Best Ohio Wrongful Termination Attorney Answer: Am I legally entitled to front pay if my job wrongfully fires me? Can I get my job back if I was fired today for no reason? Does Ohio law require the award of future earnings in cases of wrongful termination based upon employment discrimination, harassment, and/or retaliation?
Employees are protected from discrimination in the work place based on their race/color, religion, gender/sex, national origin, age, and disability. Employees who are wrongfully fired based on this type of discrimination can get different types of damages, including economic and non-economic damages (emotional distress). Economic damages usually focus on back pay, which is the amount of lost wages lost up until the time of the verdict, and front pay, which is a projection of future lost wages until the wrongfully fired employee can get or should get an equivocally paying job. Today, our employment law lawyers focus on the issue of front pay.
Recently, the jury in Nenad M. Kostic v. Texas A & M University at Commerce, returned a verdict, finding that the employer, Texas A & M University at Commerce retaliated against the employee-plaintiff Nenad Kostic engaging in protected activity under Title VII of the Civil Rights Act of 1964 and awarded Kostic $300,000 in back wages, but rejected the employee’s request for front pay. As it pertains specifically to Ohio law, Ohio Revised Code §4112.02 provides similar, the same, and in some instances, even broader legal protections against employment discrimination, harassment, and retaliation than those offered by the Federal Law in Title VII.
What is front pay? The United States District Court, N.D. Texas, Dallas Division explained:
“Front pay . . . is intended to compensate the plaintiff for wages and benefits he would have received from the defendant in the future if not for the discrimination.” Julian v. City of Houston, Tex., 314 F.3d 721, 729 (5th Cir. 2002). Under Title VII, courts have discretion to award front pay as part of their authority to provide “other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g)(1). “[F]ront pay is an equitable remedy for the district court to determine, [but] the court may empanel an advisory jury.” Mota v. Univ. of Texas Houston Health Sci. Ctr., 261 F.3d 512, 526 (5th Cir. 2001).
The availability of front pay to an employee is determined by the trial court “through intelligent guesswork,” and due to its “speculative character,” district courts are given “wide latitude” in deciding whether it should be awarded, and if so, in what amount. The Fifth Circuit has listed six factors for a trial court to consider in determining whether to award front pay to wrongfully terminated employees, and if so, in what the amount should be: “(1) the length of prior employment; (2) the permanency of the position held, (3) the nature of the work, (4) the age and physical condition of the employee, (5) possible consolidation of jobs, and (6) the myriad of other non-discriminatory factors which could validly affect the employer/employee relationship.”
Thus, when determining Title VII claims, the decision whether to award future lost wages – i.e., front pay – is left to the discretion of the Court. And as the Court in Nenad demonstrates, the Court has been afforded wide-ranging discretion in deciding whether to award front pay to a plaintiff-employee.
Following the jury’s verdict, Kostic filed a Motion for Judgment requesting that in addition to the jury’s award of $300,000 in back wages, that the Court also award him front pay. How is this possible given that the jury rejected these damages? Under Title VII, a prevailing employee is entitled to reinstatement, if feasible. Alternatively, if reinstatement is not feasible, the trial can substitute front pay for reinstatemt:
Although reinstatement is the preferred remedy, front pay may be awarded if reinstatement is not feasible. Nassar v. Univ. of Texas Sw. Med. Ctr., No. 3:08-CV-1337-B, 2010 WL 3633631, at *2 (N.D. Tex. Sept. 16, 2010) (citing Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869, 870 (5th Cir. 1991)). Here, the parties agree that reinstatement is not feasible because a hostile relationship existed between Kostic and TAMUC. See Mota v. Univ. of Texas Houston Health Sci. Ctr., 261 F.3d 512, 526 (5th Cir. 2001) (reinstatement infeasible in light of “hostile relationship”). During the trial, the Court heard substantial evidence that the relationship between Kostic and TAMUC was deteriorating before Kostic began to engage in protected activity, and that throughout the course of Kostic’s termination proceedings and subsequent litigation, the relationship worsened. The Court concludes that reinstatement would not be feasible in this case.
While employer did not contest the jury’s award of $300,000 in back pay, it did, however, assert that Kostic was not entitled to damages for held explained as follows:
First, Kostic testified, and the Court found his testimony credible, that since he was fired, he has been engaged in an exhaustive search for alternative employment. Kostic has been unsuccessful in that search, but a plaintiff does not have to actually find another job to have successfully attempted mitigation. West v. Nabors Drilling USA, Inc., 330 F.3d 379, 394 (5th Cir. 2003). Second, the Court may not limit Kostic’s front pay award on the basis of a back pay award. Courts have denied front pay when a plaintiff recovers a significant amount of liquidated or punitive damages. See Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir. 1992). Here, there was no such award, and the Fifth Circuit has “never held that an award of back pay can have this same effect” of negating front pay. Julian v. City of Houston, Tex., 314 F.3d 721, 730 (5th Cir. 2002) (reversing district court’s decision to deny front pay based solely on plaintiff’s back pay award). Accordingly, the Court finds that an award of front pay is required by the facts of this case.
However, any good employment law attorney will tell an aggrieved plaintiff-employee that it is important to remember that Courts have also denied front pay where the plaintiff-employee has failed to mitigate his/her damages. In order to achieve this result, it is safe in assuming that Kostic provided the Court with detailed logs, notes, or documentation of his efforts to gain employment. For those former-employees in Kostic’s position – still unemployed following job separation – it is imperative to provide the Court with, at minimum, records of a sincere search for employment – i.e., mitigation.
In this case, the trial court found that Kostic would have stayed on the job for two more years, and awarded an additional $166,229 in front pay.
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