In the latest chapter of the ongoing case of Quinlan v. Curtiss-Wright Corporation, the New Jersey Appellate Division has ruled that while an employer, found to have terminated an employee in violation of the New Jersey Law Against Discrimination (“the LAD”), has the burden of persuasion to establish a plaintiff’s failure to mitigate damages with respect to back pay, the employer does not have the burden of persuasion with respect to a plaintiff’s failure to mitigate future losses, including front pay. In reversing a jury award for front pay in the amount of $3,650,318 because of improper jury instructions on the front pay issue, the Appellate Division suggested a framework for proper jury instructions on front pay damages and referred the issue to the Model Civil Jury Charge Committee. The Court also reversed the jury’s punitive damages award of over $4.5 million, concluding that that award was linked to the front pay award. The Court held that a new trial was required on both the front pay issue and on punitive damages.
As we previously reported in 2009 and 2010, the Quinlan case has been the subject of much judicial review in recent years. Briefly summarized, the plaintiff, Joyce Quinlan, was employed as the Executive Director of Human Resources at Curtiss-Wright Corporation. She alleged that Curtiss-Wright discriminated against her in violation of the LAD by giving a promotion she sought to a man who was then made her supervisor. To support her case, Quinlan, due to her position in the Human Resources department, was able to collect over 1,800 pages of confidential documents, including a copy of her supervisor’s prior performance appraisal. Rather than produce this document in the course of discovery during the lawsuit, Quinlan’s counsel surprised the supervisor with it at his deposition. Shortly thereafter, Curtiss-Wright terminated Quinlan’s employment for breach of company policies and theft of company property. Quinlan then added a retaliation claim to her pending lawsuit, claiming that Curtiss-Wright had terminated her in retaliation for engaging in “protected activity” in prosecuting her discrimination claim.
At the conclusion of the case, the jury awarded Quinlan an aggregate sum of $4,565,479 in compensatory damages, including $3,650,318 in future (i.e., post-trial) economic losses, including front pay. In addition, the jury awarded Quinlan $4,565,479 in punitive damages, a figure that matched the aggregate award for compensatory damages. After appeals of other discrete issues were ultimately decided by the New Jersey Supreme Court, the case was remanded to the Appellate Division for a determination of issues not considered by the Supreme Court, including the propriety of the front pay award and the adequacy of the jury instructions regarding same.
Appellate Division Decision
The Appellate Division described “front pay” as “a concept that attempts to project and measure the on-going economic harm, continuing after the final day of trial, that may be experienced by a plaintiff who has been wrongfully discharged in violation of anti-discrimination laws.” The Court observed that front pay “generally compensates for the immediate loss of the position until the position would have ended or the employee would have left the company.” Importantly, however, the Court noted that “the purpose of front pay . . . is to ensure that a person who has been discriminated against . . . is made whole, not to guarantee every claimant who cannot mitigate damages by finding comparable work an annuity to age 70.”
The Appellate Division concluded that the trial court’s jury instructions on front pay “erroneously imposed a burden upon defendant to prove that plaintiff would not mitigate her damages in the future after the [conclusion of the trial].” Specifically, the flawed jury instructions provided that defendant not only “had the burden of proving plaintiff’s failure to mitigate damages in the past with respect to back pay, but also bore that same burden to prove that she will fail to mitigate her future losses with respect to front pay.” The Court noted that such an instruction “placed the onus on defendant to prove something that is inherently very difficult to prove - that plaintiff will fail to mitigate future damages that have not yet even occurred,” especially given the fact that such a finding largely turns upon a plaintiff’s own post-trial decisions and matters substantially within her own volition and control. Finding that such an obligation would impose a burden on the defendant-employer “in the prohibited realm of speculation,” the front pay award was vacated and the issue was remanded to the trial court. Likewise, because the front pay issue was “inextricably intertwined with the quantum of punitive damages awarded” (which mirrored the total compensatory damages), the Court also vacated the award of punitive damages.
Recommendations for Jury Instructions
Having determined that it is improper to adopt an explicit jury instruction that places upon either party an evidential burden of proving, or disproving, a plaintiff’s post-trial fulfillment of her duty to mitigate damages, the Appellate Division adopted the preferable approach of requiring the plaintiff to prove the likely duration of her future lost income, without expressing that evidential burden in terms of “mitigation.” In this regard, the Court ruled that both sides were entitled, but not required, to present statistical and “employability” evidence through expert witnesses. The Court recommended that the jury “ further be advised that in assessing such a front pay claim, they should keep in mind that plaintiff will bear an on-going obligation to reasonably mitigate her damages in terms of her future conduct.” Additionally, the trial court’s instructions also must adequately inform the jury that the “plaintiff bears the burden of proving that the damages she claims are either permanent or will last for a reasonably determinable time.” The Appellate Division referred the issue to the Model Civil Jury Charge Committee to develop a recommended charge for such cases to assist the bench and the bar.
As the Quinlan Court recognized, a “plaintiff may choose to maximize her future earnings after trial, or she may choose not to do so.” As such, the plaintiff-employee - and not the defendant-employer - is ultimately responsible for proving that her compensable injuries are permanent or will endure into the future for a reasonably likely time. It would be inherently unfair to require a defendant-employer to hypothesize as to what potential jobs will be obtainable in the future market and to further demonstrate to the jury that plaintiff will not pursue them. Moreover, as the Court noted, front pay awards are often contingent upon factors presently unknowable and subject to considerable change, such as market trends, a plaintiff’s employability, and whether plaintiff would have remained in the same position if not for the discrimination. A proper assessment of front pay damages thus requires a careful balancing of these considerations, and, when confronted with front pay claims, employers should seriously consider retaining statistical and employability experts who can address the relevant factors as articulated by the Court.
For additional details regarding the decision in Quinlan, or to discuss any of your company’s employment-related needs, contact an attorney in the Gibbons Employment & Labor Law Department.
Michael J. Riccobono is an Associate in the Gibbons Employment & Labor Law Department.