HENRY LEWIS v. CITY OF ALEXANDRIA
Record No. 131308
SUPREME COURT OF VIRGINIA
APRIL 17, 2014
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA, James C. Clark, Judge
PRESENT: All the Justices
Henry Lewis (Lewis) claims the circuit court erred in declining to award reinstatement, front pay and/or compensation for lost pension benefits in his wrongful termination action against the City of Alexandria (the City) under
I. Background
The City hired Lewis in January 2008 as a senior project manager in its Capital Projects Division of the Department of General Services (the Department). Lewis was assigned to manage the construction of a new police and emergency communications facility (hereinafter, the police facility project), and worked in that capacity until August 2011, when the City terminated his employment.
Lewis sued the City alleging “unlawful retaliation and discrimination” in violation of
Lewis sought an award of two times the amount of back pay (as liquidated damages), reinstatement, special damages, including lost pension benefits, and “any other relief provided for in
On Lewis’ pretrial motion, the circuit court ruled that a jury would decide whether the City violated
Unlike the issue of liability, evidence regarding the amount of back pay that would be owed to Lewis upon a finding of wrongful termination was undisputed. Approximately nine months after his termination, Lewis secured new employment with the Prince George‘s County, Maryland, Public Schools in June 2012, earning approximately ten thousand dollars a year less than he earned with the City. Accordingly, Lewis’ expert witness in the field of economic damages, Joel Morse, Ph.D. (Morse), testified that Lewis’ back pay would equal the rate of his salary with the City as applied to the period extending from the time of his termination (August 2011) to the time of trial (March 2013), less the earnings he received from his new employment during that same period.
Morse then testified outside the presence of the jury regarding his analysis in support of Lewis’ claims for front pay and compensation for lost pension benefits. Although it is somewhat unclear from the record, Lewis has asserted below and maintains on appeal that Morse‘s testimony established that his lost front pay through age 65 (Lewis was 58 at the time of trial) was $57,178.2 As to the pension-related claim, Morse explained that Lewis’ pension with the City had not vested at the time of his termination. Lewis would have been required to work for the City for another year and a half for his pension to vest. Nevertheless, according to Morse, Lewis was “denied the value [of that pension] between age 65 and 80 [Lewis’ life expectancy],” the present value of which was $175,130. Morse further explained, however, that if Lewis worked to age 68 in his current position, he would receive a pension from the State of Maryland.
The jury returned a verdict in favor of Lewis and awarded damages of $104,096 in back pay. Lewis accordingly moved the court to include liquidated damages to this award pursuant to
Lewis then moved the circuit court “to use its equitable powers” to award additional relief against the City, including “reinstatement . . . or if reinstatement is not feasible, in the alternative . . . an award of front-pay in the amount of $57,178.00“; and an award “for his loss of pension benefits in the amount of $175,130.”3 The circuit court declined to award reinstatement, front pay or pension compensation. On a motion for reconsideration, Lewis again asked the circuit court to award front pay and pension compensation, but abandoned his claim for reinstatement. The circuit court again denied this requested relief in its final order. In reaching this decision, the circuit court reasoned that Lewis had been “made whole” by the jury‘s verdict and the circuit court‘s other awards in his favor. The circuit court otherwise found that the claims for front pay and
II. Analysis
On appeal, Lewis asserts in his sole assignment of error that the circuit court erred in declining to award “reinstatement, front pay and/or compensation for his lost pension” under
A. Code § 8.01-216.8
B. Reinstatement
As to the circuit court‘s denial of his claim for reinstatement, Lewis cannot make the argument on appeal that the circuit court erred in not awarding such relief. Lewis abandoned that claim at the hearing on his motion asking the circuit court to reconsider its earlier denial of reinstatement, front pay and pension compensation.
Lewis’ counsel began his argument in support of the motion by stating that
Moreover, even after assigning error to the circuit court‘s decision not to award reinstatement, Lewis states on brief in this appeal that “the circuit court likely enjoyed the discretion to determine that reinstatement was impractical, particularly given the parties’ animosity and the fact that Lewis had secured new employment.” A party “‘may not approbate and reprobate by taking successive positions in the course of litigation that are either inconsistent with each other or mutually contradictory.‘” Rowe v. Commonwealth, 277 Va. 495, 502, 675 S.E.2d 161, 164 (2009) (quoting Cangiano v. LSH Bldg. Co., 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006)). Therefore, we leave for another day our consideration of the parameters of the statute‘s reinstatement provision.
C. Front Pay
We agree with the parties that the circuit court‘s treatment of Lewis’ claim for front pay as a request for equitable relief under
Lewis argues the circuit court abused its discretion in not awarding front pay under
It is true that front pay is commonly given consideration as an equitable remedy in the alternative to reinstatement in cases decided under anti-retaliation statutes for wrongful termination, including the FCA. See Wilkins, 198 F.Supp.2d at 1091 (“While the FCA does not specifically include front pay as a remedy available to the court to effect full compensation, the court concludes that Congress intended that front pay be awarded in the appropriate case to effect the express Congressional intention that a claimant under
We find support for this conclusion in Dotson v. Pfizer, Inc., 558 F.3d 284 (4th Cir. 2009), a FMLA wrongful termination case in which the plaintiff was awarded liquidated damages, but not front pay. Like Lewis, the plaintiff in Dotson argued that the trial court erred by considering “the role played by the liquidated damages [award] in making him whole” when the trial court declined to award front pay. Id. at 300-01. The Fourth Circuit held that the trial court did not abuse its discretion in making this ruling, explaining that “it is difficult to understand why a lower court cannot consider the role of liquidated damages in reaching [the FMLA anti-retaliation provision‘s] overarching goal” of making the plaintiff whole. Id. at 301. Other courts have similarly recognized that an award of liquidated damages may justify the denial of front pay. See, e.g., McNeil v. Economics Laboratory, Inc., 800 F.2d 111, 118 (7th Cir. 1986) (explaining that “front pay may be less appropriate when liquidated damages are awarded“); Wildman v. Lerner Stores Corp., 771 F.2d 605, 616 (1st Cir. 1985) (“Because future damages are often speculative, the district court, in exercising its discretion, should consider the circumstances of the case, including the availability of liquidated damages.“); Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir. 1992) (“We agree with the Seventh and First Circuits that a substantial liquidated damage award may indicate that an additional award of front pay is inappropriate or excessive.“); Cancellier v. Federated Dep‘t Stores, 672 F.2d 1312, 1319 (9th Cir. 1982) (“[A]vailability of a substantial liquidated damages award may be a proper consideration in denying additional damages in lieu of reinstatement.“); see also York Office of Mental Health” cite=“652 F.3d 277” pinpoint=“288” court=“2d Cir.” date=“2011“>Bergerson v. New York Office of Mental Health, 652 F.3d 277, 288 (2d Cir. 2011) (explaining, in an ADEA wrongful termination case, that “[a]n award of front pay is discretionary, and if a district court makes a nonerroneous ‘specific finding’ that a plaintiff has already been made whole, no abuse of discretion can be found in denying front pay“).7
D. Compensation for Lost Pension Benefits
Finally, Lewis argues that the circuit court abused its discretion in denying his claim against the City for lost pension benefits in the amount of $175,130. As with front pay,
The salient facts before the circuit court relevant to its denial of Lewis’ claim for pension compensation are as follows. Lewis was a licensed architect with more that thirty-five years of experience in architecture and construction project management, and no evidence was presented indicating that he could no longer market his professional skills. His contract with the City contained no specific period of employment, and the police facility project, which was his only assignment during his three and a half years of employment with the City, was completed two months after his termination. Lewis’ pension with the City had not vested at the time of his termination, and would not have vested for another eighteen months. Finally, Lewis obtained employment after his termination that paid a comparable salary and would provide pension benefits upon his retirement at age 68.
Based on these facts, we hold that the circuit court did not abuse its discretion in determining that Lewis was made whole through his other awards against the City, absent an award of pension compensation; and that his claim for pension compensation in the amount of $175,130 was otherwise “subject to too much speculation.”8
III. CONCLUSION
For these reasons, we hold that the circuit court did not abuse its discretion in awarding relief to Lewis under
Affirmed.
JUSTICE MIMS, concurring.
I concur with the majority‘s conclusions that Lewis abandoned his claim for reinstatement and that the circuit court did not abuse its discretion by denying his claim for pension compensation because it was too speculative. However, I write separately because I believe that the interpretation of
As the majority opinion recites, front pay is awarded as prospective compensation, for pay lost from the date of judgment into the future. Johnson v. Spencer Press of Maine, Inc., 364 F.3d 368, 379 (1st Cir. 2004).
The evidence in this case is that the project for which Lewis was principally responsible ended in October 2011, at least five months before he filed his complaint and 18 months before entry of judgment. Although Lewis argues that he is entitled to an award of front pay for the difference between his compensation from the City and from his new employer through age 65, he failed to prove at trial that his at-will employment by the City would not have lawfully terminated upon the conclusion of the project. Cf. Wilkins v. St. Louis Hous. Auth., 198 F.Supp.2d 1080, 1092 (E.D. Mo. 2001). He therefore failed to prove that he was entitled to ongoing employment by the City at his previous level of compensation from the date of judgment forward.
Consequently, Lewis’ claim for front pay was, as the circuit court ruled, simply too speculative. The court did not abuse its discretion when it declined to enter such an award. This basis is sufficient to affirm its judgment and the Court need not reach the interpretation of
“It is elementary that the primary object in the interpretation of a statute is to ascertain and give effect to the intention of the legislature.” Andrews v. Shepherd, 201 Va. 412, 414, 111 S.E.2d 279, 281 (1959). “In interpreting [a] statute, ‘courts apply the plain meaning . . . unless the terms are ambiguous or applying the plain language would lead to an absurd result.‘” Baker v. Commonwealth, 284 Va. 572, 576, 733 S.E.2d 642, 644 (2012) (quoting Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 926 (2006)).
“When the word ‘shall’ appears in a statute it is generally used in an imperative or mandatory sense.” Schmidt v. City of Richmond, 206 Va. 211, 218, 142 S.E.2d 573, 578 (1965); accord City of Waynesboro Sheriff‘s Dep‘t v. Harter, 222 Va. 564, 566, 281 S.E.2d 911, 912-13 (1981). “In this sense ‘shall’ is inconsistent with, and excludes, the idea of discretion, and operates to impose a duty which may be enforced . . . unless an intent to the contrary appears.” Andrews, 201 Va. at 414, 111 S.E.2d at 281-82.
Nevertheless, “the courts, in endeavoring to arrive at the meaning of written language, whether used in a will, a contract, or a statute, will construe ‘may’ and ‘shall’ as permissive or mandatory in accordance with the subject matter and context.” Pettus v. Hendricks, 113 Va. 326, 330, 74 S.E. 191, 193 (1912).
When interpreting an ambiguous statute, courts may consult its legislative history. See id. (excluding use of legislative history when statute is unambiguous). The General Assembly enacted the VFATA in 2002. 2002 Acts ch. 842. As noted in the majority opinion, the substantive words it used in the relief provision were identical to those found in the corresponding provision in the federal False Claims Act,
The fact that the General Assembly adopted the same substantive language as the relief provision in the FCA when it originally enacted the corresponding provision in the VFATA, and amended the VFATA provision in 2011 after Congress amended the FCA provision in 2009 and 2010, indicates that the General Assembly intended state courts to construe the state statute as the federal courts had then construed the federal statute. Powers v. County School Board, 148 Va. 661, 669, 139 S.E. 262, 264 (1927) (“When the legislature comes to pass a new law or to amend an old one, it is presumed to act with full knowledge of the law as it stands bearing upon the subject with which it proposes to deal.“) (internal quotation marks omitted). Two federal cases construing the FCA relief provision are especially instructive here.
In Hammond v. Northland Counseling Center, Inc., 218 F.3d 886 (8th Cir. 2000), the United States Court of Appeals for the Eighth Circuit held that reinstatement may be an impractical, inappropriate remedy in light of continuing acrimony between the parties. It declined to reach the question of awarding front pay in lieu of reinstatement
The United States District Court for the Eastern District of Missouri addressed the question squarely in Wilkins. There the court reiterated that reinstatement may not be appropriate in every case due to the relationship between the parties. 198 F.Supp.2d at 1091. It further found that the animosity between the plaintiff and his employer made reinstatement inappropriate in that case. It held that “Congress intended that front pay be awarded in the appropriate case to effect the express Congressional intention that a claimant under [31 U.S.C.] § 3730(h) be made whole.” Id. It continued by holding that “[w]hether to order reinstatement or front pay is committed to the discretion of [the trial] court” and that where reinstatement was inappropriate “the court will award . . . front pay.” Id.
The trial court in Wilkins clearly considered front pay to be an equitable substitute for reinstatement.1 The only factor it considered when deciding that an award of front pay was appropriate was its conclusion that reinstatement was inappropriate based on the facts of the case. 198 F.Supp.2d at 1091. This is a logical conclusion based on the plain language of the FCA, which, like the VFATA, commands that the plaintiff “shall be entitled to all relief necessary to make [him or her] whole.”
As the majority opinion recites, “[a]n award of back pay compensates plaintiffs for lost wages and benefits between the time of the discharge and the trial court judgment.” Johnson, 364 F.3d at 379. Thus, an award of back pay is an award of retrospective relief, intended to restore to the plaintiff compensation he or she would have received between termination and judgment if the unlawful retaliation had not occurred.2
Reinstatement is the corresponding award of prospective relief, ensuring that the plaintiff receives, after judgment, the compensation he or she would have earned from his or her employment if the unlawful retaliation had not occurred.
However, as noted in Hammond and Wilkins, reinstatement may be inappropriate due to the current relationship between the parties. In such circumstances, front pay is an equitable substitute for reinstatement, as reflected in part of the definition of front pay included in Johnson but omitted from the majority opinion: “Front pay, by contrast, is money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement. Front pay thus compensates plaintiffs for lost wages that may accrue after the conclusion of the trial.” Id. (emphasis added) (internal quotation marks omitted). Both retrospective relief and prospective relief are necessary to make the plaintiff whole unless, as in Hammond, the plaintiff suffers no prospective injury.3 218 F.3d at 892.
To hold, as the majority opinion effectively does, that no prospective relief is necessary simply because reinstatement is impractical or inappropriate due to the relationship of the parties unfairly penalizes the plaintiff alone for the deterioration in the bilateral employment relationship. More importantly, such an interpretation contravenes the spirit of the statutes.
The majority opinion cites several federal cases interpreting the relief provisions of other federal statutes and concludes that, coupled with the statutory award of double back pay, an award of front pay may result in a windfall to the plaintiff. According to the majority opinion, this would exceed the
First, federal cases interpreting the relief afforded by other federal statutes are not instructive here. The General Assembly took the language of the VFATA from the FCA, not the Age Discrimination in Employment Act, the Family Medical Leave Act, or the Civil Rights Act of 1964. Moreover, Hammond and Wilkins were decided in 2000 and 2001, respectively, and thus were contemporaneous with the General Assembly‘s original enactment of the VFATA in 2002.
Second, the windfall concern was adequately addressed in Wilkins. There the court reduced the amount of back pay by the amount of compensation the plaintiff received from his new employment. 198 F.Supp.2d at 1090.
For the reasons stated, I would hold that “shall” is mandatory in