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Vet's $4.4 Million Hostile Work Environment Judgment Denied

By Robyn Hagan Cain on December 23, 2011 | Last updated on March 21, 2019

The Sixth Circuit Court of Appeals issued an unpublished opinion this week finding that a district court did not abuse its discretion in vacating a front pay award for a disabled vet who sued the Army for constructive discharge.

James McKelvey, an Army veteran, lost his right hand and sustained other injuries while attempting to diffuse a roadside bomb in Iraq. (McKelvey knows a thing or two about hostile work environments.) After recovering from his injuries, McKelvey moved to Michigan and accepted a civilian position with the Army.

At his new job, McKelvey claimed his supervisor did not assign him enough work, and described McKelvey to co-workers as "worthless" and a "cripple." Other colleagues also regularly referred to McKelvey as a "cripple," and coupled that term with additional expletives to be extra offensive.

McKelvey tried to resolve the problems. Two months after his work environment started improving, he quit and took another job with a sheriff's department.

McKelvey then sued the Secretary of the Army. The district court granted summary judgment for McKelvey on failure to make reasonable accommodations claim. A jury ruled for McKelvey on his hostile work environment and constructive discharge claims, and awarded McKelvey almost $4.4 million in front pay. After trial, the Secretary filed motions for judgment as a matter of law on the constructive discharge claim and to vacate the award of front pay.

The district court granted both motions, holding that McKelvey had presented insufficient evidence to sustain a finding of constructive discharge and, in the alternative, that the proper remedy for a constructive discharge would be an order reinstating McKelvey to a job at the armory, not front pay. The Sixth Circuit Court of Appeals reversed the district court on the constructive discharge ruling, but affirmed that front pay decision.

The Sixth Circuit found that McKelvey's departure -- two months after conditions started improving -- happened during a time frame in which McKelvey's work environment could still be considered intolerable. The court found that the jury had permissibly reached the constructive discharge determination on the record.

McKelvey was unsuccessful in his front pay appeal. The Sixth Circuit ruled that "McKelvey's arguments at best suggest it is possible the district court would not have abused its discretion had it ordered front pay." That, however, was insufficient to overturn a denial of front pay.

If the district could would not have abused its discretion in ordering front pay, then it seems that the Sixth Circuit is saying that front pay could be reasonable based on the facts, even if not the most appropriate remedy. If front pay could be conceivably reasonable, why wasn't it an abuse of discretion for the district court to overturn the jury's determination that front pay was in order?

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