Offer of Reinstatement Means Plaintiff Suffered No Damages
May 1, 2000
Marilyn J. Holifield- Miami
If facts suggest that discrimination has occurred, an employer may be able to
preclude an award of front pay, back pay and attorneys’ fees by restoring the
employee’s status or its equivalent before a lawsuit is brought. The Eleventh
Circuit Court of Appeals (Florida, Georgia and Alabama) recently ruled that the
failure of an employee to prove injury precluded an award of front pay, back pay
and attorneys’ fees even though the employee had proved discrimination.
In Nance v. Maxwell Federal Credit Union, (11th Cir. 1999), an age
discrimination case, the Credit Union offered Nance, a Branch Manager, demotion
or discharge due to her poor performance. Nance, rejected both options and
instead took a leave of absence with full compensation.
While Nance was still on leave and receiving full compensation, the Credit
Union withdrew its prior options of demotion or discharge and requested that
Nance return as Branch Manager. The Credit Union repeated this offer to Nance
for several months. Nance never responded. After approximately three months, she
was classified as being on unpaid leave of absence. The Credit Union hired
another person to fill Nance’s position as Branch Manager and informed Nance
that if she ever wished to return, the Credit Union would place her in a
position comparable to Branch Manager.
Rather than accepting the Credit Union’s offer to return to work in a
comparable Branch Manager position, Nance filed suit against the Credit Union,
alleging, among other things, discrimination in violation of the Age
Discrimination in Employment Act. Nance sought back pay from the time she left
work until the day of trial, front pay from the date of trial until retirement
at age 70 and attorneys’ fees. The jury found that the Credit Union
discriminated against Nance, and the trial court awarded Nance back pay, front
pay and attorneys’ fees.
The Credit Union appealed the decision, arguing that Nance had not suffered
any adverse employment action and Nance was unable to show injury. The Eleventh
Circuit concluded that the Credit Union took adverse action against Nance on the
basis of her age when it made the decision to demote or discharge her. The
Credit Union’s later decision to withdraw the decision to demote or discharge
did not cure the age discrimination violation.
On the other hand, the court concluded that Nance did not suffer any injury
because the Credit Union’s decision to demote or discharge was never
implemented, and the Credit Union’s actions did not equate to a constructive
discharge. The court concluded that Nance’s loss of compensation was due to
her own choices because Nance was receiving her full compensation when the
Credit Union withdrew its decision to demote or discharge her. Because Nance
could not show that she suffered an injury, the Eleventh Circuit concluded that
she was not entitled to back pay, front pay or attorneys’ fees. Although she
proved that the Credit Union discriminated against her on the basis of her age,
she did not prove an injury that entitled her to damages - back pay or front
pay. A "prevailing party" may be awarded attorneys’ fees where the
employee has obtained an enforceable judgment against the employer. Nance was
not entitled to attorney’s fees, since there were no damages and there was
nothing in the judgment that could be enforced.
For more information please contact Marilyn J. Holifield at 1-888-688-8500 or
at mholifie@hklaw.com.
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