The opinion of the court was delivered by: Francis, United States Magistrate Judge.
The plaintiff in this case, Irma Rivera, sued her former
employer, Baccarat, Inc. ("Baccarat"), alleging that it had
terminated her from her job as a salesperson on the basis of her
age and national origin. After trial, a jury rejected Ms.
Rivera's age discrimination claim but awarded her compensatory
and punitive damages on the ground that she had been discharged
because she is Hispanic in violation of Title VII of the Civil
Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.
In a previous opinion, Rivera v. Baccarat, Inc., 10 F. Supp.2d 318
(S.D.N.Y. 1998), I denied Baccarat's motion for judgment as a
matter of law or for a new trial, but I reduced the damage award
to the statutory maximum of $50,000 as required by 42 U.S.C. § 1981a.
The plaintiff now moves for an award of back pay and related
benefits as well as front pay, issues that the parties had agreed
would be reserved for decision by the Court. I suggested that the
parties conduct an evidentiary hearing on these matters, but they
demurred, preferring to submit a set of stipulated facts and to
rely on the trial transcript.
Ms. Rivera was terminated by Baccarat on July 29, 1995.
(Stipulation dated Nov. 30, 1998 ("Stip.") ¶ 1(a)). She then went
on a previously planned vacation before beginning to search for
new employment during the first week of September 1995. (Tr.
372-73; Stip. ¶ 1(b)).*fn1 On October 10, 1995, she was hired as a
salesperson by Bernardaud, which, like Baccarat, sells fine
tableware. (Stip. ¶ 1(c)).
Ms. Rivera was terminated by Bernardaud on July 15, 1996.
(Stip. ¶ 1(c)). She then resumed her job search and was hired in
the bridal registry department at Bloomingdale's on December 10,
1996. (Stip. ¶ 1(d)).
The plaintiff now seeks compensation for lost wages, vacation
pay, and sick pay; for the costs she incurred in continuing her
health insurance coverage; and for the employer's contribution to
a 401(k) retirement program. She also seeks an award of front pay
and future benefits.
It is the "purpose of Title VII to make persons whole for
injuries suffered on account of unlawful employment
discrimination." Albemarle Paper Co. v. Moody, 422 U.S. 405, 418,
95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Accordingly, while an award
of back pay is not automatic, it "should be denied only for
reasons which, if applied generally, would not frustrate the
central statutory purposes of eradicating discrimination
throughout the economy and making persons whole for injuries
suffered through past discrimination." Id. at 421, 95 S.Ct. 2362
(footnote omitted). Here, Baccarat does not dispute that some
award of back pay is appropriate. However, the parties disagree
over the period for which back pay should be granted and the
method of calculation.
Baccarat contends that Ms. Rivera is entitled to back pay only
for the period during which she was seeking work and before she
was hired by Bernardaud. The defendant argues that compensation
should not be allowed for any subsequent period both because Ms.
Rivera was terminated by Bernardaud for inadequate performance
and because she failed thereafter to seek substantially
equivalent employment, opting instead to take a lower paying job
at Bloomingdale's. (Letter of Judith A. Stoll dated Aug. 6, 1998
("Stoll Letter"), at 2).
At trial, the plaintiff first testified to the job search she
made after her termination from Baccarat. She solicited leads
from her former colleagues at Baccarat, reviewed classified ads,
and made telephone calls to department stores, boutiques, and
offices. (Tr. 287-89, 373). She did not restrict her search to
Manhattan, but also looked for opportunities in the Bronx,
Queens, and New Jersey. (Tr. 287). Among the stores she contacted
were Bergdorf Goodman, Lord & Taylor, Bloomingdale's, Lalique,
and Kristave. (Tr. 288). After about five weeks of seeking work,
Ms. Rivera was hired by Bernardaud, where her job
responsibilities were similar to those at Baccarat and her
compensation was roughly comparable. (Tr. 374-75; Stip. ¶¶ 2, 3,
According to Ms. Rivera, she was discharged from Bernardaud
when the outlet in which she was working closed. (Tr. 291-93,
377-78). She then began a new job search which involved the same
types of efforts she had made after her termination from
Baccarat. (Tv. 294). Ms. Rivera received no response to her
inquiries until she was hired by Bloomingdale's in the bridal
registry department. (Tr. 294-95). There, her duties are more
limited than they had been at Baccarat or Bernardaud, and her
compensation and benefits are significantly diminished. (Tr.
295-96; Stip. ¶¶ 2-4, 6-10).
A victim of employment discrimination must mitigate her damages
by using reasonable diligence to find suitable employment.
Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 53 (2d Cir. 1998);
Dailey v. Societe Generale, 108 F.3d 451, 455 (2d Cir. 1997).
However, "the employer has the burden to demonstrate that
suitable work existed in the marketplace and that its former
employee made no reasonable effort to find
it." Greenway, 143 F.3d at 53 (citing Dailey, 108 F.3d at 456).
Here, Baccarat has not met its burden. It is true that in order
to fulfill the duty to mitigate, a plaintiff must maintain a
suitable job once one has been located. See E.E.O.C. v. Delight
Wholesale Co., 973 F.2d 664, 670 (8th Cir. 1992); Brady v.
Thurston Motor Lines, Inc., 753 F.2d 1269, 1277 (4th Cir. 1985).
But Baccarat has failed to show that Ms. Rivera lost her position
at Bernardaud through any fault of her own. While the defendant
claims to "have reason to believe" that Ms. Rivera was fired for
poor performance (Stoll Letter at 2), it has offered no evidence
in support of this allegation. By contrast, Ms. Rivera's
unrebutted testimony shows that Bernardaud laid her off because
it closed the store where she worked.
Nevertheless, the plaintiff's entitlement to back pay would
also be terminated if she failed to make a diligent job search
after leaving Bernardaud. Baccarat contends that because she
found comparable employment at Bernardaud within five weeks of
beginning her first job search, she should also have been able
the second time around to locate a position more comparable than
the job she accepted at Bloomingdale's. (Stoll Letter at 2).
This argument is unpersuasive. While Ms. Rivera's testimony about
her second job search was brief, she did indicate that she made
the same efforts as she had after Baccarat discharged her. The
defendant could have tested this statement on cross-examination
but did not do so. Furthermore, Baccarat made no effort to
demonstrate that comparable employment was available; the fact
that the plaintiff was able to secure a job quickly with
Bernardaud may have been purely serendipitous. Indeed, this
inference is supported by the fact that Ms. Rivera sought
employment for almost five months before accepting a lower paying
job at Bloomingdale's. Accordingly, the plaintiff is entitled to
back pay from the date of her termination to the date of
judgment, reduced by the amount of her earnings during this
At Baccarat, Ms. Rivera received a base salary plus
commissions. Her salary for 1994, the last full year of her
employment there, was $32,390.*fn2 Because commissions are an
integral part of an employee's compensation, they must be
included in a back pay calculation if they can be predicated with
reasonable certainty. See Goldstein v. Manhattan Industries,
Inc., 758 F.2d 1435, 1446-47 (11th Cir. 1985); Loubrido v. Hull
Dobbs Co., 526 F. Supp. 1055, 1060 (D.P.R. 1981). Here, the
plaintiff's commissions fluctuated from year to year, and it is
therefore appropriate, as the defendant suggests, to use as a
base the average commission received for the years 1990-1994.
This is $14,728. (Stip. ¶ 2 & n. 1). Thus, salary plus
commissions for the base year 1994 is deemed to be $47,118. The
parties agree that the compensation that Ms. ...