Filed: Dec. 14, 1999
Latest Update: Feb. 21, 2020
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT 12/14/99 No. 98-4566 THOMAS K. KAHN _ CLERK D. C. Docket No. 96-8750-CV-DTKH JOHN FARLEY, Plaintiff-Appellee, Cross-Appellant, versus NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant-Appellant, Cross-Appellee. _ No. 98-4799 _ D. C. Docket No. 96-8750-CV-DTKH JOHN FARLEY, Plaintiff-Appellee, versus NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant-Appellant, _ Appeals from the Unit
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT 12/14/99 No. 98-4566 THOMAS K. KAHN _ CLERK D. C. Docket No. 96-8750-CV-DTKH JOHN FARLEY, Plaintiff-Appellee, Cross-Appellant, versus NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant-Appellant, Cross-Appellee. _ No. 98-4799 _ D. C. Docket No. 96-8750-CV-DTKH JOHN FARLEY, Plaintiff-Appellee, versus NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant-Appellant, _ Appeals from the Unite..
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
12/14/99
No. 98-4566 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 96-8750-CV-DTKH
JOHN FARLEY,
Plaintiff-Appellee,
Cross-Appellant,
versus
NATIONWIDE MUTUAL INSURANCE COMPANY,
Defendant-Appellant,
Cross-Appellee.
________________________
No. 98-4799
________________________
D. C. Docket No. 96-8750-CV-DTKH
JOHN FARLEY,
Plaintiff-Appellee,
versus
NATIONWIDE MUTUAL INSURANCE COMPANY,
Defendant-Appellant,
_________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(December 14, 1999)
Before ANDERSON, Chief Judge, MARCUS, Circuit Judge, and MILLS*, Senior
District Judge.
MARCUS, Circuit Judge:
Nationwide Mutual Insurance Company appeals from a jury verdict entered
in favor of the Plaintiff, John Farley, on his American with Disabilities Act
(“ADA”) and Age Discrimination in Employment (“ADEA”) claims. The jury
specifically found that the Defendant, Nationwide, wrongfully terminated Farley
from his claims adjustor position based on his disability and age, and judgment was
entered for Farley in the amount of $585,120. Nationwide now appeals this verdict
alleging both that the jury instructions contained material mistakes of law and that
the compensatory damages awarded were excessive. On cross-appeal, Farley
contests the trial court’s (1) grant of summary judgment on his retaliation claims,
(2) award of one year of front pay rather than reinstatement, (3) refusal to include
*
Honorable Richard Mills, Senior U.S. District Judge for the Central District of
Illinois sitting by designation.
2
front pay in the liquidated damages award, and (4) denial of attorney’s fees for
post-verdict work. After thorough review, we affirm the entire trial court judgment
except for its grant of summary judgment on Plaintiff’s retaliation claims.
I.
The essential facts adduced at trial include these. John Farley worked as a
claims adjuster at Nationwide Mutual Insurance Company (“Nationwide”) from
1985 to 1995. A claims adjustor is charged with handling all aspects of an
insurance claim from investigating a damages claim to negotiating and settling the
claim with the policyholder. In that time, Farley received numerous pay raises and
satisfactory or above performance evaluations. However, Farley also suffered
from several long-term disabilities including alcoholism, post-traumatic stress
disorder, and depression.
In 1991, Farley was placed under the supervision of District Claims
Manager Hugh Glatts. That year was particularly stressful for Farley. His mother
died and his young daughter was diagnosed with a rare and potentially fatal
disease. These events conjoined with Farley’s job-related stress and pre-existing
disabilities to trigger a decline in Farley’s job performance and mental well-being.
On August 5, 1991, Farley met with Glatts to inform him of these events. Glatts
3
responded by criticizing Farley’s job performance and indicating that Farley would
be terminated. Farley then collapsed in Glatts’s office. Two days later, Glatts
threatened to replace Farley with Dominic Christo, a co-worker in his mid-
twenties, because Christo was “more receptive to change.”
Shortly thereafter, Farley began seeing a psychiatrist and a psychologist.
During this period, Farley was able to maintain successfully his job responsibilities
at Nationwide. However, Farley was subjected to numerous jokes by Glatts and
other Nationwide managers about his mental health. In the fall of 1991, a cartoon
depicting Farley was posted prominently on the company’s bulletin board. The
bulletin board was used for employee pictures, job listings, and other employment-
related notices. The cartoon featured a psychologist talking to a patient lying on a
couch. A picture of Farley’s head had been inserted over the head of the patient.
The cartoon caption read “Just Plain Nuts.” A similar cartoon had been mocked up
for another co-worker, Warren Peede, who suffered from a mental disability. The
cartoons were created by Tom Sutterfield, a Nationwide supervisor who knew of
Farley’s disabilities. Sutterfield eventually would become a supervisor of Farley’s
in late 1994.
Over the rest of his tenure with Nationwide, Farley endured disability-
related jokes by Glatts in front of co-workers and received additional anonymous
4
cartoons in his mailbox. Glatts repeatedly would insult other disabled workers as
well. Notably, Glatts expressed a desire to terminate Warren Peede, a co-worker
of Farley’s who suffered from a mental disability as the result of a car accident.
Glatts expressed a fear that Peede was “dangerous” to work around because of his
mental disability, and in 1991, Glatts asked Peede to take a “disability retirement.”
In April 1995, Farley requested and received a week of disability leave on
the recommendation of his physician for stress-related disabilities. Shortly before
this request, Sutterfield had told Farley that his performance was satisfactory. His
most recent performance evaluation had been above-average. Upon Farley’s
return, however, Sutterfield informed Farley that Nationwide management found
his stress to be “unusual” and that they did not believe in stress-related disabilities.
Farley was then placed on thirty days of “work probation” for allegedly poor
technical performance, and all of his work files were taken away for “review.”
Farley testified that no other adjustor had ever been stripped of all of his files, and
that the action prevented him from fulfilling his work responsibilities. The stress
from these events apparently worsened Farley’s physical condition, and he took a
month of disability leave in May.
While on leave, Farley filed a discrimination complaint with the Equal
Employment Opportunity Commission (“EEOC”) on May 10, 1995, and informed
5
his two supervisors, Sutterfield and Glatts, of the complaint. Glatts subsequently
told Farley that he had received a copy of the complaint and that Nationwide’s
general counsel was handling it. When Farley returned to work on June 5, he
requested a five day, forty hour a week work schedule as a reasonable work
accommodation. Farley testified that during this timeframe he was working
eighteen to twenty hours a day to satisfy Nationwide’s work probation demands.
Glatts allegedly refused his request, even though it was official company policy
that claims adjustors work only thirty-eight and three-quarters of an hour per week.
Farley was terminated one month later on July 8, 1991 for allegedly poor technical
performance. John Farley was forty-seven years old. His replacement, Heath
Dillard, was in his late twenties.
On September 24, 1996, John Farley commenced this lawsuit against
Nationwide under the ADA, see 42 U.S.C. §§ 1201 et. seq., and the ADEA, see 29
U.S.C. §§ 621 et. seq., in the Fifteenth Judicial Circuit of Palm Beach County,
Florida alleging that Nationwide wrongfully terminated him because of
discrimination based on his disability and age as well as retaliation for his
complaint filed with the EEOC. The suit then was removed timely to the Southern
District of Florida and referred by agreement of the parties to a magistrate judge
for trial and all further proceedings pursuant to 28 U.S.C. § 636(c). Prior to trial,
6
Nationwide moved for summary judgment. The magistrate judge denied the
motion as to Farley’s discrimination claims under the ADA and ADEA but
granted the motion as to Farley’s retaliatory discharge claim. Farley’s
discrimination claims were tried to a jury in November 1997.
On the morning of the final day of trial, the trial court read the proposed
verdict form to both parties and allowed them to comment on the form. Notably,
Nationwide made no objections to the verdict form. The trial court also distributed
copies of the jury instructions to both parties which gave them an opportunity to
call an error to the court’s attention. Again, Nationwide interposed no objection to
the court’s instructions.
Shortly after the jury was excused to deliberate later that day, Nationwide
identified an alleged typographical error in the jury instructions. Nationwide
explained that the term “qualified disability” did not exist in the caselaw and that
the instruction should have read “qualified individual with a disability.” The trial
court dismissed the objection and ordered a recess.
Later that day, the jury returned a verdict in favor of the Plaintiff on both the
ADA and ADEA claims, finding the termination to be a result of intentional and
willful discrimination on the basis of age and disability. They awarded Farley a
total of $585,120 comprised of these elements: $110,120 for past lost earnings,
7
$25,000 in lost future earnings, and $450,000 in emotional pain and suffering
damages.
After trial, Nationwide renewed its motion for judgment as a matter of law,
and also moved for a new trial based on alleged error in the jury verdict form and
the accompanying jury instructions. Both motions were denied on March 2, 1998
in their entirety. At the same time, Nationwide moved for remittitur regarding the
jury award. The magistrate judge granted the motion in part, reducing the back
pay award to $54,501.84 (i.e., one year of full back pay taking into account the
difference in salary between Farley’s new job and his job at Nationwide) and the
front pay award to $5,600. But the judge also denied the motion in part and
reduced the emotional pain and suffering damages to only $300,000-- the
maximum recovery amount allowed under 42 U.S.C. §1981a(b)(3)(D).
II.
A. Jury Instructions
We review Nationwide’s verdict form and jury instruction claims against a
familiar legal landscape. Federal Rule of Civil Procedure 51 reads in pertinent
part, “no party may assign as error an instruction unless he objects thereto before
the jury retires to consider its verdict, stating distinctly the matter objected to and
the grounds of the objection.” See Fed. R. Civ. P. 51 (emphasis added). We
8
interpret Rule 51 strictly, and require a party to object to a jury instruction or jury
verdict form prior to jury deliberations in order to preserve the issue on appeal.
See Landsman Packing Co. v. Continental Can Co., 864 F.2d 721, 726 (11th Cir.
1989) (citing Lang v. Texas & Pacific Railway Co.,
624 F.2d 1275, 1279 (5th Cir.
1980)).2 A party who fails to raise an objection to a verdict form interrogatory or
jury instruction prior to jury deliberations waives its right to raise the issue on
appeal. See Wood v. President of Spring Hill College,
978 F.2d 1214, 1221 (11th
Cir. 1992); Golub v. J.W. Gant & Assocs.,
863 F.2d 1516, 1521 (11th Cir. 1989)
(holding that “‘objections to the form of interrogatories in a special verdict must be
raised before the jury is charged. . . . Otherwise, they are waived.’”) (citation
omitted)). This requirement ensures that a trial judge has an opportunity to correct
any error before a jury has begun its deliberations. See
Landsman, 864 F.2d at 726
(citing Pate v. Seaboard Railroad Inc.,
819 F.2d 1074, 1082 (11th Cir. 1987)). We
have recognized only two exceptions to this rule: first, where a party has made its
position clear to the court previously and further objection would be futile; and
second, where it is necessary to “correct a fundamental error or prevent a
miscarriage of justice.”
Landsman, 864 F.2d at 726 (citing
Lang, 624 F.2d at
2
Decisions of the former Fifth Circuit issued prior to the close of business on
September 30, 1981 constitute binding precedent in our circuit. See Bonner v. City
of Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981).
9
1279). This second exception is known as “plain error” review. See Wood, 978
F.2d at 1221.
Plain error review is an extremely stringent form of review. Only in rare
cases will a trial court be reversed for plain error. In Olano, the Supreme Court
outlined four requirements for plain error: first, an error occurred; second, the
error was plain; third, it affected substantial rights; and finally, not correcting the
error would seriously affect the fairness of the judicial proceeding. United States
v. Humphrey, 164 F.3d 585, 588 n.3 (11th Cir. 1999) (citing United States v.
Olano,
507 U.S. 725, 732 (1993)).
We have interpreted the Olano test strictly in the context of erroneous jury
instructions and verdict forms. Moreover, we accord the trial judge “wide
discretion as to the style and wording employed” in jury instructions and verdict
forms. Carter v. Decisionone Corp., 122 F.3d 997, 1005 (11th Cir.1997) (citing
Bateman v. Mnemonics, Inc.,
79 F.3d 1532, 1543 (11th Cir. 1996)). And we
review jury instructions and verdict forms together rather than separately for
reversible error. See
Carter, 122 F.3d at 1005; McNely v. Ocala Star-Banner
Corp.,
99 F.3d 1068, 1072 (11th Cir. 1996) (citing Wilkinson v. Carnival Cruise
Lines, Inc.,
920 F.2d 1560, 1569 (11th Cir. 1991)). In addition, we have
announced that reversal for plain error in the jury instructions or verdict form will
10
occur “only in exceptional cases where the error is ‘so fundamental as to result in a
miscarriage of justice.’” Montgomery v. Noga, 168 F.3d 1282, 1294 (11th Cir.
1999) (quoting Iervolino v. Delta Air Lines, Inc.,
796 F.2d 1408, 1414 (11th Cir.
1986) (citation omitted) (emphasis added)). To meet this stringent standard, a
party must prove that the “‘challenged instruction was an incorrect statement of the
law and [that] it was probably responsible for an incorrect verdict, leading to
substantial injustice.’”
Noga, 168 F.3d at 1294 (quoting
Pate, 819 F.2d at 1083).
This element is satisfied if a party proves that the instruction will “‘mislead the
jury or leave the jury to speculate as to an essential point of law.’”
Noga, 168 F.3d
at 1294 (quoting
Pate, 819 F.2d at 1083) (citation omitted) (emphasis added)). In
other words, the error of law must be so prejudicial as to “‘have affected the
outcome of the proceedings.’” United States v. Mitchell,
146 F.3d 1338, 1343
(11th Cir. 1998) (quoting
Olano, 507 U.S. at 734).
Nationwide raises a host of objections to the jury verdict form and
accompanying instructions, citing five errors: first, the verdict form contained a
typographical error, reading “qualified disability” instead of “qualified individual
with a disability”; second, the verdict form allowed recovery for both known and
“perceived” disability discrimination; third, the verdict form contained only one
box for all emotional pain and suffering damages, even though the ADA authorizes
11
recovery for emotional pain and suffering but the ADEA does not; fourth, the jury
instructions failed to outline the burdens of proof and production under McDonnell
Douglas; and finally, the jury instructions erred as to the ADA and ADEA
causation requirements.
None of these objections were raised prior to the beginning of jury
deliberations. Prior to closing argument, the trial court reviewed the final verdict
form and the final jury instructions with counsel for both parties. Nationwide
failed to raise any of these objections. After the jury was excused to begin
deliberations, Nationwide, for the first time, raised the typographical error
concerning the term “qualified disability” with the trial court. The other four
issues were raised for the first time on appeal. We therefore review all five claims
only for plain error.
First, Nationwide contends that the first verdict interrogatory contained a
material mistake of law causing irreparable prejudice. The interrogatory reads:
Do you find from a preponderance of the evidence that
the Plaintiff had a qualified disability at the time the
Plaintiff was terminated from his employment with the
Defendant?
Nationwide suggests that the interrogatory should have asked if Plaintiff was a
“qualified individual with a disability” rather than use the term “qualified
disability.” Nationwide observes that the term “qualified disability” is not found in
12
the ADA or the EEOC’s interpretive guidelines and was not explained by the jury
instructions. Nationwide adds that the typographical error may have confused the
jury in its deliberations in adjudging whether Farley met the statutory definition of
a “qualified individual with a disability.”
We are not persuaded. While the “qualified disability” language on the
verdict form may well be a scrivener’s error,3 we can discern no plain error from its
use. Again, plain error requires an error “‘so fundamental as to result in a
miscarriage of justice.’” Noga, 168 F.3d at 1294 (quoting
Iervolino, 796 F.2d at
1414) (citation omitted). Moreover, we do not analyze a verdict form in isolation
for plain error.
The jury instructions used by the trial court plainly stated the proper
definition of the term “qualified individual with a disability” in great detail. The
instruction was taken directly from a well-known federal jury pattern instruction
book, Devitt & Blackmar’s Federal Jury Practice and Instructions, and nowhere
3
We note that some courts, as Nationwide admits in its renewed motion for
judgment as a matter of law, have used the term “qualified disability” when referring
to whether a particular disability qualifies under the ADA. See, e.g., Dutcher v.
Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir. 1995) (using the term “ADA-
qualified disability” as a shorthand to discuss whether an injured arm met the statutory
definition of disability). The reason courts have used the “qualified disability”
language is that not all impairments meet the statutory definition of an ADA
disability. That said, in this case, there was no dispute as to whether Farley’s disabilities, which
included depression, alcoholism, and post-traumatic stress disorder, met the ADA definition.
13
did it mention the term “qualified disability.” Indeed, the instruction accurately
reflected our caselaw, informing the jury that “the term qualified individuals with
a disability as used in these instructions, means an individual with a disability who
can perform the essential functions of the employment position which the Plaintiff
holds.” In short, the instruction did not contain a mistake of law.
We add that the verdict form did not contain plain error. When the verdict
form is read in conjunction with the comprehensive and correct jury instruction,
the “qualified disability” error becomes harmless. See Russell v. Plano Bank &
Trust, 130 F.3d 715, 722 (5th Cir. 1997) (finding single typographical omission of
the term “reasonable accommodation” in a jury instruction that fully explained the
term “reasonable accommodation” in other paragraphs did not constitute plain
error). Here, it is plain that the jury received an accurate definition of the ADA
requirement for a “qualified individual with a disability.”
Second, Nationwide contends that the second verdict interrogatory also
contained a material mistake of law. The interrogatory reads:
Do you find from a preponderance of evidence that the
Plaintiff was intentionally discriminated against because
the Defendant knew or perceived him to have a
disability?
Nationwide argues that an ADA violation based on a “perceived” disability is a
distinct and separate cause of action with its own burdens of pleading and proof,
14
and that its inclusion on the verdict form without an explanatory jury instruction
left the jury to supply its own legal definition for a “perceived disability.”
We likewise find this argument to be without merit. Nationwide’s own
proposed jury instructions use the same “known or perceived” language that
Nationwide now objects to in the verdict form. Nationwide’s proposed instruction
on disability discrimination reads in pertinent part:
Plaintiff claims that the Defendant intentionally
discriminated against him in violation of a federal law
called The Americans with Disabilities Act, because the
Defendant knew and/or perceived him as disabled. . . . It
is unlawful to discriminate . . . against a qualified
individual who has a disability or because of the
perception that such an individual has a disability. . . .
The Plaintiff must prove by a preponderance of the
evidence that the Defendant knew and/or perceived him
as being impaired.
(emphasis added). We repeatedly have held that “[we] will not find that a
particular instruction constitutes plain error if the objecting party invited the
alleged error by requesting the substance of the instruction given.” Wood, 978
F.2d at 1223 (11th Cir. 1992) (citing EEOC v. Mike Smith Pontiac GMC, Inc.,
896
F.2d 524, 528 (11th Cir. 1990); Crockett v. Uniroyal, Inc.,
772 F.2d 1524, 1530 n.4
(11th Cir. 1990)). Nationwide therefore has waived its objection to this
interrogatory. See
Wood, 978 F.2d at 1223.
15
Moreover, any purported error was harmless. The record plainly shows that
no dispute existed over whether Nationwide “knew or perceived” that Farley had a
disability. Nationwide was fully aware from 1991onwards that Farley suffered
from several long-term disabilities including depression, alcoholism, and a stress
disorder later diagnosed as post-traumatic stress disorder. Indeed, Farley expressly
told Glatts in 1991 that he suffered from several disabilities including alcoholism
and depression. Farley also requested and was granted disability leave in April
and May of 1995. Nationwide knew and treated Farley as if he were actually
disabled. At trial, Nationwide never argued that Farley did not actually possess a
disability. As a result, the interrogatory references to a “perceived” disability were
of no moment, and certainly did not constitute plain error.
Third, Nationwide argues that the trial court erred in using only one box on
the jury verdict form for emotional pain and suffering damages since the case
concerned two separate statutory causes of action (an ADA and ADEA claim), of
which, one (the ADEA claim) did not allow for the recovery of emotional pain and
suffering damages. The damages’ sections were listed in a single interrogatory and
read as follows:
5. Past lost earnings $
Future Lost Earnings, $
16
reduced to present value
Emotional Pain and suffering, $
inconvenience and
mental anguish
Total Damages $
The jury was instructed to proceed to question five if it answered “yes” to either
question two or three-- question two related to ADA liability and question three to
ADEA liability. The jury answered both questions two and three in the
affirmative, and awarded damages under question five. Nationwide contends that
by merging the damages for both statutes, the jury may have been confused when
awarding emotional pain and suffering damages. In other words, some portion of
the damages award for pain and suffering may have been granted for an ADEA
violation in contravention of the ADEA’s provisions.
We are satisfied that this alleged error does not constitute plain error.
Notably, at trial, Nationwide neither objected to trying the ADA and ADEA claims
together nor requested separate verdict forms for each claim. The trial court
simply used its discretion to arrange the damages into a single interrogatory to be
accompanied by detailed instructions on the ADA and ADEA. The jury
instructions clearly explained what types of damages could be awarded for each
cause of action. The special ADA instruction allowed for recovery for backpay
17
and emotional pain and suffering.4 The special ADEA instruction allowed
recovery only for back pay.5 The ADEA instructions were taken with slight
modification from the Eleventh Circuit Civil Pattern Instructions. See Eleventh
Circuit Pattern Jury Instructions, Civil Cases, Age Discrimination in Employment
Act § 7.1 (West, 1990). The ADA instructions were taken with slight modification
from Devitt & Blackmar’s federal pattern instructions. See Devitt & Blackmar,
Federal Jury Practice and Instructions, v.3 §104A.11 (West 1997). The jury was
instructed unambiguously on the types of damages compensable under each
statute.
4
The special ADA instruction, among other things, reads:
If you find that the Defendant intentionally discriminated
against the Plaintiff because of his disability, . . . [y]ou may
award compensatory damages, based on the evidence
introduced at trial, for future pecuniary losses, emotional
pain and suffering, inconvenience, and mental anguish.
5
The special ADEA instruction, among other things, reads:
In the event that you are convinced by the evidence that
Defendant did discriminate against the Plaintiff [because of
his age], . . . you must award Plaintiff back pay, that is, you
are to award the Plaintiff an amount equal to the pay that he
would have received from the Defendant had he not been
terminated from the time that he was discharged until the
date of trial.
18
Moreover, the jury found Nationwide liable under the ADA, and therefore
was entitled to award compensable damages for Farley’s emotional pain and
suffering. Whatever error might have occurred from using a single damages
interrogatory was rendered harmless by the jury verdict. In addition, the bulk of
discriminatory conduct directed at Farley (including nasty cartoons, verbal insults,
and disparate workplace treatment) almost exclusively concerned his disability and
not his age. Nationwide offers no reason or logic to explain how the pain and
suffering damages awarded to Farley could have been inflated as a result of the
single compensatory damages box on the verdict form. We therefore conclude that
the damages box did not comprise a miscarriage of justice or plain error.
Fourth, Nationwide contends that because the jury instructions failed to
outline the McDonnell Douglas burden of proof and production framework, plain
error occurred. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under this familiar framework, a plaintiff must first establish a prima facie case of
discrimination. The burden of production then shifts to the defendant who must
articulate a legitimate non-discriminatory reason for the challenged employment
decision. And finally, the plaintiff then bears the ultimate burden of persuasion
that the defendant’s proffered reason is a pretext for discrimination. See Combs v.
19
Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir. 1997). Nationwide’s
McDonnell Douglas argument is without merit.
The McDonnell Douglas stages are simply a method of analysis for
organizing a discrimination case in its initial stages to determine if a case has
enough evidence to reach a jury in the first place. As the Supreme Court has
explained, this framework is “‘merely a sensible, orderly way to evaluate the
evidence in light of common experience as it bears on the critical question of
discrimination.’” United Postal Serv. Bd. v. Aikens, 460 U.S. 711, 715 (1983)
(quoting Furnco Construction Corp. v. Waters,
438 U.S. 567, 577 (1978)). The
Supreme Court reiterated this instruction recently in Hicks, directing that once the
McDonnell Douglas framework has been met by both parties in the pretrial stages,
it “simply drops out of the picture” when the jury begins its deliberations. St.
Mary’s Honor Center v. Hicks,
509 U.S. 502, 511 (1993).
This approach is well-founded since the McDonnell Douglas framework has
become a complicated legal doctrine, and there is a strong likelihood of jury
confusion over its individual components. As we have observed, “[a]lthough
‘statements [like 'prima facie case' and 'burden of production'] faithfully endeavor[]
to track the three-step formulation of McDonnell Douglas Corp. v. Green . . ., they
create[] a distinct risk of confusing the jury." Dudley v. Wal-Mart Stores, Inc., 166
20
F.3d 1317, 1322 (11th Cir. 1999) (quoting Cabrera v. Jakabovitz,
24 F.3d 372, 381
(2d Cir.1994) (citations omitted)). For this reason, we clearly have directed that
juries should not be instructed on the McDonnell Douglas framework. See
Dudley,
166 F.3d at 1322 (observing that it is “unnecessary and inappropriate to instruct the
jury on McDonnell Douglas analysis”). Three of our sister circuits have adopted a
similar position. See
Cabrera, 24 F.3d at 381 (noting that “the distinction between
burden of persuasion and burden of production is not familiar to jurors, and they
may easily be misled by hearing the word 'burden' (though referring to a burden of
production) used with reference to a defendant in an explanation of that part of the
charge that concerns a plaintiff's burden of persuasion”); Gehrig v. Case Corp.,
43
F.3d 340, 343 (7th Cir. 1994) (reading Aiken and Hicks to not require jury
instructions on McDonnell Douglas); Walther v. Lone Star Gas Co.,
952 F.2d 119,
127 (5th Cir.1992) (observing that “[i]nstructing the jury on the elements of a
prima facie case, presumptions, and the shifting burden of proof is unnecessary and
confusing”). The trial court’s decision to not instruct the jury on McDonnell
Douglas therefore was proper.
Finally, Nationwide asserts that the jury instructions erred in delineating the
causation requirements of the ADA and ADEA. Nationwide specifically objects to
two phrases in the instructions: first, that discrimination based on disability may be
21
shown if disability was “a motivating factor” in the Plaintiff’s discharge; and
finally, that discrimination based on age may be shown if age was “one of the
reasons” for Plaintiff’s discharge. We examine each claim in turn.
As for the special ADA instruction, Nationwide argues that the trial court
erred by not including language stating that disability had to be “the motivating
factor” rather than “a motivating factor.” The instruction, closely modeled on
Devitt & Blackmar’s federal pattern instructions, directly references the statutory
language, reading “[i]t is unlawful for an employer to intentionally discriminate
against a qualified individual with a disability because of that person’s disability.”
(emphasis added). Cf. 42 U.S.C. § 12112(a). The instruction then continues,
“[the Plaintiff must prove that] the Defendant intentionally discriminated against
the Plaintiff, that is, the fact that the Plaintiff was a qualified person with a
disability was a motivating factor in the Defendant’s decision to terminate the
Plaintiff.”6 We find no plain error in this jury instruction.
6
The instruction, among other things, states:
It is unlawful for an employer to intentionally discriminate
against a qualified individual with a disability because of
that person’s disability. In this case, the Plaintiff claims
that the Defendant intentionally discriminated against him
because he had a disability. . . . In order for the Plaintiff to
establish his claim of intentional discrimination by the
Defendant, he has the burden of proving the following
22
The ADA requires that a plaintiff prove by a preponderance of the evidence
that she was discriminated against “because of” her disability. 42 U.S.C. §
12112(a). We unambiguously have held that the ADA’s “because of” causation
language is defined as “a factor that made a difference in the outcome.” McNely,
99 F.3d at 1077 (emphasis added). In explaining this standard, we explicitly
rejected a reading of the ADA’s “because of” language that would require
plaintiffs to demonstrate that they were discriminated against solely because of
their disability. See
id. In so doing, we observed that the statute “merely imposes
a ‘but-for’ liability standard.”
Id. Therefore, we simply require that a disability be
shown to be a determinative, rather than the sole, decision-making factor.
The trial court’s special ADA jury instruction correctly stated our law.
McNely’s “but-for” liability standard is perfectly consonant with the “motivating
essential elements by a preponderance of the evidence that:
1. He is a qualified person with a disability, as the term is defined in
these instructions;
2. The Defendant intentionally discriminated against the Plaintiff,
that is, the fact that the Plaintiff was a qualified person with a
disability was a motivating factor in the Defendant’s decision to
terminate the Plaintiff.
3. As a direct result of the Defendant’s intentional discrimination, the Plaintiff
sustained damages.
23
factor” language of the instruction. A “motivating factor” is synonymous with a
“determinative factor” or, in the language of McNely, a factor which “made a
difference in the outcome.” McNely, 99 F.3d at 1077. While using “but-for”
language would have been a clearer exposition of the law, the use of the
“motivating factor” language is not a clear misstatement of the law, and certainly
does not rise to the level of a plain error so fundamental as to affect the fairness of
the proceedings.
As for the special ADEA instruction, Nationwide argues that the court erred
in not using language denoting that age had to be the “sole” reason for discharge in
order to hold Nationwide liable. The trial judge instead opted for the Eleventh
Circuit pattern jury instructions on the ADEA liability standard. The instruction
reads in pertinent part, “it is not necessary for the Plaintiff to prove that age was
the sole or exclusive reason for the Defendant’s decision; it is only necessary for
the Plaintiff to prove that age made a difference.” Nationwide claims that this
language allowed the jury to find ADEA liability if age was “only one of the
reasons” for Plaintiff’s discharge.
We reject this argument. We have never found this ADEA pattern
instruction to be a material mistake of law. Moreover, nowhere does the
instruction allow a finding of liability if age was merely one of several
24
considerations by the defendant. The instructional language directly follows our
ADEA caselaw. In Carter, the defendant objected to an ADEA instruction that
allowed a finding of age discrimination if age was a “determinative factor” in the
challenged employment decision. See Carter, 122 F.3d at 1005. We disagreed,
plainly holding that the “determinative factor” language was “a correct statement
of the law.”
Id. Nationwide’s argument is therefore foreclosed.
In addition, the special ADEA instruction closely follows our holding in
McNely. McNely specifically endorsed the “made a difference” interpretation of
the ADA’s “because of” causation requirement, and specifically rejected
Nationwide’s argument that “because of” means “sole.” See McNely, 99 F.3d at
1077. The ADEA shares the same statutory “because of” causation requirement.
See 29 U.S.C. § 623. In addition, because of the similarities between the ADA and
ADEA, we often apply the same doctrinal analysis from one statute to the other.
See, e.g., Doe v. Dekalb County Sch. Dist.,
145 F.3d 1441, 1447 (11th Cir. 1998)
(applying ADEA and Title VII “adverse employment action” doctrine to ADA
context). In this instance, we see no reason why McNely should not govern the
interpretation of the ADEA’s “because of” causation requirement. As such, the
25
special ADEA instruction accurately reflected the “but-for” standard of liability
for ADA and ADEA claims.7
B. Excessiveness of the Compensatory Damages Award
Nationwide also challenges the trial court’s decision to remit the jury’s
compensatory damages award to $300,000 (the maximum allowed under 42 U.S.C.
§1981a(b)(3)(D)), claiming that the trial evidence did not support so large a
compensatory award. The jury originally had awarded Farley $450,000 in
emotional pain and suffering damages. We disagree with Nationwide.
Our review of a trial court’s decision to remit a jury’s award of
compensatory damages is highly deferential. We have held that “[o]nce a
7
Nationwide cites to a Seventh Circuit decision, Umpleby v. Potter &
Brumfield, Inc., 69 F.3d 209 (7th Cir. 1995), in challenging the “made a difference”
language used by the trial court in the special ADEA jury instruction. However,
Umpleby, if anything, supports our result today. In Umpelby, the ADEA jury
instruction asked whether “age was one of the reasons” for plaintiff’s discharge. See
Umpelby, 69 F.3d at 213 The Umpelby court found the instruction erroneous
because “[t]he jury must therefore look for more than whether age was merely ‘one
reason’ for the discharge, but must determine whether age was a substantial factor in
the decision and whether it ‘tipped the balance’ in favor of discharge.”
Id. (citation
omitted). Here, the special ADEA instruction used is quite similar to the language
endorsed by the Seventh Circuit. The instruction required that age “made a
difference” in the decision to terminate Farley-- substantially similar to the
“substantial factor” and “tip the balance” language of Umpelby.
26
defendant is found liable for the plaintiff’s injury, the District Court has a great
deal of discretion in deciding the level of damages to be awarded.” Ferrill v.
Parker Group, Inc., 168 F.3d 468, 476 (11th Cir. 1999) (citing Stallworth v. Shuler,
777 F.2d 1431, 1435 (11th Cir. 1985)); see also Goldstein v. Manhatten Industries,
Inc.,
758 F.2d 1435, 1447-48 (11th Cir. 1985) (reviewing trial court decision as to
whether jury compensatory damages award was excessive for “clear abuse of
discretion”). After a trial court has reviewed and remitted a jury award to a
specific amount, we accord that decision “a presumption of validity.”
Ferrill, 168
F.3d at 476 (citing Honda Motor Co. v. Oberg,
512 U.S. 415, 421 (1994)).
Here, the trial court remitted the jury award to an amount authorized by
Congressional statute. See 42 U.S.C. §1981a(b)(3)(D). The compensatory award
was based on Farley’s emotional pain and suffering resulting from Nationwide’s
discriminatory conduct. At trial, the jury and trial court heard testimony of
Farley’s emotional pain and suffering from Farley, his wife, and his doctors. We
have explained that “[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, 168 F.3d at 476 (quoting Patterson v. P.H.P. Healthcare Corp.,
90 F.3d 927, 937-38 (5th Cir. 1996)). We can discern no reason to substitute our
27
judgment for that of the jury and trial court on a reasonable amount for Farley’s
emotional pain and suffering. The remitted award was not an abuse of the trial
court’s discretion.
III.
A. Retaliation Claim
We review the entry of summary judgment de novo. See Raney v. Vinson
Guard Service, Inc., 120 F.3d 1192, 1196 (11th Cir. 1997) (citing Hairston v.
Gainesville Sun Publishing Co.,
9 F.3d 913, 918 (11th Cir.1993)). Summary
judgment is appropriate if the record shows that “no genuine issue of material fact
exists and that the moving party is entitled to judgment as a matter of law.”
Raney,
120 F.3d at 1196 (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986)). A
genuine issue of material fact “exists only if sufficient evidence is presented
favoring the nonmoving party for a jury to return a verdict for that party.” Stewart
v. Happy Herman’s Cheshire Bridge, Inc.,
117 F.3d 1278, 1284-85 (11th Cir.
1997) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). In
making this assessment, we review all facts and inferences reasonably drawn from
the facts in the light most favorable to the nonmoving party. See Wideman v.
Wal-Mart Stores, Inc.,
141 F.3d 1453, 1454 (11th Cir. 1998).
28
The trial court granted Nationwide summary judgment on Farley’s ADA
retaliatory discharge claim. The ADA provides that “‘no person shall discriminate
against any individual because such individual has opposed any act or practice
made unlawful by [the ADA] or because such individual made a charge . . . under
[the ADA].’” Stewart, 117 F.3d at 1287 (quoting 42 U.S.C. § 12203(a)). We
review such claims under the same rubric used for Title VII retaliation claims. See
Stewart, 117 F.3d at 1287 (citing
McNely, 99 F.3d at 1075-77). To avoid
summary judgment, a plaintiff must establish a prima facie case of retaliation. This
showing contains three elements: first, the plaintiff engaged in statutorily protected
conduct; second, the plaintiff suffered an adverse employment action; and finally,
the adverse action was causally related to the protected expression. See
Stewart,
117 F.3d at 1287 (citing Goldsmith v. City of Atmore,
996 F.2d 1155, 1163 (11th
Cir. 1993)). Once a prima facie case has been established, the employer has the
burden of articulating a legitimate nondiscriminatory reason for the challenged
employment decision. See
Stewart, 117 F.3d at 1287. The plaintiff then must
“demonstrate that it will be able to establish at trial that the employer’s proffered
non-discriminatory reasons are a pretextual ruse designed to mask retaliation.”
Id.
In this case, the trial court granted summary judgment because Farley had
failed to show a causal nexus between his termination and his EEOC complaint.
29
We disagree and conclude that Farley established a prima facie case of retaliation.
Moreover, after reviewing the record, we find that Farley demonstrated sufficient
evidence from which a jury could conclude that Nationwide’s proffered reason for
discharge (poor work performance) was a pretext for retaliation. Accordingly, we
reverse the magistrate court’s grant of summary judgment.
To begin, both sides agree that Farley satisfied the first two elements of a
prima facie case; namely, that he engaged in statutorily protected expression and
suffered an adverse employment decision. Soon thereafter, Farley filed a
discrimination claim with the EEOC on May 19, 1995. Farley was terminated by
Nationwide on July 10,1995. The trial court determined, however, that Farley
failed to establish a causal nexus between these two events. We disagree. To
prove a causal connection, we require a plaintiff only to demonstrate “‘that the
protected activity and the adverse action were not wholly unrelated.’” Clover v.
Total System Services, 176 F.3d 1346, 1354 (11th Cir. 1999) (emphasis added)
(quoting Simmons v. Camden County Bd. of Educ.,
757 F.2d 1187, 1189 (11th
Cir. 1985)). We have plainly held that a plaintiff satisfies this element if he
provides sufficient evidence that the decision-maker became aware of the protected
conduct, and that there was close temporal proximity between this awareness and
the adverse employment action. See
Clover, 176 F.3d at 1354 (citing Goldsmith,
30
996 F.2d at 1163-64). Here, there is no dispute that Farley’s two supervisors, Tom
Sutterfield and Hugh Glatts, learned of Farley’s EEOC charge shortly after its
filing. Sutterfield admitted in his deposition that Farley told him about the charge
and that he discussed the matter with Glatts. Moreover, a close temporal proximity
existed between Farley’s termination and his supervisors’ knowledge of the
complaint. The charge was made May 19, 1995 and Farley was fired seven weeks
later on July 10, 1995. We find this timeframe sufficiently proximate to create a
causal nexus for purposes of establishing a prima facie case.
Once a prima facie case has been demonstrated, the defendant must proffer a
legitimate nondiscriminatory reason for the adverse employment action. See
Stewart, 117 F.3d at 1287. Nationwide asserted that Farley was terminated
because of his poor technical performance as a claims adjuster and his failure to
complete the “work probation” program satisfactorily. These reasons clearly are
legitimate non-discriminatory reasons on their face. Therefore, Farley bore the
burden of offering evidence from which a jury could conclude that these reasons
were a “pretextual ruse for retaliation.”
Id.
After thoroughly reviewing the record, we find sufficient evidence of pretext
to entitle Farley’s retaliation claim to survive summary judgment. We have
explained:
31
[D]isbelief of the defendant’s proffered reasons, together
with the prima facie case, is sufficient circumstantial
evidence to support a finding of discrimination.
Therefore, . . . a plaintiff is entitled to survive summary
judgment, . . . if there is sufficient evidence to
demonstrate the existence of a genuine issue of fact as to
the truth of each of the employer’s proffered reasons for
its challenged action.
Combs, 106 F.3d at 1529. Here, there is ample evidence to create a genuine issue
of fact with respect to Nationwide’s proffered reason of poor work performance.
Farley introduced evidence, including numerous performance evaluations, of his
professional competence and offered testimony about the verbal abuse and
disparate work treatment he received from his supervisors as a result of his
disability and age. This evidence created a genuine issue of fact as to the
credibility of Nationwide’s proffered reason. See
Hairston, 9 F.3d at 921 (finding
that “[t]he burden to avoid summary judgment is not to show by a preponderance
of the evidence that the reasons stated were pretext. . . . Issues of fact and
sufficiency of evidence are properly reserved for the jury. The only issue to be
considered by the judge at summary judgment is whether the plaintiff's evidence
has placed material facts at issue.”). In fact, the trial court already made a similar
determination when it denied Nationwide’s motion for summary judgment for
Farley’s age and disability discrimination claims even though Nationwide
proffered the very same non-discriminatory reason (Farley’s poor work
32
performance). Because Farley has established a prima facie case of retaliatory
discharge and has created a genuine issue of fact as to the credibility of
Nationwide’s proffered reason for termination, we find sufficient evidence of
pretext, and reverse the magistrate court’s grant of summary judgment.
B. Reinstatement versus Front Pay
After trial, the magistrate court awarded Farley equitable relief in the form
of one year of front pay. Farley had asked the court for equitable relief in the form
of reinstatement to his former position at Nationwide. Now, Farley challenges the
magistrate court’s decision to award front pay in lieu of reinstatement as an abuse
of discretion. In denying Farley’s request, the court explained that the “obvious
animosity” between Farley and his former Nationwide supervisors made
reinstatement unfeasible. The court noted that while the jury had rejected
Nationwide’s claims of Farley’s substandard performance, it was clear that placing
Farley back in so hostile a work environment would be harmful to both parties.
The court also observed that Farley had obtained substantially similar employment
at another insurance firm and already had received large damages awards from the
jury for Nationwide’s discriminatory conduct.
33
We review the magistrate court’s decision to award front pay in lieu of
reinstatement for an abuse of discretion. See Verbraeken v. Westinghouse Electric
Co., 881 F.2d 1041, 1052 (11th Cir. 1989); Castle v. Sangamo Weston Inc.,
837
F.2d 1550, 1563 (11th Cir. 1988). So long as the equitable remedy chosen is
consistent with the statutory purposes of the ADA and ADEA, the trial court has
“broad discretion” in fashioning relief. See
Verbraeken, 881 F.2d at 1052.
Both the ADA and ADEA authorize the trial court to award equitable relief
to prevailing plaintiffs. See 42 U.S.C. § 12117(a) (ADA); 29 U.S.C. 626(b)
(ADEA). The central purpose of both statutes 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.
Previously, we have explained that reinstatement offers the most likely means of
making a plaintiff whole by allowing her to continue her career as if the
discrimination had not occurred. See Allen v. Autauga County Bd. of Educ.,
685
F.2d 1302, 1305-06 (11th Cir. 1982). In Allen, we observed that “when a person
loses [] [her] job, it is at best disingenuous to say that money damages can suffice
to make that person whole. The psychological benefits of work are intangible, yet
they are real and cannot be ignored.”
Id. at 1306.
34
As a result, we have fashioned a rule of “‘presumptive reinstatement’ in
wrongful discharge cases” for victorious plaintiffs. Williams v. Roberts, 904 F.2d
634, 639 (11th Cir. 1990) (explaining that this rule “follows the notion that money
damages will seldom suffice to make whole persons who are unlawfully
discriminated against in the employment environment”) (citing Darnell v. City of
Jasper,
730 F.2d 653, 655 (11th Cir. 1984)); see also
Goldstein, 758 F.2d at 1448
(stating that reinstatement is the “preferred remedy for discriminatory discharge” in
ADEA cases) (emphasis added); Williams v. City of Valdosta,
689 F.2d 964, 977
(11th Cir. 1982) (holding that “in this circuit, the law is clear that a plaintiff so
discriminated against in the employment context is normally entitled to
reinstatement and back pay, absent special circumstances warranting the denial of
equitable relief”);
Allen, 685 F.2d at 1305 (noting that “[m]any other cases that
bind us have reached the same conclusion: reinstatement is a basic element of the
appropriate remedy in wrongful employee discharge cases and, except in
extraordinary cases, is required”).
However, reinstatement is not always required as equitable relief. We have
recognized that when extenuating circumstances warrant, a trial court may award a
plaintiff front pay in lieu of reinstatement. See Castle, 837 F.2d at 1562 (noting
that reinstatement may not be “a viable form of relief due to the surrounding
35
circumstances”). Such circumstances include situations where “discord and
antagonism between the parties would render reinstatement ineffective as a make-
whole remedy.” Goldstein, 758 F.2d at 1449; see also Wilson v. S & L
Acquisition Co.,
940 F.2d 1429, 1438 (11th Cir. 1991) (recognizing that “[t]he
general rule is that prospective damages are awarded in lieu of reinstatement when
it is not feasible to reinstate the employee”); Mt. Haskins v. City of Boaz,
822 F.2d
1014, 1015 (11th Cir. 1987) (noting that front pay “is an appropriate [equitable]
remedy when reinstatement is impracticable or inadequate”) (citation omitted).
Yet we do require that a trial court “carefully articulate” its reasons for awarding
front pay in lieu of reinstatement. See
Verbraeken, 881 F.2d at 1052 (citing
Dickerson v. Deluxe Check Printers, Inc.,
703 F.2d 276, 280 (8th Cir. 1983)).
In this case, the trial court did carefully articulate its reasons for awarding
front pay rather than reinstatement. Specifically, the court explained that the
antagonism between Farley and his Nationwide supervisors rendered reinstatement
“not feasible.” After a thorough review of this record, we are satisfied that the trial
court did not abuse its discretion in awarding front pay because of the hostility
between Farley and his former Nationwide supervisors.
There was sufficient evidence in this record to support the trial court’s
choice of equitable remedy. This conclusion is particularly warranted given the
36
wide ambit of deference we accord to trial courts in fashioning equitable relief.
Farley suffers from several stress-induced long-term disabilities including post-
traumatic stress disorder, alcoholism, and depression. Both Farley and his
psychologist testified that his symptoms were heavily influenced by his workplace
environment. Farley also testified about the debilitating effects on his physical and
mental condition that resulted from the pervasive verbal abuse he endured from his
former supervisors. According to Farley, colleagues and supervisors would call
him one of the “crazies” and demean his mental condition and job performance.
In a particularly egregious incident, one of his supervisors posted a cartoon
labeling Farley as “Just Plain Nuts” on the company bulletin board for all
Nationwide employees to see. On this record, we find that Farley’s hostile work
environment, coupled with his stress-induced disabilities, created sufficient special
circumstances to support the trial court’s award of front pay in lieu of
reinstatement.
That said, we emphasize that the presence of some hostility between parties,
which is attendant to many lawsuits, should not normally preclude a plaintiff from
receiving reinstatement. Defendants found liable of intentional discrimination
may not profit from their conduct by preventing former employees unlawfully
terminated from returning to work on the grounds that there is hostility between the
37
parties. See Allen, 685 F.2d at 1306 (observing that “[u]nless we are willing to
withhold full relief from all or most successful plaintiffs in discharge cases, and we
are not, we cannot allow actual or expected ill-feeling alone to justify
nonreinstatement”); see also EEOC v. Century Broadcasting Corp.,
957 F.2d
1446, 1462 (7th Cir. 1992) (noting that “if ‘hostility common to litigation’ would
justify a denial of reinstatement, reinstatement would cease to be a remedy except
in cases where the defendant felt like reinstating the plaintiff”) (citation omitted);
Walther, 952 F.2d at 127 (vacating front pay award where judge did not explicate
any unusual circumstances of discord but simply concluded that the litigation was
“protracted and necessarily vexing”). To deny reinstatement on these grounds is to
assist a defendant in obtaining his discriminatory goals. See Jackson v. City of
Albuquerque,
890 F.2d 225, 235 (10th Cir. 1989) (overruling denial of
reinstatement based on the discriminating employer’s hostility for the prevailing
plaintiff). But the unusual facts of this case suggest that the trial court did not
abuse its discretion in concluding that reinstatement would be ineffective as a
make-whole remedy. Accordingly, we affirm the trial court’s choice of equitable
relief.
C. Liquidated Damages
38
The trial court awarded Farley liquidated damages as a result of the jury’s
finding that Nationwide’s discriminatory conduct was “willful.” See 29 U.S.C. §
626(b) (ADEA). However, Farley claims that the trial court abused its discretion
when it did not include front pay in the liquidated damages award. This claim also
is without merit.
The ADEA contains a liquidated damages provision which allows the
doubling of all “amounts owing” to a prevailing plaintiff in cases of “willful
violation” of its provisions. 29 U.S.C. § 626(b). Farley contends that his frontpay
award should be included in this doubled amount along with his backpay award.
The trial court doubled Farley’s backpay award but not his frontpay award.
We find that the trial court properly did not include frontpay in the
liquidated damages award. All eight federal circuits that have interpreted the
“amounts owing” provision in the context of front pay recovery under ADEA have
concluded that front pay should not be included in liquidated damages awards. See
Olitsky v. Spencer Gifts, Inc., 964 F.2d 1471, 1479 (5th Cir. 1992); Wheeler v.
McKinley Enters.,
937 F.2d 1158, 1163 n.2 (6th Cir. 1991); Powers v. Grinnell
Corp.,
915 F.2d 34, 35 (1st Cir. 1990); Graefenhain v. Pabst Brewing Co.,
870
F.2d 1198, 1210 (7th Cir. 1989); Cooper v. Asplundh Tree Expert Co.,
836 F.2d
1544, 1556-57 (10th Cir. 1988); Blum v. Witco Chemical Corp.,
829 F.2d 367,
39
382-83 (3rd Cir. 1987); Dominic v. Consolidated Edison Co., 822 F.2d 1249,
1258-59 (2nd Cir. 1987); Cassino v. Reichold Chems., Inc.,
817 F.2d 1338, 1348
(9th Cir. 1987). Our sister circuits have found that while liquidated damages are
intended to be punitive in nature, the express terms of the ADEA limit the
calculation of liquidated damages to double the amount of lost pecuniary wages.
See, e.g.,
Blum, 829 F.2d at 382-83. Front pay, however, is equitable rather than
compensatory relief. These circuits therefore have limited liquidated damages to
double the amount of full backpay and lost fringe benefits. See
id. Farley has not
persuaded us that these circuits have interpreted the statute incorrectly. We
therefore find no error in the trial court’s decision.
D. Attorney Fees
Finally, Farley challenges the magistrate court’s denial of post-verdict
attorney’s fees totaling around $11,000. Farley had sought attorney’s fees in the
amount of $63, 730. The court awarded Farley $54,670 in attorney’s fees.
Again, we review the trial court decision for an abuse of discretion. See Waters v.
International Precious Metals Corp., 190 F.3d 1291, 1293 (11th Cir. 1999). The
trial court did not abuse its discretion in awarding attorney’s fees. The court
properly considered the reasonable attorney fee guidelines the former Fifth circuit
40
outlined in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th
Cir. 1974), which we have subsequently adopted for reasonable fee determinations
for prevailing parties.8 See Florida Suncoast Villas, Inc. v. United States,
776 F.2d
974, 975 (11th Cir. 1985); Jones v. Central Soya Co.,
748 F.2d 586, 588 (11th Cir.
1985). Farley has failed to make any showing that the fee award was an abuse of
discretion. We therefore affirm the award.
IV.
8
These factors include:
1) the time and labor required;
2) the novelty and difficulty of the questions;
3) the skill requisite to perform the legal service
properly;
4) the preclusion of other employment by the
attorney due to the acceptance of the case;
5) the customary fee;
6) whether the fee is fixed or contingent;
7) time limitations imposed by the client or the
circumstances;
8) the amount involved and the results obtained;
9) the experience, reputation and ability of the
attorneys;
10) the "undesirability" of the case;
11) the nature and length of the professional
relationship with the client; and
12) awards in similar cases.
Jones, 748 F.2d at 588.
41
In sum, we find that the magistrate court did not plainly err in its jury
instructions or verdict form, nor abuse its discretion in remitting Farley’s
compensatory damages to the maximum allowed by statute. We also conclude that
the magistrate court did not abuse its discretion in awarding front pay in lieu of
reinstatement, precluding frontpay from its liquidated damages award, or awarding
attorney’s fees to the prevailing party. However, we conclude that the magistrate
court did err in granting summary judgment on Plaintiff’s retaliation claims.
Accordingly, we affirm in part, and reverse in part.
AFFIRMED IN PART, REVERSED IN PART.
42
