Helen Gelof v. Louis Papineau, in His Capacity as Director of the Delaware Development Office

829 F.2d 452, 1987 U.S. App. LEXIS 12691, 45 Fair Empl. Prac. Cas. (BNA) 83, 45 Empl. Prac. Dec. (CCH) 37,704
Court of Appeals for the Third Circuit·Decided September 25, 1987·No. 86-5924·Published·Cited by 36 cases

Opinions

OPINION OF THE COURT

GIBBONS, Chief Judge.

Louis Papineau, Director of the Delaware Development Office, appeals from a judgment against him in his official capacity and in favor of Helen Gelof in her suit under the Age Discrimination in Employment Act. 29 U.S.C. §§ 621-634 (1982 & Supp. Ill 1985), 648 F.Supp. 912. Gelof was awarded damages totalling $325,201.65 plus post-judgment interest at the rate of 17%. The State of Delaware does not now dispute the district court’s liability determination. It challenges the amount of the award in three particulars. We vacate the judgment and remand for a redetermination of some items of recovery.

A.

Set-Off for Unemployment Compensation

Gelof received unemployment compensation for one year following the termination of her employment at the Delaware Development Office. The parties stipulate that she collected $8,580.00. Under the Delaware Unemployment Compensation Act, DeLCode Ann. tit. 19, § 3345(b)(1) (Supp.1986), Delaware as public employer participates in the unemployment compensation fund on a dollar-for-dollar reimbursement basis.1 The Delaware statute does not, however, provide for recoupment by the fund of unemployment benefits when back pay has been awarded for a wrongful discharge. Cf. Pa.Stat.Ann. tit. 43, § 874(b)(3) (Purdon Supp.1987) (explicitly allowing recoupment).

Delaware, relying on Dillon v. Coles, 746 F.2d 998, 1006-07 (3d Cir.1984), contends that although it could sue Gelof for recoupment it should be able to set off against her back pay award the $8,580.00 paid to her from the fund. Gelof, relying on Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 81-85 (3d Cir.1983), contends (and the district court ruled) that unemployment compensation payments may not be set off against a back pay award in the absence of a statutory provision for recoupment. Both Dillon and Craig are cases arising under Title VII of the Civil Rights Act of 1964. It is settled in this court, however, that in cases arising under the Age Discrimination in Employment Act unemployment compensation payments may not be set off against back pay awards made in favor of employees in the private sector. McDowell v. Avtex Fibers, Inc., 740 F.2d 214, 216-17 (3d Cir.1984), vacated and remanded on other grounds, 469 U.S. 1202 (1985). Indeed, the McDowell opinion relied on Craig, and on the Supreme Court’s opinion in NLRB v. Gullett Gin Co., 340 U.S. 361, 71 S.Ct. 337, 95 L.Ed. 337 (1951), a National Labor Relations Act case, in deciding that set-off of unemployment compensation benefits against age discrimination back pay awards would be inappropriate. The McDowell court observed:

In our view the reasons supporting this court’s decision concerning Title VII in Craig apply even more so to this case involving the ADEA. Indeed, ... while the ends of the two statutes are virtually identical, the ADEA back pay awards, unlike Title VII back pay awards, are not discretionary.

740 F.2d at 217. Thus Craig and McDowell control unless this case fits within the narrow exception recognized in Dillon.

In Craig we adopted the rule against set-off of unemployment benefits

because we conclude[d] that the legislative history and Gullett Gin are persuasive, that the primary prophylactic policy of Title VII would thereby be better served, that the rule would foster uniformity in applying the back pay remedy, and that the recoupment of unemployment benefits by the state is the better way of dealing with any possible [455] unfairness as between the state and recipient.

721 F.2d at 85 (emphasis supplied). In Dillon, a Title VII case against the Commonwealth of Pennsylvania, which unlike Delaware has a recoupment statute, we permitted a set-off because

t would be wasteful of public funds to require the state to institute the separate suit it is authorized to bring to recoup part of the back pay award.

746 F.2d at 1007. Thus it is clear that the outcome in Dillon depended upon the fact that under Pennsylvania law the Commonwealth’s unemployment compensation fund had a substantive cause of action for recoupment from recipients of back pay awards who had received fund benefits. That recoupment cause of action exists, moreover, whether the employer is public or private. Pa.Stat.Ann. tit. 43, § 874(b)(3). It is thus a part of the defined insurance benefit which accrues to employees in Pennsylvania by virtue of their labor.

Delaware urges that even though its fund has no recoupment feature it should nevertheless have the benefit of the Dillon exception. Delaware reasons that unlike private employers in that state, whose contributions to the fund are in the nature of a tax, it reimburses the fund on a dollar-for-dollar basis. Thus, Delaware urges, it is a direct rather than a collateral source of the funds and should not be subjected to the Craig rule. Delaware’s argument, however, ignores several important considerations. The first of these is the deterrent policy stressed by the Craig opinion. 721 F.2d at 84. That policy is no less applicable when the state reimburses the fund. Moreover, while the unemployment compensation fund receives contributions from employers in the private sector indirectly in the form of taxation, the source of all the state’s funds, including those it pays into the unemployment compensation fund, is also taxation. Thus all payments from the fund are a form of social insurance supported by taxation. Finally, that social insurance payment is not simply a form of state largess. Both in the private and in the public sector unemployment compensation benefits are earned by the employee because of past labor. In this respect a public and private employee are identically situated.

We hold, therefore, that in cases in which the state has not defined the social insurance benefit by including a provision for recoupment against back pay awards, Craig is the controlling precedent. Thus the district court did not err in declining to set off $8,580.00 from Gelof’s back pay award.

B.

Tax Effect

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Helen Gelof v. Louis Papineau, in His Capacity as Director of the Delaware Development Office, 829 F.2d 452, 1987 U.S. App. LEXIS 12691, 45 Fair Empl. Prac. Cas. (BNA) 83, 45 Empl. Prac. Dec. (CCH) 37,704 (3d Cir. 1987).

829 F.2d 452 (Helen Gelof v. Louis Papineau, in His Capacity as Director of the Delaware Development Office) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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