In mediation, we often challenge one another’s valuation of the claim. What will the jury think this violation of the law is worth? In employment cases, we often have one “hard number” to start with: lost wages. Lost wages represent the wages the employee/plaintiff would have earned if s/he had remained employed by Defendant up to the current date. Then this amount is reduced by any wages earned by Plaintiff through subsequent employment. Next, we look at front pay, which represents the salary which would have been paid by Defendant and earned by Plaintiff in the future, going beyond the current date. Often, Plaintiff will assert s/he would have continued to work for Defendant until retirement. Knowing the annual salary and Plaintiff’s age make this calculation easy.
Recently, the MO Court of Appeals upheld an award of front pay in PITCHER v. CENTENE Corp, No. WD82564. (Mo App WD 2020). Plaintiff had been employed in Lenexa, Kansas as Director of a Pharmacy owned by Acaria Health, a sub of Centene, beginning in 2014. In 2016 Plaintiff raised a concern about the legality of a transaction involving a Medicaid recipient. Subsequently, Plaintiff was criticized by her employer including receipt of a “Last Chance Agreement” calling her conduct unprofessional and unacceptable. Prior to raising the concern, Plaintiff had received no verbal, written discipline or counseling. Several months later, Defendant fired Plaintiff. Plaintiff filed a retaliatory discharge suit in Missouri. The case was tried to a jury in Jackson County, Missouri in 2018 resulting in a $1.3 million verdict in Plaintiff’s favor. The verdict was comprised of $80,000 in compensatory damages and $750,000 in punitive damages. Soon thereafter, the court awarded additional equitable relief in the form of front pay of $525,449.
Defendant appealed the total $1.825K award presenting numerous arguments including the inappropriateness of front pay and lack of jurisdiction by the Missouri courts. In 2020 the appellate court ruled in favor of Plaintiff and affirmed the full award.
Interesting case, yes? Maybe front pay should be a bigger element in valuing employment cases in mediation—this case surely proves that courts are comfortable awarding big numbers as front pay.
Here are some factors, I suggest impact front pay damages:
-Plaintiff’s age—the closer to retirement Plaintiff is, the more likely the jury will award damages up to that easy-to-use hard stop.
-Number of years Plaintiff worked for Defendant—longer tenure means front pay is more likely.
-Ease of transition-the more technical or highly skilled Plaintiff is, more likely a Plaintiff is to receive front pay. For example, it is tougher for a Director of Pharmacy to find a new comparable job than an unskilled worker.
Refer to: https://www.courts.mo.gov/file/WD/Opinion_WD82564.pdf
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