               FOR PUBLICATION

 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT


SCOTT TEUTSCHER, an individual,        No. 13-56411
                Plaintiff-Appellee,
                                          D.C. No.
                and                    5:06-cv-01208-
                                          RHW-OP
RIVERSIDE SHERIFFS’ ASSOCIATION,
               Defendant-Appellee,

                and

RIVERSIDE SHERIFFS’ ASSOCIATION
LEGAL DEFENSE TRUST; TANYA
CONRAD, individually and as an
Agent of the Riverside Sheriffs
Association,
                         Defendants,

                 v.

WILLIAM NATHANIEL WOODSON, III,
            Intervenor-Appellant.
2                 TEUTSCHER V. WOODSON

    SCOTT TEUTSCHER, an individual,          No. 13-56659
                    Plaintiff-Appellee,
                                               D.C. No.
                    v.                      5:06-cv-01208-
                                               RHW-OP
    RIVERSIDE SHERIFFS’ ASSOCIATION,
                  Defendant-Appellant.        OPINION


        Appeal from the United States District Court
             for the Central District of California
      Robert H. Whaley, Senior District Judge, Presiding

            Argued and Submitted January 5, 2016
                    Pasadena, California

                    Filed August 26, 2016

         Before: Milan D. Smith, Jr., Paul J. Watford,
          and Michelle T. Friedland, Circuit Judges.

                Opinion by Judge Friedland
          Concurrence by Judge Milan D. Smith, Jr.
                    TEUTSCHER V. WOODSON                             3

                           SUMMARY *


                            Labor Law

    The panel reversed the district court’s award of front pay
and reinstatement as equitable remedies under the Employee
Retirement Income Security Act for a retaliatory discharge
after the plaintiff had already sought and been awarded by a
jury front pay damages to compensate for the same harm.

    The plaintiff went to trial against his former employer on
retaliatory discharge claims under both state law and ERISA.
The jury awarded him lump-sum damages on his state law
claims, and the district court then entered judgment on his
ERISA claim. Even though the jury had been instructed to
include front pay in its damages award, the district court
granted the plaintiff additional equitable remedies consisting
of reinstatement as well as front pay until reinstatement
occurred.

    The panel held that the equitable front pay award
conflicted with the jury’s front pay award in violation of the
Seventh Amendment right to a jury trial. In addition,
although the reinstatement remedy did not necessarily
conflict with the fact findings implicit in the jury’s verdict,
it nevertheless was improper because the plaintiff waived
that relief when he elected to seek the duplicative front pay
remedy from the jury.




 *
   This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4                 TEUTSCHER V. WOODSON

   Judge M. Smith concurred in the judgment. However,
he disagreed with the majority’s Seventh Amendment
analysis. Judge M. Smith would hold instead that the district
court’s equitable remedy was an abuse of discretion because
the district court did not give reasons why additional
equitable relief was appropriate after the jury had already
compensated the plaintiff for the monetary harm he suffered.


                         COUNSEL

Daniel P. Stevens (argued) and Heather K. McMillan,
Stevens & McMillan, Tustin, California, for Plaintiff-
Appellee.

Jon R. Williams (argued), Williams Iagmin LLP, San Diego,
California, for Defendant-Appellee.

William N. Woodson, III (argued), Law Offices of Wm. N.
Woodson, III APC, Fallbrook, California, pro se Intervenor-
Appellant.


                          OPINION

FRIEDLAND, Circuit Judge:

   This appeal requires us to examine the limits on a district
court’s authority to award front pay and reinstatement as
equitable remedies for a retaliatory discharge after a plaintiff
has already sought and been awarded by a jury front pay
damages to compensate for the same harm. Plaintiff-
Appellee Scott Teutscher went to trial against his former
employer, Riverside Sheriffs’ Association (“RSA”), on
                  TEUTSCHER V. WOODSON                        5

retaliatory discharge claims under both state law and the
Employee Retirement Income Security Act, 29 U.S.C.
§§ 1001–1461 (“ERISA”). A jury awarded him lump-sum
damages on his state law claims, and the district court then
entered judgment in his favor on his ERISA claim. Even
though, at Teutscher’s request, the jury had been instructed
to include front pay in its damages award, the district court
granted Teutscher additional equitable remedies consisting
of reinstatement as well as front pay until reinstatement
occurred. RSA appeals these equitable remedies, arguing
that they conflict with the jury’s front pay award in violation
of the Seventh Amendment and improperly duplicate
Teutscher’s recovery from the jury.

    Given the way in which the jury was instructed and the
evidence presented at trial, the jury’s verdict encompassed
an implicit factual determination as to the entire amount of
front pay to which Teutscher was entitled on account of his
retaliatory discharge. We hold that the district court’s grant
of an additional front pay remedy for the same harm
disregarded that determination in violation of the Seventh
Amendment right to a jury trial. In addition, although the
reinstatement remedy does not necessarily conflict with
factual findings implicit in the jury’s verdict, we hold that it
is nevertheless improper because Teutscher waived that
relief when he elected to seek the duplicative front pay
remedy from the jury. We accordingly reverse the district
court’s equitable awards.

                               I.

    Defendant-Appellant RSA is an organization that
represents law enforcement employees in Riverside County,
6                 TEUTSCHER V. WOODSON

California for collective bargaining purposes. RSA also
administers the RSA Legal Defense Trust (the “Trust”), an
ERISA-governed plan. The Trust provides legal defense
services to RSA members in civil and criminal actions
arising from incidents in the course of their employment.
From 2002 until his termination in 2005, Plaintiff-Appellee
Scott Teutscher worked on an at-will basis for RSA as the
Trust’s Legal Operations Manager. In that position,
Teutscher was responsible for the Trust’s day-to-day
operations, including directing the work of staff members
and investigating disciplinary violation claims against RSA
members.

    During Teutscher’s tenure as Legal Operations Manager,
the Trust began covering legal expenses for Deputy Sheriff
Duane Winchell’s defense in criminal and civil proceedings
unrelated to Winchell’s employment. Teutscher eventually
started expressing concerns that the Trust’s coverage of
Winchell’s defense costs was unlawful because it was
disallowed by the Trust’s governing plan documents.
Teutscher later met with an officer in the Riverside Sheriff’s
Department and accused RSA’s president and its executive
director of improper coverage approvals. Shortly after
Teutscher revealed that he had contacted law enforcement
about the coverage issues, RSA’s executive director
terminated Teutscher’s employment.

    Teutscher filed the instant lawsuit alleging that RSA
terminated him in retaliation for reporting his suspicions that
the Trust’s coverage of Winchell was illegal. In the
operative complaint, Teutscher asserted claims against RSA
under federal and California law arising out of his
termination, including retaliatory discharge in violation of
                  TEUTSCHER V. WOODSON                        7

section 510 of ERISA, 29 U.S.C. § 1140; wrongful
discharge in violation of public policy under California
common law; and retaliatory discharge in violation of
California Labor Code §§ 98.6 and 1102.5. After this court
partially reversed an earlier grant of summary judgment in
favor of RSA, the case proceeded to a jury trial on the three
state law claims pursuant to Teutscher’s timely jury demand,
and to a simultaneous bench trial on his ERISA claim.

     During trial, Teutscher presented evidence that RSA’s
executives threatened to terminate him if he “didn’t keep
[his] mouth shut” about the Winchell coverage issues. He
argued to the jury that the executives acted on that threat by
firing him after he reported to outside authorities his
suspicions that the coverage was illegal. RSA in turn
presented evidence that Teutscher had made repeated
mistakes in his job, which had led the Trust’s Board to assign
RSA’s executive director to supervise Teutscher’s work.
RSA also introduced evidence that Teutscher had been
investigated and disciplined for failing to follow Trust policy
in responding to an officer-involved shooting incident, and
that he was placed on administrative leave shortly before his
termination for, among other things, angrily throwing a work
file. Teutscher argued that these performance-related
grievances were merely pretext for retaliation, and that they
were belied by his consistently satisfactory job performance
ratings and by a raise he received shortly before his
termination.

    Teutscher also put on testimony about wages he had lost
since his termination and wages he would have earned for
the remainder of his anticipated working life at RSA.
Teutscher testified that, at the time of his termination, he had
8                TEUTSCHER V. WOODSON

been earning an $86,000 annual salary plus annual bonuses
and the value of a company car. During closing arguments,
his counsel placed the total value of compensation at
$98,236 per year. Teutscher, who was 55 years old at the
time of trial, testified that had he not been wrongfully
terminated, he would have continued working at RSA until
his Social Security “would kick in, probably 65, 67.”
Teutscher testified that he was instead forced to look
elsewhere for work. After about six months, he found his
first replacement job working at an auto business, earning
roughly $8,000 per year in 2006 and 2007. In 2008,
Teutscher began working at the San Bernardino County
Sheriff’s Department for an annual salary of roughly
$42,000, which had increased to $52,000 by 2012.

    The district court adopted Teutscher’s proposed jury
instruction on damages, and, without objection, instructed
the jury on how to calculate Teutscher’s damages should it
find that he was wrongfully discharged. This instruction
provided:

       If you decide that Plaintiff has proved that
       Defendant wrongfully terminated him, then
       you must decide the amount of damages that
       Plaintiff has proven he is entitled to recover,
       if any. To make that decision, you must:

       1.   Decide the amount that Plaintiff would
            have earned up to today, including any
            benefits and pay increases; and

       2.   Add the present cash value of any future
            wages and benefits that he would have
            earned for the length of time the
                   TEUTSCHER V. WOODSON                       9

              employment with Defendant was
              reasonably certain to continue; and

        3.    Add damages for pain, suffering and
              emotional distress if you find that
              Defendant’s conduct was a substantial
              factor in causing that harm.

        In determining the period that Plaintiff’s
        employment was reasonably certain to have
        continued, you should consider such things
        as:

             (a) Plaintiff’s age, work performance,
                 and intent regarding continuing
                 employment with Defendant;

             (b) Defendant’s prospects for continuing
                 the operations involving Plaintiff; and

             (c) Any other factor that bears on how
                 long Plaintiff would have continued
                 to work.

The court also instructed the jury that “Plaintiff has a duty to
use reasonable efforts to mitigate damages” and that the
burden was on RSA to show that Teutscher had failed to do
so.

    Following deliberations, the jury returned a verdict in
favor of Teutscher on his state law claims for wrongful and
retaliatory discharge. Using a general verdict form to which
neither party had objected, the jury awarded Teutscher lump-
10                TEUTSCHER V. WOODSON

sum damages of $457,250 and separately awarded punitive
damages of $357,500.

    Based on the evidence presented at trial, the district court
adjudicated Teutscher’s ERISA claim, holding RSA liable
for retaliating against Teutscher in violation of section 510.
The district court then heard argument on an appropriate
ERISA remedy. Teutscher asked that his ERISA remedy
include back pay and reinstatement. RSA objected that back
pay was unavailable under ERISA as a form of
compensatory relief. RSA also objected that reinstatement
would conflict with the jury’s award of lost future earnings
and would constitute impermissible double recovery
because Teutscher was already made whole by the remedy
he elected to pursue from the jury. RSA further contended
that reinstatement was impossible because of continuing
acrimony between the parties.

    The court issued a ruling denying back pay but ordering
RSA to reinstate Teutscher and to provide him interim front
pay at the rate of $98,235 per year until such reinstatement
occurred. RSA filed objections to the court’s ruling,
protesting that it would be impossible to reinstate Teutscher
because his position had by then been eliminated, and again
arguing that the equitable front pay and reinstatement awards
duplicated the relief Teutscher had obtained from the jury
and that Teutscher waived his right to those equitable awards
when he elected a make-whole remedy on his legal claims.
The district court nevertheless entered judgment in
accordance with its earlier ruling. RSA timely appealed the
district court’s remedy on the ERISA claim, arguing that it
violated both the Seventh Amendment and the prohibition
on double recovery.
                  TEUTSCHER V. WOODSON                       11

                              II.

    We review for abuse of discretion the district court’s
award of equitable relief, including its grant of reinstatement
and front pay. See Gotthardt v. Nat’l R.R. Passenger Corp.,
191 F.3d 1148, 1156 (9th Cir. 1999). Under this framework,
we must determine whether the district court based its ruling
on an erroneous view of the law, United States v. Hinkson,
585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc), or on a
factual finding that was “illogical, implausible, or without
support in inferences that may be drawn from the record,”
id. at 1262–63. See United States v. McConney, 728 F.2d
1195, 1200–01 (9th Cir. 1984) (en banc), recognized as
abrogated on other grounds by Estate of Merchant v.
Comm’r, 947 F.2d 1390, 1392–93 (9th Cir. 1991).

                              III.

     RSA’s central argument in this appeal is that the Seventh
Amendment barred the district court from granting
Teutscher equitable relief of reinstatement and interim front
pay on his ERISA claim once the jury had determined the
amount of front pay to which Teutscher was entitled on his
state law claims. We accordingly begin by examining the
strictures the Seventh Amendment imposes in cases tried
both to a jury and to the court.

    The Seventh Amendment provides that “[i]n Suits at
common law, . . . the right of trial by jury shall be preserved,
and no fact tried by a jury, shall be otherwise reexamined in
any Court of the United States, than according to the rules of
the common law.” U.S. Const. amend. VII. The Supreme
Court “has construed this language to require a jury trial on
12                TEUTSCHER V. WOODSON

the merits in those actions that are analogous to ‘Suits at
common law’” at the time of the Amendment’s ratification.
Tull v. United States, 481 U.S. 412, 417 (1987); see also
Fleming James, Jr., Right to a Jury Trial in Civil Actions,
72 Yale L.J. 655, 655 (1963) (explaining that the
Constitution “do[es] not extend but preserve[s] the right of
jury trial as it existed . . . in 1791 when the seventh
amendment was adopted”). Prior to 1791, “a jury trial was
customary in suits brought in the English law courts” but not
in the courts of equity, Tull, 481 U.S. at 417, “unless the
chancellor in his discretion sent an issue to a jury for an
advisory verdict,” James, 72 Yale L.J. at 655. The Seventh
Amendment thus secures the right to a jury trial for “suits in
which legal rights [are] to be ascertained and determined, in
contradistinction to those where equitable rights alone [are]
recognized, and equitable remedies [are] administered.”
Chauffeurs, Local 391 v. Terry, 494 U.S. 558, 564 (1990)
(alterations in original) (quoting Parsons v. Bedford, 28 U.S.
433, 447 (1830)).

    Teutscher went to trial claiming that RSA had discharged
him in retaliation for protected activity, in violation of
California law and in violation of section 510 of ERISA. To
determine whether a jury right exists on each of these causes
of action, we look first to whether that action is analogous to
one that was heard in English law courts “prior to the merger
of the courts of law and equity,” and second we “examine
the remedy sought and determine whether it is legal or
equitable in nature.” Tull, 481 U.S. at 417–18. “The second
inquiry is the more important in our analysis.” Chauffeurs,
494 U.S. at 565; see also Granfinanciera, S.A. v. Nordberg,
492 U.S. 33, 42 (1989).
                 TEUTSCHER V. WOODSON                     13

    Teutscher’s state law claims and his ERISA claim are
legal in nature with respect to the right they protect. See
Spinelli v. Gaughan, 12 F.3d 853, 857 (9th Cir. 1993)
(categorizing retaliatory discharge—“a tort so widely
accepted in American jurisdictions today . . . that it has
become part of our evolving common law”—as legal in
nature and analogizing an ERISA section 510 claim to that
common law tort).

    As to the more important factor—the nature of the
remedies—the state law claims are legal and the ERISA
claim is equitable. The actual and punitive damages
Teutscher seeks for his state law claims are indisputably
legal remedies because such damages are “the traditional
form[s] of relief offered in the courts of law.” Curtis v.
Loether, 415 U.S. 189, 196 (1974). The remedies Teutscher
seeks under section 510 of ERISA, in contrast, are
exclusively equitable in nature. Section 510 is enforced
solely through the remedies provided under section
502(a)(3), which authorizes an aggrieved plan participant or
beneficiary to bring a civil action to enjoin an ERISA
violation or “to obtain other appropriate equitable relief,”
29 U.S.C. § 1132(a)(3). See 29 U.S.C. § 1140; Spinelli,
12 F.3d at 856; see also Mertens v. Hewitt Assocs., 508 U.S.
248, 256–58 (1993) (holding that relief under section
502(a)(3) is limited to remedies traditionally available in
equity, such as injunctions, mandamus, and restitution).

    Because both the right in question and the remedies
sought make Teutscher’s state law claims legal in nature, and
because Teutscher made a timely jury demand on those
claims, he was entitled to have those claims tried to a jury.
See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 345 (1979)
14               TEUTSCHER V. WOODSON

(Rehnquist, J., dissenting) (“If a jury would have been
impaneled in a particular kind of case in 1791, then the
Seventh Amendment requires a jury trial today, if either
party so desires.”). But because of the wholly equitable
nature of the available ERISA remedies, Teutscher’s ERISA
claim is categorized as equitable—meaning that he had no
right to a jury trial on that claim. See Spinelli, 12 F.3d at
858.

     The Supreme Court has explained how to comport with
the Seventh Amendment when trying legal and equitable
claims in the same action. In Dairy Queen, Inc. v. Wood,
369 U.S. 469 (1962), the Court held that in cases in which
legal and equitable claims turn on common issues of fact,
“any legal issues for which a trial by jury is timely and
properly demanded [must] be submitted to a jury,” id. at 473
(citing Beacon Theatres, Inc. v. Westover, 359 U.S. 500,
510–11 (1959)), and the jury’s determination of the legal
claims must occur “prior to any final court determination of
[the] equitable claims,” id. at 479. Because the Seventh
Amendment’s second clause “prohibit[s] . . . the courts of
the United States to re-examine any facts tried by a jury”
except as permitted under the narrow “modes known to the
common law,” Parsons, 28 U.S. at 447–48, the court then
must abide by the jury’s findings of fact in making any
subsequent rulings. See Floyd v. Laws, 929 F.2d 1390, 1397
(9th Cir. 1991) (holding that “it would be a violation of the
seventh amendment right to jury trial for the court to
disregard a jury’s finding of fact”).

    It follows that “in a case where legal claims are tried by
a jury and equitable claims are tried by a judge, and [those]
claims are ‘based on the same facts,’” the trial judge must
                  TEUTSCHER V. WOODSON                       15

“follow the jury’s implicit or explicit factual determinations”
“in deciding the equitable claims.” L.A. Police Protective
League v. Gates, 995 F.2d 1469, 1473 (9th Cir. 1993)
(quoting Miller v. Fairchild Indus., 885 F.2d 498, 507 (9th
Cir. 1989)). The trial court must do so in determining both
liability and relief on the equitable claims. See Miller,
885 F.2d at 506–07 (holding that “the district court in
deciding the Title VII [equitable] claim will be bound by all
factual determinations made by the jury in deciding” the
plaintiff’s legal claims); see also Smith v. Diffee Ford-
Lincoln-Mercury, Inc., 298 F.3d 955, 966 (10th Cir. 2002)
(holding that the trial judge impermissibly “disregarded the
jury’s implicit finding[s]” when the judge denied the
wrongfully discharged plaintiff equitable relief of front pay
for reasons inconsistent with the jury’s findings); EEOC v.
Century Broad. Corp., 957 F.2d 1446, 1463 (7th Cir. 1992)
(“[I]n deciding whether to grant equitable relief under Title
VII, the district court [is] prohibited from reconsidering any
issues necessarily and actually decided by the jury.” (second
alteration in original) (quoting Hussein v. Oshkosh Motor
Truck Co., 816 F.2d 348, 355 (7th Cir. 1987))). These
constraints are “consistent with . . . the respect that properly
is accorded to a jury verdict in our system of jurisprudence.”
Miller, 885 F.2d at 507.

                              IV.

    To determine whether the district court contravened
these constitutional constraints, we evaluate whether
Teutscher’s state law and ERISA claims turn on common
questions of fact, and, if they do, whether the court
disregarded any factual determinations implicit in the jury’s
verdict when it awarded the equitable remedies.
16                    TEUTSCHER V. WOODSON

                                    A.

    The parties do not dispute that common questions of fact
underlie the determination of liability on the state law and
ERISA claims. 1 Teutscher’s state law claims turn on his
proving that RSA terminated his employment for disclosing
suspected legal violations. See, e.g., Hager v. County of Los
Angeles, 176 Cal. Rptr. 3d 268, 275 (Cal. Ct. App. 2014)
(“[S]ection 1102.5(b) protects an employee from retaliation
by his employer for making a good faith disclosure of a
violation of federal or state law.”); McVeigh v. Recology
S.F., 152 Cal. Rptr. 3d 595, 619 (Cal. Ct. App. 2013)
(recognizing a viable common law tort claim against an
employer who violates the fundamental public policy
prohibiting retaliatory discharge of an employee for
whistleblowing). To establish a claim of retaliation under
section 510, Teutscher likewise had to show that: (1) he


  1
    The problem of conflicting legal and equitable awards (such as the
legal front pay award and equitable reinstatement and front pay awards
here) appears to arise rarely in the ERISA context because of ERISA’s
broad preemption provision. See 29 U.S.C. § 1144(a) (providing that
ERISA “shall supersede any and all State laws insofar as they may now
or hereafter relate to any employee benefit plan”); Spinelli v. Gaughan,
12 F.3d 853, 857 n.4 (9th Cir. 1993) (recognizing that ERISA preempts
a claim for retaliatory discharge under Nevada law). RSA waived any
preemption defense in this case by failing to assert preemption in the
district court or in this court, and we decline to consider the issue sua
sponte. See Gilchrist v. Jim Slemons Imps., Inc., 803 F.2d 1488, 1497
(9th Cir. 1986) (explaining that an ERISA preemption defense “does not
generally affect jurisdiction” and refusing to reach it for the first time on
appeal); see also Am. Family Mut. Ins. Co. v. Hollander, 705 F.3d 339,
354 (8th Cir. 2013) (declining to consider ERISA preemption sua sponte
on appeal).
                  TEUTSCHER V. WOODSON                      17

engaged in an activity protected under ERISA, (2) he
suffered an adverse employment action, and (3) a causal link
existed between his protected activity and RSA’s adverse
action. Kimbro v. Atl. Richfield Co., 889 F.2d 869, 881 (9th
Cir. 1989). One such ERISA-protected activity is protesting
a legal violation in connection with an ERISA-governed
plan. Hashimoto v. Bank of Haw., 999 F.2d 408, 411 (9th
Cir. 1993); see also 29 U.S.C. § 1140 (making it unlawful to
“discharge . . . any person because he has given information
or has testified or is about to testify in any inquiry or
proceeding relating to [ERISA]”). With respect to both the
state law and ERISA claims, Teutscher endeavored at trial
to show that his reporting the allegedly improper coverage
of Winchell’s legal expenses motivated his termination. By
finding RSA liable on the state law claims, the jury
implicitly found that Teutscher’s protected activity
motivated his discharge. Consistent with this finding, it was
appropriate for the district court to enter judgment for
Teutscher on his ERISA claim as well. Neither party
suggests otherwise.

    The more difficult question—and the one at issue in this
case—is whether the court’s ERISA remedy shares common
questions of fact with the jury’s damages calculation. To
answer that question, we begin by evaluating the forms of
relief available for violations of Teutscher’s state law and
ERISA claims.

    Under California law, “[a] wrongfully discharged
employee . . . is entitled to damages [that] tend to make him
whole” and that “represent just compensation for the loss . . .
sustained by the plaintiff.” Currieri v. City of Roseville,
123 Cal. Rptr. 314, 319 (Cal. Ct. App. 1975); see also Cal.
18                   TEUTSCHER V. WOODSON

Civ. Code § 3333 (“For the breach of an obligation not
arising from contract, the measure of damages . . . is the
amount which will compensate for all the detriment
proximately caused thereby, whether it could have been
anticipated or not.”). One key component of economic loss
is the income that the employee would have earned had she
not been wrongfully discharged. See Horsford v. Bd. of Trs.
of Cal. State Univ., 33 Cal. Rptr. 3d 644, 666 (Cal. Ct. App.
2005). Compensatory damages under California law thus
may include as “backpay” an award of “lost-wages damages
through the time of trial,” id., and “as ‘front pay’ an award
of the salary and benefits a wrongfully demoted or
discharged plaintiff would have earned from employment
after the trial,” Mize-Kurzman v. Marin Cmty. Coll. Dist.,
136 Cal. Rptr. 3d 259, 294 n.17 (Cal. Ct. App. 2012). 2
Because “California courts . . . treat[] front pay as a damage
issue for the trier of fact,” id., a wrongfully discharged
plaintiff is entitled to seek a front pay award from the jury to
compensate for future lost earnings. Pursuant to California’s
pattern jury instructions, this front pay award should consist
of “the present cash value of any future wages and benefits
that [the plaintiff] would have earned for the length of time
the employment with [the defendant] was reasonably certain




 2
    In their briefs, the parties use terms like “lost future earnings” and
“future lost earnings” interchangeably with “front pay.” This is
consistent with how front pay is defined by the California courts. See,
e.g., Horsford, 33 Cal. Rptr. 3d at 665–66 (defining “front pay” as “a
measure of damages for loss of future income” and classifying “loss or
future loss of earnings” as a form of “economic damages”).
                     TEUTSCHER V. WOODSON                             19

to continue.” CACI No. 2433 (“Wrongful Discharge in
Violation of Public Policy—Damages”).

    Although ERISA section 510 does not provide
compensatory damages, Concha v. London, 62 F.3d 1493,
1504 (9th Cir. 1995), it does provide prospective relief for
an employee who suffered retaliatory discharge by giving
courts the equitable authority to reinstate the employee to her
former position. See McBride v. PLM Int’l, Inc., 179 F.3d
737, 744 (9th Cir. 1999) (holding that an ERISA-plan
participant had standing to sue under section 510 for
reinstatement to his former position); see also McLeod v. Or.
Lithoprint Inc., 102 F.3d 376, 379 (9th Cir. 1996) (providing
that reinstatement is “equitable, not compensatory, relief”
for purposes of ERISA section 502(a)(3)). 3 There will be
times, however, when reinstatement, though deserved, is not
feasible, either because “it is impossible to reinstate the
plaintiff or [because] it would be inappropriate due to
excessive hostility or antagonism between the parties.”
Thorne v. City of El Segundo, 802 F.2d 1131, 1137 (9th Cir.

 3
    There is a circuit split on whether “back pay” is also available as an
equitable remedy under section 502(a)(3) of ERISA to restore a plaintiff
to the position she would have enjoyed but for the employer’s illegal
retaliation. Compare Millsap v. McDonnell Douglas Corp., 368 F.3d
1246, 1259–60 (10th Cir. 2004) (holding that back pay is unavailable for
employees discharged in violation of section 510 because it is legal
rather than equitable in nature), with Schwartz v. Gregori, 45 F.3d 1017,
1022–23 (6th Cir. 1995) (holding that back pay is a restitutionary award
available under section 502(a)(3)). The district court in this case held
that back pay is unavailable under ERISA. Because Teutscher has not
appealed that decision, we do not reach that issue here.
20                   TEUTSCHER V. WOODSON

1986). To account for such situations, we have held in other
employment-related statutory contexts that “front pay” may
be awarded in equity as a substitute when the preferred
remedy of reinstatement is unavailable or imprudent. 4 See,
e.g., Traxler v. Multnomah County, 596 F.3d 1007, 1011–12
(9th Cir. 2010) (providing in a Family Medical Leave Act
case that front pay is available only when “reinstatement is
inappropriate, such as where no position is available or the
employer-employee relationship has been so damaged by
animosity that reinstatement is impracticable”); Thorne,
802 F.2d at 1137 (recognizing that front pay may be
available as a remedy under Title VII in lieu of
reinstatement). 5



 4
    At least one of our sister circuits has held that section 502(a)(3) of
ERISA permits an award of front pay “when the preferred remedy of
reinstatement . . . is not appropriate or feasible.” Schwartz, 45 F.3d at
1023. Neither party to this action contests that front pay is an available
remedy for a violation of section 510 in a case asserting only such a
violation, and we therefore assume without deciding that front pay is an
equitable remedy authorized under section 502(a)(3).

 5
    Federal court decisions characterizing front pay as an equitable
remedy under several federal employment statutes have not altered its
characterization as a legal remedy under state law. California courts
have continued to classify front pay as a “damage issue for the trier of
fact” even while recognizing that front pay is treated as an equitable
remedy under certain federal statutes. Mize-Kurzman, 136 Cal. Rptr. 3d
at 294 n.17. And we have upheld jury awards of front pay where state
law provides for that remedy as a form of legal relief. See Passantino v.
Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 512 (9th Cir.
2000) (explaining that “[u]nder Washington law the jury has substantial
autonomy when awarding front pay”); Boehm v. Am. Broad. Co.,
                   TEUTSCHER V. WOODSON                         21

    The district court in this case crafted a hybrid remedy for
Teutscher’s section 510 claim, awarding reinstatement as
well as interim front pay at Teutscher’s full former salary
until reinstatement occurred. We must determine whether,
in granting either front pay or reinstatement, the district court
contravened the findings of fact implicit in the jury’s
damages verdict. We consider each remedy in turn.

                                B.

    RSA argues that the jury’s determination of Teutscher’s
entitlement to front pay as a remedy for his state law claims
foreclosed the district court from granting front pay on
Teutscher’s ERISA claim. We agree.

    Not only is front pay available both in law under
Teutscher’s state law claims and in equity under section 510
of ERISA, as explained above, but in order to obtain either
remedy, Teutscher needed to make the same factual showing
and to meet the same defenses. The district court
consequently should have viewed itself as bound under the
Seventh Amendment to respect the jury’s findings on front
pay when considering Teutscher’s request for a front pay
award under ERISA.

    California law and federal law both treat “front pay [a]s
an award of future lost earnings to make a victim of
discrimination whole.” Cassino v. Reichhold Chems., Inc.,
817 F.2d 1338, 1346 (9th Cir. 1987); see also Horsford,


929 F.2d 482, 488 (9th Cir. 1991) (affirming jury’s front pay award
under California wrongful discharge claims).
22                    TEUTSCHER V. WOODSON

33 Cal. Rptr. 3d at 666 (defining front pay as “a measure of
damages for loss of future income”). And both require a
wrongfully discharged plaintiff to make reasonable efforts to
mitigate an employer’s damages by seeking suitable
alternative employment. See, e.g., Cassino, 817 F.2d at 1345
(“An [Age Discrimination in Employment Act] plaintiff
must attempt to mitigate damages by exercising reasonable
care and diligence in seeking reemployment after
termination.”); Cal. Sch. Emps. Ass’n v. Pers. Comm’n,
106 Cal. Rptr. 283, 286 (Cal. Ct. App. 1973) (“The
discharged employee . . . generally has a duty to mitigate his
damage[s] by seeking other employment through the
exercise of reasonable diligence.”). Thus, under both federal
and California law, front pay awards must be reduced by the
amount that the defendant shows the wrongfully discharged
employee “could earn using reasonable mitigation efforts.”
Cassino, 817 F.2d at 1347; see Parker v. Twentieth Century-
Fox Film Corp., 474 P.2d 689, 692 (Cal. 1970) (in bank)
(setting forth the “general rule” under California law that a
wrongfully discharged plaintiff’s recovery is subject to
mitigation). 6



  6
    In Cassino, the district court submitted the front pay issue to a jury.
817 F.2d at 1347. Discussing why this had occurred in Cassino, we
clarified in Traxler that “[a] trial court, sitting in equity, may . . . employ
an advisory jury” to determine the amount of front pay even though there
is no right to have a jury determine the issue. Traxler, 596 F.3d at 1013.
Neither Cassino nor Traxler addressed the limitations on a district
court’s discretion to award equitable relief where front pay is submitted
to the jury as of right, rather than in an advisory capacity.
                     TEUTSCHER V. WOODSON                               23

    It is clear then that a legal front pay award under
California law turns on the same issues of fact as an equitable
front pay award under section 510 of ERISA: the salary an
employee was reasonably certain to have earned but for his
wrongful discharge, the period over which he would have
earned that salary, and the amount by which the defendant
showed the employee could mitigate his losses by securing
suitable alternative employment. 7

    Accordingly, the jury instruction on damages given in
this case directed the jury to determine the exact issues that
also would be relevant to the district court’s determination
of any equitable front pay award. Specifically, the district
court instructed the jury to include in its award “the present
cash value of any future wages and benefits that [Teutscher]
would have earned for the length of time the employment


 7
    The concurrence suggests that the Supreme Court in Pollard v. E.I.
du Pont de Nemours & Co., 532 U.S. 843 (2001), set forth a “technical
distinction” between legal and equitable front pay, which governs here.
We disagree. Pollard answered the narrow question whether an award
of front pay in lieu of reinstatement was authorized under section 706(g)
of Title VII, 42 U.S.C. § 2000e-5(g)(1), or whether it “constitute[d] an
element of ‘compensatory damages’ under 42 U.S.C. § 1981a and thus
[was] subject to the statutory damages cap imposed by that section.”
532 U.S. at 846. The Court’s holding that front pay was excluded from
the statutory cap turned on the specific statutory language at issue and its
legislative history. Id. at 852–54. Nowhere in Pollard did the Supreme
Court hold that front pay cannot be awarded by a jury as a legal remedy
for a state-law cause of action. Nor did Pollard address Seventh
Amendment constraints on a district court’s award of front pay in equity
when a jury has determined the factual issues relevant to such an award.
24                   TEUTSCHER V. WOODSON

with [RSA] was reasonably certain to continue,” discounted
by any amount that RSA affirmatively proved Teutscher
could earn through reasonable efforts. 8 This is precisely the
inquiry that a district court would conduct to determine an
appropriate award of front pay in equity under a federal
employment statute. 9

    The district court also instructed the jury on the factors it
should take into account to determine the “period that
[Teutscher’s] employment was reasonably certain to have
continued,” such as his “age, work performance, and intent
regarding continuing employment with [RSA];” “[RSA’s]
prospects for continuing the operations involving
[Teutscher];” and “[a]ny other factor that bears on how long
[Teutscher] would have continued to work.” These are the
same factors considered by district courts acting in equity.
See Downey v. Strain, 510 F.3d 534, 544 (5th Cir. 2007)
(identifying factors to consider for determining an equitable


 8
    Although the district court’s mitigation instruction was not a model
of clarity, Teutscher concedes that it made sufficiently clear to the jury
that front pay was subject to mitigation such that the jury could have
awarded zero front pay on that basis alone.

 9
     The concurrence suggests that the qualifier “appropriate” in the
phrase “appropriate equitable relief” in ERISA, 29 U.S.C. § 1132(a)(3),
gives courts leeway to consider additional factors in determining whether
to grant an equitable front pay award and the size of any such award. But
the concurrence does not identify any factors that the district court here
would have considered beyond those it instructed the jury to consider.
Of course, neither the jury—which must follow its instructions on the
law in determining liability and damages, see Opper v. United States,
348 U.S. 84, 95 (1954)—nor the district court may award inappropriate
relief.
                  TEUTSCHER V. WOODSON                       25

award of front pay as “(1) the length of prior employment,
(2) the permanency of the position held, (3) the nature of the
work, (4) the age and physical condition of the employee,
(5) possible consolidation of jobs, and (6) the myriad other
non-discriminatory factors which could validly affect the
employer/employee relationship”); see also Traxler,
596 F.3d at 1014 (approving of the district court’s
consideration of the plaintiff’s age, job skills, and work-life
expectancy to determine a front pay award); Schwartz,
45 F.3d at 1023 (“In determining the amount of front pay, a
district court is to consider a number of factors, including the
employee’s work life expectancy,” and it may also take into
account whether the employee was at-will.).

    To prove up his front pay damages as required by the
jury instruction, Teutscher testified that he would have
continued working at RSA at his 2005 salary until retiring at
around age sixty-seven. Teutscher also presented mitigation
evidence about his efforts to obtain a replacement job after
his discharge (including that he “[w]ent on the Internet” to
find work), and about the salary that he earned through his
post-termination employment at an auto shop and at the San
Bernardino County Sheriff’s Department.           The jury
additionally heard evidence that, almost a year before
Teutscher was discharged, RSA assigned an administrator to
“t[ake] over the legal operations” formerly handled by
Teutscher. The jury thus had all the tools it needed to
determine Teutscher’s entitlement to front pay, and it must
be presumed that the jury followed its instructions and
awarded Teutscher all the lost future income supported by
the evidence. See Weeks v. Angelone, 528 U.S. 225, 234
(2000) (“A jury is presumed to follow its instructions.”).
The jury’s finding as to Teutscher’s entire entitlement to
26                   TEUTSCHER V. WOODSON

front pay—taking into account his age, his work-life
expectancy, the likelihood of RSA’s maintaining his former
position, his reasonable mitigation ability, etc.—is implicit
in its award of $457,250 in compensatory damages. And the
district court was bound by this determination in crafting any
subsequent equitable relief. 10

    It appears that the district court failed to consider,
however, the factual determinations implicit in the jury’s
verdict in awarding equitable front pay. When it ordered
RSA to pay Teutscher $98,235 per year in front pay until
reinstating him, the district court impermissibly concluded
that Teutscher was entitled to $98,235 per year more in front
pay than the jury had found and awarded. The Seventh

 10
     We agree with the concurrence that the jury’s award of other non-
economic damages—such as those compensating for injury to
Teutscher’s character and reputation—would not preclude the district
court from awarding equitable front pay. This occurred in Williams v.
Pharmacia, Inc., 137 F.3d 944 (7th Cir. 1998), in which, as we discuss
in Part VI infra, the Seventh Circuit determined that the jury’s award of
“lost future earnings” to compensate for injury to a discharged
employee’s “professional standing,” “character[,] and reputation” did
not overlap with the district court’s award of front pay in equity under
Title VII. Id. at 952–54. If the jury here had been instructed to award
only the sort of “lost future earnings” at issue in Williams, we would
agree that there would be no Seventh Amendment obstacle to an award
of front pay in equity. But that is not what happened in this case. The
jury instead was instructed to award exactly the same relief that the
district court sought to award in equity: wages and benefits that
Teutscher would have earned at RSA during the time that he was
reasonably certain to have remained at RSA but for the retaliatory
termination, subject to mitigation. Once the jury made those factual
determinations, the district court could not disregard them by making
contrary determinations in equity.
                  TEUTSCHER V. WOODSON                      27

Amendment does not permit the jury’s findings to be cast
aside in this manner. See L.A. Police Protective League v.
Gates, 995 F.2d 1469, 1475 (9th Cir. 1993) (holding that
“the district court erred in engaging in factfinding contrary
to the implicit findings of the jury verdict” and reversing the
district court’s order on equitable relief for that reason).

    Teutscher endeavors to overcome Seventh Amendment
barriers by attempting to parse the jury’s lump-sum award to
show that the jury did not actually grant him any front pay
damages, and then to argue based on this parsing that the
district court remained free to order those damages in equity.
Teutscher rests this argument on the fact that the $457,250
in total damages awarded by the jury was less than the
$491,339 in back pay damages that Teutscher sought. As
such, he contends that because the jury did not even award
him the entirety of his back pay demand, it could not
possibly have awarded him any amount in front pay.

      We reject this argument for several reasons. First, the
lump-sum format of the jury’s verdict prevents us from
ascertaining the relative amounts of back pay and front pay
that the jury awarded. See Squires v. Bonser, 54 F.3d 168,
176 (3d Cir. 1995) (recognizing that “it may not be possible
. . . to isolate the front-pay award since the jury awarded a
lump-sum amount for compensatory damages”). Teutscher
asked the jury to award him back pay, front pay, and
emotional distress damages, and Teutscher did not object to
the lump-sum verdict form for doing so. The jury ruled in
his favor, and because the lump-sum format does not enable
us to parse which portion was front pay, we must assume that
the jury awarded all of the front pay to which it believed
Teutscher was entitled. Indeed, because he agreed to the
28               TEUTSCHER V. WOODSON

lump-sum verdict form, Teutscher waived any argument that
the jury’s verdict should or could be parsed between its
compensatory components, and because he did not appeal
the jury’s damages award, Teutscher waived any argument
that the verdict was flawed because it did not include front
pay. He also fails to provide any authority for the
proposition that the jury must award the entire amount of
back pay requested before it can grant front pay, and,
critically, the jury was not instructed here that it had to do
so. It is thus entirely possible that the damages award
included a substantial front pay component.

    Moreover, even if we could parse the jury award—which
we cannot—it is irrelevant whether the jury actually
included any front pay within its damages award, because an
award of zero front pay would also bind the district court in
its determination of equitable relief. Whether the jury
awarded some amount in front pay or no front pay, it
necessarily made a finding, at Teutscher’s request, on the
total amount of front pay to which Teutscher was entitled.
Because “the verdict in [this] suit could not have been
rendered without deciding [this] matter,” the jury’s verdict
on Teutscher’s entire entitlement to front pay over the course
of his remaining working years was “conclusive.” Russell v.
Place, 94 U.S. 606, 608–09 (1876). The district court’s
decision to then award an additional front pay remedy
disregarded the jury’s finding as to the entire amount of
future compensation that would make Teutscher whole.

                             C.

   The Seventh Amendment analysis leads to a different
conclusion with respect to the reinstatement award. Even
                  TEUTSCHER V. WOODSON                      29

though reinstatement compensates for the same harm as
front pay, some of the factors that underlie an equitable
reinstatement determination differ from those that underlie a
legal front pay determination. Because these factors are only
partially overlapping, some interpretations of the jury’s
award here would conflict with a reinstatement award but
others would not. And because Seventh Amendment
doctrine allows a court to interpret a jury’s award in deciding
whether it would conflict with an equitable award, the
possibility of a non-conflicting interpretation means the
Seventh Amendment does not necessarily bar the
reinstatement award.

    The factors that determine whether a reinstatement
award is appropriate include whether “excessive hostility or
antagonism between the parties” renders reinstatement
practically infeasible, Thorne, 802 F.2d at 1137, and whether
there is a position available to reinstate the employee to
without unfairly causing the displacement of another
employee.       Cassino, 817 F.2d at 1346 (“Although
reinstatement is the preferred remedy [for discriminatory
discharge], it may not be feasible where the relationship is
hostile or no position is available due to a reduction in
force.”); see also Palasota v. Haggar Clothing Co., 499 F.3d
474, 489 (5th Cir. 2007) (Factors to be considered in
deciding the propriety of reinstatement include “whether
positions now exist comparable to the plaintiff’s former
position and whether reinstatement would require an
employer to displace an existing employee.”). The second
of these factors has a clear analog in the front pay calculus,
which turns in part on the permanency of the position that
was held by the plaintiff and the possibility that his position
would have been eliminated through consolidation for a non-
30                  TEUTSCHER V. WOODSON

retaliatory reason. See Downey, 510 F.3d at 544. The jury
in this case was told to consider RSA’s “prospects for
continuing the operations involving [Teutscher].” And it
could have inferred from the increasing supervision and
reassignment of Teutscher’s work that his position would
eventually have been eliminated irrespective of his protected
activity, such as through consolidation or a reduction in the
work force, or through the reassignment of his duties to a
lawyer. 11 Had the jury expressly found that a position for
Teutscher would no longer exist at RSA by the time the trial
concluded, and therefore awarded zero front pay on that
basis, that finding could preclude the district court from
ordering reinstatement.

    By contrast, other factors considered by the jury in
determining front pay have no bearing on the
appropriateness of reinstatement. For instance, in awarding
front pay, the jury was instructed to consider Teutscher’s
ability to mitigate his losses. But ability-to-mitigate is not a
defense to reinstatement. Thus, if the jury decided to award
no front pay on the basis that it believed Teutscher could
obtain a job that paid as much as his job at RSA, that finding




 11
    RSA’s executive director testified that Teutscher’s work needed to
be performed “by a lawyer” who could better understand the issues and
“make informed decision[s].” Teutscher is not a lawyer, and, indeed,
according to evidence submitted by RSA after trial, Teutscher’s position
was eliminated in 2009, with the duties formerly assigned to Teutscher
being transferred to outside counsel.
                     TEUTSCHER V. WOODSON                              31

would not be incompatible with any finding necessary to
award equitable reinstatement.

    Nothing in the evidence presented at trial allows us to
definitively rule out the possibility that the jury denied
Teutscher front pay because it believed Teutscher could have
obtained a job in the future that paid the same as his former
position at RSA.12 As a consequence, it is unclear in this
case whether the jury’s front pay decision turned on a
factor—such as the expected elimination of any position
Teutscher might fill—that would preclude a reinstatement
remedy, or instead on a factor—such as Teutscher’s failure
to fully mitigate—that would not. When, as in this case, the
basis for the jury’s verdict is open to multiple interpretations,
the Seventh Amendment permits the district court to reach


 12
     Although we cannot definitively rule it out, it seems highly unlikely
that the jury awarded Teutscher nothing in front pay due solely to his
failure to mitigate future losses. Failure to mitigate is also a defense to
a back pay claim. See Cordero-Sacks v. Hous. Auth. of City of L.A.,
134 Cal. Rptr. 3d 883, 896–98 (Cal. Ct. App. 2011) (affirming jury
instruction on plaintiff’s duty to mitigate her back pay damages). If the
jury believed Teutscher had the ability to mitigate by finding a job that
paid the same as his job at RSA, that should have caused the jury to
award zero back pay (or zero back pay from the time such a job was
available) as well as zero front pay. But of course the jury awarded
$457,250 in compensatory damages—not zero. Perhaps the jury did
award zero back pay and zero front pay because of failure to mitigate,
and the entire $457,250 was intended to compensate for emotional
distress. Even though this situation seems highly unlikely given that
Teutscher’s counsel argued to the jury that emotional distress damages
are ordinarily tethered to monetary loss, the fact that we cannot rule it
out precludes us from holding that the jury’s verdict necessarily conflicts
with a reinstatement award.
32                TEUTSCHER V. WOODSON

any interpretation that is supported by the evidence. See
Miles v. Indiana, 387 F.3d 591, 600 (7th Cir. 2004)
(explaining that “when several issues have been litigated,
and the jury may have supported its verdict by finding in the
plaintiff’s favor on any one of the issues but which one is not
clear, the court is free to determine the basis of the jury’s
verdict unless extrinsic evidence clearly resolves the issue”).
The district court must then, of course, avoid contradicting
the findings implicit in its interpretation of the verdict when
it acts in equity, but it need not avoid conflicting with other
interpretations of the verdict.

    The Seventh Circuit’s decision in Miles is instructive on
the leeway that the Seventh Amendment provides a district
court when the jury’s verdict is ambiguous. In Miles, the
plaintiff filed suit alleging that the defendants retaliated
against him by transferring him to a position without
supervisory responsibilities and by refusing to promote him
to a managerial role. See 387 F.3d at 595–96. After the jury
returned a verdict in the plaintiff’s favor on the retaliation
claim generally, the plaintiff requested equitable relief of
promotion or front pay from the district court but was denied
both. See id. at 597–98. In considering on appeal whether
the denial of that equitable relief conflicted with the jury’s
verdict, the Seventh Circuit was faced with a situation, much
like that presented here, in which the jury’s verdict could be
interpreted in multiple fashions. Specifically, the jury had
answered in the affirmative a special verdict inquiry that
asked whether the plaintiff had “proven that his complaints
of discrimination were . . . a motivating factor in the decision
of the defendant . . . to transfer him . . . or fail to promote
him.” Id. at 600. In light of the phrasing of the inquiry, the
verdict could be read in one of three ways: the jury could
                   TEUTSCHER V. WOODSON                        33

have found retaliation in the transfer, retaliation in the failure
to promote, or retaliation in both. Id. “Acknowledging the
ambiguity in the jury’s verdict,” the district court
determined, based on the evidence presented at trial, that the
retaliation suffered by the plaintiff was with respect to the
transfer and not the failure to promote. Id. at 600–01; see
also id. at 597–98. It then awarded equitable relief
consistent with that interpretation, ordering the defendants
to reassign the plaintiff to a position with supervisory duties
similar to what he held before the retaliatory transfer. Id. at
598.

    The Seventh Circuit affirmed, explaining that the district
court did not contravene the jury’s findings of fact. Rather,
because “each of the potential theories supporting the verdict
[was] open to contention,” id. at 600, the district court was
free to select the one that it found to be best supported by the
evidence and to determine equitable relief in accord with that
theory. The Seventh Circuit explained that “if the jury had
found retaliation in failing to promote . . . , then the
provision of supervisory duties alone would not make [the
plaintiff] whole” and the district court’s denial of promotion
or front pay would have contravened the jury’s findings. Id.
But because retaliatory transfer was a permissible
interpretation of the jury’s verdict, the denial of these
remedies and the award of supervisory duties instead was
entirely in keeping with the jury’s factual findings. See id.
(“If the jury only found retaliation in the reassignment to a
position that lacked any supervisory responsibility then
providing equitable relief of supervisory responsibility
would make [the plaintiff] whole without the need for either
a promotion or front pay.”).
34                TEUTSCHER V. WOODSON

    The district court in this case likewise could have
determined the basis of the jury’s verdict in order to shape
corresponding equitable relief. Had the district court
permissibly discerned that the jury’s verdict reflected a
finding that Teutscher failed to mitigate his future losses in
that Teutscher should have been able to obtain a job as
remunerative as his position at RSA by the time trial took
place, the district court would have committed no Seventh
Amendment error in proceeding to grant reinstatement.
However, unlike in Miles, 387 F.3d at 600–01, the district
court here did not explicitly determine the basis for the jury’s
verdict or how it comported with the equitable awards.
Instead, the district court cursorily awarded reinstatement,
stating only that it would “not assume an antagonistic
relationship between [Teutscher] and RSA merely because
of the protracted litigation.”

    Because of this lack of explanation, a remand would
ordinarily be required to permit the district court to evaluate
the jury’s verdict in the first instance and to award
reinstatement only if it could explain why doing so did not
conflict with the district court’s interpretation of the theory
underlying the jury’s verdict. Cf. Bartee v. Michelin N. Am.,
Inc., 374 F.3d 906, 913 (10th Cir. 2004) (reversing and
remanding equitable award because the district court’s
“findings [we]re insufficient to enable . . . evaluat[ion] [of]
whether the [court] abused its discretion by basing its
equitable remedy on findings of fact that conflict with those
implied by [the] jury verdicts”). We decline to remand here,
however, because we conclude, as explained below, that
even if reinstatement does not strictly speaking conflict with
                    TEUTSCHER V. WOODSON                            35

the jury’s implicit findings, the reinstatement remedy was
improper for other reasons. 13

                                  V.

    RSA argues that the district court erred in ordering
reinstatement because of its potential overlap with
Teutscher’s damages award and because Teutscher waived
reinstatement when he elected to seek front pay from the
jury. We agree.

    The Seventh Amendment is not the only limit on a
district court’s discretion to shape appropriate equitable
relief: a district court must also avoid awarding a litigant
double recovery for the same harm. See Selgas v. Am.
Airlines, Inc., 104 F.3d 9, 13 (1st Cir. 1997) (explaining that
a district court’s discretion to craft an equitable remedy is
limited by the need “to avoid duplication”). That is, even if
a district court when acting in equity avoids any direct
conflict with a jury’s factual findings, its award may still
overlap with the damages granted by the jury and so provide
the plaintiff a windfall. The doctrine of double recovery is
concerned with this latter problem. This doctrine “dictates
that ‘in the absence of punitive damages a plaintiff can
recover no more than the loss actually suffered.’ The


 13
     The concurrence suggests that we are reversing the reinstatement
remedy under the Seventh Amendment. We are not doing so. Rather,
after identifying an ambiguity that would require a remand to determine
whether there is a Seventh Amendment violation as to reinstatement, we
are reversing instead of remanding in order to avoid the double recovery
and election-of-remedies problems explained in the next Part of this
opinion.
36                TEUTSCHER V. WOODSON

animating principle is simple: when a plaintiff seeks
compensation for wrongs committed against him, he should
be made whole for his injuries, not enriched.” Medina v.
District of Columbia, 643 F.3d 323, 326 (D.C. Cir. 2011)
(citation omitted) (quoting Kassman v. Am. Univ., 546 F.2d
1029, 1033 (D.C. Cir. 1976) (per curiam)); see Dopp v. HTP
Corp., 947 F.2d 506, 517 (1st Cir. 1991) (“[T]he law abhors
duplicative recoveries. That is to say, a plaintiff who is
injured by reason of a defendant’s behavior is . . . entitled to
be made whole—not to be enriched.”). Thus, if a plaintiff
brings two causes of action—one state and one federal—that
arise from the same operative facts and seek relief for the
same harm, the trial court must assure that the plaintiff
recovers only once. Cf. Medina, 643 F.3d at 326 (explaining
that “a jury is not prohibited from allocating a single
damages award between two distinct theories of liability,”
only from awarding it twice).

    The question here is whether Teutscher was unjustly
enriched by being granted reinstatement and compensatory
damages as relief for the same retaliatory discharge. To the
extent that the damages award included a front pay
component covering the same period during which
Teutscher would be reinstated, he clearly was.

    Reinstatement and front pay are alternative remedies,
which cannot be awarded for the same period of time. See
Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846
(2001) (defining “front pay” as “money awarded for lost
compensation during the period between judgment and
reinstatement or in lieu of reinstatement”); Smith v. World
Ins. Co., 38 F.3d 1456, 1466 (8th Cir. 1994) (“Front pay may
be awarded in lieu of, but not in addition, to reinstatement.”);
                  TEUTSCHER V. WOODSON                      37

Morgan v. Ark. Gazette, 897 F.2d 945, 954 (8th Cir. 1990)
(“Having been granted reinstatement, [the plaintiff] cannot
also receive an award of front pay.”); cf. Rogers v. Davis,
34 Cal. Rptr. 2d 716, 719 (Cal. Ct. App. 1994) (explaining
that under California law, a plaintiff may request alternative
remedies, “but may not be awarded both to the extent such
an award would constitute a double recovery”). This is
because front pay is the “monetary equivalent” of
reinstatement. Traxler v. Multnomah County, 596 F.3d
1007, 1012 (9th Cir. 2010) (quoting Pollard, 532 U.S. at 853
n.3). A reinstated individual will earn the salary associated
with the job in question, so a plaintiff granted both front pay
(calculated based on the job’s salary) and reinstatement for
the same time period would essentially obtain his salary
twice over, earning an undue windfall.

    Duplicative recovery is easily avoided when only
equitable relief is at issue—the district court may craft an
award comprising exclusively reinstatement, exclusively
front pay, or interim front pay until reinstatement occurs.
The same avoidance must be achieved when, as in this case,
front pay is submitted to the jury to determine. See Squires,
54 F.3d at 176 (“It is true that if front-pay was awarded [by
the jury], a grant of reinstatement would raise concerns
regarding double recovery.”); Selgas, 104 F.3d at 13–14
(recognizing that the district court may not award
reinstatement that overlaps with the jury’s front pay award).

    Teutscher argues that there was no overlap in this case
because it is clear from the size of the jury’s verdict that it
did not grant him any front pay. Thus, in his view, the
district court could order reinstatement without duplicating
his recovery. But Teutscher again ignores the problem
38                TEUTSCHER V. WOODSON

created by his failure to object to the lump-sum verdict form
used by the jury, which prevents us from parsing the award.
As explained above, we have no way of knowing that
Teutscher is correct in assuming the jury awarded zero front
pay, and there are many possible explanations of the jury
verdict that would contain a front pay component. For
example, the jury may well have decided that, with
reasonable effort, Teutscher should have been able to find
more remunerative work than his two-year stint at an auto
business, and it may have declined to award him a
substantial portion of his back pay request, instead
apportioning damages across both back and front pay.
Simply stated, nothing about the jury instructions or the
evidence presented at trial permits us to conclude that the
jury’s damages award and the court’s reinstatement award
do not overlap. Cf. Selgas, 104 F.3d at 13–14 & n.9
(concluding that a reinstatement remedy did not overlap with
front pay awarded by the jury because it was clear from the
jury instructions and the evidence presented at trial that the
jury was only permitted to determine front pay for an interim
period until the point that the plaintiff could be reinstated).

    The question remains what to do about this potential
overlap. Faced with a similar problem of potentially
duplicative legal and equitable awards, the Third and Eighth
Circuits decided to remand for a new determination of
remedies. See Squires, 54 F.3d at 176–77 & n.16 (vacating
the jury’s award in favor of a new trial on compensatory
damages with more precise instructions); Savarese v. Agriss,
883 F.2d 1194, 1205–06 (3d Cir. 1989) (vacating potentially
overlapping compensatory damages award and equitable
back pay award and remanding for a new trial and
recalculation of back pay by the district judge); Greminger
                    TEUTSCHER V. WOODSON                            39

v. Seaborne, 584 F.2d 275, 278–79 (8th Cir. 1978) (vacating
the jury’s monetary judgment and remanding for the district
court to determine an award of back pay and out-of-pocket
expenses that would not conflict with its equitable
reinstatement remedy). We think the better course on this
record is to simply reverse the equitable reinstatement award
and permit Teutscher to keep the full amount of damages he
obtained from the jury.

    Teutscher’s own litigation choices are what lead us to
this conclusion. On the record before us, it is evident that
Teutscher waived his right to a reinstatement award when he
affirmatively elected to seek front pay from the jury. The
election-of-remedies doctrine, which “refers to situations
where an individual pursues remedies that are legally or
factually inconsistent,” operates to “prevent[] a party from
obtaining double redress for a single wrong.” Latman v.
Burdette, 366 F.3d 774, 781–82 (9th Cir. 2004) (quoting
Alexander v. Gardner-Denver Co., 415 U.S. 36, 49 (1974)),
abrogated on other grounds by Law v. Siegel, 134 S. Ct.
1188 (2014). A party is bound by his election of remedies if
three conditions are met: “(1) two or more remedies . . .
existed at the time of the election, (2) these remedies [are]
repugnant and inconsistent with each other, and (3) the party
to be bound . . . affirmatively chose[], or elected, between
the available remedies.” Id. at 782 (citing 25 Am. Jur. 2d
Election of Remedies § 8). 14



 14
    We have in the past cautioned against overreliance on the election-
of-remedies doctrine. See Haphey v. Linn County, 953 F.2d 549, 552
40                   TEUTSCHER V. WOODSON

    Each of these conditions is met here. As explained
above, reinstatement and front pay are alternative remedies
for retaliatory discharge, which cannot both be awarded for
the same period of time. See, e.g., Pollard, 532 U.S. at 846.
Teutscher proposed the damages instruction that required the
jury to determine the amount of compensation he would
have earned for the remainder of his working life at RSA,
and he did not object when the jury was charged to include
front pay damages in its lump-sum verdict. Teutscher
therefore elected to seek a make-whole remedy from the
jury, which necessarily included a front pay award for the
entire period covered by any potential reinstatement award.

    In sum, having submitted front pay to the jury in the
manner that he did, Teutscher could not then take a second
bite at the apple by seeking a duplicative reinstatement




(9th Cir. 1992) (en banc) (explaining that, rather than relying on election-
of-remedies principles, “state claim and issue preclusion rules should
normally be employed when courts are considering whether utilization
of state court proceedings prevents later utilization of federal
proceedings”). While we believe the procedural history of this case
squarely implicates the election-of-remedies doctrine, we do not intend
to suggest anything about the applicability of the doctrine in other
contexts. See Oubichon v. N. Am. Rockwell Corp., 482 F.2d 569, 572–
73 (9th Cir. 1973) (providing that election of remedies applies “only
where conflicting and inconsistent remedies are sought on the basis of
conflicting and inconsistent rights” and holding that the plaintiff’s use of
union arbitration did not bar his Title VII claim (quoting Newman v. Avco
Corp., 451 F.2d 743, 746 n.1 (6th Cir. 1971))).
                     TEUTSCHER V. WOODSON                              41

award from the court. 15 See Starceski v. Westinghouse Elec.
Corp., 54 F.3d 1089, 1103 & n.17 (3d Cir. 1995) (noting in
support of its decision that reinstatement was inappropriate
that the plaintiff “failed to object when the trial judge
instructed the jury on front pay, even though he intended to
make a motion for reinstatement”). We therefore conclude
that Teutscher is entitled to keep the full amount of
compensatory (and punitive) damages the jury awarded, but
that the district court’s equitable reinstatement award must
be set aside.

                                   VI.

    As a final note, we emphasize that our holding that the
jury’s monetary award precluded the district court’s
equitable award in this case turns on the particular way in
which Teutscher chose to pursue his claims. As the
“‘master’ of his complaint,” Teutscher was entitled to decide
what law to rely on and what remedies to pursue. Ultramar
Am. Ltd. v. Dwelle, 900 F.2d 1412, 1414 (9th Cir. 1990).
There are several ways in which Teutscher likely could have
pursued legal and equitable relief at the same time. Among
them, he could have pursued only back pay from the jury and


 15
    RSA argues that the district court additionally erred by failing to
consider Teutscher’s duty to mitigate when it awarded him front pay at
Teutscher’s full former salary, and that it erred in ordering reinstatement
and interim front pay without making the requisite finding that it was
possible to return Teutscher to the same or a similar position. Because
we conclude that both the equitable reinstatement and front pay awards
must be vacated for other reasons, we do not reach these issues.
42                    TEUTSCHER V. WOODSON

sought a forward-looking remedy only from the court in
equity. 16 Alternatively, Teutscher could have requested that
the jury be instructed to award only that prospective
compensatory relief that did not overlap with an equitable
reinstatement or front pay remedy.

    Such was the case, for instance, in Williams v.
Pharmacia, Inc., 137 F.3d 944 (7th Cir. 1998). There, the
jury was instructed to award “lost future earnings” to
compensate the plaintiff only for the reputational harms she
suffered as a result of the defendant’s discrimination, which
diminished her lifetime earnings capacity generally. Id. at
952 (explaining that the district court “characterized the
jury’s award for lost future earnings as ‘an intangible
nonpecuniary loss’” and “analogized lost future earnings to
an ‘injury to professional standing’ and to ‘injury to
character and reputation’”). To prove up this request, the
plaintiff presented expert testimony about the way in which
her undeservedly poor performance evaluations diminished
her future earnings capacity. See id. Rather than
compensating for this diminished capacity, an equitable


  16
      Had Teutscher done so, the question of equitable front pay could
perhaps have been tried to the district court with an advisory jury as long
as that choice was clear to the parties in advance, so that the district court
would be guided by the jury’s non-binding front pay finding should
reinstatement prove infeasible. See Traxler v. Multnomah County,
596 F.3d 1007, 1013 (9th Cir. 2010) (explaining that “[a] trial court,
sitting in equity, may nevertheless employ an advisory jury” though
“[t]he ultimate decision . . . rests with the court”); see also Pradier v.
Elespuru, 641 F.2d 808, 811 (9th Cir. 1981) (“The parties are entitled to
know at the outset of the trial whether the decision will be made by the
judge or the jury.”).
                      TEUTSCHER V. WOODSON                               43

front pay award granted by the court compensated the
plaintiff for the immediate pecuniary “effects of [the
defendant’s] unlawful termination of her employment” in an
amount “approximat[ing] the benefit [the plaintiff] would
have received had she been able to return to her old job”—
an amount that was capped at a year of wages because her
position would have been eliminated after a year due to
merger. Id. at 953. As a consequence, the jury’s lost future
earnings award avoided overlap with the court’s equitable
remedy of one year of front pay, see id. at 954, and the jury’s
finding about the plaintiff’s lost future earnings capacity thus
did not preclude the district court from granting additional
relief to compensate her for lost wages during her period of
unemployment. 17 See id. at 953 (explaining that even if

  17
     To the extent the lost future wages award in Williams may also have
included some monetary component for the year in which the plaintiff
received front pay, this is explainable by the particular facts of that case.
In Williams, the plaintiff presented evidence—and the jury found—that
her employer “had engaged in sex discrimination and unlawful
retaliation . . . by [both] failing to promote her . . . and terminating her
employment.” 137 F.3d at 947; see also id. at 948–49. Because, as the
Seventh Circuit there explained, “front pay . . . affords the plaintiff the
same benefit . . . as the plaintiff would have received had she been
reinstated,” and because the salary the plaintiff would have received if
reinstated to her previous position was presumably lower than it should
have been as a result of the defendant’s unlawful failure to promote her,
front pay would not have made the plaintiff fully whole. Id. at 952; see
also id. at 953 (characterizing front pay as “compensat[ing] [the plaintiff]
for the immediate effects of [her] unlawful termination”). An additional
award of lost future earnings, which the Seventh Circuit characterized as
a recovery “for lost earning capacity,” would have compensated her for
being unfairly passed over for promotion. Id. at 952 (quoting McKnight
v. Gen. Motors Corp., 973 F.2d 1366, 1370 (7th Cir. 1992)). Consistent
44                   TEUTSCHER V. WOODSON

reinstatement had been awarded by the court in lieu of front
pay, the plaintiff “would still have been entitled to
compensation for her lost future earnings”).

    The legal and equitable awards in this case, however,
present the exact problem that Williams avoided: they were
designed to remedy precisely the same loss. The Seventh
Amendment instructs that it is the jury’s decision on the front
pay question that must be respected and the court’s
conflicting front pay award that must be set aside. Given the
potential for a windfall and in light of Teutscher’s
affirmative election to seek front pay from the jury, the
court’s reinstatement award must be set aside as well.

   We therefore REVERSE the district court’s equitable
awards of reinstatement and front pay. 18




with the non-overlapping nature of these awards, the Seventh Circuit
explicitly recognized that, “[e]ven if [the plaintiff] had been able to
return to her old job, the jury could find that [she] suffered injury to her
future earning capacity even during her period of reinstatement.” Id. at
953 (emphasis added). Here, in contrast, the jury was instructed to
include in its award all of the “damages that [Teutscher] ha[d] proven he
is entitled to recover,” including damages for past and future economic
and non-economic injury.

 18
   We address the cross-appeal by Teutscher’s former counsel, William
N. Woodson, III, in which RSA and Teutscher are both appellees, in a
concurrently filed memorandum disposition.
                  TEUTSCHER V. WOODSON                       45

M. SMITH, Circuit Judge, concurring in the judgment:

    I concur in the judgment of the majority opinion.
However, I disagree with the majority’s Seventh
Amendment analysis in Part IV of the opinion. I disagree
that the district court “should have viewed itself as bound
under the Seventh Amendment” because “Teutscher needed
to make the same factual showing and to meet the same
defenses” in order to obtain both future lost earnings and
reinstatement. Maj. Op. at 21. Instead, I would hold that the
district court’s equitable remedy was an improper abuse of
discretion, because the district court did not give reasons
why additional equitable relief was appropriate after the jury
had already compensated Teutscher for the monetary harm
he suffered.

    The district court’s equitable remedy took the form of
reinstatement, with front pay until reinstatement could
occur. In addition, the jury awarded Teutscher a lump sum
for compensatory damages that included future lost earnings.
In this case, the majority’s constitutional analysis is based on
a conclusion that the factual underpinnings of the jury’s
award for future lost earnings is identical to those supporting
the district court’s equitable award.

    I disagree that this is necessarily the case. Future lost
earnings and front pay are different remedies designed to
address different wrongs, and should be analyzed using a
different analytical framework. As such, a plaintiff can be
awarded both without offending the Constitution.

   As the majority notes, the jury was only empowered to
grant legal relief to Teutscher in the form of compensatory
46               TEUTSCHER V. WOODSON

and punitive damages on the state law claims. Maj. Op. at
13. The district court, in contrast, was only able to grant
“appropriate equitable relief” on the ERISA claim. 29 U.S.C
§ 1132(a)(3); Maj. Op. at 13. The district court was not
authorized to grant Teutscher any form of legal relief,
including compensatory money damages. Mertens v. Hewitt
Assocs., 508 U.S. 248, 255 (1993); see also McLeod v. Or.
Lithoprint Inc., 102 F.3d 376, 378 (9th Cir. 1996).

    It could, however, reinstate Teutscher in his job.
“Reinstatement is equitable, not compensatory relief.”
McLeod, 102 F.3d at 379. Front pay is also equitable,
because it goes hand-in-hand with reinstatement and is to be
used “during the period between the judgment and
reinstatement or in lieu of reinstatement.” Pollard v. E.I. du
Pont de Nemours & Co., 532 U.S. 843, 846 (2001). Although
front pay may look very similar to compensatory damages
for future lost earnings, it is a distinct remedy. The Seventh
Circuit has upheld an award of both future lost earnings and
front pay, and concluded that such an award does not
necessarily constitute a double recovery. Williams v.
Pharmacia, Inc., 137 F.3d 944, 953 (7th Cir. 1998). This is
so because front pay is the “functional equivalent” of the
equitable remedy of reinstatement. Id. at 952. Future lost
earnings, on the other hand, are compensatory damages
calibrated to actual “monetary losses after the date of
judgment.” Pollard, 532 U.S. at 852. The Supreme Court
confirmed this distinction in Pollard, when it held that
equitable front pay was separate from compensatory
damages (both past and future), and was therefore not
subject to the damages cap under Title VII. Id.
                  TEUTSCHER V. WOODSON                        47

    The Williams court also noted that a jury award for future
compensatory damages was not necessarily factually
inconsistent with an equitable front pay award because the
awards can “compensate the plaintiff for different injuries.”
Williams, 137 F.3d at 953. Reinstatement (and front pay)
puts the plaintiff back in his job, or at least pays him as if he
had been reinstated. Future compensatory damages can be
significantly broader than that, and encompass reputational
harms, loss of experience, and other “forward-looking
aspects of the injury caused by the discriminatory conduct.”
Id. Similarly, a compensatory damages award that only gives
the plaintiff the cash value of reasonably-certain future
earnings at a particular place of employment might still leave
the plaintiff suffering harms that might be appropriately
remedied with reinstatement, such as a restored track record
and job history, which could assist the plaintiff in future
employment searches.

    In this way, each remedy can have some unique benefits,
even though the core of the harm (a lost paycheck) can be
remedied by either. In addition to this practical distinction,
the Supreme Court in Pollard made clear that there is a
technical distinction between compensatory damages for
future lost earnings and equitable front pay in lieu of
reinstatement. 532 U.S. at 852. For the two awards to be a
violation of the Seventh Amendment, moreover, the issues
underlying each must be “common to both the legal and
equitable claims.” Dairy Queen, Inc. v. Wood, 369 U.S. 469,
472 (1962). Again, although there is significant overlap
between the compensatory and equitable inquiries, they are
not identical.
48                TEUTSCHER V. WOODSON

    The jury in this case was instructed to calculate “the
present cash value of any future wages and benefits that
[Teutscher] would have earned for the length of time the
employment with Defendant was reasonably certain to
continue,” to be awarded as a lump sum. The implied factual
questions to be decided by the jury were how long Teutscher
was “reasonably certain” to continue his employment with
RSA, and his rate of pay.

     When deciding reinstatement and front pay, on the other
hand, the district court must first and foremost decide
whether any equitable relief is “appropriate . . . to redress”
the defendant’s ERISA violation. 29 U.S.C. § 1132(a)(1)(3).
As the majority notes, the district court should address
factors such as work-life expectancy in making this
determination, which is similar to the question posed to the
jury. Maj. Op. at 24–25. Moreover, it is certainly correct that
the jury’s monetary award is highly relevant in determining
what additional equitable relief, if any, is “appropriate” in a
given situation. But, in my view, the issues common to each
inquiry are not precisely the same such that giving both
awards would trigger a Seventh Amendment concern. The
jury was asked to consider the narrow question of the cash
value of the wages which Teutscher would have earned at
RSA with reasonable certainty. The district court has much
wider latitude when deciding whether reinstatement is
“appropriate,” and if so, whether it is feasible, and if not,
whether to award front pay. In Downey v. Strain, 510 F.3d
534 (5th Cir. 2007) the Fifth Circuit noted that “front pay
can only be calculated through intelligent guesswork, and we
recognize its speculative character by according wide
latitude in its determination to the district courts.” Id. at 544
(quoting Sellers v. Delgado Coll., 781 F.2d 503, 505 (5th
                 TEUTSCHER V. WOODSON                      49

Cir. 1986)). The jury, which has considerably less latitude,
is necessarily engaging in a narrower inquiry than the one
the district court is empowered to undertake.

    In sum, Pollard instructs us that although they may look
very similar, there is a distinction between future
compensatory damages and front pay that we must respect.
I believe that distinction should extend into the Seventh
Amendment context because it may often be perfectly
reasonable for a jury to award future compensatory damages
and for a district court to award reinstatement (with or
without front pay) in a way that is factually consistent with
the jury’s verdict. This indicates that the legal and factual
issues underpinning the awards are not the same. Here, the
jury’s verdict was general, and the district court provided
very little reasoning for its equitable award. Under these
circumstances, I do not think we can confidently draw the
implication that the district court unconstitutionally
disregarded the jury’s factual findings.

    I concur in the judgment, however, because I believe the
district court abused its discretion in granting reinstatement
in this context. As the majority observes, the jury had been
asked to compensate Teutscher for the cash value of his
future paychecks with RSA. The district court’s analysis on
reinstatement is only a paragraph, and appears to assume that
additional equitable relief was “appropriate” to redress the
ERISA violation over and above the jury verdict. If the
district court had provided reasoning to explain why it
believed reinstatement was appropriate to redress non-
monetary wrongs inflicted on Teutscher, it might have
articulated a basis for reinstatement that was in harmony
with the damages award. On this thin record, however, it is
50             TEUTSCHER V. WOODSON

not apparent that is what happened. Therefore, I would
reverse the equitable award as an abuse of discretion.
