[co-author: Hope Kurtela]
An advisory jury’s substantial front pay award to a plaintiff in a retaliation case was drastically reduced by the judge.
Last fall, a jury sat for a five-day trial in federal court in Boise, Idaho. The plaintiff had brought claims of sex discrimination, harassment, and retaliation against her former employer. She brought these claims under both federal law, the Civil Rights Act of 1964 (“Title VII”), and state law, the Idaho Human Rights Act (“IHRA”). By the time the case went to trial, two questions remained for the jury: Did the plaintiff prove her retaliation claim under state and federal law? If so, what were her damages?
After deliberation, the jury found that (1) the plaintiff had shown retaliation, and (2) her damages were a stunning $300,000 in back pay plus $1.35 million in front pay, for a total of $1.65 million in damages (plus prejudgment interest and possible attorney fees and costs award).
But that’s not where the case ended. Just recently, the judge decreased the front pay award by over a million dollars, from $1.35 million to $130,333.
The plaintiff had worked as a part-time receptionist and then a full-time scheduler at the defendant NS Support, a neurosurgical clinic. She alleged that a doctor there made inappropriate comments about her national origin and inappropriate and disparaging statements about another doctor’s ethnicity. She also alleged that he had made uncomfortable sexual comments and gestures to her, and massaged her shoulders and back without her consent, among other things. Plaintiff claimed that after she spoke with other employees about her intent to report the doctor’s misconduct, her employment was terminated.
The court granted summary judgment to the employer with respect to the plaintiff’s hostile work environment (harassment) claim, finding that the plaintiff had failed to show that the doctor’s comments and conduct related to her sex and national origin were so severe and pervasive that they altered the terms of her employment. However, her retaliation claim survived summary judgment and went to trial.
Plaintiff sought damages in the form of both front pay and back pay. Back pay compensates plaintiffs for lost wages and benefits between the time of discharge and the trial court judgment. Front pay is more future-looking, awarding damages for lost compensation during the period between judgment and reinstatement, or in lieu of reinstatement where it is not practical.
Under Title VII, front and back pay are equitable remedies awarded by the court. Idaho law is different: under the IHRA, front and back pay are legal remedies awarded by a jury. Here, where both legal and equitable claims were present, the court held that it would empanel an “advisory” jury on the issue of equitable damages under Rule 39(c) of the Federal Rules of Civil Procedure. Notably, with an advisory jury, the court would not be bound by the jury’s determination.
As noted above, last fall the jury found the defendant liable for retaliation and awarded the plaintiff $300,000 in back pay and $1.35 million in front pay. On June 15, 2023, however, the court issued its Findings of Fact and Conclusions of Law on Issues of Front and Back Pay. The court adopted the jury’s finding of $300,000 in back pay, but declined to adopt the jury’s front pay award, finding the front pay period determined by the jury—31 years—too speculative to stand and contrary to the general Ninth Circuit rule that “front pay is intended to be temporary in nature.” Such an award, in the court’s opinion, would constitute an unjustified windfall.
Exercising its discretion with respect to the advisory jury award, the court shortened the front pay period to 2.25 years, thus lowering the award of front pay to $130,333—a roughly 90% decrease. Thus, in total, the court awarded plaintiff back pay for a period of 3.75 years, and front pay for an additional 2.25 years, giving the plaintiff a total of roughly six years to mitigate her damages.
As this case shows, Idaho juries may be willing to award huge sums of money, well over a million dollars, in certain employment cases. With so much at stake, this case highlights the impact of an advisory jury versus a jury whose decision is binding. Here, because the jury was advisory as to damages, the court was able to decrease the front pay award by over $1.2 million, or 90%—no doubt a substantial change for the parties involved.
 Colo v. NS Support, LLC, No. 1:20-cv-00437-DKG, Dkt. 85 (Verdict Form) (D. Idaho Sept. 30, 2022).
 Id. Dkt. 18 (Second Amended Complaint) (D. Idaho March 31, 2021).
 Id. Dkt. 40 (Memorandum Decision and Order Re: Motion for Summary Judgment), 2022 WL 2528266, slip op. at *8 (D. Idaho July 7, 2022).
 See id. Dkt. 97, 2023 WL 4034208 , slip op. at *16 (D. Idaho June 15, 2023).
 Id. at *24 (quoting Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1347 (9th Cir. 1987)).