Front Pay for Discrimination
Wednesday, May 08, 2013
The U.S. District Court, Southern District of Texas, recently held that an employee of the Department of Defense was entitled to four years of front pay as a remedy for discrimination. Junaid v. Department of the Army, Civil Action No. 2:11-CV-00226 (S.D. Tex. Jan. 28, 2013).
Junaid was employed at the Corpus Christi Army Depot for over nine years before the Army removed him. A jury found that the Army subjected Junaid to discrimination based on race, color, national origin, and retaliation due to the removal and awarded Junaid $150,000 in back pay and benefits and $300,000 for emotional pain and suffering, inconvenience, mental anguish, and loss of enjoyment of life. Junaid argued that in addition to the damages the jury awarded him, he was entitled to front pay for future lost earnings.
Courts, as well as the Equal Employment Opportunity Commission, may award front pay to employees as a form of compensatory damages to replace lost wages employees would have received had they not been removed. Reinstatement is a preferable remedy to front pay; however, where reinstatement is not feasible, courts may consider front pay as an alternative. Front pay is not intended to be punitive, and courts must consider whether a plaintiff has diligently sought other employment in awarding front pay. Plaintiffs have a duty to mitigate damages, and earnings from alternative employment must be subtracted from any award of front pay.
The court cited the Fifth Circuit’s list of non-exhaustive factors which may be considered when making a front pay determination, including the length of plaintiff’s employment with defendant, the permanency of the position plaintiff held, the nature of plaintiff’s work, plaintiff’s age and physical condition, the possibility of the consolidation of jobs, and any other non-discriminatory factors that could have impacted the employment relationship.
In awarding front pay to Junaid, the court considered Junaid’s age (58), his proximity to retirement, and the disruptiveness of his termination to his career. The court found that Junaid had been employed by the Department of Defense for an extended period, which demonstrated the relative security of his position and likelihood that he would remain in his position until retirement. The court also considered Junaid’s assertion that he had applied to over 20 federal positions and had been unable to find employment due to the removal being listed in his official personnel records. However, the court found that Junaid’s failure to seek non-federal employment indicated that he had failed to mitigate damages.
Junaid requested 16 years of front pay, asserting that he planned to continue working at the Department of Defense until he attained the age of 73, which would have allowed him to obtain over 30 years of federal government service and maximize his retirement annuity benefits. However, the court held that 16 years was unduly speculative and unreasonable and that it could not base an award of front pay solely on a subjective statement of intent regarding retirement age. The court noted that the median and average age of retirement for workers at the Corpus Christi Army depot was 60 and 61, respectively, and that full retirement age for Social Security was 65.
Despite Junaid’s failure to mitigate by applying only to federal positions, the court found that his termination and the disruption to his career seriously impacted his future earnings potential and that an award of four years of front pay was not unduly speculative.