HUNTINGTON, W.Va. (LN) — U.S. District Judge Robert C. Chambers ruled Thursday that a jury cannot determine front pay in a Family and Medical Leave Act case, but allowed a plaintiff’s expert to present calculations for a tax offset to ensure the equitable remedy is not diminished by income taxes.

In Pack v. CSX Transportation, Inc., Chambers granted in part and denied in part CSX’s motion to exclude evidence regarding plaintiff Toby Pack’s alleged future losses and potential tax liability.

Pack, a former CSX employee, sued the railroad company alleging he was fired in retaliation for taking FMLA leave for chronic kidney stones.

The dispute centers on a phone call in August 2017, in which Pack asked a Crew Management Center representative for a personal day because his children were starting a new school. When the representative said a day was not available, Pack said he would have to be laid off under FMLA.

CSX charged Pack with FMLA misuse and terminated him after an investigatory hearing.

Pack’s damages expert, Jeffery Opp, calculated that Pack’s future lost earnings would be $0.52 million and that his pension value would be $0.24 million higher had he not been fired. Opp also projected that a lump-sum damages award would create an additional tax burden of $0.30 million.

CSX argued that Pack’s future-loss calculations were too speculative given his "checkered employment history" and the assumption that he would have worked for CSX until 2039.

Chambers rejected the argument that the calculations should be excluded entirely, noting that CSX could challenge Opp’s assumptions at a later hearing to determine equitable relief.

However, the judge barred Pack from presenting these calculations to the jury, ruling that equitable remedies in FMLA cases are issued by the court, not the jury.

"An advisory opinion would not be helpful, and allowing the jury to hear evidence on front pay might unduly prejudice Defendant," Chambers wrote.

The judge also ruled that the FMLA’s provision for "equitable relief" authorizes the award of a tax gross-up to offset the higher tax burden plaintiffs face when receiving front pay instead of regular wages.

"By receiving a front-pay award instead of reinstatement, a plaintiff faces a higher tax burden than he would if he continued working and receiving regular paychecks," Chambers wrote.

The ruling aligns with most federal courts that have addressed the issue, though it conflicts with a 2014 district court decision in Minnesota that was later reversed on other grounds.

Pack’s attorney did not immediately return a request for comment.

Chambers is a George W. Bush appointee.