Hunton Employment & Labor Perspectives

In a matter of first impression, the U.S. Court of Appeals for the Ninth Circuit recently held that whether a plaintiff with a claim under the Family and Medical Leave Act (“FMLA”) can recover front pay (and how much) is a question for a judge to decide, not a jury.  Under some statutes, such as Title VII of the Civil Rights Act, courts have express discretion to “order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement … or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g).  It is well established under Title VII that a court can decide to substitute front pay for reinstatement in some instances, such as when there is a significant degree of animosity between the parties or when reinstatement could displace other employees.

This is less clear with respect to the FMLA.  Some courts have allowed juries to decide whether the plaintiff is entitled to front pay and how much should be awarded.  The Ninth Circuit Court of Appeals recently wrestled with this issue in Traxler v. Multnomah County, 2010 WL 669251 (9th Cir. February 26, 2010).  In Traxler, a county employee was discharged after he took medical leave.  He filed a lawsuit challenging the decision under the FMLA.  At the trial, the jury returned a verdict in the plaintiff’s favor that included a front pay award of $1,551,000.

The County sought a new trial and to alter or amend the judgment, arguing that it was error to submit the issue of front pay to the jury.  The district court agreed, vacated the jury’s front pay award, and instead awarded the plaintiff $267,000 in front pay.  The district court also ruled in the alternative that, even if it was not improper for the jury to calculate FMLA front pay, the award was excessive.  The plaintiff appealed this ruling.

In affirming the district court’s ruling that it was an error to submit front pay considerations to the jury, the Ninth Circuit held that, under the FMLA, front pay is an equitable remedy that must be determined by the court and not by the jury, as to both the availability of the remedy and the amount of any award.  The Court noted that its view was consistent with the Fourth, Fifth, and Tenth Circuits.  Because front pay is not among the enumerated damages under the statute, the Court concluded that “the court’s power under the FMLA to award front pay, as an alternative to reinstatement, is derived solely from the statutory provision permitting the court to award ‘such equitable relief as may be appropriate.’”  Because front pay is an equitable remedy, the Court reasoned, “it makes little sense to say that the availability of front pay is a judicial determination and the amount a jury determination.”

This decision is significant for employers because, generally speaking, juries can be extremely unpredictable with respect to remedies.  Courts generally have much more experience not only with issues of liability but also with remedies.  Placing the decision whether to award front pay (and how much) in the hands of a jury could dramatically alter the risk scenario in the event of a trial.  Although judges are not always predictable, at least they have much more experience not only with issues of liability but also with remedies, and usually are less likely than juries to be influenced by appeals to emotion.

Thus, at least in the Fourth, Fifth, Ninth, and Tenth Circuits, and “as a proxy for reinstatement,” the award of front pay in FMLA cases, including the amount, rests solely with the judge and not the jury.