McMillian v. Aberdeen Sch Dist

Case: 24-60419 Document: 89-1 Page: 1 Date Filed: 09/03/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

July 23, 2025

No. 24-60419 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

______________________________

ON PETITION FOR REHEARING EN BANC

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

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

Treating the petition for rehearing en banc as a petition for panel

rehearing (5th Cir. R. 35 I.O.P.), the petition for panel rehearing is

DENIED. Because no member of the panel or judge in regular active service

requested that the court be polled on rehearing en banc (Fed. R. App. P. 35

and 5th Cir. R. 35), the petition for rehearing en banc is DENIED. The

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*

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

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No. 24-60419

opinion issued July 23, 2025 is withdrawn by the panel and the following is

substituted in its place.

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.

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 reinstatement to his maintenance position with the District, or at

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

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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

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

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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)).

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

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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

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

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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).

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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.”

Contrary to the District’s argument, reinstatement need not be

immediate in this Circuit. 3 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. 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 reinstatement at some point in the future. For example, in

Palasota v. Haggar Clothing Co., this Court evaluated a district court’s

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3

We note that while the parties appeared to contemplate immediate reinstatement

rather than future reinstatement when proceeding before the district court, McMillian’s

specific request was for “reinstatement.” McMillian never disclaimed reinstatement in the

future, nor explicitly cabined his request to immediate reinstatement. As explained infra,

reinstatement may occur immediately or in the future, and the timing of this remedy does

not change its nature. The District had adequate notice that McMillian requested

reinstatement and, based on our caselaw, that reinstatement at some point in the future was

on the table.

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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

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

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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).

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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.

Considering all the reinstatement factors, we cannot conclude that

this is the “unusual” case where a 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.

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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

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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.

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