Sharkey v. Lasmo and Ultramar Corp., Docket No. 99-7928

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-7928
• Citation: 214 F.3d 371
• Parties: (2nd Cir. 2000) DANIEL J. SHARKEY, Plaintiff-Appellee-Cross-Appellant, v. LASMO (AUL LTD.), Defendant, ULTRAMAR CORPORATION, Defendant-Appellant-Cross-Appellee. (L), 99-7932 (XAP)
• Court: U.S. Court of Appeals — Second Circuit

Page 371

214 F.3d 371 (2nd Cir. 2000)

DANIEL J. SHARKEY, Plaintiff-Appellee-Cross-Appellant, v. LASMO (AUL LTD.), Defendant, ULTRAMAR CORPORATION, Defendant-Appellant-Cross-Appellee.

Docket No. 99-7928 (L), 99-7932 (XAP)

August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: March 22, 2000

Decided: June 08, 2000

Appeal from the judgment of the United States District Court for the Southern District of New York (William C. Conner, Judge) entered on the jury's verdict and from the post-judgment order denying motion for judgment as a matter of law and a new trial. Plaintiff cross-appeals from denial of post-trial motion for equitable relief. The Court of Appeals (Leval, J.): (1) affirms the judgment on the verdict and the order denying the post-judgment motion, and (2) vacates the order denying post-trial equitable relief, remanding for an apportionment of jury's verdict and award of prejudgment interest where appropriate.

AFFIRMED in part and VACATED AND REMANDED in part. [Copyrighted Material Omitted] DAVID S. GOLUB, Silver, Golub & Teitell LLP, Stamford, CT, for Appellee.

MICHAEL F. FITZGERALD, Robinson, Brog, Leinwand, Reich, Genovese & Gluck, New York, NY, for Appellant.

Before: LEVAL, STRAUB and HALL,^*. Circuit Judges.

Judge Hall dissents in part by separate opinion.

LEVAL, Circuit Judge:

Defendant Ultramar Corporation ("Ultramar") appeals from the October 13, 1998 judgment on the jury's verdict entered in favor of the plaintiff and against Ultramar, and from the July 7, 1999 Opinion and Order denying Ultramar's motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b) or, in the alternative, for a new trial pursuant to Fed. R. Civ. P. 59(a). See Sharkey v. Lasmo (AUL Ltd.), 55 F. Supp. 2d 279 (S.D.N.Y. 1999). Plaintiff Sharkey cross-appeals from the August 3, 1998 Opinion and Order denying his motion for equitable relief. See Sharkey v. Lasmo (AUL Ltd.), 15 F. Supp. 2d 401 (S.D.N.Y. 1998). We affirm the judgment and the order denying defendant's post-judgment motion. We vacate the order denying plaintiff's motion for equitable relief and remand for further proceedings.

BACKGROUND

Sharkey brought suit under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. He alleged that in 1992 Ultramar intentionally discriminated against him on account of his age by offering him less attractive employment terms than those offered his younger colleagues, when all three were asked to relocate to Montreal. The facts are set out in the previously reported opinions, see Sharkey v. Lasmo, 55 F. Supp. 2d at 282; 992 F. Supp. 321, 323-24 (S.D.N.Y. 1998); 906 F. Supp. 949, 951-52 (S.D.N.Y. 1995). After a seven-day jury trial, the jury returned a verdict on April 9, 1998, finding Ultramar had discriminated against Sharkey and awarding him damages of $1,427,200. On August 3, 1998 the court denied Sharkey's motion for additional equitable relief. Judgment was entered on the verdict on October 13, 1998. On July 7, 1999 the district court denied the defendant's post-judgment motions. Both parties filed timely appeals.

DISCUSSION

A. Ultramar's Appeal

Ultramar contends the court erred in charging the jury on the burden-shifting analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). We agree that juries should not be charged on the McDonnell-Douglas burden-shifting framework. See, e.g., Greenaway v. Buffalo Hilton Hotel, 143 F.3d 47, 53 (2d Cir. 1998) ("Courts-not juries-should determine whether the initial McDonnell-Douglas burdens of production have been met."). It is the judge, not the jury, who must decide whether plaintiff has satisfied the requirements of McDonnell-Douglas's minimal version of a prima facie case, thereby shifting the burden of going forward to the defendant, as well as whether the defendant has subsequently satisfied the burden of proffering a nondiscriminatory reason for its conduct. Instructing the jury on this complex process produces no benefit and runs the unnecessary risk of confusing the jury. If the plaintiff has successfully made a prima facie case and the defendant has met its burden of proffering a reason other than discrimination for its actions, the court should instruct the jury that plaintiff bears the burden of proving that the defendant was motivated by prohibited discrimination-without reference to the successive burden-shifting tests that the parties have been required to pass.

Nonetheless, we see no basis in this record for concluding that charging the jury on a superfluous matter caused prejudice to the defendant. The jury was repeatedly charged on the plaintiff's ultimate burden to prove that age was a determinative factor or "real reason" in the defendant's treatment of Sharkey. The jury's verdict form furthermore evidences a finding "that the defendant Ultramar Corporation discriminated against plaintiff on the basis of his age." We can see no reason to order retrial.

Nor do we find merit in Ultramar's other attacks on the judgment. "View[ing] the evidence in the light most favorable to [plaintiff]," Piesco v. Koch, 12 F.3d 332, 343 (2d Cir. 1993) (internal quotation marks omitted), and making all credibility determinations and drawing all inferences in his favor, we cannot say there was "no legally sufficient evidentiary basis for a reasonable jury to find" that Ultramar discriminated against Sharkey on account of his age. Fed. R. Civ. P. 50(a)(1). We therefore cannot agree with the defendant that it was entitled to judgment as a matter of law, notwithstanding the jury's verdict. Nor is the evidence legally insufficient to support findings that Sharkey acted reasonably in declining his job relocation offer and that he reasonably endeavored to mitigate his damages. Finally, we find no merit to Ultramar's argument that Sharkey's claim accrued on July 1, 1991 and was therefore time-barred. Therefore, we affirm the district court's order denying judgment as a matter of law.

B. Sharkey's Cross-Appeal

On Sharkey's cross-appeal, we review the district court's order denying Sharkey equitable relief for abuse of discretion. See Banks v. Travelers Cos., 180 F.3d 358, 365 (2d Cir. 1999); Gierlinger v. Gleason, 160 F.3d 858, 873 (2d Cir. 1998). Sharkey contends that the district court erred in denying the award of prejudgment interest and pension credits. We agree, with qualifications. We therefore vacate the order and remand to the district court for further proceedings.

As to the denial of the award of pension benefits, Sharkey argues that he is entitled to service and salary credits for the same period as the jury awarded backpay. We agree with Sharkey that awards for lost pension benefits are compensation for past economic loss-not a form of "prospective relief," as the district court found. See Sharkey, 15 F. Supp. 2d at 404-05. If Sharkey was denied compensation for lost pension benefits, he was not made whole, and thus did not receive the proper measure of relief under the anti-discrimination laws. See, e.g., Whittlesey v. Union Carbide Corp., 742 F.2d 724, 727-28 (2d Cir. 1984).

However, it does not necessarily follow that Sharkey is entitled to the relief he seeks. We have distinguished two kinds of relief that may compensate a victim of discrimination for his lost pension benefits. See Banks, 180 F.3d at 365. First, the plaintiff's lost service and salary credits may be restored to his pension plan. See id.; Geller v. Markham, 635 F.2d 1027, 1036 (2d Cir. 1980). This is the post-trial, equitable relief that Sharkey seeks. However, as we recognized in Banks, it is also possible to award money damages to compensate the plaintiff for the value of the pension benefits that were lost. This form of legal relief is proper for a jury to award. See Banks, 180 F.3d at 365 ("Had [plaintiff] actually requested money damages for lost pension benefits, the district court might well have been right to deem that form of relief legal . . . .").

Sharkey argues that because he did not include lost pension benefits in his calculations of damages argued to the jury or attempt to quantify his lost benefits either through testimony or in closing argument, the jury must not have included them in its award. The defendant, on the other hand, argues that the value of Sharkey's lost pension benefits were included by the jury in the award. The evidence Sharkey presented to the jury included reference to pension provisions offered him and his colleagues. Sharkey's counsel made reference to pension benefits in his closing argument. The court instructed the jury that the measure of damages should be "[Sharkey's] economic loss." The court further instructed the jury that Sharkey was entitled to recover "lost salary and benefits, including . . . fringe benefits." And again, it charged: "you may award him an amount equal to the salary and benefits he would have received . . . less the amount of salary and benefits he received after he left the employ of the defendants, including severance payments, pension benefits and amounts from other employers . . . ." (Emphases added.) The jury returned one net verdict "as damages for [Sharkey's] total financial losses." (Emphasis added.) Given this record we cannot say for certain whether the jury did, or did not include the value of Sharkey's lost pension benefits in making its award.

On remand, the district court should make a determination whether the jury's award included the value of lost pension benefits. If not, Sharkey is entitled to equitable relief to provide him with his lost pension entitlement. If so, he has already been compensated, and is not entitled to equitable relief that would duplicate the relief awarded by the jury.

As to the court's denial of prejudgment interest, we have consistently stated that "[t]o the extent . . . that the...