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Damages, Remedies and Enforcement of Settlements

Mointhly Law Journal Article: Validity of Settlement Agreements Containing a "Will Not Reapply for Employment" Provision, 2009 (8) AELE Mo. L. J. 201.

     A federal employee of the U.S. Office of Personnel Management (OPM) who worked as a criminal investigator appealed his termination to the Merit Systems Protection Board (MSPB), claiming that his firing constituted marital status discrimination. He agreed to withdraw that claim when the employer agreed to pay him a $50,000 settlement. Part of the settlement agreement provided that the OPM's director of human resources would be the contact for reference inquiries and only disclose the dates of his service, with a termination letter to be removed from his personnel file and both parties barred from disclosing the grievance of the settlement agreement. He later took a job with a private firm that contracts with federal agencies to carry out background investigations. He was suspended from the job without pay, however, when OPM employees, allegedly at the direction of the OPM's security office, discussed his termination with the employer. The OPM's director of human resources was not involved in that discussion. A MSPB ALJ found that the OPM had materially breached the settlement agreement, but found that the MSPB lacked jurisdiction to award damages for breach, so the only remedy available there would be to rescind the agreement and reinstate the initial appeal of the termination, along with the employee returning the $50,000 settlement amount. He did not want to accept that course of action, so the ALJ dismissed his enforcement action. A federal appeals court ruled that the employee was not barred from filing a breach of contract lawsuit for damages in the U.S. Court of Claims, since a damages remedy had not been available before the MSPB. Cunningham v. United States, #13-5055, 2014 U.S. App. Lexis 6493 (Fed. Cir.).
     A former firefighter won a judgment against a city in excess of $1 million under the Family and Medical Leave Act (FMLA). He later filed a Chapter 7 bankruptcy petition, but did not list the judgment as an asset of the bankruptcy estate. After his bankruptcy discharge was granted, the judgment was discovered, the discharge revoked, and the bankruptcy case reopened, with the bankruptcy trustee seeking to collect the judgment from the city for the benefit of the firefighter's creditors. A federal appeals court, ruling en banc, rejected the argument that the firefighter's fraudulent concealment of the judgment judicially estopped the trustee's claim. Reed v. City of Arlington, #08-11098, 2011 U.S. App. Lexis 16652 (5th Cir.). Editor's note: The fact that the majority of the funds paid would go to the lawyer who represented the firefighter in the prior FMLA case did not alter the result, as the attorney had no knowledge of the filing of the bankruptcy petition.
     When a Hispanic police officer was denied a requested transfer to Internal Affairs after repeatedly complaining of racial discrimination, there was sufficient evidence to support a jury verdict finding unlawful retaliation. The jury's award of $90,000 under Title VII and $90,000 under a District of Columbia law, however, was an improper double recovery, since both retaliation claims involved the same facts and were seeking the same relief. The jury rejected the officer's racial discrimination claims. Medina v. District of Columbia, #10-7094, 643 F.3d 323 (D.C. Cir. 2011)
     City does not have to pay a $580,000 settlement to a terminated battalion chief. The former firefighter had filed for Ch. 7 bankruptcy, listing over $300,000 in credit card debt, and concealed the settlement. Reed v. City of Arlington, #08-11098, 2010 U.S. App. Lexis 19319 (5th Cir.).
     Seventh Circuit lowers an award of compensatory damages for reverse race discrimination from $200,000 to $20,000. The plaintiff also received awards of back pay, front pay and attorney's fees. Marion Co. Coroner's Office v. EEOC, #09-3595, 612 F.3d 924, 2010 U.S. App. Lexis 16236 (7th Cir.).
     Federal merit board rejects an attempt to set aside a settlement agreement. The employee's assertion that a medical condition prevented him from having the mental capacity necessary to enter into a valid settlement agreement did not meet the heavy burden of proof required or outweigh the sworn statements of the agency's witnesses present during the negotiations. Parks v. U.S. Postal Service, #AT-0752-06-0166-C-1, 2010 M.S.P.B. 6, 2010 MSPB Lexis 164 (MSPB 2010).
     California Supreme Court limits punitive damage awards. The justices ruled that the maximum permissible punitive award should be 1.4 times the amount of compensatory damages. The plaintiff alleged that she was wrongfully terminated because of a medical condition and a related disability (panic attacks and medication-induced body odor). Although public employers in California are exempt from punitive awards, managers and supervisors are not. Roby v. McKesson Corp., #S149752, 47 Cal.4th 686, 2009 Cal. Lexis 12374.
     Settlement agreements negotiated between a N.Y. police union and the city manager are enforceable, without further approval by the city council. Under N.Y. bargaining laws, there is no requirement that legislative approval is needed to formalize a labor-management legal obligation. Patrolmen's Benev. Assn. v. City of Long Beach, Index No. 10692/06, 2007-07305, 2008 NY Slip Op 9573, 868 N.Y.S.2d 306, 2008 N.Y. App. Div. Lexis 9328 (2nd Dept.).
     "... in the absence of a showing of fraud, duress, or other circumstances suggesting that the settlement was not knowing or voluntary, the district court need not examine the circumstances surrounding the settlement ... Buyer's remorse, however, cannot undo a contract to which all parties have given their assent and for which all of the conditions precedent have been fulfilled." Newkirk v. Vil. of Steger, #06-3140, 2008 U.S. App. Lexis 16608 (7th Cir.).
     In a 5-to-3 decision, the Supreme Court reduced a large punitive damage award to 100% of the amount of compensatory relief that was paid. The litigation followed an oil spill caused by the negligence of an employee. Exxon Shipping Co. v. Baker, #07-219, 125 S.Ct. 2605, 2008 U.S. Lexis 5263.
     Oregon's split recovery statute, under which 60 percent of all punitive damages awarded in a state law tort action are allocated to the state, does not violate the Fifth Amendment's prohibition against taking private property by public use, without just compensation. Engquist v. Oregon Dept. of Agriculture, #07-474, 2008 U.S. Lexis 4705.
     An award of compensatory damages need not accompany punitive damages awards under Title VII or 42 U.S. Code §1981. Abner v. KCS RR, # 06-30476, 2008 U.S. App. Lexis 27, 102 FEP Cases (BNA) 616 (5th Cir.).
     In a wrongful termination action brought by a former sheriff's employee, a federal court can enforce the intent of a Rule 68 consent judgment and enjoin the plaintiff from pursuing claims for similar relief in state court. Fafel v. DiPaola, 04-1718, 399 F.3d 403, 2005 U.S. App. Lexis 3747 (1st Cir. 2005). {N/R}
     NYPD officer who was awarded, in a sexual harassment case, $400,000 in compensatory damages against two superiors and $1 million in punitive damages against the city, cannot recover punitive damages from the city. Krohn v. N.Y. City Police Dept., #2004-22, 2004 N.Y. Lexis 926 (2004). {N/R}
     Fourth Circuit affirms an award of $410,000 in back pay and interest to a wrongfully demoted employee, and a punitive damages award of $100,000. Although there was no award of compensatory damages, punitive damages are allowed to compliment a back-pay award. Corti v. Storage Technology Corp., #01-1833, 304 F.3d 336, 2002 U.S. App. Lexis 19228, 89 FEP Cases (BNA) 1477 (4th Cir. 2002). {N/R}
     President signs H.R. 169, requiring federal agencies to pay the settlement costs for discrimination an whistleblower cases from agency budgets. Notification and Federal Anti-Discrimination and Retaliation Act, 5 U.S. Code §2301 (§101 et seq.), Pub. L. No. 107-174 (2002). [2002 FP Aug]
     The statutory cap on Title VII compensatory and punitive damages does not apply to front pay awards or to claims under state law. Hemmings v. Tidymans, #99-35932, 285 F.3d 1174, 88 FEP Cases (BNA) 945, 2002 U.S. App. Lexis 6686 (9th Cir. 2002). [N/R]
     Supreme Court holds that damages for "front pay" awarded against an employer is not limited by the $300,000 maximum liability for civil rights discrimination claims. Pollard v. E. I. du Pont de Nemours, #00-763, 121 S.Ct. 1946, 85 FEP Cases (BNA) 1217, 2001 U.S. Lexis 4123, 69 L.W. 4419. [2001 FP 99-100]
     U.S. Supreme Court holds that the test for federal courts of appeals is to apply a de novo, rather than abuse of discretion standard when reviewing district court determinations of the constitutionality of punitive damages awards. Cooper Industries v. Leatherman Tool Group, #99-2035, 532 U.S. 424, 121 S.Ct. 1678, 2001 U.S. Lexis 3520, 69 L.W. 1679 (5/14/01). {N/R}
     Federal appeals court reiterates a four-part test for honoring settlement agreements between an employee and employer, that are not negotiated and or approved by their attorneys:
     (1) whether the complaining party, the employer, and any other pertinent parties have agreed to be bound;
     (2) whether the settlement is reasonable in light of the nature of the violations alleged, the risks inherent in litigation, and the stage of the litigation;
     (3) whether there has been any fraud, coercion, or duress by any of the parties in reaching the settlement; and
     (4) whether the employer has a history of labor law violations or has breached previous settlement agreements.
     Beverly California Corp. v. NLRB, #99-4121, 253 F.3d 291, 2001 U.S. App. Lexis 11890, 167 LRRM (BNA) 2409 (7th Cir.). {N/R}
     The 1991 Civil Rights Act cap on compensatory damages applies to each lawsuit, and not to each successful claim. Fogg v. Ashcroft, #00-5138, 254 F.3d 103, 2001 U.S. App. Lexis 13924, 85 FEP. Cases (BNA) 1705 (D.C. Cir 2001). {N/R}
     Supreme Court decision on punitive damages in ADA cases applied to a Chicago verdict. To recover, a claimant must prove that management knew that its was violating federal law. Gile v. United Airlines, #99-2509, 2000 U.S. App. Lexis 11354 (7th Cir). [2000 FP 117-8]
     N.Y. Court of Appeals holds that a public employee's verdict against his employing agency is not to be reduced by the amount of funds received from collateral sources. Iazzetti v. City of N.Y., 94 N.Y.2d 183, 723 N.E.2d 81, 1999 N.Y. Lexis 3750 (1999). {N/R}
     A public entity in California cannot be sued for fraudulently inducing an applicant to relocate for employment purposes. Govt. Code 818.8 immunizes a city or county from damages arising from misrepresentations, whether negligent or intentional. Burden v. Co. of Santa Clara, #H019329, 00 C.D.O.S. 4429, 2000 Cal.App. Lexis 440. {N/R}
     Joining the Second Circuit and disagreeing with the Fifth Circuit, the Fourth Circuit holds that a volunteer fire department is a state actor for purposes of 42 U.S. Code 1983. Goldstein v. Chestnut Ridge Vol. Fire Co., 218 F.3d 337 (4th Cir. 2000). {N/R}
     Agreeing with four circuits but disagreeing with the Sixth Circuit, the Seventh Circuit holds that the cap on compensatory damages in 42 U.S. Code 1981a(b)(3) does not apply to front pay awards. Pals v. Schepel Buick & GMC Truck Inc., 220 F.3d 495 (7th Cir. 2000). {N/R}
     Punitive damages may be awarded for Title VII violations. Kolstad v. Amer. Dental Assn., 119 S.Ct. 2118, #98-208 (1999). {N/R}
     Kansas statute which limits noneconomic damages to $2500,000 is not invalid under the ADA or Equal Protection Clause, because it applies to all plaintiffs. Patton v. TIC United, 64 LW 2562 (10th Cir. 1996). {N/R}
     Supreme Court disallows use of "after acquired evidence" to avoid liability in discrimination cases, but later-discovered evidence which impairs a plaintiff's fitness for continued employment bars reinstatement or front pay and limits the amount of back pay due. McKennon v. Nashville Banner, 115 S.Ct. 879 (1995). [1995 FP 52-3]
     $40 million in punitive awards for two workers who complained of racial discrimination is erroneous per se. New trial ordered. Lane v. Hughes Aircraft, 66 FEP Cases (BNA) 1122 (Cal. Super. 1994). {N/R}
     Supreme Court upholds punitive damage awards; they do not violate the eighth amendments "excessive fines" clause. Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 57 L.W. 4985, 109 S.Ct. 2909 (6/26/89).
     Supreme court allows punitive damages in civil rights suits without a showing of malicious intent; could affect termination cases. Smith v. Wade, 103 S.Ct. 1625 (1983).
     See also: Civil Liability; Wrongful Discharge Damage Awards.


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