By Samantha Sherman, Esq.
The Appellate Division recently clarified the burdens of proof associated with front pay mitigation in employment discrimination cases and referred to the Model Civil Jury Charge Committee a request to develop a charge on front pay, including instructions addressing mitigation and reasonable duration. See Quinlan v. Curtiss-Wright Corp., 41 A.3d 739, 2012 N.J. Super. LEXIS 49, at *48 (App. Div. 2012).
Quinlan v. Curtiss-Wright Corp. concerns a plaintiff who sued her former employer for gender discrimination and retaliation pursuant to New Jersey’s Law Against Discrimination, N.J.S.A. §§ 10:5-1 to 10:5-42, after the promotion of a male employee, which made him plaintiff’s supervisor despite his having less experience, and her subsequent termination. Id. at *3-*5. Following the Supreme Court’s resolution of certain discrete issues, the case was remanded to the intermediate appellate court to examine various open issues that were not previously resolved on appeal. Id. at *9.
The court concluded that the trial court’s jury instructions on front pay made two errors. First, the instructions erroneously imposed a burden on the defendant to prove that the plaintiff would not mitigate her damages in the future following the 2007 trial. Id. at *35. Although the appellate court agreed with plaintiff that an employer must identify positions that the employee should have diligently pursued as part of discharging its burden to prove the former employee’s failure to mitigate her damages leading up to the time of trial, it stated that “[i]t is unfair to compel the employer to forecast what lucrative jobs will, in fact, be obtainable in the future market and to further demonstrate to the jury that plaintiff will not pursue them.” Id. at *39-*41.
Second, the instructions failed to explicitly state that “a plaintiff has not met her initial burden of proving her lost income unless she presents evidence to prove what she would have earned had she not suffered the wrong committed by the defendant, how long she would have continued to receive those earnings, and a reasonable likelihood that she will not be able to earn that amount in the future, such as through alternative employment.” Id. at *43. Accordingly the plaintiff must prove that “her compensable injuries are permanent or otherwise will endure into the future for a reasonably likely time.” Id. at *44-*45.
The court noted that the absence of a model jury charge on front pay burdens of proof and the dearth of New Jersey case law squarely addressing the issue were largely to blame, id. at *46-*47, and referred a request for such a charge to the Model Civil Jury Charge Committee. Id. at *48-*49.
As a result of its findings, the court vacated the front pay award and ordered a new trial on that issue with updated proofs on plaintiff’s post-2007 efforts to mitigate her damages and with proper jury instructions. Id. at *56. The court also vacated the award of punitive damages as the amount is inextricably intertwined with the front pay issue and remanded it for retrial. Id. at *62. In addition, the court noted that the awards of prejudgment interest, counsel fees, and the precise amount of negative tax consequences must abide the new trial. Id. All other aspects of the final judgment were affirmed with the understanding that the “front pay” period from the February 2007 verdict through the date of its April 5, 2012 opinion will now be included within the “back pay” period when the case is retried. Id. at *62-*63, n.15.