Scott Teutscher v. Riverside Sheriffs Assn

anything Plaintiff claims should have been made physician to do require not already obligated than what he was likely other have been effective and both would patient.”). of the protection to do for the promoted exactly would have the behavior above, liability imposing As described greater promote: that tort law is meant to that officers increase the likelihood would care, safety vigilance, and concern for the duties, which in turn their perform will of foreseeable victims.9 in turn public safety, which would enhance reasons, For all of I would reverse these for alternative support increase the would summary judg- grant the district court’s programs. rehabilitation ment. needed, if more were there is Finally, as specific party a to warn which

in this case wrongdoer by virtue of

had control of the Parole Com- parolee: status as say here cannot

mission. And the Court law,

that, warning matter of such a as a have been futile.

would then, requires the FTCA this up

To sum private closest sector

Court to look to the private party if a

analogue to determine duty

would have a like circumstances. look to is the

The line of eases we should

“duty control/duty to warn” cases which special relationship excep

represent general TEUTSCHER, individual, tion to the rule there is no Scott duty parties to third harmed Plaintiff-Appellee, That line of has its roots wrongdoer. cases And Poncher and Johnson. cases developed, exception special to the have Association, Riverside Sheriffs’

relationship exception has evolved where Defendant-Appellee, public policy parity considerations demand private for rehabilitation facilities with the facilities, immunity to public afforded warning suggested where and/or Legal Riverside Sheriffs’ Association policy- futile. neither of these

be Where Trust; Tanya Conrad, individ- Defense present, based the courts have concerns ually Agent anas of the Riverside warn, duty find a to control or continued to Association, Defendants, Sheriffs (control), Tarasoff, Bragg evidenced (warn). Here, Myers, poli and Reisner cy undergirding considerations the rehabil WOODSON, Nathaniel William exception

itation center plainly cases are III, Intervenor-Appellant. present, warning/control and the Dugard’s government argues Dugard’s proximately 9. caused also Commission discretionary claims are barred func- agree analysis harm. I with the district court's exception tion of the FTCA and that there is and decision on these two issues and would evidence insufficient factfinder to deter- provides grounds that neither to bar Du- find parole alleged mine that the officer’ failure to gard’s claims. report drug Garrido’s violations to the Parole individual, Teutscher, an Scott

Plaintiff-Appellee, Association,

Riverside Sheriffs’

Defendant-Appellant. 13-56411,No.

No. 13-56659 of Appeals,

United States Court

Ninth Circuit. January

Argued and Submitted

2016, Pasadena, California August

Filed

Daniel P. Stevens (argued) Heather McMillan, McMillan, Tustin, K. Stevens & California, for Plaintiff-Appellee. (argued), Jon R. Williams Iag- Williams. LLP, California, min Diego, San for De- fendant-Appellee. Woodson, N. (argued),

William III Law Woodson, APC, Offices of Wm. N. III Fallbrook, California, pro se Intervenor- Appellant. SMITH, Jr.,

Before: MILAN D. PAUL WATFORD, J. and MICHELLE T. FRIEDLAND, Judges. Circuit by Judge Concurrence MILAN D. SMITH, Jr.

OPINION FRIEDLAND, Judge: Circuit appeal requires This us to examine the authority limits on a district court’s eq- front reinstatement as retaliatory uitable remedies for a .dis- charge already sought after has awarded front pay been damages compensate same Plaintiff-Appellee harm. Teutscher Scott against went employer, to trial his former (“RSA”), Riverside Sheriffs’ Association retaliatory discharge claims under both state and the Employee law Retirement Act, Security §§ Income 1001— U.S.C. (“ERISA”). A jury awarded him claims, lump-sum damages on law his state judg- and the district court then entered ment in his favor on ERISA claim. though, request, Even at Teutscher’s jury had been instructed to include front award, its district erations, directing the work including equita- additional Teutscher granted investigating disciplin- staff members consisting of reinstatement remedies ble RSA members. against claims ary violation until reinstatement as as well these appeals occurred. Op- Legal During Teutscher’s tenure they conflict with remedies, arguing began Trust cover- Manager, the erations in violation pay award Deputy Sheriff expenses for ing legal improperly Amendment the Seventh in criminal and defense Duane Winchell’s recovery from the Teutscher’s duplicate unrelated Winchell’s proceedings civil jury. eventually started Teutscher employment. Trust’s cover- that the expressing concerns way which Given unlaw- costs was defense age of Winchell’s presented and the evidence instructed by the disallowed ful because encompassed trial, jury’s verdict documents. plan governing Trust’s as to the factual determination implicit in the later met with officer which amount of entire and ac- Department Riverside Sheriffs on account of his entitled Teutscher was and its executive president cused RSA’s hold that retaliatory discharge. We approvals. improper coverage director of of an additional grant court’s district that he Teutscher revealed Shortly after disregard- harm remedy for the same about the law enforcement had contacted in violation of the ed that determination issues, executive director coverage RSA’s to a trial. right Seventh Amendment employment. terminated Teutscher’s addition, although the reinstatement In alleg- necessarily conflict with the instant lawsuit remedy Teutscher filed does him in retaliation in the ver- terminated findings implicit ing that RSA factual im- that dict, suspicions it nevertheless reporting hold that for his we illegal. In waived that re- of was coverage Teutscher Trust’s Winchell proper because assert- duplicative complaint, to seek the Teutscher operative lief he elected when ac- and jury. We under federal against from ed claims RSA equi- arising court’s out of his termi- the district law cordingly reverse California in nation, retaliatory discharge including table awards. ERISA, of of section 510 violation I. in 1140; discharge viola- wrongful § U.S.C. com- under California public policy tion of organi- RSA is Defendant-Appellant law; discharge in vio- retaliatory mon and law enforcement represents that zation §§ 98.6 and Labor Code lation of California County, California employees in Riverside partially reversed 1102.5. After this court bargaining purposes. RSA for collective summary judgment grant an earlier Legal Defense the RSA also administers RSA, to a proceeded the case favor of (the “Trust”), ERISA-governed Trust pursuant claims three state law trial on the defense ser- provides legal plan. The Trust demand, and to timely jury to Teutscher’s criminal in civil and vices to RSA members ERISA trial on his bench simultaneous course from incidents arising actions claim. until his From 2002 employment. of their trial, evi- presented Teutscher During Plaintiff-Appellee termination to threatened executives dence RSA’s on an at-will basis Scott Teutscher worked keep [his] if “didn’t him he Operations terminate Legal the Trust’s for RSA as coverage the Winchell mouth shut” about was Manager. position, In that Teutscher jury that to the argued He day-to-day op- issues. for the Trust’s responsible threat firing adopted acted on that district court executives Teutscher’s reported proposed jury him after he to outside authori- instruction on damages, and, suspicions coverage his objection, ties without instructed the presented turn evidence on illegal. how to calculate Teutscher’s damages repeated that Teutscher had made mis- should find that he was wrongfully dis- job, his which had led the takes Trust’s charged. This provided: instruction to assign Board RSA’s executive director you If decide that Plaintiff proved has supervise Teutscher’s work. RSA also wrongfully that Defendant terminated evidence that Teutscher introduced had him, you then must decide the amount investigated disciplined for fail- been and damages proven that Plaintiff has ishe policy responding to follow Trust ing recover, entitled if any. To make that incident, shooting an officer-involved and decision, you must: placed he was on administrative leave 1. Decide amount that Plaintiff for, shortly among before his termination up today, have earned includ- things, throwing a work angrily other file. increases; ing any benefits and argued performance- that these grievances merely pretext related were for 2. Add present cash value of retaliation, they and that were belied future wages and benefits that he consistently satisfactory job perform- his would have earned for the length ratings ance a raise he received time the employment with Defendant shortly before his termination. continue; reasonably certain to testimony put Teutscher also about wages he had lost since his termination 3. pain, Add suffering and wages he earned for would have you emotional if distress find that De- anticipated working remainder life fendant’s conduct was a substantial that, at RSA. Teutscher testified at the factor in that causing harm. termination, of his he had time been earn- In period that determining the Plaintiffs $86,000 ing salary plus annual annual employment reasonably was to certain company bonuses and the value of a car. continued, you have should consider During closing arguments, his counsel such things as: the total placed compensation value of at $98,236 Teutscher, per year. who was 55 (a) performance, work age, Plaintiffs trial, at years old the time of testified that regarding and intent continuing em- terminated, he not been wrongfully had he Defendant; ployment with working have continued at RSA un- (b) prospects Defendant’s for continu- in, Security prob- til his Social kick “would ing the operations involving Plain- 65, 67.” ably Teutscher testified that he tiff; and was instead forced look elsewhere for (c) Any factor other that bears on months, work. After about six he found his how long Plaintiff would have con- replacement job working first at an auto tinued to work. business, $8,000 earning per year roughly 2008, and 2007. In began Teutscher The court the jury also instructed working duty at the “Plaintiff County San Bernardino has a use reasonable Department Sheriffs an annual salary mitigate damages” efforts to and that the roughly $42,000, which had increased to was on burden RSA show Teutsch- $52,000by 2Ó12. er had failed to do so. deliberations, prohibi- Amendment and the re- the Seventh

Following recovery. in favor of Teutscher on tion on double a verdict turned wrongful claims for and retal- his state law Using general verdict

iatory discharge. II. objected, had party to which neither form We review for abuse of discretion lump-sum awarded Teutscher the district court’s award of re $457,250 separately damages of lief, including grant its of reinstatement $357,500. damages of punitive awarded pay. and front v. Nat’l R.R. See Gotthardt trial, presented Based on evidence (9th Passenger Corp., 191 F.3d adjudicated court Teutscher’s the district 1999). framework, Cir. Under this we must claim, holding RSA liable for retal- ERISA determine whether district based iating against Teutscher violation sec- law, ruling its on an erroneous view of the then heard The district court tion 510. Hinkson, States v. 585 F.3d United reme- argument appropriate ERISA (9th 2009) (en banc), 1261-62 Cir. or on a dy. Teutscher asked that his ERISA reme- finding factual “illogical, implausi- include back and reinstatement. dy ble, support or without inferences that objected that back was unavail- RSA record,” may be drawn from the id. at compensa- under ERISA as form of able McConney, 1262-63. See v. United States objected that rein- tory relief. RSA also 1984) (en 1200-01 would conflict with the statement banc), recognized abrogated on other earnings award of lost future and would Comm’r, grounds by Estate Merchant recovery impermissible constitute double 1991). 1392-93 already made because Teutscher was pursue he whole elected III. jury. further contended that from the argument appeal central in this RSA’s impossible reinstatement was because that the Seventh Amendment barred the acrimony parties. continuing between eq- granting district court from ruling denying The court issued a back interim uitable relief of reinstatement and ordering but RSA to reinstate claim on his ERISA once the provide Teutscher and to him interim front jury had determined the amount of front $98,235 per year at the rate of until which Teutscher entitled on his pay to such reinstatement occurred. RSA filed ob- accordingly begin by law claims. state We jections ruling, protesting to the court’s examining the strictures the Seventh it reinstate impossible that would be imposes Amendment in cases tried both to had then position Teutscher because his jury a and to the court. eliminated, again arguing that been and provides Amendment and reinstatement The Seventh law, at common ... duplicated the relief Teutscher had Suits “[i]n awards by jury preserved, trial shall be right obtained from the and that Teutscher by jury, no fact tried a shall be other right waived his to those awards in remedy on wise reexamined Court of the Unit when he elected a make-whole States, according than to the rules of The never- ed legal claims. district court law.” amend. VII. judgment theless in accordance the common U.S. Const. entered Supreme The “has construed this ruling. timely appeal- with its earlier Court jury trial on the remedy language require a ed the district court’s claim, analogous in that are it merits those actions arguing ERISA violated both

943 ” at common law5 at the ‘Suits time of Teutscher’s state law claims and his legal the Amendment’s ratification. ERISA claim Tull Unit are nature with re spect to States, 412, right they protect. 417, Spinel ed 481 See U.S. 107 S.Ct. 853, li v. 12 Gaughan, 1831, 857 (1987); 95 L.Ed.2d 365 see also Flem 1993) (categorizing retaliatory discharge— James, Jr., ing Right to a Jury Trial in “a tort widely so accepted in American Actions, 655, (1963) Civil 72 Yale L.J. 655 jurisdictions today ... that it has become (explaining that the Constitution “do[es] part of our evolving common law”—as le not extend but preserved] right gal in nature analogizing an ERISA jury trial existed ... in 1791 when tort). section 510 claim to that common law the seventh amendment adopted”). As to the 1791, important more Prior to “a factor—the trial was customary nature of the remedies —the state law brought English suits in the law courts” claims legal are and the ERISA claim is Tull, but not in the equity, courts of equitable. The actual punitive dam 417, 1831, at U.S. 107 S.Ct. “unless the ages Teutscher seeks for his state law chancellor his discretion sent an issue to claims are indisputably legal remedies be advisory verdict,” James, for an cause such damages are “the traditional Yale L.J. 655. The Seventh Amendment form[s] relief offered in the courts of right thus secures the to a trial for Loether, law.” 189, 196, Curtis v. 415 U.S. “suits in legal rights which to be [are] (1974). 94 S.Ct. 39 L.Ed.2d 260 determined, ascertained and in contradis remedies Teutscher seeks under section tinction to those where rights ERISA, contrast, 510 of are exclusively alone recognized, and equitable [are] reme equitable in nature. Section 510 is enforced dies Chauffeurs, [are] administered.” Local solely through provided the remedies un Terry, 558, 564, 391 v. 494 U.S. 110 S.Ct. 502(a)(3), der section which authorizes an 1339, 108 (1990) (alterations L.Ed.2d 519 aggrieved plan participant beneficiary original) (quoting Bedford, Parsons v. bring enjoin civil action to an ERISA (1830)). U.S. 3 Pet. 7 L.Ed. 732 violation or “to obtain other appropriate equitable relief,” 1132(a)(3). § Teutscher went claiming to trial 29 U.S.C. 1140; § See 29 Spinelli, U.S.C. discharged RSA had him F.3d at in retaliation for 856; Assocs., see also Mertens v. Hewitt protected activity, in violation of California 248, 256-58, 508 U.S. 113 S.Ct. law and in violation of section 510 of (1993) L.Ed.2d 161 (holding that relief un ERISA. To determine whether a 502(a)(3) der section is limited to remedies right exists on each of these causes of traditionally in equity, available such as action, we look first to whether that action restitution). injunctions, mandamus, and analogous to one that was heard in English “prior law merger courts to the right ques Because both the the courts of law equity,” and second tion and the sought remedies make we “examine the sought and deter Teutscher’s state law claims in na mine whether it legal equitable is or in ture, and because Teutscher made a time Tull, 417-18, 107 nature.” 481 U.S. at S.Ct. ly jury claims, demand on those he was 1831. “The inquiry second is the more entitled to have those claims tried to a important in analysis.” Chauffeurs, our 494 Shore, jury. Hosiery See Parklane Co. v. 565, 1339; U.S. at 110 S.Ct. see 322, also Gran 345, 645, 439 U.S. 99 S.Ct. 58 L.Ed.2d financiera, 33, (1979) S.A. v. Nordberg, (“If 492 J., U.S. 552 (Rehnquist, dissenting) 42, 2782, (1989). 109 S.Ct. 106 jury L.Ed.2d 26 a in impaneled would have been a

944 Gates, 1469, 1791, v. 995 F.2d League the Protective case then kind of particular (9th 1993) (quoting Miller v. requires a trial 1473 Cir. Amendment Seventh (9th desires.”)- Indus., 498, F.2d 507 But be Fairchild 885 party if so today, either 1989)). nature of the The trial court must do so wholly equitable Cir. cause of the remedies, liability Teutscher’s relief on the determining ERISA both and available Miller, equitable— as F.2d at categorized equitable claim is claims. See 885 ERISA right no to a meaning (holding that he had that “the district court 506-07 Spinelli, 12 F.3d at that claim. See claim will deciding [equitable] trial on the Title VII 858. by all factual determinations be bound deciding” plain- made how Supreme explained Court has The claims); v. legal see also Smith tiffs Diffee Amendment comport with the Seventh Inc., 298 F.3d Ford-Lincoln-Mercury, equitable claims in trying legal and when 2002) (10th 955, (holding that the Cir. 966 Queen, Inc. v. Dairy action. In the same judge impermissibly “disregarded trial 469, 894, Wood, 8 82 S.Ct. 369 U.S. judge jury’s implicit finding[s]” when (1962), held that in 44 the Court L.Ed.2d discharged plaintiff wrongfully denied equitable claims legal and cases which for reasons equitable relief of front fact, “any legal of turn on common issues jury’s findings); inconsistent with the timely by jury a trial issues for which Century Corp., Broad. EEOC v. be submit- properly [must] demanded 1992) (7th (“[I]n 1446, deciding 1463 Cir. 473, jury,” a id. at 82 S.Ct. 894 ted to under grant equitable relief whether Theatres, Westover, Inc. v. (citing Beacon VII, prohibited court [is] Title the district 510-11, 948, 3 79 S.Ct. U.S. necessarily reconsidering any from issues (1959)), jury’s deter- L.Ed.2d 988 (second jury.” actually decided claims must occur legal mination of the original) (quoting Hussein alteration of “prior any final court determination Co., Truck Oshkosh Motor claims,” id. at 82 S.Ct. [the] 1987))).These constraints are 894. the Seventh Amendment’s Because respect prop- ... “consistent with ... “prohibit[s] second clause the courts in our erly is accorded to a verdict any facts the United States to re-examine Miller, F.2d system jurisprudence.” by jury” except permitted a under tried at 507. known to the common the narrow “modes

law,” Parsons, 447-48, the court 28 U.S. IV. jury’s findings then must abide any subsequent rulings. making fact in See the district court To determine whether Laws, Floyd v. constitutional con- contravened these a (holding that “it would be straints, we whether Teutscher’s evaluate right violation of the seventh amendment turn on com- law and ERISA claims state disregard a trial for the court to do, fact, and, they if questions mon fact”). jury’s finding of disregarded factual whether the court jury’s implicit in the ver- determinations It that “in a case where follows reme- dict when awarded by jury equita are tried claims dies. by judge, ble claims are tried and [those] ” facts,’ claims are ‘based on the same A. judge implicit trial must “follow the dispute that do not parties “in explicit factual determinations” de the de- of fact underlie questions L.A. common ciding claims.” Police

945 liability on the law and show his reporting allegedly termination of state im- ERISA claims.1 Teutscher’s state law proper coverage legal of Winchell’s ex- termi proving claims turn on his penses By motivated his termination. find- disclosing nated for sus employment his claims, ing RSA liable on the state law See, Hager pected legal e.g., violations. v. jury implicitly found pro- that Teutscher’s County Angeles, Cal.App.4th Los 228 of activity tected discharge. motivated his (2014) 1538, 268, Cal.Rptr.3d 176 275 with it finding, Consistent this was appro- (“[SJection 1102.5(b) protects employee an priate for the district court to enter judg- employer from retaliation his for mak ment for Teutscher on his ERISA claim as ing good faith of a violation of disclosure party well. suggests Neither otherwise. law.”); McVeigh federal or state v. Recolo question The more difficult —and S.F., 443, gy Cal.App.4th 213 152 Cal. one at this issue case—is whether the (2013) 595, Rptr.3d a via (recognizing 619 court’s ERISA shares common ble claim em against common law tort an of questions fact with damages ployer public who violates fundamental question, calculation. To answer that we policy prohibiting retaliatory discharge of begin by evaluating of the forms relief an employee whistleblowing). for To estab available for of violations Teutscher’s state lish a claim of retaliation under section law and ERISA claims. 510, Teutscher likewise had to that: show (1) he engaged activity protected law, Under California “[a] (2) ERISA, under he suffered an adverse wrongfully discharged employee ... is en (3) action, employment and link a causal titled to to make him [that] tend protected activity existed between that “represent just compensa whole” and RSA’s action. v. Rich adverse Kimbro Atl. tion ... plain for the loss sustained (9th 1989). Co., 869, 889 881 F.2d Cir. field Roseville, City tiff.” Currieri v. 50 Cal. of ERISA-protected activity pro One such is 499, 314, App.3d (1975); 123 Cal.Rptr. 319 testing a with legal violation connection (“For §3333 see also Civ. Code Cal. plan. v. ERISA-governed Hashimoto obligation arising breach of an from (9th Haw., Bank F.2d 999 411 Cir. contract, damages ... the measure of 1993); (making § see U.S.C. also 29 the amount which will for all compensate “discharge ... any person unlawful to be proximately thereby, the detriment caused given cause he has tes information or has anticipated could whether it have been or testify inquiry tified or in any is about not.”). key [ERISA]”). component One economic loss relating proceeding With respect employee is the income that both the state law and ERISA claims, wrongfully Teutscher endeavored at trial to have earned had she not been problem conflicting legal equita- failing 1. The tion in this case to assert defense (such ble awards as the preemption in the or in district court this reinstatement and front court, we decline to the issue consider here) appears rarely awards to arise in the sponte. See Jim sua Gilchrist v. Slemons pre- ERISA context because ERISA’s broad Inc., (9th Imps., Cir. 1144(a) emption provision. § See 29 U.S.C. preemption (explaining that an ERISA (providing supersede any that ERISA "shall jurisdic- generally "does not affect defense they may and all State laws insofar as now or refusing tion” and to reach it for first time employee hereafter relate benefit appeal); Family Mut. on see also Am. Ins. Co. plan”); Gaughan, Spinelli v. Hollander, 1993) (recognizing n.4 that ERISA 2013) (declining preemp- to consider ERISA preempts discharge retaliatory claim sponte appeal). tion sua law). under any preemp- Nevada RSA waived 946 London, (9th 1493, 1504 cha v. v. Bd. Trs. 62 F.3d Cir. See

discharged. of of Horsford Univ., 359, 1995), prospective 33 relief for State Cal.App.4th provide 132 it does Cal. (2005). 644, Compensatory retaliatory Cal.Rptr.3d employee 666 an who suffered dis may thus under law au damages by giving equitable California courts the charge “backpay” an award of “lost- include as thority employee to her to reinstate trial,” the time of wages damages through v. PLM See McBride position. former of the id. pay’ and “as ‘front an award Int’l, Inc., (9th 1999) 737, 744 179 F.3d Cir. wrongfully a demoted salary and benefits (holding ERISA-plan participant that an discharged plaintiff would have earned or section 510 for standing had to sue under Mize- trial,” employment from after see position); to his former reinstatement Dist., 202 Cmty. v. Marin Coll. Kurzman Inc., Lithoprint v. also McLeod Or. 102 832,136 259, 294 Cal.App.4th Cal.Rptr.3d (9th 1996) 376, (providing Cir. (2012).2 courts n.17 Because “California “equitable, that is not com reinstatement pay damage ... as a issue for treat[ ] pensatory, purposes relief’ for of ERISA fact,” id. wrongfully a dis the trier of 502(a)(3)).3 times, There section will be to seek a front charged plaintiff is entitled however, reinstatement, though when de compensate from the for pay award served, feasible, is not either because “it is earnings. future lost Pursuant Califor impossible plaintiff to reinstate the or [be instructions, this front pattern nia’s inappropriate it would be due to cause] present award should consist of “the pay hostility antagonism excessive or between wages future and bene cash value of City Segundo, Thorne v. Elof parties.” plaintiff] that have earned [the fits (9th 1986). 802 F.2d Cir. To time the with length employment for the situations, account for such we have held reasonably certain to [the defendant] statutory con employment-related other (“Wrongful Dis continue.” CACI No. 2433 pay” texts that “front be awarded Policy- charge Violation of Public —-Dam equity preferred as a substitute when the ages”). is unavailable or remedy of reinstatement See, e.g., Traxler v. Multno imprudent.4 Although ERISA section 510 does (9th County, mah Con 596 F.3d 1011-12 provide compensatory damages, briefs, nature), Gregori, parties with 2. In their use terms like Schwartz 1995) (holding earnings'' "lost future and "future lost earn- 1022-23 restitutionary ings” interchangeably pay.” pay a award available with "front This- back is 502(a)(3)). pay The district court in is consistent with how front is defined under section See, Horsford, e.g., held that back is unavailable the California courts. this case ap- (defining pay” Teutscher has not Cal.Rptr.3d at ERISA. Because 665-66 "front under decision, pealed we not reach that "a loss of future do as measure classifying future loss of issue here. income” and "loss or damages”). earnings” aas form of "economic of our circuits has held 4.At least one sister 502(a)(3) permits ERISA an split 3. whether "back that section There is circuit remedy preferred reme pay” award of front "when the is also available as 502(a)(3) dy appropriate ... to restore a reinstatement is not under section of ERISA Schwartz, position feasible.” 45 F.3d at 1023. Neither to the she would have en- joyed illegal party contests that front is employer’s for the retaliation. to this action but remedy Compare Millsap Douglas Corp., available for a violation of section v. McDonnell violation, asserting only such a 1259-60 510 in case deciding (holding without unavailable for em- and we therefore assume back author ployees discharged that front is an in violation of section 502(a)(3). ized under section because it is rather than 2010) in a (providing Family jury’s findings pay Medical on front when con- Cir. pay Act front available sidering case that is Teutscher’s for request Leave a front is inappropriate, when “reinstatement only pay under award ERISA. or position as where no is available

such has employer-employee relationship California law and federal law animosity rein damaged by so that been both “front an pay treat award [a]s of Thorne, 802 impracticable”); statement is earnings future lost to make a victim of pay (recognizing F.2d at 1137 that front discrimination whole.” v. Cassino Reich a remedy be available as under Title Chems., Inc., (9th 1338, hold 1346 reinstatement).5 in lieu of VII 1987); Horsford, Cir. see also 33 Cal. at Rptr.3d 666 front (defining pay as “a in a The district court this case crafted of damages measure for loss of future remedy Teutscher’s 510 hybrid section income”). claim, And both a require wrongfully awarding reinstatement as well as discharged plaintiff front for- to make pay interim at Teutscher’s full reasonable ef salary mitigate employer’s mer until reinstatement occurred. forts to damages whether, in granting by seeking We must determine suitable alternative employment. See, reinstatement, front dis- pay Cassino, either e.g., 817 F.2d at 1345 (“An fact findings trict contravened the of [Age Employment Discrimination jury’s damages We implicit verdict. attempt mitigate Act] must remedy each turn. consider exercising reasonable care diligence seeking reemployment af B. termination.”); ter Emps. Cal. Sch. Ass’n that argues Comm’n, deter Cal.App.3d 241, v. Pers. 30 106 (“The of 283, (1973) mination Teutscher’s entitlement Cal.Rptr. 286 discharged remedy pay front as a for his state law employee generally duty ... a has to miti claims foreclosed the district court from gate damage[s] by seeking other em granting pay front on Teutscher’s ERISA ployment through the exercise reason agree. claim. We Thus, diligence.”). able under both federal law, pay California front awards must only pay is Not front available both that be reduced the amount the defen law under Teutscher’s state law claims wrongfully discharged dant shows the em ERISA, equity 510 under section as ployee “could earn using reasonable miti above, in order explained but to obtain Cassino, 1347; gation efforts.” F.2d at 817 remedy, either make Teutscher needed to Century-Fox see Parker Twentieth showing same factual and to meet Corp., 3 89 Cal.Rptr. district Film Cal.3d same defenses. The court conse- (in 737,474 (1970) bank) (set P.2d 692 quently should have viewed itself as bound respect ting “general under the Seventh Amendment to forth the rule” under Califor- characterizing 5. front Federal court decisions awards of front where state law remedy provides legal as an for that as a under several form of employment federal statutes have not altered relief. v. Johnson & See Passantino Johnson Prods., Inc., legal remedy a under its characterization as Consumer 2000) (explaining Washing- “[u]nder state law. California courts have continued to that classify “damage autonomy front issue for ton law has substantial awarding recognizing pay''); of fact” front trier even while when Boehm v. Am. Co., (cid:127)pay equitable remedy is treated as an under Broad. Mize-Kurzman, (affirming jury's federal award under Cali- certain statutes. claims). Cal.Rptr.3d upheld wrongful discharge And we 294 n.17. have fornia jury to include in its court instructed the discharged plain- wrongfully nia that a law fu- present “the cash value award subject mitigation).6 is recovery tiffs wages [Teutscher] ture benefits It clear then length of time would have earned for turns on the law under California reason- employment with [RSA] fact as same issues continue,” ably certain to discounted 510 of ERISA: under section pay award affirmatively proved any amount that RSA reasonably employee was salary an the reasonable through Teutscher could earn wrongful for his earned but certain to have inquiry that a precisely This is efforts.8 over which he would period discharge, court would conduct determine district salary, the amount have earned pay equi- award of front appropriate an showed the em- defendant by which the ty employment under a federal statute.9 by secur- mitigate his losses could ployee court instructed the The district also employment.7 alternative ing suitable jury on the factors it should take into jury instruction on Accordingly, “period that account to determine the in this case directed damages given reasonably employment [Teutscher’s] the exact issues that jury continued,” to determine such as his certain to have to the district be relevant performance, also would and intent re- “age, work any equitable continuing employment of with garding determination court’s [RSA];” prospects continuing for the district Specifically, “[RSA’s] award. pay front Cassino, 121 S.Ct. 1946. Nowhere in Pollard did the court submitted the 6. the district In Supreme pay Court hold that front cannot be jury. 817 F.2d at 1347. pay to a front issue Cassino, by jury legal a awarded as a for Discussing why this had occurred court, Pollard state-law cause of action. Nor did trial "[a] we clarified in Traxler on a address Seventh Amendment constraints employ advisory may ... an sitting equity, pay equity front district court’s award of pay of front jury” the amount to determine jury the factual issues when a has determined right jury to have a though there is no even Traxler, an award. relevant to such F.3d at the issue. determine Traxler addressed Neither Cassino nor 1013. Although mitigation court's discretion the limitations on district 8. the district court’s in- pay equitable clarity, relief where front to award was not a model of Teutsch- struction right, jury sufficiently of than submitted to the as rather er concedes that it made clear to advisory capacity. jury pay subject mitiga- in an that front awarded tion such that the could have alone. zero front on that basis suggests Supreme 7. that the The concurrence du Pont de Nemours & Court in Pollard v. E.I. 1946, Co., qualifier suggests 121 S.Ct. that the 532 U.S. 9. The concurrence (2001), "appropriate eq- a "technical dis- "appropriate” phrase L.Ed.2d 62 set forth in the ERISA, between 29 U.S.C. tinction” uitable relief” 1132(a)(3), disagree. leeway pay, governs gives § here. We Pollard to consider which courts question determining narrow whether an whether to answered the additional factors in grant award in lieu of reinstatement award and the 706(g) Title was authorized under section But the concurrence size of such award. VII, 5(g)(1), identify any § 42 U.S.C. whether factors that the district does not 2000e— 'compensatory beyond an element of have considered "constitute[d] court here would § damages’ under 42 U.S.C. 1981a and thus to consider. Of those it instructed the course, statutory damages cap subject to the must follow [was] neither the —which determining imposed that section.” 532 U.S. at the law in its ’instructions on holding liability damages, Opper that front v. United 121 S.Ct. 1946. The Court's see 84, 95, States, statutory cap 99 L.Ed. 348 U.S. 75 S.Ct. was excluded from (1954) statutory language specific district turned on the —nor 852-54, history. inappropriate relief. legislative Id. at issue and its [Teutscher];” job involving discharge and ment after his operations (including long “[a]ny other factor bears how that he on the Internet” to find “[w]ent would have continued work), [Teutscher] salary and about the that he earned are the same factors consid- work.” These through post-termination employment acting equity. courts See ered district shop at an auto and at the San Bernardino Strain, Downey v. County Department. Sheriffs ad- 2007) (identifying factors to consider that, ditionally heard evidence almost a determining award of year before Teutscher was discharged, “(1) length prior em- assigned an administrator to “t[ake] (2) posi- ployment, permanency legal operations” formerly over the han- (3) (4) work, held, tion the nature of the dled Teutscher. The thus had all age physical condition of the em- the tools it needed to determine Teutsch- (5) possible jobs, consolidation of ployee, pay, er’s entitlement to front and it must (6) myriad and other non-discriminato- presumed jury be followed its ry validly factors which could affect the instructions and awarded Teutscher all the employer/employee relationship”); see also supported by lost future income the evi- Traxler, (approving F.3d at 1014 of the Angelone, dence. See Weeks v. 528 U.S. plain- district court’s consideration of the 225, 234, 120 S.Ct. 145 L.Ed.2d 727 skills, age, job expec- tiff’s and work-life (2000) (“A jury presumed to follow its award); tancy pay to determine a front instructions.”). jury’s finding as to (“In Schwartz, 45 F.3d at 1023 determin- Teutscher’s entire entitlement to front ing pay, the amount of front a district pay taking age, into account his his work- — factors, is to consider a number of .court expectancy, life the likelihood of RSA’s employee’s work life including expec- maintaining his former rea- position, his tancy,” also take into account mitigation ability, implicit sonable etc.—is at-will.). employee whether the $457,250 compensatory in its award of in prove up pay damages To his front as damages. And the district court was bound instruction, required jury Teutscher in crafting this determination sub- testified that he would have continued sequent equitable relief.10 salary at at until working RSA his 2005 appears It that the district court failed

retiring age sixty-seven. at around consider, however, to the factual determi- presented mitigation Teutscher also evi- jury’s dence to in in replace- implicit about his efforts obtain nations verdict Williams, agree earnings” 10. We with the concurrence that the "lost future at issue in we jury’s award of dam- agree other non-economic that there would be no Seventh ages injury compensating as those for an award front Amendment obstacle to —such reputation— to Teutscher's character and equity. happened what But that is not preclude would not the district court from jury this case. The instead was instructed to awarding equitable pay. front This occurred exactly the same relief that the district Inc., Pharmacia, in Williams v. 137 F.3d 944 sought equity: wages court to award in 1998), which, we discuss in earned at benefits that Teutscher would have infra, Part VI the Seventh Circuit determined during reasonably RSA the time that he was jury’s earnings” that the award of “lost future but for the certain to have remained compensate injury discharged to to a em- termination, subject mitigation. retaliatory to ployee's "professional standing,” "charac- jury Once the made those factual determina- ter!,] reputation” overlap did not with the tions, disregard the district court could not equity district court’s award of contrary by making determinations in them under Title VII. Id. at 952-54. If the here equity. only had been instructed to áward the sort of favor, and because jury ruled in his it or- The pay. When awarding equitable to $98,235 not enable us per lump-sum format does pay Teutscher dered RSA him, the we reinstating portion pay,' was front parse until which year in front concluded that awarded all of impermissibly that the district must assume $98,235per year was entitled Teutscher it believed Teutsch- the front to which found had than more Indeed, agreed because he er was entitled. Amendment The Seventh and awarded. form, Teutscher lump-sum verdict findings to be jury’s permit does not that the ver- any argument waived L.A Police manner. See in this cast aside its parsed or could be between dict should Gates, 995 F.2d League v. Protective he components, and because compensatory that “the (holding award, jury’s damages appeal did not in factfind- engaging court erred district that the any argument waived findings of the implicit contrary to the ing in- it did not was flawed because verdict reversing the district jury verdict” pay. provide He also fails to clude front for that equitable relief order on court’s proposition that the any authority for the reason). amount of back jury must award the entire Sev- to overcome Teutscher endeavors grant it can pay requested before by attempting Amendment barriers enth and, not in- critically, the pay, award to jury’s lump-sum parse to do so. It is here that it had structed actually grant that the did show entirely possible thus then to damages, and any pay him front pay front included a substantial award parsing that the dis- on this argue based component. free to order those trict court remained Moreover, parse if could the even we Teutscher rests this equity. damages is irrele- we cannot—-it jury award—which $457,250 in that the on the fact argument actually included jury the vant whether' by jury the damages awarded total award, any pay within its front $491,339 pay dam- back less than the pay front would an award of zero because such, sought. As he that Teutscher ages court in its determi- also bind the district jury did not that because the contends jury relief. the nation of Whether entirety of his back award him the even pay or no some amount front awarded demand, have possibly it could not pay necessarily finding, made a at pay, front it pay. amount in front awarded him amount of request, on the total Teutscher’s rea reject argument this for several We which Teutscher was entitled. pay front to First, the lump-sum the format of sons. suit could not Because “the verdict [this] us from ascertain jury’s prevents verdict deciding [this] without have been rendered pay amounts of back ing the relative matter,” jury’s verdict on Teutscher’s the the awarded. See pay front pay front over the entire entitlement (3d Bonser, 168, 176 Squires v. working years was remaining of his course that “it not be (recognizing Place, 94 U.S. “conclusive.” Russell v. front-pay award possible ... to isolate the (1876). 608-09, 24 L.Ed. 4 Otto lump-sum awarded a since the to then award The district court’s decision damages”). compensatory amount for remedy disregard- front an additional him jury to award Teutscher asked the to the entire jury’s finding as ed the distress pay, pay, front and emotional back compensation that would amount of future object to did not damages, and Teutscher make Teutscher whole. doing form for so. lump-sum verdict existing employee.”). C. The second of these clear analog factors has a in the analysis Seventh Amendment leads calculus, turns in part perma- which on the respect a different conclusion with nency position of the was held though re- the reinstatement award. Even possibility posi- that his compensates the same instatement for through tion would have been eliminated pay, as front some of the factors that harm consolidation for a non-retaliatory reason. deter- underlie reinstatement See 510 F.3d at Downey, 544. The differ from underlie a mination those that this told to “pros- case was consider RSA’s Because determination. pects continuing the operations involv- only factors over- partially these are ing in- And could [Teutscher].” have jury’s some lapping, interpretations increasing supervision ferred from the here would conflict with a reinstate- reassignment of Teutscher’s work that his ment award but others would not. And position eventually would have been elimi- because Seventh Amendment al- doctrine irrespective protected activity, nated of his interpret award in lows through such as consolidation or a reduc- deciding whether it conflict with an would force, tion in work through award, possibility of a non- of his reassignment lawyer.11 duties to a conflicting interpretation means Sev- expressly Had found that a posi- necessarily Amendment does enth bar tion for at longer no exist award. reinstatement concluded, time the trial The factors that determine wheth therefore zero awarded on that er a reinstatement appropriate award is basis, finding preclude could the dis- hostility whether “excessive or an include trict ordering court from reinstatement. tagonism parties” between the renders re contrast, By other considered factors infeasible, Thorne, practically instatement no determining have and whether there is a bearing appropriateness on the of rein- position employ available to reinstate the instance,' For in awarding statement. unfairly causing displace ee to without the pay, jury the instructed to consider Cassino, of another employee. ment ability mitigate to Teutscher’s his losses. (“Although at 1346 F.2d reinstatement is ability-to-mitigate But to is not a defense preferred remedy discriminatory the [for Thus, if jury reinstatement. the to decided discharge], may it not where be feasible pay on it award no front the basis that position relationship the is hostile or no is job could believed Teutscher obtain a that force.”); due available to a reduction in see job RSA, paid as much as his at Co., Clothing Palasota v. Haggar also any finding incompatible not be would with 2007) (Factors 474, 489 to be finding necessary to award rein- in deciding propriety considered the statement. positions reinstatement include “whether comparable Nothing to in plaintiff’s presented now exist the for the evidence mer and whether at us to out position definitively reinstatement trial allows rule require employer displace possibility to the the denied cording 11. RSA’s executive director testified that to evidence submitted RSA after trial, performed "by position work needed in Teutscher’s to be Teutscher’s was eliminated lawyer” formerly assigned who could better understand the with the duties being decision[s].” issues "make informed transferred to outside Teutscher coun- indeed, and, lawyer, Teutscher not a ac- sel. against it believed the defendants retaliated him because job in have obtained a Teutscher could transferring position him to a without su- the same as his former paid future that pervisory responsibilities by refusing consequence, As a it is position at RSA.12 promote managerial him to a role. See jury’s in case whether unclear this 387 F.3d at 595-96. After the re- pay decision turned on factor- plaintiffs turned a verdict in the favor on any expected elimination of such as the generally, plaintiff the retaliation claim might fill—that would position Teutscher requested equitable promotion or relief of remedy, or in- preclude a reinstatement from the district court but was fail- stead on a factor —such as Teutscher’s denied both. See id. at 597-98. In consid- fully mitigate would not. ure —that ering appeal whether the denial of that case, When, as in this the basis for equitable relief jury’s conflicted with the multiple interpre- jury’s open verdict is verdict, the Seventh Circuit was faced tations, permits the Seventh Amendment situation, presented with a much like that any interpreta- the district court to reach here, in jury’s which the verdict could be by the supported tion that is evidence. See in interpreted multiple Specifical- fashions. Indiana, 591, 600 Miles v. ly, had answered in the affirma- (explaining “when several a special inquiry tive verdict that asked litigated, issues have been and the plaintiff “proven whether the had that his supported by finding have its verdict complaints of ... a discrimination were favor on one of the plaintiffs motivating factor in the decision of de- clear, the court issues but which one is not fendant ... to transfer him ... or fail to jury’s is free to determine the basis of the promote light him.” Id. at In 600. of the clearly extrinsic verdict unless evidence phrasing inquiry, of the the verdict could issue”). resolves the The district court ways: be read one of three then, course, contradicting must avoid could have found retaliation in the trans- findings implicit interpretation its fer, equity, the verdict when it acts but retaliation in to promote, the failure conflicting inter- need avoid with other “Acknowledging or retaliation both. Id. pretations of the verdict. verdict,” ambiguity jury’s in the determined, district court based on the ev-

The Seventh Circuit’s decision Miles trial, presented idence at that the retalia- leeway is instructive on the that the Sev- plaintiff tion suffered was with re- provides enth Amendment a district court spect to the transfer and not the failure to ambiguous. when the In verdict is Miles, 600-01; alleging promote. the filed suit that Id. see also id. at 597- out, available) Although definitively pay. we cannot rule it as well as zero front But 12. $457,250 highly unlikely jury jury the awarded seems that the awarded of course com- nothing pay solely pensatory damages Perhaps in front due to zero. —not mitigate jury pay his failure to Failure to did award zero and zero future losses. back mitigate pay mitigate, is also a defense to a back claim. because of failure to and the $457,250 City compensate See entire Cordero-Sacks Hous. Auth. was intended to L.A., though Cal.App.4th Cal.Rptr.3d for emotional distress. Even this situa- (2011) (affirming jury highly unlikely given 896-98 instruction tion seems that Teutsch- plaintiff’s duty mitigate argued on to the to her back er’s counsel emotional damages). ordinarily If the believed Teutscher had distress are tethered to loss, ability mitigate by finding job monetary to the fact that we cannot rule it RSA, paid job holding jury's precludes the same us that the as his at that should out from necessarily have with a reinstate- caused the to award zero back verdict conflicts (or job zero back from the time such a ment award. equitable It then awarded relief consis- Teutscher should 98. have been able to obtain joba interpretation, ordering tent with that as remunerative position as his at reassign defendants to to a RSA the time trial took place, the position supervisory with duties similar to district court would have committed no retaliatory what held before the trans- he Seventh Amendment error proceeding fer. Id. at 598. grant However, to reinstatement. unlike Miles, 600-01, at the district affirmed, explaining The Seventh Circuit court here explicitly did not determine the that the district court did not contravene jury’s basis for the verdict or how it com- Rather, jury’s findings of fact. because ported Instead, with the awards. potential supporting “each of the theories cursorily district court awarded rein- contention,” open the verdict id. [was] statement, stating only that it would “not the district court was free to select antagonistic assume an relationship be- that it found to supported one be best tween merely and RSA [Teutscher] be- by the evidence and determine cause of protracted litigation.” theory. relief accord with that The Sev- explained enth that “if the had explanation, Circuit Because of this lack of ..., promote found retaliation in remand failing ordinarily required be provision then the of supervisory permit duties the district court to evaluate the plaintiff] jury’s alone would not make whole” verdict in the [the first instance and to promotion and the district court’s denial of only reinstatement if it could ex- plain why or front would have doing contravened the so did not conflict with the jury’s findings. Id. But retaliatory interpretation because district court’s theory of the transfer was a permissible interpretation underlying jury’s verdict. Bartee v. Cf. verdict, Am., jury’s Inc., of the the denial of these Michelin N. supervisory remedies and the award of (reversing and remanding entirely keeping instead was with duties award because the district (“If jury’s findings. factual id. court’s “findings See insufficient to [we]re en- jury only reassign- found retaliation in the able ... whether evaluation] [of] position ment to a that lacked supervi- by basing [court] abused its discretion its sory responsibility equitable remedy then providing equita- findings of fact that supervisory ble relief of responsibility implied by conflict with those [the] verdicts”). plaintiff] here, would make [the whole without We decline to remand however, conclude, the need for either a promotion or front because we as ex- below, pay.”). plained that even if reinstatement strictly speaking does not conflict with the The district court in this case likewise jury’s implicit findings, the reinstatement could have determined the basis of the improper for other reasons.13 jury’s shape verdict order to corre- sponding equitable relief. Had the district Y. court permissibly discerned that the finding argues verdict reflected a that Teutscher the district court erred mitigate failed to ordering future losses that reinstatement because of its suggests 13. The concurrence that we are re- er there is a Seventh Amendment violation as reinstatement, versing remedy reversing reinstatement under the we are instead of doing remanding Seventh Amendment. We are not so. in order to avoid the double recov- Rather, identifying ambiguity ery problems after ex- election-of-remedies require plained opinion. a remand to determine wheth- in the next Part of this 954 overlap question with Teutscher’s dam- here

potential is whether award and because Teutscher waived ages unjustly by being Teutscher was enriched he elected to seek reinstatement when granted compensatory reinstatement and jury. agree. pay from the We damages retaliatory as relief for the same discharge. To the extent only The Seventh Amendment is not the pay component award included a front cov limit on a district court’s discretion to ering period during the same which equitable relief: a shape appropriate dis- reinstated, clearly Teutscher would be he awarding trict court must also avoid a was. recovery litigant double for the same Airlines, Inc., Selgas

harm. v. Am. 104 See Reinstatement and front are (1st 1997) 9, (explaining 13 Cir. that a remedies, alternative which cannot be to craft an district court’s discretion equi-, period awarded for the same of time. See is limited the need “to table is, Co., v. E.I. Pollard du Pont de Nemours & duplication”). avoid That even if a dis- 843, 846, 1946, 532 121 acting equity trict court when avoids U.S. S.Ct. 150 (2001) direct conflict with a factual L.Ed.2d 62 (defining pay” “front findings, overlap its award still with “money awarded for compensation lost damages granted by and so during period judgment between provide plaintiff a windfall. The doc- reinstatement”); reinstatement or in lieu of recovery trine of double is concerned with Co., 1456, Smith v. World Ins. 38 F.3d problem. this latter This doctrine “dictates (8th 1994) (“Front 1466 pay may Cir. be punitive damages that ‘in the absence of a of, addition, awarded in lieu but not plaintiff can recover no more than the loss reinstatement.”); Gazette, Morgan v. Ark. actually animating principle suffered.’ The 1990) 945, (“Having 897 F.2d 954 Cir. a simple: plaintiff compensa- is when seeks reinstatement, granted plaintiff] been [the him, wrongs against tion for committed he cannot, also receive an award of front injuries, should be whole for his made Davis, pay.”); Rogers v. Cal.App.4th 28 cf. Columbia, enriched.” Medina v. District (1994) (ex Cal.Rptr.2d 34 719 (D.C. 2011) (citation 643 F.3d Cir. law, plaining that plain under California a omitted) Univ., (quoting Kassman v. Am. remedies, may request tiff alternative “but (D.C. 1976) (per 546 F.2d Cir. may not be awarded both to the extent curiam)); Dopp Corp., see v. HTP such award would constitute a double (1st 1991) (“[T]he 506, 517 law abhors recovery”). This is because front is the duplicative say, recoveries. That is to “monetary equivalent” of reinstatement. plaintiff injured by who is reason aof County, Traxler Multnomah defendant’s ... behavior is entitled to be 1007, 1012 Pollard, (quoting enriched.”). Thus, made whole—not to be 1946). n.3, 532 U.S. S.Ct. A if a plaintiff brings two causes of action— salary reinstated individual will earn the one state and one federal —that arise from job in question, associated with' the so a operative the same facts and seek relief (calculated plaintiff granted both front harm, trial same court must assure job’s salary) based on the and reinstate only that the recovers once. Cf. period ment for the same time would es Medina, 643 F.3d at (explaining over, sentially salary obtain his twice earn “a prohibited allocating is not from ing an undue windfall. single damages award between two dis- recovery easily tinct liability,” only Duplicative theories of from avoided twice). awarding only equitable when is at issue—-the relief may compris- jury only permitted craft an award that the court to deter- district reinstatement, exclusively exclusively ing pay period mine front for an interim until pay or interim front until rein- pay, front the that the point could be rein- The same avoidance stated). statement occurs. when, case, must be achieved this question remains what to do about pay jury is submitted to the to deter- potential overlap. this Faced with a similar (“It F.3d at 176 Squires, mine. See problem potentially duplicative legal front-pay [by true that if was awarded the awards, equitable Eighth the Third and

jury], grant a of reinstatement would raise Circuits decided to a remand for new de- recovery.”); regarding concerns double termination of Squires, remedies. See Selgas, (recognizing 104 F.3d at 13-14 (vacating jury’s 176-77 & n.16 may court hot award reinstate- the district compensa- favor of a new trial on jury’s front overlaps ment that with the tory damages precise with more instruc- award). pay tions); Agriss, Savarese v. 883 F.2d argues Teutscher that there was no ov (3d 1989) (vacating 1205-06 potentially Cir. erlap in this case because it is clear from overlapping compensatory damages award of the verdict that it did not the size back award and remand- Thus, view, him grant pay. his ing trial for a new and recalculation of the district court could order reinstate pay by judge); Greminger back the district duplicating recovery. But ment without Seaborne, 278-79 again ignores problem Teutscher cre 1978) (vacating jury’s monetary judg- object lump- ated his failure to to the remanding ment and for the district jury, form used which sum verdict to determine award of back prevents parsing us from the award. As out-of-pocket expenses that would not con- above, explained way we have no of know flict with its reinstatement reme- assuming that Teutscher is correct in ing dy). think We the better course on this pay, awarded zero front and there simply record is reverse many possible explanations are of the permit reinstatement award and a verdict that would contain front com damages full keep the amount of he jury may ponent. example, For well jury. obtained from the that, effort, with reasonable have decided Teutscher should have been able to find litigation Teutscher’s own two-year more remunerative work than his conclusion. choices are what lead us to this business, it stint at an auto have us, On the record before it is evident that por declined to award him a substantial right Teutscher waived his reinstate pay request, ap tion of his back instead affirmatively ment award when he elected both back and portioning across jury. to seek front from the The elec stated, pay. nothing Simply about doctrine, “refers to tion-of-remedies which presented instructions or evidence pursues situations where individual permits at trial us to conclude that legally factually in remedies that are jury’s damages award and the court’s rein consistent,” operates “prevent[ party a] overlap. statement award do not Sel Cf. obtaining single from double redress for gas, (concluding 104 F.3d at 13-14 & n.9 Burdette, wrong.” Latman v. that a did not over reinstatement (quoting Alexander lap 781-82 with awarded Co., 36, 49, 94 from v. Gardner-Denver 415 U.S. because was clear instruc (1974)), L.Ed.2d 147 abro- presented tions and the evidence at trial S.Ct. 956 sum, In

gated grounds Siegel, having pay on other Law v. submitted front - 1188, did, U.S. -, the the manner that he 134 S.Ct. 188 L.Ed.2d (2014). Teutscher could not then take a second A bound party 146 his election apple by bite at the seeking duplicative of remedies if three conditions are met: reinstatement award from the court.15See “(1) ... two or more remedies existed at Westinghouse Starceski v. Corp., Elec. (2) election, the time of the these remedies 1089, (3d F.3d 1103 & n.17 .Cir. repugnant and inconsistent with each [are] (noting support of its decision that rein- (3) other, party the to be bound ... statement inappropriate ], elected,' affirmatively between chose[ object “failed when the trial (citing the available remedies.” Id. at 782 judge pay, instructed the on front 25 Am. Jur. 2d Election Remedies though even he intended to make a motion 8).14 § reinstatement”). We therefore conclude Each of these conditions is met here. As keep that Teutscher is entitled to full above, explained reinstatement and front (and amount of compensatory punitive) pay are alternative remedies for retaliato- awarded, damages but that ry discharge, which cannot both be award- equitable district court’s reinstatement See, period e.g., ed for same of time. award must be set aside. Pollard, 846, 532 U.S. 121 S.Ct. 1946. VI. proposed instruc- required

tion that to determine note, As a final emphasize we that our compensation the amount of he would have holding jury’s monetary award earned for the remainder of working precluded the district court’s RSA, object life at and he did not when the this case turns on particular charged to include front dam- way in which pursue Teutscher chose to ages lump-sum in its verdict. Teutscher his claims. As the “‘master’ of his com- therefore elected to seek a make-whole plaint,” Teutscher was entitled to decide jury, necessarily from the which rely what law to on and what remedies to included award for the entire pursue. Dwelle, Ultramar Am. Ltd. v. period by any (9th 1990). covered potential reinstate- Cir. There are ment award. ways several likely which Teutscher past 14. We have against ing rights” in the cautioned ov- holding and inconsistent erreliance on the election-of-remedies doc- plaintiff's use of union arbitration did not Haphey County, trine. See v. Linn 953 F.2d (quoting bar his Title VII claim Newman v. (9th 1992) (en banc) (explaining Cir. Corp., Avco 746 n.1 that, relying rather than on election-of-reme- 1971))). principles, preclu- dies “state claim and issue normally sion employed rules should be when argues 15. RSA that the district court addition- considering courts are whether utilization of ally by failing erred to consider Teutscher’s proceedings prevents state court later utiliza- duty mitigate when it awarded him front proceedings”). tion of federal While we be- salary, at Teutscher's full former and that procedural history lieve the of this case ordering it erred in reinstatement and interim squarely implicates the election-of-remedies making requisite finding without doctrine, suggest any- we do not intend possible that it was to return Teutscher to the thing applicability about the of the doctrine in position. same or a similar Because we con- other contexts. See Oubichon v. N. Am. Rock- clude that both the reinstatement Corp., well 572-73 and front awards must be vacated for 1973) (providing ap- that election of remedies reason’s, other we do not reach these issues. plies "only conflicting where and inconsistent sought remedies are basis of conflict- testimony way about the in which her un- pursued have could them, he Among at the same time. relief deservedly poor performance evaluations only pay back from the pursued could have earnings capacity. her future diminished forward-looking remedy jury sought compensating See id. Rather than for this equity.16 court in Alterna- only from the capacity, equitable diminished an requested have tively, Teutscher could pay granted by the court compen- award only that to award jury the be instructed plaintiff pecu- sated the for the immediate that did compensatory relief prospective niary “effects of unlawful [the defendant’s] with an reinstate- overlap not employment” termination of her remedy. ment or front “approximating] amount the benefit [the case, instance, Such was the plaintiff] would have received had she Pharmacia, Inc., 137 F.3d 944 Williams v. job” been able to return to her old —an 1998). (7th There, in- the Cir. year amount that was at a capped earnings” to award “lost future to structed wages position because her would have compensate plaintiff only repu- the for the year been eliminated after a due to merg- result of tational harms she suffered as a at a consequence, jury’s er. Id. 953. As the discrimination, which the defendant’s di- earnings lost future award avoided overlap earnings capacity minished her lifetime equitable remedy with the court’s of one that the generally. (explaining Id. at 952 year pay, of front see id. at and the “characterized the district court jury’s finding plaintiffs about the lost fu- in- earnings for lost future as ‘an award ” earnings capacity pre- ture thus did “analo- tangible nonpecuniary loss’ granting clude the district court from ad- ‘injury to an gized earnings lost future compensate ditional relief to her for lost ‘injury to professional standing’ and to wages during period unemploy- her reputation’”). prove up character and To at request, plaintiff presented expert (explaining the ment.17See id. that even this so, question engaged the in sex discrimination and unlawful 16. Had Teutscher done perhaps by failing promote equitable front could have been retaliation ... [both] advisory terminating employment.” tried to the district court with her ... and her 947; long that choice was clear to the as as 137 F.3d at see also id. at 948-49. Be advance, cause, parties explained, so that the district court as the Seventh Circuit there guided by jury’s non-binding the plaintiff be "front ... affords the the same prove pay finding plaintiff should reinstatement benefit ... as the would have re reinstated,” County, infeasible. See Traxler v. Multnomah ceived and because had she been (9th 2010) (explain Cir. salary plaintiff 596 F.3d the the would have received if court, ing sitting equity, may previous position pre trial "[a] to her reinstated advisory jury” though employ an sumably nevertheless lower than it should have been as with ultimate decision ... rests "[t]he the defendant's unlawful failure to result of court”); her, Elespuru, promote see also Pradier would not have made 1981) ("The 952; parties are plaintiff fully also id. whole. Id. see the trial (characterizing "compen entitled to know at the outset of at 953 made sating] plaintiff] whether the decision will be for the immediate ef [the termination”). judge jury.”). or the unlawful An addi [her] fects of earnings, tional award of lost future which wages Circuit characterized as a recov 17. To the extent the lost future Seventh earning capacity,” ery would have in Williams also have included some "for lost compensated being unfairly passed monetary component year in which her for for the explain- promotion. (quoting plaintiff pay, over for Id. at 952 received front this is , McKnight Corp. particular that case. In v. Gen. Motors able facts of Williams, 1992)). plaintiff presented with evidence— Consistent awards, non-overlapping employer "had nature of these and the found—that her if had been awarded already reinstatement after the had compensated pay, of front lieu Teutscher for monetary harm he suf- entitled compen- “would still have been fered. earnings”). sation for her lost future The district court’s awards this reinstatement, took the form of with front case, however, present problem the exact pay until reinstatement could occur. In they designed that Williams avoided: were addition, awarded Teutscher a remedy precisely the same loss. The lump compensatory sum for damages that Amendment Seventh instructs that it is case, included future earnings. lost In this jury’s pay ques- the decision on the front majority’s the analysis constitutional is respected tion that must be and the court’s based on a conclusion that the factual un- conflicting award that must be derpinnings of the award for future potential set aside. Given the for a windfall earnings lost is identical to those support- light and in of Teutscher’s affirmative elec- ing the district court’s equitable award.

tion seek front pay jury, from the the to court’s reinstatement award must be set I disagree that this is necessarily the aside as well. case. earnings Future lost and

We therefore REVERSE the district designed are different remedies to address court’s awards of reinstatement wrongs, different analyzed and should be pay.18 and front using analytical a different framework. As such, plaintiff can be awarded both with- SMITH, M. Judge, concurring Circuit offending out the Constitution. judgment: the notes, majority As the only the was I judgment concur in the of majority the empowered grant to relief However, opinion. I disagree with ma- Teutscher in the form of compensatory jority’s analysis Seventh Amendment punitive damages on the state law opinion. Part IV of the I disagree that the Maj. Op. court, claims. at 943. The district district court “should have viewed itself as contrast, only was grant “appro- able to bound under the Seventh Amendment” be- priate equitable relief’ on the ERISA cause “Teutscher needed to make the 1132(a)(3); § claim. 29 Maj. U.S.C Op. at same factual showing and to meet 943. The district court was not authorized same defenses” order to obtain both grant relief, Teutscher form legal earnings future lost and reinstatement. including compensatory money damages. Maj. Instead, Op. at 947. I would hold that Assocs., Mertens v. Hewitt 508 U.S. equitable remedy the district court’s discretion, an improper 113 S.Ct. 124 L.Ed.2d abuse of because (1993); the district court did not give why reasons see also McLeod v. Lithoprint Or. Inc., 1996). additional relief appropriate that, explicitly recognized eluding damages past Seventh Circuit and future econom- plaintiff] "[e]ven [the if had been able re- injury. ic and non-economic job, turn to her old could find that injury earning [she] suffered to her future cross-appeal by 18. We address the Teutsch- capacity during period even her reinstate- counsel, Woodson, III, er’s former William N. Here, added). (emphasis ment." Id. at 953 appel- in which RSA and Teutscher are both contrast, was instructed to include in lees, concurrently in a filed memorandum dis- "damages its award all of the that [Teutscher] position. recover,” proven ha[d] he is entitled to in- only gives plain- however, could, reinstate It equitable, reasonably-certain value of is tiff the cash job. “Reinstatement McLeod, earnings particular place relief.” future at a compensatory, it because equitable, is also Front leave the employment might plaintiff 379. still with reinstatement hand-in-hand goes suffering might appropriate- harms that be period between “during used is to be reinstatement, such as a ly remedied with or in lieu and reinstatement judgment job history, track record and restored E.I. Pont Pollard v. du reinstatement.” in future which could assist 843, 846, Co., & 532 U.S. de Nemours employment searches. (2001). Al- 1946, 150 L.Ed.2d 62 S.Ct. remedy can have some way, In this each very look similar though benefits, core of unique though even future lost damages for compensatory (a paycheck) harm lost can be remed- remedy. a distinct Sev- earnings, practical In to this ied either. addition an award of both upheld has enth Circuit distinction, Supreme in Pollard Court pay, earnings lost future distinc- made clear that there is technical not that an award does concluded such damages for compensatory tion between recovery. necessarily a double constitute equitable and earnings future lost Inc., Pharmacia, v. Williams at in lieu of reinstatement. 532 U.S. 1998). This is so because 852, 121 1946. For the two awards to S.Ct. equivalent” “functional is the Amendment, a of the Seventh be violation remedy of reinstatement. Id. equitable moreover, underlying each must the issues earnings, on the other Future lost at 952. equita- be “common to both the and hand, calibrat- compensatory damages are Queen, Wood, Inc. v. Dairy ble claims.” “monetary losses after ed to actual 469, 472, 894, L.Ed.2d U.S. 82 S.Ct. Pollard, at 532 U.S. judgment.” date (1962). although signifi- there is Again, Supreme The Court 121 S.Ct. 1946. compensatory overlap cant between Pollard, when this distinction confirmed they are not iden- equitable inquiries, and sepa- equitable that was it held (both tical. compensatory damages rate from future), and was therefore past and jury in this case was instructed Title subject damages cap under to the present “the cash value calculate Id.

VII. wages benefits that [Teutscher] future that a court also noted The Williams time length for the would have earned compensatory future dam- jury award for rea- Defendant was employment with necessarily factually inconsis- ages was not continue,” award- to be sonably certain to tent with an factual lump implied a sum. The ed as “compensate can because the awards by the were questions to be decided Williams, injuries.” plaintiff for different “reasonably cer- long Teutscher was how (and front 137 F.3d at 953. Reinstatement employment with to continue his tain” job, back in his pay) puts RSA, pay. rate of and his him as if he had been reinstat- pays least and front reinstatement deciding When can be compensatory ed. Future hand, court the district pay, on the other that, encom- broader than significantly whether foremost decide must first and harms, experi- loss of pass reputational ... “appropriate relief is any equitable ence, “forward-looking aspects and other violation. the defendant’s ERISA discriminatory redress” injury by the of the caused 1132(a)(3). majority § As the a 29 U.S.C. Similarly, compensatory Id. conduct.” notes, court should address the district award. Under these circum- stances, expectancy as work-life I confidently factors such do not think we can determination, making this which is similar implication draw the that the district posed jury. Maj. Op. to the question to the unconstitutionally disregarded Moreover, certainly it is at 948-49. correct findings. factual jury’s monetary highly award is however, I concur in the judgment, be- determining what additional relevant I cause believe the district court its abused relief, “appropriate” if is any, in granting discretion reinstatement in this But, view, given my a situation. observes, majority context. As the inquiry issues common to each are not compensate had been asked to precisely giving the same such both for the cash paychecks value of his future trigger awards Seventh Amend- analysis with RSA. The district court’s ment concern. The was asked to con- only paragraph, reinstatement is question sider the narrow of the cash value appears to assume that equita- additional wages of the which Teutscher would have ble relief “appropriate” to redress the certainty. earned at RSA with reasonable ERISA violation over and above the The district court has much wider latitude verdict. If the provided district court had deciding when whether reinstatement reasoning explain why it believed rein- so, “appropriate,” if it whether is feasi- statement was appropriate to redress non- not, ble, pay. and if whether to award front monetary Teutscher, wrongs inflicted on Strain, Downey In 510 F.3d 534 might have articulated a basis for rein- 2007), Fifth Circuit noted that in harmony statement with the “[fjront pay only can be calculated through record, damages award. thin On this how- intelligent guesswork, recognize and we its ever, apparent it is not hap- is what speculative by according character wide Therefore, pened. eq- I would reverse the latitude its determination to the district uitable award as an abuse of discretion. (quoting courts.” Id. Sellers v. Del- Coll., gado

1986)). jury, considerably which has latitude, necessarily engaging

less is in a inquiry

narrower than the one the district empowered court is to undertake. COMPANY, TRADER JOE’S sum, In Pollard instructs us that al- Corporation, a California similar, though they may very look there is Plaintiff-Appellant, compensatory distinction between future and front that we must re- HALLATT, Michael Norman an indi spect. I believe that distinction should ex- vidual, Joe’s, AKA DBA Pirate Tran tend into the Seventh Amendment context Trading, Defendant-Appellee silvania perfectly because often be reason- No. 14-35035 able for a to award compensa- future tory damages and for a district court to Appeals, United States Court of (with award reinstatement or without front Ninth Circuit. pay) way in a factually consistent Argued and Submitted on June jury’s with the verdict. This indicates that Seattle, Washington and factual underpinning issues August Filed Here, the awards are not the same. general, verdict was and the district provided very reasoning little for its

Case Details

Case Name: Scott Teutscher v. Riverside Sheriffs Assn

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 26, 2016

Citation: 835 F.3d 936

Docket Number: 13-56411, 13-56659

Court Abbreviation: 9th Cir.