Employment Law Daily Fired disabled employee with criminal record gets five years of front pay
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Friday, April 20, 2018

Fired disabled employee with criminal record gets five years of front pay

By Lisa Milam-Perez, J.D.

An employee who prevailed in a disability discrimination, failure to accommodate, and retaliation lawsuit against a chicken processing company was entitled to front pay damages of nearly $111k, a federal court in Texas held, finding the equitable relief was proper following a jury verdict in the employee’s favor on his state-law claims. The court deemed five years of front pay justifiable in this case, noting, for one, that his criminal record complicated his job search. In this case, despite applying for more than 90 jobs since he was fired from the chicken processing plant, the plaintiff could only land a position paying a quarter of what he earned with the defendant, with no benefits (Willich v. Sanderson Farms, Inc. (Processing Division), April 17, 2018, Pittman, R.).

Jury trial win. The plaintiff fractured his ankle while on the job as a custodian at the chicken processing plant. According to a statement on his attorneys’ website announcing the verdict, the evidence at trial established that he was disabled as a result of the fracture and that the employer refused to accommodate the work restrictions issued by his physician. The evidence also showed that the employer fired him because he asked to work his shift after reporting to the company nurse that he had taken his prescription pain medication; he complained that the employer was violating his work restrictions; he complained about being disciplined for an absence; and he requested short-term disability leave if the employer was not going to accommodate his work restrictions.

The jury returned a unanimous verdict in his favor of on all of his Texas Labor Code claims, including his request for exemplary damages. The jury awarded him damages for lost wages and benefits to the date of trial, past and future compensatory damages, and punitive damages. The prevailing plaintiff then asked the court to award him front pay (for future lost wages and benefits).

Front pay. The parties agreed that reinstatement was not feasible, and an HR manager testified at trial that the company would not rehire the plaintiff. The employer conceded that front-pay relief was appropriate, but it objected to the plaintiff’s request for $131,028, arguing that an amount just under $65,000 was adequate relief. Pointing out the “wide latitude” that courts are afforded in determining front pay relief, and taking into account the relevant factors, the court found $110,901 was proper.

The 49-year-old plaintiff testified that his criminal record made it hard for him to find work, and that he had applied for a job with the defendant because they would hire him despite his record. The court was convinced the plaintiff would have preferred to continue working for the defendant and would have done so were he not fired. His custodian job paid between $9.25 and $14.80 per hour—the highest-paying job he ever held. Although the annual turnover rate at the plant was more than 50 percent, he worked the graveyard shift for 30 months before he was fired. Also, there was no evidence he would have been terminated by reason of layoffs or plant relocation.

After his discharge, he looked for work at a Cargill poultry processing plant and was given a conditional job offer. But Cargill withdrew the offer after reviewing his medical records. While the employer argued his Cargill job offer undermined the plaintiff’s claim that he wouldn’t likely obtain comparable employment, the court saw the fact that the offer was withdrawn as evidence of the plaintiff’s likely difficulty finding work. Indeed, he had applied to almost 90 jobs before finally finding work as a pizza delivery driver, which paid about $7,820 per year and did not offer benefits. In contrast, at the time of his discharge from Sanderson Farms, he was earning $31,140 per year in wages and benefits.

Five years of wages. Despite that courts typically limit front-pay relief to one or two years, a front-pay award for five years of lost wages was appropriate here, and the Fifth Circuit has upheld five-year front-pay periods, the court noted. The employer argued any more than two years was too speculative—given the turnover rate at the plant, it was unlikely he would have been on the job for another five years. But the court concluded the plaintiff was less likely than the average Sanderson Farms employee to quit his job had he not been injured and fired, noting that he “kept an unglamorous job for 30 months in a place where the majority of employees leave every year.” Also, he credibly testified that he was glad to have the job, in part because it paid relatively well. In light of his testimony, criminal and work history, and subsequent difficulty finding comparable employment, he plaintiff reasonably “coveted the job for its salary and benefits,” and the fact that his extensive job search only yielded a position paying a quarter of what he had earned there “also suggests that comparable employment will not be easy to come by.”

Computing lost future earnings. The court rejected the plaintiff’s assertion he would have received annual raises of 10 percent, though. Although the plaintiff had pointed out that he received an average annual pay increase of 20 percent during his tenure at the company, the court found it unreasonable to assume that pay increases would continue at that pace. More than half of his pay hike came in his first 90 days (pursuant to an increase following the company’s standard “introductory pay scale.” And his only pay raise after that was a department-wide increase. Rather, the more accurate predictor was the 2.25 percent raises that comparable workers at the company had received in the two years since his discharge. The court calculated his front pay accordingly, assuming a one percent annual increase, then adjusting his projected earnings by the wages he would earn annually in his current job to determine a net annual award, and then discounted to present value.

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