*1 Similarly, presented the evidence eluding estab- its resolution on summary judg- genuine issue of fact as to lishes a whether ment.7 employee
Joan Mulvin was an under the years for ADEA. Mulvin worked several V. Way coordinator of the as the United CONCLUSION program, involving regular “CARE-RING” telephone contact with senior citizens and For foregoing reasons, the district handicapped persons who live alone. Mul- court’s granting order summary judgment salary on the vin was the Greater Erie Way to United will be reversed and the Community (GECAC) Action Committee case remanded for further proceedings con- placed Way and was at United under a sistent with this Agreement” Agency “Host under which was referred to “sponsor GECAC as the
agency”, Way designated and United was agency”.
the “host provid- addition to benefits,
ing salary and re- GECAC was
sponsible Agree- under the Host Agency approving
ment for the number of hours by by GECAC;
worked Mulvin and for approving any significant changes in Mul- Helen GELOF schedule, vin’s work responsibility or sta- v. Way; counselling tus within United Mulvin PAPINEAU, Louis capacity in his as Di- regard performance; to her im- Development rector of the Delaware posing discipline. Office, Appellant. hand,
On the other suggesting evidence employee Mulvin was an of United No. 86-5924. Way includes the fact that under the Host United States Appeals, Court of Agency Agreement, Way United was re- Third Circuit. sponsible providing job description to Mulvin, providing orientation and train- Argued June 1987. ing, for keeping time and attendance re- Sept. Decided ports, and keeping activity reports and evaluations. Mulvin was by interviewed Way
United employees prior obtaining job,
her she had use of an office at United
Way, supervised and was by Way a United
employee, according Puffer, who Associ-
ate Executive Operations Director and
Manager of United Way, “probably gener-
ally” supervised day-to-day Mulvin’s activi-
ties. App. at 162. This evidence is suffi- genuine
cient to create a issue as to Mul-
vin’s “employee”, status as an thereby pre- argues
7. Martin also that the district court proffer erred Puffer’s examination and made no limiting terminating and later her cross-ex- Therefore, testimony sought. additional except amination of Puffer. In all instances ruling cannot be denominated an abuse of one, the district court did not abuse its discre- discretion. However, limiting cross-examination. challenges Martin also the district court’s or- permitted questioning should have of Puffer as pleadings, staying der on motions briefs funds, Emergency Federal other than Federal discovery pending anticipated an motion for funds, Management Way received United be- summary judgment. light of our reversal of might cause the information have been relevant grant summary judgment, we assume that to the interstate commerce issue. Martin did stay will be lifted. object to the district court's termination of *2 Chasanov, Shiels, Brown, Shiels &
Roy S.
(ar-
Del.,
Dover,
Guernsey
and John A.
gued),
Guernsey, Philadel-
DeStefano &
Pa.,
appellee.
phia,
(ar-
Foster, Regina M. Mullen
Michael F.
Justice,
Gen.,
gued), Deputy Atty.
Dept, of
Del.,
appellant.
Wilmington,
Snacks, Inc.,
GIBBONS,
v. Y & Y
Judge,
Chief
Before
81-85
GILES,
(3d Cir.1983),
(and
WEIS,
Judge, and
Circuit
ruled)
Judge.*
compensa-
District
payments may
tion
be
set off
OF THE
absence
a statu-
OPINION
COURT
provision
tory
recoupment.
Both Dil-
GIBBONS,
Judge.
Chief
lon
arising
are cases
under Title
*3
Director of the Dela-
Papineau,
Louis
Rights
VII
the
Civil
Act of 1964. It is
Office,
Development
appeals
ware
court, however,
in
settled
this
that in cases
capaci-
him in
judgment against
his official
arising under
Age
the
Discrimination in
her suit
ty
in favor
Helen Gelof in
and
Employment
unemployment
Act
compensa-
Age
Employ-
in
under the
Discrimination
tion
may
against
not be set off
(1982
ment Act.
U.S.C.
621-634
&
29
§§
pay
back
awards
in
employ-
made
favor of
1985),
Supp.
F.Supp.
Ill
648
912. Gelof
private
ees in the
sector. McDowell v.
$325,201.65
damages totalling
was awarded
Fibers, Inc.,
Avtex
214,
(3d
F.2d
740
216-17
plus post-judgment
the
at
Cir.1984), vacated and remanded on other
not now
The State
Delaware does
17%.
grounds,
(1985).
Indeed,
Delaware, relying Dillon v. policy thereby 746 of Title VII would be bet- (3d Cir.1984), served, 1006-07 ter the rule would foster although recoup- it could sue uniformity applying pay Gelof for the back rem- ment recoupment and that the it should be able to unem- edy, set off pay her back ployment by the state is the Gelof, Craig way any possible her from dealing better relying the fund. * Giles, during Hon. James T. United States Court version in effect District 1. The of the statute unemployment compensa- Gelof Pennsylvania, sitting for the time received Eastern District of essentially See 63 Del.Laws by designation. tion the same. (1981). ch. 192 nally, that the state and re- social insurance is not as between unfairness cipient. simply largess. a form of state Both in the private public unemploy- sector supplied). (emphasis F.2d at 85 benefits are earned Dillon, against the Title VII Com- case employee past because of labor. Pennsylvania, which unlike monwealth respect public employee statute, has a we Delaware identically are situated. permitted a set-off because public funds to t would be wasteful hold, therefore, cases which separate require the institute the state to the state has not defined the social insur- bring to recoup it is authorized to suit by including a provision ance benefit of the back award. recoupment against awards, it is clear that the 746 F.2d at Thus controlling precedent. is the Thus depended upon the fact outcome Dillon err declining court did not Pennsylvania the Common- that under law set off Gelof’s back unemployment compensation fund wealth’s *4 award. re- cause of action for
had a substantive pay from of back coupment recipients B. fund benefits. who had received awards exists, recoupment of action That cause Tax Effect moreover, is employer public the whether The district court in included Gelof’s 43, 874(b)(3). private. Pa.Stat.Ann. tit. or damages compen award an element of part defined is thus a of the insurance It sate her for increased the income tax bur employees which accrues benefit that from lump den would result a sum Pennsylvania by of their virtue labor. payment single year pay in a tax of back though urges Delaware that even have paid which would otherwise been over no its fund has feature it years. several Delaware does not contest the should nevertheless have benefit of the liability damages.2 its for that element of exception. Delaware reasons that only that The state contends the district state, private in that employers unlike calculating the court erred in award. The fund are in whose contributions to the the judgment, amount included in the based tax, of a the nature reimburses fund on $85,- report expert, economic is Gelof’s Thus, dollar-for-dollar basis. Delaware calculation, expert’s 031.00. This Delaware urges, it is a direct rather than a collateral contends, on a back award is based of the funds and should source not be $23,331.33higher actually that than award subjected to the rule. Craig Delaware’s Moreover, contends, ed. the state the ex argument, however, ignores impor several pert’s upon calculations are based 1986 tax tant considerations. The first these is rates, district should whereas the by the policy the deterrent stressed judgment have that the would been aware policy 721 F.2d at 84. That is no not be until 1987. applicable less when the state reimburses replies Moreover, Gelof that the award should stand unemploy fund. while knowing expert, because her what ment fund receives contribu awarded, employers amount would not include sector be did indirectly taxation, prejudgment figure form of the base funds, negative impact including source of all the state’s which he calculated the tax Moreover, pays lump payment. those it into the of a sum com fund, pensation urges, rates used be- also taxation. Thus all 1986 tax were May the fund are form of cause that was the law effect place. took supported social insurance taxation. Fi- 1986 when the trial damages, question light judg- we do not address the Delaware’s concession negative properly should made in ment should include the tax whether such an award be impact lump as an sum element of cases. unable, from the court’s objection are district Delaware’s next the dis fact, precise to determine the findings of trict court’s calculation that even if the award of basis legal appropriate Delaware rate was it was lump impact payment. tax sum It First, misapplied respects. in two the state based on may was made be the district court selected the because contem- the 1986tax law the court Federal Reserve discount rate as of the plated payment would in that be made Gelof's on January date of termination year. not know the district court’s We do legal which resulted in a rate of 17% position prejudgment interest on whether (12% 5%), applied the rate to all back + should be into account. Given Dela- taken regardless pay, when the would concession, ware’s some amount dam- points have accrued. The state out that ages lump tax negative effect of a sum the Federal Reserve rediscount fluctu payment should be awarded. In fairness ated between the date of termination and however, parties, to the neither we can Second, judgment. the date of say affirm the amount awarded nor contends that the court abused its discre complete conviction it is excessive. applying rate from the 17% date judg- vacate that Thus we will of termination to the date of awarding tax effect than from the salary rather when damages, findings remand for further paid. have been court on that issue.
A analysis careful of the district court’s C. interest award reveals that alleged the second did error not occur. If *5 Prejudgment Interest the calculation had been made as the state The district court included in suggests, prejudgment (without interest pre-judgment 17%, interest at a of compounding) $93,929.37 would been have $71,702.98. totalling The arrived at court ($114,315.67 yr. back 4 17% 10 X X this on rate based the rate of interest al- = $93,929.37). hand, mo. On the other be- law, judgments lowed on under Delaware cause the district not court did set forth its which is over the Federal Reserve “5% only spec- method calculation can we including any surcharge discount rate as of that the ulate was made on calculation a the time from which interest is due.” Del. compounded annual back basis and 6, 2301(a) (Supp.1986). Code Ann. tit. year. health benefits due each Delaware concedes that the court district holding did not its abuse discretion in prejudgment When interest is to be prejudgment liable for It con- interest. awarded back which have tends, however, the district court years been over a number the trial calculating erred in the amount thereof. court must be afforded reasonable discre- selecting tion in for intervals convenience First, Delaware making the interest calculations. More- court’s discretion should be limited to selec over, making convenience in the calcula- represents tion of a rate that the claimant’s requires governing that if the interest opportunities. lost investment reject rate has fluctuated an interest rate be se- that contention. Gelof deprived was lected for each Our difficulty interval. periodic existence, salary needed for daily arises any case from the absence of not merely deprived of opportu investment explanation by (1) the district court about deprived nities. She was use calculation, (2) the method of or salary rea- time, from to time presumably prefer- sons for selection of method in had to resort other sources of funds in might order ence to others more not, nearly The which live. did court therefore, approximate plaintiff’s its loss. selecting abuse discretion We can- not, rate of interest judgments explanations, allowed on absent these determine under Delaware law as an appropriate mea whether the district abused its discre- sure of the loss of use of determining prejudg- funds. the amount
457 one Thus, extremely “is close and over which as the award ment interest. 721 impact persons could differ.” F.2d from reasonable negative for tax damages concluding that no set-off should 82. vacate that at payment, we will lump sum said, allowed, “[ujnemploy- the court awarding $71,702.98 be judgment part of compensation interest, clearly most resembles for ment and remand ordinarily which not on a collateral benefit findings by the district court further plaintiff’s recovery.” Id. deducted that issue. Significantly, the court then 83. made at that, “[ujnder point the collateral bene- D. rule, plaintiff which a receives fit Judgment Post Interest his or her loss from another source is court awarded Gelof The district credited the defendant’s liabili- rate of interest at the 17%. post judgment damages resulting ty its 28 governed by judgment Post wrongful negligent or act.” 83. The Id. at (1982). judgment was The 1961 U.S.C. § relied on v. Craig court NLRB Gullet Gin 26, Gelof con on November entered 337, 361, Co., 71 L.Ed. 340 U.S. S.Ct. 95 337 1961 rate was the section 5.77% cedes that (1951), Supreme Court which had judg and that the on November a set-off and observed that pay- denied be modified. ment must therefore unemployment compensation ments employer by not made were but E. party, third that instance. awarding Ge- The trial court’s analogous The case us is more before $50,909.00 in pay, in back lof (3d Coles, Cir.1984), v. benefits, $3,243.00 in pension paid unemployment had where state benefits, any without set-off back health employee. We its former al- benefits to set-off, recoupment pro- citing lowed received, judg- will be affirmed. The Pennsylvania of the statute. Bé- visions awarding damages in the amount distin- readily of decision cause basis impact negative tax for the of the collateral guished Craig, discussion amount of lump payment, and in the sum majori- unnecessary. The rule was source *6 interest, will be unduly narrow an ty gives v. Coles for further and the case remanded vacated reading emphasizing proceedings consistent with provision. shall its own costs. party Each bear enough. Dela- The facts here are clear ben- paid, through unemployment has ware WEIS, dissenting. Judge, Circuit efits, plaintiff wages lost I with the result reached concur discharge. By her as a result of unlawful majority, except respect to denial set-off, the state must now denial of request for set-off of unem- Delaware’s princi- again. General these same losses that Gelof ployment benefits are not vitiated ples damage calculations majority explains, the had received. As the provi- specific statutory by the absence of dollar-for-dollar, fund, state reimburses its be made plaintiff is entitled to sions. The employees. paid benefits to state whole, a windfall but double funds from effect Delaware transfers penalty on the and an unwarranted her another, realistically pocket one taxpayer’s Particularly when state. em- makes direct to its former windfall, the court money subsidizes therefore, case, quite un- ployees. The such a result. condone Inc., Snacks, 721 F.2d like Craig v.Y&Y (3d Cir.1983) bene- where employer. fits on behalf the court conceded that
issue set-off for