McMillian v. Aberdeen Sch Dist

Case: 24-60419 Document: 76-1 Page: 1 Date Filed: 07/23/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

____________ Fifth Circuit

FILED

No. 24-60419 July 23, 2025

____________

Lyle W. Cayce

Clerk

Barry L. McMillian,

Plaintiff—Appellant,

versus

Aberdeen School District,

Defendant—Appellee.

______________________________

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:22-CV-117

______________________________

Before Elrod, Chief Judge, and King and Graves, Circuit Judges.

James E. Graves, Jr., Circuit Judge: *

Barry McMillian was unlawfully terminated by Aberdeen School

District in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C.

§ 1981. He appeals the district court’s order denying his motion for

reinstatement or, alternatively, front pay, contending that he is entitled to

reinstatement to the next available position for which he is qualified. Because

we agree with McMillian, we REVERSE and REMAND.

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 24-60419 Document: 76-1 Page: 2 Date Filed: 07/23/2025

No. 24-60419

I.

Aberdeen School District (“the District”) is a small school district

that consists of three schools. Barry McMillian, a black man, was formerly

employed by the District as a general maintenance worker. Prior to his

employment as a maintenance worker, he worked for the District as a

cafeteria worker and janitor. He has a commercial driver’s license, but it is

not clear that he has ever worked for the District as a bus driver.

On August 16, 2021, McMillian was terminated from his employment

with the District. He filed this lawsuit, alleging that he was terminated as

retaliation for filing an Equal Employment Opportunity Commission

(“EEOC”) charge against the District, in violation of Title VII and Section

1981. The District maintained that McMillian was not unlawfully retaliated

against, arguing that he was terminated for leaving work early. But after a

two-day trial, the jury disagreed with the District, returning a verdict in

McMillian’s favor and awarding him back pay and compensatory damages.

The District did not appeal the jury’s finding as to liability or damages.

After the judgment was entered, McMillian filed a motion for

reinstatement, or alternatively, front pay. In the motion, McMillian

requested immediate reinstatement to his maintenance position with the

District, or at least some other job with the District for which he is qualified,

contending that it is “inconceivable” that the District would not have some

job for him. Alternatively, McMillian requested five years of front pay at the

salary rate he previously received as a maintenance man.

After receiving briefing from the parties, the district court held an

evidentiary hearing on the motion. Several witnesses testified at that hearing.

Notably, the Assistant Operations Manager in the maintenance department,

Jason Roberson, testified that the District has filled the general maintenance

worker position with another employee, Daniel Ott. The current

2

Case: 24-60419 Document: 76-1 Page: 3 Date Filed: 07/23/2025

No. 24-60419

superintendent, Andrea Pastchal-Smith, also testified that the only available

positions in the District are teaching positions and that the District lacks the

funding to create new positions. The district court then issued an order

denying both reinstatement and front pay. This appeal ensued.

II.

Title VII and Section 1981 provide for equitable relief, such as

reinstatement or front pay or “any other equitable relief as the court deems

appropriate.” 42 U.S.C. § 2000e-5(g)(1); see also Johnson v. Ry. Express

Agency, Inc., 421 U.S. 454, 460 (1975); Bogan v. MTD Consumer Grp. Inc., 919

F.3d 332, 335 (5th Cir. 2019) (“Bogan I”). The district court’s decision

regarding its exercise of equitable power is subject to review for abuse of

discretion. Bogan I, 919 F.3d at 335. Under that standard, “[a]n error of law

or application of an incorrect legal standard” is an abuse of discretion. Id.

However, “the factual findings that underlie the decision to grant or deny

relief are reviewed only for clear error.” Id. at 335-36.

III.

Our cases contemplate that generally either reinstatement or front pay

will be awarded to a prevailing plaintiff in a Title VII and Section 1981 case.

See id. at 336 (“We have often said that the trial court’s remedial discretion

in this area involves the ‘selection between reinstatement and front pay.’ The

typical ‘either/or’ nature of this remedial choice is also seen in our statement

that ‘if reinstatement is not feasible, front pay is the appropriate award.’”

(emphasis in the original) (citations omitted)).

“Reinstatement is the preferred equitable remedy.” Id. Accordingly,

a “district court must consider ‘and adequately articulate’ its reasons for

finding reinstatement to be infeasible and for considering an award of front

pay instead.” Palasota v. Haggar Clothing Co., 499 F.3d 474, 489 (5th Cir.

2007) (quoting Julian v. City of Houston, 314 F.3d 721, 729 (5th Cir. 2002)).

3

Case: 24-60419 Document: 76-1 Page: 4 Date Filed: 07/23/2025

No. 24-60419

In determining whether reinstatement is feasible, the district court considers

several factors, such as “whether positions now exist comparable to the

plaintiff’s former position”; “whether reinstatement would require an

employer to displace an existing employee”; “whether the plaintiff has

changed careers”; and “whether animosity exists between the plaintiff and

his former employer.” Id. A district court may consider reinstating a plaintiff

into a different position if he is qualified and requests it. See Woodhouse v.

Magnolia Hosp., 92 F.3d 248, 257-58 (5th Cir. 1996) (finding the district court

did not abuse its discretion in ordering a former Director of Admissions be

reinstated into a clinical nursing position based on her qualifications, even

though she had not served as a clinical nurse for fourteen years). But

importantly, “except under extraordinary circumstances[,] . . . innocent

incumbents may not be displaced.” Palasota, 499 F.3d at 489.

There are “outlier situations” where neither form of equitable relief

is appropriate. Bogan I, 919 F.3d at 337 (first citing Hadley v. VAM P T S, 44

F.3d 372, 376 (5th Cir. 1995) (leaving open the possibility of a plaintiff

receiving neither reinstatement nor front pay based on a substantial punitive

damages award); then citing McKennon v. Nashville Banner Publ’g Co., 513

U.S. 352, 361-62 (1995) (concluding that an award of either reinstatement or

front pay would be inappropriate when, after the employee had been

terminated, the employer obtained evidence of serious employee misconduct

that occurred pre-termination)); see also Bogan v. MTD Consumer Grp., Inc.,

839 F. App’x 832, 835 (5th Cir. 2020) (“Bogan II”).

The district court perceived this to be one of those “outlier” cases

and declined to award McMillian either reinstatement or front pay. In

evaluating potential reinstatement, the district court did not find significant

animosity between McMillian and his former supervisor, Willie Brandon.

But the district court determined that McMillian’s reinstatement was not

feasible because “the position that McMillian previously held is no longer

4

Case: 24-60419 Document: 76-1 Page: 5 Date Filed: 07/23/2025

No. 24-60419

available.” The district court relied on the “credible” testimony of

Superintendent Pastchal-Smith, who testified that there are currently no

maintenance jobs available in the District, nor any other positions for which

McMillian would be qualified. And based on this testimony, the district court

explained: “[i]f McMillian were to be reinstated, it would force the District

to either fire [the current general maintenance worker, Ott] or create another

maintenance position—one which Pastchal-Smith testified that the District

lacks funding for.” Based on these alternatives, the district court found

reinstatement infeasible. As to front pay, the district court determined it

would be “inappropriate and excessive” because McMillian had already

been awarded a substantial amount in damages and had obtained comparable

employment shortly after his termination. 1

On appeal, McMillian does not challenge the district court’s denial of

front pay. 2 Rather, he contends that the district court abused its discretion by

not “reinstat[ing] [him] to the next available position for which he is

qualified.” The District counters that: (1) there is no authority in this Circuit

for the proposition that the District must one day reinstate McMillian if a job

comes open in the future; and (2) the district court correctly found that

immediate reinstatement is improper because there is not an available

position for which he is qualified and immediate reinstatement would require

displacing Ott, an “innocent incumbent.”

_____________________

1

McMillian had been terminated from this new position by the time of trial and has

had difficulty finding employment since this termination.

2

McMillian therefore forfeits any claim to front pay. See Rollins v. Home Depot

USA, 8 F.4th 393, 397 (5th Cir. 2021).

5

Case: 24-60419 Document: 76-1 Page: 6 Date Filed: 07/23/2025

No. 24-60419

Initially, we find that while McMillian only requested immediate

reinstatement before the district court, 3 he has not forfeited the argument

that he is entitled to future reinstatement because the district court did not

consider future reinstatement in its order. Under Federal Rule of Civil

Procedure 54(c), “[e]very . . . final judgment should grant the relief to which

each party is entitled, even if the party has not demanded that relief in its

pleadings.” In accordance with this rule, our Court has concluded that when

a party establishes a Title VII violation, potentially entitling him to a valid

form of prospective equitable relief, it is incumbent upon the district court to

conduct the requisite analyses, regardless of the party’s presentation. See

Julian, 314 F.3d at 729-30 (explaining that “the district court should have

considered, as a threshold matter, whether [re]instatement was feasible,”

regardless of the parties’ agreement that reinstatement was not feasible, and

remanding for such consideration); Reneau v. Wayne Griffin & Sons, Inc., 945

F.2d 869, 870-71 (5th Cir. 1991) (explaining that the plaintiff’s “failure to

expressly request front pay does not preclude the award” and remanding for

such consideration).

Contrary to the District’s argument, future reinstatement is a valid

form of prospective equitable relief in this Circuit. In Garza v. Brownsville

Independent School District, the plaintiff prevailed in an action establishing

that the defendant school district refused to hire her because of her sex. 700

F.2d 253, 254 (5th Cir. 1983). Rather than seeking to displace the individual

that the school district had hired, the plaintiff requested that she be offered

the next available position comparable to the one she was denied. Id. at 254-

55. The district court concluded that “the wisest exercise of its discretion

would be to deny the claim for reinstatement” under these circumstances.

_____________________

3

See generally Frye v. Anadarko Petroleum Corp., 953 F.3d 285, 291 (5th Cir. 2019)

(explaining that usually an argument cannot be raised for the first time on appeal).

6

Case: 24-60419 Document: 76-1 Page: 7 Date Filed: 07/23/2025

No. 24-60419

Id. at 255. But our Court reversed, explaining that “reinstatement or hiring

preference remedies are to be granted in all but the unusual cases” and

“[n]one of the reasons given by the District Court for denying hiring

preference relief to plaintiff constitutes unusual or exceptional

circumstances.” Id.

Since Garza, this Court has further considered plaintiffs’ potential

entitlement to future reinstatement. For example, in Palasota v. Haggar

Clothing Co., this Court evaluated a district court’s decision to order the

plaintiff’s reinstatement to the next available sales associate vacancy in

Dallas. 499 F.3d at 488. The Court began by discussing the typical

reinstatement factors in assessing the feasibility of future reinstatement. Id.

at 489. The Court then concluded that future reinstatement was not feasible

in the plaintiff’s case. Id. at 490. The Court reasoned that, based on the

current construction of the employer’s sales force, there was no comparable

position to the plaintiff’s former position to which he could be reinstated, and

that reinstating him would require terminating another employee or

decreasing each employee’s sales territory and salary. Id. The Court further

reasoned that the employer was anticipating more reductions in the future,

that the employer’s compensation structure would not allow it to restore the

plaintiff’s previous yearly earnings, that the plaintiff had changed careers,

and that there was lingering animosity between the parties. Id. at 489-90. 4

_____________________

4

See also Ray v. Iuka Special Mun. Separate Sch. Dist., 51 F.3d 1246, 1254-55 & n.6

(5th Cir. 1995) (stating in passing that “Ray’s willingness to wait for his reinstatement” to

a substantially similar position (which he requested) “is not dispositive,” where there were

no existing vacancies in the defendant school district and reinstatement would have

required displacing an incumbent employee, Ray had secured substantially similar

employment, and neither Ray’s former principal position, nor any similar position,

continued to exist because, due to consolidation of school districts, enrollment had nearly

tripled).

7

Case: 24-60419 Document: 76-1 Page: 8 Date Filed: 07/23/2025

No. 24-60419

The considerations counseling against future reinstatement in

Palasota are not present in this case. There has been no argument that the

District has fundamentally changed its employee compensation structure

since McMillian’s termination or that McMillian is moving towards a

different career path. The District further has not explicitly argued that it is

anticipating a future reduction of its maintenance department or of other low-

skilled jobs. And as mentioned, the district court did not find sufficient

animosity between the parties to justify denying reinstatement. Based on the

evidentiary record, this factual finding was not clearly erroneous. See Bogan

I, 919 F.3d at 335-36.

The district court did find that one of the factors present in Palasota

was also present here. Specifically, the district court concluded that

reinstating McMillian would require the District either to displace an

innocent incumbent, Ott, or to create a new position. However, while

immediate reinstatement of McMillian would require ousting an innocent

incumbent or creating a new position, future reinstatement would not result

in either of these outcomes.

The District urges that another Palasota factor is present here and

prevents reinstatement: that there is no longer a position comparable to

McMillian’s former position. Specifically, the District argues that the general

maintenance worker position now requires certifications in various trades.

But there are two problems with this argument. First, there are likely more

positions that McMillian is qualified for other than the general maintenance

worker position, such as cafeteria worker, janitor, or possibly bus driver. See

Woodhouse, 92 F.3d at 257-58. Second, the District argued below that the

general maintenance worker position now requires certifications, but the

district court rejected that argument. Viewing the evidentiary record, that

finding was not clearly erroneous. See Bogan I, 919 F.3d at 335-36.

8

Case: 24-60419 Document: 76-1 Page: 9 Date Filed: 07/23/2025

No. 24-60419

Considering all the reinstatement factors, we cannot conclude that

this is the “unusual” case where a future reinstatement remedy should not

be granted. Garza, 700 F.2d at 255. We leave to the district court to

determine in the first instance what positions, other than general

maintenance worker, McMillian may be qualified to be reinstated to in future.

See Woodhouse, 92 F.3d at 257-58.

IV.

For the reasons provided above, we REVERSE the district court’s

denial of McMillian’s request for reinstatement, hold that McMillian should

be reinstated into the next available position at the District for which he is

qualified, and REMAND for consideration of what those positions might

be. 5

_____________________

5

In a motion that has been carried with the case, McMillian requested that we take

judicial notice of the fact that Brandon is no longer employed at the District. Based on the

forgoing, we DENY the motion as moot.

9