A good look at damages for employment discrimination

Most the discussion about employment discrimination concerns liability: is the employer guilty of discrimination or not? We don't hear much about the nuts and bolts of an equally important topic: damages. The Northern District of New York this week gives us a good primer on front pay for lost wages and the mitigation of damages.

The case is Picinich v. United Parcel Service, 2008 U.S. Dist. LEXIS 30200 (N.D.N.Y. April 11, 2008). Following a bench trial, Judge McCurn found that UPS fired plaintiff because of his disability. Finding that he did not mitigate his damages, the Judge limited plaintiff's future lost income (also known as "front pay") through February 2002, when he began working as an independent contractor for a realtor but quit after a few months because of the physical effort required. (Under employment discrimination law, the plaintiff has to make reasonable attempts to find other employment in order to recover full back and front pay). The Second Circuit reversed the mitigation finding and sent it back to Judge McCurn for reconsideration.

On remand, the Judge awards plaintiff more than $243,000 in back pay and more than $1.2 million in front pay, covering future lost income until plaintiff turns 65. Here's how the Judge did it:

1. The Judge admitted he was wrong in placing the burden on plaintiff to prove that he mitigated damages. Defendant was responsible for proving that suitable employment existed for plaintiff. So, although plaintiff testified that he worked temporarily as a realtor after UPS fired him, defendant did not ask him at trial when that position ended or what plaintiff did to find alternative employment. Defendant dropped the ball in this regard.

2. Plaintiff's failure to further his education after UPS fired him does not establish that he failed to minimize his damages. Says the Court, "While some courts have found that removing oneself from the job market in order to attend school constitutes a failure to mitigate such that one would not be eligible for back pay, and other courts have concluded that pursuit of education after a diligent search for employment does not constitute a failure to mitigate, no court has found that one must pursue an education in order to properly mitigate one's damages. Therefore, however ill-advised Picinich's decision to not enroll in college, it is not a proper consideration by this court in deciding whether Defendants have met their burden to show that Picinich failed to make reasonable efforts to mitigate his damages."

3. In the Court's discretion, plaintiff will receive front pay through the age of 65. Evidence at trial showed that plaintiff's ability to find employment outside UPS is severely limited because of his age, lack of education and physical limitations and that he could have worked for the company through the age of 65 had he not become disabled. (His disability got worse after UPS failed to accommodate it). As plaintiff will turn 65 in the year 2024, calculating his yearly salary, bonuses and other compensation and benefits, his front pay amounts to over $1.2 million.