Worsowicz v. Nashua Corp.

• Decision Date: 28 June 1985
• Docket Number: Civ. No. 83-386-D.
• Citation: 612 F. Supp. 310
• Parties: Doris WORSOWICZ, Executrix of the Estate of Anthony Worsowicz v. NASHUA CORPORATION.
• Court: U.S. District Court — District of New Hampshire

612 F. Supp. 310

Doris WORSOWICZ, Executrix of the Estate of Anthony Worsowicz v.NASHUA CORPORATION.

Civ. No. 83-386-D.

United States District Court, D. New Hampshire.

June 28, 1985.

Mark T. Broth, Concord, N.H., for plaintiff.

Charles R. Parrott, Boston, Mass., and Francis L. Cramer, Nashua, N.H., for defendant.

OPINION

DEVINE, Chief Judge.

In this action plaintiffDoris Worsowicz brings suit against defendantNashua Corporation("Nashua") alleging violation of the Age Discrimination in Employment Act("ADEA"), 29 U.S.C. § 621, et seq., wrongful discharge, and violation of the Employee Retirement Income Security Act("ERISA"), 29 U.S.C. § 1001, et seq., arising out of Nashua's decision to terminate the employment of plaintiff's deceased husband Anthony Worsowicz in December 1982.Jurisdiction exists for the ADEA claim pursuant to 28 U.S.C. § 1331and29 U.S.C. § 626, for the wrongful discharge claim under the doctrine of pendent jurisdiction, and for the ERISA claim pursuant to 28 U.S.C. § 1331and29 U.S.C. § 1132.The amount in controversy, exclusive of interest and costs, exceeds ten thousand dollars.Currently before the Court are defendant's motion for partial summary judgment and plaintiff's objection thereto.

Under Rule 56(c), Fed.R.Civ.P., summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."In this Circuit, the test to which a summary judgment motion must be put has traditionally been a stringent one.The moving party must affirmatively demonstrate that there is no genuine, relevant factual issue, and the Court must look at the record in the light most favorable to the opposing party and indulge all inferences favorable to that party.Floyd v. Farrell,765 F.2d 1, 5(1st Cir.1985);Wilmot H. Simonson Co., Inc.,755 F.2d 217, 220(1st Cir.1985);General Office Products Corp. v. M.R. Berlin Co., Inc.,750 F.2d 1, 2(1st Cir.1984);Donovan v. Agnew,712 F.2d 1509, 1516(1st Cir.1983);Gual Morales v. Hernandez Vega,579 F.2d 677, 680-81(1st Cir.1978).

The pleadings and submitted affidavits reveal the following facts.After some forty years of employment with Nashua, Anthony Worsowicz was terminated on December 28, 1982.Mr. Worsowicz filed suit against Nashua in June 1983 but passed away in March 1984.Doris Worsowicz, his surviving spouse and administratrix of his estate, was subsequently substituted as the complaining party.SeeRule 25(a), Fed.R. Civ.P.

While employed at Nashua, Mr. Worsowicz was entitled to group term life insurance, which at the time of his termination amounted to coverage totaling one hundred and thirty-seven thousand dollars ($137,000).PlaintiffDoris Worsowicz was the named beneficiary under this insurance policy.Five months after his termination, Nashua requested that Mr. Worsowicz elect a retirement date and the form of his pension benefit payments, including conversion of his life insurance to paid-up life insurance in the amount of seventeen thousand four hundred dollars ($17,400).This election was to be made by May 31, 1983, but for reasons in dispute, the election was not made and Mr. Worsowicz was not included in Nashua's group life insurance program for retirees.

Pursuant to Nashua's Retirement Plan for Salaried Employees, the Nashua Pension Committee was responsible for administration of the retirement plan with the power to determine pension benefit rights of individuals.A booklet distributed to all salaried employees explained that an individual denied pension benefits could appeal that decision to the Pension Committee.Similarly, another booklet explained employee appeal rights and procedures in the event that life insurance benefits were denied.Mr. Worsowicz did not pursue any of these administrative remedies prior to bringing suit in this court.

After termination, Mr. Worsowicz had difficulty obtaining information regarding his pension rights from Nashua.In January 1983he sought pension information¹ from Nashua's Personnel Director without success.As part of his discrimination complaint with the New Hampshire Commission for Human Rights, Mr. Worsowicz requested that the Commission seek this pension information from Nashua.The Commission made the request of Nashua without success in April 1983.Mr. Worsowicz sought pretrial discovery of the pension information in September 1983, but did not receive the information until December 1983.

In its motion for partial summary judgment, Nashua first challenges plaintiffDoris Worsowicz's claim for damages under the ADEA related to her deceased husband's life insurance coverage.Plaintiff seeks to recover the full amount of the policy at the time of Mr. Worsowicz's termination.According to Nashua, plaintiff as administratrix has no claim to the full amount of the life insurance coverage under the ADEA, such claim being limited to the cost to Nashua of providing life insurance coverage.For the following reasons, the Court concludes that plaintiff's claim is limited to the value of the life insurance premiums, not the value of the life insurance proceeds.

After it has been established that an employer has discriminated against an employee in violation of the ADEA resulting in injury to the employee, the Act provides that

in any action brought to enforce this Actthe court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this Act, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section.

29 U.S.C. § 626(b).The purpose of the ADEA is to end age discrimination in employment and to restore a victim of age discrimination to the economic position he would have occupied but for the unlawful conduct of the employer, and thus the governing principle in calculating damages is the concept of making the plaintiff whole.Berndt v. Kaiser Aluminum & Chemical Sales, Inc.,604 F.Supp. 962, 964(E.D.Pa.1985);Merkel v. Scovill, Inc.,570 F.Supp. 141, 144(S.D.Ohio1983).Damages available under the ADEA have been discussed in further detail by the First Circuit Court of Appeals in Kolb v. Goldring,694 F.2d 869, 872(1st Cir.1982):

In its `essential nature'an ADEA action is identical to a common law suit for back wages for breach of contract....Unlike the tort plaintiff, the plaintiff suing under ADEA may recover only `those pecuniary benefits connected to the job relation.'... Damages are meant to put the plaintiff in the economic position he would have occupied but for the discrimination.

The Circuit noted that damages would include items of "pecuniary or economic loss such as wages, fringe, and other job related benefits."Id., Goldstein v. Manhattan Industries, Inc.,758 F.2d 1435, 1446(11th Cir.1985);Loeb v. Textron,600 F.2d 1003, 1021(1st Cir.1979).

Plaintiff, as administratrix, has succeeded to Mr. Worsowicz's rights under the ADEA since his cause of action under that Act survived his death.Asklar v. Honeywell, Inc.,95 F.R.D. 419, 423-24(D.Conn.1982).See, e.g., United States v. Matheson,400 F.Supp. 1241, 1247(S.D.N.Y.1975), aff'd532 F.2d 809(2d Cir.), cert. denied,429 U.S. 823, 97 S.Ct. 75, 50 L.Ed.2d 85(1976)(executor of decedent's estate stands in the same position as decedent).Accordingly, plaintiff's recovery under the ADEA is limited to the damages Anthony Worsowicz was entitled to receive as a victim of age discrimination.The Court is concerned herein with the loss of one particular employment benefit, the life insurance provided by Nashua to Anthony Worsowicz, and concludes, as a matter of law, that Anthony Worsowicz, and thus the present plaintiff, would only be entitled to recover the cost to Nashua of providing the life insurance coverage.

The Court finds the analysis in Fariss v. Lynchburg Foundry,588 F.Supp. 1369(W.D.Va.1984), persuasive in resolution of this issue.Fariss presents a factual background almost identical to the casesub judice.In Fariss, a terminated employee brought suit under the ADEA but died before trial.The employee's widow and administratrix was then substituted as the complaining party.The plaintiff in Fariss had received a lump-sum pension payment, and the Court, in order to determine if the plaintiff still had a monetary claim, offset the pension accrued against the wages and employment benefits which the deceased employee would have been entitled to but for the unlawful termination.The plaintiff in Fariss argued that the proceeds from her deceased husband's life insurance policy should be considered in the offset calculation of plaintiff's damages.The court rejected this argument, concluding that

life insurance should be valued according to the cost in providing the coverage, and not according to the value of the life insurance proceeds.In an age discrimination lawsuit, the defendant employer should be held responsible for the money which it no longer expends on an employee's behalf, but not for any pay-out which an insurance company might make to an employee.The insurance company makes its own determination of whether to pay on a particular insurance claim, which determination is independent of any action by the employer.

Id. at 1371.

The Court in the instant action similarly concludes that the pecuniary benefit derived by plaintiff from Nashua's provision of life insurance coverage is the amount of money plaintiff saved by not having to purchase life insurance coverage.In order, therefore, to make plaintiff whole and restore this lost pecuniary benefit, Nashua should only be obligated to the extent of the value of the life insurance premiums.As noted by one...