eligible for back pay is no different from the
December 23, 1996-January 3, 1997 time period, reviewed supra. Townsend
is not eligible for back pay during this time.
4. April 7, 1997 Onward
Counsel have argued quite vociferously as to whether Townsend may be
entitled to back pay from January 3, 1997 onward, as a matter of law.
Most cases view the date of resignation as the date from which back pay
is computed, principally because the employee leaves on the date of
resignation. In this case, Townsend worked and was paid for twelve
additional weeks following his official resignation, and was paid for
another week that he did not work. Thus, the court considers the relevant
time frame as to whether he was eligible for back pay from the date of
April 7, 1997 onward.
Defendants point to decisions from other circuits which hold that if an
employee is not constructively discharged and resigns voluntarily, that
employee may not receive back pay from the date of resignation. See Item
59, p. 5. Plaintiff cites other cases which follow other rationales and
conclude that a court may provide back pay to a plaintiff who resigns.
See Item 67, pp. 9-11.
In his complaint, Townsend claimed he was "constructively discharged
and demoted" from his Team Leader position "to a staff underwriting
position in September 1996 while on disability leave." Item 60, Ex. 3, ¶
18. However, the Report and Recommendation, adopted by this court, denied
Townsend's constructive discharge claim, stating "defendants are correct
in noting that the plaintiff has failed to establish the elements of
constructive discharge." Item 60, Ex. 1, p. 6 & n. 5. The Report and
Recommendation noted that Townsend voluntarily resigned his position in
order to take advantage of the company's displacement package. Id., p.
A number of circuits have held that "in order for an employee to
recover back pay for lost wages beyond the date of his retirement or
resignation, the evidence must establish that the employer constructively
discharged the employee." Jurgens v. EEOC, 903 F.2d 386, 389 (5th Cir.
1990). See Maney v. Brinkley Municipal Waterworks & Sewer Dept.,
802 F.2d 1073, 1075 (8th Cir. 1986); Derr v. Gulf Oil Corp. 796 F.2d 340,
342 (10th Cir. 1986). As defendants point out, although the Second
Circuit has not addressed the issue, this court has in Less v. Nestle
Co., Inc., 705 F. Supp. 110 (W.D.N.Y. 1988). In Less, this court found
that the plaintiff was not constructively discharged, but rather
voluntarily chose to retire early and accept a retirement incentive. As a
consequence, the plaintiff was "precluded from claiming damages accruing
from the date of his voluntary resignation." Id. at 114. In Rotert v.
Jefferson Federal Savings & Loan Assn., 623 F. Supp. 1114 (D.Conn.
1985), the plaintiff asserted claims for constructive discharge and
discriminatory transfer. The court cited the rule in Borque v. Powell
Electrical Mfg. Co., 617 F.2d 61 (5th Cir. 1980) that plaintiff could not
recover damages for the period following voluntary resignation if he was
not constructively discharged. However, the facts in both Less and Rotert
are different from those in this case. Less was a promotion case and,
further, Mr. Less retired. In Rotert, the plaintiff was assigned to
another job with different duties, which makes it different from this
case in which Townsend had to reapply for the same job.
Most of the cases cited above, where back pay has been disallowed,
involve promotions. Finding no constructive discharge, courts explain
their reasoning for denying back pay for employees denied
follows: "Title VII itself accords legal protection to employees who
oppose unlawful discrimination. . . . [W]e believe that society and the
policies underlying Title VII will be best served if, wherever possible,
unlawful discrimination is attacked within the context of existing
employment relationships." Borque, 617 F.2d at 66.
This otherwise straightforward rule would likely resolve the issue of
whether plaintiff was eligible for back pay following April 7, 1997 if
not for a number of other cases which offer the court different
rationales for arriving at the opposite conclusion.
Plaintiff cites Thorne v. City of El Segundo, 802 F.2d 1131 (9th Cir.
1980); and Nobler v. Beth Israel Medical Center, 715 F. Supp. 570
(S.D.N.Y. 1989), which, in various ways, distinguish the line of cases
relied upon by defendants. Plaintiff argues that Thorne and Nobler
support his theory that where the "recognized opportunities for career
advancement are closed off by reason of discrimination and because of
that the individual resigns, back pay restrictions, such as those the
defendants urge here, are inapplicable." Item 67, p. 11. Plaintiff also
distinguishes Less. Id.
In Thorne, the Ninth Circuit affirmed a district court's holding that
an employee who voluntarily resigned, and who was not constructively
discharged, was still eligible for back pay. The plaintiff in Thorne
worked as a clerk-typist for a police department and sought a position as
a police officer. Despite her high performance on oral and written tests
and on the physical agility exam, the department disqualified her from
consideration. She voluntarily quit her position as clerk-typist four
months later. The Thorne court cited a number of reasons why it would not
follow the various precedents which prohibit an employee from collecting
back pay beyond the employee's voluntary resignation, unless the employee
demonstrates constructive discharge. It differentiated promotion/demotion
cases, which apply the constructive discharge doctrine, from the case
before it which involved refusal to hire. The Thorne court noted that the
plaintiff was preparing to enter an entirely different career. Thus, the
Borque philosophy urging plaintiffs to stay and fight discrimination from
within was inapplicable; remaining as a clerk typist would not put the
plaintiff in a better position to attack discrimination in police officer
hiring than anyone else.
Thorne also cited Sangster v. United Air Lines, 438 F. Supp. 1221
(N.D.Cal. 1977), aff'd, 633 F.2d 864 (9th Cir. 1980), which articulated
an entirely different rationale than Borque concerning availability of
back pay following a voluntary resignation. In Sangster, a stewardess
supervisor sought a job as stewardess which she once had when she was
unmarried. The Airline refused to give her the stewardess job, and she
quit. In attempting to fashion a remedy, the court opined:
If relief is to be limited in any significant measure
in all instances where an employee quits one job after
unlawfully being denied another job by the same
employer, then the employee would be constrained
either to contribute by his labor to an employer who
has treated him unfairly and who persists in that
unfair treatment, or to take less than a whole remedy
for injuries suffered. Again, to reduce a remedy
unless the employee consents to serve his employer
during the nine years it may take, as here, to obtain
that remedy, would force impossibly onerous choices on
the employee and, because the employee's readiness to
bring charges would be inhibited, the Act's purpose of
economic discrimination would be frustrated.
Id. at 1230.
In addition, Thorne cited a number of promotion cases where courts did
not apply the back pay limitation rule, despite the fact that the
employee had not been constructively discharged. 802 F.2d at 1136 & n.
4. It is not as unequivocal a rule as defendants in this case would wish
it to be.
The Sangster alternative rationale was followed by Judge Sweet in
Nobler v. Beth Israel Medical Center, 715 F. Supp. 570 (S.D.N.Y. 1989),
although for slightly different reasons and applied to slightly different
facts. Nobler involved a promotions case where plaintiff was seeking the
position of Director of Radiation Therapy at a medical center. He learned
that he was not chosen and resigned one month before the new director
assumed the post. Plaintiff found a position at another medical center,
and did not suffer a decrease in salary. On summary judgment, the
defendant attacked plaintiff's request for, inter alia, back pay, citing
Borque. However, the court distinguished the reasoning in Borque by
noting that there was only one position that the plaintiff had sought. It
was filled by someone else, and there was "no purpose to be served by
Nobler staying at BIMC to try to work out the dispute within the context
of the employment relationship, for amelioration was unavailable." Id. at
572. While observing that an employee "faced with an obstacle in the
local progression and development of a career should not quit at the
first sign of institutional discrimination," the court found that the
plaintiff had no opportunity to overcome such resistance. Id. Thus, the
back pay restrictions were inapplicable. Nobler, as well, cited cases
where back pay may be available, especially where a plaintiff claims that
he resigned as a result of the alleged discrimination. Id. at 573.
It appears that the Borque and Sangster decisions reflect the
philosophical split amongst various courts in how they interpret
Albemarle's invocation to "deny backpay 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." Albemarle, 422
U.S. at 421.
On the facts, the case at bar does not bring it squarely within the
orbit of either Borque or Sangster. It is not a promotion case, fitting
within that precedent, but more like a refusal to rehire or termination
case. It is not exactly a rehiring for a totally different job, as in
Thorne. Townsend could have attempted to stay within the ranks and fight
discrimination. However, Townsend squarely confronted an obstacle in the
career progression of his job. Simply because there were two team leader
positions, not one, does not make the uniqueness rationale, articulated in
For these reasons, the motion of defendant to strike plaintiff's claim
for back pay for April 7, 1997 onward is denied.
D. Front Pay
The decision to award the equitable remedy of front pay lies within the
discretion of the court. Greenbaum v. Svenska Handelsbanken, NY,
979 F. Supp. 973, 987 (S.D.N Y 1997). "An award of front pay is made when
reinstatement is neither possible nor practicable and the undisabled
plaintiff has no `reasonable prospect of obtaining comparable alternate
employment.'" Schlant, 2000 WL 1737945 at *3, quoting Bonura v. Chase
Manhattan Bank, N.A., 629 F. Supp. 353, 362 (S.D.N.Y. 1986). In such
situations, the district court is empowered to award "a reasonable
monetary award of front pay" that is, an award of "future lost earnings."
Banks v. Traveler Companies, 180 F.3d 358, 364 (2d Cir. 1999) (citations
Defendants, citing Less and Rotert, argue that Townsend is not entitled
to front pay because of the court's rejection of his constructive
discharge claim. Because it is not possible to determine, on the record
presently before the court, whether Townsend had a reasonable prospect of
obtaining reinstatement or comparable alternate employment, defendants'
motion to deny front pay is denied, with leave to renew at a later time.
III. The Chavanne Claim
In his complaint, Townsend alleged that the defendants' failure to hire
him as a Team Leader in September 1996 represented an instance of
discrimination against him. Four years later, Townsend asserted a claim
that the hiring of James Chavanne as Team Leader in December 1996,
following Morano's "extremely brief stint" in that position, represented
another instance of Selective's discrimination against Townsend on the
basis of age. Item 60, Ex. 5. Defendants assert that this claim "should
be barred by (1) the applicable periods of limitations of the ADEA and
the Human Rights Law; (2) [Townsend's] failure to state a prima facie
claim because he was out on disability leave when Mr. Chavanne was
selected to replace Mr. Morano; and (3) his deposition admissions that he
had no facts on which to base such a claim." Item 59, p. 8.
Townsend responds that the EEOC did have notice of his discrimination
claim based on the hiring of Chavanne to replace Morano. Item 67, p. 3.
Townsend asserts that if the EEOC had wished to make a thorough
investigation of the claim, "such an investigation would have revealed
the facts upon which defendants now seek this dispositive relief." Id.,
p. 4. He contends that his claim was "reasonably related" to the claim set
forth in the charge letter to the EEOC and thus survives. Id., pp. 4-5.
Plaintiff also asserts that the claim survives under the `single filing'
rule, and because defendants waived their right to assert a claim of
failure to exhaust administrative remedies. Id., pp. 6-7. In addition,
Townsend maintains that he has stated a prima facie case of
discrimination on this claim. Id., p. 8.
It must first be pointed out that the Chavanne claim was not mentioned
in Townsend's complaint. Judge Scott was the first to ruminate about the
possibility of this claim in his Report and Recommendation, and plaintiff
asserted the claim only after this court inquired about it, four years
after the original complaint was filed. No amended complaint was filed.
In his charge to the EEOC, Townsend claimed he was terminated from his
Team Leader position on or about September 1, 1996. Item 60, Ex. 9. The
charge did not mention any termination or position filled subsequent to
that date, in general, or the replacement of Morano by Chavanne,
specifically. The charge did not assert any ongoing acts of alleged
discrimination beyond his claimed September 1, 1996 termination date.
Neither was the charge
amended to reflect any of these additional
claims. The EEOC's investigation and findings solely covered allegations
of discrimination related to the Team Leader positions filled by Morano
and Callahan in September 1996. Item 60, Ex. 10.
"A district court may only hear those claims that either are included
in an EEO charge or are based on conduct subsequent to the EEO charge
which is `reasonably related' to that alleged in the EEO charge." Neratko
v. Frank, 31 F. Supp.2d 270, 279 (W.D.N.Y. 1998) (citations omitted).
Because Townsend's claim regarding the hiring of Chavanne was not
included in the EEO charge, a court may entertain the claim only if it is
`reasonably related' to the original charge. This requirement
is designed to give the administrative agency the
opportunity to investigate, mediate, and take remedial
action to encourage the settlement of discrimination
disputes through conciliation and voluntary
compliance. If a complainant could litigate a claim
not previously presented to and investigated by the
EEO, then the exhaustion element of [ADEA's] statutory
scheme could easily be circumvented.
Id. (citations omitted).
The question thus becomes: would Townsend's new claim of discrimination
concerning the hiring of Chavanne in December 1996, as a replacement for
Morano, be reasonably related to his discrimination claim concerning his
own September 1, 1996 termination?
The Second Circuit has recognized three kinds of situations where
claims not alleged in an EEOC charge are sufficiently related to the
allegations in the charge such that they could be asserted:
(1) where the conduct complained of would fall within
the scope of the EEO investigation which could be
reasonably expected to grow out of the charge of
discrimination; (2) where the plaintiff alleges
retaliation by the employer for filing the EEO
charge; and (3) where the complaint alleges further
incidents of discrimination carried out in precisely
the manner alleged in the EEO charge.
Neratko, 31 F. Supp.2d at 279, citing Spurlock v. NYNEX, 949 F. Supp. 1022,
1027 (W.D.N.Y. 1996); and Butts v. City of New York Dep't of Housing,
990 F.2d 1397, 1402 (2d Cir. 1993).
Townsend asserts that the third rationale applies here. Item 67, p. 4.
He argues that his charge letter was the fourth discrimination claim to
be filed against the same companies within a period of eight months, and
that defendants cannot claim surprise regarding Townsend's discrimination
claims regarding Chavanne since the claim was raised in the Magistrate
Judge's Report and Recommendation and in a May 1998 interrogatory. Item
67, p. 5.
These arguments are beside the point, since Townsend's complaint did
not allege further incidents of discrimination carried out in precisely
the manner alleged in the EEO charge; and notice to the EEOC, not notice
to the defendants, provides a basis for determining whether a reasonable
relationship applies. Given the narrow scope of the EEOC charge related
to the September 1, 1996 termination, this court is not convinced that
the alleged subsequent act of discrimination can be said to have been
"carried out in precisely the same manner alleged in the EEOC charge."
Samimy v. Cornell Univ., 961 F. Supp. 489, 493 (W.D.N.Y. 1997), quoting
Butts, 990 F.2d at 1403. The incidents were different: the September
allegation specifically concerned Townsend's not being chosen for the
Team Leader position. The December allegation is much more attenuated and
does not directly involve Townsend. The replacement of Morano by Chavanne
occurred while Townsend was on disability leave. He could not have filled
the Team Leader job even if he had reapplied. The EEOC could not be
expected to independently uncover facts showing that defendants
discriminated against plaintiff three months after plaintiff indicated
the discriminatory act occurred, involving a replacement that did not
include the plaintiff. The September and December hirings cannot be said
to be related for purposes of complying with the EEOC filing
Furthermore, as defendants correctly pointed out, both in their
papers, Item 72, p. 9, and at oral argument, a "reasonably related" claim
applies only to alleged discriminatory conduct that occurred after the
EEOC charge is filed. In this case, Townsend is arguing that the
conduct, which occurred before he filed the EEOC charge, is reasonably
related to the claim set forth in the EEOC charge. It was his duty to
include all relevant alleged discriminatory conduct when he filed the
EEOC charge. The rational relationship theory is not available to
plaintiff. In addition, plaintiffs' "single filing" and waiver arguments
do not apply either.
Because this court has no jurisdiction to consider Townsend's new claim
of discrimination under the ADEA, it declines to address the merits of
the claim, and grants defendants' motion to dismiss an ADEA claim by Mr.
Townsend based on the hiring of Mr. Chavanne.
The court also finds that Townsend may not assert the claim based upon
the hiring of Chavanne under the HRL. The statute of limitations under
the HRL is three years. Murphy v. American Home Products Corp.,
58 N.Y.2d 293, 307 (1983). In order to have asserted a claim that
Chavanne's replacement of Morano in December 1996 was an act of age
discrimination under the HRL, such a claim would have had to have been
filed by December 1999. Because that claim was not filed within the
statutory period, it is time-barred.
Based on the foregoing, the court grants defendants' motion, Item 58,
dismissing plaintiff's claims for damages for pain and suffering, mental
anguish, emotional distress, humiliation, and loss of self-worth under
the ADEA; grants defendants' motion dismissing plaintiff's claims for
punitive damages under the ADEA and HRL; grants defendants' motion
dismissing plaintiff's claims for back pay for the period of August 1996
to December 23, 1996, while Townsend was out on disability. He has no
back pay claim for the periods of December 23, 1996 to January 3, 1997,
and from January 3, 1997 to March 29, 1997, when he returned to work.
Further, it is obvious he has no claim for the period March 29, 1997 to
April 6, 1997 when he was paid by Selective, although he was not working.
The court does not, however, dismiss plaintiff's claims for back pay from
April 7, 1997 onward. Further, defendants' motion to dismiss plaintiff's
claims for front pay is denied, with leave to renew. Defendants' motion
dismissing the claim of age discrimination against Townsend under the
ADEA and HRL regarding the replacement of Morano by Chavanne is granted.