day that her doctor scheduled the surgery. This raises a genuine
issue of fact as to whether the notice was given "as soon as
practicable" under 29 U.S.C. § 2612(e)(2)(B) and
29 C.F.R. § 825.302(b), precluding summary judgment in favor of defendant.
Accordingly, defendant's summary judgment motion should be
denied to the extent it seeks dismissal of plaintiff's FMLA
Finally, defendant moves for summary judgment on the ground
that plaintiff has suffered no actual damages as a result of
defendant's alleged ADA, NYHRL and FMLA violations. According to
defendant, plaintiff received unemployment benefits during her
eight week recovery period, and then accepted employment at
Empire Cellular, which offered a lower rate of pay but better
Ordinarily, a plaintiff who establishes a claim of
discriminatory discharge is entitled to an award of back pay from
the date of the termination until the date of judgment.
Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 144-45 (2d
Cir. 1993) (Title VII), cert. denied, 510 U.S. 1164, 114 S.Ct.
1189, 127 L.Ed.2d 539 (1994); Meling v. St. Francis College,
3 F. Supp.2d 267, 275 (E.D.N.Y. 1998) (ADA). The purpose of a back
pay award is to make whole the victim of unlawful discrimination,
not to punish an employer or provide a windfall to the employee.
Clarke v. Frank, 960 F.2d 1146, 1151 (2d Cir. 1992); see also
Iannone v. Frederic R. Harris, Inc., 941 F. Supp. 403, 412
(S.D.N.Y. 1996). The award should compensate the plaintiff for
the wages and benefits she lost on account of the unlawful
termination of her employment. Meling v. St. Francis College,
supra, 3 F. Supp.2d at 275.
In addition, the rule in the Second Circuit is that the
employer's liability for back pay may be reduced by the amount of
the plaintiff's interim earnings from other employment. See
Clarke v. Frank, supra (earnings from work accepted by plaintiff
after discharge subtracted from back pay award); Taylor v.
Polygram Records, 1999 WL 124456, at *26 (S.D.N.Y. March 8,
1999) (plaintiff's back pay award reduced by amount of earnings
from temporary work during period before she rejected offer of
reinstatement). The Second Circuit has refused to require the
automatic deduction of unemployment benefits from a back pay
award. Dailey v. Societe Generale, 108 F.3d 451, 460-61 (2d
Cir. 1997). Instead, it has made clear that whether or not an
award should be offset by unemployment compensation is a
discretionary determination to be made by the court. Id.
In any event, the determination whether to reduce a back pay
award is obviously premature where the case "has not yet been
tried and no award has been made. . . ." Taylor v. Polygram
Records, supra; see also Hawkins v. 1115 Legal Service Care,
163 F.3d 684, 696 (2d Cir. 1998) (question whether an employee has
made reasonably diligent efforts to mitigate damages is
ordinarily one of fact for the jury). Simply put, the record in
this case contains insufficient information for the court to
determine as a matter of law that plaintiff has suffered no
actual damages as a result of defendant's conduct.
Defendant also cites Dodgens v. Kent Manufacturing Co.,
955 F. Supp. 560 (D.S.C. 1997), as an example of a case where summary
judgment was granted in favor of the employer based on the
plaintiff's failure to show economic loss resulting from an FMLA
violation. In Dodgens, the court found that the employer had
"clearly violated the FMLA" by failing to explain available FMLA
benefits and leave rights to the plaintiff, either in its
employee handbook or at the time the plaintiff requested leave.
Id. at 564-65. Nonetheless, the court granted the defendant's
motion for summary judgment, finding that it "would be elevating
form over substance to permit this claim to go forward in light
of the fact that [the plaintiff] received all of the leave
benefits that he was guaranteed
pursuant to the FMLA" (i.e., twelve weeks of qualified unpaid
leave, maintaining employment-related benefits while on leave,
and reinstatement to previous position or an equivalent position
at the end of the leave). Id. at 565. In this case, to the
contrary, there is no showing that plaintiff received any of
the leave benefits guaranteed by the statute.
Accordingly, I find that defendant is not entitled to summary
judgment on the ground that plaintiff has failed to show that she
suffered actual damages.
For the foregoing reasons, it is recommended that defendant's
summary judgment motion (Item 19) be granted to the extent that
it seeks dismissal of plaintiff's claim under the ADA, and denied
in all other respects.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report and Recommendation be filed with
the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be
filed with the Clerk of this Court within ten (10) days after
receipt of a copy of this Report and Recommendation in accordance
with the above statute, Fed.R.Civ.P. 72(b) and Local Rule
The district court will ordinarily refuse to consider on de
novo review arguments, case law and/or evidentiary material
which could have been, but was not presented to the magistrate
judge in the first instance. See, e.g., Paterson-Leitch Co.,
Inc. v. Massachusetts Municipal Wholesale Electric Co.,
840 F.2d 985 (1st Cir. 1988).
Failure to file objections within the specified time or to
request an extension of such time waives the right to appeal the
District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct.
466, 88 L.Ed.2d 435 (1985); Wesolek, et al. v. Canadair Ltd., et
al., 838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 72.3(a)(3) of
the Local Rules for the Western District of New York, "written
objections shall specifically identify the portions of the
proposed findings and recommendations to which objection is made
and the basis for such objection and shall be supported by legal
authority." Failure to comply with the provisions of Rule
72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2)
(concerning objections to a Magistrate Judge's Decision and
Order), may result in the District Court's refusal to consider
Let the Clerk send a copy of this Order and a copy of the
Report and Recommendation to the attorneys for the parties.
December 17, 1999.