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Hiring the most experienced and qualified employment law attorneys is not only about giving yourself the best chance to win your claim, but also about getting the most money when you win as possible under the law. Our attorneys have blogged recently about damages that are available for wrongful termination under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), the Fair Labor Standards Act (“FLSA”), the Age Discrimination in Employment Act of 1967 (“ADEA”), and the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). (Best Law Read: How Is Back Pay Calculated In Wrongful Termination Cases?; What Kind Of Damages Can You Get For Wrongful Termination And Discrimination?; What Damages Can I Get For Wage Violations And Retaliation Under FLSA?). Today, our focus is on the ability to recover front pay as part of a wrongful termination lawsuit.

What is front pay?

Best Employment Lawyer Answer: Front pay is awarded to a wrongfully fired employee following trial when the former employer cannot rehire that employee. Front pay is the alternative consideration to the employee in lieu of reinstatement. Reinstatement cannot be mandated when not requested by the former employee or not offered by the liable former employer. Roush v. KFC Nat’l Management Co., 10 F.3d 392, 398 (6th Cir. 1993). Court will typically provide front pay when reinstate is found to be unfeasible based on ongoing hostility between the parties or that it would cause damage to innocent coworkers. See Selgas v. American Airlines, 104 F.3d 9, 12-13 (1st Cir. 1997); Abuan v. Level 3 Comm., 353 F.3d 1158, 1178 (10th Cir. 2003). Front pay covers not just the wrongfully fired employee’s base salary, but also will include benefits, bonuses and other compensation that the employee would have been likely to receive.

Front pay covers the period from the conclusion of the trial or entry of judgment through a point in the future. Cummings v. Standard Register Co., 265 F.3d 56, 66 (1st Cir. 2001).

The employee bears the initial burden of producing “the essential data necessary to calculate a reasonably certain front pay award,” including “the amount of the proposed award, the length of time the plaintiff expects to work for the defendant, and the applicable discount rate.” McKnight v. General Motors Corp., 973 F.2d 1366, 1372 (7th Cir.1992), cert. denied, 507 U.S. 915, 113 S.Ct. 1270, 122 L.Ed.2d 665 (1993). In Franchina v. City of Providence, 881 F.3d 32, 57 (1st Cir. 2018), the United States Court of Appeals for the First Circuit held that the “factors a court may consider in determining whether front pay is justified, courts throughout the country have looked at a wide range of indices in the crafting of fair front pay awards, including (but certainly not limited to): (1) the plaintiff’s age, (2) the length of time the plaintiff was employed by the defendant employer, (3) the likelihood the employment would have continued absent the discrimination, (4) the length of time it will take the plaintiff, using reasonable effort, to secure comparable employment, (5) the plaintiff’s work and life expectancy, (6) the plaintiff’s status as an at-will-employee, (7) the length of time other employees typically held the position lost, (8) the plaintiff’s ability to work, (9) the plaintiff’s ability to work for the defendant-employer, (10) the employee’s efforts to mitigate damages, and (11) the amount of any liquidated or punitive damage award made to the plaintiff.”

In Anderson v. Brennan, 911 F.3d 1, 11 (1st Cir. 2018), the United States Court of Appeals for the First Circuit rejected a request for front pay because the employee offered no supporting evidence at trial:

“The trial evidence on the appropriate remedy,” the [district] court noted, was “sparse … There was no trial evidence on the length of time for which it would be appropriate to award front pay … on how long Anderson intended to remain a PPO [or] on what age PPOs tend to retire.”  And though Anderson’s post-trial submission had claimed five years’ front pay, the court could “discern no basis in the trial record for why five years would be appropriate. … Because Anderson had full opportunity to enter trial evidence” on front pay “but failed to do so,” the court decided to award no front pay, rather than speculate about its amount. [citation to the record omitted].

How long will front pay cover?

Best Employee’s Attorney Answer: Courts typically do not award front pay until the end of an employee’s work life but will look ahead to a reasonable point were the gap in pay should close. That being said several courts have given out substantial front pay awards. For example, in Warren v. Cty. Comm’n of Lawrence Cty., Ala., 826 F. Supp. 2d 1299, 1313-15 (N.D. Ala. 2011), the District Court considered the evidence and awarded 32 years of wage differential front pay. The District Court held:

Ms. Warren reasonably estimates, based on her age of 33, she would have worked for the Commission until her mandatory retirement age of 65. Thus, she argues that she is entitled to 32 years of front pay. At trial, Ms. Warren testified that she “loved” her job working for the Commission and that she intended to continue to work for the County until retirement. Thus, Ms. Warren’s testimony establishes that she is willing and able to continue working until retirement. Nothing in the record or developed at trial establishes that Ms. Warren has a decreased work/life expectancy. The Commission does not challenge Ms. Warren’s subjective intent to work for the County until retirement, had she not been wrongfully terminated, nor does it refute her projected retirement age.

Further, “[h]istory establishes that employees who work in the Commission offices tend to stay with the County until retirement.” Several examples were detailed during trial testimony, including Linda Harville, who worked for the Commission for more than 30 years; Harville started as Payroll Clerk until she became County Administrator in 2002. Similarly, Karen Harrison held the Accountant position for 27 years and “was slated to step into the County Administrator position upon the retirement of Ms. Harville.”

Another factor the Court considers is the unusually high degree of job stability in the governmental position Ms. Warren occupied with the Commission.

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The Commission argues, without citation to any legal authority, that Ms. Warren’s award of front pay should be reduced to three years’ worth of present value. Because the Commission has not adequately supported its position, nor even informed the Court of what an appropriate dollar figure would be according to such a reduction, the Court is not persuaded to adopt its underdeveloped position. See Flanigan’s Enters., Inc. v. Fulton Cnty., Ga., 242 F.3d 976, 987 n. 16 (11th Cir.2001) (holding that a party waives an argument if the party “fail[s] to elaborate or provide any citation of authority in support” of the argument); Ordower v. Feldman, 826 F.2d 1569, 1576 (7th Cir.1987) (stating that an argument made without citation to authority is insufficient to raise an issue before the court). [footnotes and citation to the record omitted].

In Tyler v. Bethlehem Steel Corp., 958 F.2d 1176 (2d Cir.), cert. denied, 506 U.S. 826, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992), the United States Court of Appeals for the Second Circuit affirmed an award of 17 years of front pay ($667,000) in ADEA case until employee, who had worked there 26 years, reached retirement age.

In Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 511-12 (9th Cir.2000), the United States Court of Appeals for the Ninth Circuit affirmed an award of 22 years of front pay at $2 million undter Title VII to 43–year–old female employee terminated in retaliation for reporting sexual harassment. The Court held:

At the time of the trial, Passantino was 43 years old, with an expected working life of 22 years to her normal retirement age of 65. She had 18 years experience at CPI and her annual salary in her Level 3 position with CPI at that time was $71,500. Evidence showed that if Passantino left CPI, her annual salary with a new employer would likely be $50–60,000. On the other hand, if her career had not been cut short by CPI’s violations of Title VII, the jury could easily have concluded that she was on the path to upper executive management at Level 4 or above. Evidence presented at trial indicated that the compensation packages available to Level 4 managers included base salaries of $94,000, potential cash bonuses, stock bonuses of 4–7% of salary, and stock options worth 200–300% of salary.

As an example, Passantino testified that she was qualified for a position held by John Wernicki (a job that was falsely described to her as a lateral). Wernicki earned $140,000 in base salary—double Passantino’s pay, plus bonuses, stock options, and other perks. The difference between what Passantino earned at the time she was discriminated against (which is more than she would have earned had she left the company and sought another job) and what Wernicki earned over the 22 years of her expected remaining work life adds up to a total of $1.54 million. That calculation does not include the cash bonuses, stock bonuses, or stock options worth two to three times her salary. Adding in those amounts would obviously result in a total loss of income in excess of the jury’s $2 million award.

In Padilla v. Metro–North Commuter R.R., 92 F.3d 117 (2d Cir.1996), the United States Court of Appeals for the Second Circuit upheld front pay award of over $416,000 based on a wage differential from the position that he was demoted from multiplied by 20 years until retirement age of 67.

In Feldman v. Philadelphia Hous. Auth., 43 F.3d 823, 833 (3d Cir. 1994), the United States Court of Appeals for the Third Circuit affirmed a $500,000 front pay award for a 38-year-old employee to cover wage lost until retirement. The Court held: “Feldman’s actuarial-economic expert testified extensively on plaintiff’s lost future income, making several sophisticated calculations that produced various figures, depending upon which criteria he applied. The $500,000 award, however, was over $30,000 less than the lowest figure calculated by Feldman’s expert. Defendants called no expert of their own, and they offered no evidence to controvert the testimony of Feldman’s expert.”

There are many cases that support an argument for front pay until retirement. See Mys v. Michigan Dep’t of State Police, 886 F.3d 591, 603 (6th Cir. 2018)(affirming front pay award of $72,000 covering wage differential of 12 years until retirement); Luca v. Cty. of Nassau, 344 F. App’x 637, 641 (2d Cir. 2009)(affirming front pay of “$604,589, which represents the difference between what Luca would have earned as a probation officer and what she will earn as a corrections officer if she works until age sixty-two, reduced to present value.”); Pollard v. E.I. DuPont De Nemours, Inc., 412 F.3d 657, 668 (6th Cir. 2005)(affirming front pay award of $960,217 based on lost wages through the retirement age of 65); Broadnax v. City of New Haven, 141 F. App’x 18, 22 (2d Cir. 2005)(Front pay award of $927,237.67, representing difference between 42-year-old firefighter’s retirement income and her annual wages before she retired allegedly because of discrimination until her normal retirement age, was not excessive); Gotthardt v. Nat’l R.R. Passenger Corp., 191 F.3d 1148 (9th Cir.1999) (upholding district court award of $603,928.37 front pay to employee for payment until mandatory retirement age of 70 based on promotions he would have likely gotten); Picinich v. United Parcel Service, 583 F.Supp.2d 336 (N.D.N.Y.2008), aff’d, 318 Fed.Appx. 34 (2d Cir.2009) (awarding front pay of $1,218,314.99 until plaintiff reached age 65).

Who decides front pay – the judge or the jury?

Best Wrongful Termination Lawyer Answer: Almost all of the courts that have addressed this issue head on have held that for employment claims under Title VII, the ADEA, ADA and FMLA, front pay is an “equitable remedy” that must be determined by the courtrather than the jury, both as to the availability of the remedy and the amount of any award. See Traxler v. Multnomah Cty., 596 F.3d 1007 (9th Cir. 2010); U.S. E.E.O.C. v. W&O, Inc., 213 F.3d 600, 618 (11th Cir. 2000); Virgo v. Riviera Beach Assoc., Ltd., 30 F.3d 1350 (11th Cir.1994). With that being said, many United States Court of Appeals in various circuits have affirmed front pay decisions made by juries, including Tyler, Passantino, Feldman, Broadnax, and Gotthardt, which are discussed above.

How much can I sue for after being wrongfully fired?

Best Employment Lawyer Answer: Every case will be different, which is why you should consult an experienced and qualified employment lawyer about the particulars of your situation and possible claims. Simply because some courts award lost wages until retirement does not mean that all courts do or that it will be done under the specifics of your wrongful termination case. Instead of searching the web for answers, it is better to call an attorney, especially when there is absolutely no cost to you. (Read: What is the Spitz No Fee Guarantee?). So, if you are searching Google for answer to “what should I do if I was wrongfully fired or terminated by my boss?” or “The company that I worked for forced me to quit after I complained about” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our lawyers in Cleveland, Columbus, Detroit, Toledo and Cincinnati to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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