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Court overturns award, favors job reinstatement in disabled veteran bias case


CINCINNATI—A federal appeals court has reinstated a constructive discharge claim against a disabled veteran, but overturned a jury’s $4.4 million award in favor of offering him job reinstatement.

According to last week’s decision by the 6th U.S. Circuit Court of Appeals in Cincinnati in James McKelvey vs. Secretary of U.S. Army, Mr. McKelvey is an Army veteran who lost his right hand and suffered other serious injuries trying to defuse a roadside bomb in Iraq in February 2004.

After recovering, in February 2006 he accepted a position as an operations specialist first at Selfridge Air National Guard Base in Michigan and eventually at the Detroit Arsenal.

Cites abusive behavior

Mr. McKelvey said he encountered increasingly abusive behavior while at the job, including his supervisor telling him that he was worthless and colleagues calling him “lefty” or “cripple.” When he complained to the garrison commander he was told, “If you don’t like the way you’re being treated, go find another job.”

He left the job for another in 2007. After suing the Army secretary in district court, a jury trial was held on his hostile work environment and constructive discharge claims.

A jury ruled in his favor on both. It did not award compensatory damages on the hostile work environment claim, but the jury did award $4.4 million in front pay, which is damages representing future wages and benefits had a former employee not resigned.

‘Could have gone either way’

The district court ruled there was insufficient evidence to sustain a constructive discharge claim, finding also that an order reinstating Mr. McKelvey to a job at the armory is the “proper remedy.”

In its unanimous ruling, a three-judge appeals court panel said it agreed with Mr. McKelvey that the district court should not have granted the secretary’s motion for dismissal of the constructive discharge claim.

“Judgment as a matter of law is appropriate only when ‘reasonable minds could come to but one conclusion, in favor of the moving party,’” the appeals court ruled. “Reasonable juries could have gone either way on this issue.”

Court favors reinstatement

But the appeals court agreed with the district court that front pay is inappropriate. Instead, there are factors in favor of reinstating him to the job, it said.

“McKelvey can be reinstated to work at the armory quickly without disrupting operations and without displacing another employee. In point of fact, the Army continues to offer him a position at the armory at a higher salary than he was earning before and under new supervisors.

“McKelvey’s relatively young age, 38, likewise suggests that front pay is not appropriate, since it requires highly speculative projection about his earning capacity and about employment decisions decades into the future.”

Commenting on the decision, Brian D. Hall, a partner with Porter Wright Morris & Arthur L.L.P. in Columbus, Ohio, who was not involved in the case, said, reinstatement “is the preferred remedy in discrimination cases.” In this case, “there was a turnover in personnel and a new supervisor as well, and I can’t really think of any reason why reinstatement could not work.”

Forward pay “should really be reserved only for some extreme situations where reinstatement is not going to work,” Mr. Hall said.