Hilda Gonzalez Garza, an Assistant District Attorney in Starr County told her boss she intended to run for the local elected school board. Her boss, D.A. Victor Canales apparently opposed her candidacy. The D.A. fired the assistant with no warning a couple of days later. Ms. Garza later filed suit under Sec. 1983 alleging infringement of her First Amendment rights and under the Texas Constitution. Pleading municipal immunity, the County successfully moved for summary judgment as to claims against the county. But, the judge denied summary judgment as to D.A. Canales in his individual capacity and for equitable relief under the Texas Constitution. The matter then proceeded to trial.

In his Jury Charge, the judge included language asking the jury to assess future lost pay. Future lost pay or “front pay” is an equitable remedy. That means the judge should decide whether to grant future lost pay, not the jury. But, neither party objected and the question went to the jury. The jury found in favor of Ms. Garza. The jury awarded $68,400 in lost back pay and $1,4 million in lost future pay. The jury awarded 22 years of lost pay to the plaintiff.

My clients often ask me about lost pay in the future and always I tell them how rare it is for a judge to grant front pay. But, here a federal jury awarded 22 years worth of lost future pay. After the trial, the employer moved to reinstate Ms. Garza in lieu of lost future pay. Front pay is simply an alternative to reinstatement. Normally, front pay is awarded only after a finding that reinstatement would not be feasible. The judge granted the motion and ordered reinstatement. That order removed the award of lost future pay. He described the jury finding as advisory. The plaintiff then appealed.

On appeal, Ms. Garza argued that the judge disregarded the jury verdict when he ordered reinstatement. The Fifth Circuit agreed. It found the parties had agreed to submit the issue to the jury. Under Federal Rule 39(c), the parties are bound if they agree to submit an issue to the jury. The Fifth Circuit said the jury ruling on front pay was not simply an “advisory” opinion, since the parties did not object to the charge allowing that issue to be decided by the jury. The court then hinted that the County should have objected to the size of the award. Instead, the County relied on appealing only the fact of the award itself. Now, said the court, it is too late to raise a new issue concerning the size of the front pay.

Since the court ordered reversal of the reinstatement, it did not reach Ms. Garza’s other issue that reinstatement was not feasible. See the decision here in Garza v. Starr County, No. 14-41343, 2015 WL 6152893 (5th Cir. 10/20/2015).