Alan Schorr’s Employment Case of The Week ending May 24, 2013

Fornaro v. FlightSafety International, Inc., Docket No. ESX-8474-10 (Essex County), Trial Verdict May 23, 2013; (Link to Complaint here)

I have been writing all month about the impressive and unprecedented string of NELA-NJ plaintiff victories this memorable May. The winning streak started on May Day, continued through Mother’s Day, and has now kept its momentum through Memorial Day. Although this verdict was not as impressive in terms of total dollars, it was impressive in that it was perhaps the most difficult of the cases that have come to trial this month.

Diana Acevedo and Rex Fornaro filed suit in Essex County in October 2010, after they both allegedly suffered discrimination, retaliation and wrongful termination. Ms. Acevedo settled her case prior to trial, and therefore I will focus only upon Mr. Fornaro’s claims, which were the subject of this trial.

Rex Fornaro alleged that he was employed by the Defendant as an Instructor, training corporate pilots on sophisticated aircrafts. The Defendant, FlightSafety, is the largest pilot training company in the world and is owned by Warren Buffet. Fornaro alleged that after years of accolades and high praise for his performance, he experienced knee problems which required reasonable accommodations regarding standing limitations and a period of time off to care for the knee injury. Rather than accommodating the disability, Fornaro alleged that the defendant retaliated by issuing “Final Warnings” to him which Fornaro alleged were unwarranted. One such warning came as the result of Fornaro arriving to class eight minutes early instead of fifteen minutes early. Fornaro alleged that it is frequently impossible to get from back-to-back classes within 15 minutes and that other instructors were not as early and never suffered similar discipline.

Eventually, Mr. Fornaro was terminated after requesting a leave of absence. His co-plaintiff, Diana Acevedo had alleged a similar pattern of harassment and retaliation after requesting a reasonable accommodation. Fornaro’s Complaint contained five counts – (1) Failure to accommodate; (2) Discriminatory Termination; (3) Retaliation under the LAD; (4) Aiding and Abetting against the individual supervisors; and (5) Intentional Infliction of Emotional Distress.

The jury trial lasted for two weeks. The trial judge ruled during the trial that economic damages would be limited to $110,000 and threw out the punitive damages claim. Mr. Fornaro had gotten a job paying more money and did not testify at length about emotional distress damages. After 4-5 hours over two days, the jury came back in favor of the plaintiff with $98,000. It is reported that the trial judge has indicated that she will reduce economic damages by the amount that Mr. Fornaro collected in unemployment.

The reduction of damages by unemployment is always an issue at trial, and it should not be. The New Jersey Model Jury Instructions clearly instruct that no offset should be made for unemployment compensation because it provides the wrongdoer with a windfall. Model Jury Instruction 2.33(8) expressly states:

8. Although the back pay award should be reduced by any actual earnings, it should not be reduced by any unemployment benefits or other unearned income the plaintiff may have received.

See also Sporn v. Celebrity, Inc., 129 N.J. Super. 449, 453-60 (Law Div. 1974); Craig v. Y & Y Snacks, Inc., 721 F.2d 77 (3d Cir. 1983).

It is expected that either or both parties will be appealing this verdict and a number of rulings with both parties disagree with. Nevertheless, this verdict, the third in Essex County this month, continues to demonstrate that juries are becoming increasingly dissatisfied with discriminatory treatment in New Jersey’s workplaces.

Plaintiff’s Counsel: For Acevedo and for Fornaro up to Summary Judgment: Mark Lurie, Lurie Law Firm, LLC.

For Fornaro after Summary Judgment and at trial: Ty Hyderally and Francine R. Foner, Hyderally & Associates, P.C.

Defendants’ Counsel: Stephen I. Adler and Mara P. Codey, Mandelbaum Salsburg Lazris & Discenza, P.C.

Trial Judge: Francine A. Schott, J.S.C.