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Saber v. New York State Department of Financial Services

United States District Court, S.D. New York

July 27, 2018

NASSER SABER, Plaintiff,

          OPINION & ORDER


         Plaintiff moves for entry of judgment against Defendant for damages, equitable relief and for reasonable attorneys' fees and costs. For the reasons below, Plaintiff's motion is granted in part and denied in part. Familiarity with the underlying events and the trial, as described in the Opinion and Order, dated July 20, 2018 (“July 20 Opinion”), is assumed.

         I. DISCUSSION

         A. Back pay

         Plaintiff is entitled to back pay of $121, 231 on account of Defendant's failure to promote him to the position of Chief Risk Management Specialist (“CRMS”). This amount represents the difference between what Plaintiff received as a Grade 29 Principal Risk Management Specialist and the compensation for the CRMS position paid to John Cappello for the period July 2012 through 2017.

         A Title VII claimant may recover compensatory damages in the form of back pay. 42 U.S.C. § 1981a(b)(2); accord Bergerson v. N.Y. State Office of Mental Health, Cent. N.Y. Psychiatric Ctr., 652 F.3d 277, 286 (2d Cir. 2011). “Back pay is ‘an amount equal to the wages the employee would have earned from the date of [violation] to the date of [judgment], along with lost fringe benefits such as vacation pay and pension benefits.'” Noel v. N.Y. State Office of Mental Health Cent., 697 F.3d 209, 213 (2d Cir. 2012) (citing United States v. Burke, 504 U.S. 229, 239 (1992), superseded by statute on other grounds.). “Evidence of the salaries paid to other individuals may be relevant to that calculation, but only insofar as the plaintiff lays a sufficient foundation to permit the reasonable inference that his salary would have matched or been pegged to the salaries of others. The trial court has considerable discretion to determine whether there is such a sufficient foundation.” Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 166 (2d Cir. 1998) (internal citation omitted); accord Mobasher v. Bronx Community College of N.Y., 269 Fed.Appx. 71, at *3 (2d Cir. Mar. 13, 2008). “An award of backpay is the rule, not the exception. The decision to award backpay is measured against the purposes which inform Title VII, which includes removing the stain discrimination leaves on equality in the workplace and making victims of discrimination whole.” Bergerson, 652 F.3d at 286 (internal quotation marks and citation omitted).

         For the reasons stated in the July 20 Opinion, the date of DFS's first decision not to select Plaintiff as a CRMS is July 3, 2012, when DFS circulated an internal memorandum reflecting the decision not to promote Plaintiff. The parties dispute whether Plaintiff's back pay should be computed based on John Cappello's salary as CRMS, resulting in back pay of $121, 231; or the lower statutory promotion salary rate with annual statutory increases thereafter, resulting in back pay of $97, 921. See N.Y. Civ. Serv. Law § 131.2(a).

         Here, Plaintiff established a “sufficient foundation to permit the reasonable inference that his salary would have matched” that of John Cappello had he been hired as a CRMS. Kirsch, 148 F.3d at 166. Plaintiff was a civil servant with a graded salary.[1] As such, his salary increases were subject to New York Civil Service Law § 130.1.a.[2] “If such an employee is promoted, appointed or otherwise advanced to a position in a higher salary grade, he shall receive a percentage increase in existing basic salary of one and one-half percent plus one and one-half percent times the No. of grades by which he is so advanced, or he shall be paid the hiring rate of such higher grade, whichever results in a higher annual salary.” N.Y. Civ. Serv. Law § 131.2(a). However, “the director of the classification and compensation division, subject to the approval of the director of the budget, may authorize an increased hiring rate . . ., not to exceed the job rate of the salary grade of the position to which a person is to be appointed when the training or experience of such appointee substantially exceeds requirements necessary for appointment.” Id. at § 131.1-a. In 2012, Cappello's salary ($112, 326) was less than the job rate of the salary grade for a CRMS, which is an M5 position ($127, 794). Id. at § 131.1-d(1).

         Plaintiff has shown that his “training or experience . . . substantially exceeds requirements for necessary appointment.” N.Y. Civ. Serv. Law § 132.a. According to the New York State Department of Civil Service Classification standard, the minimum qualification for the CRMS position includes “Bachelor's Degree and ten years of experience in one or a combination of . . . trading, underwriting, hedging or analyzing risk management of capital markets instrument for financial institutions; audit or regulatory examination of capital markets; research or teaching experience at a college or university in finance, economics or mathematics.” “A Master's Degree in [business administration] may substitute for two years of experience.”

         Plaintiff has a Bachelor's of Science and Master's degrees in engineering, and a Master's of Business Administration in quantitative analysis and finance. Plaintiff was hired in September 2001, initially as a Senior Risk Management Specialist, rising through the ranks to become Principal Risk Management Specialist in October 2007. As a risk specialist, Plaintiff examined banks' trading operations and risk management to ensure compliance with laws and regulations. Plaintiff remains in the role of a Principal Risk Management Specialist.

         Plaintiff also taught courses in capital markets, risk management, derivatives and options to fellow examiners and capital market specialists within DFS, as recently as March 2012. His courses received positive reviews. In addition, Plaintiff was an adjunct professor at New York University, School of Professional Studies, from 1994 to 2004, and while there, he created the risk management program. In sum, with more than 15 years of relevant work and teaching experience, and an educational level that far surpasses the minimum requirement, it is reasonable to infer that, had Plaintiff been hired as the Chief Risk Management Specialist, he would have been entitled to $121, 231.

         Defendant argues that Plaintiff is not entitled to the same salary as Cappello, because Plaintiff was an internal candidate, whereas Cappello was an external candidate, and that Cappello had more experience than Plaintiff. This argument mischaracterizes the record. Cappello had no experience in risk management or capital markets, as evidenced by the fact --painful to Plaintiff -- that he was asked to train Cappello, who was “technically deficient” in his position as a CRMS. Also, Cappello was ranked fourth of seven candidates when he was initially interviewed for the CRMS position. DFS fails to explain why an external candidate with no relevant work experience would necessarily earn a greater salary than an internal candidate with extensive relevant experience and education.

         a. Tax consequences, Loss of Leave Time

         Plaintiff is awarded $4, 152 for increased taxes he will have to pay as a result of receiving back pay in a lump sum rather than annually had he been promoted to CRMS. He is not awarded ...

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