Last week, the Sixth Circuit affirmed that disabled Army veteran, James McKelvey was only entitled to reinstatement and back pay on his constructive discharge claim, in lieu of a $4.4M jury award for front pay. McKelvey v. Secretary, No. 10-1172 (Dec. 14, 2011).

After returning from Iraq in 2006, McKelvey obtained employment as a civilian operations specialist with the Secretary of the United States Army (Secretary), in Michigan. McKelvey resigned two months later, however, and brought suit alleging, in relevant part, hostile work environment and constructive discharge.

At trial, a jury found in McKelvey’s favor on both counts, awarding no compensable damages on the hostile work environment claim and $4.4 million in front pay on the constructive discharge claim.  The district court, however, vacated the jury award, granted judgment as a matter of law and ordered reinstatement as the appropriate remedy.

The Sixth Circuit reversed the district court, in part, holding judgment as a matter was improperly granted because reasonable jurors “could have gone either way on this issue,” finding the “repeated…taunting” went beyond what one finds in even an ordinary hostile work environment and that resigning after two months was too short a gap to say, as a matter of law, that McKelvey’s workplace was no longer intolerable or precluded a finding of constructive discharge.

But the Sixth Circuit affirmed the district court’s decision to vacate the $4.4 million verdict, finding no abuse of discretion in awarding reinstatement in lieu of a front pay award. The Court noted that reinstatement “is the presumptively favored equitable remedy” when an employee is improperly discharged. In addition, the Sixth Circuit looked at the test outlined in Roush v. KFC Nat’l Mgmt, Co., 10 F.3d 392, 399 (6th Cir. 1993) in deciding whether to award front pay and found sufficient grounds for the lower court’s decision not to grant that type of relief. The Sixth Circuit noted that while it is within the authority of a court to award front pay, there is no case law identifying a court’s decision not to award front pay as an abuse of discretion.