"Mitigating Front-Pay Damages in NJLAD Cases"
New Jersey Law Journal
Carly J. Skarbnik and Christopher J. Carcich
In the ever-ongoing matter of Quinlan v. Curtis-Wright, the Appellate Division, on April 5, handed down a critical decision (docket number A-5728-06T1) which affects the evidential burden of proof regarding mitigation of future damages in cases coming under the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 -42.
Plaintiff Joyce Quinlan joined defendant Curtis-Wright in 1980 and worked there for over two decades. In 2003, the company promoted a male employee over Quinlan, and he became Quinlan's immediate supervisor. Perceiving that she was being discriminated against, Quinlan assembled nearly 2,000 internal documents and provided them to her attorneys. By the fall of that same year, Quinlan filed a complaint against the company asserting numerous violations of the NJLAD. Quinlan later amended her complaint to add a claim of retaliation after the company terminated her for unauthorized conduct regarding the copying of company files.
The first trial, in 2006, resulted in a mistrial after the jury was unable to return a verdict. In 2007, the case was retried, and the second jury returned a verdict in Quinlan's favor on her lost promotion and retaliation claims. Quinlan was awarded $4,565,479 in compensatory damages. Of this sum, $3,650,318 represented compensation for future economic losses. She was also awarded $4,565,479 in punitive damages, which mirrored the compensatory damages award.
Following the verdict, the Appellate Division reversed and remanded the case for retrial. The Appellate Division found that the jury charge incorrectly distinguished between Quinlan's unauthorized taking of internal documents and her counsel's use of those documents at the deposition of her supervisor. On Quinlan's petition for certification, the Supreme Court reinstated the verdict on Quinlan's retaliation claim. The Court found that Quinlan's use of the company's files, in support of her claims of discrimination, was protected conduct under the NJLAD. The Supreme Court then remanded the matter to the Appellate Division for a determination of other unresolved issues.
Notably, the Appellate Division was asked to consider significant issues that related to the jury's award of future economic losses. Specifically, the court had to determine whether the award of future economic losses was appropriate, and the adequacy of the trial court's jury instructions on that issue.
As is the case with all compensatory damages, future economic damages, more commonly know as "front pay" damages, are intended to make an individual whole. Essentially, the goal is to place a NJLAD plaintiff in the position that he or she would have been in but for the discrimination. As explained by the Appellate Division in Quinlan, "'front pay' is a concept that attempts to project and measure the ongoing economic harm, continuing after the final day of trial." Some jurisdictions and antidiscrimination statutes treat front pay as an equitable remedy, which is to be determined by a judge. However, New Jersey courts have specifically recognized that potential front-pay damages are to be determined by a jury.
The Appellate Division recognized that front pay is dependent on future and, most times, unknowable factors. For instance, it is impossible to know at the time of trial the amount of time a plaintiff will remain unemployed, the availability of comparable employment, and/or how long a plaintiff would have remained working for the company if not for the discrimination. As such, front pay damages are inherently speculative.
The court proceeded to list a variety of factors that should be considered when formulating an assessment of front-pay damages. Most of these factors were articulated by the Sixth Circuit in Suggs v. ServiceMaster Educ. Food Mgmt., 72 F.3d 1228, 1234 (6th Cir. 1996). These factors are: (1) the plaintiff's "future in the position from which she was terminated"; (2) plaintiff's "work and life expectancy"; (3) plaintiff's obligation to mitigate damages; (4) "availability of comparable employment opportunities and the time reasonably required to find substitute employment"; (5) "discount tables to determine present value of future damages"; and (6) "other factors that are pertinent in prospective damages." Additionally, the court stated that the balancing also requires ensuring that the employee is made whole without providing the employee with a windfall.
The Appellate Division then turned its attention to the specific jury instructions proffered at the Quinlan trials. The jury instructions stated, in relevant part, that while Quinlan had a duty to mitigate her damages, the burden of proof to demonstrate a failure to mitigate damages was on the company. Significantly, this burden was placed on defendants with regard to back pay as well as front pay.
Given the inherently speculative nature of determining a plaintiff's failure to mitigate his or her future damages, the court reasoned that the trial court erred in its instructions. The court found that it was unfair to place the burden of persuasion exclusively on defendant. In reaching its conclusion, the court was careful not to fault the individual parties or the trial court. Rather, the court noted the lack of guidance on the issue and referred the matter to the Supreme Court's Committee on Model Civil Jury Charges.
In remanding the matter for trial on front pay and related damages, the court provided some guidance for the trial court. Contrasting past and future losses, the court stated that for past losses a defendant is able to evaluate the track record of a plaintiff's conduct and efforts to mitigate. However, for future losses, the court found that it was unfair to place an "automatic burden" on defendants to "prove the unknown," particularly when the future largely turns on a plaintiff's own conduct. The court also refused to expressly place the burden of proof as to future mitigation of damages on the plaintiff. Thus, the court held that neither party bears the burden of proving, nor disproving, a plaintiff's post-trial mitigation efforts.
Despite the court's holding, the burden of proof will inevitably fall to the plaintiff. A NJLAD plaintiff still bears the burden of proving all of his or her damage claims. Additionally, the court stated that a jury should be advised that the plaintiff will "bear an ongoing obligation to reasonably mitigate her damages in terms of future conduct." Furthermore, the court stated that the jury should be informed that the plaintiff bears the burden of proving that his or her damages are either permanent or will last for a reasonably determinable time.
In light of the court's holding, it is likely that testimony from employability experts will become a necessity for the NJLAD plaintiff. As the court advised, the employability expert can "assist the jury in attempting to predict and quantify such an alleged future loss of income." While the court specifically stated that an employability expert is not a requirement for plaintiffs or defendants, a plaintiff failing to offer such testimony risks being unable to establish the likely duration or permanency of potential front-pay damages. The court also noted that statistical evidence may be relied upon when attempting to establish front-pay damages.
Thus, as a practical matter, the Appellate Division effectively placed the burden of proof as to future mitigation efforts and the duration of future economic losses on the NJLAD plaintiff.
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