UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-1868



ALTON RAY LOVELESS,

                                             Plaintiff - Appellee,

          versus


JOHN’S FORD, INCORPORATED, d/b/a       Jerry’s
Leesburg Ford Lincoln Mercury,

                                            Defendant - Appellant.



                             No. 05-2194



ALTON RAY LOVELESS,

                                            Plaintiff - Appellant,

          versus


JOHN’S FORD, INCORPORATED, d/b/a       Jerry’s
Leesburg Ford Lincoln Mercury,

                                             Defendant - Appellee.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.  Claude M. Hilton, Senior
District Judge. (CA-04-1209-1)


Submitted:   April 6, 2007                   Decided:   May 9, 2007
Before WILKINSON, KING, and DUNCAN, Circuit Judges.


Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.


Michael G. Charapp, Brad D. Weiss, CHARAPP & WEISS, McLean,
Virginia, for Appellant/Cross-Appellee.       Annette K. Rubin,
Leesburg, Virginia, for Appellee/Cross-Appellant.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Defendant John’s Ford, Incorporated, appeals from the district

court’s July 2005 denial of its motion for judgment as a matter of

law, or in the alternative a new trial, after a jury decided that

it had willfully violated the Age Discrimination in Employment Act

(“ADEA”) and returned a verdict in favor of Alton Loveless.                    See

Loveless v. John’s Ford, Inc., No. 04-1209 (E.D. Va. July 11, 2005)

(the “First Opinion”).           Plaintiff Loveless has cross-appealed from

the court’s September 23, 2005 denial of his motion for front pay

and    his    separate     motion   for   liquidated     damages   (the   “Second

Opinion”).1      As explained below, we affirm the rulings in the First

Opinion, and affirm the Second Opinion in part and reverse in part.

More       specifically,    we   affirm   the   Second    Opinion’s   denial    of

Loveless’s request for front pay and reverse its denial of his

motion for liquidated damages.



                                          I.

       John’s Ford is a Virginia corporation that operates several

automobile dealerships in Northern Virginia.2               Alton Loveless was


       1
      The First Opinion is found at J.A. 405-07, and the Second
Opinion is found at J.A. 415-19. (Citations herein to “J.A. ___”
refer to the contents of the Joint Appendix filed by the parties in
this appeal.)
       2
      Because this appeal challenges the denial of a motion for
judgment as a matter of law, the facts underlying John’s Ford’s
appeal are presented in the light most favorable to Loveless, and
we draw all inferences in his favor. See Duke v. Uniroyal, Inc.,

                                          3
first employed by John’s Ford in June 1975, and he worked until

November 2000 in its Annandale, Virginia, dealership as a service

advisor and service manager.           In November 2000, Loveless was

promoted to Parts and Service Director in John’s Ford’s Leesburg,

Virginia, dealership under the supervision of Stephen Cohen.                  On

October    14,   2003,   Cohen   advised   Loveless   that   he       was   being

“retired,” as were all department heads. Loveless’s discharge from

John’s Ford was made effective that day, and he was thereafter

unable to secure employment.

     On October 8, 2004, Loveless filed his complaint in this case

in   the   Eastern   District     of   Virginia,   alleging       a    wrongful

termination by John’s Ford on the basis of age, in violation of the

ADEA.   The dispute was tried in the district court before a jury on

June 1 and 2, 2005.        Based on the evidence presented at trial,

Loveless made numerous improvements in the Parts and Services

Department while employed at the Leesburg dealership, successfully

meeting or exceeding the goals set by Ford Motor Company and John’s

Ford. During this time, he received no warnings or criticisms from

his supervisor concerning his job performance.                Loveless had

received one criticism from a co-worker, Tony Hudson, who conveyed

to him, apparently at Cohen’s request, the concern that Loveless

was spending too much time smoking and drinking coffee on the job.

Loveless had confronted Cohen in that regard, explaining that when

, 1417 (4th Cir. 1991).

                                       4
he was smoking he was still doing his job overseeing the Parts and

Service Department, and offering to resign.    Cohen rejected the

offer, however, talking Loveless out of quitting.    Both prior to

and at the time Loveless was discharged, Cohen made age-related

statements concerning Loveless, Wesley Brown (the dealership’s

Sales Manager), and Wilber Laznic, another older employee.3

     Loveless also presented evidence on the damages he suffered as

a result of his discharge.      Christopher Brown, an accountant

testifying about Loveless’s back-pay damages, opined that Loveless

had lost approximately $250,000 in back wages as a result of his

discharge.   John’s Ford challenged Brown’s testimony on the basis

of an evidence spoliation claim arising from Brown’s failure to

produce a worksheet he had used to gather information and create a

chart used at trial.4



     3
      During the conversation in which Loveless was discharged,
Cohen referred to Wes Brown, an older employee who served as Sales
Manager, as “an F’n dinosaur” and told Loveless that Brown “is
next” and “should have been gone a long time ago.” J.A. at 593.
An assistant service manager, Vicki Surface, heard Cohen refer to
another older employee, Wilber Laznic, as a “dinosaur.” 

      In its defense, John’s Ford presented evidence of Cohen’s
dissatisfaction with Loveless’s job performance, including
allegations of absenteeism.    According to John’s Ford, Loveless
missed worked to assist on the estate of an elderly customer he had
befriended, and to assist his girlfriend in starting a hair salon
business.    John’s Ford also presented evidence of customer
complaints concerning the Service Department at Leesburg while it
was under Loveless’s supervision.      The jury, by its verdict,
rejected John’s Ford’s defense.


                                 5
     On June 2, 2005 the jury returned its verdict in favor of

Loveless in the sum of $250,000, finding that John’s Ford had

willfully violated the ADEA.    After the trial, John’s Ford filed a

motion for judgment as a matter of law, or in the alternative

seeking a new trial.     In his own post-trial motions, Loveless

sought attorney fees and costs, liquidated damages, and either

reinstatement or front pay.     By its First Opinion, the district

court, on July 11, 2005, denied John’s Ford’s motion for judgment

as a matter of law and for a new trial.      By its Second Opinion, the

court, on September 23, 2005, granted Loveless his attorney fees

and costs, but denied his request for liquidated damages and for

reinstatement or front pay.    Each of the parties has filed a notice

of appeal, and we possess jurisdiction pursuant to 28 U.S.C.

§ 1291.



                                 II.

     We review de novo a district court’s denial of a motion for

judgment as a matter of law.     See Price v. City of Charlotte, 

, 1245 (4th Cir. 1996).       When assessing whether a verdict

is properly supported, we view the evidence in the light most

favorable to the prevailing party, giving it the benefit of all

permissible inferences. See Duke v. Uniroyal, Inc., 

,

1417 (4th Cir. 1991).   If a reasonable jury could have returned a

verdict for the prevailing party, we must defer to the jury


                                   6
verdict.   See 

denial of a new trial is entrusted

to the sound discretion of the trial court, and a denial thereof

may only be reversed when the court has abused its discretion.

Cline v. Wal-Mart Stores, Inc., 

, 305 (4th Cir. 1998).

We also review for abuse of discretion a district court’s refusal

to impose sanctions for the spoliation of evidence.   See Silvestri

v. General Motors Corp., 

, 590 (4th Cir. 2001).

     We review a district court’s denial of an award of front pay

for abuse of discretion, see Nichols v. Ashland Hosp. Corp., 

, 504 (4th Cir. 2001), and we review findings of fact on

which such an award is based for clear error, see Taylor v. Home

Ins. Co., 

, 860 (4th Cir. 1985).       Whether the ADEA

mandates an award of liquidated damages to a prevailing ADEA

plaintiff after a jury finding of willfulness is a legal question

that we review de novo.   See United States v. Segers, 

,

183 (4th Cir. 2001).



                                 III.

     There are two appeals presented in this proceeding.     First,

John’s Ford has appealed the rulings made in the district court’s

First Opinion, denying its motion for judgment as a matter of law,

or in the alternative a new trial.      Second, Loveless has cross-

appealed from the court’s rulings in the Second Opinion, denying




                                  7
his request for front pay and declining to make an award of

liquidated damages.5

                                 A.

     John’s Ford makes two basic contentions in its appeal of the

First Opinion: (1) that the district court should have awarded

judgment as a matter of law, and in the alternative should have

awarded a new trial, because the evidence was insufficient to

establish Loveless’s claim of age discrimination; and (2) that the

court should have granted judgment as a matter of law, and in the

alternative a new trial, because of Brown’s spoliation of the

evidence upon which he based his opinions.        We address these

contentions in turn.

                                 1.

     Under the ADEA, an employer may not discharge any employee

because of age.      See 29 U.S.C. § 623(a)(1). Generally, an ADEA

plaintiff may prevail in an age discrimination case by proceeding

under either a “mixed-motive” or a “pretext” framework.    See Hill

v. Lockheed Martin Logistics Mgmt., 

, 284-85 (4th Cir.

2004).   John’s Ford contends that the evidence was insufficient to

establish Loveless’s age discrimination claim under either of these

methods of proof.6    As explained below, this contention fails.


     5
      Loveless does not, in this appeal, challenge the district
court’s denial of his request for reinstatement.
     6
      John’s Ford also contends on appeal that Loveless failed to
present sufficient evidence to establish a disparate impact case.

                                  8
                                 a.

      John’s Ford first asserts that Loveless was unable to prove

age discrimination under the mixed-motive scheme because he did not

present sufficient evidence to establish that Cohen’s decision to

discharge him was motivated by age.   A showing by either direct or

circumstantial evidence that age motivated an employer’s adverse

employment decision need not establish that the employee’s age was

the sole motivating factor; the plaintiff must only show that his

age was a motivating factor in the adverse decision.    See   Hill v.

Lockheed Martin Logistics Mgmt., 

, 284 (4th Cir. 2004).

In a “mixed-motive” case, it is sufficient that the plaintiff-

employee show that his employer was motivated to take an adverse

employment action by both forbidden and permissible reasons.     See

ample direct evidence that Loveless’s age was

a motivating factor in Cohen’s decision, made on behalf of John’s

Ford, to discharge Loveless.   Loveless testified that, on October

14, 2003, Cohen told him he was being “retired.”       When Loveless

asked why, Cohen told him that he was “replacing all his department

heads.   That he need[ed] younger, more aggressive Managers, people

that he [could] groom to the way that he does business.”   J.A. 592.



Loveless did not allege a disparate impact claim, however, see
Wards Cove Packing Co. v. Atonio, 

, 656 (1989), and the
district court did not permit Loveless to argue any such claim. We
thus need not reach this issue.

                                 9
During this conversation, Cohen referred to Wes Brown, another

older John’s Ford employee, as “an F’n dinosaur” and told Loveless

that Brown “is next” and “should have been gone a long time ago.”

Surface, an assistant service manager, heard

Cohen    refer   to   another   older     employee,   Wilber     Laznic,   as   a

“dinosaur.”      

Ford’s contention that there was an insufficient nexus

between the foregoing comments and Loveless’s termination is also

without merit. Indeed, one of Cohen’s derogatory comments was made

when Loveless was terminated, and in direct response to Loveless’s

question of “why me?”      In order for such remarks to be indicative

of discrimination, they must not be isolated, and must be “related

to the employment decision in question.”               Brinkley v. Harbour

Recreation Club, 

, 608 (4th Cir. 1999) (internal

quotation   marks     omitted);    see    also   O’Connor   v.   Consol.   Coin

Caterers, Corp., 

, 549-50 (4th Cir. 1995) (finding

insufficient     nexus   between   age-related     statements     and   adverse

employment action where plaintiff could not recall context of first

statement, another statement was made in connection with ability to



     7
      John’s Ford contends that the evidence regarding Wes Brown is
irrelevant because another jury had found that Brown was not fired
due to his age. John’s Ford failed to object on this basis at
trial, however, and it does not maintain that this contention
warrants relief under plain error review.            See Brickwood
Contractors v. Dataset Eng’g Inc., 

, 396-97 (4th Cir.
2004) (holding that issues raised for first time on appeal may only
be considered in limited circumstances).

                                         10
play       golf,   and   third   statement   was   no   more   than   innocuous

commentary on fact that all people grow older); Birkbeck v. Marvel

Lighting Corp., 

, 511-12 (4th Cir. 1994) (concluding

that statement “there comes a time when we have to make way for

younger people” reflected “no more than a fact of life” and was too

remote to show age discrimination).            In these circumstances, the

evidence before the jury was sufficient to demonstrate a nexus

between Cohen’s comments and Loveless’s discharge.8

                                       b.

       John’s Ford also contends on appeal that Loveless failed to

prove his ADEA claim under the pretext scheme of proof, because he

failed to establish a prima facie case of age discrimination and

failed to rebut the legitimate nondiscriminatory reason that John’s

Ford gave for his discharge.         To make a prima facie showing of age

discrimination under the pretext framework, a plaintiff-employee is

obliged to satisfy four factors, that (1) he is a member of a

protected class; (2) he suffered an adverse employment action; (3)

he was at the relevant time performing his duties at a level that

met his employer’s legitimate expectations; and (4) his position

remained open or was filled by a similarly qualified applicant



       8
      We also reject John’s Ford contention that Loveless’s
recollections are insufficient to prove age discrimination under
the ADEA because they are uncorroborated.      Any such lack of
corroboration goes only to the credibility and weight of the
evidence. See EEOC v. Warfield-Rohr Casket Co., 

, 164
(4th Cir. 2004).

                                       11
outside the protected class. See Hill v. Lockheed Martin Logistics

Mgmt., 

, 285 (4th Cir. 2004).             The only disputed point

here    is   the   third    of    these    four   factors,      whether   Loveless

sufficiently established that he was performing his duties at a

level that met John’s Ford’s legitimate expectations at the time of

his discharge. Put simply, the evidence in this case, viewed in the

proper light, established that Loveless was performing his duties

at a level that met John’s Ford’s legitimate expectations when he

was fired.     Indeed, Loveless and the Parts and Service Department

at Leesburg had received numerous awards during the time he served

as its Director.           For example, John’s Ford became “Blue Oval

Certified” for the first time under Loveless’s supervision, and

Cohen    described      Loveless’s        handling    of     that      process     as

“beautiful[].” J.A. 627. Under Loveless’s supervision, the Service

Department won Ford’s “Satisfaction Pays” contest in 2002, and the

Leesburg dealership qualified for Ford’s “President’s Award” that

same year.         Loveless also achieved a Master Certification as

Service Manager, Warranty Administrator, and Sales Manager in 2003,

and Cohen confirmed that the Department was named one of the “Best

of Leesburg” by the local newspaper that year.

       Although John’s Ford presented the jury with a competing

account of Loveless’s performance, we are, in assessing this

contention,    obliged      to    view    the   evidence   in    the   light     most

favorable to Loveless.           See Duke v. Uniroyal, Inc., 

,


                                          12
1417 (4th Cir. 1991).         In so doing, we are satisfied that a

reasonable jury was entitled to find that Loveless was, at the time

of his discharge, performing his duties at a level that met John’s

Ford’s legitimate expectations.      As a result, we must reject the

contention that Loveless failed to establish a prima facie case of

age discrimination under the ADEA.

      When a prima facie case has been presented, an inference of

age discrimination arises, and the burden shifts to the employer to

articulate a legitimate, nondiscriminatory reason for the adverse

employment action, that is, Loveless’s discharge by John’s Ford.

Williams v. Cerberonics, Inc., 

, 455-56 (4th Cir.

1989). If a legitimate, nondiscriminatory reason for the discharge

is then shown, the burden returns to the plaintiff to show, by a

preponderance of the evidence, that the nondiscriminatory reason is

pretextual. 

this instance, John’s Ford articulated

a   legitimate,   non-discriminatory    reason   for   its    discharge     of

Loveless. Cohen testified that Loveless “had lost his focus and his

desire to fulfill the necessary functions to remain as the service

manager.”    J.A.   475-76.     Although   there   were      no   records   on

Loveless’s attendance, Cohen asserted that it was poor, that

Loveless had an “overall laissez-faire attitude,” that he was

indecisive, and that customers had complained about him.            J.A. 48.

These reasons were presented by John’s Ford as its actual basis for

Loveless’s discharge.


                                   13
      Loveless was thus required to demonstrate that John’s Ford’s

explanation    was          merely    a    “pretext”       for    discharging    him.       To

establish such pretext, Loveless was obliged to show that John’s

Ford’s otherwise legitimate explanation for his discharge was

“unworthy    of    credence,”             and    was    therefore    a   coverup   for     age

discrimination.         Texas Dept. of Cmty. Affairs v. Burdine, 

, 256 (1981). Loveless presented sufficient evidence to warrant

the   jury’s      rejection          of    John’s        Ford’s   explanation      for    his

termination       as    pretext.                First,    contradictions      between      an

employer’s explanation for an adverse employment action at trial

and its statements to the employee at the time of discharge

constitute strong evidence of pretext. See Alvarado v. Bd. of Trs.

of Montgomery Cmty. Coll., 

, 122-23 (4th Cir. 1991)

(finding    pretext         established          where    employer’s     explanation      for

termination       at        trial     contradicted          explanation     at     time     of

discharge).        Here, Cohen’s explanation at trial for Loveless’s

termination (poor work performance) contradicted his explanation to

Loveless    when       he    was     fired      (that     Cohen   wanted   younger,       more

aggressive managers he could groom to his management style).

Second, despite Cohen’s repeated references to poor attendance,

there were no attendance records showing that Loveless had missed

work, and there were no records documenting any customer complaints

about him.        Finally, Cohen was unable to identify any occasion

where he gave Loveless notice — in person or in writing — of any


                                                 14
dissatisfaction with his job performance.             Loveless thus provided

sufficient evidence of pretext to support the jury verdict, and the

denial of John’s Ford’s motion for judgment as a matter of law must

be sustained.

                                         2.

      In its second contention on the First Opinion, John’s Ford

maintains that the district court erred in denying judgment as a

matter of law on its spoliation of evidence claim relating to

Christopher Brown, Loveless’s expert accountant on damages.9                    On

this point, John’s Ford asserts that Brown’s failure to preserve a

worksheet underlying his opinions obliged the district court to

grant judgment as a matter of law or a new trial.

          When a party either fails to preserve or destroys potential

evidence in a foreseeable litigation, it can be deemed to have

engaged in the “spoliation of evidence,” and a trial court may use

its   inherent    power    to   impose    an    appropriate    sanction.    See

Silvestri v. General Motors Corp., 

, 590 (4th Cir.

2001).       We   have    recognized     that   a   judicial   response    to    a

spoliation of evidence should serve the twin purposes of “leveling

the evidentiary playing field and . . .             sanctioning the improper



      9
      John’s Ford’s also contends that Brown’s evidence was
improper because he actually had no opinion on Loveless’s back pay
damages.    Brown’s testimony reveals, at most, some semantic
confusion about the term “back wage,” a point that does not alter
the substance of his views.       We thus reject John’s Ford’s
contention in this regard.

                                         15
conduct.”    Vodusek v. Bayliner Marine Corp., 

, 156 (4th

Cir. 1995).      The range of options available to a trial court in

such situations includes dismissal (or here, judgment as a matter

of law), but such a severe sanction should only be imposed when a

lesser    sanction    will    fail    to    serve       the    foregoing    purposes.

.          Moreover, a dismissal on the basis of

spoliation of evidence is only appropriate if the conduct was “so

egregious as to amount to a forfeiture of [the] claim,” or if the

effect of the conduct was “so prejudicial that it substantially

denied the defendant the ability to defend the claim.”                     

this case, there is no evidence that either Loveless, his

lawyers, or Brown, acted so egregiously as to warrant judgment as

a matter of law.        Indeed, the information Brown gathered from

Loveless and wrote by hand onto his missing worksheet had been

entered into Brown’s computer and transformed into a chart used by

Brown at trial.      Such a situation is a far cry from those instances

of spoliation of evidence that could establish bad faith. See 

that even where attorney knew unpreserved

vehicle    was   central     piece   of    evidence      and    defendant     was   not

notified of claim until three years had passed, it was unclear

whether failure to preserve would justify dismissal).                           These

circumstances     constitute,        at    most,    a    less    obvious     type   of

spoliation, where evidence is simply transformed from one form into

another.     See Jamie S. Gorelick, Stephen Marzen & Lawrence Solum,


                                           16
Destruction of Evidence § 1.1.              There is no indication in this

record that Brown’s failure to preserve the worksheet was intended

to deprive the jury or John’s Ford of any evidence, and these

circumstances may not even warrant an instruction on an adverse

inference, let alone judgment as a matter of law.               See S.C. Johnson

& Son, Inc. v. Louisville & Nashville R.R. Co. , 

, 259

(7th Cir. 1982) (concluding that destruction of handwritten notes

used to draft memorandum did not support adverse inference where

witness did not preserve notes because they were illegible and all

necessary information was in memorandum).

      There is also no indication that Brown’s failure to preserve

the worksheet was prejudicial to John’s Ford ability to defend

against Loveless’s ADEA claim. First, the information Brown placed

on the worksheet concerned the value of Loveless’s lost employment

with John’s Ford, and it was data that John’s Ford had access to

and   presented     through    its   own    expert.      Second,   John’s   Ford

emphasized    the    absence    of    the    worksheet    during    its   cross-

examination   of    Brown,    and    the    jury   considered    that   point   in

assessing Brown’s testimony.           In these circumstances, the trial

court did not abuse its discretion in declining to grant judgment

to John’s Ford as a matter of law, and we thus reject its appeal on

this contention.10


      10
      We also reject John’s Ford’s alternative request for a new
trial on the sufficiency of the evidence and the spoliation issues.
In assessing a motion for a new trial, a trial judge may set aside

                                       17
                                    B.

     Turning to Loveless’s cross-appeal in this matter, he raises

two contentions of error with respect to the district court’s

Second Opinion.      First, he maintains that the court erred in

denying his request for front pay.       Second, he asserts that it also

erred in denying his request for liquidated damages under the ADEA.

See 29 U.S.C. § 626(b).      We address these contentions in turn.

                                    1.

     In contending that the district court erred in failing to

award front pay on his ADEA claim, Loveless argues that the court

abused    its   discretion   when   it   appeared   to   focus    solely   on

Loveless’s lack of diligence in pursuing replacement employment.11

John’s Ford presented evidence that Loveless had sought employment

during the first six months after his October 2003 discharge,

failed to make any employment inquiries for four months in 2004,

and then made inquiries only once a month thereafter.            John’s Ford


a verdict in three circumstances: (1) if it is against the clear
weight of the evidence; (2) if it is based on evidence which is
false; or (3) if the verdict will result in a miscarriage of
justice, notwithstanding that there may be sufficient evidence to
preclude a directed verdict.     Dennis v. Columbia Colleton Med.
Ctr., Inc., 

, 650 (4th Cir. 2002). Because the jury’s
verdict was not against the clear weight of the evidence, and
upholding the verdict would not result in a miscarriage of justice,
there was no abuse of discretion by the district court on either of
these points. We thus also affirm the First Opinion’s denial of a
new trial.
     11
      Front pay is payment for lost future earnings. See Charles
R. Richey, Manual on Employment Discrimination Law and Civil Rights
Actions in Federal Courts § 3.103 (2d ed. 1994).

                                    18
also presented evidence that the median duration of an unemployment

period   at   that       same    time,    according    to    the   Bureau   of    Labor

Statistics, was just over ten weeks.

     The equitable remedy of front pay is generally available when

an   employer      has     terminated       an   employee     unlawfully    and     the

employee’s reinstatement is not possible. Duke v. Uniroyal, Inc.,

, 1423 (4th Cir. 1991).                   Front pay is designed to

place a plaintiff in the financial position he would have been in

had he been reinstated. See Bruso v. United Airlines, Inc., 

, 862 (7th Cir. 2001).                   Whether an award of front pay

should be made in a case such as this rests squarely within the

trial court’s discretion.                See 

.             Cohen

testified that Loveless had “burned the bridge” and could not

return to work for John’s Ford.               Thus, it fell to the trial court

to determine how much, if any, front pay Loveless should receive on

his ADEA claim.

      There is no precise formula for determining whether or in what

sum an award of front pay should be made.                    See 

appropriate       method    for     addressing     the      difficult   question    of

providing     a   remedy        which    anticipates     potential   future      losses

requires an analysis of all the circumstances existing at the time

of trial.”).       The district court was thus entitled, in its front

pay ruling, to consider the evidence that Loveless had been less

than diligent in attempting to secure replacement employment.                       See


                                            19
Barbour     v.   Merrill,   

,   1280   (D.C.   Cir.   1995)

(identifying factors, including plaintiff’s efforts in mitigating

damages, that may properly be considered in awarding front pay).

As a result, we are unable to find an abuse of discretion in this

regard, and we affirm the court’s denial of Loveless’s claim to

front pay.

                                        2.

     Finally, Loveless contends that the court was obliged, under

the ADEA, to make an award of liquidated damages to him on the

basis of the jury’s finding of willfulness.12                   In its Second

Opinion, the court declined to do so, concluding that such an award

would bestow a windfall on Loveless, in that the jury had already

awarded him $250,000 in back wages.             As explained below, we agree

with Loveless that, in light of the applicable provisions of the

ADEA, plus the Supreme Court’s decision in Trans World Airlines,

Inc. v. Thurston, 

(1985), and the pertinent decisions

of our sister circuits, he was entitled to an award of liquidated

damages once the jury found that John’s Ford had willfully violated

the ADEA.


     12
      The Fair Labor Standards Act (“FLSA”) provides that any
employer who violates the FLSA “shall be liable to the employee or
employees affected in the amount of their unpaid minimum wages, or
their unpaid overtime compensation, as the case may be, and in an
additional equal amount as liquidated damages.”       29 U.S.C. §
216(b). The ADEA’s liquidated damages provision is to be enforced
in accordance with the FLSA’s § 216, except “[t]hat liquidated
damages shall be payable only in cases of willful violations of
[the ADEA].” See 29 U.S.C. § 626(b).

                                        20
       Under the ADEA, an award of liquidated damages should only be

made if a violation of the statute if found to be willful.                 See 29

U.S.C. §§ 216(b), 626(b). However, the applicable provision of the

ADEA indicates that an award of liquidated damages is mandatory

upon    a   finding    of    willfulness.      See     29   U.S.C.   §     626(b)

(“[L]iquidated damages shall be payable only in cases of willful

violations of [the ADEA].” (emphasis added)).               The Supreme Court

has    strongly   indicated    that   a   liquidated    damages    award    to    a

prevailing ADEA plaintiff is mandatory upon a jury finding of

willfulness.      See 

.            In Thurston, the

Court observed that the ADEA must be enforced in accordance with

the Fair Labor Standards Act (“FLSA”), but observed that the

remedial schemes of those Acts are not identical.                 See 

one specific difference, that although the FLSA

renders an award of liquidated damages mandatory in all instances

of its violation, the ADEA entitles prevailing plaintiffs to

liquidated damages “only in cases of willful violations.”                   

did not explicitly hold that a liquidated damages

award is mandatory upon a finding of willfulness.                 See 

however, recognize that the ADEA was to be distinguished

from the FLSA (which mandates double damages in all cases where FLSA

violations are established) by limiting ADEA liquidated damages

awards to situations where the ADEA violation is found to be

willful.     See 

strong support to the


                                      21
proposition    that,     upon     a    jury’s        finding     of   willfulness,    a

liquidated    damages    award        is    mandatory      for   a    prevailing    ADEA

plaintiff.

      Several of our sister circuits have explicitly held that a

liquidated    damages     award       to     a     prevailing    ADEA   plaintiff     is

mandatory upon a finding of willfulness.                   See Tyler v. Union Oil

Co., 

, 401 (5th Cir. 2002) (“[L]iquidated damages in an

amount equal to the back pay award are mandatory upon a finding of

willfulness.”); Mathis v. Phillips Chevrolet, Inc., 

,

777 (7th Cir. 2001) (“[C]ourts are required to assess liquidated

damages in the same amount as the compensatory damages if the

employer’s violation of the [ADEA] was ‘willful.’”); Greene v.

Safeway Stores, Inc., 

, 1246 (10th Cir. 2000) (“Once

a violation of the ADEA is determined to be willful, an award of

liquidated damages is mandatory.”); McGinty v. State, 

,

69 (2d Cir. 1999) (assuming that because ADEA “incorporat[es] the

corresponding provisions of the [FLSA] . . . the payment of

liquidated damages in an amount equivalent to a plaintiff’s award

for   back   pay   and   benefits          where    the   statutory     violation    was

‘willful’” is mandatory); Hill v. Spiegel, Inc., 

, 238

(6th Cir. 1983) (“Once . . . the jury found a willful violation .

. . the award of liquidated damages was the duty of the trial

court.”).    Our circuit has not explicitly recognized that § 626(b)

of the ADEA mandates that a liquidated damages award be made to a


                                             22
prevailing ADEA plaintiff upon a finding of willfulness.                     The

controlling    authorities      support    application     of   such    a   rule,

however, and the foregoing decisions are consistent with our

reading of the applicable statutory provision. We thus see a

liquidated damages award as mandatory in this case, where Loveless

is a prevailing plaintiff relying on a jury finding of a willful

violation of the ADEA by John’s Ford.

      In the context of this case, it is significant that John’s

Ford has not challenged the propriety of the jury instruction on

willfulness, either at trial or in this appeal.             And the jury was

fully instructed on this point, as follows:

      If the defendant knew that its adverse employment action
      was a violation of the law or acted in reckless disregard
      of that fact, then its conduct was willful.        If the
      defendant did not know or knew that the law was
      potentially applicable, but did not act in reckless
      disregard as to whether its conduct was prohibited by the
      law, even if it acted negligently, then such conduct was
      not willful.

J.A. 744.     This instruction appears to be a straightforward and

correct statement of the law as enunciated by the Supreme Court.

See 

.             Of additional importance, the

evidence in this case, assessed under the appropriate standard,

that is, in the light most favorable to Loveless, see 

, was sufficient to support the jury’s finding of a

willful violation of the ADEA. Cohen knew that Loveless was within

the   age   group   protected   by   the   ADEA,   and    Loveless     presented

evidence    that    contradicted     John’s   Ford’s     asserted    basis   for

                                      23
terminating him, that is, poor work performance. The jury was thus

entitled to find that John’s Ford’s discharge of Loveless was on

the basis of his age, and that its conduct was a willful violation

of the ADEA.   As a result, the district court erred in denying his

request for a liquidated damages award, and we reverse and remand

on this point.13



                                IV.

     Pursuant to the foregoing, we affirm the district court’s

denial of John’s Ford’s motion for judgment as a matter of law, or

in the alternative, a new trial.      We also affirm its denial of

Loveless’s motion for front pay. We reverse the court’s failure to

make a liquidated damages award to Loveless, and remand on that

issue.

                                         AFFIRMED IN PART, REVERSED
                                              IN PART, AND REMANDED




     13
      The district court’s concern that a liquidated damages award
would create a windfall for Loveless is not supported by the
circumstances. Although we have recognized that a windfall should
not be conferred by such an award, the issue is one of calculation.
See Fariss v. Lynchburg Foundry, 

, 967 (4th Cir. 1985)
(declining to calculate liquidated damages before offsetting back
wages claim with lump sum pension that exceeded back wages, because
liquidated damages award to plaintiff who suffered no pecuniary
loss would bestow windfall). Unlike in Fariss, Loveless suffered
a pecuniary loss of $250,000, and thus a liquidated damages award
would not bestow a windfall on him.

                                 24