiss Plaintiff’s
claims under the NYSHRL, contending that Plaintiff failed to
provide Defendant with the requisite notice of claim under New York
Education Law § 3813(1), and that Plaintiff seeks damages which are
not available under New York state law. See Def. Mem. of Law at 2,
5-9.

In her responding papers, Plaintiff abandons his claim under

the NYSHRL. See Pl. Mem. of Law at 1, 6.

Accordingly, this Court

need not reach the merits of Defendant’s arguments, and Plaintiff’s
claim under the NYSHRL is dismissed with prejudice.
Defendant

also

moves

to

dismiss

Plaintiff’s

claims

for

compensatory damages and attorney’s fees and for an order limiting
Plaintiff’s recovery to nominal damages. See Def. Mem. of Law at 2.
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For the reasons set forth below, Defendant’s motion is granted in
part and denied in part.

To the extent Plaintiff seeks relief for

emotional pain and suffering and punitive damages, his claims are
dismissed. But Plaintiff’s claims for compensatory damages in the
form of pain and suffering, lost employment benefits and job
opportunities remain.
Plaintiff alleged in the Complaint that he suffered mental and
emotional distress and loss of earnings and other employment
benefits and job opportunities. See Compl. ¶44.

Plaintiff later

sent a disclosure pursuant to Rule 26(a)(1) of the Federal Rules of
Civil Procedure (“Rule 26 disclosure”), which stated that he sought
general and compensatory damages for “severe mental and emotional
anguish, pain and suffering” and “loss of earnings and other
employment benefits and job opportunities.” See Affirmation of
Christina A. Agola, Esq. (“Agola Aff.”), Exhibit A (Docket #18).
The Rule 26 disclosure also stated that Plaintiff sought punitive
and exemplary damages and attorney’s fees. Id.
Later,

Defendant

requested

a

more

specific

statement

of

damages and that Plaintiff withdraw his claims for mental and
emotional pain and suffering and punitive and exemplary damages.
See Reply Declaration of Donall O’Carroll at ¶12 (Docket #20). In
response, Plaintiff sent a document entitled “Supplemental Initial
Disclosure,” in which he stated, “Plaintiff has not incurred lost
wages” and that he sought compensatory damages in the amount of

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$300,000 and attorney’s fees. See Agola Aff., Exhibit B.

In the

supplemental document Plaintiff did not state what “compensatory
damages” he seeks, as he had in the Complaint and in the first
disclosure document, rather he simply states that he is seeking
compensation, but such compensation does not include lost wages1.
Defendant argues that several of the categories of damages
Plaintiff

seeks

are

not

available

under

the

ADEA

and

that

Plaintiff, by failing to specifically state in his supplemental
disclosure that he continued to seek compensation for pain and
suffering, lost employment benefits and job opportunities, has
abandoned any claim he had for compensable damages under the ADEA,
and is therefore entitled to only nominal damages.
Law at 10-14.

See Def. Mem of

Defendant also argues that attorney’s fees are not

typically awarded in cases where recovery is limited to nominal
damages. Id. Plaintiff contends that he did not abandon his claims
for pain and suffering, lost benefits and lost job opportunities in
the supplemental disclosure, as the disclosure was only meant to
clarify that he did not seek lost wages and to specify the amount
of compensatory damages he seeks. See Pl. Mem of Law at 7-8.
Plaintiff does not contest Defendant’s argument that damages for

1

Plaintiff’s supplemental disclosure also states that he does not seek “out of pocket
medical expenses to date.” But it does not appear from the Complaint that Plaintiff’s medical
expenses are relevant to his claims, and it is likely that the statement is simply an error in the
document.
Page -3-

emotional pain and suffering and punitive damages are not available
under the ADEA.
“Compensatory damages cover out-of-pocket losses and economic
injury, and remedy the pain and suffering experienced by the
plaintiff.”

Gilbert

v.

Hotline

Delivery,

2001

WL

799576,

*3

(S.D.N.Y. 2001)(citing Memphis Community School Dist. v. Stachura,
477 U.S. 299, 306-07 (1986)).

However, as Defendant correctly

points out, under the ADEA neither punitive and exemplary damages,
nor compensation for emotional pain and suffering are recoverable.
See

Townsend

v.

Exchange

Ins.

Co.,

196

F.

Supp.2d

300,

306

(W.D.N.Y. 2002)(citing Johnson v. Al Tech Specialties Steel Corp.,
731 F.2d 143, 148 (2d Cir. 1984)).

Therefore, to the extent that

Plaintiff seeks punitive damages or to recover for emotional pain
and suffering, his claims are dismissed.

But this Court does not

find that Plaintiff abandoned his claim for other compensatory
damages through the supplemental disclosure - other than for lost
wages, which he specifically disavows in his moving papers before
the Court. Further, at this stage in the litigation, it is unclear
what damages, if any, Plaintiff suffered.

Therefore, Defendant’s

motion to dismiss Plaintiff’s claims for pain and suffering, lost
employment

benefits

and

lost

job

opportunities

is

denied.

Defendant’s motion to dismiss Plaintiff’s claim for attorney’s fees
is also denied, as it is unclear at this stage whether Plaintiff’s
recovery should be limited to nominal damages.

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ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
June 29, 2011

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