On Appeal from the United States District Court for the District of Delaware, D.C. Civil No. 83-0120.
Louis Papineau, Director of the Delaware Development Office, appeals from a judgment against him in his official capacity and in favor of Helen Gelof in her suit under the Age Discrimination in Employment Act. 29 U.S.C. §§ 621-634 (1982 & Supp. III 1985). Gelof was awarded damages totalling $325,201.65 plus post-judgment interest at the rate of 17 %. The State of Delaware does not now dispute the district court's liability determination. It challenges the amount of the award in three particulars. We vacate the judgment and remand for a redetermination of some items of recovery.
Set-Off for Unemployment Compensation
Gelof received unemployment compensation for one year following the termination of her employment at the Delaware Development Office. The parties stipulate that she collected $8,580.00. Under the Delaware Unemployment Compensation Act, Del. Code Ann. tit. 19, § 3345(b)(1) (Supp. 1986), Delaware as public employer participates in the unemployment compensation fund on a dollar-for-dollar reimbursement basis.*fn1 The Delaware statute does not, however, provide for recoupment by the fund of unemployment benefits when back pay has been awarded for a wrongful discharge. Cf. Pa. Stat. Ann. tit. 43, § 874(b)(3) (Purdon Supp. 1987) (explicitly allowing recoupment).
Delaware, relying on Dillon v. Coles, 746 F.2d 998, 1006-07 (3d Cir. 1984), contends that although it could sue Gelof for recoupment it should be able to set off against her back pay award the $8,580.00 paid to her from the fund. Gelof, relying on Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 81-85 (3d Cir. 1983), contends (and the district court ruled) that unemployment compensation payments may not be set off against a back pay award in the absence of a statutory provision for recoupment. Both Dillon and Craig are cases arising under Title VII of the Civil Rights Act of 1964. It is settled in this court, however, that in cases arising under the Age Discrimination in Employment Act unemployment compensation made in favor of employees in the private sector. McDowell v. Avtex Fibers, Inc., 740 F.2d 214, 216-17 (3d Cir. 1984), vacated and remanded on other grounds, 469 U.S. 1202, 105 S. Ct. 1159, 84 L. Ed. 2d 312 (1985). Indeed, the McDowell opinion relied on Craig, and on the Supreme Court's opinion in NLRB v. Gullett Gin Co., 340 U.S. 361, 95 L. Ed. 337, 71 S. Ct. 337 (1951), a National Labor Relations Act case, in deciding that set-off of unemployment compensation benefits against age discrimination back pay awards would be inappropriate. The McDowell court observed:
In our view the reasons supporting this court's decision concerning Title VII in Craig apply even more so to this case involving the ADEA. Indeed, . . . while the ends of the two statutes are virtually identical, the ADEA back pay awards, unlike Title VII back pay awards, are not discretionary.
740 F.2d at 217. Thus Craig and McDowell control unless this case fits within the narrow exception recognized in Dillon.
In Craig we adopted the rule against set-off of unemployment benefits.
because we conclude[d] that the legislative history and Gullett Gin are persuasive, that the primary prophylactic policy of Title VII would thereby be better served, that the rule would foster uniformity in applying the back pay remedy, and that the recoupment of unemployment benefits by the state is the better way of dealing with any possible unfairness as between the state and recipient.
721 F.2d at 85 (emphasis supplied). In Dillon, a Title VII case against the Commonwealth of Pennsylvania, which unlike Delaware has a recoupment statute, we permitted a set-off because
it would be wasteful of public funds to require the state to institute the separate suit it is authorized to bring to ...