concurring in part and dissenting in part:
Part IIA, Front Pay Under Idaho Human Rights Act:
I concur in the holding that front pay is a permissible element of damages under the Human Rights Act. I concur in the analysis by which that conclusion is reached, and concur specifically in the holding that the amount of damages to be awarded is a determination for the trier of fact, in this case the jury.
Part IIB, Front Pay as An Element of Contract Damages:
I concur in the holding that front pay is a permissible element of contract damages. I concur in the conclusion to reverse the district court’s determination that future lost wages are too speculative to ever be established as an element of contract damages.
Part III, Breach of Contract to Reinstate:
I concur in reversing the district court’s determination that O’Dell’s own conduct made reinstatement unworkable and thus excused the J.R. Simplot Company from performance of the contract for reinstatement.
The district court’s conclusion that the jury’s finding of liability and the amount of damages was against the clear weight of the evidence, which the district court based on its reasoning that O’Dell’s conduct made reinstatement unworkable, amounts to a manifest abuse of discretion. I concur in the analysis by which Justice McDevitt arrives at that conclusion.
Part TV, Damages:
I dissent from this Court’s conclusion that the district court properly granted a new trial as to the amount of damages awarded by the jury. The jury has spoken, and their determinations are supported by evidence presented at trial. It is not at all understood how it can be said, all in the same breath, “that although this finding of the trial court (‘that the determination of future lost wages was too speculative to support the verdict’) was error, we affirm the grant of a new trial on the issue of damages.”
Where the trial court is held by this Court to have committed error in the “too speculative” assessment, it stands to reason that the trial court is not substantiated in setting aside the damages award and awarding a new trial on damages.
*826 Part V, Failure to Mitigate as Grounds for New Trial:
I concur in the holding that Simplot’s offer to work in the Food Division cannot be used to establish O’Dell’s failure to mitigate. Other than for the final paragraph, I fully concur with the analysis made by Justice McDevitt. Because the trial court’s discussion of the theory underlying contract breach is inconsistent, its determination that a new trial should be conducted to determine contract damages is not sound. I disagree with the conclusion that we must affirm the contract damage award on the predicate that the trial court incorrectly analyzed a failure to mitigate defense.
Concurring specially, I voice my own view that the jury, on the evidence presented, was exposed to corporate vindictiveness and egregious conduct to a reprehensible degree the likes of which has heretofore not been experienced. The suggestion that O’Dell should take another position in the same company which had so shamefully treated him for his actions in performing the very function for which he was employed, i.e., the duties of monitoring practices and formulating and enforcing policies to eliminate unlawful discrimination and/or sexual harassment, is wholly untenable to the point of being absurd. No reasoning person could be expected, by reasonable persons, to give up the entitlement and claims pertinent to a position which he had performed well and faithfully — with no criticism whatever levelled at his performance, other than implicitly that he was far too faithful in carrying out his duties when it was the reported sexual harassment by a corporate division president which was involved — to take any other proffered company position the duration of which would be entirely at the whim of the corporation. The jury saw its duty under those facts and the court’s instructions, and the jury did its duty, the doing of which was undone by the district court on grounds and reasoning not legally sustainable.
Conclusion:
I concur in the conclusions stated by Justice McDevitt, other than in remanding for reconsideration and more specific findings on the jury’s award of damages, and in particular exemplary damages. In that regard note is taken of Justice McDevitt’s analysis that the district court’s stated basis for reducing the punitive damages award was its bare bones conclusion that “the clear weight of the evidence indicates that only $5000 was justified.” Such is inconsistent with the statement that “there was evidence on which to base a larger award.” Although I am wholly in accord with Justice McDevitt’s view that such is not an adequate basis for discounting by $995,000 the collective judgment of the jury which was arrived at after being properly instructed,4 I cannot agree to putting the district judge to the task of formulating further thoughts as to just why and how the conclusion was reached that the clear weight of the evidence would have allowed the jury to find that the corporate defendant should have been assessed only a paltry $5,000 for the type of unconscionable conduct which is thoroughly displayed in Justice McDevitt’s statement of the facts and circumstances, and likewise set out in the briefs submitted on behalf of O’Dell.
The district judge is one of Idaho’s more experienced and capable trial judges. To remand this case for his reconsideration is to intimate that he is not at all acquainted with the holdings of this Court in Soria v. Sierra Pacific Airlines, 111 Idaho 594, 726 P.2d 706 (1986); 114 Idaho 1, 752 P.2d 603 (1987); Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986); and Dinneen v. Finch, 100 Idaho 620, 603 P.2d 575 (1979). Such innuendo or insinuation is not justified. The very language used by the district *827judge (“the clear weight of the evidence indicates that only $5000 was justified,”) in and of itself demonstrates that the trial court had engaged itself in the weighing process. Having done so, the conclusion was reached by the district court — rightly or wrongly — that the egregious misconduct of the defendant corporation supported a punitive damage award of $5000. It further illustrates the court’s erroneous belief that imposing a $5,000 fine on the Simplot Company and Mr. Basabe would serve the well-recognized twin purposes of punishment and deterrence. Obviously, as may be readily noted from the many important district court rulings which this Court is remanding for reconsideration, the district court did not see many of the O’Dell claims as having much merit, notwithstanding the verdict of the jurors.
The jury, however, saw merit in the plaintiff’s case and it is to their collective judgment we should defer in the first instance. And, had the district court extended proper deference to the jury, we in turn would readily defer to the district court. Here the district court better would have paid heed to the writings of Justice Shepard in Deshazer v. Tompkins, 93 Idaho 267, 460 P.2d 402 (1969):
The trial court lastly tells us that the verdict is contrary to the law and the evidence produced at trial. The earlier decision of this Court, the action of the trial court in ruling on the motion for judgment n.o.v., and the record itself militate against the trial court’s conclusion that the verdict is contrary to the law. The majority opinion disposes of the trial court’s conclusion that the verdict is contrary to the evidence produced at trial. There is then no conclusion but that the trial court committed error in granting a new trial. The majority opinion, however, states that such is not an abuse of discretion and that we must sustain the trial court in his order granting a new trial since a trial court may set aside a jury verdict if it fails to render substantial justice. This the majority opinion holds in spite of the admonition in National Produce Distributors, Inc. v. Grube, 78 Idaho 33, 297 P.2d 284 (1956); Sanchotena v. Tower Co., 74 Idaho 541, 264 P.2d 1021 (1953), and cases cited therein, that,
If the court in the order granting a new trial expressly states the grounds upon which it is granted, this court on appeal will determine the appeal upon the issue of whether the particular ground stated would justify the granting of the motion.
We may conclude that in the instant case the trial court clearly erred in granting a new trial upon the basis or grounds stated in its order. The majority opinion, however, states that the decision of the trial court must be affirmed on the supposed ground that substantial justice has not been done. No statutory authority exists therefor. If we are to believe that the jury is the trier of facts in civil cases, the majority opinion is erroneous. The majority opinion states that no right is denied the plaintiff in this action since he will have another trial. I suggest that after seven and one-half years in litigation the plaintiff will see little value in that conclusion. If he retains enough stamina and faith in our system of justice, he will continue to litigate and may ultimately prevail. Perhaps more than anything else, this case demonstrates the great truth contained in that simple statement, ‘justice delayed is justice denied.’
Deshazer, 93 Idaho at 273-74, 460 P.2d at 408-09. Justice McQuade joined the opinion of Justice Shepard. Accepting that well stated view, it would seem appropriate that this Court not further delay justice, but rather that it respond to its obligation to proceed today to a decision which Judge Schroeder did not reach, and which it is not likely he will reach. Unlike compensatory damages which are subject to a weighing process where a trial judge during the course of the trial is able to subjectively arrive at an amount just as the jury does, there is no such weighing process in regard to assessing punitive damages. Moreover, such matters are better left to a jury. The jury learns of the conduct which is oppres*828sive or otherwise opprobrious, and reduces it to a dollar amount which it believes will serve the twin purposes of deterrence and punishment. In a very recent decision the Supreme Court of the United States upheld, as had the Alabama Supreme Court, a jury award of almost a million dollars in punitive damages. Pacific Mutual Life Ins. Co. v. Haslip, — U.S.-, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991). The jury instruction on punitives in Pacific Mutual reads:
Now, if you find that fraud was perpetrated then in addition to compensatory damages you may in your discretion, when I use the word discretion, I say you don’t have to even find fraud, you wouldn’t have to, but you may, the law says you may award an amount of money known as punitive damages.
This amount of money is awarded to the plaintiff but it is not to compensate the plaintiff for any injury. It is to punish the defendant. Punitive means to punish or it is also called exemplary damages, which means to make an example. So, if you feel or not feel, but if you are reasonably satisfied from the evidence that the plaintiff, whatever plaintiff you are talking about, has had a fraud perpetrated upon them and as a direct result they were injured and in addition to compensatory damages you may in your discretion award punitive damages.
Now, the purpose of awarding punitive or exemplary damages is to allow money recovery to the plaintiffs, it does to the plaintiff, by way of punishment to the defendant and for the added purpose of protecting the public by deterring the defendant and others from doing such wrong in the future. Imposition of punitive damages is entirely discretionary with the jury, that means you don’t have to award it unless this jury feels that you should do so.
Should you award punitive damages, in fixing the amount, you must take into consideration the character and the degree of the wrong as shown by the evidence and necessity of preventing similar wrong.
Pacific Mutual v. Haslip, — U.S. at-, 111 S.Ct. at 1037.
Assuming that the instruction given to the jury on awarding punitive damages in today’s case was in accord with the approved Idaho pattern jury instructions, it would have read:
Element of Damages-Punitive Damages
If you find that the defendant corporation’s acts which proximately caused injury to the plaintiff were an extreme deviation from reasonable standards of conduct and that these acts were performed by the defendant with malice, oppression, or wantonness, you may, in addition to any compensatory damages to which you find the plaintiff entitled, award to plaintiff an amount which will punish the defendant and deter the defendant and others from engaging in similar conduct in the future.
You have been permitted to hear evidence pertaining to defendant’s wealth and financial condition. This evidence was admitted for your consideration only with reference to the question of exemplary or punitive damages in light of all of the other evidence if you determine that such an award would be made in this case.
IDJI 921-1.5 It would be manifestly unjust to return this to the district judge and ask him to decide it any differently than he did, and did full well knowing the directions which this Court laid out in the Soria case, in Quick, and in Dinneen. The court below has fulfilled its function, and because of whatever view it entertained as to the merits of O’Dell’s case, has ruled that the defendant corporation’s outrageous conduct should cost it but $5,000, which in the views which have been for years and years entertained by this Court does not equate with the purpose of punishing this defendant and others from engaging in similar conduct in the future.
*829By comparison, in the case against Sierra Pacific Airlines reviewed in Soria, the jury’s award of $750,000 in punitive damages was upheld by the district court and in turn by this Court. In that case, as in this, the jury’s award was based on a corporation’s conduct in “playing it fast and loose” with the lives and plans of people, which phrase I borrow from one of my North Idaho mentors, Judge McNaughton, who graced this bench in the years 1930-1931, and thereafter returned to his practice in Coeur d’Alene. On the first Soria appeal, in approving the imposition of punitive damages our opinion stated that:
‘An award of punitive damages will be sustained on appeal only when it is shown that the defendant acted in a manner that was “an extreme deviation from reasonable standards of conduct, and that the act was performed by the defendant with an understanding of or disregard for its likely consequences.” ’ Id. (Citation omitted.) ‘The justification for punitive damages must be that the defendant acted with an extremely harmful state of mind, whether that state be termed “malice, oppression, fraud, or gross negligence.” ’ Id., quoting from Morrison v. Quality Produce, Inc., 92 Idaho 448, 450, 444 P.2d 409, 411 (1986).
Soria, 111 Idaho 594, 610-11, 726 P.2d 706, 712-13 (1986).
One of the best-reasoned opinions written by this Court relative to punitive damages is Boise Dodge v. Clark, 92 Idaho 902, 453 P.2d 551 (1969). The Court was unanimous, Justice McQuade writing, joined by Justices McFadden, Donaldson, Shepard, and Spear. The jury’s verdict assessed, in addition to compensatory damages, $12,-500, for wilful or wanton misconduct found to be gross and outrageous, which, according to the court’s instructions would “serve to punish the cross-defendant, Boise Dodge, Inc., and to deter others from the commission of like offenses.” The offense in that case was like a snowball to a glacier in comparing it to the conduct which we review today. It consisted of turning back the mileage on the odometer of a car which was in truth a used car, but which was represented as a demonstrator.
This Court has not always abstained from reaching its own collective decision as to the propriety of a punitive damage award. Clearly we, as well as the trial court, are capable of determining whether the jury’s assessment was a proper award for such egregious conduct as we see before us in this case. The trial judge, having once undertaken to do so, would certainly be placed in an awkward position if directed to try again. In these circumstances there are no issues of credibility of witnesses. Plainly and obviously, we can and should spare the district court and come to our own conclusion, and thereby put the case to a final rest. Justice delayed is justice denied. We should say today that this Court does not agree with the result and accordingly should, in this unique situation, do as/ this Court has done in the past — reach a conclusion as to the validity of the jury’s assessment. Only timidity stands in the way of doing so. If referred to another district judge, that judge would be no better able to come to a conclusion than are we. We can also take note that no inflammatory language was used in final summations to the jury. In fact, plaintiff’s counsel’s statement was very low-key:
If you believe ... that J.R. Simplot Company is responsible for the conduct of John Basabe as its agent in the contractual breaches that occurred, the J.R. Simplot Company is responsible for the manipulative conduct of all of its other agents and that that conduct was extreme, outrageous, beyond acceptable standards, you may award punitive damages, not simply for the simple breach of the contract but for the excessive nature of the conduct. You may award punitive damages which will by punishing the Defendants, serve to deter the Defendants and others from engaging in similar conduct.
These damages aren’t awarded very often, Ladies and Gentlemen. In fact one case in my 12 years of practice; of the attorneys I know I can count on three fingers those who have ever received any kind of punitive damage *830awards. They are designed for the most outrageous of exceptions. And I believe that this is an outrageous situation. I believe that the only way, the only way that the J.R. Simplot Company will correct its corporate ethics, will do differently to others different than it has to Glenn O’Dell, will confront the problem of John Basabe, is if it costs them money. A verdict out of this courtroom that they can take home and pay off in a day’s income would equal the income of all the people in this courtroom is not going to deter the J.R. Simplot Company or others who may think of doing the same thing. And unfortunately there are other employers out there who engage in similar practices. It wouldn’t deter them from doing it again in the future.
What’s an appropriate amount? I can’t tell you. The amount should be something which would punish the Defendant. It should be an amount which would be sufficient to deter, those are the concepts that you deal with. In a company — let’s take just the Land and Livestock Division. The Land and Livestock Division had gross sales of over 200 million dollars in 1987. If you took one half of one percent of their gross sales, one half of one percent would be a million dollars. If you took a quarter of a percent it would be half a million dollars. How much money will send the message to punish this company and deter it from this conduct again in the future?
I believe it’s appropriate in this case, because of the outrageousness of the case. If, in standing here and requesting these damages I offend you or offend your sense of justice, or you have some sense that we have overreached on this case because we can’t communicate in a dialogue about what you feel, then arrive at your own conclusions.6
. The instructions are not found in the record on appeal. It is found that there were sixty-seven instructions given, and that they were read to the jury. In such a case, we presume that they were free of error. The 1987 legislature enacted into law I.C. § 6-1601(9) to provide a statutory definition of punitive damages. That definition was accepted by this Court in promulgating Idaho Jury Instruction (IDJI) 921-1: ‘“Punitive damages’ mean damages awarded to a claimant, over and above what will compensate the claimant for actual personal injury and property damage, to serve the public policies of punishing a defendant for outrageous conduct and of deterring future like conduct.”
. This instruction compares very favorably with the instructions set out by Justice Blackman for an almost unanimous Court in Pacific Mutual v. Haslip.
. Counsel’s figures appear to have been predicated on the testimony of Mr. Gary E. Wallis, an employee of the Simplot Company, found beginning at page 1725 of the reporter’s transcript.