Court Denies Officer’s Request For 22 Years Of ‘Front Pay’

On May 25, 2012, a jury found that Matthew Weaving, a sergeant with the Hillsboro, Oregon Police Department, had a disability of Attention Deficit Hyperactivity Disorder (ADHD) under the Americans with Disabilities Act and parallel Oregon law. In addition, the jury found that the City failed to reasonably accommodate Weaving’s ADHD and that Weaving was discharged because he had ADHD. Accordingly, the jury awarded Weaving $75,000 in compensatory damages.

A federal trial court had to decide what other remedy should be awarded Weaving beyond simply back pay. Two other remedies were possible – reinstatement, and so-called “front pay.”

Weaving had not been employed since being terminated by the City and had been unsuccessful in finding employment even though he applied for 132 jobs and had been interviewed approximately 17 times. Weaving testified that it was “highly unlikely” that he would be able to find another job in law enforcement, in part, because police departments generally frown upon people who bring legal actions against their employers. Weaving testified that if he was unable to find a job in law enforcement, he might consider going back to school to become a paralegal.

Though the evidence was that Weaving’s ADHD did not prevent him from doing the essential functions of the job of a police officer, the Court observed that there was “hostility and antagonism between Weaving and the Police Department, including hostility and antagonism between Weaving and his former supervisors, other sergeants at the Police Department, and police officers at the Police Department. Indeed, a deputy chief testified that he did not want Weaving to return to the Police Department. In addition, there are no police sergeant positions available at the Police Department. Thus, if this Court were to reinstate Weaving as a police sergeant, current police sergeants would either have to be fired or demoted.”

The Court decided that reinstatement was inappropriate: “With respect to reinstatement, the preponderance of the evidence shows it is not feasible to reinstate Weaving to his former position as sergeant at the Police Department because it is impossible to do so at this time. The position Weaving seeks is currently filled and would require the City to fire or demote current police sergeants at the Police Department. Weaving presented no evidence to the contrary or otherwise demonstrated that the position he seeks is available. In addition, the preponderance of the evidence demonstrates that reinstating Weaving to his former position as sergeant at the Police Department would not be appropriate because of the excessive hostility and antagonism between the parties.”

As to front pay, the Court found that “an award of back pay is appropriate to advance Congress’ intent to make persons whole for injuries suffered through past discrimination. Back pay is typically computed from the date of the discriminatory act until the date of final judgment. Reinstatement, when it is feasible, is the preferred remedy in a discrimination suit. Nonetheless, awards of front pay are appropriate when it is impossible to reinstate the employee or when it would be inappropriate due to excessive hostility or antagonism between the parties. Front pay is the term used to describe damages paid as prospective compensation for training or relocating to another position.”

Weaving presented three scenarios under which he sought front pay: (1) Where Weaving would return to work in law enforcement; (2) where Weaving would return to work outside of law enforcement; and (3) where Weaving would return to school for additional education and then return to work outside of law enforcement.

The Court concluded that the evidence “establishes that Weaving is not going to be rehired in law enforcement. The evidence also demonstrates that Weaving is not going back to school. Although Weaving has considered going back to school to become a paralegal, Weaving presented no evidence whatsoever that he has taken any affirmative action to return to school, including evidence showing he has applied for college, applied for or inquired about student loans or other financial aid, interviewed with any school, or even contacted any school that he would be interested in attending.

“The preponderance of the evidence, however, demonstrates that Weaving is able to return to work outside of law enforcement. Weaving presented earnings figures for the amount of front pay to which he would be entitled if he were to return to work outside of law enforcement. The earnings figures provided by Weaving run up until February 20, 2034 – the day he plans to retire at age 67. To the extent Weaving seeks front pay for the next 22 years up until February 20, 2034, I find that such an award is not supported by the evidence. Weaving failed to present by a preponderance of the evidence that he would have worked up until February 20, 2034, as a police sergeant at the Police Department. It is also worth noting that Weaving even failed to present any evidence whatsoever regarding his life expectancy.

“Considering all the evidence in the record, I find that it would be unduly speculative and uncertain to conclude that Weaving would have continued his employment for the next 22 years as a police sergeant with the Police Department had he not been terminated by Defendant. Suffice it to say, 22 years is a long time, and much can happen over that period. Weaving inappropriately leaves too much for speculation. In addition, the preponderance of the evidence does not support the conclusion that Weaving would never attain a level of earnings comparable to what he made as a sergeant at the Police Department. Weaving is only 45 years old, which this Court finds to be a relatively young age. He is educated and has a college degree. In addition, Weaving demonstrated that he is intelligent and has been able to rise up quickly in his professional career.

“When considering all of the evidence, this Court finds that an award of front pay up until December 31, 2016, based on the earnings figures provided by Weaving is appropriate. Accordingly, I conclude that Weaving is entitled to an award of front pay up until December 31, 2016, totaling $330,807.”

Weaving v. City of Hillsboro, 2012 WL 2367125 (D. Or. 2012).