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MULQUEEN v. DAKA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK


December 13, 1995

JANE E. MULQUEEN, as Administratrix of the Estate of Francis J. Mulqueen, Jr., Plaintiff,
v.
DAKA, INC., Defendant.

The opinion of the court was delivered by: HURD

MEMORANDUM DECISION AND ORDER

 I. INTRODUCTION.

 On May 21, 1991, Francis J. Mulqueen, Jr. was terminated from his position at defendant Daka, Inc., where he was employed as a food service manager. He died approximately two and one-half years later on November 10, 1993. His daughter, Jane Mulqueen, as Administratrix of his estate, brought suit pursuant to 42 U.S.C. § 2000e, claiming that the defendant terminated his employment solely due to his age, in violation of the Age Discrimination in Employment Act ("ADEA"). See 29 U.S.C. § 626 et seq. The action was tried in Albany, New York, on September 18, through 21, 1995, at the conclusion of which the jury returned a favorable verdict to the Estate in the amount of $ 102,502.34 for past lost earnings including fringe benefits. Judgment was entered accordingly on September 22, 1995.

 Plaintiff *fn1" now moves for an award of prejudgment interest from November 10, 1993, to September 22, 1995, and for an award of attorney's fees and expenses. 29 U.S.C. § 626(b). There is no opposition from the defendant.

 Daka, Inc. has likewise filed post trial motions. It seeks judgment in its favor as a matter of law pursuant to Fed. R. Civ. P. 50(a), or in the alternative, a new trial pursuant to Fed R. Civ. P. 59.

 Oral argument was held in Utica, New York, on November 9, 1995. The court reserved decision. Since the results of the defendant's motions will have implications on the plaintiff's motions, defendant's motions will be addressed first.

 II. DISCUSSION.

 The Supreme Court has determined that ADEA cases will be subject to and follow the law of Title VII cases. Lorillard v. Pons, 434 U.S. 575, 584, 98 S. Ct. 866, 55 L. Ed. 2d 40 (1978). Thus, the starting point in determining the outcome of an ADEA case is - as with Title VII cases - the seminal case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). *fn2" There the Supreme Court set out a three step process, allocating burdens of production and persuasion. *fn3" The first of these steps - that of proving a prima facie case - belongs to the plaintiff. One of the methods in which plaintiff may satisfy his burden is by coming forth with proof of the following: "(i) that he belongs to a [protected class]; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." McDonnell Douglas, 411 U.S. at 802. *fn4" Defendant's motions hinge upon whether the plaintiff has fulfilled his burden with regard to the second of these four McDonnell Douglas elements.

 A. Establishment of a Prima Facie Case.

 Proving a prima facie case requires only a de minimis showing that there exists a triable issue of fact, Quaratino v. Tiffany & Co., 71 F.3d 58, 1995 U.S. App. LEXIS 32635, *19, 1995 WL 686653, at *7-8 (2d Cir. 1995) ("plaintiff's burden of proof in a . . . discrimination action is de minimis at the prima facie stage, . . ."); Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988), so that the court may focus its attention on "the ultimate question of discrimination vel non." United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983).

 Defendant argues that the plaintiff has failed to show even a de minimis amount of evidence supporting his qualification for the job. In support of this argument, defendant alleges that the proper standard to be used in determining whether the "qualified" element of a prima facie case has been established is "whether the employee was doing the job well enough to 'meet his employer's [the Defendant's] legitimate expectations.'" Charrette v. S.M. Flickinger Co., 806 F. Supp. 1045, 1056 (N.D.N.Y. 1992) (quoting Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir.), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985)); see also Huhn v. Koehring Co., 718 F.2d 239, 244 (7th Cir. 1983). However, these cases, and the line of cases from which they draw support, lack the clarity, specificity, and foundation to establish this view as the present state of the Second Circuit's definition of prima facie "qualified," in discriminatory discharge cases as will be discussed infra.

 On the other hand, at least four Second Circuit cases have specifically addressed the issue since the Supreme Court rendered its decision in McDonnell Douglas enumerating the elements of a prima facie case. The first of these was the case of Powell v. Syracuse Univ., 580 F.2d 1150 (2d Cir.), cert. denied, 439 U.S. 984, 58 L. Ed. 2d 656, 99 S. Ct. 576 (1978). Released five years after McDonnell Douglas, it examined whether the plaintiff, a black female part-time visiting assistant professor with the Architecture Department at Syracuse University was terminated based upon race or sex. Id. at 1151. The district court dismissed the action, finding that plaintiff had failed to establish two items of the McDonnell Douglas prima facie case: that she was "qualified" to teach on the faculty, and that other persons with similar qualifications were subsequently hired. Id. at 1155.

 The Second Circuit directly addressed the issue with which we now deal. The Court stated:

 

We believe that the trial court applied an erroneous legal standard in reaching these conclusions. . . .

 

With respect to the first of the court's findings [that plaintiff was not qualified], we believe that the court's approach unnecessarily collapses the steps suggested by McDonnell Douglas by shifting considerations which are more appropriate to the employer's rebuttal phase to the earlier requirement that the employee demonstrate competence to perform the specified work. This is not merely of formal consequence, for it has the practical effect of requiring the employee to prove not merely that he possesses the basic skills necessary for the job, but rather that he is the best-qualified candidate for the job, under the criteria suggested by the employer. As can be seen in the present case, this burden is extremely difficult to meet if the employer's claim that the employee did not meet some unstated level of performance is sufficient to negate the employee's offer of proof.

 Id. By stating, "We believe that the court's approach unnecessarily collapses the steps . . . by shifting considerations which are more appropriate to the employer's rebuttal phase," id., the Second Circuit specifically delineated the limited nature of the "qualified" element of a prima facie case, finding little room for proof of performance at that stage. The Circuit sought to keep the status of proving a prima facie case to a de minimis showing. *fn5" The Second Circuit in Powell continued, "If an employer is dissatisfied with the performance of an employee, he can properly raise the issue in rebuttal of the plaintiff's showing. . . . [Plaintiff] has demonstrated that she possesses the basic skills necessary for the performance of her job, and has thereby made out a prima facie showing of competence." Id.

 The Second Circuit has thus made it clear that an employer's legitimate expectation of performance has no place in determining qualification at the prima facie stage of the case, as the defendant suggests. Other Second Circuit cases interpreted the prima facie case analysis as well. *fn6"

 Finally, in Owens v. New York City Housing Auth., 934 F.2d 405 (2d Cir.), cert. denied, 502 U.S. 964, 116 L. Ed. 2d 451, 112 S. Ct. 431 (1991), an ADEA case, the Second Circuit reviewed a decision of the district court dismissing plaintiff's claim for her failure to establish that she was qualified for the position, and therefore, for her failure to make out a prima facie case. Id. at 408. Specifically, the district court found that a state court determination of misconduct collaterally estopped plaintiff from proving the "qualification" element of her prima facie case. Id. The Second Circuit disagreed. Id. at 409. They found no identity of issue between the finding of misconduct and the finding of qualification - required for collateral estoppel to apply. Id. The court stated, "McDonnell Douglas requires only a minimal showing of qualification to establish a prima facie claim. Owens only needs to demonstrate that she 'possesses the basic skills necessary for performance of the job.'" Id. (quoting Powell, 580 F.2d at 1155.) The court continued:

 

The state court never passed on Owens' competence to perform her work. Rather, it upheld the Trial Officer's findings of misconduct and 'gross insubordination.' We have no doubt that such misconduct may certainly provide a legitimate and nondiscriminatory reason to terminate an employee. This misconduct is distinct, however, from the issue of minimal qualification to perform a job. An individual may well have the ability to perform job duties, even if her conduct on the job is inappropriate or offensive.

 Id. (emphasis added) (internal footnote omitted).

 Again the Second Circuit sought to distinguish between a showing of qualifications for a job and performance on a job. A qualified employee for the purposes of proving a prima facie case, may still undertake "conduct on the job [that] is inappropriate or offensive." Id. A surgeon may be eminently qualified for a hospital position. Yet his daily tardiness or rude treatment of patients while performing his rounds would certainly provide the hospital with legitimate nondiscriminatory reasons for termination. This poor performance, however, must be evaluated in the second and third stages of the McDonnell Douglas framework. Such reasons cannot preclude the plaintiff from his day in court at the prima facie stage where the plaintiff's burden is merely de minimis.

 Based upon the above analysis, the Second Circuit stance on this issue is that a prima facie case may be established with little more than a showing of the skills needed to perform the job, and this has been more than established.

 1. "Performed the Job Satisfactorily "

 It remains incumbent upon this court to identify the flaws in the premise that the defendant forwards. There are three Second Circuit cases since the 1973 Supreme Court determination in McDonnell Douglas that have actually referenced or renamed the McDonnell Douglas "qualification" item as "performed the job satisfactorily." See Quaratino, 71 F.3d 58, 1995 U.S. App. LEXIS 32635, *15, 1995 WL 686653, at *7-8; see also Chambers v. TRM Copy Centers Corp., 43 F.3d 29 (2d Cir. 1994); Meiri, 759 F.2d at 995. *fn7" However, it is not at all clear that these cases attempted a reworking of the law or the definition of "qualified." Rather, it appears that the defendant's argument finds its foundation in other Circuits; particularly the First and Seventh.

 a. Renaming of the "Qualified" Element

 The three cases mentioned merit a quick review to determine why such language was used. Looking first to the Quaratino case, the court stated:

 

A plaintiff can establish a prima facie case of pregnancy discrimination under Title VII by showing that: (1) she is a member of a protected class; (2) she satisfactorily performed the duties required by the position; (3) she was discharged; and (4) her position remained open and was ultimately filled by a nonpregnant employee.

 Quaratino, 71 F.3d 58, 1995 U.S. App. LEXIS 32635, *13, 1995 WL 686653, at *5 (emphasis added). The Court cited to only McDonnell Douglas, 411 U.S. at 802, and Burdine, 450 U.S. at 253, in support of its captioning. Yet neither of these cases either name the "qualified" element thus or deal with a failure on the part of the plaintiff to satisfy its prima facie case due to a failure to show that she met the employer's legitimate expectations. McDonnell Douglas, 411 U.S. at 802 ("we agree with the Court of Appeals that respondent proved a prima facie case. . . . Petitioner, moreover, does not dispute respondent's qualifications and acknowledges that his past work performance in petitioner's employ was 'satisfactory.'"); Burdine, 450 U.S. at 260 (Court of Appeals judgment vacated and remanded due to the placement of too heavy a burden upon the defendant in not only articulating, but proving, its legitimate nondiscriminatory reasons for termination; a prima facie case was proven and not at issue).

 Dealing next with the 1994 case of Chambers, the court stated in a similar nature to Quaratino:

 

In order to establish a prima facie case of discriminatory discharge, the plaintiff must show (1) that he belongs to a protected class; (2) that he was performing his duties satisfactorily; (3) that he was discharged; and (4) that his discharge occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in that class.

 43 F.3d at 37 (emphasis added). There, support was forwarded for their restatement of the rule. However, the support lacks strength. *fn8"

 Finally, focusing on the third of this line of cases, Meiri appears to have begun the confusion in this area of law in the Second Circuit. With citation to nothing other than McDonnell Douglas, this case appears to be the first to rename the "qualification" item, calling it instead, "that her job performance was satisfactory." Meiri, 759 F.2d at 995.

 Only further into the opinion does the Second Circuit explain the source of this captioning. Subsequent to listing the elements of a prima facie case, the opinion later deals specifically with the element "performance was satisfactory," and there explains from where it extracts the definition of the McDonnell Douglas item "qualified," as "satisfactory job performance." See id.

 The Meiri Court relied upon the Seventh Circuit cases, Huhn, 718 F.2d at 244, and Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1223 (7th Cir. 1980), *fn9" in stating that "the ultimate inquiry is whether an employee's performance 'meets his employer's legitimate expectations.'" Meiri, 759 F.2d at 995 (quoting Huhn, 718 F.2d at 244). On its face, it is unclear what the Second Circuit intended in using its language, "ultimate inquiry." Was that language used to refer to the finding of "qualified" in establishing a prima facie case? On the other hand, was the language "ultimate inquiry" used to mirror the Supreme Court in Aikens when it referred to "the ultimate question of discrimination vel non." Id. at 714 (emphasis added). The Aikens Court said "The prima facie case method . . . was 'never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.'" Id. at 715 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978)) (emphasis added).

 Subsequent case law from the Second Circuit has clarified the confusion. Specifically, the court rejected the requirement that plaintiff prove he or she met the employer's legitimate expectations of performance in establishing a prima facie case. See Powell, 580 F.2d at 1155; see also Owens, 934 F.2d at 409. *fn10"

 b. The Source of Defendant's Premise

 So while the Second Circuit in Meiri did not intend a severe shift in the definition of "qualified," the two Seventh Circuit cases of Huhn and Kephart, upon which Meiri relies intended just that. Their language is precise and unambiguous. Those cases rely in turn upon the First Circuit case of Loeb, 600 F.2d 1003, and it is Loeb that appears to be the genesis of the practice of using job performance in proof of qualification. Thus rather than focusing on the rationale behind the Seventh Circuit's case law, a jump directly to an analysis of the Loeb case in the First Circuit would prove more direct.

 The First Circuit first reiterated the Supreme Court's own analysis, stating that the four items listed by the Supreme Court in McDonnell Douglas were fact specific to produce an inference that would withstand the most common rebuttals. Id. at 1011, 1013. *fn11" The First Circuit then reasoned that:

 

To apply [that flexibility] concept in the present case, which involves firing, not hiring, the critical elements (beyond being within the protected class . . . and fired) must be modified to produce an analogous inference. Complainant would be required to show that he was "qualified" in the sense that he was doing his job well enough to rule out the possibility that he was fired for inadequate job performance, absolute or relative.

 Loeb, 600 F.2d at 1013. The First Circuit thus counseled the exact practice that the Second Circuit forewarned against. The Second Circuit had stated:

 

We believe that the [trial] court's approach unnecessarily collapses the steps suggested by McDonnell Douglas by shifting considerations which are more appropriate to the employer's rebuttal phase to the earlier requirement that the employee demonstrate competence to perform the specified work.

 Powell, 580 F.2d at 1155.

 The First Circuit then continues, immediately noting, "We can assume that, unless the employee's job has been redefined, the fact that he was hired initially indicates that he had the basic qualifications for the job, in terms of degrees, certificates, skills and experience." Loeb, 600 F.2d at 1013 n.10. The First Circuit was apparently of the opinion that such a seemingly obvious point (i.e., hiring qualifications for a presently employed worker) would not further bolster the sought after inference in a discharge case, and would therefore serve no purpose in establishing a prima facie case. See id. at 1013-14. The First Circuit concluded that the "qualifications" item must then mean something more. Id. at 1014.

 However, this presumes that initially holding the job from which a plaintiff was terminated proves he was qualified at that time, and that requiring plaintiff to prove such a point would add nothing to proving a prima facie case. Yet, changes in abilities, whether through physical injury or otherwise, failure to take refresher courses and training, or any changes in circumstances yet unnamed, can transform someone qualified for a position some years earlier, to a point where he is no longer qualified for that position.

 No Second Circuit case has adopted the Loeb definition, nor defined the "qualifications" item of a prima facie case as extremely as did the First and Seventh Circuits. Any Second Circuit case showing a lean toward use of an employer's expectations of plaintiff's job performance spawns directly from the Second Circuit case of Meiri which in turn relied upon the Seventh Circuit cases, and through them, the First Circuit case of Loeb.

 But it is clear that Meiri says nothing more than when analyzing a discriminatory discharge case, performance will come into play. See 759 F.2d at 995. It does not say - as the Seventh and First Circuits did - that in order to establish a prima facie case of discrimination in such a case, performance must be shown to be subjectively satisfactory. See Huhn, 718 F.2d at 244; see also Kephart, 630 F.2d at 1223; Loeb, 600 F.2d at 1013.

 B. Defendant's Motions.

 1. Defendant's Motion for Judgment as a Matter of Law.

 a. Prima Facie Case

 Returning now to the source of the above discussion, defendant first argues in support of its motion for judgment as a matter of law, that plaintiff has failed to establish the second element of his prima facie case.

 This court found, as a matter of law, that plaintiff demonstrated that he possessed the basic skills necessary to perform his job and therefore he had established a prima facie case. See Powell, 580 F.2d at 1155 (plaintiff need only "demonstrate[] that [he] possesses the basic skills necessary for the performance of [his] job [to make] out a prima facie showing of competence"). During the court's charge, the jury was instructed that plaintiff was qualified as a matter of law. Ample evidence exists to support this finding.

 The testimony of both the plaintiff's daughter, Jane Mulqueen, who also worked for the defendant for a number of years, and Colleen Byrnes, an assistant food service manager to plaintiff the year of his termination, established that plaintiff performed his work satisfactorily. Management performance appraisals for the years 1982-1988, marked as D-23(a) through D-23(g), were additional evidence that his performance satisfied defendant's expectations. Defendant's failure to produce the appraisals for the two years which immediately preceded the termination supports an inference that plaintiff's performance continued to be satisfactory during those two years. Testimony was admitted that the plaintiff corrected problems pointed out to him, and that the only evidence critical of his performance existed prior to the numerous admitted commendations and reports. Testimony was taken that the plaintiff's responsibilities were increased only eight months prior to termination. There was additional testimony that he was a hands-on-manager. Plaintiff produced an exhibit identified as P-14 from the president of Daka, Inc., Allen Maxwell, dated September 17, 1990, complimenting him on his performance. He produced a letter from the former vice president complimenting him on a good job. He produced reports regarding worker safety marked as P-28 and P-29, stating that plaintiff had suffered no accidents on the job. He produced a letter marked P-31 from Joe Smyth saying, "Keep up the good work," and a letter marked P-32 also from Joe Smyth complimenting him on a good job.

 Evidence of salary increases, profitability bonuses, satisfactory performance evaluations, congratulatory memos, and the assignment of responsibility for the RPI Field House concession operations, all show that plaintiff satisfied his de minimis burden.

 In fact, even in the event that the term "qualified" were to mean "the employer's legitimate expectations of performance," as the defendant argued, the evidence listed above more than satisfies a de minimis showing that his performance satisfied the legitimate expectations of the defendant. The several commendations, positive reports, and letters create an inference of satisfactory performance, thereby proving a prima facie case. The defendant is still entitled to articulate plaintiff's performance as a legitimate nondiscriminatory reason for termination at the next stage of the McDonnell Douglas framework.

 b. Willful v. Intentional Conduct

 In support of this motion, defendant next argues that the jury's finding that the termination was because of age, cannot be read in conformity with the finding that the termination was not willful. *fn12"

 The ADEA provides that willful violations of the act will subject the employer to liability for liquidated damages. 29 U.S.C.A. § 626(b) (1985). A violation is willful where the employer "knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute." Hazen Paper Co. v. Biggins, 507 U.S. 604, , 113 S. Ct. 1701, 1710, 123 L. Ed. 2d 338 (1993); see also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126, 105 S. Ct. 613, 83 L. Ed. 2d 523 105 S. Ct. 613 (1985). According to defendant, at trial it was undisputed that plaintiff's termination was deliberate, intentional, and knowing. The issue is whether the jury could have found that the defendant did not know that "its conduct was prohibited by the statute." Hazen Paper, 113 S. Ct. at 1710. Defendant asserts that it never claimed or argued "ignorance of the law [or] that it did not know its discharge of the plaintiff because of age would violate the law." (Def.'s Mem. at 6.) Defendant insists, therefore, that the jury could not have made the determination of nonwillfulness, since the defendant never affirmatively argued it. It must be remembered that it is not the verdict form questions alone, or certain parts of the jury charge standing alone, that must be examined. Rather, the charge as a whole must be viewed along with the entire trial record in determining whether error has occurred. Estelle v. McGuire, 502 U.S. 62, 72, 116 L. Ed. 2d 385, 112 S. Ct. 475 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973)).

 The two tiered liability scheme discussed in Thurston and Hazen Paper consists of intentional conduct and knowledge that such conduct is in violation of the ADEA. Under this scheme, conduct which is a violation of the ADEA because it is intentional, may or may not be acted out with the knowledge that such conduct is in violation of the act.

 The plaintiff was perfectly willing to allow the jury to decide these matters. The jury determined that plaintiff was intentionally discharged on the basis of age. The fact that the jury also found that defendant's conduct was not willful, i.e. acting with knowledge that such conduct violated the act, does not conflict with its finding of intentional conduct. *fn13"

 2. Defendant's Motion for a New Trial

 Defendant contends that an erroneous jury charge prevented the jury from considering whether plaintiff's work performance satisfied defendant's legitimate expectations at the time of discharge. *fn14" Defendant takes issue with the Court's finding as a matter of law that plaintiff was "qualified," for the purposes of proving a prima facie case. Defendant argues that "as a result [of the Court's finding], the plaintiff was not required to prove an essential element of his prima facie case i.e. [sic] that he was qualified." (Def's Mem. Supp. Mot. at 8.) As with its motion for judgment as a matter of law, defendant insists that the term "qualified" does not mean the plaintiff's twelve year tenure or his performance during those twelve years. Rather, defendant argues that a qualified employee is one who meets the legitimate job expectations of an employer at the time of the discharge.

 As discussed in detail above, plaintiff need not show that the employer was satisfied with his performance. Furthermore, only a de minimis showing must be presented to prove a prima facie case. This court determined that plaintiff was qualified for the purposes of proving his prima facie case based upon ample evidence. Additionally, this court's emphasis of the plaintiff's twelve year tenure as support for a finding that he was prima facie qualified for the position was not meant as a statement that a certain number of years of service, standing alone, may establish prima facie qualification. If error was committed by the court's reference to plaintiff's twelve year tenure at the job as support for such a determination, without enumerating an exhaustive list of the other evidence supporting such a conclusion, then that error was harmless. Reference has been made supra to a myriad of evidence supporting not only plaintiff's qualifications, but his satisfactory performance, and defendant's approval of such performance. Certainly enough was presented to surpass the de minimis standard set for proving a prima facie case.

 Defendant also argues that the same erroneous jury charge prevented the jury from considering defendant's nondiscriminatory reasons for discharge. Defendant notes the testimony of one Leo Titus who claimed that plaintiff was fired because of his unsatisfactory work performance rather than his age.

 The charge was specific in finding that plaintiff was qualified for the purposes of proving a prima facie case. However, it never removed from the jury the issue of whether plaintiff was fired for his performance or for his age. In fact, the charge made every effort to clarify both the defendant's position, and the plaintiff's burden. The charge detailed how the jury needed to weigh the reasons given by the defendant, such as the allegation by Mr. Titus that the plaintiff performed unsatisfactorily, and determine whether the reasons were legitimate or just pretext. *fn15" Defendant fails to note that the court not only found the plaintiff to be prima facie qualified, but also found as a matter of law that the defendant had satisfied its burden of articulating legitimate nondiscriminatory reasons for its termination of plaintiff. The charge specifically referenced the articulated reason and made clear on which party the burden rested.

 One can prove a factor of a prima facie case and ultimately fail to persuade the trier of fact on that issue. The issue was not taken out of the hands of the jury. All that was done in finding qualified as a matter of law was to move the jury toward the second tier, and then immediately to the third tier of the McDonnell Douglas framework, and thus to the ultimate issue. The ultimate issue involved plaintiff's performance, so nothing was taken from them.

 C. Plaintiff's Motions.

 Plaintiff has moved for prejudgment interest, attorney fees, and expenses. The defendant has not submitted any opposition addressing either motion in its motion papers.

 Upon review of the motion papers presented, the court will award plaintiff prejudgment interest from November 10, 1993, to September 22, 1995, compounded annually. See Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 281 (2d Cir. 1987); see also Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 145 (2d Cir. 1993), cert. denied, U.S. , 114 S. Ct. 1189 (1994). Prejudgment interest has been determined by annual rates of 7% in 1993, 7.75% in 1994, and 9.25% in 1995. These rates are based on the federal short term rate pursuant to the Internal Revenue Code, 26 U.S.C. § 6621, guidelines for underpayment of taxes. The total prejudgment interest award to plaintiff is, therefore, the sum of $ 16,413.20.

 As aforementioned, plaintiff has also moved this court without opposition for an award of attorney's fees and expenses. He is seeking the sum of $ 30,000.00, representing 200 billable hours at the applicable court approved rate of $ 150.00 per hour. See Mendoza v. City of Rome, 162 F.R.D. 260 (N.D.N.Y. 1995). In addition, plaintiff seeks to recover expenses in the sum of $ 862.50. Upon review, the above application is fair and reasonable.

 Therefore, it is

 ORDERED that

 1. Defendant's motion for judgment as a matter of law is DENIED;

 2. Defendant's motion for a new trial is DENIED;

 3. Plaintiff's motion for prejudgment interest is GRANTED in the amount of $ 16,413.20; and

 4. Plaintiff's motion for attorney's fees and costs is GRANTED in the amount of $ 30,862.50.

 The clerk is directed to enter judgment in favor of the plaintiff, Jane E. Mulqueen, as Administratrix of the Estate of Francis J. Mulqueen, Jr., and against defendant Daka, Inc. in the amount of $ 47,275.70.

 IT IS SO ORDERED.

 David N. Hurd

 U.S. Magistrate Judge

 Dated: December 13, 1995

 Utica, New York.


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