PRESENT: All the Justices
HENRY LEWIS OPINION BY v. Record No. 131308 JUSTICE ELIZABETH A. McCLANAHAN APRIL 17, 2014 CITY OF ALEXANDRIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA James C. Clark, Judge
Henry Lewis (Lewis) claims the circuit court erred in
declining to award reinstatement, front pay and/or compensation
for lost pension benefits in his wrongful termination action
against the City of Alexandria (the City) under Code § 8.01-
216.8 of the Virginia Fraud Against Taxpayers Act (VFATA), Code
§§ 8.01-216.1 through -216.19. We disagree and will affirm the
judgment of the circuit court.
I. Background
The City hired Lewis in January 2008 as a senior project
manager in its Capital Projects Division of the Department of
General Services (the Department). Lewis was assigned to manage
the construction of a new police and emergency communications
facility (hereinafter, the police facility project), and worked
in that capacity until August 2011, when the City terminated his
employment.
Lewis sued the City alleging "unlawful retaliation and
discrimination" in violation of Code § 8.01-216.8, based on his
alleged wrongful termination. Specifically, Lewis claimed the City retaliated and discriminated against him by terminating his
employment in response to complaints he made about Jeremy McPike
(McPike), a Deputy Director, and then Director, of the
Department (when McPike became Lewis' direct supervisor). Lewis
complained to various individuals in the Department that McPike
approved payments of certain false invoices submitted to the
City by the construction company serving as the "construction
manager" for the police facility project. These complaints
caused acrimony between Lewis and McPike, as well as between
Lewis and the construction manager, which, Lewis claimed,
eventually led to his wrongful termination.
Lewis sought an award of two times the amount of back pay
(as liquidated damages), reinstatement, special damages,
including lost pension benefits, and "any other relief provided
for in Code § 8.01-216.8." To the extent the circuit court
determined that reinstatement was "impractical and unworkable,"
Lewis requested in the alternative that he be awarded front pay 1 (i.e., lost future earnings).
1 See Johnson v. Spencer Press of Maine, Inc., 364 F.3d 368, 379 (1st Cir. 2004) (explaining that "[a]n award of back pay compensates plaintiffs for lost wages and benefits between the time of discharge and the trial court judgment," whereas "[f]ront pay . . . compensates plaintiffs for lost wages that may accrue after the conclusion of the trial"). 2 On Lewis' pretrial motion, the circuit court ruled that a
jury would decide whether the City violated Code § 8.01-216.8 in
terminating his employment and, if so, decide his claim for back
pay. If the jury found in favor of Lewis, his other remedial
requests would then be treated as requests for equitable relief
and thus decided by the circuit court.
Unlike the issue of liability, evidence regarding the
amount of back pay that would be owed to Lewis upon a finding of
wrongful termination was undisputed. Approximately nine months
after his termination, Lewis secured new employment with the
Prince George's County, Maryland, Public Schools in June 2012,
earning approximately ten thousand dollars a year less than he
earned with the City. Accordingly, Lewis' expert witness in the
field of economic damages, Joel Morse, Ph.D. (Morse), testified
that Lewis' back pay would equal the rate of his salary with the
City as applied to the period extending from the time of his
termination (August 2011) to the time of trial (March 2013),
less the earnings he received from his new employment during
that same period.
Morse then testified outside the presence of the jury
regarding his analysis in support of Lewis' claims for front pay
and compensation for lost pension benefits. Although it is
somewhat unclear from the record, Lewis has asserted below and
maintains on appeal that Morse's testimony established that his
3 lost front pay through age 65 (Lewis was 58 at the time of
trial) was $57,178. 2 As to the pension-related claim, Morse
explained that Lewis' pension with the City had not vested at
the time of his termination. Lewis would have been required to
work for the City for another year and a half for his pension to
vest. Nevertheless, according to Morse, Lewis was "denied the
value [of that pension] between age 65 and 80 [Lewis' life
expectancy]," the present value of which was $175,130. Morse
further explained, however, that if Lewis worked to age 68 in
his current position, he would receive a pension from the State
of Maryland.
The jury returned a verdict in favor of Lewis and awarded
damages of $104,096 in back pay. Lewis accordingly moved the
court to include liquidated damages to this award pursuant to
Code § 8.01-216.8, which would double the back pay award
resulting in a total of $208,192. The circuit court granted the
motion.
2 During his testimony, Morse relied on a chart that was only used as demonstrative evidence, which may have shown this front pay figure. Morse did testify, however, that based on his calculations Lewis' back pay and front pay combined would total $161,228. We will simply assume, for purposes of this opinion, that $57,178 was Morse's front pay figure, but hold that the circuit court did not abuse its discretion in declining to award this sum to Lewis as front pay. 4 Lewis then moved the circuit court "to use its equitable
powers" to award additional relief against the City, including
"reinstatement . . . or if reinstatement is not feasible, in the
alternative . . . an award of front-pay in the amount of
$57,178.00"; and an award "for his loss of pension benefits in
the amount of $175,130." 3 The circuit court declined to award
reinstatement, front pay or pension compensation. On a motion
for reconsideration, Lewis again asked the circuit court to
award front pay and pension compensation, but abandoned his
claim for reinstatement. The circuit court again denied this
requested relief in its final order. In reaching this decision,
the circuit court reasoned that Lewis had been "made whole" by
the jury's verdict and the circuit court's other awards in his
favor. The circuit court otherwise found that the claims for
front pay and pension compensation were "subject to too much
speculation."
II. Analysis
On appeal, Lewis asserts in his sole assignment of error
that the circuit court erred in declining to award
3 In addition, Lewis requested (i) an award of attorneys' fees, as expressly provided for in Code § 8.01-216.8, (ii) payment for his unused vacation leave, and (iii) expungement of all disciplinary actions entered on his employment file with the City. The circuit court ruled in Lewis' favor on these three requests, which included awards of $243,684.12 in attorneys' fees and costs, and $8,181 for loss of vacation pay. None of these awards are at issue in this appeal. 5 "reinstatement, front pay and/or compensation for his lost
pension" under Code § 8.01-216.8. In requiring that we review
the circuit court's construction and application of the
statute's remedial provisions, this appeal presents a case of
first impression in this Court.
A. Code § 8.01-216.8
Code § 8.01-216.8, the VFATA's anti-retaliation provision,
creates a cause of action for wrongful termination resulting
from the reporting of potential false claims against the
Commonwealth and its subsidiaries. 4 Thus, upon establishing that
the City terminated his employment in violation of the statute,
Lewis was entitled to seek the relief expressly provided
therein. The statute states that such an employee "shall be
entitled to all relief necessary to make that employee . . .
whole." Code § 8.01-216.8. The statute further states that
"[r]elief shall include reinstatement[,] two times the amount of
back pay, interest on the back pay, and compensation for any
4 The VFATA is based on the federal civil False Claims Act (FCA), 31 U.S.C. §§ 3729-3733. The relief provided in Code § 8.01-216.8 of the VFATA is, in fact, identical to the relief provided in the FCA under 31 U.S.C. § 3730(h)(2). The FCA cases thus provide guidance for our review in this appeal. We also find guidance in cases addressing other federal statutory schemes containing anti-retaliatory relief for wrongful termination, specifically the Age Discrimination in Employment Act (ADEA) (29 U.S.C. § 626(b)), the Family Medical Leave Act (FMLA) (29 U.S.C. § 2617(a)(1)(B)), and Title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e-5(g)). 6 special damages sustained as a result of the discrimination,
including litigation costs and reasonable attorneys fees." Id.
B. Reinstatement
As to the circuit court's denial of his claim for
reinstatement, Lewis cannot make the argument on appeal that the
circuit court erred in not awarding such relief. Lewis
abandoned that claim at the hearing on his motion asking the
circuit court to reconsider its earlier denial of reinstatement,
front pay and pension compensation.
Lewis' counsel began his argument in support of the motion
by stating that Code § 8.01-216.8 "says the [c]ourt shall award
all relief necessary, including reinstatement," but then
asserted that "quite frankly, reinstatement is almost never
practical." At that point, the circuit court judge interjected
by asking, "Can we agree that reinstatement is just not an
option here[?]" Lewis' counsel responded, "Fair enough, Judge,"
after the circuit court judge went on to explain that his
question was based on the evidence at trial of "obvious
acrimony," which led him to believe that reinstatement was "not
an option."
Moreover, even after assigning error to the circuit court's
decision not to award reinstatement, Lewis states on brief in
this appeal that "the circuit court likely enjoyed the
discretion to determine that reinstatement was impractical,
7 particularly given the parties' animosity and the fact that
Lewis had secured new employment." A party "'may not approbate
and reprobate by taking successive positions in the course of
litigation that are either inconsistent with each other or
mutually contradictory.'" Rowe v. Commonwealth, 277 Va. 495,
502, 675 S.E.2d 161, 164 (2009) (quoting Cangiano v. LSH Bldg.
Co., 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006)). Therefore,
we leave for another day our consideration of the parameters of
the statute's reinstatement provision.
C. Front Pay
We agree with the parties that the circuit court's
treatment of Lewis' claim for front pay as a request for
equitable relief under Code § 8.01-216.8 was correct. See Board
of Supervisors of James Cnty. v. Windmill Meadows, LLC, 287 Va.
170, 175, 752 S.E.2d 837, 839 (2014) (on appeal, circuit court's
statutory construction is subject to de novo review (citing
Newberry Station Homeowners Ass'n v. Board of Supervisors, 285
Va. 604, 611, 740 S.E.2d 548, 552 (2013))). That ruling, which
was consistent with the treatment of front pay claims in FCA,
FMLA, Title VII and ADEA cases, meant that the circuit court's
subsequent decision regarding whether to award front pay was
committed to its discretion. See, e.g., Nichols v. Ashland
Hosp. Corp., 251 F.3d 496, 503-04 (4th Cir. 2001) (FMLA); Selgas
v. American Airlines, Inc., 104 F.3d 9, 12-13 & n.2 (1st Cir.
8 1997) (Title VII); Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424
(4th Cir. 1991) (ADEA); Wiehua Huang v. Rector and Visitors of
the Univ. of Va., 2013 U.S. Dist. LEXIS 34186, at *39-40 (W.D.
Va. March 7, 2013) (FCA) Wilkins v. St. Louis Housing Auth., 198
F.Supp.2d 1080, 1091-92 (E.D. Mo. 2001) (FCA). We therefore
also agree with the parties that this Court's review of the
circuit court's denial of front pay is subject to an abuse of
discretion standard. See Landrum v. Chippenham & Johnston-
Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 136-37
(2011) (analyzing abuse of discretion standard); Bentley Funding
Group, L.L.C. v. SK&R Group, L.L.C., 269 Va. 315, 323-24, 609
S.E.2d 49, 53 (2005) (circuit court's exercise of discretionary
authority in equity reviewed under abuse of discretion
standard).
Lewis argues the circuit court abused its discretion in not
awarding front pay under Code § 8.01-216.8 in the amount of
$57,178, based on testimony of his economic damages expert. The
circuit court had to award at least "some amount of front pay in
lieu of reinstatement," Lewis contends, or "explain why front
pay was somehow unnecessary to make Lewis whole." (Emphasis
omitted.) With this, we disagree.
9 Code § 8.01-216.8 nowhere mentions the words "front pay." 5
Thus, to the extent front pay is an available remedy under the
statute in an appropriate case, it would necessarily be awarded
under the statute's provision for recovery of "any special
damages sustained as a result of the discrimination," which are
not defined in the statute. Id. Furthermore, the overriding
consideration under the express terms of the statute is not that
the plaintiff be awarded any particular kind of relief, or
combination of remedies, as "special damages." Id. Rather, it
is ultimately a matter of compensating the plaintiff with
"relief necessary to make [him] whole." Id. See Hammond v.
Northland Counseling Ctr., Inc., 218 F.3d 886, 892 (8th Cir.
2000) (the FCA's anti-retaliation statute has same "overarching
purpose").
It is true that front pay is commonly given consideration
as an equitable remedy in the alternative to reinstatement in
cases decided under anti-retaliation statutes for wrongful
termination, including the FCA. See Wilkins, 198 F.Supp.2d at
1091 ("While the FCA does not specifically include front pay as
a remedy available to the court to effect full compensation, the
court concludes that Congress intended that front pay be awarded
5 Nor is front pay expressly provided as a remedy in the anti-retaliation provisions of the FCA, ADEA, FMLA or Title VII. See supra note 4. 10 in the appropriate case to effect the express Congressional
intention that a claimant under § 3730(h) be made whole."
(internal citation omitted)). But front pay is not awarded as a
matter of course when reinstatement is denied. As the United
States Court of Appeals for the Fourth Circuit has counseled,
"front pay may serve as a substitute or a complement [to
reinstatement]. Because of the potential for windfall, however,
its use must be tempered." Duke, 928 F.2d at 1424. Hence,
"[i]ts award, as an adjunct or an alternative to reinstatement,
must rest in the discretion of the court in shaping the
appropriate remedy." Id. Similarly mindful that the plaintiff
should not receive "a windfall, rather than compensation" in an
FCA case, the United States Court of Appeals for the Eighth
Circuit held in Hammond that the plaintiff was not entitled to
either reinstatement or front pay, even though there was factual
support for an award of other FCA damages and attorneys' fees.
218 F.3d at 892-95. See Moysis v. DTG Datanet, 278 F.3d 819,
829 (8th Cir. 2002) (trial court did not abuse its discretion in
declining to award front pay because, "in light of the current
employment [of plaintiff] and back pay and compensatory awards,
an award of front pay would be an unnecessary windfall to
[plaintiff]"). 6
6 Code § 8.01-216.8 makes no express provision for front 11 Here, the circuit court found that Lewis was "made whole"
under Code § 8.01-216.8 without an award of front pay, based
upon (i) the jury's award of $104,096 in back pay and the
circuit court's doubling of that award as liquidated damages,
for a total award of $208,192; (ii) the circuit court's award of
$8,181 for lost vacation pay; and (iii) the circuit court's
award of $243,684.12 in attorneys' fees. In light of these
awards, we cannot say that the circuit court abused its
discretion in declining to award front pay to Lewis in the
amount of $57,178, as requested, particularly given that his
liquidated damages award was nearly twice the amount of his
claim for front pay.
We find support for this conclusion in Dotson v. Pfizer,
Inc., 558 F.3d 284 (4th Cir. 2009), a FMLA wrongful termination
case in which the plaintiff was awarded liquidated damages, but
not front pay. Like Lewis, the plaintiff in Dotson argued that
the trial court erred by considering "the role played by the
pay. As explained above, absent an award of reinstatement, front pay is an equitable remedy that may be awarded, in the circuit court's discretion, as an alternative to reinstatement. The overarching requirement under the statute is that the plaintiff be made "whole." Id. Consequently, absent reinstatement, an award of front pay is not required as a matter of law in any case apart from consideration of the other relief, if any, awarded under the statute in making the plaintiff whole, as decided by the circuit court in its sound discretion.
12 liquidated damages [award] in making him whole" when the trial
court declined to award front pay. Id. at 300-01. The Fourth
Circuit held that the trial court did not abuse its discretion
in making this ruling, explaining that "it is difficult to
understand why a lower court cannot consider the role of
liquidated damages in reaching [the FMLA anti-retaliation
provision's] overarching goal" of making the plaintiff whole.
Id. at 301. Other courts have similarly recognized that an
award of liquidated damages may justify the denial of front pay.
See, e.g., McNeil v. Economics Laboratory, Inc., 800 F.2d 111,
118 (7th Cir. 1986) (explaining that "front pay may be less
appropriate when liquidated damages are awarded"); Wildman v.
Lerner Stores Corp., 771 F.2d 605, 616 (1st Cir. 1985) ("Because
future damages are often speculative, the district court, in
exercising its discretion, should consider the circumstances of
the case, including the availability of liquidated damages.");
Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir. 1992)
("We agree with the Seventh and First Circuits that a
substantial liquidated damage award may indicate that an
additional award of front pay is inappropriate or excessive.");
Cancellier v. Federated Dep't Stores, 672 F.2d 1312, 1319 (9th
Cir. 1982) ("[A]vailability of a substantial liquidated damages
award may be a proper consideration in denying additional
damages in lieu of reinstatement."); see also Bergerson v. New
13 York Office of Mental Health, 652 F.3d 277, 288 (2d Cir. 2011)
(explaining, in an ADEA wrongful termination case, that "[a]n
award of front pay is discretionary, and if a district court
makes a nonerroneous 'specific finding' that a plaintiff has
already been made whole, no abuse of discretion can be found in
denying front pay"). 7
D. Compensation for Lost Pension Benefits
Finally, Lewis argues that the circuit court abused its
discretion in denying his claim against the City for lost
pension benefits in the amount of $175,130. As with front pay,
Code § 8.01-216.8 does not expressly provide for relief
pertaining to lost pension benefits. Thus, to the extent such
relief may be awarded, it too would necessarily be awarded as an
equitable remedy for "special damages." Code § 8.01-216.8. See
7 Because of the quantitative comparison of Lewis' front pay claim to his liquidated damages award, justifying the circuit court's denial of an award of front pay, we need not address the circuit court's determination that his front pay claim was otherwise too speculative. We nevertheless note that it is, of course, well established under applicable case law that the longer the period over which front pay is requested, the more speculative a front pay award becomes. Downey v. Strain, 510 F.3d 534, 545 (5th Cir. 2007) Here, Lewis sought an award of front pay through age 65, a period of nine years from the date of his termination and seven years from the date of trial. Compare, id. at 544-45 (affirming trial court's two year front pay award); Dollar v. Smithway Motor Xpress, Inc., 710 F.3d 798, 808-811 (8th Cir. 2013) (reversing trial court's ten year front pay award).
14 Blum v. Witco Chem. Corp., 829 F.2d 367, 373-74 (3rd Cir. 1987)
(treating claim for lost pension compensation under the ADEA as
claim for equitable relief). Accordingly, as noted in regard to
Lewis' claim for front pay, we conclude that the decision
whether to award lost pension compensation to Lewis was
committed to the circuit court's discretion, and that his appeal
of the circuit court's denial of this claim is likewise subject
to an abuse of discretion standard of review.
The salient facts before the circuit court relevant to its
denial of Lewis' claim for pension compensation are as follows.
Lewis was a licensed architect with more that thirty-five years
of experience in architecture and construction project
management, and no evidence was presented indicating that he
could no longer market his professional skills. His contract
with the City contained no specific period of employment, and
the police facility project, which was his only assignment
during his three and a half years of employment with the City,
was completed two months after his termination. Lewis' pension
with the City had not vested at the time of his termination, and
would not have vested for another eighteen months. Finally,
Lewis obtained employment after his termination that paid a
comparable salary and would provide pension benefits upon his
retirement at age 68.
15 Based on these facts, we hold that the circuit court did
not abuse its discretion in determining that Lewis was made
whole through his other awards against the City, absent an award
of pension compensation; and that his claim for pension
compensation in the amount of $175,130 was otherwise "subject to
too much speculation." 8
III. CONCLUSION
For these reasons, we hold that the circuit court did not
abuse its discretion in awarding relief to Lewis under Code §
8.01-216.8, absent an award of reinstatement, front pay or
pension compensation. We will thus affirm the judgment of the
circuit court.
Affirmed.
JUSTICE MIMS, concurring.
I concur with the majority’s conclusions that Lewis abandoned
his claim for reinstatement and that the circuit court did not
abuse its discretion by denying his claim for pension
compensation because it was too speculative. However, I write
8 Lewis cites no persuasive authority compelling a different conclusion. In the two cases that he does cite in support of this claim, Blum, 829 F.2d at 371-76, and Buckley v. Reynolds Metals Co., 690 F.Supp. 211, 213-220 (S.D.N.Y. 1988), the plaintiffs had been long term employees with tenures of between 9 and 25 years, and were entitled to pension benefits at the time their employment was terminated.
16 separately because I believe that the interpretation of Code §
8.01-216.8 in Part II(C) is both unnecessary and incorrect.
As the majority opinion recites, front pay is awarded as
prospective compensation, for pay lost from the date of judgment
into the future. Johnson v. Spencer Press of Maine, Inc., 364
F.3d 368, 379 (1st Cir. 2004).
The evidence in this case is that the project for which
Lewis was principally responsible ended in October 2011, at
least five months before he filed his complaint and 18 months
before entry of judgment. Although Lewis argues that he is
entitled to an award of front pay for the difference between his
compensation from the City and from his new employer through age
65, he failed to prove at trial that his at-will employment by
the City would not have lawfully terminated upon the conclusion
of the project. Cf. Wilkins v. St. Louis Hous. Auth., 198
F.Supp.2d 1080, 1092 (E.D. Mo. 2001). He therefore failed to
prove that he was entitled to ongoing employment by the City at
his previous level of compensation from the date of judgment
forward.
Consequently, Lewis’ claim for front pay was, as the
circuit court ruled, simply too speculative. The court did not
abuse its discretion when it declined to enter such an award.
This basis is sufficient to affirm its judgment and the Court
need not reach the interpretation of Code § 8.01-216.8. Yet the majority opinion does so, relying on its analysis of that issue
to decide this assignment of error. In addition to being
unnecessary, that analysis is incorrect.
Code § 8.01-216.8 provides that when an employee proves a
claim of unlawful retaliation under the Virginia Fraud Against
Taxpayers Act (the “VFATA”), he or she “shall be entitled to all
relief necessary to make [him or her] whole.” (Emphasis added.)
The statute further specifies that “[r]elief shall include
reinstatement with the same seniority status that [he or she]
would have had but for the discrimination, two times the amount
of back pay, interest on the back pay, and compensation for any
special damages sustained as a result of the discrimination,
including litigation costs and reasonable attorney fees.” Id.
(emphasis added).
“It is elementary that the primary object in the
interpretation of a statute is to ascertain and give effect to
the intention of the legislature.” Andrews v. Shepherd, 201 Va.
412, 414, 111 S.E.2d 279, 281 (1959). “In interpreting [a]
statute, ‘courts apply the plain meaning . . . unless the terms
are ambiguous or applying the plain language would lead to an
absurd result.’” Baker v. Commonwealth, 284 Va. 572, 576, 733
S.E.2d 642, 644 (2012) (quoting Boynton v. Kilgore, 271 Va. 220,
227, 623 S.E.2d 922, 926 (2006)).
18 “When the word ‘shall’ appears in a statute it is generally
used in an imperative or mandatory sense.” Schmidt v. City of
Richmond, 206 Va. 211, 218, 142 S.E.2d 573, 578 (1965); accord
City of Waynesboro Sheriff's Dep't v. Harter, 222 Va. 564, 566,
281 S.E.2d 911, 912-13 (1981). “In this sense ‘shall’ is
inconsistent with, and excludes, the idea of discretion, and
operates to impose a duty which may be enforced . . . unless an
intent to the contrary appears.” Andrews, 201 Va. at 414, 111
S.E.2d at 281-82.
Nevertheless, “the courts, in endeavoring to arrive at the
meaning of written language, whether used in a will, a contract,
or a statute, will construe ‘may’ and ‘shall’ as permissive or
mandatory in accordance with the subject matter and context.”
Pettus v. Hendricks, 113 Va. 326, 330, 74 S.E. 191, 193 (1912).
Code § 8.01-216.8 therefore is ambiguous because we must
determine whether the General Assembly intended the relief
provision to be mandatory or permissive. Brown v. Lukhard, 229
Va. 316, 321, 330 S.E.2d 84, 87 (1985) (“Language is ambiguous
if it admits of being understood in more than one way or refers
to two or more things simultaneously . . . . is difficult to
comprehend, is of doubtful import, or lacks clearness and
definiteness.”).
When interpreting an ambiguous statute, courts may consult
its legislative history. See id. (excluding use of legislative
19 history when statute is unambiguous). The General Assembly
enacted the VFATA in 2002. 2002 Acts ch. 842. As noted in the
majority opinion, the substantive words it used in the relief
provision were identical to those found in the corresponding
provision in the federal False Claims Act, 31 U.S.C. § 3729 et
seq. (the “FCA”)--specifically, 31 U.S.C. § 3730(h). Moreover,
the General Assembly enacted an amendment to conform the relief
provision in Code § 8.01-216.8 to the changes to 31 U.S.C. §
3730(h) after Congress amended the federal statute in the Fraud
Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, §
4(d), 123 Stat. 1617, 1624-25 (2009) and the Dodd-Frank Wall
Street Reform and Consumer Protection Act, Pub. L. No. 111-203,
§ 1079A(c), 124 Stat. 1376, 2079 (2010). 2011 Acts ch. 676.
The fact that the General Assembly adopted the same
substantive language as the relief provision in the FCA when it
originally enacted the corresponding provision in the VFATA, and
amended the VFATA provision in 2011 after Congress amended the
FCA provision in 2009 and 2010, indicates that the General
Assembly intended state courts to construe the state statute as
the federal courts had then construed the federal statute.
Powers v. County School Board, 148 Va. 661, 669, 139 S.E. 262,
264 (1927) (“When the legislature comes to pass a new law or to
amend an old one, it is presumed to act with full knowledge of
the law as it stands bearing upon the subject with which it
20 proposes to deal.”) (internal quotation marks omitted). Two
federal cases construing the FCA relief provision are especially
instructive here.
In Hammond v. Northland Counseling Center, Inc., 218 F.3d
886 (8th Cir. 2000), the United States Court of Appeals for the
Eighth Circuit held that reinstatement may be an impractical,
inappropriate remedy in light of continuing acrimony between the
parties. It declined to reach the question of awarding front
pay in lieu of reinstatement because the plaintiff terminated in
that case “started work [for a new employer] the very next day
with an equal (if not better) salary and benefits package.” Id.
at 892.
The United States District Court for the Eastern District
of Missouri addressed the question squarely in Wilkins. There
the court reiterated that reinstatement may not be appropriate
in every case due to the relationship between the parties. 198
F.Supp.2d at 1091. It further found that the animosity between
the plaintiff and his employer made reinstatement inappropriate
in that case. It held that “Congress intended that front pay be
awarded in the appropriate case to effect the express
Congressional intention that a claimant under [31 U.S.C.] §
3730(h) be made whole.” Id. It continued by holding that
“[w]hether to order reinstatement or front pay is committed to
the discretion of [the trial] court” and that where
21 reinstatement was inappropriate “the court will award . . .
front pay.” Id.
The trial court in Wilkins clearly considered front pay to
be an equitable substitute for reinstatement. 1 The only factor
it considered when deciding that an award of front pay was
appropriate was its conclusion that reinstatement was
inappropriate based on the facts of the case. 198 F.Supp.2d at
1091. This is a logical conclusion based on the plain language
of the FCA, which, like the VFATA, commands that the plaintiff
“shall be entitled to all relief necessary to make [him or her]
whole.” 31 U.S.C. § 3730(h)(1); accord Code § 8.01-216.8.
As the majority opinion recites, “[a]n award of back pay
compensates plaintiffs for lost wages and benefits between the
time of the discharge and the trial court judgment.” Johnson,
364 F.3d at 379. Thus, an award of back pay is an award of
retrospective relief, intended to restore to the plaintiff
compensation he or she would have received between termination
and judgment if the unlawful retaliation had not occurred. 2
Reinstatement is the corresponding award of prospective relief,
1 The district court’s judgment was affirmed “in all respects,” without commentary on its front pay reasoning. Wilkins v. St. Louis Hous. Auth., 314 F.3d 927, 934 (8th Cir. 2002). 2 The interest on the back pay, litigation costs, and attorneys’ fees provided by the statutes are also retrospective relief because they too restore to the plaintiff losses he or she incurred prior to or in the course of obtaining the judgment. 22 ensuring that the plaintiff receives, after judgment, the
compensation he or she would have earned from his or her
employment if the unlawful retaliation had not occurred.
However, as noted in Hammond and Wilkins, reinstatement may
be inappropriate due to the current relationship between the
parties. In such circumstances, front pay is an equitable
substitute for reinstatement, as reflected in part of the
definition of front pay included in Johnson but omitted from the
majority opinion: “Front pay, by contrast, is money awarded for
lost compensation during the period between judgment and
reinstatement or in lieu of reinstatement. Front pay thus
compensates plaintiffs for lost wages that may accrue after the
conclusion of the trial.” Id. (emphasis added) (internal
quotation marks omitted). Both retrospective relief and
prospective relief are necessary to make the plaintiff whole
unless, as in Hammond, the plaintiff suffers no prospective
injury. 3 218 F.3d at 892.
To hold, as the majority opinion effectively does, that no
prospective relief is necessary simply because reinstatement is
3 The VFATA does not relieve the plaintiff of the general duty to mitigate his or her damages. See, e.g., Forbes v. Rapp, 269 Va. 374, 380, 611 S.E.2d 592, 595 (2005). A plaintiff terminated in an unlawful retaliatory act therefore must make reasonable efforts to obtain alternative employment. See Wilkins, 198 F.Supp.2d at 1091-92. 23 impractical or inappropriate due to the relationship of the
parties unfairly penalizes the plaintiff alone for the
deterioration in the bilateral employment relationship. More
importantly, such an interpretation contravenes the spirit of
the statutes.
The majority opinion cites several federal cases
interpreting the relief provisions of other federal statutes and
concludes that, coupled with the statutory award of double back
pay, an award of front pay may result in a windfall to the
plaintiff. According to the majority opinion, this would exceed
the amount of damages Congress and the General Assembly intended
when they contemplated making the plaintiff whole. I disagree
for two reasons.
First, federal cases interpreting the relief afforded by
other federal statutes are not instructive here. The General
Assembly took the language of the VFATA from the FCA, not the
Age Discrimination in Employment Act, the Family Medical Leave
Act, or the Civil Rights Act of 1964. Moreover, Hammond and
Wilkins were decided in 2000 and 2001, respectively, and thus
were contemporaneous with the General Assembly’s original
enactment of the VFATA in 2002.
Second, the windfall concern was adequately addressed in
Wilkins. There the court reduced the amount of back pay by the
24 amount of compensation the plaintiff received from his new
employment. 198 F.Supp.2d at 1090.
For the reasons stated, I would hold that “shall” is
mandatory in Code § 8.01-216.8 and that it requires a court to
award both retrospective and prospective relief when the
plaintiff proves both retrospective and prospective injury. It
may exercise its sound discretion to determine which form of
prospective relief (reinstatement or front pay) may be
appropriate considering the facts of the case. I therefore
would affirm the circuit court’s judgment because, as noted
above, Lewis failed to prove prospective injury. There was no
evidence that he was entitled to ongoing employment by the City
at his previous level of compensation from the date of judgment