Bergerson v. New York State Office of Mental Health
Bergerson v. New York State Office of Mental Health
Opinion of the Court
MEMORANDUM — DECISION and ORDER
I. INTRODUCTION
Following a trial in October 2009, the jury awarded plaintiff Christine Berger-son
Plaintiff appealed to the United States Court of Appeals for the Second Circuit, challenging: (1) the grant of defendant’s motion barring back pay; (2) the pre-trial dismissal of her state law claims; and (3) the reduced attorneys’ fees rate. The Second Circuit affirmed the dismissal of the state law claims and the attorneys’ fees rate, but ordered an inquest as to whether plaintiff should be awarded back pay and, if reinstatement is inappropriate, front pay. Bergerson v. N.Y. State Office of Mental Health, 652 F.3d 277 (2d Cir. 2011).
On October 5, 2011, a hearing was held pursuant to the Second Circuit’s mandate. At the hearing, the parties stipulated that reinstatement is inappropriate. The parties have submitted proposed findings of fact and conclusions of law. Dkt. Nos. 117, 118. Plaintiff has also filed a motion for attorneys’ fees and costs related to her appeal. Dkt. No. 116. Defendant has responded to this motion. Dkt. No. 122.
II. FINDINGS OF FACT
The following facts are based on the parties’ written submissions as well as the testimony and evidence provided at the October 5, 2011, hearing.
Bergerson has a General Equivalency Diploma (“GED”). She began working as a Security Hospital Treatment Aide (“SHTA”), Grade 14, at Central New York Psychiatric Center (“CNYPC”) on September 2, 2004.
Bergerson was terminated on January 31, 2006. She promptly contacted the New York Civil Service Department in
In May 2007 plaintiff left Birnie Bus and started working at the St. Lawrence Psychiatric Center (“SLPC”) in a full-time, Grade 11, position on May 10. Her base salary at SLPC was $32,138, and she received health insurance and benefits. Hr’g Ex. PD. Plaintiff held this employment until September 26, 2007, when she resigned due to the lengthy commute and associated time away from her family, and a lack of overtime offered. Plaintiff then returned to work at Birnie Bus on a full-time basis. She earned a total of $22,361.35 in 2007-$10,646.72 from Birnie Bus and $11,714.63 from SLPC. Hr’g Ex. D2. Assuming she was paid a consistent amount by Birnie Bus, plaintiff earned $6181.97 for the eighteen weeks prior to her employment with SLPC and $4464.75 for the thirteen weeks after her resignation from SLPC.
In January 2008 Bergerson began working part-time at the New York School for the Deaf. She continued to work part-time at Birnie Bus as well. Her employment with the School for the Deaf ended in September 2010 after a teenager alleged that plaintiff assaulted her. Bergerson continued to work part-time at Birnie Bus until March 2011, when she was suspended after receiving a speeding ticket. Plaintiff simply did not return to Birnie Bus and has received unemployment payments since March 2011.
At the hearing, plaintiff called four current employees of CNYPC who hold the same Grade 14 SHTA position she held prior to her termination. These employees made it clear that they receive an annual increase in salary and work thousands of hours of overtime every year. They also testified that the availability of overtime greatly increased in 2008 due to budget constraints and a hiring freeze. The testimony regarding their individual annual earnings will be discussed in greater detail below. The principal payroll clerk at CNYPC testified that during the relevant time, CNYPC employees received an annual raise of four percent. Tr. 175:10.
Since her termination from CNYPC, Bergerson has sporadically attended mental health counseling and occasionally taken prescription medications for post traumatic stress syndrome. At the hearing, plaintiff called a psychotherapist, Helene Shulkin, to testify about the impact her mental health condition has on her ability to secure comparable employment. However, Ms. Shulkin primarily treats plaintiffs daughters and only “collaterally” meets with plaintiff for family counseling sessions. Tr. 137:8-9. Further, Ms. Shulkin has been meeting with plaintiff on a monthly basis for less than two years and is not the provider who prescribes her medications. Her opinion that plaintiff is unable to maintain comparable employment due to the emotional distress she incurred as a result of her termination from CNYPC is therefore not credible.
III. DISCUSSION
A. Back Pay
1. Standard
The purpose of back pay is “to restore the employee to the status quo
An award of back pay should be based on what the plaintiff would have earned had she not been terminated. Kirsch, 148 F.3d at 166. When calculating this figure, a court may consider evidence of the salaries paid to other employees if a proper foundation is laid “to permit the reasonable inference that [her] salary would have matched or been pegged to the salaries of others.” Id. An award of back pay ordinarily spans from the date of plaintiffs discriminatory termination to the date of judgment and includes “lost salary, including anticipated raises, and fringe benefits.” Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 144-45 (2d Cir. 1993). Further, Title VII authorizes pre-judgment interest on back pay. Id. at 145 (noting that failure to include pre-judgment interest is ordinarily an abuse of discretion).
2. Failure to Mitigate
An award of back pay can be offset by a plaintiffs failure to mitigate damages. “An employee discharged in violation of Title VII has an obligation to attempt to mitigate her damages by using ‘reasonable diligence in finding other suitable employment.’ ” Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 695 (2d Cir. 1998) (quoting Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 231, 102 S.Ct. 3057, 3065, 73 L.Ed.2d 721 (1982)). The burden is on the defendant employer to demonstrate that the plaintiff has failed to mitigate. Id. This burden can be met by establishing that suitable work existed and the plaintiff “did not make reasonable efforts to obtain it.” Id. Suitable employment entails that which is “substantially equivalent,” but not necessarily identical, to plaintiffs former employment. Ford Motor Co., 458 U.S. at 232, 102 S.Ct. at 3066.
“The ultimate question is whether the plaintiff acted reasonably in attempting to gain other employment or in rejecting proffered employment.” Hawkins, 163 F.3d at 695. (internal quotation marks omitted). A plaintiff fails to mitigate damages when her voluntary resignation from comparable employment is motivated by personal reasons as opposed to unreasonable working conditions. Id. at 696; see also Griffin v. Four Seasons Resorts & Hotels, Ltd., No. 96 Civ. 4759, 1999 WL 212679, at *1 (S.D.N.Y. Apr. 12, 1999) (highlighting “prevailing precedents that uniformly hold that a decision to forego comparable employment for personal reasons, however understandable, constitutes a failure to mitigate damages as a matter of law”).
Defendant has met its burden to demonstrate that Bergerson failed to mitigate her damages by resigning from her job at SLPC. This was a full-time Grade 11 position within the Office of Mental Health and provided health insurance and benefits. The base salary of $32,138, which was only slightly less than her base salary of $36,124 at CNYPC, would have increased annually. It was thus substantially equivalent to plaintiffs former position at CNYPC.
3. Back Pay Calculation
An award of back pay is determined by calculating the total lost salary, including anticipated raises, and fringe benefits. This total is then reduced by any income earned by plaintiff during the same time period. Because no testimony or evidence was offered regarding the value of the health insurance plaintiff received at CNYPC, such will not be included in the back pay calculation. Indeed, plaintiffs own accountant did not include health insurance in his calculations. Further, plaintiff was provided with health insurance at SLPC.
Similarly, while employees of CNYPC receive retirement contributions and may participate in a deferred compensation program, it would be complete speculation to assign a specific value to these benefits. There was no testimony regarding what percentage of annual earnings goes into an employee’s retirement or deferred compensation account. Although plaintiffs accountant estimated her lost retirement income based on a three percent rate of her earnings, there is no evidence indicating that this percentage is accurate. Therefore, contributions to retirement and deferred compensation accounts will not be included in the back pay calculation.
In 2005, plaintiff earned $36,124 in base salary and $25,328 in overtime for a total of $61,452. Accounting for a four percent annual raise, plaintiff would have earned a base salary of $37,568.96 in 2006 and $39,071.72 in 2007.
B. Front Pay
An award of front pay is also discretionary and is intended to make “victims of discrimination whole in cases where the factfinder can reasonably predict that the plaintiff has no reasonable prospect of obtaining comparable alternative employment.” Padilla v. Metro-North Commuter R.R., 92 F.3d 117, 125-26 (2d Cir. 1996). If a court specifically finds that a back pay award is sufficient to make the plaintiff whole, a denial of front pay is not an abuse of discretion. Saulpaugh, 4 F.3d at 145.
As explained above, Bergerson was able to obtain comparable alternative employment; to wit, her full-time position at SLPC. She has a GED and was able to secure other employment to supplement her income. Defendant cannot be held financially responsible for plaintiffs inability to maintain her employment at Birnie Bus or the School for the Deaf. Indeed, it was plaintiffs affirmative conduct that ended these periods of employment. Plaintiffs assertion that the emotional distress caused by her termination from CNYPC perpetually prevents her from maintaining employment is unpersuasive. As noted above, the testimony of plaintiffs family therapist is not credible with respect to this issue. Moreover, plaintiff only occasionally sought mental health counseling and sporadically requires prescription medication. In short, there is
Further, the $92,516.53 that will be awarded in back pay is sufficient to make plaintiff whole. Therefore, her request for front pay will be denied.
C. Attorneys’Fees and Costs
Costs other than attorneys’ fees “should be allowed to the prevailing party.” Fed.R.Civ.P. 54(d). Title VII authorizes a district court to award reasonable attorneys’ fees to a “prevailing private party.” Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir. 2009). Attorneys’ fees are awarded by determining a presumptively reasonable fee, reached by multiplying a reasonable hourly rate by the number of reasonably expended hours. See Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009). The reasonable hourly rate should be “ ‘what a reasonable, paying client would be willing to pay’ given that such a party wishes ‘to spend the minimum necessary to litigate the case effectively.’” Id. (quoting Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 493 F.3d 110, 112, 118 (2d Cir. 2007), amended on other grounds by 522 F.3d 182 (2d Cir. 2008)).
The present prevailing hourly rates in this district, which are what a reasonable paying client would be willing to pay, are $210 for an experienced attorney and $80 for a paralegal. Lewis v. City of Albany Police Dep’t, 554 F.Supp.2d 297, 298-99 (N.D.N.Y. 2008), aff'd, 332 Fed.Appx. 641 (2d Cir. 2009). “Additionally, it is customary in this district to allow only one-half the hourly rate for travel time.” Id. at 299. Further, attorneys’ fees should be limited to those claims for which the plaintiff achieved success. Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 152 (2d Cir. 2008). Therefore, unsuccessful claims must be eliminated and the attorneys’ fees reduced appropriately. Id.
Plaintiff seeks $19,326.50 in attorneys’ fees and $842.50 in costs related to her appeal. Her calculations are based on a $250 hourly rate for an experienced attorney, an $85 hourly rate for a paralegal, and a $125 hourly rate for travel. Defendant argues that plaintiff is not entitled to attorneys’ fees because she did not “prevail” on her appeal as the Second Circuit affirmed both the dismissal of her state law claims and the $210 hourly rate for attorneys’ fees. Defendant also notes that it agreed “remand is appropriate to enable the district court to clarify its post-trial rulings as to compensatory damages and backpay.” See Bergerson, 652 F.3d at 281.
The parties’ submissions have been reviewed and their arguments considered. Defendant only agreed to a remand because plaintiff appealed to. the Second Circuit. To that extent, plaintiff “prevailed” on her appeal. However, plaintiff did not prevail on the remainder of her appeal as the Second Circuit affirmed the dismissal of her state law claims and upheld the $210 hourly rate for attorneys’ fees. Therefore, any attorneys’ fees will be reduced by fifty percent. The prevailing hourly rates of $210 for an experienced attorney, $80 for a paralegal, and $105 for travel will be applied. The costs and legal hours claimed by plaintiff — 65.9 hours for attorney Bosnian, 14.9 hours for her paralegal, and 13 hours of travel — are reasonable.
Accordingly, plaintiff is entitled to reasonable attorneys’ fees of $8198.00 and costs of $842.50, for a total of $9040.50.
IV. CONCLUSION
Plaintiff is entitled to an award of back pay from the date of her termination from CNYPC (January 31, 2006) until the date on which she voluntarily resigned from
Therefore, it is
ORDERED that
1. Plaintiff is awarded back pay in the total amount of $92,516.53, including interest and compounded annually;
2. Reinstatement is DENIED as moot;
3. Plaintiffs request for front pay is DENIED;
4. Plaintiff is awarded attorneys’ fees and costs in the total amount of $9040.50;
5. As plaintiff has prevailed on this determination of back pay, she may seek reasonable attorneys’ fees and costs related to the October 5, 2011, hearing by filing a motion on or before April 17, 2012; and
6. Defendant shall file any response to plaintiffs motion on or before May 1, 2012.
IT IS SO ORDERED.
The Clerk of the Court is directed to enter a supplemental judgment in favor of plaintiff and against the defendant in the total of $101,557.03, with back pay in an amount of $92,516.53 including interest and attorneys’ fees and costs in the amount of $9040.50.
. Since filing this action plaintiff has resumed using her maiden name, Christine Fuller. However, she will be referred to as Christine Bergerson in this order, as she has been throughout the proceedings.
. Citations to the transcript of the hearing will referenced with "Tr.__" Exhibits admitted into evidence at the hearing will be cited as "Hr’g Ex___”
. Plaintiff began her employment on a one-year probationary status. The parties dispute whether plaintiff became a permanent employee in September 2005 by virtue of defendant's failure to timely extend her probationary period. However, as the parties acknowledged at the hearing and in their proposed findings of fact, plaintiff's status as a permanent or probationary employee has no bearing on an award of back or front pay. Therefore, this issue will not be addressed.
. Indeed, plaintiff herself describes this position as "a similar job to a SHTA at lower
. The principal payroll clerk at CNYPC testified that all employees received an annual four percent increase during the relevant time. This is the only evidence from which to estimate the annual salary increase. Defendant referenced New York Civil Service Law § 130 but did not offer any guidance on how this statute impacts plaintiff's back pay calculation. Instead, defendant simply requests that the calculation of any award be left to the New York State Comptroller’s Office. This request is denied.
. These estimates are reasonable when compared to the annual earnings of the four CNYPC employees who testified at the hearing. Sheryl Bingham, who has worked as an SHTA for twenty years, earned $72,405; $64,899; and $71,664 in salary and overtime in 2005, 2006, and 2007 respectively. Tr. 161:20-25. William Devries, an SHTA for over eight years, earned $107,048; $113,761; and $110,404 respectively. Tr. 150:22-25. Laura Vincent began working as an SHTA in 2005 and earned $82,676 in 2006 and $82,206 in 2007. Tr. 187:4-8. Mark Luczak, who also began in 2005, earned a total of $51,373 in 2006 and $54,412 in 2007. Tr.
. Pre-judgment interest is determined by applying the average one-year constant maturity Treasury yield for the relevant time period. See 28 U.S.C. § 1961(a) (2006); Chisholm v. Mem’l Sloan-Kettering Cancer Ctr., 824 F.Supp.2d 573, 580-81 (S.D.N.Y. 2011). The annual average one-year constant maturity Treasury yield declined as follows from 2006 to 2011 respectively: 4.94%; 4.53%; 1.83%; 0.47%; 0.32%; and 0.18%. See Federal Reserve, Selected Interest Rates (Apr. 2, 2012), http://www.federalreserve.gov/Releases/H15/ data.htm. Therefore, pre-judgment interest will be calculated using the average of these figures, or 2.04%.
. The time period between the date of termination and the date of this order is six years and approximately two months. Therefore, the calculation is as follows:
1) $81,681.28 + ($81,681.28 x . 0204) = $83,347.58 (first year)
2) $83,347.58 + ($83,347.58 x . 0204) = $85,047.87 (second year)
3) $85,047.87 + ($85,047.87 x . 0204) = $86,782.85 (third year)
4) $86,782.85 + ($86,782.85 x . 0204) = $88,553.22 (fourth year)
5) $88,553.22 + ($88,553.22 x . 0204) = $90,359.70 (fifth year)
6) $90,359.70 + ($90,359.70 x . 0204) = $92,203.04 (sixth year)
7) $92,203.04 x .0204 = $1880.94 (total interest in the seventh year)
8) $1880.94 x (2/12) = $313.49 (total interest for two months in the seventh year)
9) $313.49 + $92,203.04 = $92,516.53 (total back pay award)
Reference
- Full Case Name
- Christine A. BERGERSON v. NEW YORK STATE OFFICE OF MENTAL HEALTH, Central New York Psychiatric Center
- Cited By
- 2 cases
- Status
- Published