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.
A. Back Wages
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. Rivera would have
earned at Baccarat thereafter should be calculated by applying a
3% annual increase to this figure. (Stip. ¶ 2 & n. 1). Therefore,
the plaintiff's projected earnings at Baccarat would have been:
1994 $47,118 ($906/week)
1995 $48,532 ($933/week)
1996 $49,988 ($961/week)
1997 $51,488 ($990/week)
1998 $53,033 ($1,020/week)
From this amount of base compensation, it is necessary to
subtract the amount that Ms. Rivera actually earned for each
relevant period. She is not entitled to any damages until she
first began her job search in the first week of September 1995.
She was then unemployed for a period of five weeks until she was
hired by Bernardaud on October 10, 1995. (Stip. ¶ 1(b)-(c)).
Multiplying her projected 1995 weekly salary of $933 times five
weeks yields a damage figure of $4,665 for this period.
For the balance of 1995, Ms. Rivera is entitled to the
difference between her projected compensation at Baccarat and her
actual wages at Bernardaud. The $7,555 she received from
Bernardaud for this twelve week period (Stip. ¶ 3) works out to
$630 per week, or $303 less than she would have earned at
Baccarat. The difference for the entire period, then, is twelve
times $303, or $3,636.
Next comes the difference for the period from January 1, 1996
to July 15, 1996 when the plaintiff was terminated by Bernardaud.
(Stip. ¶ 1(c)).*fn3 For this twenty-eight week period, Ms.
Rivera received $24,529 (Stip. ¶ 3), which is $876 per week, or
$85 less than the $961 per week she would have made at Baccarat.
For twenty-eight weeks, this comes to $2,380 in damages.
From her termination by Bernardaud until she was hired by
Bloomingdale's on December 10, 1996, Ms. Rivera was unemployed
for twenty-one weeks. (Stip. ¶ 1). Since she would have earned
$961 per week from Baccarat during this period, her corresponding
damages are $20,181.
Throughout all of 1997, Ms. Rivera worked at Bloomingdale's and
made a total of $22,329.*fn4 (Stip ¶ 4). Since she would have
made $51,488 at Baccarat over that year, she is entitled to
$29,159 in damages.
Finally, Ms. Rivera has received $17,881 from Bloomingdale's
over the forty-two weeks from January 1, through October 15,
1998. (Stip. ¶ 4). This works out to $426 per week, as compared
to $1,020 per week as projected for Baccarat. The difference of
$594 times forty-two weeks results in $24,948 in damages.
The plaintiff's total back pay award, then, is $84,969,
calculated as follows:
Baccarat Actual No. of
Period Earnings − Earnings = Difference − Weeks = Damages
Sept. 05, 1995 — $933/wk − 0 = $933/wk × 5 = $4,665
Oct. 10, 1995
Oct. 10, 1995 — $933/wk − $630/wk = $303/wk × 12 = $3,636
Dec. 31, 1995
Jan. 01, 1996 — $961/wk − $876/wk = $85/wk × 28 = $2,380
July 15, 1996
July 15, 1996 — $961/wk − 0 = $96 1/wk × 21 = $20,181
Dec. 10, 1996
Jan. 01, 1997 — $51,488 − $22,239 = $29,159
Dec. 31, 1997
Jan. 01, 1998 — $1,020/wk − $426/wk = $594/wk × 42 = $24,948
Oct. 15, 1998
B. Fringe Benefits
In order to be made whole, a wrongfully terminated employee is
entitled not only to back pay, but also to compensation for lost
fringe benefits. See United States v. Burke, 504 U.S. 229, 239,
112 S.Ct. 1867, 119 L.Ed.2d 34 (1992). Here, Ms. Rivera seeks
damages for the cost of continuing her insurance coverage, for
the value of vacation and sick days, and for employer
contributions that Baccarat would have made to a 401(k) plan.
1. COBRA Benefits
The plaintiff is entitled to compensation for the costs she
incurred in maintaining health insurance coverage equivalent to
that she received through Baccarat. See Gaworski v. ITT
Commercial Finance Corp., 17 F.3d 1104, 1111 (8th Cir. 1994). In
this case, Ms. Rivera paid a total of $2,921 in order to extend
her coverage as provided for in the Consolidated Omnibus Budget
Reconciliation Act ("COBRA"), 29 U.S.C. § 1161 et seq.