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McPadden v. Wal-Mart Stores East, L.P.

United States District Court, D. New Hampshire

January 5, 2017

Maureen McPadden, Plaintiff
Wal-Mart Stores East, L.P., Defendant Opinion No. 2017 DNH 002

          Richard E. Fradette, Esq., Robert S. Mantell, Esq., Holly A. Stevens, Esq., Lauren S. Irwin, Esq., Joseph A. Lazazzero, Esq., Christopher B. Kaczmarek, Esq.


          Steven McAuliffe, United States District Judge

         Following a five-day trial, a jury found in favor of Maureen McPadden and against her former employer, Walmart, on four state and federal workplace discrimination claims: gender discrimination in violation of both Title VII and New Hampshire's Law Against Discrimination; unlawful retaliation in response to McPadden's having reported perceived workplace safety issues; and common law wrongful termination. The jury awarded McPadden $31.2 million in compensatory, enhanced compensatory, punitive, back pay, and front pay damages. While the jury's verdict on liability was supportable, its total award of damages was, to say the least, startling. Walmart moved for judgment as a matter of law on all claims or, in the alternative, for a new trial. Should those motions be denied, Walmart sought remittitur of the jury's awards of front pay, compensatory damages, punitive damages, and enhanced compensatory damages.

         The court denied Walmart's motions for judgment as a matter of law and for a new trial. See First Post-Trial Order, dated September 16, 2016 (document no. 186). As for Walmart's motion seeking remittitur, the court held that although the jury's award of $500, 000 in compensatory damages was “undeniably generous, ” it was not so grossly disproportionate to any injury established by the evidence as to be unconscionable as a matter of law. Id. at 9. Accordingly, the court allowed that aspect of the jury's award to stand. With respect to Walmart's motion to remit the jury's award of $15 million in enhanced compensatory damages, as well as the jury's (statutorily-reduced) award of $300, 000 in punitive damages, [1] the court deferred any ruling pending certification of several questions of controlling state law regarding enhanced compensatory damages to the New Hampshire Supreme Court.

         Finally, as to the jury's award of more than one-half million dollars in front pay, the court concluded that “remittitur, ” as such, was neither necessary nor appropriate. At the charging conference (prior to instructing the jury), the court informed the parties that the question of whether to award front pay (and, if so, in what amount) was an equitable issue reserved to the court. The court did, however, agree to give the issue to the jury on an advisory basis. Consequently, after the jury returned its verdict, there was no need to “remit” its advisory award of front pay - that was, after all, an issue the court had very clearly stated was one for it to resolve.[2]

         So, the court considered the jury's advisory verdict and the evidence presented, as well as the jury's exceedingly generous award of compensatory damages, and concluded that “an award of front pay in the amount of $111, 591.00 is near the outer boundary of reasonableness in this case.” First Post-Trial Order, at 14. That sum represented three years of front pay, which the court concluded was “more than adequate time for a person of McPadden's age, skill, and training to obtain a pharmacist position at a salary and with benefits comparable to those she received at Walmart.” Id.[3]

         McPadden now moves the court to reconsider the latter aspect of its order, asserting that the court made two manifest errors of law. First, she says the question of whether to award front pay (and, if so, how much) on her state law claims was a jury question, protected by both New Hampshire law and the Seventh Amendment to the United States Constitution. Accordingly, says McPadden, the court erred by deciding the front pay issue with regard to her state claims. Instead, she says, the court should have accepted the verdict on “front pay” as binding (and, if appropriate, applied remittitur standards to effect any reduction). Second, McPadden asserts that Walmart waived its right to “challenge the jury trial by way of advisory jury proceedings when it failed to file a timely motion pursuant to Fed.R.Civ.P. 52(b)” to amend the judgment. Plaintiff's Motion for Partial Reconsideration (document no. 190) at 1.

         Turning first to McPadden's “waiver” theory, her argument seems to go something like this: Following the jury's verdict, the clerk of court entered judgment (document no. 140) on that verdict “in the total amount of $16, 522, 485.87, ” which included “Front Pay: $558, 392.87.” The judgment as entered on the docket failed to note that the jury's verdict on front pay was merely advisory. McPadden seems to argue that absent such clarification, the judgment must be taken as binding with respect to the front pay award. And, she says, because Walmart neglected to file a timely motion under Rule 52(b) to amend the perhaps-misleading judgment, Walmart waived any “right” to an advisory verdict on front pay. The point seems to be that the form of judgment as entered, coupled with Walmart's failure to seek an amendment, converted the advisory verdict into an actual verdict.

         The court disagrees. To the extent the judgment neglected to note that the jury's verdict on front pay was advisory only, it “failed to reflect the court's intention” and will be amended accordingly. Companion Health Servs. v. Kurtz, 675 F.3d 75, 87 (1st Cir. 2012) (citation omitted). See generally Fed.R.Civ.P. 60(a). That Walmart did not move the court to amend that judgment is entirely irrelevant.

         McPadden's core argument is that the issue of front pay with respect to her state law claims is, under New Hampshire law, one for the jury to resolve and not the court. See, e.g., Plaintiff's Motion for Partial Reconsideration at 3 (“McPadden is entitled to a jury on claims for front pay arising under New Hampshire law.”). Consequently, she argues, as to her state law claims, the jury's verdict on front pay was not advisory, but controlling, notwithstanding the court's repeated statements to counsel that it intended to submit the front pay issue on an advisory basis only.

         Although it is not entirely clear from McPadden's memorandum, her argument seems to conflate two separate and substantively distinct remedies: “lost future earnings” and “front pay.” “Front pay” is well understood in the employment discrimination context. A wrongfully-fired employee is generally entitled to equitable (injunctive) relief in the form of an order reinstating the employee to her prior job. Alternatively, if reinstatement is not feasible, the court may award front pay, as a substitute form of equitable relief (for example, where the employment relationship has deteriorated to the point of being unworkable). Front pay consists of an award of pay for a period of time sufficient to allow the wronged employee an opportunity to obtain similar employment elsewhere. “Front pay, ” as a substitute for injunctive relief, is no less an equitable remedy than an order of reinstatement. See, e.g., Kramer v. Logan Cty. Sch. Dist. No. R-1, 157 F.3d 620, 626 (8th Cir. 1998) (“[F]ront pay is not so much a monetary award for the salary that the employee would have received but for the discrimination, but rather the monetary equivalent of reinstatement, to be given in situations where reinstatement is impracticable or impossible.”) (emphasis supplied). And, because front pay is an equitable remedy, there is no doubt that it lies within the court's discretion - not a jury's - to determine whether such relief is warranted. See, e.g., Lussier v. Runyon, 50 F.3d 1103, 1108 (1st Cir. 1995) (“[F]ront pay, within the employment discrimination universe, is generally equitable in nature. It follows a fortiori from the equitable nature of the remedy that the decision to award or withhold front pay is, at the outset, within the equitable discretion of the trial court.”) (citations omitted). See also City of Manchester v. Anton, 106 N.H. 478, 479 (1965) (Kennison, C.J.) (“[F]or many years it has been well settled here that in equity there is no constitutional right to trial by jury.”) (quoting Dion v. Cheshire Mills, 92 N.H. 414, 416 (1943)). It follows, then, that under New Hampshire law front pay is an equitable remedy for the court, not a jury, to award.

         “Lost future earnings, ” on the other hand, is an entirely distinct remedy. While front pay is equitable in nature and is to be used “during the period between judgment and reinstatement or in lieu of reinstatement, ” Pollard v. E. I. du Pont de Nemours & Co., 532 U.S. 843, 846 (2001), “lost future earnings” are compensatory in nature, not equitable. Recovery of lost future earnings compensates an employee for the effects of an unlawful termination, effects which might include “a lifetime of diminished earnings resulting from the reputational harms . . . suffered as a result of [the employer's] discrimination.” Williams v. Pharmacia, Inc., 137 F.3d 944, 953 (7th Cir. 1998). See also Teutscher v. Woodson, 835 F.3d 936, 959 (9th Cir. 2016) (Smith, J. Concurring) (noting that “front pay is the functional equivalent of the equitable remedy of reinstatement. Future lost earnings, on the other hand, are compensatory damages calibrated to actual monetary losses after the date of judgment” and observing that while front pay “pays [the plaintiff] as if he had been reinstated, ” lost future earnings “encompass reputational harms, loss of experience, and other forward- looking aspects of the injury caused by the discriminatory conduct”) (citation omitted). So, unlike “front pay, ” “lost future earnings” are a component of compensatory damages, properly decided by a jury.

         McPadden confuses those two distinct remedies when, for example, she argues that with respect to her wrongful termination claim, “it is NH practice to have the jury calculate front pay awards.” Plaintiff's Motion for Partial Reconsideration, at 3 (citing Porter v. City of Manchester, 151 N.H. 30, 44 (2004)). That statement of the law is incorrect and her reliance upon Porter is misplaced. The Porter court began by holding that a wrongful termination claim is properly characterized under New Hampshire law as a tort. And, as noted, an award of lost future earnings is compensatory and, therefore, can be recovered in tort as an element of compensatory damages. Indeed, the employee in Porter sought, literally, “lost future earnings” (not “front pay”), as unmistakably recognized by the New Hampshire Supreme Court. The court captioned its relevant discussion as “Lost Future Earnings, ” and wrote:

Given that we have held that wrongful termination is a cause of action in tort, we conclude that Porter was entitled to submit his claim for lost future earnings to the jury. In a wrongful termination case, the recovery of lost future earnings will restore the employee as nearly as possible to the position the employee would have been in if the employee had not been wrongfully terminated. Accordingly, we ...

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