Opinion
18 Civ. 3185 (CS) (AEK)
02-11-2022
WALTER JACKSON, Plaintiff, v. PHOENIX TRANSPORTATION SERVICE, ELIDA WULEZYN, and MARLAINA ROLLER, Defendants.
TO: THE HONORABLE CATHY SEIBEL, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE UNITED STATES MAGISTRATE JUDGE
This action was commenced on April 11, 2018, by pro se Plaintiff Walter Jackson. ECF No. 2 ("Complaint"). The Complaint asserts a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), for employment discrimination based on race and national origin, and a claim under 42 U.S.C. § 1981 ("Section 1981") for intentional employment discrimination on the basis of race. Id. at 3-4. The only defendant listed in the caption of the Complaint is Phoenix Transportation Service ("PTS"), but in the "Parties" section of the Complaint, Plaintiff lists Elida Wulezyn and Marlaina Roller as Defendant 1 and Defendant 2, respectively. Id. at 1-2. On February 14, 2020, Roller filed a Notice of Bankruptcy, indicating that she had filed for bankruptcy the previous day. ECF No. 23. By operation of the "automatic stay" provision of the Bankruptcy Code, 11 U.S.C. § 362(a), Roller's bankruptcy filing automatically stayed Plaintiffs claims against her in this action. See ECF No. 24. The automatic bankruptcy stay had no effect on Plaintiffs claims against Wulezyn and PTS. Id. On September 28, 2020, the Clerk of the Court issued a Certificate of Default as to PTS. ECF No. 40. On November 30, 2020, the Court ordered that a default judgment as to liability be entered against PTS and referred this matter to the undersigned for an inquest as to damages. ECF Nos. 48, 49.
No. Certificate of Default has ever been issued as to Elida Wulezyn, nor has a default judgment as to liability been entered against her.
On January 11, 2021, the Court ordered Plaintiff to file proposed findings of fact and conclusions of law concerning all damages he seeks in connection with the entry of a default judgment against PTS, and Plaintiff filed a document entitled "Proposed Finding of Fact & Conclusion of Law" on February 4, 2021. ECF No. 51 (court order); ECF No. 52 ("Proposed Findings"). Due to certain issues with the Proposed Findings, the Court issued an order on February 9, 2021, directing Plaintiff to, among other things, (1) file a declaration in support of his application for damages; (2) resubmit copies of paychecks that were illegible; and (3) serve copies of the Court's orders and his inquest submissions upon PTS by mail at its last known address and file proof of service on the docket. ECF No. 53.
On February 23, 2021, Plaintiff filed his declaration, ECF No. 54, along with a document docketed as "Supplemental Proposed Findings of Fact and Conclusions of Law," ECF No. 55 ("Supplemental Proposed Findings"), that is virtually identical to the prior Proposed Findings minus the photocopies of paychecks that had been included with the Proposed Findings. Plaintiff failed to effect proper service of any of his inquest papers upon PTS, however, and the Court ordered him serve the documents at ECF Nos. 51 through 56 on PTS by March 3, 2021. ECF No. 56. Plaintiff completed service on March 1, 2021, and filed proof of service on the docket on March 4, 2021. See ECF Nos. 57-58. PTS did not file anything by the March 31, 2021, response date that was set by the Court. Nonetheless, because the Court determined that Plaintiffs submissions failed to provide sufficient information regarding his claimed damages, the Court scheduled an evidentiary hearing for January 6, 2022, ECF No. 59, which was then rescheduled to February 3, 2022, ECF No. 62. Plaintiff was the only person to appear and testify at the February 3, 2022, hearing. ECF No. 65 (Inquest hearing transcript ("Tr.")). To date, PTS has neither contacted the Court nor responded in any way to Plaintiffs submissions.
For the reasons stated below, I respectfully recommend that Plaintiff be awarded damages from PTS as follows: (i) $15,000 in back pay, plus pre-judgment interest calculated as set forth herein; (ii) $10,000 for emotional distress; and (iii) post-judgment interest on the entire judgment calculated in accordance with 28 U.S.C. § 1961.
BACKGROUND
The following facts are drawn from the Complaint, the Proposed Findings, and Plaintiffs inquest hearing testimony.
As noted previously, the Proposed Findings and the Supplemental Proposed Findings are essentially identical; the assertions in Plaintiffs declaration mirror the assertions in the section entitled "Finding of Fact" in the Proposed Findings.
Plaintiff worked for PTS as a bus driver for seven to eight months, during which time he was paid a regular salary of $19.20 per hour. Tr. 11; Proposed Findings at 11, 17-18; Compl. at 5. While Plaintiff claims to have "worked approximately 45 hours per week," with "five hours in overtime every week," Proposed Findings at 11, the paystubs provided to the Court as evidence reflect a 35-hour work week, id. at 17-18. Plaintiff testified that he was paid via two separate checks each week-one check for 35 hours, as reflected in the paystubs, and one check for any additional hours that he worked, which amount varied from week to week. Tr. 24-29.
At the inquest hearing, Plaintiff testified that he was actually paid $25 per hour, Tr. 24, 30, but the documentary evidence provided does not substantiate his testimony. See Proposed Findings at 17, 18 (paystubs showing hourly wage of $19.20 per hour).
Plaintiff claims that PTS "paid their employees with checks for overtime that bounced." Proposed Findings at ll.
Plaintiff attached to his Proposed Findings a photocopy of a check numbered 001016, issued by PTS to Plaintiff, which states on the memo line, "covered 901 bounced." Proposed Findings at 13.
Plaintiff alleges that for the two-week period from February 26, 2018, to March 9, 2018, he received no paychecks, "while Hispainic [sic] bus driver had received their paycheck." Compl. at 5. He further alleges that he complained in person to his supervisor, Defendant Elida Wulezyn, about not getting paid for 25 hours of work for the first week and 35 hours of work for the second week, but she did not respond. Id; see Tr. 34-35 ("She just shrugged her shoulders. She didn't care. . . . She didn't say anything."). Plaintiff claims that as a result, he was "forced to quit as a reasonable person would not be able to work [sic] such conditions." Compl. at 5; see also Proposed Findings at 11 ("Plaintiff was constructively terminated by Defendant Phoenix Transportation Service on March 13, 2018."). In the Proposed Findings, Plaintiff asserted that he was unemployed for approximately eight months after his employment at PTS ended, Proposed Findings at 11, but he testified at the inquest hearing that he began work as a school bus driver for Beacon City School District on September 9, 2018, approximately six months after the end of his employment at PTS, Tr. 12-13. At the inquest hearing, Plaintiff testified to his employment history after his constructive discharge from PTS as follows: (1) starting on September 9, 2018, he worked as a school bus driver for the Beacon City School District for two months, Tr. 13-14; (2) in December 2018, he started working for Putnam County Transit as a bus driver and held that job for four months, Tr. 16-18; (3) in January 2019, while he was working for Putnam County Transit, Plaintiff also began working as a bus driver for Total Transportation, and he continued in that job for eight or nine months, Tr. 16-19; (4) from August or September 2019 until March 2020, Plaintiff was unemployed, Tr. 19; (5) in March 2020, Plaintiff began working as a bus driver for the Arlington School District and stayed in that job through the end of 2020, Tr. 14-15, 19-20; (6) Plaintiff has been unemployed since the end of 2020, although he is currently trying to start his own car service. Tr. 20-21.
Plaintiff testified that a fellow employee told him that Hispanic bus drivers were being paid while Plaintiff and other employees were not. Tr. 33-34.
Plaintiff states in the Complaint that he is seeking $30,000 for monetary damages. Compl. at 6. In the Proposed Findings and during his hearing testimony, Plaintiff specified that this consists of multiple components, including $10,000 for emotional distress and $5,000 for punitive damages. Proposed Findings at 11-12; Compl. at 6; Tr. 9-10.
DISCUSSION
I. Legal Standard
"A default judgment that is entered on the well-pleaded allegations in a complaint establishes a defendant's liability, and the sole issue that remains before the court is whether the plaintiff can show, with reasonable certainty, entitlement to the amount of damages [he or she] seeks." Trinity Biotech, Inc. v. Reidy, 665 F.Supp.2d 377, 380 (S.D.N.Y.2009) (citations and quotation marks omitted). Rule 54(c) of the Federal Rules of Civil Procedure requires that "a default judgment must not differ in kind from, or exceed in amount, that [which] is demanded in the pleadings." But "Rule 54 does not require plaintiff to have demanded a sum certain in order to recover on default." Jordonne v. Ole Bar & Grill, Inc., No. 13-cv-1573 (VB) (JCM), 2016 WL 3409088, at *5 (S.D.N.Y.Apr. 26, 2016) (quotation marks omitted), adopted by 2016 WL 3360524 (S.D.N.Y. June 16, 2016). "When assessing damages, a court cannot rely on the plaintiffs statement of the damages; rather, damages must be established with reasonable certainty." Negrin v. Kalina, No. 09-cv-6234 (LGS) (KNF), 2013 WL 6671688, at *4 (S.D.N.Y. Dec. 17, 2013) (quotation marks omitted), adopted by 2014 WL 67231 (S.D.N.Y. Jan. 7, 2014); Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999).
In accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) and Local Rule 7.2 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, copies of this case and other cases, infra, that are unpublished or only available by electronic database shall be simultaneously delivered to pro se Plaintiff along with this Report and Recommendation.
II. Analysis
While Plaintiff asserts claims under both Title VII and Section 1981, the Proposed Findings suggest that he is only seeking damages pursuant to Section 1981. Proposed Findings at 11-12. As set forth below, however, the same types of damages are recoverable under both statutes.
A. Compensatory Damages
"Title VII. . . entitle[s] a plaintiff to compensatory damages for pecuniary loss as well as pain and suffering." Gutierrez v. Taxi ClubMgmt, Inc., No. 17-cv-532 (AMD) (VMS), 2018 WL 3432786, at *6 (E.D.N.Y.June 25, 2018) (quotation marks omitted), adopted by 2018 WL 3429903 (E.D.N.Y.July 16, 2018). "Section 1981 likewise provides for awards of compensatory and punitive damages for race-based discrimination." Quintero v. Angels of the World, No. 19-cv-6126 (DG) (RLM), 2021 WL 4464123, at *13 (E.D.N.Y. Sept. 10, 2021), adopted sub nom. Quintero v. Stoupas, 2021 WL 4463488 (E.D.N.Y.Sept. 29, 2021). "Title VII sets a cap on the aggregate amount of compensatory and punitive damages (excluding back pay) awarded to a plaintiff. Pursuant to 42 U.S.C. § 1981a(b)(3), the amount of that cap depends on the employer's size." Gutierrez, 2018 WL 3432786, at *6 n.6. "However, where Title VII claims are pled alongside Section 1981 . . . claims, courts have awarded damages in excess of the Title VII statutory cap since [Section 1981] impose[s] no limit on the amount of compensatory or punitive damages a court may award." Quintero, 2021 WL 4464123, at *15 n.ll.
1. Back Pay
"Plaintiffs who prevail on employment discrimination claims are entitled to damages to make them whole for injuries suffered on account of unlawful employment discrimination." Poliardv. Saintilus Day Care Ctr., Inc., No. ll-cv-5174 (MKB) (LB), 2013 WL 1346238, at *4 (E.D.N.Y.Mar. 7, 2013) (quotation marks omitted), adopted by 2013 WL 1346398 (E.D.N.Y.Apr. 2, 2013). "Accordingly, a plaintiff is ordinarily entitled to an award of back pay from the date of [his or] her termination until the date of judgment." Id. (quotation marks omitted); see also Santiago v. Crown Heights Ctr. for Nursing & Rehab., No. 15-cv-4381 (DLI) (CLP), 2017 WL 9482107, at *18 (E.D.N.Y.Feb. 24, 2017) ("Under Title VII [and] Section 1981 ... a plaintiff is entitled to an award of back pay from the date of termination until the date of judgment."), adopted as modified by 2017 WL 4410807 (E.D.N.Y.Sept. 30, 2017).
"To determine lost back pay, a plaintiffs base annual compensation at the time of the termination is multiplied by the length of time between termination and ... the inquest." Gutierrez, 2018 WL 3432786, at *7. Back pay awards also include overtime compensation, id, and fringe benefits, Santiago, 2017 WL 9482107, at *18; see also Quintero, 2021 WL 4464123, at *14 ("Typically, back pay is calculated as the wages the employee would have earned from the date of discharge to the date of reinstatement, along with lost fringe benefits such as vacation pay and pension benefits.") (quotation marks and brackets omitted). "An employee who is discharged in violation of Title VII has an obligation to attempt to mitigate damages by using reasonable diligence in finding other employment." Quintero, 2021 WL 4464123, at *14. "Where . . . reinstatement is not requested, the plaintiffs entitlement to back pay is generally reduced or eliminated when [he or] she obtains, or could have obtained, employment elsewhere." Id. Thus, an award of back pay is offset by any income earned by the plaintiff following his or her termination.
Of the $30,000 in total damages sought by Plaintiff, $10,000 is specifically sought for emotional distress, and $5,000 is specifically sought for punitive damages, leaving a maximum total of $15,000 recoverable for back pay. See Proposed Findings at 11-12; Compl. at 6; Tr. 9-10. Plaintiff alleges that he was not paid at all for 60 hours of work during his final two weeks of employment with PTS, see Compl. at 5, and then was unemployed for 25 weeks after his constructive discharge (from March 13, 2018, to September 9, 2018), see Proposed Findings at 11; Tr. 13. The evidence establishes that, at a minimum, PTS regularly paid Plaintiff $19.20 per hour for 35 hours per week, for a gross dollar amount of $672 per week. See Proposed Findings at 17-18; Tr. 28-29. Plaintiff testified that PTS gave him a second paycheck each week for any hours that he worked beyond 35 hours, but the number of hours worked and the dollar amounts paid varied from week to week. Tr. 25-29. While Plaintiff testified that he usually worked seven additional hours each week, Tr. 29, there is no other evidence in the record to corroborate this testimony. Plaintiff also testified that he did not receive any benefits at all from PTS, Tr. 30, and did not receive any unemployment benefits after the termination of his employment with the company, Tr. 13-14.
Based on the foregoing, the Court finds that Plaintiff is entitled to an award of back pay for the entire period between his constructive discharge and his next employment with Beacon City School District, including the 60 hours that he worked during his final two weeks of employment for which he alleges he was never paid. The total amount of back pay for this period is $17,952 (($19.20 per hour x 60 hours = $1,152 for the final two weeks of employment with PTS) + ($672 per week x 25 weeks = $16,800 for the 25 weeks that Plaintiff was unemployed)). But because the Complaint seeks a maximum of $15,000 that can be attributed to back pay, and Rule 54(c) of the Federal Rules of Civil Procedure provides that "a default judgment must not differ in kind from, or exceed in amount, that [which] is demanded in the pleadings," I recommend that Plaintiff be awarded $15,000 in damages for back pay. See, e.g., Mackv. No. Parking Today, Inc., No. 16-cv-3986 (ARR) (CLP), 2019 WL 337096, at *2 (E.D.N.Y.Jan. 28, 2019) (finding that Rule 54(c) limited the damages awarded on a particular claim to the dollar amount demanded by the plaintiffs in their complaint).
In addition, front pay is another type of monetary damage that is potentially recoverable for claims of employment discrimination and "involves calculating economic losses that will be experienced by a plaintiff in the future, as a result of the unlawful conduct of the defendant." Gutierrez, 2018 WL 3432786, at *8. "Unlike back pay, the award of front pay is entirely within the court's discretion, and it is designed to make the plaintiff whole." Id. Here, however, because the entire $15,000 sought by Plaintiff for economic losses may be awarded as back pay, the Court need not consider whether Plaintiff is entitled to front pay. Because this recommendation would allow Plaintiff to recover the maximum amount of damages for back pay for which he is eligible, it is not necessary to address any possible additional potential back pay damages for the remainder of the period from September 9, 2018- the date on which Plaintiff began employment with the Beacon City School District- to the date of the inquest.
2. Emotional Distress
"Courts have awarded damages for emotional distress under Title VII [and] Section 1981 . . . ." Santiago, 2017 WL 9482107, at *23. "Emotional distress claims are generally of three varieties: garden-variety, significant or egregious." Gutierrez, 2018 WL 3432786, at *9 (quotation marks omitted). "Typical, or 'garden-variety,' emotional distress claims contain little evidentiary support, and are marked by 'vague or conclusory' testimony of emotional harm without explanation of the severity or consequences of the harm." Id. "'Significant' emotional distress claims [are] based on more substantial harm or more offensive conduct, and [are] often supported by medical evidence or corroborating testimony." Id. (quotation marks and brackets omitted). "'Egregious' emotional distress claims . . . exist[] where the discrimination alleged is outrageous and shocking or where the physical health of plaintiff [is] significantly affected." Id. (quotation marks and brackets omitted).
Here, Plaintiffs claim for emotional damages is falls within the category of garden-variety emotional distress, as the only evidence of emotional harm is Plaintiffs inquest hearing testimony. Plaintiff testified to feeling stress over the inability to pay his bills, going into debt, and having to move in with relatives following the loss of his job with PTS. Tr. 31. He said that "it was just stressful trying to find another job and having to fulfill the obligations of my debts and not knowing how I'm going to do it. It was very stressful. Like, you can't eat because I don't know how I'm going to pay for certain things." Id. Plaintiff added that he wanted to seek medical treatment for his stress but did not know where to go and did not have money to pay for it. Tr. 32-33. Based on this testimony, the Court finds that Plaintiff is entitled to the $10,000 that he seeks in emotional distress damages and recommends such an award. See Lippe v. Total Nutrition Holdings LLC, No. 16-cv-7049 (SJF) (ARL), 2018 WL 4473548, at *4 (E.D.N.Y.Aug. 28, 2018) (awarding $15,000 for garden-variety emotional distress where "Plaintiff was only employed by Defendants for four months, was allegedly fired in retaliation for her claim of harassment and has offered only her own uncorroborated testimony that that she was 'uncomfortable,' 'devastated' and she 'continues to suffer' from the abuse she was subjected to."), adopted by 2018 WL 4471636 (E.D.N.Y. Sept. 18, 2018); Poliard, 2013 WL 1346238, at *6-7 (recommending award of $10,000 in emotional distress damages: "Absent extraordinary circumstances, plaintiffs vague testimony regarding her 'pain,' 'embarrassment,' and 'humiliation],' places her claim for emotional distress damages at the lower end of the emotional distress damages spectrum.").
B. Punitive Damages
Punitive damages are recoverable under Title VII and Section 1981. See Quintero, 2021 WL 4464123, at *16. "Under Title VII, a plaintiff may recover punitive damages if [he or] she demonstrates that the defendant 'engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.'" Id. (quoting 42 U.S.C. § 1981a(b)(1)). "The terms 'malice' or 'reckless indifference' pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination." Id. (quotation marks omitted). "A plaintiff seeking punitive damages under Title VII must present evidence that (1) the employer discriminated . . . against him [or her] with conscious knowledge it was violating the law, or (2) that it engaged in egregious or outrageous conduct from which an inference of malice or reckless indifference could be drawn." Id. (quotation marks omitted) (emphasis in original). "Moreover, where, as here, liability for punitive damages is sought to be imposed upon an employer for malicious or recklessly indifferent discrimination by its agents, the plaintiff must demonstrate that the employee serving in a managerial capacity committed the wrong while acting in the scope of his [or her] employment, unless the agent's discriminatory employment decisions . . . [were] contrary to the employer's good-faith efforts to comply with Title VII." Id. (quotation marks omitted).
Simply put, Plaintiff has provided no evidence of malicious or recklessly indifferent discrimination by PTS or any of its agents, including individual defendants Elida Wulezyn and Marlaina Koller. Accordingly, he has not established his entitlement to the $5,000 in punitive damages that he seeks.
Although it is beyond the scope of the referral in this matter, it is difficult to see, on the current record, how a default judgment as to liability could be entered against Defendants Elida Wulezyn and Marlaina Koller. With respect to Plaintiffs Title VII claims, there is no individual liability under Title VII, and therefore judgment cannot be entered against the individual defendants on those claims. See Karupaiyan v. CVS Health Corp., No. 19-cv-8814 (KPF), 2021 WL 4341132, at *8 (S.D.N.Y.Sept. 23, 2021). As for the Section 1981 claims, while "Section 1981 does allow for individual liability under appropriate circumstances[, ] . . . [t]o state a claim under Section 1981 against an individual, a plaintiff must allege sufficient facts to demonstrate the defendant was personally or directly involved in the violation, that is, that there exists some affirmative link to causally connect the actor with the discriminatory action." Id. (quotation marks omitted). Plaintiff did not allege any such personal or direct involvement by Wulezyn or Koller in the Complaint. Moreover, Plaintiffs testimony at the inquest hearing did not provide any evidence of personal or direct involvement by Wulezyn or Koller or of any affirmative link causally connecting either Wulezyn or Koller with any discriminatory action taken against him. See Tr. 34-38.
C. Pre-Judgment and Post-Judgment Interest
Plaintiff does not explicitly seek pre-judgment interest in the Complaint. Ordinarily, the failure to include a request for pre-judgment interest would lead the Court to recommend against an award of pre-judgment interest. See Silge v. Merz, 510 F.3d 157, 159-60 (2d Cir. 2007) (Rule 54(c) barred recovery of pre-judgment interest where plaintiff failed to include request for it in his complaint). But Plaintiff spro se status, and the nature of his claims, militates in favor of a different analysis here. See Poliard, 2013 WL 1346238, at *5 n.8 (declining to follow Silge in case involving pro se plaintiff). The court in Poliard noted that '"[t]o the extent. . . that the damages awarded to the plaintiff represent compensation for lost wages, it is ordinarily an abuse of discretion not to include pre-judgment interest.'" Id. (quoting Gierlinger v. Gleason, 160 F.3d 858, 873 (2d Cir. 1998)). In Poliard, the plaintiff used the standard form complaint template that was made available by the Clerk's Office for use by pro se litigants; in part because of this, the court determined that "[although the 'Wherefore' clause [in the form complaint] does not explicitly state that plaintiff seeks pre-judgment interest, in light of plaintiff spro se status and her reliance on a form complaint distributed by the Clerk's Office, the Court liberally construes plaintiffs complaint to include a request for pre-judgment interest here." Id. Plaintiff in this case likewise used a form complaint distributed by the Clerk's Office, see ECF No. 2, and $15,000 of the recommended damages award here is for back pay. For these reasons, and because "district courts within this Circuit routinely allow recovery of pre-judgment interest on awards of back pay and lost wages," Chisholm v. Mem 7 Sloan-Kettering Cancer Ctr., 824 F.Supp.2d 573, 580 (S.D.N.Y. 2011) (quotation marks omitted), the Court liberally construes his Complaint to include a request for pre-judgment interest. Accordingly, I respectfully recommend that the Complaint be liberally construed to include a request for pre-judgment interest and that Plaintiff be awarded pre-judgment interest on his back pay damages. I further respectfully recommend that the applicable interest rate for pre-judgment interest be the average rate of return on one-year Treasury bills for the relevant time period-from February 26, 2018, the date on which PTS ceased paying Plaintiff, to the date of judgment-and that the interest be compounded annually. Poliard, 2013 WL 1346238, at *5.
"Awarding pre-judgment interest on emotional distress damages is not the norm for New York federal courts, and is only done when necessary to make the plaintiff whole." Angulo v. 36th St. Hospitality LLC, No. 19-cv-5075 (GBD) (SLC), 2020 WL 4938188, at * 15 n. 11 (S.D.N.Y.July 31, 2020) (quotation marks and brackets omitted), adopted by 2020 WL 4936961 (S.D.N.Y. Aug. 24, 2020). Where, as here, the Court has recommended an award of back pay damages intended to make Plaintiff whole, an award of pre-judgment interest on his emotional distress damages is not necessary. Id.
Although Plaintiff does not request post-judgment interest in his Complaint, the award of post-judgment interest is mandatory pursuant to 28 U.S.C. § 1961(a), which applies to "any money judgment in a civil case recovered in a district court." Accordingly, I respectfully recommend that Plaintiff be awarded post-judgment interest at the statutory rate set forth in 28 U.S.C. § 1961, starting on the date judgment is entered.
CONCLUSION
For the reasons stated above, I respectfully recommend that Plaintiff be awarded damages on his claims against PTS as follows: (i) $15,000 in back pay, plus pre-judgment interest at the average rate of return on one-year Treasury bills from February 26, 2018, to the date of judgment, compounded annually; (ii) $10,000 for emotional distress; and (iii) post-judgment interest on the entire judgment calculated in accordance with 28 U.S.C. § 1961.
By February 18, 2022, Plaintiff must serve a copy of this Report and Recommendation upon PTS by mail at the following addresses:
Phoenix Transportation Services Inc.
50 Main Street, Suite 390
White Plains, NY 10606
and
Garvey & Associates, P.C.
235 Main Street, Suite 630
White Plains, NY 10601
Plaintiff must then file proof of such service on the docket.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made by mail). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Cathy Seibel, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Seibel, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Am, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).