Daniel J. Sharkey, Plaintiff-Appellee-Cross-Appellant v. Lasmo (Aul Ltd.), Ultramar Corporation, Defendant-Appellant-Cross-Appellee

A defendant bears the burden of SHARKEY, all

рroving safety has met five Daniel J. Plaintiff- Ortiz, valve criteria. See United States v. Appellee-Cross-Appellant, (2d Cir.1997). 882, 136 F.3d We have safety a affirmed denial of valve to a (AUL LTD.), Defendant, LASMO defendant who claimed to be unable to recall the name of his heroin sourcе. See Corporation, Defendant- Gambino, United States v. 106 F.3d Appellant-Cross-Appellee. (2d Cir.1997). 1111-12 The statute makes 99-7932(XAP). 99-7928(L), Docket Nos. no exception for failure to furnish informa consequences, yet tion because of feared Appeals, United States Court оf unlikely Congress seems was unaware Second Circuit. knowledge those with of narcotics traffic would in some legiti instances have Argued March 2000. apprehension mate about disclosing what Decided June 2000. contexts, they know. In other courts have recognize refused to fear of the conse

quences ground of disclosure as a lawful withholding information that re disclosed,

quired to be see Piemonte v. States,

United 367 U.S. 559 n. (1961);

S.Ct. L.Ed.2d 1028 United Winter, (1st

States 70 F.3d

Cir.1995) (testimony required under grant immunity), recognized and no case has

such permissible fear as a basis for with

holding information that renders a person

eligible for cooperation departure a under § 5K1.1. Sentencing

U.S.S.G. Com evidently

mission contemplates that risk of

injury a family to defendant or his ‍‌‌‌​​‌​‌​​​‌​‌‌​‌‌‌‌​‌‌‌​​‌‌‌‌‌‌‌​​​‌​‌‌​‌‌‌​‌‌‌‍will not information, withholding

excuse because explicitly

such a risk is identified as a

factor to be in determining considered cooperation

extent of a departure. id. 5K1.1(a)(4).

§ We see no basis for creat

ing fear-of-consequences exception to the

safety valve provision.

Conclusion appeal

The motion to dismiss the is de-

nied. The of the District Court

is affirmed. LEVAL,

Before: STRAUB and HALL,* Judges.

Judge HALL CYNTHIA HOLCOMB by dissents in part separate opinion. LEVAL, Judge: Circuit (“Ul- Defendant Ultramar Corporation tramar”) appeals 13, from the October judgment 1998 on the jury’s verdict en- tered in favor against of the and Ultramar, 7, and from July Opin- 1999 ion denying and Order Ultramar’s motion judgment as а matter of pursuant law 50(b) or, alternative, to Fed.R.Civ.P. in the for a pursuant new trial to Fed.R.Civ.P. 59(a). (Aul Ltd.), v. Lasmo (S.D.N.Y.1999). F.Supp.2d 55 279 Plaintiff Sharkey cross-appeals 3, August from the Opinion 1998 and Order his mo- equitable tion for relief. See (Aul Ltd.), 15 F.Supp.2d 401 Lasmo. (S.D.N.Y.1998). We affirm the and the order post- defendant’s judgment motion. We vacate the order denying plaintiffs equitable motion for re- lief and proceedings. remand for further

BACKGROUND Sharkey brought Age suit under 1967, in Employment Discrimination Act of seq. § 29 621 et alleged U.S.C. He intentionally 1992 Ultramar discriminated him against age by on account of his offer- him ing employmеnt less attractive terms younger than those offered his colleagues, when all three were asked to relocate to Montreal. The facts are set out in the previously reported opinions, see Sharkey Lasmo, F.Supp.2d (S.D.N.Y.1998); F.Supp. 323-24 (S.D.N.Y.1995). F.Supp. After trial, a seven-day returned a Golub, Silver, David S. Golub & Teitell 9, 1998, April finding verdict Ultramar LLP, Stamford, CT, for Appellee. against Sharkey had discriminated $1,427,200. ‍‌‌‌​​‌​‌​​​‌​‌‌​‌‌‌‌​‌‌‌​​‌‌‌‌‌‌‌​​​‌​‌‌​‌‌‌​‌‌‌‍awarding him On Robinson, Fitzgerald, Brog, Michael F. Leinwand, Reich, Gluck, August court denied Genovese & New York, NY, Appellant. relief. motion for additional * Hall, Circuit, Cynthia Appeals sitting by desig- The Honorable Holcomb Senior for the Ninth Judge for the United States Court of nation. Corpora- ing “that the defendant Ultramar the verdict on was entered on

Judgment on the against plaintiff discriminated 1998. On tion October post- defendant’s denied the no reason to age.” We can see basis of parties filed Both judgment motions. retrial. order timely appeals. find merit Ultra- Nor do we judgment. attacks on the mar’s other DISCUSSION most light evidence in the “View[ing] the Appeal A. Ultramar’s Koch, 12 Piesco v. [plaintiff],” favorable tо court contends (2d Cir.1993) (internal quo burden- charging erred omitted), making all marks tation out in McDonnell shifting analysis set drawing all credibility determinations Green, 411 93 Corp. v. U.S. Douglas favor, say we cannot inferences in his (1973). We 36 L.Ed.2d 668 S.Ct. evidentiary legally was “no sufficient there charged on agree juries that should be find” jury reasonable to that basis for a Douglas burden-shifting McDonnell the Sharkey against discriminated See, e.g., Grreenwayv. framework. Buffalo age. his Fed.R.Civ.P. account of on Cir.1998) (2d Hotel, F.3d 53 Hilton 50(a)(1). agree with We therefore cannot (“Courts juries determine —not —should judg tо that it was entitled the defendant Douglas initial whether the McDonnell law, notwithstanding ment as a matter of met.”). have been production burdens of evidence jury’s verdict. Nor is the the must judge, jury, the not the who It is support findings that legally insufficient plaintiff whether has satisfied decide deсlining Sharkey reasonably acted Douglas’s requirements of McDonnell reasonably that he job relocation offer and case, facie prima minimal version of a Fi mitigate damages. endeavored thereby shifting going the burden of for argu merit nally, we find no to Ultramar’s defendant, as well as whether ward to the that claim accrued ment satisfied subsequently the defendant has therefore time-barred. 1991 and was proffering a nondiscrimina the burden Therefore, court’s we affirm the district Instructing reason for its conduct. tory as a matter of dеnying judgment order jury complex process produces on this law. unnecessary risk no benefit and runs the confusing plaintiff If the has Sharkey’s Cross-Appeal B. and successfully prima made a facie case prof met its burden of the defendant has Sharkey’s cross-apрeal, we re On a reason other than discrimination fering court’s order the district view actions, the court should instruct for its relief for abuse of dis Sharkey equitable jury bears the burden of Cos., v. Travelers cretion. See Banks motivated proving that the defendant was (2d Cir.1999); Gierlinger v. F.3d disсrimination —without ref by prohibited Cir.1998). (2d Gleason, burden-shifting to the successive erence the district court Sharkey contends that required have been parties tests that the prejudg award of erred pass. credits. We ment Nonetheless, basis in this we see no therefore qualifiсations. with We agree, charging concluding record for the district order and remand to vacate the preju- superfluous on a matter caused proceedings. court for further defendant. The was re- dice to the of the award of As to the denial charged plaintiffs ultimate peatedly benefits, Sharkey argues that he is prove age was a determina- burden salary credits for entitled to service and reason” in the defen- tive factor or “real jury awarded back- period as the the same The Sharkey. dant’s treаtment of Sharkey with that awards pay. agree a find- We verdict form furthermore evidences for lost benefits are compensation Sharkey was entitled to recover “lost sala- past economic loss—-not a form of “pro- ry benefits, including ... fringe bene- reliеf,” spective as the district court found. again, And it charged: “you may fits.” Sharkey, 15 F.Supp.2d at 404-05. If award him an amount equal to the salary compensation was denied for lost he would have received ... benefits benefits, whole, he was not made less the amount of salary and he benеfits and thus did not receive the proper mea- received after he left the employ of the sure relief under the anti-discrimination defendants, including payments, severance See, laws. e.g., Whittlesey v. Union Car- pension and amounts from other (2d bide Corp., Cir. employers-” added.) ‍‌‌‌​​‌​‌​​​‌​‌‌​‌‌‌‌​‌‌‌​​‌‌‌‌‌‌‌​​​‌​‌‌​‌‌‌​‌‌‌‍(Emphases 1984). jury returned one net verdict “as damages [Sharkey’s] total losses.” However, it necessarily does not financial added.) (Emphasis Given this record we follow that is entitled to the relief say cannot for certain whether the We have distinguished seeks. two did, or did not include the kinds of value of may relief that Shar- compensate a vic key’s lost tim of benefits in making discrimination for his its Banks, award. benefits. See 180 F.3d at 365. First, plaintiffs lost service and salary remand, On the district court should may credits be pension restored to his make a dеtermination whether jury’s the id.; plan. Markham, See Getter 635 award included pension the value of lost (2d Cir:1980). This is the not, benefits. If Sharkey is entitled to post-trial, equitable Sharkéy relief that provide relief to him with his lost However, seeks. as we recognized in so, pension entitlement. If hе already has

Banks, it is possible also money award compensated, been and is not entitled to damages compensate plaintiff the for equitable relief that would duplicate the the pension value of the benefits that were awarded, relief by thе lost. This form legal of relief proper is for As to the pre court’s denial of Banks, jury to award. See 180 F.3d at interest, (“Had we consistently have [plaintiff] actually requested stated that the ... “[t]o extent that the money damages benefits, for lost pension damages plаintiff awarded to the represent the district court might well have been compensation right wages, to deem that for lost form of is ordinari relief le gal....”). ly an abuse of discretion not to include pre-judgment Gierlinger, interest.” Sharkey argues that because he (internal F.3d аt 873 quotation marks not pension did include lost benefits in his omitted) (emphasis Here, in original). the damages argued calculations of jury to the grounds relied on three attempt or to quantify his lost benefit's (1) denying prejudgment interest: the either through testimony in closing or ar jury’s award alrеady was “surprisingly] gument, jury the must not have included genero[u]s”, Sharkey, F.Supp.2d at defendant,'on them in its award. The the (2) 405-06; Sharkey had only made “desul hand, other argues that the value of Shar tory mitigate efforts” to damages, see key’s pension lost benefits were included (3) id.; had recеived a consid by jury the in the award. The evidence claims, erable settlement of his severance Sharkey presented- to the jury included see id. grounds justify deny These do not pension provisions reference to offered ing prejudgment interest on lost wages. him and his colleagues. Sharkey’s counsel Gierlinger, See 874-75. A made reference to benefits in his may court closing by decline to award interest argument. The court instructed jury the that reason of a belief that jury’s the of the award is measure “[Sharkey’s] should be excessively generous. economic If loss.” the award was The court excessive, further jury instructed the that the court might have exercised HALL, CYNTHIA HOLCOMB But it had no of remittitur. power the dissenting in Judge, concurring part as a interest deny prejudgment basis part. reducing an excessive award. substitute for everything majority I concur with however, with the de agree, We that “the opinion except for statement may be prejudgment

fendant that make a determination court should district of the award portions inappropriate included the whether the award of to thе restricted stock that are attributable benefits” and value lost denied, was options and stock states paragraph. opinion preceding calculat on how that award was depending say for certain whether “we cannot Inc., Systems, ed. Cabletron did, not include the value of or did Scarfo Cf. (1st Cir.1995) (damage 54 F.Bd making Sharkey’s lost calculated in man options award for stock plain award.” I believe it is from its already represented present any ner that that the did not consider record be options the stock at thе date annual request value of tenure he may adjusted upward to reflect the inappropriate It also be judgment). he have had at had re- to the value of would Ultramar portion attributable nondiscriminatory offer of em- benefits, ceived a any. if The сourt ployment. jury’s award. apportion need to will Gierlinger, (noting, 160 F.3d at 875 that his Sharkey notes current is indication that includ where there on a formula related to payment based losses, may court “deter ed those district annual salaries. ‍‌‌‌​​‌​‌​​​‌​‌‌​‌‌‌‌​‌‌‌​​‌‌‌‌‌‌‌​​​‌​‌‌​‌‌‌​‌‌‌‍highest his three of the award should be portion mine what working suggests that had continued particular categories attributed” offered, salary at the loss); Handy But see also Williamson approximately would be pension current (7th Co., 1290,1298-99 Mach. ton $55,000 year. But because the dis- per Cir.1987) (same discussing apprоpriate him criminatory job offer caused to cease Texaco, methodologies); Malarkey v. pension is calculated employment, cf. (2d Cir.1993) Inc., employment earlier for the based on his firm, salary, (approving district court’s re which was at a much lоwer “surmise[ ]” award). $17,000 pension resulting reason for an annual garding prejudgment per year. interest court should award jury’s award attribut part on that of the arguments I find Ultramar’s wages. rights able to lost As to stock already lump includes a sum jury award bene options and the value оf lost compensate Sharkey to for his payment fits, if whether any, it should determine un- pension payments diminished future any prejudgment appropriate is persuasive. Ultramar concedes that and if so how much. pre- Plan was not Retirement “Ultramar (Ultramar 21), Grey into

sented evidence” dispute Sharkey’s claim that and does CONCLUSION any he did not include reference table, foregoing For reasons in his pension benefits AFFIRMED; to the All the against defendant is the or- which was submitted concerning pen- heard of the district court defen- evidencе der 50(b) 59(e) is related to the differentials dant’s Rule and Rule motion sion benefits AFFIRMED; packages awarded to the order defen- hand, McAward and Kuz- post-trial for relief on the one dant’s motion Pages min other. 1145 and 1149 of is VACATED and the case is REMAND- by the as Appendix, opinion ED further thе Joint cited proceedings as instructed Sharkey’s referred lawyer instances where herein. in his closing argu- benefits ment, to the issue only are relevant instant “pension” in- that the word the sense only 1145. The page on appears

deed diminished

vague reference I can in thе find Sharkey’s statement page on

record (“And I didn’t know Appendix the Joint our plan,

if was familiar with I know it was different than the

because me, But to what that did was

Canadians. salary my pen-

reduce the base which on, and in the

sion would be based then retire,

future, my pen- when I did annual $10,000 by maybe a

sion would be reduced

year.”). mind-reading with Only

powers testimony use this to esti- ‍‌‌‌​​‌​‌​​​‌​‌‌​‌‌‌‌​‌‌‌​​‌‌‌‌‌‌‌​​​‌​‌‌​‌‌‌​‌‌‌‍could in Sharkey’s diminution future

mate the

pension benefits. notes, majority opinion correctly

As the to seek proper was as for the lost service a form of

credit

post-trial equitable relief. Given this rec-

ord, for the I would remand on, Sharkey’s pension based calculate minimum, years

an two additional absolute salary at the him employment offered

by Ultramar. PINTO, Appellant H.

Maria LIFE

RELIANCE STANDARD COMPANY

INSURANCE

No. 99-5028. of Appeals,

United States Court

Third Circuit.

Argued: Sept. May

Filed

As Amended June

Case Details

Case Name: Daniel J. Sharkey, Plaintiff-Appellee-Cross-Appellant v. Lasmo (Aul Ltd.), Ultramar Corporation, Defendant-Appellant-Cross-Appellee

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 8, 2000

Citation: 214 F.3d 371

Docket Number: 1999

Court Abbreviation: 2d Cir.