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Christine A. Bergerson v. New York State Office of Mental Health

April 3, 2012


The opinion of the court was delivered by: David N. Hurd United States District Judge



Following a trial in October 2009, the jury awarded plaintiff Christine Bergerson*fn1 ("plaintiff" or "Bergerson") $580,000 in compensatory damages for discriminatory termination.

This award was subsequently reduced to the statutory cap of $300,000, plaintiff's counsel was awarded attorneys' fees based on a $210 hourly rate, and defendant's post-trial motion to bar any award of back pay was granted. See Bergerson v. N.Y. State Office of Mental Health, 2010 WL 610694 (N.D.N.Y. 2010). The judgment was entered on February 17, 2010. Dkt. No. 77.

Plaintiff appealed to the United States Court of Appeals for the Second Circuit, challenging: (1) the grant of defendant's motion barring back pay; (2) the pre-trial dismissal of her state law claims; and (3) the reduced attorneys' fees rate. The Second Circuit affirmed the dismissal of the state law claims and the attorneys' fees rate, but ordered an inquest as to whether plaintiff should be awarded back pay and, if reinstatement is inappropriate, front pay. Bergerson v. N.Y. State Office of Mental Health, 652 F.3d 277 (2d Cir. 2011).

On October 5, 2011, a hearing was held pursuant to the Second Circuit's mandate. At the hearing, the parties stipulated that reinstatement is inappropriate. The parties have submitted proposed findings of fact and conclusions of law. Dkt. Nos. 117, 118. Plaintiff has also filed a motion for attorneys' fees and costs related to her appeal. Dkt. No. 116. Defendant has responded to this motion. Dkt. No. 122.


The following facts are based on the parties' written submissions as well as the testimony and evidence provided at the October 5, 2011, hearing.*fn2

Bergerson has a General Equivalency Diploma ("GED"). She began working as a Security Hospital Treatment Aide ("SHTA"), Grade 14, at Central New York Psychiatric Center ("CNYPC") on September 2, 2004.*fn3 Plaintiff's 2005 tax return indicates that she earned a total of $61,452 in salary and overtime from CNYPC. Hr'g Ex. PF. Her base salary in 2005 was $36,124. Hr'g Ex. PD.

Bergerson was terminated on January 31, 2006. She promptly contacted the New York Civil Service Department in Albany and was placed back on the civil service employment list. As a result, she received several "canvas letters" regarding available positions within the Office of Mental Health. Tr. 26:5. She interviewed for some positions but was unable to obtain employment. Bergerson also sought employment outside of the civil service channels and began working for Birnie Bus Service ("Birnie Bus") as a full-time bus driver in September 2006. She was not provided with health insurance or benefits. In 2006 plaintiff received $10,530 in unemployment payments and earned $10,737.53 from CNYPC and $2756.54 from Birnie Bus. Hr'g Ex. D2.

In May 2007 plaintiff left Birnie Bus and started working at the St. Lawrence Psychiatric Center ("SLPC") in a full-time, Grade 11, position on May 10. Her base salary at SLPC was $32,138, and she received health insurance and benefits. Hr'g Ex. PD. Plaintiff held this employment until September 26, 2007, when she resigned due to the lengthy commute and associated time away from her family, and a lack of overtime offered. Plaintiff then returned to work at Birnie Bus on a full-time basis. She earned a total of $22,361.35 in 2007-$10,646.72 from Birnie Bus and $11,714.63 from SLPC. Hr'g Ex. D2. Assuming she was paid a consistent amount by Birnie Bus, plaintiff earned $6181.97 for the eighteen weeks prior to her employment with SLPC and $4464.75 for the thirteen weeks after her resignation from SLPC.

In January 2008 Bergerson began working part-time at the New York School for the Deaf. She continued to work part-time at Birnie Bus as well. Her employment with the School for the Deaf ended in September 2010 after a teenager alleged that plaintiff assaulted her. Bergerson continued to work part-time at Birnie Bus until March 2011, when she was suspended after receiving a speeding ticket. Plaintiff simply did not return to Birnie Bus and has received unemployment payments since March 2011.

At the hearing, plaintiff called four current employees of CNYPC who hold the same Grade 14 SHTA position she held prior to her termination. These employees made it clear that they receive an annual increase in salary and work thousands of hours of overtime every year. They also testified that the availability of overtime greatly increased in 2008 due to budget constraints and a hiring freeze. The testimony regarding their individual annual earnings will be discussed in greater detail below. The principal payroll clerk at CNYPC testified that during the relevant time, CNYPC employees received an annual raise of four percent. Tr. 175:10.

Since her termination from CNYPC, Bergerson has sporadically attended mental health counseling and occasionally taken prescription medications for post traumatic stress syndrome. At the hearing, plaintiff called a psychotherapist, Helene Shulkin, to testify about the impact her mental health condition has on her ability to secure comparable employment. However, Ms. Shulkin primarily treats plaintiff's daughters and only "collaterally" meets with plaintiff for family counseling sessions. Tr. 137:8--9. Further, Ms. Shulkin has been meeting with plaintiff on a monthly basis for less than two years and is not the provider who prescribes her medications. Her opinion ...

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