Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—E.D. Wash.: Department of Interior denied new trial on issue of front pay award, (Jan 9, 2025)

By Todd Harrison, J.D.

The government attempted to argue that the employee would find reemployment with the government within six months and that any award should be limited to that timeframe.

Denying the Department of Interior’s motion for a new trial solely on the issue of damages, specifically an award of front pay to a former employee through retirement, a federal district court in Washington determined that the government’s desire to have another opportunity to present a stronger defense against the award after the court had made detailed findings on remand was not a basis for a new trial. “It is well settled that motions for new trial cannot be used to present the case under a new theory or strategy, not urged at the first trial,” concluded the court (O’Kell v. Haaland, No. 2:18-cv-00279-SAB (E.D. Wash. Jan. 7, 2025)).

A bench trial was initially held in this matter and the court entered an amended judgment in favor of the employee who brought this case. On appeal, the Ninth Circuit vacated the portion of the court’s judgment awarding back pay and front pay damages and remanded for reconsideration and recalculation of the awards.

Motion for a new trial. Prior to the court’s entry of an amended judgment on remand, the government filed the instant motion asking the court to order a partial new trial solely on the issue of damages. According to the government, the employee would likely be reemployed with the federal government within six months with a clean personnel record, and thus the duration of any award of front pay should be limited to this period of time.

Unreasonably speculative. On remand, the court concluded that the government’s position was unsupported by the record and was unreasonably speculative, ultimately awarding the employee front pay through retirement.

Willingness to relocate. As part of its findings, the court considered the employee’s willingness to relocate. In 2019, the employee was willing to relocate to West Virginia. However, she later testified that by 2021 she came to the realization that she could not accept a job in southern California due to the cost of relocation, her need for access to medical care and the length of her commute.

No testimony was proffered as to whether the employee would then or sometime in the future consider relocation. No testimony was proffered regarding the realities of this particular job market or whether relocation was common in the employee’s line of work. As such, the court concluded that there was an insufficient basis to reasonably infer that the employee was reasonably likely to relocate anywhere in the country in the future.

Reemployment efforts. In addition, the court considered the period within which one by reasonable efforts may be reemployed. Here, the employee diligently searched for comparable employment, applying to at least 100 positions, and had failed to secure any comparable job offers over a 43-month period. The court determined that this difficulty was likely compounded by her having to seek employment without the benefit of affirmative references from her former supervisors.

No testimony was proffered by the government as to the current job market, employment trends in the employee’s area of work, the present or future availability of comparable work, or the current or future availability of work for which the employee would qualify. The court found that the employee’s “extremely diligent, yet unsuccessful, mitigation efforts” suggested that her future opportunity for work was virtually non-existent, and that there was a lack of evidence suggesting otherwise.

Common understanding? Here, the government argued for the opportunity relitigate the issue of front pay so that it could present additional evidence. Specifically, it sought to introduce documentary evidence that it had prior to trial and to conduct additional cross-examination of the employee’s witnesses on the issue of whether the employee was willing to relocate to obtain federal work in the future.

Instead of presenting such evidence at trial, the government claimed that it had tried the case on what it thought was a “common understanding” amongst the parties that the employee was “ready, willing and able to relocate”—in the past, present and future.

According to the government, it had made this assumption of fact because: (1) “[g]oing into trial, Plaintiff never once suggested that she was not willing to relocate”; (2) the parties were aware that federal work existed outside of Grant County; (3) the employee had requested a “clean SF-50”; and (4) one alternative computation of front pay proffered by an expert on behalf of the employee included $32,181 in relocation expenses. As such, the government argued it was entitled to a new trial because the front pay award was “tainted by legal error” and a miscarriage of justice had occurred.

Brown. The Ninth Circuit, in Brown v. Wright, 588 F.2d 708 (9th Cir. 1978), recognized three grounds for granting a new trial after a bench trial: “(1) manifest error of law; (2) manifest error of fact; and (3) newly discovered evidence.” Further, the appellate court stated that a party’s “desire to introduce additional evidence after losing the case [does] not constitute a proper ground for granting a new trial.”

Here, the government did not contend that there had been a manifest error of fact or that it had newly discovered evidence, nor did it even cite the applicable standard for a new trial under Brown. Instead, it claimed an error of law and a miscarriage of justice. The court found that both assertions lacked merit.

Manifest error of law. First addressing the government’s argument that the court committed a manifest error of law, the court determined that the government failed to demonstrate anything approaching a manifest error of law, but that it had instead requested that the court “reassess its detailed findings, hoping for a different outcome on a third pass based on a similar argument the Court previously considered in the post-remand briefing.”

Burden of proof. The government alleged that the court may have misplaced the burden of proof on front pay and contended that the court’s amended findings did not address its post-remand argument that “Plaintiff bore the burden of proof on all issues relating to front pay, including the question of how long it would take her to find comparable employment after trial.”

In fact, the court’s amended findings had explicitly set forth the proper burden of proof, stating: “A plaintiff seeking front pay has the same burden to submit evidence from which the Court can make [] reasonable projections to calculate damages just as a plaintiff seeking back pay.” Thus, the court explained that it did not “misunderstand, ignore, or misplace the burden of proof.”

Evidence. As to the government’s claim that the court’s determination of front pay “turns on the absence of evidence presented at trial,” the court reiterated that the employee had presented uncontested evidence at trial relevant to her likelihood of reemployment and the availability of comparable work.

Over the course of three days, the government cross-examined the employee for approximately seven hours without questioning her regarding the likelihood of reemployment or any other aspect of any of her claims for damages, observed the court. Instead, the government claimed that evidence of the employee’s tentative offer and acceptance of comparable work in Virginia, made soon after her termination, demonstrated that she was likely to obtain comparable alternative employment within six months of trial. The court rejected this determination and based its front pay award “on uncontested evidence, not an absence of evidence.”

Future employment. In addition, the government contended that because the employee had failed to prove that “no comparable federal jobs will be available to her in the future,” the court should revise its findings and deny front pay entirely. The court was not persuaded, finding that the government was attempting to set a higher evidentiary burden than was required, and that front pay awards are by their nature forward-looking and based on some degree of speculation. Accordingly, the court determined that the government had failed to demonstrate that any error of law had occurred, manifest or otherwise.

Miscarriage of justice. Turning to the government’s argument that it had suffered a miscarriage of justice, the court explained that the government’s reliance upon an alleged miscarriage of justice improperly attempted to borrow the standard for jury trials and to apply it here to a bench trial, reiterating that the government had not demonstrated entitlement to a new trial on the grounds outlined in Brown.

Unfair surprise? The employee’s claim for front pay through retirement and all relevant factors associated with such a determination were at issue at all times in this case, said the court, noting that the government could not now claim unfair surprise that the employee’s reasonable prospects for securing future employment were in dispute at trial.

Assumption at trial. According to the government, it had tried its case based on its assumption that the facts had remained unchanged since shortly after the employee’s termination in 2018. However, it failed to furnish any stipulated findings of fact in this regard at trial. Further, the government’s proposed findings of fact did not contain any proposed facts related to damages.

No-liability basket. Based on the record, the government made a “strategic decision to put nearly all its eggs in the no-liability basket,” said the court. The record further contradicted the government’s claims that it chose not to present more evidence relating to damages because “there was no reason to,” or due to a “bait and switch” or “blatant gamesmanship.” Instead, the government gambled that the court would decide in its favor on liability and never reach the issue of damages.

No request to reopen. On remand, continued the court, the government had the opportunity to request a reopening of the record on damages after it admitted it was on notice that the employee was contesting its claim that the evidence showed the employee “would have no trouble finding comparable federal employment in the near future.” Instead, both parties agreed to proceed on a closed record.

The government cannot now claim that an injustice occurred because it regrets it decision not to request to reopen the record to further cross-examine the employee’s witnesses and to present evidence that it had in its possession, concluded the court, denying the motion for a new trial.

The case is No. 2:18-cv-00279-SAB.

Judge: Bastian, S.

Attorneys: Matthew Z. Crotty (Riverside NW Law Group) for Kelly O'Kell. John T. Drake, U.S. Attorney's Office, for Deb Haaland.

Cases: RemediesDamages EvidenceDiscovery Procedure PublicEmployees WashingtonNews