violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 623, and two claims under this Court's supplemental jurisdiction, one for an alleged breach of an employment contract and the other for an alleged violation of New York State's anti-discrimination in employment statute, N.Y. Executive Law § 296, which Gargano subsequently abandoned. Gargano's claims arose from the closing of St. Anthony and the subsequent failure to hire or properly consider her for a position at Trinity, a new regional school which absorbed a number of local parish schools, including St. Anthony.
Beginning on February 28, 1995, the Court conducted a jury trial over the course of five days. At the close of Gargano's case and again after defendants had rested, defendants moved for judgment as a matter of law pursuant to Fed. R. Civ. Pro. 50(a) on the ground, inter alia, that the Diocese was not Gargano's employer. The Court denied these motions. On March 7, 1995, the jury returned a verdict against Gargano on the ADEA claim, but in favor of her on the breach of contract claim, concluding on a special verdict form that (i) the Diocese was Gargano's employer, (ii) a teachers' handbook constituted part of the employment contract existing between the Diocese and Gargano, and (iii) the Diocese breached certain provisions of the handbook. Trinity incurred no liability. The Diocese thereafter renewed its motion for judgment as a matter of law pursuant to Fed. R. Civ. Pro. 50(b), which the Court denied, and now seeks reargument contending once again that it was not as a matter of law Gargano's employer and challenging each of the jury's three factual findings. See Rule 3(j) of the Civil Rules for the United States District Court for the Eastern District of New York.
Apart from the Diocese's request for reargument, the parties submitted at the Court's request post-verdict memoranda discussing issues relating to the appropriate measure of damages and/or other remedies, if any, beyond a stipulated amount of damages to which the parties had agreed. The stipulation provided that Gargano would receive $ 83,300 if she proved successful on either her ADEA or breach of contract claim, as calculated from the day after Gargano's last employment with St. Anthony until the date of the verdict, Gargano's memorandum addressed these issues and argued for specific performance to compel Trinity to hire her or, in the alternative, "front pay" until Gargano reaches the age of 65 (she is currently in her late forties). The Diocese's memorandum contained only two paragraphs on the issue of appropriate damages/remedies, devoting the remainder of its memorandum to discussing its reargument contentions.
Upon consideration of the parties' various submissions, the Court grants reargument to the Diocese but, for reasons more fully set forth below, denies its request to set aside the verdict. Accordingly, the Court considers and resolves various issues relating to the proper measure of damages and/or other remedies.
Prior to trial, the parties stipulated to a number of facts. In brief, they agreed that Gargano was employed by St. Anthony as a second grade teacher from 1969 until August 1992, when the school closed following the recommendations of several groups which had been organized for the purpose of studying whether to continue the Catholic elementary school system in its then-present form. Part of the recommendation was the formation of a Regional Planning Board organized from the six parishes within the geographic "region" in which St. Anthony was located. The Regional Planning Board recommended the closing of the schools within the region and the establishment of Trinity as a regional school in order to provide grade school children, who had formerly attended the parish schools, the best possible Catholic education.
As part of the staffing procedures for Trinity, guidelines were provided relative to the hiring of the faculty for the new school, who were to be drawn whenever possible from the ranks of those teachers that had formerly made up the faculties of the parish schools which were closing. Gargano, as part of the processing procedure, submitted to interviewing as did 58 other candidates who where vying for 38 available faculty positions.
The interviews were conducted, prospective teachers were evaluated and, thereafter, Gargano was advised that she would not be hired as a member of the Trinity faculty. Gargano appealed this decision to the Diocese's Superintendent of Education who declined to overrule it. After filing a claim with the Equal Employment Opportunity Commission, Gargano brought this lawsuit.
As noted above, the Diocese challenges on reargument its liability for the breach of contract claim. More specifically, "it is [the Diocese's] position that, as a matter of law, there was no employment relationship between [Gargano] and the Diocese." Defendants' Memorandum of Law ("Defs.' Mem.") at 1. The Diocese argues that the issue of whether such an employer-employee relationship existed was not a question for the jury, but rather one the Court should have determined in the Diocese's favor. For the reasons that follow, the Diocese's argument fails.
1. Employer-Employee Relationship
The Diocese argues that the jury verdict cannot stand because "[a] finding that the Diocese was the employer under the circumstances in effect pierced the corporate veil without justification or any rational basis." Defs.' Mem. at 6. "In order for the veil of corporate status to be pierced," explains the Diocese, "one must establish that the corporation is a dummy under which in reality the individual shareholders are carrying on their personal business." Id. (citing Port Chester v. Atlas, 40 N.Y.2d 652, 357 N.E.2d 983, 389 N.Y.S.2d 327 (1976)). The Diocese argues:
In the instant case, plaintiff has neither alleged nor offered any evidence that the corporate identities of the Diocese . . . and St. Anthony . . . are mere shams. Sr. Joanne Callahan testified that the Diocese, the parish schools, and the regional schools are each separate corporate entities. The effective "piercing of the corporate veil" was unwarranted in this case.
Id. at 7. In effect, the Diocese argues that Gargano's only recourse was to sue St. Anthony, a school which the Diocese closed and put out of existence.
The Court agrees with the Diocese that the record does not indicate that "the corporate identities of the Diocese . . . and St. Anthony were mere shams." The Diocese's argument, however, misses the point: It fails to recognize that more than one entity can employ the same individual at the same time -- without either being "shams." "A joint employer relationship may be found to exist where there is sufficient evidence that the respondent had immediate control over the other company's employees." National Labor Relations Board v. Solid Waste Servs., Inc., 38 F.3d 93, 94 (2d Cir. 1994). The "relevant factors include commonality of hiring, firing, discipline, pay, insurance, records, and supervision." Id. "In a joint employer situation, it is assumed that the two employers are separate legal entities, but 'have merely chosen to handle certain aspects of their employer-employee relationships jointly.'" Hardy v. Kaszycki & Sons Contractors, Inc., 870 F. Supp. 489, 494-95 (S.D.N.Y. 1994) (quoting Clinton's Ditch Co-op Co. v. National Labor Relations Board, 778 F.2d 132, 137 (2d Cir. 1985), cert. denied, 479 U.S. 814, 107 S. Ct. 67, 93 L. Ed. 2d 25 (1986)). "Whether [the Diocese] exercised sufficient supervision and control over [Gargano] to qualify as a joint employer 'is essentially a factual issue.'" International Longshoremen's Ass'n, AFL-CIO v. Delta Steamship Lines, Inc., 832 F.2d 759, 763 (2d Cir. 1987) (quoting Clinton's Ditch, 778 F.2d at 136).
The Second Circuit's affirmance in National Labor Relations Board v. Roman Catholic Diocese of Brooklyn, 535 F.2d 1387 (2d Cir. 1976), of a decision of the National Labor Relations Board ("NLRB") demonstrates application of the concept of "joint employer" under circumstances virtually indistinguishable from those of the present case. In Roman Catholic, the NLRB brought charges of unfair labor practices against, inter alia, the Roman Catholic Diocese of Brooklyn ("Roman Catholic") for failing to recognize and bargain with the lay teachers of St. Leo's School, which was one of 185-190 parish-operated primary schools in the Diocese of Brooklyn. Roman Catholic Diocese of Brooklyn and St. Leo's Parish, and Lay Faculty Ass'n, 221 N.L.R.B. 831, 1975 WL 6503 at *3 (Nov. 26, 1975). The NLRB held that Roman Catholic was a "joint employer" of the lay teachers of St. Leo's School, along with St. Leo's Parish, which concededly operated the school. The findings made by the administrative law judge, as adopted by the NLRB, included the following facts upon which the NLRB based its decision:
. "The Catholic Schools' office [which was part of Roman Catholic] recruits applications of prospective teachers and maintains them in its files. When vacancies occur or positions become available, the Schools' office sends four or five referrals to the schools for interviews and the schools will select the teacher on the basis of such referrals."