Opinion
01 Civ. 2433 (RLC)
November 26, 2002
KELLEY HARRIS, LLP, Attorneys for Plaintiffs, New York, New York Matthew J. Harris, Of Counsel.
ROBINSON BROG LEINWAND GREENE GENOVESE GLUCK, P.C., Attorneys for Defendant, New York, New York, Christy L. Reuter, Of Counsel.
OPINION
In an opinion, Tatar v. Elite Gold, Inc., 01 Civ. 2433, 2002 WL 2031605 (S.D.N.Y. Sept. 4, 2002), with which familiarity is assumed, the court found defendant liable for the wrongful discharge of plaintiffs Tatar and Onel. In order to determine the proper amount of damages plaintiffs were entitled to, they were order to submit:
detailed descriptions, including salary, of any jobs that Tatar and Onel have held since their discharge from Elite Gold. Plaintiffs should also produce documentation, such as pay stubs, corroborating any claims along the foregoing lines. Copies of all documents and submissions are to be provided to defendant, who will have 30 days to register any objections with the court.Id. at *7.
That issue is now before the court for disposition. Plaintiffs submitted an Affirmation Presenting Supplementary Information stating that, despite Tatar's attempts, he could not find employment similar to that which he performed at Elite (i.e., retailing of diamond and gold jewelry) for two reasons. (Pl.'s Aff. ¶ 3.) First, Tatar could not speak English at the time of his wrongful discharge. (Id.) Second, as a consequence of his wrongful dismissal from Elite, Tatar had lost his visa and could no longer work legally in this country. (Id.)
Tatar was able to earn some income by contracting himself out as a messenger service. (Id. at ¶ 4.) In 2001, Tatar's business generated $24,258.40 in gross revenue according to his 1099 tax form, and Tatar claims that his business expenses for that year totaled $10,806.00. (Id. at ¶ 6.) From February 2002 to the present, Tatar has worked under an arrangement with a company known as Sonicair, Inc., and through August 30, 2002, Tatar earned $12,593.00 in gross revenue and lists itemized expenses of $8,984.00. (Id. at ¶¶ 8-9.)
Itemized expenses listed in plaintiffs' submission include: cost of automobile, gas and oil, insurance, cell phone, tolls, repair, and towing. (Id. at ¶¶ 6, 9.) Plaintiffs do not provide receipts for any of these expenses.
Onel, who is Tatar's wife, has not been employed since being discharged from her job with Elite in October of 2000. (Id. at ¶ 11.) At the time of the discharge, she was several months pregnant, and Onel had a baby on February 28, 2001. (Id. at ¶ 12.)
With regard to future earnings, plaintiffs claim that, due to lower revenues of Tatar's business in 2002, it will soon become impracticable to continue it. (Id. at ¶ 14.) Further, they claim that because Tatar's English skills are "rudimentary" and Onel "still does not speak English," and because both lost their necessary papers to work legally in this country, it is highly unlikely that they will be able to find work similar to that which they had at Elite. (Id. at ¶¶ 16, 18.) In addition, if the couple were to return to Turkey, Tatar would be obligated to spend 18 months in the Turkish military, and "the time and expense of relocating his family to Turkey as well as the extremely low army pay for 18 months would mean virtually no earnings for Tatar until the expiration of his contract with Elite." (Id. at ¶ 17.)
In all, plaintiffs contend that $17,061.40 (Tatar's net income through August 2002) is the correct amount that Elite can deduct in mitigation from plaintiffs' combined prima facie damages of $222,000.00. (Id. at ¶ 19.)
Plaintiffs mistakenly calculated the combined prima facie damages as $224,000.00 and Tatar's net income as $17,061.00. The correct figures are substituted here.
Elite raises several objections to this figure. Defendant claims that this dollar amount is inadequate because "plaintiffs' duty to mitigate their damages is and has been unreasonable," and specifically that
the deductions taken from Tatar's wages were submitted without any documentation or other evidentiary proof; Tatar has failed and continues to fail to look for comparable work; Onel has failed to look for any work since her employment with Elite ended; and Plaintiffs' position that they will not likely find work until expiration of the contract term is both unjustifiable and unreasonable.
(Def.'s Aff. at ¶ 3.) In support of its claim that plaintiffs could find comparable work, defendant submits classified advertisements for jobs in the jewelry industry from June 2002 to October 2002, as well as three letters from jewelers in New York City stating "Hereby we inform that we hire employees for Salesperson Positions." (Id. at Exh.'s A-E.)
One of the letters is worded slightly differently: "Hereby we inform that we would be hiring qualified employees for Salesperson positions . . . ." (Id. at Exh. D.)
DISCUSSION I.
Pursuant to New York law, a plaintiff who has been wrongfully discharged must mitigate damages. See Air et Chaleur, S.A. v. Janeway, 757 F.2d 489, 494 (2d Cir. 1985) (stating that "New York's courts adhere to the universally accepted principle that a harmed plaintiff must mitigate damages"); Sudul v. Computer Outsourcing Svcs., Inc., 917 F. Supp. 1033, 1048 (S.D.N.Y. 1996) (Koeltl, J.) (citations omitted) (applying New York law of mitigation in wrongful discharge action). In such cases, a plaintiff is obligated to use reasonable diligence to obtain similar employment elsewhere in the same locality when and if available. Sudul, 917 F. Supp. at 1048 (citations omitted); see also Ingrassia v. Shell Oil Co., 394 F. Supp. 875, 886-87 (D.C.N.Y. 1975) (Levet, J.) (citations omitted) (explaining that plaintiffs in wrongful discharge cases are not required to accept other employment of a different kind or character, or employment not suited to their station).
It is the defendant who bears the burden of showing that a plaintiff could have reduced his or her damages. See Jenkins v. Etlinger, 447 N.Y.S.2d 696, 698 (1982); Oneonta Dress Co., Inc. v. Ozona-USA, Inc., 503 N.Y.S.2d 167, 169 (3d Dept. 1986); Air et Chaleur, 757 F.2d at 494; Sudul, 917 F. Supp. at 1048. This requires a defendant to show not only that the plaintiff unreasonably failed to mitigate, but that reasonable efforts would have reduced the damages. Coastal Power Int'l, Ltd. v. Transcontinental Capital Corp., 10 F. Supp.2d 345, 370 (S.D.N.Y. 1998) (Kaplan, J.) (citing Air et Chaleur, 757 F.2d at 494; Katz Communications, Inc. v. Evening News Ass'n, 705 F.2d 20, 26 (2d Cir. 1983)); Sudul, 917 F. Supp. at 1049.
II.
With regard to plaintiffs' reasonableness in trying to mitigate, Tatar claims that he tried to find a job similar to the one he performed at Elite, but he was unable to do so due to his inability to speak English and the loss of his visa. He therefore secured employment as an independent contractor in messenger services starting in January 2001. Defendant has not shown how Tatar's actions were unreasonable under the circumstances of this case and the court finds Tatar's actions reasonable.
Onel apparently never sought employment after her discharge from Elite. At the time of her termination, Onel was several months pregnant and Onel gave birth on February 28, 2001. Though it was reasonable of Onel not to seek comparable employment before or immediately after the birth of her child, it is arguable that having a baby should not have prevented a reasonable person from seeking employment a few months after giving birth. Yet because Onel lost her visa and is unable to speak English, the court finds that Onel's failure to seek comparable employment was reasonable.
In addition to finding that plaintiffs did not unreasonably fail to mitigate, the court finds that defendant has not met its burden of showing that plaintiffs would have been able, or will within the contract term be able, to find employment comparable to that which they enjoyed at Elite prior to their wrongful termination.
First, defendant did not submit any information about comparable employment opportunities for Tatar prior to June 2002, nor did it submit information about comparable employment opportunities for Onel prior to October 20, 2002. It is therefore clear that defendant did not meet its burden of proving that attempts to mitigate would have been effective before these dates (i.e., between October 14, 2000 and June, 2002 for Tatar, and between October 14, 2000 and October 20, 2002 for Onel).
As for the evidence defendant did submit, the advertisements relevant to Onel appear to show only three positions for which Onel could potentially qualify. (Def.'s Aff. at Exh. A.) The advertisements relevant to Tatar consist of 14 or 15 descriptions of salesperson positions, and these advertisements are spread over an approximate five-month period (i.e., defendant shows, on average, two or three available positions per month). (Def.'s Aff. at Exh. A-D.) As mentioned above, Elite also submits three letters from jewelers containing the general statement that they hire salespeople. Significantly, these letters do not state that the companies are currently hiring, nor do they state that they would consider hiring someone similar to Tatar, who has little knowledge of English and who does not have papers to work in the United States legally.
These are advertisements for salesperson positions in the New York City area (including Long Island and New Jersey) for which Tatar potentially qualifies.
The above-mentioned evidence, without more, is simply inadequate to meet defendant's burden in this case. Cf. Air et Chaleur, 757 F.2d at 494-95 (defendant's exhibit listing daily stock quotations was inadequate to establish the possibility and amount of mitigation in case of breach of contract for sale of stock). What defendant seems to ignore in presenting this evidence are the unique circumstances of Tatar and Onel that would make it more difficult for them to secure comparable positions to those at Elite, which apparently are not abundant to begin with. Tatar's English is rudimentary and Onel does not speak English. Neither has the necessary papers to work legally in this country. Given both of these factors, simply showing that some job openings exist is not enough to show that these plaintiffs would have been able, or will be able, to secure comparable employment to that which they enjoyed at Elite before Elite wrongfully breached its agreements. See Air et Chaleur, 757 F.2d at 495; Coastal Power, 10 F. Supp.2d at 370 (holding that defendant did not prove that plaintiff could have mitigated by finding alternative insurance, where potential underwriter for alternative coverage did not know the material facts about plaintiff's situation and there was no evidence that underwriter would have proceeded if it knew these facts). Therefore, defendant has not met its burden of proving that plaintiffs could have reduced their damages through reasonable efforts.
III.
As defendant has not shown that Onel acted unreasonably or would obtain a job similar to her job at Elite through reasonable efforts, Onel's damages are not affected and remain $104,000.00.
As defendant has not shown that Tatar acted unreasonably or would obtain comparable employment through reasonable efforts, it is inappropriate to reduce his damage award by potential future earnings in the jewelry industry. Furthermore, it would be inappropriate to reduce Tatar's damages by potential future earnings in the messenger business, as Tatar is not required to work in this field to mitigate damages. See Sudul, 917 F. Supp. at 1048; Ingrassia, 394 F. Supp. at 886-87. Yet to the extent that Tatar has already mitigated his damages by working in a different line of business, his damage award must be reduced so as not to provide a windfall to this plaintiff.
Defendant contends that, because Tatar has not provided documentary proof of his business expenses, his prima facie damages should be reduced by his total gross revenues, rather than his net income. The court rejects this argument because the measure of proof necessary to fix an amount of damages is less burdensome than the measure of proof necessary to establish the fact that a plaintiff has sustained damage. See Novelty Textile Mills, Inc. v. C.T. Eastern, Inc., 743 F. Supp. 212, 219-20 (S.D.N.Y. 1990) (Newman, J.) (accepting plaintiff's evidence of mitigation despite plaintiff's inability to present a bill of sale or invoice) (citing Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555 (1931) ("it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate")).
Although Tatar's record keeping is poor, the evidence shows that Tatar earned a certain amount in gross revenue, and the court believes that Tatar assumed some costs in the process. Therefore, the court chooses to accept plaintiffs' statement regarding Tatar's expenses in approximating his damages.
Accordingly, through August 30, 2002, Tatar has mitigated his damages in the amount of $17,061.40 (i.e., gross revenues minus stated costs). Tatar has also mitigated damages from August 31, 2002 through the present, and his damages are reduced by an additional $4,033.18 to account for this time period. Therefore, Tatar's award is reduced by $21,094.58 and his total damages are $96,905.42.
This amount was determined through extrapolation of Tatar's income data from Sonicair by 1) computing the mean monthly revenue earned by Tatar from Sonicair based on a 6 1/2 month employment period; 2) deducting the mean monthly cost of tolls plus gas and oil; and 3) multiplying the difference by 2.75 months.
CONCLUSION
The court finds that Tatar has mitigated his damages by $21,094.58 and that Onel has not mitigated her damages. Defendant has not met its burden of showing that plaintiffs could have secured, or will be able to secure, comparable employment to mitigate damages. As such, Tatar's damages are set at $96,905.42 and Onel's damages are set at $104,000.00.