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Picinich v. United Parcel Service

April 11, 2008

RICHARD M. PICINICH, PLAINTIFF,
v.
UNITED PARCEL SERVICE, JIM GROVER, BRENDAN CANAVAN, JEFFREY WILSON AND UNITED PARCEL SERVICE OF AMERICA, INC., DEFENDANTS.



The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff, Richard M. Picinich ("Picinich" or "Plaintiff"), commenced this action against defendants United Parcel Service ("UPS"), Jim Grover ("Grover"), Brendan Canavan ("Canavan"), and Jeffrey Wilson ("Wilson") (collectively, "Defendants"), alleging violations of the Americans with Disabilities Act ("ADA") and New York Human Rights Law ("NYHRL"). Specifically, Picinich claimed that UPS failed to provide him with a reasonable accommodation and discriminatorily discharged him in violation of the ADA and NYHRL. Picinich also claimed that defendants Grover, Canavan and Wilson discriminated against him because of his disability and failed to provide him with a reasonable accommodation in violation of the NYHRL, as well as aided and abetted violations of the NYHRL.

After hearing oral argument on Defendants' motion for summary judgment dismissing the entire complaint, as well as Plaintiff's motion for partial summary judgment, this court granted Plaintiff's motion, finding that he established as a matter of law the first two elements of his failure to accommodate claim against defendant UPS, which are that he was disabled within the meaning of the ADA and that defendant UPS had notice of same. Finding questions of fact as to the remaining elements of Plaintiff's failure to accommodate claim, as well as the additional remaining claims, this court denied Defendants' motion for summary judgment. See Picinich v. United Parcel Service, 321 F.Supp.2d 485 (N.D.N.Y. 2004).

After conducting a bench trial on Plaintiff's claims, this court issued its findings of fact and conclusions of law, ordering judgment in favor of Plaintiff on his failure to accommodate claim against UPS, Grover and Wilson, and judgment in favor of Plaintiff on his discriminatory discharge claim against UPS and Wilson. Picinich was awarded back pay and compensatory damages, but his request for an order of reinstatement was denied. This court also denied Picinich's request for front pay after February 2002, finding that he failed to mitigate damages after that date. See Picinich v. United Parcel Service, No. 01-CV-1868, 2005 WL 3542571 (N.D.N.Y. Dec. 23, 2005) ("Picinich I").

Upon appeal, the Second Circuit Court of Appeals affirmed this court's liability finding as well as its decision declining Picinich's request for an order of reinstatement, but vacated its decision that Picinich failed to mitigate damages and remanded for reconsideration of that issue. See Picinich v. United Parcel Service, 236 F.App'x 663, 2007 WL 1704948 (2d Cir. June 11, 2007) ("Picinich II").

All parties have submitted supplemental briefs to this court regarding the issue on remand. Having carefully considered the parties' submissions as well as the factual record and appropriate legal standard, this court now finds that Defendants did not meet their burden to demonstrate that Picinich failed to mitigate his damages. Accordingly, this court allows, in addition to its original award to Picinich of back pay from April 2000 through February 2002, an award of back pay from March 2002 until the time of judgment and an award of front pay from the time of judgment until Picinich attains age 65.

II. Background

The facts of this case have been set forth in great detail in the two decisions cited above and therefore will not be restated here. Some discussion of the facts relevant to the issue of mitigation is warranted, however.

Picinich testified at trial regarding his efforts to find alternative employment after learning that UPS had no positions available for which he could perform the essential functions with or without a reasonable accommodation. According to Picinich, he searched for jobs on the Internet and in the newspaper and networked with friends and family. See Picinich I, 2005 WL 3542571, at *16. Picinich further testified that he sought employment by contacting prospective employers via telephone, electronic mail, letter, and in person. See id. Copies of several letters and electronic mail messages were submitted by Picinich in support of his testimony, the latest of which was dated December 3, 2001. See id. While Picinich had several job interviews, he did not qualify for quite a few of the positions because of his lack of education and physical limitations. See id.

Picinich also sought assistance from the New York State Office of Vocational and Educational Services for Individuals with Disabilities ("VESID"). See id. at *17. After undergoing an evaluation, Picinich received a report from VESID, which suggested that he explore the option of owning a small business. See id. Picinich testified that he explored the possibility of owning a small business by attending a seminar offered by the Small Business Development Center, attending other meetings and seminars and receiving certifications on the subject as well as meeting with small business owners. Ultimately, however, Picinich found that a lot of the small businesses he explored required heavy lifting, which exceeded his physical limitations. The VESID report also suggested that Picinich consider obtaining a degree in business, possibly through the Empire State College. Marvin S. Reed, a vocational rehabilitation counselor who provided expert testimony at trial on Picinich's behalf, echoed VESID's opinion that Picinich should obtain a college degree. See id. at *16, 17. While Picinich met with someone at Empire State College, he did not enroll, nor did he enroll in any college. See id. at *17.

Picinich did, however, receive his real estate license and obtain a position as an independent contractor with Longley Jones in February 2002. See id. Nonetheless, due to the level of physical effort required, Picinich testified that he only worked in this position for "several months." See id.

The court concluded that because "the evidence reflects that Picinich's job search was limited in size and time, and that he failed to heed VESID's advice to further his education[,]" he did not use reasonable diligence in finding alternative employment, and therefore, Defendants were relieved from their burden to prove that no suitable employment existed. See id. at *28. The court concluded that Picinich's attempts to mitigate his damages ceased ...


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