Guaranteeing “Next-Available Position” Reinstatement: The Fifth Circuit’s Expansive Equitable Remedy in McMillian v. Aberdeen School District

Introduction

The United States Court of Appeals for the Fifth Circuit, in McMillian v. Aberdeen School District, No. 24-60419 (5th Cir. July 23, 2025), delivered a significant pronouncement on the scope of equitable relief under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. After employee Barry L. McMillian prevailed on a jury verdict for retaliation, the district court denied both reinstatement and front pay, finding no existing vacancy for which McMillian was qualified. The Fifth Circuit reversed, holding that a prevailing plaintiff is presumptively entitled to reinstatement to the next available position for which he is qualified, even when no current vacancy exists. The decision clarifies the obligation of trial courts to fashion equitable relief proactively and cements “future reinstatement” as a routine—rather than extraordinary—remedy within the circuit.

Summary of the Judgment

The jury found Aberdeen School District liable for retaliatory termination and awarded back pay and compensatory damages.
The district court declined to grant either immediate reinstatement (because McMillian’s former maintenance position was filled) or front pay (as excessive).
The Fifth Circuit identified legal error in denying all equitable relief, emphasizing:
- Reinstatement is the preferred remedy.
- Future reinstatement (placement into the next vacancy) is a valid, frequently appropriate form of relief.
- The district court failed to evaluate that option and thus abused its discretion.
The case was remanded with instructions to order McMillian’s hiring into the next suitable job and to determine which District positions meet that criterion.

Analysis

1. Precedents Cited

The panel’s reasoning is firmly anchored in a line of Fifth Circuit and Supreme Court cases:

Bogan v. MTD Consumer Group, Inc. (“Bogan I”), 919 F.3d 332 (5th Cir. 2019) – Reinforces that courts generally must choose between reinstatement and front pay for Title VII claimants.
Palasota v. Haggar Clothing Co., 499 F.3d 474 (5th Cir. 2007) – Lists pragmatic factors for gauging feasibility of reinstatement and discusses “innocent incumbent” concerns.
Julian v. City of Houston, 314 F.3d 721 (5th Cir. 2002) – Requires courts to analyze reinstatement even when parties overlook or resist it.
Garza v. Brownsville ISD, 700 F.2d 253 (5th Cir. 1983) – Establishes entitlement to hiring preference for the next comparable opening.
Woodhouse v. Magnolia Hospital, 92 F.3d 248 (5th Cir. 1996) – Permits reinstatement into a different position matching the plaintiff’s qualifications.
Hadley v. VAM P T S, 44 F.3d 372 (5th Cir. 1995) & McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352 (1995) – Identify rare “outlier” situations where neither reinstatement nor front pay is appropriate.
Federal Rule of Civil Procedure 54(c) – Obligates courts to grant whatever relief a party is entitled to, notwithstanding the specific request in pleadings.

2. Legal Reasoning

Abuse-of-Discretion Review. The appellate court reiterated that misapplication of law constitutes abuse of discretion. Denying all equitable relief due to absence of an immediate vacancy was an incorrect legal standard.
Mandatory Consideration of Future Reinstatement. Citing Garza, the panel stressed that hiring preference or future reinstatement is the norm, not the exception. The district court’s failure to engage with this option violated its duty under Julian and Rule 54(c).
Reinstatement Factors Applied. The traditional factors weighed in McMillian’s favor:
- Comparable positions likely exist (maintenance, janitorial, cafeteria, bus driving).
- No strong evidence of continuing animosity.
- No significant restructuring of the District’s workforce or compensation.
- Immediate displacement of an innocent incumbent can be avoided by waiting for the next vacancy.
No “Outlier” Circumstances. Unlike Hadley or McKennon, there were no punitive damages replacing equitable relief, nor post-termination misconduct.
Scope of Remand. The district court must catalogue available positions, match them to McMillian’s qualifications, and monitor future vacancies until an offer is made.

3. Anticipated Impact

Procedural Rigor for District Courts. Trial judges within the Fifth Circuit must now document analyses of future reinstatement whenever immediate reinstatement is infeasible.
Broader Remedy Palette for Plaintiffs. Employees who experience discrimination in small or static workplaces (e.g., school districts, rural hospitals) gain a powerful tool: a court-ordered hiring preference.
Institutional Planning. Public school districts and similarly situated employers must track equitable remedies and budget for potential future hires, even years after litigation ends.
Inter-Circuit Influence. While other circuits acknowledge future reinstatement, McMillian offers one of the clearest appellate mandates, likely to be cited nationwide.
Settlement Leverage. Employers may prefer negotiated front-pay buyouts to avoid judicially supervised future hiring, shifting settlement dynamics.

Complex Concepts Simplified

Reinstatement: A court order returning an unlawfully terminated employee to his job.
Future (or “Next-Available”) Reinstatement: The employee is placed in the next comparable vacancy instead of immediately displacing the current occupant.
Front Pay: Monetary compensation for future wages the employee would have earned, used when reinstatement is infeasible.
Equitable Relief: Non-monetary remedies designed to make the plaintiff whole (e.g., reinstatement, promotion, injunctions).
Innocent Incumbent: An employee currently occupying the plaintiff’s former job who bears no fault and generally may not be terminated to create a vacancy.
Abuse of Discretion: A judicial error where the court applies the wrong legal standard, misinterprets the law, or bases its decision on clearly erroneous facts.
Rule 54(c): Requires courts to grant the relief a party is entitled to, regardless of the precise wording of the request.

Conclusion

McMillian v. Aberdeen School District firmly installs “next-available position” reinstatement as a mainstream, default remedy for victims of employment discrimination in the Fifth Circuit. By reversing the district court’s denial of equitable relief, the Court underscores that lack of a present vacancy is not a legal barrier to meaningful redress. The decision simultaneously protects existing employees (innocent incumbents) and safeguards plaintiffs’ right to be “made whole” through prospective hiring preference. Practitioners litigating Title VII, § 1981, and similar employment statutes must now weigh this potent remedy when shaping pleadings, trial strategies, and settlement negotiations.