By BEA LEWIS, for THE LACONIA DAILY SUN
LACONIA — The one-time Director of Fleet Maintenance for the Winnipesaukee Flagship Corporation has settled his age discrimination claim against his former employer.
In April 2015, Frederick Nashawaty of Bristol filed suit in U.S. District Court asserting that under the Age Discrimination Employment Act adopted in 1967, he was entitled to twice his back pay, because he was pressured to retire after the WFC reassigned many of his duties to a younger man.
Attorney Joe Driscoll of Laconia, who represents WFC, confirmed the case had been resolved, but declined further comment. Nashawaty's attorney, Leslie Johnson of Sandwich, was similarly closed-mouthed, parroting Driscoll's statement that the matter has been resolved.
In May, the WFC moved for summary judgment, contending that Nashawaty could not prove constructive discharge because he continued to receive his salary, and his complaints were ego issues rather than actionable
In August, Judge Joseph A. DiClerico Jr., denied WFC's motion concluding that enough facts about the case remained in dispute that awarding judgment to the defendant solely on points of law was not
Just days before the trial was to start, the judge allowed Nashawaty to file an additional memorandum on the issue of providing evidence to support a front pay damages award without expert testimony.
Front pay is money awarded for lost wages during the time between judgment and reinstatement, or if reinstatement is not feasible, instead of reinstatement. Similar to back pay, it is essentially the equivalent of lost earnings.
Johnson also moved to supplement that memorandum with an expert report and disclosed two expert witnesses, suggesting that they might be called to testify at trial.
Earlier, Driscoll had moved to bar Johnson from showing the jury a chart outlining the damages she argued her client had suffered, and to exclude Johnson from making any mention of future pay damages.
Among the potential remedies Nashawaty had initially sought was reinstatement to his old position. During a recent hearing, counsel agreed that reinstatement was not available, and that future pay was the appropriate remedy.
Nashawaty sought front pay from the date of judgment until 2029, a 13-year span. He planned to testify that he had intended to work into his seventies, as well as detail the salary and benefits he would have received had he continued with WFC.
Driscoll argued that Nashawaty failed to address his duty to mitigate damages, lacked evidence to support his claim for front pay, and asked the court to exclude testimony by the plaintiff's experts as the defense had no notice until the eve of trial.
The judge held that Nashawaty's proffer of the evidence he would provide to support his claim for front pay damages was sufficient to advance to trial. The burden was on WFC to prove to the jury that Nashawaty, who represented that he has made every effort to find a new job, had not mitigated his damages.
The judge ruled that Nashawaty would be allowed to present his claim for front pay damages to the jury for an advisory verdict. If the jury found in favor of Nashawaty on the age discrimination claim, the jurors would then be asked to provide an advisory verdict of how many years the plaintiff would have continued to work at WFC, if any, and the amount of front pay damages, if any.
The court however, said it would make the final decision on whether damages would be awarded and the amount, after considering the jury's advisory verdict and after the parties had the opportunity to be heard on the front pay issue.
If front pay damages were to be awarded, the judge said, he would reduce them to present-day value.
The parties notified the court that a settlement had been reached on Oct. 28, the same day Judge DiClerico made his ruling.
An agreement for entry of judgment or a stipulation of dismissal must be filed with the court by Dec. 1, or the case will be dismissed with prejudice – which means it cannot be refiled.
- Category: Local News
- Hits: 455