The opinion of the court was delivered by: DOUGLAS EATON, Magistrate Judge
Martin Varone brought this case under the Americans with Disabilities
Act of 1990 and the New York City Human Rights Law. His disability was
Delayed Sleep Phase Syndrome. The complex factual and procedural
background was set forth in my Opinion and Order published at Varone
v. City of New York, 2003 WL 21787475 (S.D.N.Y. Aug. 4, 2003). I
then presided at a seven-day jury trial.
The summations were excellent. (Norma Cote for the defendants at Tr.
1011-37; Rebecca Northey for the plaintiff at Tr. 1039-60.) They ought to
be read by anyone who wants to understand this case in depth.
On December 11, 2003, the jury returned a special verdict answering 11
questions. (A copy of the verdict sheet is annexed to defendants' 1/2/04
memorandum.) Plaintiff was clearly the prevailing party, but the jury
decided some questions in favor of the defendants.
The jury's verdict made clear how to calculate the damages through
March 23, 2001, the date of Varone's resignation from HRA. The jury also
found that he was constructively discharged and that he would have worked
until July 2009.
Today's opinion addresses two issues: (a) what monetary damages should
be awarded for the period starting March 24, 2001, and (b) whether I
should issue an order of reinstatement. The possibility of the equitable
remedy of reinstatement was not mentioned to the jury.
On the verdict sheet, the first four questions were listed under "First
Claim: Failure to Provide a Reasonable Accommodation [to a Disability]."
The jury found as follows:
1. The defendants failed to prove that there was no accommodation that
would have enabled plaintiff to perform the essential functions of a job
that was vacant at HRA within the title of Computer Specialist
2. The plaintiff failed to prove that he proposed an effective
accommodation and that HRA refused it.
3. The plaintiff proved that, during the period from October 1999 to
March 2001, (a) he acted in good faith to attempt to identify
a reasonable accommodation and (b) HRA failed to engage in good
faith discussions with him to attempt to identify a reasonable
4. The defendants failed to prove that it would have imposed an undue
hardship to provide plaintiff with any of the accommodations that could
plausibly have enabled him to perform.
In Questions 5, 6 and 7, the jury found that plaintiff proved his claim
of retaliation, failed to prove his claim of hosfile work environment,
and proved his claim that he was constructively discharged by the time he
resigned in March 2001.
On the verdict sheet, I noted: "On the basis of your answers to
Questions 8 and 9, the judge will determine the amounts which will fairly
compensate plaintiff for the present value of salary and pension
benefits." The jury had Exhibit 59-A, a detailed letter by actuary
Jonathan Schwartz, who computed those present values to total $748,749 on
various assumptions, including the assumption that plaintiff would have
worked full time from October 18, 1999 through July 31, 2012 (his 65th
birthday) if the defendants had committed no misconduct. The jury
answered Questions 8 and 9 as follows:
8. Has plaintiff proven that, if the defendants had committed no
misconduct, he would have worked 35 hours per week during the entire
period from October 18, 1999 through March 23, 2001 (except for using
his annual leave days and sick leave days)? No. If your answer is No,
then state, as a percentage, the portion of $79,844 that will fairly
compensate plaintiff for salary and pension ...