Meschino v. International Telephone & Telegraph Corp.

661 F. Supp. 254, 43 Fair Empl. Prac. Cas. (BNA) 1560, 1987 U.S. Dist. LEXIS 3598, 43 Empl. Prac. Dec. (CCH) 37,089
CourtDistrict Court, S.D. New York
DecidedMay 6, 1987
Docket81 Civ. 3588 (SWK)
StatusPublished
Cited by18 cases

This text of 661 F. Supp. 254 (Meschino v. International Telephone & Telegraph Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Meschino v. International Telephone & Telegraph Corp., 661 F. Supp. 254, 43 Fair Empl. Prac. Cas. (BNA) 1560, 1987 U.S. Dist. LEXIS 3598, 43 Empl. Prac. Dec. (CCH) 37,089 (S.D.N.Y. 1987).

Opinion

MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

On April 16, 1984, a jury found that defendant International Telephone and Telegraph Corporation (“ITT”) terminated plaintiff William Meschino’s employment at ITT in willful violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the “ADEA”).

The parties agreed to submit all the damages issues to the Court. The Court held a hearing on mitigation on May 21, 1984, and ruled that Meschino had mitigated damages. The Court held a hearing on actual damages on January 20 and 21, 1987. The following are the Court’s findings of fact and conclusions of law as to the damages to which Meschino is entitled.

I. PLAINTIFF’S BURDEN OF PROOF ON DAMAGES

The ADEA authorizes district courts to grant an ADEA claimant:

such legal or equitable relief as may be appropriate to effectuate the purposes of this act, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts [owing to a person as a result of the violation of the ADEA].

29 U.S.C. § 626(b). The Second Circuit “encourage[s] district judges in this circuit to fashion remedies designed to ensure that victims of age discrimination are made whole.” Whittlesey v. Union Carbide Corp., 742 F.2d 724, 727-28 (2d Cir.1984) (citing Geller v. Markham, 635 F.2d 1027, 1036 (2d Cir.1980), cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981)). This makewhole standard of relief entitles a victim of age discrimination to be restored to “the economic position he would have occupied but for the discrimination.” Kolb v. Goldring, Inc., 694 F.2d 869, 872 (1st Cir.1982). The plaintiff in an ADEA action has the burden of proof as to damages. Kolb, 694 F.2d at 873; Gibson v. Mohawk Rubber Co., 695 F.2d 1093, 1100 n. 7 (8th Cir.1982). (“We believe that in an ADEA action, the plaintiff bears the ulti *257 mate burden of persuasion on damages issues.”).

ITT argues, relying on Kolb, supra, that Meschino’s testimony as to what his annual salary, bonus, and fringe benefit increases at ITT would have been had he not been terminated should be stricken because it was not based on first-hand knowledge of ITT’s salary and bonus policies after he was terminated, and Meschino is not an expert on ITT’s salary policies. If such testimony is stricken, Meschino will have no evidence to support his claim for damages.

Meschino’s calculations were based on average increases of his salary, bonus, and fringe benefits in his last five years at ITT. Calculating lost earnings based on prior earnings history is an acceptable method for estimating damages under the ADEA. Maxfield v. Sinclair International, 766 F.2d 788, 797 (3d Cir.1985), ce rt. denied, — U.S. -, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). ITT’s reliance on Kolb, supra, is misplaced. The court in Kolb ruled only that in the absence of expert testimony, patterns of past pay increases, or other similar objective evidence, proof of future raises would be too speculative. Kolb, 694 F.2d at 873. In this case, Meschino supported his claim of future raises with evidence of prior earnings history and thus his testimony is admissible. The issue is whether the testimony satisfies Meschino’s burden.

II. PERIOD FOR WHICH MESCHINO IS ENTITLED TO DAMAGES

The parties agree that Meschino’s entitlement to back pay begins on the date his severance pay ended, January 26, 1981. See Laugesen v. Anaconda Co., 510 F.2d 307, 317 (6th Cir.1975). They disagree as to when the period should end.

ITT claims that Meschino would have been terminated in March 1982 due to general staff reductions at ITT headquarters in that year, and that his back pay period should end on October 7, 1982, the date his severance would have ended. John Foley, the head of ITT’s Operations Staff, who was the person the jury found had ordered Meschino’s unlawful discharge in 1980, testified that Meschino was a good note taker and reporter, but not a person who could initiate change, which is what Foley wanted in a headquarters’ executive. Foley said that Meschino was one of the poorest performers in his department, and would have been one of the first persons discharged in ITT’s general staff reductions in 1982.

The evidence adduced at the hearing supports Foley’s judgment. While Meschino was at ITT, it employed an employee rating scale of 1 to 9, with nine being the highest. Meschino generally received a rating of 7, and one year received a 6. Other people on his staff generally received 8’s. Meschino’s average rating was in the lower portion of his department. Meschino’s salary and bonus were also lower than other executives in his department. Thus, Meschino was one of the poorest performers in his department.

A prevailing plaintiff in an ADEA action may not recover damages for the period after which he would have been terminated for a non-discriminatory reason. Gibson, 695 F.2d at 1097; Bonura v. Chase Manhattan Bank, 629 F.Supp. 353, 356 (S.D.N.Y.), aff'd, 795 F.2d 276 (2d Cir.1986). For example, if the division in which the plaintiff worked was entirely eliminated, he would not be entitled to benefits after that. Hill v. Spiegel, 708 F.2d 233, 238 (6th Cir.1983); Bonura, 629 F.Supp. at 356. In this case, the number of executives in Meschino’s department was reduced from 28 to 24. In the absence of total elimination of the plaintiff’s department, the defendant has a heavy burden to show that a plaintiff would have been discharged as part of a partial staff reduction. See Bonura, supra.

ITT has met its burden. Foley’s judgment that Meschino was a poor performer is confirmed by the objective evidence of Meschino’s job ratings, salary, and bonus. In addition, the Court’s own observation of Meschino, who testified on three separate occasions, confirms Foley’s judgment of Meschino. Although the staff reductions in Meschino’s department were *258 small in 1982, the evidence indicates that Meschino would have been cut. The Court thus finds that the end of the back pay period is October 7, 1982.

III. BACK PAY OWING TO MESCHINO

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661 F. Supp. 254, 43 Fair Empl. Prac. Cas. (BNA) 1560, 1987 U.S. Dist. LEXIS 3598, 43 Empl. Prac. Dec. (CCH) 37,089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meschino-v-international-telephone-telegraph-corp-nysd-1987.