FEDweek

Federal Legal Corner: EEOC Upholds Front Pay Award

In Complainant v. Department of the Navy, EEOC No. 0720100043 (April 4, 2014), the EEOC upheld an administrative judge’s finding of reprisal when an electrician for a Navy contractor was removed from her position in 2007. The AJ ordered the contractor to make the electrician an unconditional offer of a position, and if the contractor refused to rehire the electrician, the AJ found that the agency would be liable for front pay.

On appeal to the EEOC, the agency argued that the contract under which the complainant worked had expired and, therefore, she would have been unavailable for work and should not be entitled to front pay. The Commission found, however, that although the contract was set to expire, the agency had extended the contract for its electricians through fiscal year 2010 and that she was, therefore, available for work and was entitled to an award of front pay.

The Commission explained that front pay is an equitable remedy that compensates an individual when reinstatement is not possible in certain limited circumstances. Front pay may be awarded in lieu of reinstatement: 1) where no position is available; 2) where a subsequent working relationship between the parties would be antagonistic; or 3) where the employer has a record of long-term resistance to antidiscrimination efforts. In order for an individual to be eligible for an award of front pay, the individual must be available to work.

The Commission noted that other contract electricians had worked beyond the end of the fiscal year and found that if the complainant had not been terminated, her employment would have continued beyond September 30, 2007 as well. The Commission held that she was available for work and was, therefore, entitled to an award of front pay.

With respect to the amount of front pay, the Commission found that the AJ’s award of five years of front pay was not appropriate. Since the contract continued for another three years, until September 2010, the Commission found that the complainant would have been employed through that time and awarded her three years of front pay. With respect to compensatory damages, the Commission found that the AJ’s award of $55,000 was supported by substantial evidence and was consistent with the amounts awarded in similar cases. The complainant had requested at least $250,000 in nonpecuniary damages. She claimed that she was unable to pay for her son’s education loans and to support her financially troubled brother due to her termination from her job. The Commission pointed out that it could not compensate her for her son and brother’s harm allegedly caused by the agency. Additionally, the Commission noted that she provided no medical documentation in support of her claim for compensatory damages.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.