Front Pay

Quinlan v. Curtiss-Wright Corp., 425 N.J. Super. 335 (App. Div. 2012).  This is a long-running employment discrimination case that came back to the Appellate Division after a remand by the Supreme Court.  Judge Sabatino wrote a comprehensive opinion for the panel that educates even the novice employment lawyer, on either side, about “front pay.”  “‘Front pay’ is a concept that attempts to project and measure the ongoing 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.” 

In this case, the jury had made an award of several million dollars in favor of plaintiff.  Much of that award consisted of front pay.  The panel reversed that award, as well as the jury’s award of punitive damages, with which front pay was “inextricably intertwined,” due to a defect in the jury instructions on front pay.  The jury’s finding of liability, and its award of back pay and emotional distress damages ,were affirmed.

In essence, the jury instruction issue on front pay was this.  The trial judge placed on defendant the burden of showing that plaintiff had failed to mitigate future damages by seeking, or not seeking, appropriate employment.  In the case of “back pay,” the employer has this burden, and Judge Sabatino noted that it is not unreasonable to allocate that burden to defendant since historical facts in this regard can be readily provable.  However, requiring defendant to speculate about the future job market, plaintiff’s health or other factors that might affect a plaintiff’s ability to mitigate damages by taking an appropriate job, and the like, was improper and required reversal and remand for a partial new trial.

The preceding paragraph does not do justice to Judge Sabatino’s extensive and detailed analysis of the employment and evidence law that he marshaled in support of the panel’s conclusion.  The opinion is well worth reading in full, especially for employment lawyers or parties to employment cases, for whom it is required reading.  Though it primarily addresses front pay, the decision thoroughly and correctly analyzes an evidence issue and a question related to expert testimony as well.