UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Maureen McPadden,
Plaintiff
v. Case No. 14-cv-475-SM
Opinion No. 2017 DNH 002
Wal-Mart Stores East, L.P.,
Defendant
O R D E R
Following a five-day trial, a jury found in favor of
Maureen McPadden and against her former employer, Walmart, on
four state and federal workplace discrimination claims: gender
discrimination in violation of both Title VII and New
Hampshire’s Law Against Discrimination; unlawful retaliation in
response to McPadden’s having reported perceived workplace
safety issues; and common law wrongful termination. The jury
awarded McPadden $31.2 million in compensatory, enhanced
compensatory, punitive, back pay, and front pay damages. While
the jury’s verdict on liability was supportable, its total award
of damages was, to say the least, startling. Walmart moved for
judgment as a matter of law on all claims or, in the
alternative, for a new trial. Should those motions be denied,
Walmart sought remittitur of the jury’s awards of front pay,
compensatory damages, punitive damages, and enhanced
compensatory damages.
The court denied Walmart’s motions for judgment as a matter
of law and for a new trial. See First Post-Trial Order, dated
September 16, 2016 (document no. 186). As for Walmart’s motion
seeking remittitur, the court held that although the jury’s
award of $500,000 in compensatory damages was “undeniably
generous,” it was not so grossly disproportionate to any injury
established by the evidence as to be unconscionable as a matter
of law. Id. at 9. Accordingly, the court allowed that aspect
of the jury’s award to stand. With respect to Walmart’s motion
to remit the jury’s award of $15 million in enhanced
compensatory damages, as well as the jury’s (statutorily-
reduced) award of $300,000 in punitive damages,1 the court
deferred any ruling pending certification of several questions
of controlling state law regarding enhanced compensatory damages
to the New Hampshire Supreme Court.
Finally, as to the jury’s award of more than one-half
million dollars in front pay, the court concluded that
1 Pursuant to 42 U.S.C. § 1981a(b)(3)(D), the court reduced
the jury’s award of punitive damages from $15 million to
$300,000.00.
2
“remittitur,” as such, was neither necessary nor appropriate.
At the charging conference (prior to instructing the jury), the
court informed the parties that the question of whether to award
front pay (and, if so, in what amount) was an equitable issue
reserved to the court. The court did, however, agree to give
the issue to the jury on an advisory basis. Consequently, after
the jury returned its verdict, there was no need to “remit” its
advisory award of front pay - that was, after all, an issue the
court had very clearly stated was one for it to resolve.2
So, the court considered the jury’s advisory verdict and
the evidence presented, as well as the jury’s exceedingly
2
McPadden says she believed the court was seeking an
advisory verdict on front pay only as to her Title VII claims.
And, to be sure, a review of the transcript does disclose that
during a final discussion of the instructions outside the
presence of the jury, the court mentioned, in passing, Title
VII, but not the other state liability theories for which front
pay was sought:
Court: . . . And with respect to a front pay award,
any front pay award under Title VII, I believe that’s
the province of the court to determine. And I’m
submitting it to the jury on an advisory basis and
I’ll consider their verdict in determining whether
front pay should be awarded and to what extent.
See Transcript (Day 5, Morning) (document no. 152), at 158.
Nevertheless, the court is satisfied that, based upon all prior
discussions regarding jury instructions to be given, all counsel
understood, or should have understood, that the court’s view was
that front pay is an equitable remedy for the court to decide,
and that plaintiff’s “front pay” claim as to all liability
theories was being given to the jury only on an advisory basis.
3
generous award of compensatory damages, and concluded that “an
award of front pay in the amount of $111,591.00 is near the
outer boundary of reasonableness in this case.” First Post-
Trial Order, at 14. That sum represented three years of front
pay, which the court concluded was “more than adequate time for
a person of McPadden’s age, skill, and training to obtain a
pharmacist position at a salary and with benefits comparable to
those she received at Walmart.” Id.3
McPadden now moves the court to reconsider the latter
aspect of its order, asserting that the court made two manifest
errors of law. First, she says the question of whether to award
front pay (and, if so, how much) on her state law claims was a
jury question, protected by both New Hampshire law and the
Seventh Amendment to the United States Constitution.
Accordingly, says McPadden, the court erred by deciding the
front pay issue with regard to her state claims. Instead, she
says, the court should have accepted the verdict on “front pay”
as binding (and, if appropriate, applied remittitur standards to
effect any reduction). Second, McPadden asserts that Walmart
3 Parenthetically, the court notes that neither party
suggested that reinstatement of McPadden to her former (or a
comparable) job was a realistic option and both parties treated
the prospect as unworkable. Accordingly, the court followed
suit.
4
waived its right to “challenge the jury trial by way of advisory
jury proceedings when it failed to file a timely motion pursuant
to Fed. R. Civ. P. 52(b)” to amend the judgment. Plaintiff’s
Motion for Partial Reconsideration (document no. 190) at 1.
Turning first to McPadden’s “waiver” theory, her argument
seems to go something like this: Following the jury’s verdict,
the clerk of court entered judgment (document no. 140) on that
verdict “in the total amount of $16,522,485.87,” which included
“Front Pay: $558,392.87.” The judgment as entered on the docket
failed to note that the jury’s verdict on front pay was merely
advisory. McPadden seems to argue that absent such
clarification, the judgment must be taken as binding with
respect to the front pay award. And, she says, because Walmart
neglected to file a timely motion under Rule 52(b) to amend the
perhaps-misleading judgment, Walmart waived any “right” to an
advisory verdict on front pay. The point seems to be that the
form of judgment as entered, coupled with Walmart’s failure to
seek an amendment, converted the advisory verdict into an actual
verdict.
The court disagrees. To the extent the judgment neglected
to note that the jury’s verdict on front pay was advisory only,
it “failed to reflect the court’s intention” and will be amended
5
accordingly. Companion Health Servs. v. Kurtz, 675 F.3d 75, 87
(1st Cir. 2012) (citation omitted). See generally Fed. R. Civ.
P. 60(a). That Walmart did not move the court to amend that
judgment is entirely irrelevant.
McPadden’s core argument is that the issue of front pay
with respect to her state law claims is, under New Hampshire
law, one for the jury to resolve and not the court. See, e.g.,
Plaintiff’s Motion for Partial Reconsideration at 3 (“McPadden
is entitled to a jury on claims for front pay arising under New
Hampshire law.”). Consequently, she argues, as to her state law
claims, the jury’s verdict on front pay was not advisory, but
controlling, notwithstanding the court’s repeated statements to
counsel that it intended to submit the front pay issue on an
advisory basis only.
Although it is not entirely clear from McPadden’s
memorandum, her argument seems to conflate two separate and
substantively distinct remedies: “lost future earnings” and
“front pay.” “Front pay” is well understood in the employment
discrimination context. A wrongfully-fired employee is
generally entitled to equitable (injunctive) relief in the form
of an order reinstating the employee to her prior job.
Alternatively, if reinstatement is not feasible, the court may
6
award front pay, as a substitute form of equitable relief (for
example, where the employment relationship has deteriorated to
the point of being unworkable). Front pay consists of an award
of pay for a period of time sufficient to allow the wronged
employee an opportunity to obtain similar employment elsewhere.
“Front pay,” as a substitute for injunctive relief, is no less
an equitable remedy than an order of reinstatement. See, e.g.,
Kramer v. Logan Cty. Sch. Dist. No. R-1, 157 F.3d 620, 626 (8th
Cir. 1998) (“[F]ront pay is not so much a monetary award for the
salary that the employee would have received but for the
discrimination, but rather the monetary equivalent of
reinstatement, to be given in situations where reinstatement is
impracticable or impossible.”) (emphasis supplied). And,
because front pay is an equitable remedy, there is no doubt that
it lies within the court’s discretion - not a jury’s - to
determine whether such relief is warranted. See, e.g., Lussier
v. Runyon,
50 F.3d 1103, 1108 (1st Cir. 1995) (“[F]ront pay,
within the employment discrimination universe, is generally
equitable in nature. It follows a fortiori from the equitable
nature of the remedy that the decision to award or withhold
front pay is, at the outset, within the equitable discretion of
the trial court.”) (citations omitted). See also City of
Manchester v. Anton,
106 N.H. 478, 479 (1965) (Kennison, C.J.)
(“[F]or many years it has been well settled here that in equity
7
there is no constitutional right to trial by jury.”) (quoting
Dion v. Cheshire Mills, 92 N.H. 414, 416 (1943)). It follows,
then, that under New Hampshire law front pay is an equitable
remedy for the court, not a jury, to award.
“Lost future earnings,” on the other hand, is an entirely
distinct remedy. While front pay is equitable in nature and is
to be used “during the period between judgment and reinstatement
or in lieu of reinstatement,” Pollard v. E. I. du Pont de
Nemours & Co., 532 U.S. 843, 846 (2001), “lost future earnings”
are compensatory in nature, not equitable. Recovery of lost
future earnings compensates an employee for the effects of an
unlawful termination, effects which might include “a lifetime of
diminished earnings resulting from the reputational harms . . .
suffered as a result of [the employer’s] discrimination.”
Williams v. Pharmacia, Inc.,
137 F.3d 944, 953 (7th Cir. 1998).
See also Teutscher v. Woodson,
835 F.3d 936, 959 (9th Cir. 2016)
(Smith, J. Concurring) (noting that “front pay is the functional
equivalent of the equitable remedy of reinstatement. Future
lost earnings, on the other hand, are compensatory damages
calibrated to actual monetary losses after the date of judgment”
and observing that while front pay “pays [the plaintiff] as if
he had been reinstated,” lost future earnings “encompass
reputational harms, loss of experience, and other forward-
8
looking aspects of the injury caused by the discriminatory
conduct”) (citation omitted). So, unlike “front pay,” “lost
future earnings” are a component of compensatory damages,
properly decided by a jury.
McPadden confuses those two distinct remedies when, for
example, she argues that with respect to her wrongful
termination claim, “it is NH practice to have the jury calculate
front pay awards.” Plaintiff’s Motion for Partial
Reconsideration, at 3 (citing Porter v. City of Manchester, 151
N.H. 30, 44 (2004)). That statement of the law is incorrect and
her reliance upon Porter is misplaced. The Porter court began
by holding that a wrongful termination claim is properly
characterized under New Hampshire law as a tort. And, as noted,
an award of lost future earnings is compensatory and, therefore,
can be recovered in tort as an element of compensatory damages.
Indeed, the employee in Porter sought, literally, “lost future
earnings” (not “front pay”), as unmistakably recognized by the
New Hampshire Supreme Court. The court captioned its relevant
discussion as “Lost Future Earnings,” and wrote:
Given that we have held that wrongful termination
is a cause of action in tort, we conclude that Porter
was entitled to submit his claim for lost future
earnings to the jury. In a wrongful termination case,
the recovery of lost future earnings will restore the
employee as nearly as possible to the position the
9
employee would have been in if the employee had not
been wrongfully terminated. Accordingly, we reject
the city’s argument that an at-will employee is barred
from recovering lost future earnings.
Porter, 151 N.H. at 44-45 (emphasis supplied) (citation
omitted). Porter did not involve, and the New Hampshire Supreme
Court did not consider, any issues related to “front pay.”
Consequently, the Porter decision is not inconsistent with the
general rule, followed in New Hampshire, that equitable remedies
(like reinstatement or, alternatively, an award of front pay)
are for the court, not a jury. See generally Anton,
106 N.H. at
479.
In short, then, McPadden’s argument that she had a right
under state law and/or the United States Constitution to have
the jury determine the issue of “front pay” is incorrect.
Moreover, it is inconsistent with both the jury instructions
McPadden requested (document no. 104) and the special verdict
form she proposed (document no. 105).
On the special verdict form (both as proposed by plaintiff
and as actually given by the court), the jury was instructed
that if it found in McPadden’s favor as to any one or more of
her state and/or federal claims, it was to break out, as
separate awards, “Front Pay” and “Compensatory Damages.” That
10
is consistent with the recognition that they are distinct
remedies (the former having been presented to the jury on an
advisory basis). “Lost future earnings,” however, are merely
one component of compensatory damages. Hence, there was never
any need to ask the jury to make a separate award of them. Had
McPadden argued to the jury that she was entitled to lost future
earnings, any such award would have been included in the jury’s
award of “compensatory damages.”
As to the jury instructions, plaintiff’s counsel limited
her requests, as well as her argument to the jury on damages, to
“front pay.” She also made it clear that she understands that
“front pay” damages are distinct from, and not a component of,
“compensatory damages.” See, e.g., Plaintiff’s Proposed Jury
Instructions, at 32 (“[Y]ou may award compensatory damages, in
addition to . . . front pay and benefits.”) (emphasis supplied).
Plaintiff’s counsel did not request an instruction regarding
“lost future earnings” as an element of compensatory damages,
and she did not argue to the jury that she was entitled to lost
future earnings. Instead, she sought only the equitable remedy
of “front pay.”
Now, after the fact, counsel seems to suggest that, for
equitable purposes (she concedes that front pay under Title VII
11
is equitable in nature), the advisory verdict is just that,
advisory. But with respect to her state law “front pay” claims,
the verdict should be construed as a controlling award of lost
future earnings or compensatory damages, albeit subject to
remittitur. That is to say, she seems to be arguing, at least
implicitly, that the same front pay verdict should be taken as
both advisory (equitable) as to her federal claim, and binding
(compensatory) as to her state claims.
Plaintiff’s argument is without merit. The jury’s front
pay verdict was advisory because front pay is an equitable
remedy, regardless of the legal cause of action; because
plaintiff sought only “front pay,” and not “lost future
earnings”; and because the court gave the front pay claim to the
jury exclusively on an advisory basis.
At this point, it probably bears noting that there was
nothing unusual about giving the issue of front pay to the jury
(on an advisory basis) with respect to all of McPadden’s
eligible claims. Front pay is plainly a remedy available in
lieu of an injunctive order of reinstatement in state gender
discrimination cases. See N.H. Rev. Stat. Ann. (“RSA”) 354-
A:21, II(d) and 21-a, I (The Commission for Human Rights may
issue an order of reinstatement and a court may award all relief
12
that could have been awarded by the Commission.). So, in that
regard, front pay (in lieu of reinstatement) is an available
equitable remedy. Similarly, with respect to McPadden’s state
whistleblower claim, it is clear that front pay is available as
an equitable remedy in lieu of an injunctive order of
reinstatement. See RSA 275-E:2, II (“An aggrieved employee may
bring a civil suit within 3 years of the alleged violation of
this section. The court may order reinstatement and back pay as
well as reasonable attorney fees and costs, to the prevailing
party.”). Finally, as to McPadden’s common law wrongful
discharge tort claim, neither party questions whether “front
pay” is available as an additional remedy. And there is no
reason to think that it is not. See generally Walsh v. Town of
Millinocket, 28 A.3d 610 (Me. 2011); Stafford v. Electronic Data
Systems Corp.,
749 F. Supp. 781 (E.D. Mich. 1990). In any
event, McPadden certainly proceeded on the assumption that front
pay is available to a plaintiff claiming to have been wrongfully
discharged.
All of this is to say that “front pay” — an alternative
equitable remedy in lieu of an order of reinstatement — was an
available remedy under each of plaintiff’s federal and state
theories of recovery. It was, then, entirely appropriate for
the court to give that equitable issue to the jury (on an
13
advisory basis) with respect to all of McPadden’s theories of
liability.
As a practical matter, however, all of this is of little
moment. Even if McPadden were to prevail on her argument that
the jury’s advisory front pay verdict could be recast as
equitable to the extent it relates to relief in lieu of
reinstatement, but compensatory to the extent it relates to an
implied claim of “lost future earnings,” it is doubtful that she
would obtain any real benefit. First, even if treated as an
award of “lost future earnings,” that aspect of the verdict
would be included in the jury’s already very generous award of
compensatory damages (bringing the total award of compensatory
damages to more than $1 million). That, in turn, would have
subjected that compensatory damages award to renewed remittitur
scrutiny. And a very substantial remittitur would be in order,
given the general lack of evidence in the record supporting any
claim of lost future earnings (e.g., long-lasting professional
reputational injury arising from the circumstances of
plaintiff’s discharge). See generally Williams, 137 F.3d at
953. See also Hite v. Vermeer Mfg. Co.,
361 F. Supp. 2d 935,
947 (S.D. Iowa 2005) (declining to award any lost future
earnings because “Plaintiff has not provided competent evidence
suggesting that her injuries have narrowed the range of economic
14
opportunities available to her, nor has she shown that
[defendant’s] retaliation for FMLA usage has caused a diminution
in her ability to earn a living . . . [and] offered nothing to
support the assertion that her unlawful discharge taints her
employment record”) (citations and internal punctuation
omitted).
Second, if the jury’s verdict included “lost future
earnings” on McPadden’s state law claims, that would
meaningfully influence the court’s assessment of whether any
equitable award of front pay would be justified. As noted
previously, when a compensatory award is adequate to redress
plaintiff’s injury, the court may exercise its discretion to
decline to award equitable relief in the form of front pay. See
First Post-Trial Order, at 14; see also, Carey v. Mt. Desert
Island Hosp., 156 F.3d 31, 41 (1st Cir. 1998). In other words,
any additional recovery of “lost future earnings” likely would
have been offset by remittitur, the complete elimination of
“front pay” damages, or both.
Conclusion
McPadden is incorrect in asserting that she had a state law
and/or constitutionally protected right to have the jury
determine entitlement to “front pay” on her state law claims.
15
Front pay is an equitable form of relief. New Hampshire follows
the commonly understood principle that there is no right to a
jury trial in equity. Consequently, the issue of front pay (on
all of McPadden’s claims) was for the court, not the jury. And,
neither counsel’s perceptions or expectations, nor the form of
the judgment entered on the verdict, can serve to convert an
advisory verdict into a binding one. Nor can a persistent claim
for “front pay” be converted into a claim for “lost future
earnings” well after the trial is completed.
As noted in the court’s First Post-Trial Order, the jury’s
award of front pay with respect to all claims was advisory.
While a reasonable award of front pay is supportable in this
case, the jury’s advisory award of $558,392.87 was plainly
excessive under the circumstances. And, as noted previously,
the court awarded McPadden front pay at what it considers “the
outer boundary of reasonableness in this case.” Id. at 14.
McPadden’s Motion for Partial Reconsideration (document no.
190) is denied.4
4
Plaintiff moves the court to certify a question to the New
Hampshire Supreme Court aimed at determining whether “front pay”
is an issue for the jury under state law. As it is clear that
front pay is not a jury question, the requested certification is
unnecessary and would pose an unwarranted burden on that Court.
The request is denied.
16
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
January 5, 2017
cc: Richard E. Fradette, Esq.
Robert S. Mantell, Esq.
Holly A. Stevens, Esq.
Lauren S. Irwin, Esq.
Joseph A. Lazazzero, Esq.
Christopher B. Kaczmarek, Esq.
17
