Benigno Munoz v. Oceanside Resorts, Inc. , 223 F.3d 1340 ( 2000 )


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                IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                       FOR THE ELEVENTH CIRCUIT            U.S. COURT OF APPEALS
                         _______________________             ELEVENTH CIRCUIT
                                                               AUGUST 25, 2000
                                                              THOMAS K. KAHN
                          Nos. 99-12360 & 99-13346                 CLERK
                         _______________________
                      D. C. Docket No. 96-03132-CV-SH
    
    
    BENIGNO MUÑOZ,
    
                                                 Plaintiff-Appellee,
    
                                     versus
    
    
    OCEANSIDE RESORTS, INC. and MIAMI BEACH
    RESORTS, INC.,
    
                                                 Defendants-Appellants.
    
    
                         _________________________
    
                  Appeals from the United States District Court
                      for the Southern District of Florida
                        _________________________
                               (August 25, 2000)
    
    
    
    Before EDMONDSON, BARKETT and KRAVITCH, Circuit Judges.
    KRAVITCH, Circuit Judge:
    
          In these consolidated appeals, we decide as an issue of first impression in
    
    this circuit whether an employer which demonstrates only that it eliminated an age
    
    discrimination plaintiff’s former position satisfies its burden of proving that it
    
    legitimately would have terminated said plaintiff, thus precluding an award of front
    
    pay. We consider additionally: whether, following a jury verdict for the plaintiff,
    
    the district court improperly denied defendants’ motion for judgment as a matter of
    
    law; whether the district court adequately instructed the jury regarding the
    
    plaintiff’s evidentiary burden; and whether the damages award was excessive.
    
    
    
                 I. BACKGROUND AND PROCEDURAL HISTORY
    
          Plaintiff-Appellee Benigno Muñoz, prior to his termination at age sixty-four,
    
    worked as a room service waiter at the Holiday Inn Oceanside Resort, owned and
    
    operated by Defendants-Appellants Oceanside Resorts, Inc. and Miami Beach
    
    Resorts, Inc. (collectively, the “Resort”). During his twenty-seven years of
    
    employment at the Resort, Muñoz received numerous performance awards and,
    
    excepting the day of his termination, no official reprimands. On May 10, 1995,
    
    however, Manuel Gonzalez, the Resort’s General Manager, issued Muñoz a written
    
    
    
    
                                               2
    reprimand1 after observing Muñoz kissing Susan Eddy, a female co-worker, on the
    
    cheek the day before. Gonzalez instructed Muñoz not to discuss his reprimand
    
    with anyone. Although Muñoz does not specifically admit to the incident for
    
    which he was reprimanded, he concedes that he often greeted female co-workers
    
    with a kiss on the cheek, as is customary among individuals of Cuban decent. He
    
    qualifies, however, that such has been his practice throughout the duration of his
    
    employment; that the Resort’s management was aware, yet previously never
    
    objected to, this practice; and that no female employee ever has complained of this
    
    practice.
    
           The ensuing events are in dispute. The Resort claims, but Muñoz denies,
    
    that Muñoz confronted Mercedes Rea, Gonzalez’s secretary, whose signature
    
    appeared on the reprimand, and chided her for her complicity. Rea allegedly
    
    reported this confrontation to Gonzalez, who ordered Muñoz’s discharge. Jorge
    
    
    
       1
        The reprimand stated:
    
                Mr. Benigno Munoz was witnessed by General Manager Mr. Manuel
                Gonzalez on Tuesday, May 9, 1995 having body contact with an employee
                with a kiss on the face. Let this serve as a final written notice that any
                physical contact whatsoever with employees, guests, and or business
                associates of Oceanside Resorts Inc. will result in immediate termination.
    
    Pl.’s Ex. 41, quoted in Appellant’s Br. at 5. We note that this exhibit was not part of the
    appellate record, as both parties reclaimed their exhibits following trial. See Stipulation
    Permitting Withdrawal of Exhibits, in R.4, Tab 120. Muñoz, however, does not dispute the
    Resort’s reporting of the reprimand’s language.
    
                                                    3
    Antonio, another Resort manager, informed Muñoz that the Resort was terminating
    
    him for insubordination, or more specifically, for having defied Gonzalez’s
    
    instruction not to discuss his reprimand. Antonio directed a security guard to
    
    escort Muñoz from the Resort.
    
           The Resort replaced Muñoz with Luis Salas, who at that time was over forty
    
    years of age, but twenty-three or twenty-four years younger than Muñoz. Salas’s
    
    disciplinary record reveals that prior to his reassignment to Muñoz’s former
    
    position, Salas received at least three written reprimands, yet was not terminated.
    
            After complying with the prerequisite administrative protocol, Muñoz filed
    
    against the Resort a complaint in which he alleged age discrimination in violation
    
    of the Age Discrimination in Employment Act (the “ADEA”), 29 U.S.C. §§ 621-
    
    634, and the Florida Civil Rights Act (the “FCRA”), Fla. Stat. ch. 760. Following
    
    a three-day trial, the jury rendered a verdict in Muñoz’s favor and awarded him
    
    $208,838 in damages: $58,838 in back pay and $150,000 in compensatory
    
    damages for emotional distress and dignitary injury. Additionally, the district
    
    court, on a separate motion, awarded Muñoz $58,838 in liquidated damages2 and
    
    $22,449.80 in front pay, bringing Muñoz’s total damages award to $290,125.80.
    
       2
        When a jury finds that a defendant willfully violated the ADEA, which this jury so found, a
    plaintiff may be awarded liquidated damages equal to the amount of back pay damages. See 29
    U.S.C. § 626(b) (1999) (authorizing liquidated damages as defined in 29 U.S.C. § 216(b)
    (1999)).
    
                                                   4
                                           II. ANALYSIS
    
             Pursuant to Federal Rules of Civil Procedure 50(b) and 59, the Resort filed a
    
    renewed motion for judgment as a matter of law or, alternatively, for a new trial or
    
    remittitur, all of which the district court denied. The Resort appeals these denials.3
    
    Specifically, the Resort asserts: (1) it was entitled to a judgment as a matter of law
    
    because Muñoz failed to rebut sufficiently its nondiscriminatory explanation for
    
    Muñoz’s termination; (2) a new trial is warranted because the district court
    
    inadequately instructed the jury and because the jury’s damages award was
    
    excessive; and (3) the district court erred in not remitting the excessive damages
    
    award. We consider each assertion in turn. For the sake of concision, we treat the
    
    damages issues together.
    
    
    
    A.       The Resort’s Motion for Judgment as a Matter of Law
    
             We review de novo the district court’s denial of the Resort’s Rule 50(b)
    
    
         3
         Two appeals are consolidated before us, Nos. 99-12360-G and 99-13346-G. The first, No.
    99-12360-G, appeals the denial of the Resort’s motions for summary judgment and judgment as
    a matter of law. Because this appeal was filed prior to the entry of final judgment, these denials
    were not “final decisions” as defined by 28 U.S.C. § 1291 and thus were not appealable to this
    court. See Pitney Bowes, Inc. v. Mestre, 
    701 F.2d 1365
    , 1368 (11th Cir. 1983). We therefore
    lack jurisdiction over appeal No. 99-12360-G and dismiss it. The Resort also appeals the denial
    of its summary judgment motion in its second appeal, No. 99-13346-G; once a trial on the merits
    has occurred, however, the denial of such a motion is unreviewable on appeal. See Wenzel v.
    Boyles Galvanizing Co., 
    920 F.2d 778
    , 782 (11th Cir. 1991); accord Jarrett v. Epperly, 
    896 F.2d 1013
    , 1016 & n.1 (6th Cir. 1990).
    
                                                    5
    motion, applying the same standard as the district court. See Boeing Co. v.
    
    Shipman, 
    411 F.2d 365
    , 374 (5th Cir. 1969) (en banc).4 In considering the
    
    evidence presented at trial, we draw all factual inferences and resolve all credibility
    
    determinations in the favor of the nonmoving party. See id. A Rule 50(b) motion
    
    should only be granted where “reasonable [jurors] could not arrive at a contrary
    
    verdict.” Id.
    
           Muñoz concedes that he has no direct evidence of the Resort’s intent to
    
    terminate him because of his age. Relying instead on circumstantial evidence,
    
    Muñoz alleged his age discrimination claim within the analytical framework
    
    outlined in McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 802, 
    93 S. Ct. 1817
    ,
    
    1824 (1973). See Turlington v. Atlanta Gas Light Co., 
    135 F.3d 1428
    , 1432 (11th
    
    Cir.), cert. denied, 
    525 U.S. 962
    , 
    119 S. Ct. 405
     (1998) (applying the McDonnell
    
    Douglas framework to an ADEA claim). Once Muñoz established a prima facie
    
    case of discrimination, an intermediate burden of production shifted to the Resort
    
    to proffer a legitimate, nondiscriminatory reason for Muñoz’s termination. See id.
    
    The Resort satisfied that burden by explaining that it terminated Muñoz for
    
    insubordination. Muñoz was then obliged to introduce evidence demonstrating
    
    
       4
        Decisions by the former Fifth Circuit issued before October 1, 1981, are binding as precedent
    in the Eleventh Circuit. See Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1207 (11th Cir. 1981)
    (en banc).
    
                                                   6
    that the Resort’s proffered reason was pretextual, see id., which the Resort
    
    contends Muñoz failed to do. We disagree. At trial, Muñoz presented a substantial
    
    quantum of evidence from which a reasonable jury could infer that the Resort’s
    
    proffered explanation for his termination was pretextual.5 We focus on the
    
    evidence most critical to Muñoz’s satisfaction of this burden: Muñoz’s assertion
    
    that he did not engage in insubordinate conduct.
    
          Muñoz testified that he never confronted Rea in defiance of Gonzalez’s
    
    instruction not to discuss his reprimand.6 Muñoz’s testimony directly contradicted
    
    that of Rea,7 creating a factual conflict properly resolved by the jury. The jurors
    
    could have credited the testimony of either Muñoz or Rea, as such determinations
    
    are within their province, and neither the district court nor this court may substitute
    
      5
       Muñoz’s evidence of pretext included:
    
          •   Muñoz was employed with the Resort for twenty-seven years, during which he never
              before received a documented reprimand;
          •   the Resort’s management was aware of Muñoz’s practice of kissing female
              coworkers, but never before admonished him for it;
          •   Muñoz was terminated following a single warning, which Muñoz alleges contravened
              the Resort’s policy as outlined in its employee handbook that termination would
              follow three warnings;
          •   the reprimand was written in English, a language Muñoz neither reads nor speaks;
          •   Salas, Muñoz’s replacement, had received several reprimands during the course of his
              employment;
          •   a room service waiter of Muñoz’s age did not comport with the “trendy” image the
              Resort was attempting to cultivate.
      6
       See Trial Tr. at 220, in R.6.
      7
       See id. at 318, in R.6.
    
                                                 7
    its judgment for theirs. See Boeing, 411 F.2d at 375. The Resort, however,
    
    contests the relevance of whether or not the confrontation actually occurred; in its
    
    own words, “[a]ll that matters is whether Rea told, truthfully or not, Gonzalez of
    
    the alleged confrontation.”8 In the Resort’s view, Gonzalez’s subjective belief that
    
    the confrontation occurred justified his decision to terminate Muñoz. The Resort,
    
    however, underestimates the effect that impugning Rea’s credibility might have
    
    had on the jury. Rea was the Resort’s only witness at trial9 and therefore the only
    
    person to testify that she informed Gonzalez of a confrontation. If the jury rejected
    
    Rea’s testimony concerning the alleged confrontation, it likewise could reject her
    
    further testimony regarding the reporting of that incident. A reasonable jury
    
    accordingly could accept Muñoz’s theory of events: that Gonzalez concocted a
    
    scheme that included both a bogus reprimand and a subsequent false accusation of
    
    insubordination to cover his discriminatory desire to discharge an older employee.
    
          The Resort contends that even if Muñoz produced sufficient evidence
    
    suggesting pretext, it nonetheless was entitled to judgment as a matter of law
    
    because Muñoz failed to introduce any evidence of the Resort’s intent to
    
    discriminate against him on the basis of his age. Essentially, the Resort argues that
    
    
      8
       Appellant’s Br. at 10.
      9
       Gonzalez was unavailable to testify due to his death prior to trial.
    
                                                    8
    Muñoz may not survive its motion merely by discrediting the Resort’s proffered
    
    reason for the termination. In Reeves v. Sanderson Plumbing Products, Inc., __
    
    U.S. __, 
    120 S. Ct. 2097
    , 2109 (2000), however, the Supreme Court held to the
    
    contrary, explaining that “a plaintiff’s prima facie case, combined with sufficient
    
    evidence to find that the employer’s asserted justification is false, may permit the
    
    trier of fact to conclude that the employer unlawfully discriminated.” Although the
    
    Resort is correct that under the McDonnell Douglas framework, a plaintiff
    
    shoulders the ultimate burden of proving that age motivated the adverse
    
    employment action, see Texas Dep’t of Community Affairs v. Burdine, 
    450 U.S. 248
    , 256, 
    101 S. Ct. 1089
    , 1095 (1981), the plaintiff may satisfy this burden
    
    indirectly by undermining the legitimacy of the employer’s proffered reason. To
    
    require otherwise would impose on the plaintiff the encumbrance of producing
    
    direct evidence of discrimination within an evidentiary framework specifically
    
    designed for situations in which no such evidence is available.
    
    
    
    B.    The Resort’s Challenge to the Adequacy of the Jury Instructions
    
          The Resort asserts that it is entitled to a new trial because the district court
    
    inadequately instructed the jury of Muñoz’s evidentiary burden both for
    
    establishing his prima facie case and for demonstrating that the Resort’s proffered
    
    
                                               9
    reason for his termination was pretextual. We review a district court’s instructions
    
    to a jury as outlined in Pesaplastic, C.A. v. Cincinnati Milacron Co., 
    750 F.2d 1516
    , 1525 (11th Cir. 1985), looking first to “whether the charges, considered as a
    
    whole, sufficiently instruct the jury so that the jurors understand the issues
    
    involved and are not misled.” Provided the instructions accurately convey the law,
    
    the district court is afforded great discretion in the wording and style of its
    
    instructions. See Carter v. DecisionOne Corp., 
    122 F.3d 997
    , 1005 (11th Cir.
    
    1997).
    
               We have reviewed the district court’s instruction regarding the four elements
    
    necessary to establish a prima facie case of age discrimination10 supported by
    
    circumstantial evidence and find them to be substantively identical to those this
    
    court enumerated in Bogle v. Orange County Board of County Commissioners,
    
    
    162 F.3d 653
    , 656-57 (11th Cir. 1998) (quoting Turlington, 135 F.3d at 1432):
    
    
    
       10
            The district court instructed the jury:
    
                      In order for the plaintiff to prevail on his claim of age discrimination
                      the plaintiff must prove the following four essential elements by a
                      preponderance of the evidence: First, that plaintiff was within the
                      protected group, that is, was 40 years of age or over; second, that
                      plaintiff was adversely affected by an employment decision, namely,
                      being discharged from employment; and third, that plaintiff was
                      qualified for the position from which he was discharged; and finally,
                      fourth, that plaintiff was replaced by a younger person.
    
    Trial Tr. at 497, in R.7.
    
                                                        10
                 “(1) that [plaintiff] was a member of the protected group of
                 persons between the ages of forty and seventy; (2) that
                 [plaintiff] was subject to adverse employment action; (3)
                 that a substantially younger person filled the position . . .
                 from which he was discharged; and (4) that [plaintiff] was
                 qualified to do the job [from which he was discharged].”
    
    The Resort points out that the district court’s framing of the elements of the prima
    
    facie case differs from that discussed in this court’s decision in Earley v. Champion
    
    International Corp., 
    907 F.2d 1077
    , 1082 (11th Cir. 1990), which identified as one
    
    of its elements: “evidence by which a fact finder might reasonably conclude that
    
    the employer intended to discriminate on the basis of age.” Earley, however, is
    
    inapposite because the claim therein arose from an allegedly discriminatory
    
    reduction in force. As we recognized in Isenbergh v. Knight-Ridder Newspaper
    
    Sales, Inc., 
    97 F.3d 436
    , 440 (11th Cir. 1996), “case law suggests that the standard
    
    for establishing a prima facie case depends on whether the case concerns a
    
    reduction in force as opposed to a termination.” Because Munoz’s claim, like that
    
    at issue in Bogle, was born of an allegedly discriminatory termination, we find that
    
    the district court satisfactorily articulated the elements of a prima facie case.
    
          Regarding Muñoz’s evidentiary burden for demonstrating that the Resort’s
    
    proffered reason for his termination was pretextual, the district court gave the
    
    following instruction: “In order to find that the reason was pretextual you must find
    
    both that the reason was false and that the discrimination was the real reason for
    
                                               11
    discharging the plaintiff.”11 The Resort does not challenge the correctness of this
    
    instruction; rather, it complains that the district court improperly declined to
    
    supplement the instruction by admonishing further that “‘[a] plaintiff may not
    
    establish that an employer’s proffered reason is pretextual merely by questioning
    
    the wisdom of the employer’s reason.’” Tidwell v. Carter Products, 
    135 F.3d 1422
    , 1427 (11th Cir. 1998) (quoting Combs v. Plantation Patterns, 
    106 F.3d 1519
    ,
    
    1543 (11th Cir. 1997)). Although the Resort is correct that a jury’s evaluation of a
    
    proffered reason should focus on its legitimacy rather than its wisdom, “the trial
    
    court’s refusal to give a requested instruction is not error where the substance of
    
    that proposed instruction was covered by another instruction which was given.”
    
    Pesaplastic, 750 F.2d at 1525. This applies here. The district court’s instruction
    
    required the jury to determine that the Resort’s proffered reason was false in order
    
    to deem it pretextual; because this burden was more onerous than that implicit in
    
    the Resort’s requested proviso, the district court did not err in rejecting it.
    
    
    
    
    C.          The Alleged Excessiveness of the Damages Award
    
                The Resort next asserts that Muñoz’s damages award was excessive, thereby
    
    
         11
              Trial Tr. at 498, in R.7, Tab 128.
    
                                                   12
    warranting either a new trial or remittitur. The damages award was segregated into
    
    four categories: (1) back pay and (2) damages for emotional distress and dignitary
    
    injury, the values of which were determined by the jury; and (3) liquidated
    
    damages and (4) front pay, the values of which were determined by the district
    
    court. The Resort challenges all but the liquidated damages award.
    
    
    
          1.     Back Pay
    
          In an age discrimination suit, a successful plaintiff receives back pay from
    
    the date of his or her termination to the date of trial. See Kolb v. Goldring, Inc.,
    
    
    694 F.2d 869
    , 874 n.4 (1st Cir. 1982). The Resort does not dispute that the jury’s
    
    award of $58,838 approximates Muñoz’s lost earnings for this four-year
    
    period—May 1995 to June 1999. Rather, the Resort asserts that Muñoz
    
    discontinued his efforts to find employment once he began collecting Social
    
    Security benefits and therefore his recovery for back pay should have been limited
    
    accordingly. We find no merit in this assertion. The failure to mitigate one’s
    
    damages is an affirmative defense, and as such, the Resort bore the burden of
    
    demonstrating at trial that the plaintiff did not seek comparable employment
    
    following his termination. See Weaver v. Casa Gallardo, Inc., 
    922 F.2d 1515
    ,
    
    1527 (11th Cir. 1991) (superseded by statute on other grounds). The only attempt
    
    
                                              13
    the Resort made to prove that Muñoz had ceased searching for replacement
    
    employment was to question him on cross-examination about his efforts, and
    
    Muñoz replied that although he discontinued recording his inquiries in 1996, he
    
    consistently pursued employment during this period.12 Sufficient evidence
    
    existed, therefore, from which a reasonable jury could have concluded that Muñoz
    
    did mitigate his damages.
    
             The Resort also complains that the jury was permitted to include in its back
    
    pay award the value of Muñoz’s employee “fringe benefits,” such as the reduced
    
    cost of meals, health insurance coverage, and vacation pay. This circuit repeatedly
    
    has held that such benefits should be recouped in a back pay award. See, e.g.,
    
    Crabtree v. Baptist Hosp. of Gadsden, Inc., 
    749 F.2d 1501
    , 1502 (11th Cir. 1985).
    
    Muñoz submitted to the jury for use in its damages calculations an annual income
    
    estimate, supported by testimony, which included these items. The Resort
    
    maintains that Muñoz inflated the value of the benefits, although it did not offer
    
    any competing figures to the jury. On appeal, this court reviews an award of
    
    pecuniary damages (such as back pay) to determine whether it exceeds “the
    
    maximum possible award that is reasonably supported by the evidence in the
    
    record.” Deakle v. John E. Graham & Sons, 
    756 F.2d 821
    , 827 (11th Cir. 1985).
    
    
      12
           See Trial Tr. at 272, in R.6, Tab 127.
    
                                                    14
    Because the estimate submitted by Muñoz was the only one before the jury, and
    
    because the jury’s award fell within this estimate, the back pay award was not
    
    excessive.
    
          2.     Damages for Emotional Distress and Dignitary Injury
    
          Although damages for emotional distress and dignitary injury are
    
    unavailable under the ADEA, see Goldstein v. Manhattan Indus., Inc., 
    758 F.2d 1435
    , 1446 (11th Cir. 1985), the FCRA authorizes such recovery, see Fla. Stat.
    
    ch. 760.11(5) (1999) (“section 760.11(5)”). The Resort asserts, however, that this
    
    category of damages is legally unavailable to Muñoz because he failed to
    
    corroborate his claims to these injuries with objective medical testimony. In
    
    advocating this standard of proof, the Resort relies exclusively on Time Insurance
    
    Co. v. Burger, 
    712 So. 2d 389
    , 393 (Fla. 1998), in which the Florida Supreme
    
    Court imposed such an evidentiary requirement on plaintiffs suing their health
    
    insurers under section 624.155(1)(b)(1) of the Florida Statutes for emotional
    
    distress resulting from a delay in the receipt of health care services. Compelled by
    
    its recognition that section 624.155(1)(b)(1) created a statutory exception to the
    
    common law “impact rule,” which, in the absence of physical injury, generally
    
    precludes the recovery of damages for emotional distress caused by negligence, the
    
    Burger court construed narrowly the scope of recovery for such damages and thus
    
    
                                             15
    formulated this heightened standard of proof. See id. at 393. We find Burger
    
    inapposite, however, because section 760.11(5), unlike section 624.155(1)(b)(1),
    
    does not derogate the impact rule. Indeed, the impact rule is not implicated in
    
    claims involving intentional conduct. See Brown v. Cadillac Motor Car Div., 
    468 So. 2d 903
    , 904 & n.* (Fla. 1985). The rationale underlying this limitation is
    
    instructive: “Where the psychic injury is based on simple negligence, proof of
    
    impact or objective physical manifestation affords a guarantee that the mental
    
    distress is genuine.” Williams v. City of Minneola, 
    575 So. 2d 683
    , 693 (Fla. 5th
    
    Dist. Ct. App. 1991) (quoting Eastern Airlines, Inc. v. King, 
    557 So. 2d 574
    , 579
    
    (Fla. 1990) (Ehrlich, C.J., specially concurring)). In contrast, where more
    
    egregious intentional conduct precipitates the emotional injury, its own
    
    invidiousness validates the sincerity of the injury. See id. Because illegal
    
    discrimination qualifies as such a condemnable intentional act, the emotional and
    
    dignitary harms it can cause are neither unforeseeable nor particularly enigmatic.
    
    See, e.g., Hill v. Xerox Corp., 
    998 F. Supp. 1378
    , 1384 (N.D. Fla. 1998)
    
    (recognizing the intangible injuries attending age discrimination). Seemingly
    
    underscoring this observation, section 760.11(5) specifies that employees
    
    aggrieved by discrimination may seek “damages for mental anguish, loss of
    
    dignity, and any other intangible injuries.” Fla. Stat. ch. 760.11(5) (1999). By
    
    
                                             16
    contemplating recovery for damages that cannot be corroborated by medical
    
    testimony, the provision implicitly rejects the standard of proof articulated in
    
    Burger. Accordingly, we conclude that Muñoz’s claim to damages for these
    
    injuries was permissible and that his testimony concerning the emotional and
    
    dignitary impact of the termination was sufficient to justify the jury’s award.
    
          Alternatively, the Resort contends that the jury’s award of $150,000 was so
    
    excessive that it demonstrates that the jury was swayed by passion and prejudice.
    
    We disagree. As we have observed, “[t]he standard of review for awards of
    
    compensatory damages for intangible, emotional harms is deferential to the fact
    
    finder because the harm is subjective and evaluating it depends considerably on the
    
    demeanor of the witnesses.” Ferrill v. Parker Group, Inc., 
    168 F.3d 468
    , 476 (11th
    
    Cir. 1999) (internal quotation omitted). We therefore will disturb such a jury
    
    verdict only “where the verdict is so excessive as to shock the conscience of the
    
    court.” Goldstein, 758 F.2d at 1447. After reviewing the record, we conclude that
    
    this was not such a verdict. See, e.g., Hill, 998 F. Supp. at 1384 (upholding a
    
    jury’s verdict of $457,000 for emotional distress).
    
          3.     Front Pay
    
          The ADEA accords the district court broad remedial authority “to grant such
    
    legal or equitable relief as may be appropriate to effectuate the purposes of [the
    
    
                                              17
    ADEA].” 29 U.S.C. § 626(b) (1999). In a case of termination, such equitable
    
    relief assumes the form of either reinstatement or front pay for a finite future
    
    period. The district court enjoys wide discretion in selecting which remedy to
    
    impose against an employer found liable under the ADEA, and this court will not
    
    modify the remedial package absent an abuse of that discretion. See Goldstein,
    
    758 F.2d at 1448. Here, the district court opted to award Muñoz $22,449.80 in
    
    front pay.
    
          The Resort contends that the front pay award was inappropriate because of
    
    its speculative nature. It points out that the only assurance the district court
    
    received that Muñoz would have continued in his position had he not been
    
    terminated was Muñoz’s own testimony, in which he stated an intent to remain
    
    employed until the age of seventy. Muñoz’s intent, the Resort argues, was an
    
    insufficient basis for awarding front pay. As we have observed, however,
    
    “awarding prospective relief involves some risk of uncertainty, but that in itself
    
    does not preclude an award of such relief. [After all, d]istrict courts have had
    
    considerable experience with damages for future wages” in other contexts. Castle
    
    v. Sangamo Weston, Inc., 
    837 F.2d 1550
    , 1562 (11th Cir. 1988) (internal quotation
    
    omitted). Moreover, when age discrimination plaintiffs are near the age of
    
    retirement, this court has signaled its comfort with awarding front pay. In Lewis v.
    
    
                                               18
    Federal Prison Industries, Inc., 
    953 F.2d 1277
    , 1280 (11th Cir. 1992), this court
    
    cited with approval Blum v. Witco Chemical Corp., 
    829 F.2d 367
    , 376 (3d Cir.
    
    1987), in which the Third Circuit held that awarding front pay to plaintiffs within
    
    eight years of normal retirement age did not require unreasonable speculation. At
    
    the time of his termination, Muñoz, after being employed by the Resort for twenty-
    
    seven years, was within six years of retirement; at the close of trial, he was but one
    
    year away. We conclude that under these circumstances, awarding Muñoz one
    
    year’s worth of front pay was not an abuse of the district court’s discretion.13
    
            The Resort next asserts that Muñoz was ineligible to receive front pay
    
    because, even had Muñoz not been terminated in 1995, he nonetheless would not
    
    have been employed by the Resort at the time of trial. Rea testified on the Resort’s
    
    behalf that sometime after Muñoz was terminated, the Resort eliminated its room
    
    
    
    
       13
         The Seventh Circuit’s decision in Hybert v. Hearst Corp., 
    900 F.2d 1050
     (7th Cir. 1990),
    does not persuade us otherwise. The Hybert court vacated a plaintiff’s five-year front pay award
    for being too speculative. In cases such as Castle and Lewis, however, we have rejected this
    notion.
            Notably, the Hybert court predicated its rejection of the front pay award in part on the
    existence of a liquidated damages reward: “[L]iquidated damages are a relevant consideration in
    determining whether and how much front pay should be awarded.” 900 F.2d at 1056. This
    court, on the other hand, explicitly has held that a liquidated damages award does not influence
    whether or not front pay is also awarded. See Castle, 837 F.2d at 1562 (“Liquidated damages are
    not meant to replace equitable relief under the ADEA.”). This underscores the different
    approaches taken by this and the Seventh Circuit with regard to front pay awards and further
    demonstrates the immateriality of Hybert to our analysis here.
    
                                                  19
    services and, accordingly, all room server positions.14 Although the Resort did not
    
    argue to the jury that this change in circumstances should limit Muñoz’s back pay
    
    award, it did aver before the district court in a post-trial motion that it precluded
    
    front pay.15 This court has acknowledged that the elimination of a plaintiff’s
    
    former position prior to trial may preclude the receipt of front pay. See Nord v.
    
    U.S. Steel Corp., 
    758 F.2d 1462
    , 1473 n.11 (11th Cir. 1985); accord Sandlin v.
    
    Corporate Interiors, Inc., 
    972 F.2d 1212
    , 1215 (10th Cir. 1992); Graefenhain v.
    
    Pabst Brewing Co., 
    870 F.2d 1198
    , 1209 (7th Cir. 1989). As we have observed,
    
    “[t]he purpose of the ADEA . . . is to make the plaintiff ‘whole,’ to restore the
    
    plaintiff to the economic position the plaintiff would have occupied but for the
    
    illegal discrimination of the employer.” Castle, 837 F.2d at 1561. Awarding front
    
    pay to a plaintiff who ultimately would have been terminated confers a windfall
    
    upon that plaintiff and contravenes the remedial purpose of the ADEA.
    
              The Resort does not dispute that it bore the burden of proving by a
    
    preponderance of the evidence that it would not have employed Muñoz at the time
    
    
    
       14
            See Trial Tr. at 382-83, in R.7.
       15
         See Defs.’ Opp’n to Pl.’s Proposed Final J. at 2-3, in R.4, Tab 129. In this motion, the
    Resort did suggest that the back pay award improperly included damages for the period between
    the elimination of Muñoz’s former position and trial. See id. at 3 n.1, in R.4, Tab 129. Back
    pay, however, was before the jury; the Resort’s failure to raise this issue at trial, therefore,
    waives it.
    
                                                   20
    of trial. See Lewis v. Smith, 
    731 F.2d 1535
    , 1539 (11th Cir. 1984); Walker v. Ford
    
    Motor Co., 
    684 F.2d 1355
    , 1362 & n.9 (11th Cir. 1982). It argues instead that
    
    because Muñoz never refuted its factual allegation that all room server positions
    
    had been legitimately eliminated, it satisfied that burden, and, accordingly, the
    
    district court’s decision to award front pay in light of this uncontroverted evidence
    
    was an abuse of discretion. This court considered a similar argument in
    
    Archambault v. United Computing Sys., Inc., 
    786 F.2d 1507
     (11th Cir. 1986).
    
    There, an ADEA plaintiff asserted that although the employer introduced evidence
    
    that it had eliminated the plaintiff’s former position, it failed to demonstrate further
    
    that it actually would have terminated the plaintiff rather than reassign him to some
    
    other position. See id. at 1515. The court, however, disagreed with the plaintiff’s
    
    assessment of the evidence and determined that the employer offered sufficient
    
    evidence that the plaintiff was unqualified for any other position and therefore
    
    would have been terminated. See id. Consequently, the court did not decide the
    
    threshold issue of whether an employer satisfies its burden of proof by
    
    demonstrating only that it eliminated the plaintiff’s former position. The issue is
    
    now squarely before us, as the Resort’s only evidence that it would not have
    
    employed Muñoz at the time of trial is its allegation that it has discontinued its
    
    room services. We find that this evidence was insufficient to satisfy the Resort’s
    
    
                                              21
    burden. Although the elimination of Muñoz’s former position certainly is a valid
    
    consideration in the resolution of this issue, it does not compel the more critical
    
    conclusion that the Resort would not have employed Muñoz at the time of trial.16
    
    The Resort failed to introduce any evidence demonstrating either that Muñoz was
    
    unqualified for another available position17 or that, for some other reason,
    
    reassignment would have been infeasible. Given this court’s repeated recognition
    
    of the importance of equitable relief to compensating fully a victim of age
    
    discrimination, see, e.g., Castle, 837 F.2d at 1561, we are persuaded that requiring
    
    an employer to demonstrate with particularity that it actually would have
    
    terminated the plaintiff ensures that equitable relief is not foreclosed lightly and
    
    thus better comports with the broad remedial purpose of the ADEA.
    
    
    
                                         III. CONCLUSION
    
            Because we conclude that the district court did not err in denying the
    
       16
         For example, although the Resort intimates that it eliminated several positions when it
    discontinued its room services, the record does not reveal whether the Resort actually terminated
    the other room service employees. If the Resort reassigned them, then presumably Muñoz would
    have been afforded this same opportunity had he not been discharged on account of his age. See
    Nord, 758 F.2d at 1473 n.11; cf. Wilson v. S & L Acquisitions Co., 
    940 F.2d 1429
    , 1438 (11th
    Cir. 1991) (suggesting that although the employer had sold the division in which the plaintiff had
    worked to another company, front pay nonetheless may have been available because the
    purchasing company might have rehired her).
       17
        Notably, Rea testified at trial that the Resort continues to maintain a restaurant, providing
    breakfast and lunch services. See Trial Tr. at 382-83, in R.7.
    
                                                    22
    Resort’s motions for judgment as a matter of law and for a new trial and that the
    
    damages award was not excessive, we AFFIRM the final judgment of the district
    
    court.
    
    
    
    
                                             23
    

Document Info

DocketNumber: 99-12360

Citation Numbers: 223 F.3d 1340

Filed Date: 8/25/2000

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (37)

McDonnell Douglas Corp. v. Green , 411 U.S. 792 ( 1973 )

Texas Dept. of Community Affairs v. Burdine , 450 U.S. 248 ( 1981 )

The Boeing Company v. Daniel C. Shipman , 411 F.2d 365 ( 1969 )

Larry Bonner v. City of Prichard, Alabama , 661 F.2d 1206 ( 1981 )

29-fair-emplpraccas-1259-30-empl-prac-dec-p-33028-clyde-walker , 684 F.2d 1355 ( 1982 )

30 Fair empl.prac.cas. 633, 30 Empl. Prac. Dec. P 33,169 ... , 694 F.2d 869 ( 1982 )

Pitney Bowes, Inc., Cross-Appellee v. Celina Mestre, ... , 701 F.2d 1365 ( 1983 )

34 Fair empl.prac.cas. 1313, 34 Empl. Prac. Dec. P 34,378 ... , 731 F.2d 1535 ( 1984 )

45-fair-emplpraccas-1681-35-empl-prac-dec-p-34916-mattie-jo , 749 F.2d 1501 ( 1985 )

Pesaplastic, C.A. v. Cincinnati Milacron Co., Tedruth ... , 750 F.2d 1516 ( 1985 )

Evan Lee Deakle, Jr. v. John E. Graham & Sons, a Corp. M/v ... , 756 F.2d 821 ( 1985 )

37-fair-emplpraccas-1217-36-empl-prac-dec-p-35155-lawrence , 758 F.2d 1435 ( 1985 )

37-fair-emplpraccas-1232-36-empl-prac-dec-p-35166-michaele-cowart , 758 F.2d 1462 ( 1985 )

40-fair-emplpraccas-1050-40-empl-prac-dec-p-36305-jerome-l , 786 F.2d 1507 ( 1986 )

Jaime Blum, Brij Kapur and James C. Spitsbergen, in 86-5349 ... , 829 F.2d 367 ( 1987 )

Charles A. Castle v. Sangamo Weston, Inc., a Corporation, ... , 837 F.2d 1550 ( 1988 )

Gunther Graefenhain and Philip Miller, Cross-Appellees v. ... , 870 F.2d 1198 ( 1989 )

Kenneth Jarrett v. Harrison Epperly and Epperly Inc., F/k/a ... , 896 F.2d 1013 ( 1990 )

52 Fair empl.prac.cas. 1238, 53 Empl. Prac. Dec. P 39,897, ... , 900 F.2d 1050 ( 1990 )

53 Fair empl.prac.cas. 968, 54 Empl. Prac. Dec. P 40,150 ... , 907 F.2d 1077 ( 1990 )

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