Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—D. Kan.: Verdict in officers’ failure-to-promote claim upheld, but only one entitled to damages, (Apr 24, 2025)

By Marjorie Johnson, J.D.

Awarding front pay and back pay to both women, as if each had a 100 percent chance of promotion to the one available position, would result in an unfair “windfall,” said the court.

A federal court denied a city’s bid to throw out a jury verdict in favor of two female officers who brought a Title VII claim alleging the city discriminated against them based on their gender when the police chief passed them over for a promotion in 2021 and selected a male officer instead. However, although the jury returned a provisional advisory verdict awarding both women equitable relief, the court found that such remedies extended beyond “the conditions and relationships that would have been had there been no unlawful discrimination,” and it determined that that the officer who received the best interview scores and was eventually granted the promotion in 2023 was more likely to have been promoted the first time but for the city’s unlawful discrimination. Therefore, she was entitled to back pay but not front pay (Stuart v. Topeka, Kansas, No. 2:23-cv-02021-TC (D. Kan. Apr. 22, 2025)).

Pretext not trial issue. The city first argued that it was entitled to judgment as a matter of law because the two women failed to establish pretext. However, this argument “misapprehends the procedural posture of the case,” according to the court, since the issue of pretext is examined at the summary judgment stage as part of the McDonnell Douglas framework. “At trial, the ‘ultimate question is whether the employer intentionally discriminated’ against the plaintiff.”

Intentional discrimination. Moreover, the plaintiffs introduced evidence sufficient for a jury to conclude that the city intentionally discriminated against them based on their gender. First, they undermined the police chief’s contention that he believed a male officer was the best candidate by presented evidence that a member of the interview panel described him as “unpromotable” due to his reputation of being “untrustworthy,” and the record also showed that he had performance issues. They also presented evidence that they were more qualified than him because, among other things, they served in more divisions within the department, had longer tenure, held the rank of captain for a longer time, and had more formal education.

Evidentiary challenges. Though the city also challenged the admission of certain evidence, none of that evidence was erroneously admitted since it was either relevant to the ultimate question of whether the city intentionally discriminated against the two women or because the city failed to properly object to the testimony it now challenged. In particular, the city pointed to the admission of evidence relating to events that occurred more than 300 days before the officers filed their EEOC complaint (Some were related to claims that were dismissed on summary judgment.). “But anecdotal evidence that supports a plaintiff’s discrimination claim need not be sufficient to establish an actionable claim of discrimination in order to be admissible,” explained the court, and such evidence “is frequently relevant and therefore admissible because it makes the plaintiff’s evidence of the decisionmaker’s intent more or less likely.”

“[M]e too” evidence? The court also rejected city’s contention that certain “me too” evidence was improperly admitted. Based on Tenth Circuit precedent, the court advised the parties that witnesses could testify about “me too” matters that related to the police chief’s intent to discriminate based on gender during the timeframe relevant to his failure to promote the two female officers. In particular, the city focused on one plaintiff’s testimony regarding other examples of differential treatment by the police chief. This evidence was admissible because it concerned the decisionmaker at issue at or around the same timeframe and involved many of the same issues, explained the court. Insofar as she also testified beyond this scope and about irrelevant topics, the city “cannot complain about the evidence to which it did not object nor complain about the testimony that was introduced based on its few objections.”

Objections to double damages. The city also objected to the jury’s advisory verdict on damages, which suggested that the female officer who was not later promoted be awarded both back pay and in front pay and that the promoted officer receive back pay but no front pay. The city argued that, since there was only one open position for which the two were considered, it was improper to award each of them equitable relief. The court noted that neither the Supreme Court nor the Tenth Circuit has addressed this issue in the context of a failure-to-promote case when there are more prevailing plaintiffs than available promotions. Therefore, the court considered “the foundational principles of equitable relief.”

Avoiding a “windfall.” If each plaintiff could recover the full amount that she would have earned had she been promoted, then their remedies would extend beyond “the conditions and relationships that would have been had there been no unlawful discrimination,” explained the court. In other words, according to this reasoning, awarding front pay and back pay to each of the two impacted plaintiffs as if each one had a 100 percent chance of promotion would make the city liable for more than the injury its unlawful discrimination caused, which would result in a “windfall” to the plaintiffs.

Promoted plaintiff entitled to back pay. “When it is possible to discern which plaintiff would have received a promotion but for an unlawful employment practice, that plaintiff should recover any applicable front pay or back pay, but the other plaintiffs should not be granted the same equitable relief,” concluded the court. Here, the evidence shed light on which female officer was more likely to have been promoted in 2021 but for the city’s unlawful discrimination, and it was the one who had been scored “promotable” by all three community member panelists and ultimately selected for promotion 15 months later. The other officer had been scored as “not ready for promotion” by two panelists and did not subsequently receive a promotion.

Not entitled to front pay. The jury returned an advisory verdict of $11,059.20 in back pay and no front pay to the meritorious officer, which the court found fairly and accurately reflected her lost wages over the period between when the city’s discriminatory failure to promote and her ultimate promotion 15 months later. However, she was not entitled to front pay since there was no evidence suggesting that there was a difference in her current salary or benefits and what she would be receiving had she been promoted 15 months sooner.

The case is No. 2:23-cv-02021-TC.

Judge: Crouse, T.

Attorneys: Jess Christie (Employee Rights Law Firm) for Colleen Stuart. Amanda S. Vogelsberg (Henson, Hutton, Mudrick, Gragson & Vogelsberg) for The City of Topeka.

Companies: The City of Topeka

Cases: SexDiscrimination Discrimination EvidenceDiscovery RemediesDamages PublicEmployees KansasNews