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Front Pay Determination for Court in FMLA Action

Traxler v. Multnomah County, Case No. 08-35641 (C.A. 9, Feb. 26, 2010)

This case presents two issues concerning damages under the Family Medical Leave Act of 1993 (“FMLA”). 29 U.S.C. §§ 2601-2654 (2006). In an issue of first impression, we consider whether the court, rather than the jury, determines the amount of the front pay award and whether the district court’s calculation of that award was clearly erroneous. Second, we address whether the district court erred in denying liquidated damages without making specific findings as to the employer’s good faith conduct and reasonable belief that it was not violating the statute. We conclude that under the FMLA, front pay is an equitable remedy to be determined by the court. We affirm the district court’s determination and calculation of the front pay award. We reverse and remand the district court’s decision not to award liquidated damages. Absent an articulated rationale to support this conclusion, we cannot meaningfully review the challenge to liquidated damages.

Jill Traxler began working in the Multnomah County Sheriff’s Office (“the County”) in 1987 and was promoted to the Human Resources unit in 1988. By 1998 she had become the interim Personnel Unit Manager and later was promoted to Human Resources Manager I.

The FMLA entitles certain employees to “12 workweeks of leave during any 12-month period” if the employee has a serious health condition, gives birth or adopts a son or daughter, or needs to care for a “spouse, or a son, daughter, or parent [who] has a serious health condition.” 29 U.S.C. § 2612(a)(1). Beginning in 2002, Traxler took medical leave under the FMLA, and again in 2005, she took leave due to a serious physical health condition. During her employment, Traxler never took more than the leave permitted under the FMLA.

On June 13, 2005, the County notified Traxler that her position would be eliminated effective July 1, 2005, and it had a uniformed officer escort Traxler out of the office. She was placed on paid administrative leave, and then transferred to a lower paying position. Traxler continued to take leave under the FMLA, and in September 2005, she received an unfavorable performance review in her new position. Traxler filed a written response to the performance review, but to no avail. The County terminated Traxler in late September 2005.

Traxler filed suit under the FMLA and the Oregon counterpart. After a four-day trial, the jury found that the County had taken adverse employment actions against Traxler in response to her legitimate use of protected leave under the FMLA. The jury awarded Traxler $250,000 in damages (back pay) up to the time of trial and $1,551,000 in front pay. The court declined to enter a judgment for liquidated damages.
 

 

Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Civil Procedure , Damages , Employment
 
Circuit Court Judge(s)
Jay Bybee
Michael Hawkins
Margaret McKeown

 
Trial Court Judge(s)
Garr King

 
Appellant Lawyer(s) Appellant Law Firm(s)
Daniel J. Snyder

 
Appellee Lawyer(s) Appellee Law Firm(s)
Jenny M. Morf Multnomah County Attorney's Office

 

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pay is supported by both the court's reasoning and substantial including the amount, rests solely with the court, not the jury. discretion when it determined that the front pay award should traxler's expert witness did not fare well in the district edy is consistent with the general nature of front pay in the the proceedings, including in its motion for judgment as a matter of law employment, reinstatement, and promotion." id. (a)(1)(b). under the fmla, front pay is an equitable remedy that must a legal remedy on a single line in our opinion in cassino v. action was taken in "good faith" and that it had "reasonable behind the district court's decision rather than sim- tual findings related to the front pay award. gotthardt v. national r.r. ered front pay under the adea treat the remedy as wholly reasonably believed that its conduct was not in violation of is not a form of linear fact-finding appropriately left to the front pay as a proxy. judicial discretion is at the heart of the ble, either immediately or in the future, is a balance of equita- the jury then decides the amount of the front pay award." id. decides propriety and amount of front pay award, but in mak- 3169traxler v. multnomah county cretion is foreclosed when the district court fails to articulate 3162 traxler v. multnomah county mr. snyder: your honor, excuse me. i think the equitable, leaving both the availability and amount of front to begin, the determination whether reinstatement is feasi- it is particularly important for the district court to provide cir. 1984). district court's decision not to award liquidated damages. appeal from the united states district court in sum, under the fmla the equitable award of front pay, equitable relief is sought by any party in such action." id. [8] the fmla is unambiguous that once it is determined why it reached its result. appear to be based on a theoretical worst case without any jury awarded traxler $250,000 in damages (back pay) up to plaintiff is close to retirement, front pay may be the that reinstatement is inappropriate, such as where no position cant statutory difference, notably, the fmla does not include pay award. the statute] unless we know that it has done so and ing: relief. see 29 u.s.c. 2617. the fmla provision governing ages unless the employer can prove that its employment and "reasonable belief." the record does not permit us to the court: no, i'm not. thereby failing to act within the limits prescribed by [7] as an appellate court, we review the decision to deny of reinstatement, sometimes it simply isn't practical. downey, issue of liquidated damages. traxler posits that the district be determined by the court, both as to the availability of the fmla, and again in 2005, she took leave due to a serious was not violating the statute. we conclude that under the and whether the district the district court was mistaken when it stated that "traxler exercise our powers of review. human resources unit in 1988. by 1998 she had become the evidentiary support." specifically, the district court did not id. (a)(1)(a)(i)(i). that same subsection also covers non-wage benefits or nearly four years of salary. the district court's grossly excessive; the court denied the county's motion for a in which reinstatement is not viable because of continuing hostility past costs including, among other things, "wages, salary, award of front pay may be considered). deciding what amount of the front pay award to the jury). standards for awarding damages. evidence in the record. although reasonable minds might dis- decision. in a case under the age discrimination in employ- part. after a four-day trial, the jury found that the county had dated damages without specific findings that the county's filed february 26, 2010 that "[i]f the court concludes that reinstatement is not feasible, in a case construing the speedy trial act, the supreme court fmla and denial of liquidated damages are mutually exclu- jury. just as reinstatement invokes equitable factors, so does the district court rejected as unreasonable traxler's prem- 3 benefits for the rest of her life, noting that she "is young and employment benefits, or other compensation denied or lost." plaintiff-appellant, 581 f.3d 73, 78 n.1 (3d cir. 2009) ("[t]he jury's role was only jill traxler began working in the multnomah county sher- the passing reference to the contrary in cassino, which requisite to a front pay award." id. at 1347. we concluded that 367, 383 (3d cir. 1987)). as a practical matter, front pay is unfortunately, neither party inquired as to the rationale or b. the district court did not err in its calculation infer a rationale. we therefore remand to the district court for testimony regarding her job search activities, although it was ings by the district court. traxler's use of intermittent family leave." it is possible for court, the calculation of the front pay award, and the denial new trial, conditioned on traxler's acceptance of a remittitur statement, is derived solely from the statutory provision per- whatever decision it reaches, so that we can properly which to evaluate its exercise of discretion, thereby the courts of law,' " smith v. barton, 914 f.2d 1330, 1337 congress. analysis [who] has a serious health condition." 29 u.s.c. 2612(a)(1). considerable resources had she asked the district court to set 424 (1987)). the leading employment case on this point is the district court's determination of the amount of front (1974)), an award of monetary damages may constitute equi- be awarded and, if so, in what amount."). the approach in v. glendale union high sch., 403 f.3d 1061, 1069 (9th cir. consol. edison co. of n.y., inc., 822 f.2d 1249, 1257-58 (2d her general challenge of the district court's failure to award for publication leave during any 12-month period" if the employee has a seri- (7th cir. 1991); deloach v. delchamps, inc., 897 f.2d 815, general in nature. nevertheless, there remains ample addi- advisory on the issue of damages because back pay and front with the district court's refusal to award liquidated damages. 490 f.3d 718, 724-25 (9th cir. 2007) (citations omitted). put employer violated the fmla in good faith. these two princi- we review for an abuse of discretion the district court's determination 3163traxler v. multnomah county determined by the district court rather than the jury."). only liquidated damages under the abuse of discretion standard. accept the expert's conclusion that traxler would work for an [2] the characterization of front pay as an equitable rem- be $267,000.4 id. at 853 n.3 (quoting blum v. witco chem. corp., 829 f.2d awarded at the court's discretion only if the court determines violation of the fmla was in good faith and that the county 3164 traxler v. multnomah county remanded for supplemental findings and an explanation on june 13, 2005, the county notified traxler that her amount of the front pay award1 the fmla. ing that front pay is an equitable remedy to be decided by the the adea, unlike the fmla, is ambiguous as to whether here, "reinstatement is not practical due to friction caused by sion. in a thoughtful opinion and order, the district court con- gave no testimony about her efforts to find a full-time job employer's good faith conduct and reasonable belief that it human resources manager i. 558, 571 (1990) (quoting tull v. united states, 481 u.s. 412, the county terminated traxler in late september 2005. determination to the district courts." (internal quotation marks a rationale for its decision when effectuating a congressional adea allows a court to grant "such legal or equitable relief "reasonable grounds for believing that [its action] was not a ble remedy, should the amount be determined by the court or affirmed in part, reversed in part, and where, as here, a district court does not explain its interim personnel unit manager and later was promoted to be awarded unless the employer proves both "good faith" and increases unlikely. consequently, the district court found that 3165traxler v. multnomah county ing the award, the court must accept the jury's factual find- compare chambers v. city of calais, 187 f.3d 621, *3 (1st cir. 1998) liquidated damages. grounds for believing that [its action] was not a violation." 29 i. front pay is the preferred equitable remedy" but when not feasible, an equitable remedy. and, more precisely, even if it is an equita- a matter of law or a new trial pursuant to federal rules of statute, which puts the burden on the employer to avoid liqui- enumerates in detail the types of legal damages permitted, and the fourth, fifth and the tenth circuits, which have abuse its discretion with respect to the front pay award. are unable to "ascertain whether [the] district court has sis added). traxler argues that the county waived the argument that front pay is district court should determine . . . whether front pay should sider its decision and to set forth its reasons for to her legitimate use of protected leave under the fmla. the the jury does not need to be instructed on hostility because it a. front pay is an equitable remedy appropriately front pay, made findings of fact as to the basis for front pay, culation of the front pay award. we reverse and remand the of whether to award equitable relief. park v. anaheim union high sch. 222 f.3d 1150, 1155 (9th cir. 2000), but we review for clear error the fac- beginning in 2002, traxler took medical leave under the waive this issue. the county raised the issue multiple times throughout reasoning, we must remand to that court to recon- inc., 861 f.2d 1541, 1545 (11th cir. 1988); and dominic v. able performance review in her new position. traxler filed a is reasonably likely to obtain other employment. if a on liquidated damages. each party shall bear its own costs on and request for new trial. this question was also the subject of explicit rul- stated: counsel traxler offered 3155traxler v. multnomah county for its decision . . . the district court left us with no angela sowle, county attorney, and jenny morf, assistant to find a comparable position "for the rest of traxler's work- mckeown, circuit judge: court's analysis: "although there is no dispute about [the wit- der any remedy of front pay susceptible to legal ages, she did not preserve the issue for appeal. without doubt, of front pay [6] here, the district court never made an explicit finding ily a "full-time job more equivalent to her work at the county." be calculated through intelligent guesswork, and we recognize september 2, 2009--seattle, washington picking up on a discussion in newhouse v. mccormick & compensatory damages. 532 u.s. 843 (2001). the court held it was unreasonable to assume that traxler would be unable cretion."); see also donlin v. philips lighting n. am. corp., ler did not request specific findings related to liquidated dam- involved the adea rather than the fmla, does not change f.3d 955, 964-66 (10th cir. 2002) (holding that the court complement a deferred order of reinstatement or to ordered front pay as a substitute for reinstatement." id. ever its decision, clearly articulate their effect in only practical approach. the infinite variety of fac- does not explicitly grant plaintiffs the right to front pay; any an employee's remedy against an employer is divided into cassino must also be distinguished based on the difference the court. we affirm the district court's determination and cal- her pay grade, and yearly budget reductions made further table remedy awarded by the court, but because under massachusetts state the fmla, and in september 2005, she received an unfavor- of good faith or reasonable belief, nor did the district court addressed this issue under the fmla. downey v. strain, 510 the employment situation to create hostility even if the in the language of the statutes providing the front pay remedy. mandate that the decision reflect certain enumerated factors. limited exchange regarding liquidated damages: the court is going to make an award of liquidated ings); cline v. wal-mart stores, inc., 144 f.3d 294, 307 & n.3 [5] the fmla contains a "liquidated damages" provision, some disparity in her earning capacity for a period of time. because front pay is not one of the types of legal damages 626(c)(2) (adea). her evidence lacked "specifics sufficient to satisfy the court." 626(c)(2). in contrast, the remedies section in the fmla a result of a violation of this chapter, regardless of whether faith and reasonable belief that it was not violating tive relief.' " chauffeurs local no. 391 v. terry, 494 u.s. court. cline, 144 f.3d at 307 ("[f]ront pay, as an alternative reinstatement. as a proxy for reinstatement, front pay is an this case presents two issues concerning damages under front pay is not included in the enumerated damages under hostility [between the employer and the employee is] a pre- [w]e must examine the adequacy of the rationale v. 3:06-cv-01450-ki denial of the award. court's finding that front pay is appropriate is incompatible 3168 traxler v. multnomah county inextricably linked with the equitable determination regarding basis for this decision. the county argues that because trax- tary equivalent of the equitable remedy of reinstatement.' " cannot meaningfully review the challenge to liquidated dam- 3156 traxler v. multnomah county to ascertain how the district court exercised its discretion. in traxler stakes her position that the amount of front pay is sive. indeed, an employer may violate the fmla through acts the first subsection. 2617(a)(1)(a). thus, the court's power appeal. v. e.i. du pont de nemours & co., 532 u.s. 843, 846 (2001). "in cases lower paying position. traxler continued to take leave under we cannot review the district court's exercise of its priate." 29 u.s.c. 2617(a)(1)(b). in addition to this signifi- amount would compensate for the inability to get a job back factors as applied to the particular case and, what- co., 110 f.3d 635, 642-43 (8th cir. 1997), the district court pollard v. e. i. du pont de nemours & co., a title vii case a jury.2 discretion in weighing [the employer's proof of good mitting the court to award "such equitable relief as may be 823 & n.4, 824 (5th cir. 1990); ramsey v. chrysler first, dated damages but does not assume that liability under the $267,000, which represents almost three years of salary and donlin, 581 f.3d at 78 n.1. not surprisingly, only one circuit for the ninth circuit daniel j. snyder, law offices of daniel snyder, portland even less than the jury awarded. the court was mindful of the that "[i]n cases in which reinstatement is not viable . . . courts 928 f.2d at 1424; fortino v. quasar co., 950 f.2d 389, 398 the court. the district court thus vacated the jury's award of table relief if it is " `incidental to or intertwined with injunc- an explanation, and findings if appropriate, supporting the front pay is sanctioned as an equitable or a legal remedy. the physical health condition. during her employment, traxler actual monetary losses, interest, and liquidated damages. the county violated the fmla. this argument simply ignores the ness's] calculations, his assumptions are questionable and an equitable remedy by "fail[ing] to object to the determination of the another way, "meaningful appellate review for abuse of dis- front pay] must be tempered. it can be awarded to requesting that the district court limit the amount of front pay reasoned decision to review, and no basis upon tional support for the district court's calculation of the front front pay is "money awarded for lost compensation during the period . . . [by failing to give] any indication of the basis explain its reasoning. the transcript reflects the following 626(c)(1) (emphasis added). the statute goes on to provide findings were not clearly erroneous and the court did not that are taken in good faith. see 29 u.s.c. 2617(a)(1)(a). the central question in this appeal is the characterization of ii. liquidated damages a uniformed officer escort traxler out of the office. she was also ruled in the alternative that if it was proper for the jury placed on paid administrative leave, and then transferred to a asked the jury for a sum between $670,746 and $1,163,514, 3166 traxler v. multnomah county the family medical leave act of 1993 ("fmla"). 29 u.s.c. the county's treatment of traxler influenced the jury's deci- defendant-appellee. corp., 345 f.3d 390, 405-06 (6th cir. 2003). sidered all of the evidence and awarded front pay of amount of front pay by the jury at the time of trial." the county did not is squarely in opposition--the sixth circuit. roush v. kfc pay are equitable remedies to be determined by the court."). (4th cir. 1998) (holding that "the district court erred in sub- absent an articulated rationale to support this conclusion, we traxler filed suit under the fmla and the oregon counter- united states court of appeals ond, we address whether the district court erred in denying as will effectuate the purposes of this chapter." see 29 u.s.c. sider whether the court, rather than the jury, determines the fmla, front pay is an equitable remedy to be determined by of $267,000. traxler timely appealed the district court's find- front pay, however, is the appropriate substitute when, as the fmla entitles certain employees to "12 workweeks of oregon, for the plaintiff-appellant. bridge a time when the court concludes the plaintiff making it impossible for us to do our judicial duty. ing life." the county filed a post-trial motion requesting judgment as garr m. king, district judge, presiding 3153 front pay awards must fall within the section on equitable 5 background position would be eliminated effective july 1, 2005, and it had 3157traxler v. multnomah county [3] recognizing that front pay is an equitable remedy, it arban, 345 f.3d at 408. to do so, however, we must be able equitable award within the purview of the court, not the jury. judicial determination and the amount a jury determination. for the district of oregon agree regarding the amount, the district court did not abuse its equitable remedy to be awarded by the district court in its dis- that an employer violated the statute, liquidated damages will decides the actual amount of the award. arban v. west publ'g opinion lation of the fmla. the district court denied the request. (per curiam) (the adea allows for an award of front pay, which is equita- year, there was evidence that traxler had reached the top of 3160 traxler v. multnomah county because of the potential for windfall . . .[the use of ise that she would be unable to find a job with similar pay and declined to enter a judgment for liquidated damages. on whether the judge or the jury should determine the amount the statute does not support such a result. splitting the rem- u.s.c. 2617(a)(1)(a)(iii). [1] our analysis begins with the statute itself. the fmla makes little sense to say that the availability of front pay is a 3161traxler v. multnomah county award of front pay is a jury question"). the situation in the gress has deemed pertinent to the choice of remedy, awarded to traxler. the district court agreed it had erred in here noted that there is a split in the circuits in adea cases ages. nonetheless, even if traxler is deemed to have waived so damaged by animosity that reinstatement is impracticable. 1987). in cassino, an adea case, we considered whether a [4] the district court also noted that traxler's attorney tual circumstances that can be anticipated do not ren- ity between the parties. id. the court then went on to remark law, the jury awards front pay, the court submitted the determination of 3159traxler v. multnomah county in which the supreme court distinguished front pay from graph co., 941 f.2d 1416, 1426-27 (10th cir. 1991); duke, erred in submitting the calculation of front pay to the jury and edy into an equitable and a legal component is a false dichot- argued and submitted that the initial "determination of the propriety of an award of allowing the jury to consider the amount of front pay because before: michael daly hawkins, m. margaret mckeown and 3158 traxler v. multnomah county additional 16.64 years instead of 12.75 years--the national omitted)); smith v. diffee ford-lincoln-mercury, inc., 298 then can an appellate court ascertain whether a dis- 3167traxler v. multnomah county no. 08-35641 order to permit meaningful appellate review. only this observation--plainly dicta--is not inconsistent with our traxler requested liquidated damages for the county's vio- of fact in any such action for recovery of amounts owing as omy. this is a classic case where a monetary award is on this issue of first impression in this circuit, we hold that best understood as a substitute for the equitable remedy of factors, a district court must carefully consider those opinion 510 f.3d at 544 (noting that under the fmla, "reinstatement more equivalent to her work at the county."5 traxler appeals the district court's decision, arguing that the between the plaintiff and the employer or its workers . . . courts have never took more than the leave permitted under the fmla. finally, we reject traxler's additional arguments on the iff's office ("the county") in 1987 and was promoted to the the time of trial and $1,551,000 in front pay. the court the district court may have been alluding to the fact that traxler's tes- ply reach the conclusion that seems best to us. . . . whittlesey v. union carbide corp., 742 f.2d 724, 728 (2d nent to the choice of remedy," i.e., the factors of "good faith" damages. second subsection addresses prospective relief, allowing "for these cases follows the general recognition that front pay is front pay is a matter for the court," but the "amount of an context of other employment-related statutes. although pure reichhold chemicals, inc., 817 f.2d 1338, 1347 (9th cir. mitting the issue of front pay to the jury . . . . on remand, the to calculate front pay, the jury's award of $1,551,000 was cir. 1987). the third circuit can now be added to the list. is available or the employer-employee relationship has been subjecting an employer who violates the act to double dam- ages. and awarded traxler $267,000 in front pay. the district court two subsections. the first subsection allows "damages" for 4 front pay is an equitable remedy that must be determined by damages also is reviewed for an abuse of discretion, mclean v. runyon, average for a woman her age. although the expert assumed court's calculation of that award was clearly erroneous. sec- violation" of the fmla. 29 u.s.c. 2617(a)(1)(a)(iii). we corp., 140 f.3d 335, 354 (1st cir. 1998) (noting that front pay is an equi- sion will be governed by consideration of particular multnomah county, out the factual and legal basis for denial of liquidated dam- civil procedure 50(b) and 59, arguing that the district court have ordered front pay as a substitute for reinstatement." id. ble relief to be calculated by the judge) with kelley v. airborne freight first circuit is unclear.3 court's power to grant "such equitable relief as may be appro- liquidated damages without making specific findings as to the traxler could have saved the parties, the district court, and us its reasoning." united nat'l ins. co. v. r & d latex corp., a reasoned decision as the basis for appellate review: that traxler would receive merit based pay increases every the sixth circuit differs, holding that the district court deter- taken adverse employment actions against traxler in response the court: an award of what? ignored or slighted a factor that congress has deemed perti- or complement to reinstatement, is an equitable remedy best is the district court's duty to determine whether there is hostil- of liquidated damages. duke v. uniroyal inc., 928 f.2d 1413, 1424 (4th cir. 1991). f.3d 534, 544 (5th cir. 2007) (noting that "front pay can only jill traxler, holding that front pay is an equitable remedy. a trial court, d.c. no. ous health condition, gives birth or adopts a son or daughter, at 846. in other words, " `[a] front pay . . . award is the mone- 2601-2654 (2006). in an issue of first impression, we con- remedy and the amount of any award. our view accords with appropriate." 2617(a)(1)(b). passenger corp., 191 f.3d 1148, 1155 (9th cir. 1999). nat'l mgmt. co., 10 f.3d 392, 398 (6th cir. 1993) (holding of front pay award. nearly all of the circuits that have consid- front pay under the fmla--that is, whether it is a legal or an priate amount of back pay . . . . instead, back pay remains an dist., 444 f.3d 1149, 1156 (9th cir. 2006). the district court's award of that "a person shall be entitled to a trial by jury of any issue has good job skills," but acknowledging that there may be (9th cir. 1990) (quoting curtis v. loether, 415 u.s. 189, 196 between judgment and reinstatement or in lieu of reinstatement." pollard written response to the performance review, but to no avail. 141 f.3d 916, 919 (9th cir. 1998). jury's verdict but emphasized that there was "little doubt" that ples are not incompatible. traxler also argues that a finding ment act ("adea"), the fourth circuit observed the follow- only other issue, then, would be . . . whether or not under the fmla to award front pay, as an alternative to rein- enumerated, any award of front pay must be grounded in the timony pertained to her attempt to find "any kind of work"--not necessar- 2 determined by courts trict court has ignored or slighted a factor that con- its speculative character by according wide latitude in its of good faith is irreconcilable with the jury's finding that the or needs to care for a "spouse, or a son, daughter, or parent where, as here, congress has declared that a deci- surgery center, inc., we explained the importance of having jay s. bybee, circuit judges. reinstatement, and thus, is appropriately determined by the our conclusion. district court abused its discretion by declining to award liqui- 2005) ("there is no right to have a jury determine the appro- county attorney, for the defendant-appellee. mr. snyder: liquidated damages, your honor. any reference to "trial by jury of any issue of fact." 29 u.s.c. a challenge as to the specificity of findings, she did not waive money damages are " `the traditional form of relief offered in the ultimate decision, however, rests with the court. see lutz pay to the court. see e.g., id. at 643; denison v. swaco geolo- ble concerns. although there is a strong preference in favor such equitable relief as may be appropriate, including mines the propriety of awarding front pay, but that the jury trial court is required to instruct the jury "that a finding of united states v. taylor, 487 u.s. 326, 336-37 (1988) (empha- sitting in equity, may nevertheless employ an advisory jury. blue cross & blue shield of alabama v. unity outpatient opinion by judge mckeown 1


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