By Deryn Sumner, June 14, 2017

Although not addressed very often in decisions awarding remedies, front pay is an available remedy in federal sector EEO complaints.  As Management Directive 110, Chapter 11 tells us, it is only appropriate in very limited circumstances: (1) when there’s no position available to which an employee can be reinstated; (2) where a subsequent working relationship would be antagonistic; or (3) where the employer has a long-term resistance to anti-discrimination efforts.  In order to receive a front pay award, the complainant must be able to perform work, but cannot do so because of circumstances external to the complainant.

For example, in a case that did not address the award of front pay, but rather a procedural issue, the Commission noted an administrative judge’s finding in Mason H. v. Veterans Affairs, EEOC Appeal No. 0120170667 (April 13, 2017), that the agency had poisoned the employment relationship with the complainant so much “that a reasonable physician in his situation would seriously consider suicide.” The decision does not go into such detail about the underlying allegations, but it appears the agency accused the complainant of using illegal drugs when he had not, and accused him of patient endangerment, both serious accusations for anyone, but particularly a physician.  [Editor’s Note: In my humble opinion, a federal agency should not be holding that “reasonable” people in this situation, physician or otherwise, “would seriously consider suicide.” I was a psychologist before I was an employment lawyer. The definition of “reasonable” does not include serious suicide consideration.]

Being able to return to the workplace is a key part of being eligible for an award of front pay, as the complainant in Nicole T. v. Department of Defense, EEOC Appeal No. 0120143019 (January 11, 2017) learned.  Although the administrative judge found that the agency failed to accommodate the complainant and sent her home from work, undisputed medical evidence established that within three weeks of being sent home from work, the complainant was unable to work and had not presented evidence that she could return to the workplace.  The complainant had subsequently filed for disability retirement.  As the complainant could not demonstrate an ability to work, besides compensatory damages, the Commission only awarded her the back pay for those three weeks and no front pay.

If you are dealing with a claim for front pay in one of your cases, you must read the Commission’s 2011 decision in Knott v. USPS, EEOC Appeal No. 0720100049 (July 5, 2011).  There, the Commission addressed an administrative judge’s award of front pay “from the issuance of his decision to the time Complainant either finds comparable work or reaches full retirement age.”  The decision includes substantial discussion of the record that led to this award and is required reading for anyone facing this issue.  Sumner@FELTG.com

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