[PUBLISH]


            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, 

, 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., 

, 782 (11th Cir. 1991); accord Jarrett v. Epperly, 

, 1016 & n.1 (6th Cir. 1990).

                                                5
motion, applying the same standard as the district court. See Boeing Co. v.

Shipman, 

, 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 

50(b) motion

should only be granted where “reasonable [jurors] could not arrive at a contrary

verdict.” 

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, 

, 802, 

,

1824 (1973). See Turlington v. Atlanta Gas Light Co., 

, 1432 (11th

Cir.), cert. denied, 

, 

(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 

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, 

, 1207 (11th Cir. 1981)
(en banc).

                                               6
that the Resort’s proffered reason was pretextual, see 

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 

in R.6.

                                             7
its judgment for theirs. See 

. 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. __, 

, 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, 

, 256, 

, 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., 

, 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., 

, 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,

, 656-57 (11th Cir. 1998) (quoting 

):



   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., 

, 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., 

, 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, 

, 1427 (11th Cir. 1998) (quoting Combs v. Plantation Patterns, 

,

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.”

. 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.,

, 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., 

,

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., 

, 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, 

, 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., 

, 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, 

, 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 

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., 

, 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, 

, 693 (Fla. 5th

Dist. Ct. App. 1991) (quoting Eastern Airlines, Inc. v. King, 

, 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 

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., 

, 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., 

, 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.” 

. After reviewing the record, we conclude that

this was not such a verdict. See, e.g., 

(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 

. 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., 

, 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., 

, 1280 (11th Cir. 1992), this court

cited with approval Blum v. Witco Chemical Corp., 

, 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., 

(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 

. 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 

(“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., 

, 1473 n.11 (11th Cir. 1985); accord Sandlin v.

Corporate Interiors, Inc., 

, 1215 (10th Cir. 1992); Graefenhain v.

Pabst Brewing Co., 

, 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.” 

. 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 

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, 

, 1539 (11th Cir. 1984); Walker v. Ford

Motor Co., 

, 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., 

(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 

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 

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., 

, 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

n.11; cf. Wilson v. S & L Acquisitions Co., 

, 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.

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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.




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