O'Kell v. Burgum

── O'Kell v. Burgum ── Court: Court of Appeals for the Ninth Circuit Date: May 20, 2026 Category: General NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 20 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KELLY O'KELL, No. 25-1560 D.C. No. Plaintiff - Appellee, 2:18-cv-00279-SAB v. MEMORANDUM* DOUG BURGUM, in his official capacity as Secretary of the United States Department of the Interior, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Washington Stanley Allen Bastian, District Judge, Presiding Argued and Submitted May 13, 2026 San Francisco, California Before: HAWKINS, GRABER, and McKEOWN, Circuit Judges; Dissent by Judge Hawkins. Plaintiff Kelly O’Kell sued her former employer, the Bureau of Reclamation (“BOR”), under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621–634, alleging that the BOR denied her a promotion in favor of a younger * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. candidate and fired her in retaliation for her complaints. After a bench trial, the district court ruled for Plaintiff and awarded her back pay, eleven years of front pay, and equitable relief. This court vacated the front pay award, determining, as relevant here, that the district court failed to consider evidence of Plaintiff’s ability to find comparable work in the future. On remand, the district court awarded front pay to Plaintiff for the same eleven-year length of time. Defendant appeals the front pay award and, in the alternative, appeals the district court’s denial of Defendant’s motion for a new trial on damages. We vacate the front pay award, and we remand for the district court to recalculate front pay consistent with this disposition. 1. The district court abused its discretion by awarding front pay based on the finding that Plaintiff was not reasonably likely to secure a comparable federal job. See Gotthardt v. Nat’l R.R. Passenger Corp., 191 F.3d 1148, 1155–56 (9th Cir. 1999) (reviewing for abuse of discretion an award of front pay and reviewing for clear error the district court’s related factual findings). The district court erred in two ways. a. First, the district court clearly erred by inferring that, based on the record at trial, Plaintiff was not reasonably likely to relocate for work. That inference finds no support in the record. Plaintiff engaged in a nationwide job search, reflecting a clear willingness to relocate for a comparable federal position. Indeed, 2 25-1560 she accepted a preliminary job offer in West Virginia that was later rescinded. Additionally, Plaintiff expressed a willingness to return to Ohio but could not do so because she could not “afford to move to Ohio right now.” At trial, Plaintiff explained that she rejected a federal job in Fort Irwin, California, because of concerns specific to that location, such as the length of the daily commute. But Plaintiff stated that “there are a lot of other jobs in the world you don’t have to drive that far for.” No evidence at trial suggested that Plaintiff was no longer willing to relocate for a comparable federal job.1 At oral argument, Plaintiff asserted that her expert’s calculation of damages if she did not move, as an alternative to his calculation of damages if she had accepted the job in Fort Irwin, provided evidence of