There are few things I like better than prospecting for useful case law nuggets. Over the weekend, I found a small nugget from the U.S. District Court for the Western District of Texas in Dube v. Texas Health and Human Services Commission, et al., decided June 25.
Here’s the drill: A plaintiff sues for employment discrimination over her termination and, as part of her relief, seeks reinstatement. But most plaintiffs, when pressed in their deposition on whether they really want reinstatement, almost always play coy, saying maybe yes, maybe no. According to the court’s order in Dube, this is exactly what the plaintiff did, testifying in her deposition that she
was not interested in coming back to work “at this moment.” The employer filed a motion for summary judgment, asking the court to exclude reinstatement as a remedy. The plaintiff responded with an affidavit stating that she did not like the idea of relocating to Texas (she had moved out of state after her termination), but, “[I]f I win this case, and I am eligible for reinstatement,
I want to be reinstated.” Well, the court granted summary judgment on the claim for reinstatement. Nice one.
And here is the real gleam of gold: Front pay is only available to a plaintiff who first seeks reinstatement. If a court determines that reinstatement is not feasible, then it can award front pay.
So, a plaintiff who does not seek reinstatement, waives it, or gets the remedy axed in summary judgment is therefore unable to recover front pay. Nice nugget.