Loveless v. John's Ford, Inc.

UNPUBLISHED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Affirmed in part, reversed in part, and remanded by unpublished per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Unpublished opinions are not binding precedent in this circuit.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
928 F.2d 1413, 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.” Id. at
615.
4
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, 93
F.3d 1241, 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., 928 F.2d 1413,
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 id. The award or 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., 144 F.3d 294, 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., 271 F.3d 583, 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., 251
F.3d 496, 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., 777 F.2d 849, 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, 271 F.3d 181,
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., 354 F.3d 277, 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., 354 F.3d 277, 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
id.Here, there was 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, 490 U.S. 642, 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.”
Id. at 593.7 Vicki Surface, an assistant service manager, heard
Cohen refer to another older employee, Wilber Laznic, as a
“dinosaur.” Id. at 615.
John’s 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, 180 F.3d 598, 608 (4th Cir. 1999) (internal
quotation marks omitted); see also O’Connor v. Consol. Coin
Caterers, Corp., 56 F.3d 542, 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., 369 F.3d 385, 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., 30 F.3d 507, 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., 364 F.3d 160, 164
(4th Cir. 2004).
11
outside the protected class. See Hill v. Lockheed Martin Logistics
Mgmt., 354 F.3d 277, 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., 928 F.2d 1413,
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., 871 F.2d 452, 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. Id. at 456. In 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, 450 U.S.
248, 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., 928 F.2d 118, 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., 271 F.3d 583, 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., 71 F.3d 148, 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.
Silvestri, 271 F.3d at 590. 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.” Id. at 593.
In 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 id.
at 593-94 (concluding 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. , 695 F.2d 253, 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., 290 F.3d 639, 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.,
928 F.2d 1413, 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., 239
F.3d 848, 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 Duke, 928 F.2d at 1424. 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 id. at 1424 (“The
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, 48 F.3d 1270, 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, 469 U.S. 111 (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 Thurston, 469 U.S. at 125. 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 id. The
Court stressed 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.” Id.The Court thus did not explicitly hold that a liquidated damages
award is mandatory upon a finding of willfulness. See id. The
Court did, 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 id. Thus, Thurston lends 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., 304 F.3d 379, 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., 269 F.3d 771,
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., 210 F.3d 1237, 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, 193 F.3d 64,
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., 708 F.2d 233, 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 Thurston, 469 U.S. at 128. Of additional importance, the
evidence in this case, assessed under the appropriate standard,
that is, in the light most favorable to Loveless, see Duke, 928
F.2d at 1417, 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, 769 F.2d 958, 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