resulting from discrimination that an employment discrimination plaintiff is projected to incur after the trial of her case. The employee bears the burden to present evidence supporting her entitlement to a front pay award. The First Circuit Court of Appeals in Boston recently set forth eleven (11) factors that a court may consider in determining whether a front pay award is justified: (1) the plaintiff’s age; (2) the length of time the plaintiff was employed by the defendant employer; (3) the likelihood the employment would have continued absent the discrimination; (4) the length of time it will take the plaintiff, using reasonable effort, to secure comparable employment; (5) the plaintiff’s work and life expectancy; (6) the plaintiff’s status as an at-will employee; (7) the length of time other employees typically held the position lost; (8) the plaintiff’s ability to work; (9) the plaintiff’s ability to work for the defendant employer; (10) the employee’s efforts to mitigate damages; and (11) the amount of any liquidated or punitive damage award made to the plaintiff.
In the case of Franchina v. City of Providence, 881 F.3d 32 (1st Cir. 2018); the First Circuit affirmed a $545,000.00 front pay award to a firefighter who suffered virulent harassment and retaliation and suffered disability as a consequence. The harassment suffered by Ms. Franchina was “vile,” as the First Circuit characterized it. The harassment began with a male firefighter taunting Ms. Franchina for being a lesbian. “Are you a lesbian?” the male firefighter inquired of Ms. Franchina upon being introduced to her for an assignment on which she was to be his superior. “Do you want to have children?” he asked her. “I could help you with that.” Later that same day, the male firefighter approached her at a hospital where she was gathered with other firefighters in the presence of doctors, nurses, patients and their families. “My lesbian lover!” he screamed as he rubbed his nipples in a circular fashion, “How are you doing?” In the last event of this eventful day, the male firefighter barged into Ms. Franchina’s personal quarters at the station where she was in her undergarments and refused to leave.
The male firefighter’s conduct that day led to a disciplinary hearing being scheduled on whether he should retain his job. Once word spread about the disciplinary hearing, other firefighters began treating Ms. Franchina with contempt and disdain. They referred to her as “Frangina” and repeatedly called her other sexual epithets. An officer purposefully pushed her into a wall. A subordinate flicked her lieutenant’s insignia on her collar and said, “I will never take a f***ing order from you.” She was spit upon and sworn at. In arguably the most egregious incident, a male firefighter flung blood and pieces of brain matter from a person who had attempted suicide at Ms. Franchina, causing the bloody debris to land in her face, nose, hair, neck, eyes, ears and mouth.
Ms. Franchina developed severe post-traumatic stress resulting from the numerous work-related incidents she endured, leading to her permanent disability from work as a professional firefighter—a finding that the City of Providence did not contest. The Court found that the $545,000.00 front pay award was supported by this finding of permanent disability from fire service work, together with evidence that Ms. Franchina’s annual earnings during her employment ranged from $98,000.00 to $130,000.00 and evidence that numerous other employees remained with the Fire Department for 30-35 years given that the Department’s pension structure encouraged employees to remain with the Department for great lengths of time. Notably, the Court rejected the defendant’s argument that Ms. Franchina’s failure to proffer expert testimony on the amount of her front pay award warranted vacating the award, holding, “we decline to adopt an absolute rule mandating the presentation of expert testimony in every instance in determining future pay.”
If you need assistance with an employment discrimination matter, you should contact an attorney experienced in litigating such matters such as Benjamin T. King, Esquire. Attorney King can be reached at (603) 288-1403 or fill out our online contact form.