EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. PRUDENTIAL FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant-Appellant

_ Colorado, day of APPENDIX --19-- AFFIDAVIT OF CIRCULATOR My expires_ commission STATE OF COLORADO _ COUNTY OF Notary Public Address I, being sworn, duly first depose say; registered I am a elector of the State of is_ my Colorado and address

I have circulated the foregoing petition and signature each thereon was my affixed in EQUAL EMPLOYMENT OPPORTUNI- presence; signature and each thereon is COMMISSION, TY Plaintiff-Appellee, signature person whose name it be, purports to and to the my best of knowledge and belief persons each of the PRUDENTIAL FEDERAL SAVINGS signing petition said was at the time of ASSOCIATION, AND LOAN signing qualified such elector of the State Defendant-Appellant. Colorado; I have neither received nor 82-2444, Nos. 83-1073. I any

have entered into whereby contract I United Appeals, States Court of will in the future receive money or Tenth Circuit. thing other of value in consideration of or as an Aug. inducement to the circulation of the me; petition by above I have not nor will I

pay in the future and I believe that no person paid

other has so pay, or will direct-

ly indirectly, any money or or other thing any signer purpose

of value to for the

inducing causing signer such to affix his

signature petition. to such

(Signature Circulator)

Subscribed and sworn to before me in the

county ___, state of Waddoups, City,

Clark Salt Lake Utah (Stephen Smith, G. Crockett and Steven D. Utah, City, briefs), Salt Lake with him on Rooker, Larsen, Parr, Kimball & Salt Utah, City, defendant-appellant. Lake Bannon, Jeffrey Washington, C. D.C. (David Slate, Counsel, L. Philip Gen. B. Sklover, Associate Gen. Counsel and Vella Fink, M. Asst. Gen. Counsel with him on briefs), E.E.O.C., Washington, D.C., for plaintiff-appellee. BARRETT, DOYLE,

Before and SEY- MOUR, Judges. Circuit SEYMOUR, Judge. Circuit Equal Employment The Opportunity (EEOC) brought Commission this action against Prudential Savings Federal (Prudential) alleging Loan that Prudential Age violated the Discrimination in Employ- (ADEA Act), ment Act or the 29 U.S.C. §§ seq. 621 et (1982), discharged when six employees and demoted a seventh. The jury, case was tried to a which found that Tanner, employee, Douglas one had been illegally terminated age because of his $34,200 past awarded him in wages lost jury and benefits.1 The found that violation had not been willful and accord- ingly liquidated damages. did not award relief, equitable As additional the trial $17,000 judge granted Tanner in lost future retirement benefits in lieu of reinstatement. parties appealed.

Both have The EEOC erroneously contends that the district court jury meaning instructed the on the of “will- ful” as used in the section of the ADEA jury challenged in of Prudential with 1. The found favor EEOC has not these determinations charging parties. respect appeal. to the six other on liquidated authorizing the award of dam- sional intent enforcement be effected cross-ap- In its ages possible resorting for willful violations. without to for- wherever (1) peal Prudential that: the district asserts litigation.” mal Marshall v. Sun Oil Co. cert, court should have dismissed the action be- (10th Cir.), denied, re- failed to conciliate as cause EEOC 62 L.Ed.2d 33 U.S. S.Ct. ADEA; (2) errone- quired the court (Sun I). (1979) Oil ously jury failed to instruct the that the recognized court has This (3) required prove pretext; EEOC legis “ADEA is remedial and humanitarian support the evidence was insufficient to interpreted liberally lation and should be (4) Tanner; verdict in favor congressional purpose effectuate award of future was erro- court’s ending age employment.” discrimination in part, part, neous. We affirm reverse Dartt v. Shell Oil Co. 539 proceedings. and remand for further (10th Cir.1976), per curiam aff'd litigation giving The facts rise to this are court, equally divided briefly as In the late 1970’s eco- follows. (1977). Accordingly, impact nomic conditions had an adverse on we have refused to dismiss cases where the operations savings the of the and loan in- duty fully EEOC failed to exhaust its to dustry. response, In Prudential instituted severely to conciliate because do so would designed a reduction in force to eliminate hamper enforcement of the ADEA and personnel. positions all non-essential and “incompatible the would be with humani Douglas employ- Tanner was one of several I, tarian nature of the Act.” Sun Oil involuntarily ees terminated under the re- F.2d at 566. We have concluded instead fifty-four duction in force. Tanner was initially the when EEOC makes a suf discharged, he when was and he had been conciliate, ficient limited effort to albeit twenty-seven years. with Prudential At jurisdictional requirement minimal the time of his he an Ac- termination was Act is satisfied and action is therefore quired Property Manager, responsible for properly before the court. Id. Once this foreclosing on real estate defaulted loans made, “if initial effort is the district court managing selling and for and foreclosed finds that further conciliation efforts are termination, properties. After his two or required proper stay pro course is to employees performed three other his work ceedings until such informal conciliation along with their own duties. Prudential can be concluded.” Id. position did not offer Tanner a elsewhere in company. recognized Courts have that “[b]ecause parties, conciliation involves at least two I. party’s we must evaluate one efforts with eye to the party.” conduct of the other CONCILIATION Co., Marshall Sun Oil vigorously argues ap Prudential on (5th Cir.1979) (Sun II), Oil see also peal satisfy that the EEOC failed to its Co., Marshall v. Fire Insurance statutory duty Hartford good to conciliate in faith (D.Conn.1978). 78 F.R.D. Concilia consequently the trial court erred in tion responsive pro is thus a flexible and failing ground. to dismiss the action on necessarily cess which differs from case to “[bjefore instituting The ADEA states case. The EEOC make a sufficient section, any action under this the [EEOC] undertaking initial without effort exhaus attempt shall to eliminate the discriminato investigations proving tive discrimina ry practices alleged, practice or and to ef satisfaction, employer’s tion to the Sun Oil voluntary compliance require fect with II, 1334-35, long 605 F.2d at so as it chapter through makes ments of this informal conciliation, conference, a negotiate sincere and reasonable effort to methods of § 626(b). by providing jur “adequate This the defendant an persuasion.” U.S.C. provision congres- opportunity respond charges isdictional embodies “the to all II. negotiate possible settlements.” Hartford F.R.D. at 107. Fire Insurance THE PROPOSED PRETEXT Pruden- the EEOC informed In this case INSTRUCTION charging parties, identity of the

tial of the misconduct, and allegations of the specific requested Prudential the court to party, and on remedy sought by each jury if instruct the it found Prudential invited conciliation. several occasions had offered reasonable factors other than reveals a series of overtures record age for the termination or demotion of the made no to which Prudential EEOC complaining employees, jury had to find obviously meaningful response. Prudential for Prudential unless it found that could follow litigation was aware both that proven expla had that Prudential’s EEOC require- and of the failure conciliate nation for the termination or demotion was conclude that the ments of the Act. We pretext age discrimination. The court EEOC’s initial effort was sufficient under theory “on the though refused that even 566-67, I, particularly 592 F.2d at Sun Oil jury explanation finds that the of finan refusal to in view of Prudential’s insistent necessity cial difficulties and the for reor any significant dialogue, its out- undertake ganization explanations or other were not right rejection of the EEOC’s initial settle- pretext, they mere if age also find that proposals, ment and its refusal to offer factor, discrimination was a determinative counterproposals. The trial court serious jury peremptorily could not be instruct properly refused to dismiss the action be- Rec., toed decide for the defendant.” vol. cause, circumstances, Prudential under VIII, at 956. given opportunity a reasonable before respond negotiate. filed to suit was reviewing allegation Prudential’s I, In line with the court exer- Sun Oil of error we must consider the instructions stay forty- the suit cised its discretion to given as a whole. McGrath v. Wallace provide days parties five to the an addition- 299, (10th Murray Corp., 496 F.2d 301 opportunity al to conduct conciliation. The Cir.1974). particular form of words “[N]o proceedings at conciliation were recorded is essential if the instruction as a whole The trial court Prudential’s insistence. conveys appli the correct statement of the found that the of these talks was record cable law.” Perrell v. Financeamerica relevant to Prudential’s claim that 654, (10th Corp., Cir.1984); 726 F.2d 656 negotiate in initially EEOC had failed to Corp., see also Blackwell v. Sun Electric good this record revealed the faith because 1176, (6th Cir.1983). 696 F.2d 1181 light. pre-filing conciliationin a new Based on Prudential’s conduct at the recorded discussing proper In instructions in meeting, that the “ma- the court observed action, recently an ADEA we stated that neuvering correspondence that was “The essence of the correct formula- by regarding pre- Prudential” submitted proof tion of the standard of is that it Rec., misleading. trial conciliation was requires jury to focus on the effect I, supp. at 19-20. The court noted vol. age. of the jury factor of must intransigent “Prudential’s almost resist- enough age understand that it is not that any good negotiation ance to faith figure discrimination in the decision to attorney efforts of the Commission to at discharge; age demote or must ‘make a meaningful the door for concilia- open least difference’ between termination and re- justifiably tion.” Id. at 19. The court con- that, employee tention of the in the sense Prudential’s conduct at this cluded that age discrimination, ‘but for’ the factor of its meeting was an accurate reflection of employee would not have been ad- conciliation, in the earlier and held attitude versely affected.” object position in no to that Prudential was Perrell, by 726 F.2d at 656. In the instant good faith conciliation to a lack agree jury properly case the was thoroughly with this conclusion. EEOC. We 1230 judgment jury.” prove had to stitute its for that of the

instructed that EEOC question was a age employee Joyce v. Atlantic 651 F.2d “the Richfield 676, (10th Cir.1981). “[Sjince factor in defendant’s decision 2 determinative 680 n. discharge him. That is ... but for his grant deprives of such a motion the non- not have been so treated.” age, moving party he would of a determination Rec., XV, at 1111. We conclude that judgment notwithstanding vol. by jury, facts a accurately instructions set out the court’s cautiously spar- should be the verdict legal standards. the relevant granted.” Upon ingly Id. at 680. review standards, of the record under above Moreover, agree we with the trial judgment a notwithstand- we conclude that judge’s refusing reason for Prudential’s ing the verdict is unwarranted. plaintiff An ADEA is pretext instruction. required age the sole to show that parties fully presented When both have motivating employment factor in the deci evidence, question their the “central Corp., 710 Hagelthorn sion. v. Kennecott plaintiff presented has sufficient whether Blackwell, 76, (2d Cir.1983); 696 F.2d permit evidence to a reasonable fact-finder 1181; at v. Federated De F.2d Cancellier age to conclude that was a determinative Stores, cert, 1312, 1315-16 partment employer’s Hagel- factor in the decision.” (9th Cir.), denied, 459 U.S. thom, 81; F.2d at see also United (1982); S.Ct. Smithers States Postal Service Board Governors (3rd Cir.1980). Bailar, 629 F.2d v. Aikens, prove plaintiff Thus a need not that the (1983). L.Ed.2d 403 In this case reasons offered the defendant are false the EEOC offered statistical evidence of a reason, proves age if he was also a significant age and association between dis- age and that was the factor that made charge, as well as evidence of statements 82; Hagelthorn, difference. president made Prudential’s and other Perrell, see 726 F.2d at 656. The instruc management personnel, jury which the rea- requested by tion Prudential could have sonably suggesting could construe as jury thinking misled the into that even age played a determinative role in the com- though age it found to be the determinative employees pany’s selection for termina- factor, required it nonetheless would be addition, tion. the EEOC’s evidence return a verdict for Prudential unless prove tended to that real estate foreclosure proved rea EEOC also that Prudential’s activity time due to was substantial Consequently, sons were invalid. the trial climate, the economic and that several properly rejected court it. younger employees on Tanner’s carried departure. Although work after his this

III. undisputed, obviously evidence was not accepted by jury clearly and is SUFFICIENCY OF THE EVIDENCE sufficient to allow a reasonable factfinder argues Prudential that the evidence age to decide that awas determinative support jury was insufficient to verdict discharge. factor Tanner’s judgment in favor of Tanner. A notwith standing only appropriate verdict is points way

when “the evidence one and but IV. susceptible to no reasonable inferences FUTURE DAMAGES may position party sustain the of the which against entry of Sym judgment jury whom the motion is made.” In its on the verdict, Co., (10th ons 493 F.2d the trial court Tanner v. Mueller awarded evaluation, Cir.1974). making $17,000 this lost retirement and “as accruing through court must construe the infer benefits normal retire evidence and ment, Rec., nonmoving favorably ences to the in lieu of reinstatement.” most vol. II, id., weigh evidence, appeal, at 477. On Prudential party, “cannot contends damages credibility or that an of is not consider the of witnesses sub- award future Koyen ADEA, cases); v. Consolidated Ed- cussing and that even if authorized Co., awarded, they ison damages F.Supp. could be were such 1167 & n. 33 (S.D.N.Y.1983) improper (citing cases). in this case because Tanner did Eighth The sincerely request reinstatement. Ninth Circuits have held that such damages may be awarded under certain incorporates ADEA the remedies of The See Gibson v. Mohawk circumstances. (FLSA) Act as the Fair Labor Standards Co., Rubber (8th 695 F.2d Cir. follows: 1982); Cancellier, 672 F.2d at 1319. The provisions shall “The of be [the ADEA] First has stated Circuit that an ADEA powers, enforced in accordance with the plaintiff damages cannot recover for future remedies, procedures provided in sec- Inc., Goldring, See Kolb v. economic loss. 211(b), (except for tions subsection (1st Cir.1982). 694 F.2d 874 n. 4 (a) thereof), FLSA], and 217 of [the section____ (c) subsection of this recently This court has reviewed a case person owing Amounts to a as a result in which the trial court had awarded future chapter a violation this shall be in lieu of reinstatement. See of deemed to be unpaid wages minimum Blim v. Western Electric unpaid compensation overtime or (10th Cir.1984). 1478-79 We there purposes sections 216 and 217 this recognized split in the circuits on this title____” issue, majority panel but a held that question. § it did not need to resolve the Id. 626(b) added). (emphasis 29 U.S.C. Instead, majority 1479. assumed provides the district courts FLSA with deciding pay without that front is available Id. power to restrain of the act. violations ADEA, § under the but held under the pertinent provision, 217. The most sec- circumstances of that case the 216(b), provides: trial court tion repromotion should have ordered rather “Any employer provi- who violates the pay. Seth, than front Judge Chief in dis- sions of shall be to the liable [the Act] sent, would have decided the issue and employee employees or affected in the would have pay held that front is not a unpaid wages, amount of their minimum remedy contemplated by the ADEA. Id. unpaid compensation, their or overtime directly We are ques- faced with the be, may as the case and in an additional tion this case. equal liquidated damages.” amount as § Although 216(b). However, provides the ADEA Id. ADEA that viola- makes a generally tions of the Act significant are to be treated addition to the FLSA remedies as violations of the Fair by providing that Labor Standards Act, only the ADEA selectively incorpo- brought “In action to enforce this time, rates FLSA sections. At the same as chapter jurisdiction the court shall have out, pointed we have the ADEA contains legal equitable grant such relief provisions additional remedial not found in appropriate be effectuate ADEA, enacting the FLSA. Con- purposes chapter, including “[I]n gress exhibited knowledge both a detailed without limitation judgments compel- provisions of the judicial FLSA and their ling employment, pro- reinstatement or interpretation willingness and a motion, depart to enforcing liability or for provisions regarded from those as undesir- unpaid amounts deemed to be minimum inappropriate or incorporation.” able for wages unpaid compensation overtime Pons, Lorillard v. 575, 581, 434 U.S. 98 under this section.” 866, 870, (1978). S.Ct. § 626(b) Id. added). (emphasis thorough In a analysis and careful disagree The courts on whether future question damages in lieu of reinstate- damages in lieu of reinstatement are avail- ment, the in Koyen court concluded: See, e.g., O’Don- under the ADEA. able Inc., Georgia Osteopathic Hospital, nell v. purpose “The manifest of this broad (N.D.Ga.1982) (dis- 214, legal F.Supp. grant equitable power 574 216-19 and is to 1232 party nearly possible ed is returned the courts to fashion whatever as

enable remedy required fully compensate is to to the economic situation he would have employee injury the economic an sus- enjoyed illegal but for the defendant’s con power granted him. The so is tained duct. See Ventura v. Federal Insur Life to authorize an award of fu- sufficient (N.D.Ill.1983). ance F.Supp. 571 50 earnings appropriate ture loss of in case, employer If this were not an authority deny cases. To that would de- purpose simply could avoid the of the Act a purpose feat a of the Act to make by making so unattractive reinstatement and to victim of discrimination ‘whole’ wronged employee that the infeasible position him he restore to the economic See, e.g., Can would not want to return.2 occupied would have but for the unlaw- cellier, 672 F.2d at 1319-20. employer. deny ful conduct of his To authority such would remove a deterrent recognize damages that future We against force future violations.” specu have been criticized as uncertain and (footnotes omitted). F.Supp. See, e.g., 560 at 1168 Foit v. Suburban Ban- lative. agree. power grant equitable We to corp, (D.Md.1982). F.Supp. 549 267 clearly in ADEA provided relief stands However, given they our conclusion that monetary in addition to the relief available ADEA, are available under the mere “[t]he expressly and is under FLSA sections damages may fact that be difficult of com stated to be limitation. When we without putation wrongdoer should exonerate a read this section as a whole and construe it liability. from elementary ‘The most con Dartt, must, see liberally, as we F.2d 539 ceptions justice public policy require legal we conclude wrongdoer shall bear the risk of equitable remedies available under uncertainty wrong his which own has ” ADEA spe- are not limited either to those Koyen, created.’ F.Supp. 560 at 1169 cifically listed or to those available under Pictures, Bigelow v. RKO Radio (quoting FLSA, long “appro- so as the relief is 251, 265, 574, 580, 90 priate purposes to effectuate the of [the (1946)). L.Ed. 652 Courts are to allevi able § 626(b). 29 U.S.C. Act].” uncertainty damages by ate the of future Blim We held in reinstatement taking into discharged employ account a preferred remedy under the ADEA and duty mitigate, ee’s availability “the appropri- should be ordered whenever it is employment opportunities, period with Gibson, 1479; see also ate. 731 F.2d at in which one may reasonable efforts be 1101; Cancellier, 695 F.2d at re-employed, employee’s work and life appropri- 1319. Reinstatement not be expectancy, the discount tables deter ate, however, employer when the has exhib- present damages mine the value of future that, hostility practi- ited such extreme aas pertinent other that are factors on matter, productive cal and amicable work- prospective damage awards.” Id. at 1168— See, ing relationship impossible. would be Printers, e.g., Dickerson Deluxe Check event, uncertainty is not a rele- Inc., (8th Cir.1983); Can- vant consideration in this case because the cellier, 1319-20; Whittlesey v. 672 F.2d at grant wages. court did not future Tan- Corp., Union Carbide F.Supp. pension ner’s had vested at the time (S.D.N.Y.1983); of trial v. Nissan Hoffman. $17,000 parties stipulated and the Corp., (D.N.H. that the Motor F.Supp. 1981). circumstances, pension provide benefits would Tanner Under such upon the same retirement award of future lieu of rein- that he purposes statement furthers the remedial would have received had he not been ille- by assuring aggriev- gally discharged. of the ADEA that the Stockade, Inc., 945, plaintiff “request Fitzgerald 2. A reinstatement as v. need Sirloin 624 F.2d (10th pay Cir.1980) (Title VII); prerequisite obtaining Koyen, front where the 957 560 hostility.” atmosphere F.Supp. evidence reveals an of at 1169.

1233 pro- its supporting memorandum cases of willful violations chapter.” In its of this § below, 626(b). Id. the posed and order filed judgment EEOC stated: In the trial this case court instructed the pay requested of “Front in lieu rein- jury that in has the defendant statement per- “A willful violation occurs when a steadfastly refused to reinstate- consider specific son acts with intent to the violate remedy as a of re- ment since the date law, with knowledge where of he the law of Mr. discrimi- ceipt charge Tanner’s of proceeds it proceeds, or to violate the law It has been and one-half nation. two knowingly intentionally. (2%) years discharge since Mr. Tanner’s words, you “In other can find willful expressed atti- and defendant’s hostile age, discrimination for or willful violation employees, tude toward its former both law, only you if find both that trial, during attempts conciliation and at discharg- violated the Prudential law impossibil- reinstatement a virtual makes ing reassigning complaining or employ- ity remedy.” aas of age, ees because their Pru- and that II, Rec., at vol. 452. The record contains knew, dential or should have known support evidence contention.3 How- the time that decided to or discharge ever, judge why the district did not state reassign complaining employees, that damages appropriate are more than future such decisions and actions were in viola- reinstatement. The trial court must make intentionally tion of the law and were in the Ac- this assessment first instance. knowingly done in violation thereof.” cordingly, we remand for the to re- court XV, Rec., appeal vol. 1121-22. On its award of pension consider future bene- EEOC contends that this instruction erro- decision in Blim light of our fits in neously imposed too strict a standard above, set forth analysis and to articulate requiring proof employer specifi- underlying the evidence rationale its cally to violate intended the law. We decision. agree. court This has held that a viola

V. tion of the ADEA is willful when em ployer “acted face of the ADEA” THE WILLFULNESS INSTRUCTION “fully and was aware that the Act ‘in ” § ADEA, 626(b), provides Corp., Mistretta v. Sandia picture.’ U.S.C. 588,'595 owing (10th Cir.1980) person that amounts to a as a result (quoting 639 F.2d Jiffy Farms, Inc., unpaid of Coleman v. June of a violation the Act are deemed cert, denied, wages (5th unpaid 1139, Cir.1971), minimum com- overtime pensation purposes 948, 292, for section 216 93 S.Ct. U.S. employer (1972)). Under section doing

FLSA. adopted so we have the FLSA for apply who violates is liable these same definition willfulness that we plus “an equal determining amounts additional amount whether a violation of the § damages.”4 216(b). Id. liquidated FLSA is willful for statute of limitation See, However, id.; e.g., provides “liqui- ADEA purposes. EEOC Central Center, damages payable only dated shall be in Kansas Medical Indeed, appeal Cong., H.R.Conf.Rep. Prudential has not indicated on No. 95th 2d Sess. prefer 13-14, pay- that it would reinstatement over reprinted Cong. in 1978 & Ad. U.S.Code 504, 528, ment of benefits. (quoting Overnight News Motor Missel, Transportation Co. v. 583- "liqui- recovery of 4. The ADEA authorizes the 1222-23, 86 L.Ed. (calculated equal dated as an amount (1942)). "[L]iquidated damages are in the na- loss) compensate pecuniary which to the aggrieved relief,” id., legal ture of and "are not intended to party nonpecuniary losses ... that Dickerson, place equitable take the relief.” proof for obscure and difficult of esti- are ‘too 703 F.2d at 280. damages____ by liquidated than mate other 1234 served, expressly in Cir.1983). although the ADEA

1273, (10th this Under 1274 the be willful even corporates provisions of Portal-to- other standard, violation “[a] Act, specific not ADEA does make does have Pay Portal “the employer if § Act actions violate the Id. join 11.” We those his reference to knowledge that ____ Instead, signif is when this violation willful courts that have found omission ‘[a] been, was, good or should have pro and that the faith employer the icant conclude possibility that cognizant appreciable in of an of 11 is not available vision section by See, were e.g., Spiegel, Hill v. involved covered employees the ADEA cases. ” v. Donovan provisions.’ Inc., statutory 233, (6th Cir.1983); the F.2d 238 708 Corp., 725 F.2d 83, Inc., Simmons Petroleum Heublein, 127, Goodman v. Cir.1983) Central Kansas (10th (quoting 85 (2d Cir.1981); Kelly American 129-30 Center, 1274) (empha- 705 F.2d at Medical 974, Standard, Inc., (9th F.2d 640 981-82 added). Accordingly, sis the instruction Cir.1981); Burroughs Corp., v.Wehr 619 here given by court was erroneous.5 the Cir.1980); 276, (3d Loeb v. Tex F.2d 279 tron, 1003, Inc., (1st F.2d 1020 600 Cir. by testimony contains The record 1979). the members of Prudential executives demonstrating that the in company board ADEA Once violation the by employees protected fact were knew its willful, is the determined to be award ADEA, Prudential not con does liquidated damages mandatory, is and the contrary appeal. on on tend Based to liqui “to court without discretion award evidence, we as a this uncontested conclude damages dated in an amount other than matter that Prudential’s conduct in of law equal compensatory award for to the terminating Tanner vi constituted a willful damages.” Hill, 708 F.2d at 238; also see meaning olation ADEA. within 950, H.R.Conf.Rep. Cong., No. 95th 2d Sinclair v. Automobile Club Okla Cf. reprinted in 1978 U.S.Code Cong. Sess. homa, Inc., (10th F.2d 733 729-730 (ADEA provides liqui & Ad.News Cir.1984). equal damages dated calculated amount pecuniary compensate nonpe to loss to doing ques we so address the cuniary arising from losses willful viola Mistretta, tion in F.2d at left undecided tion). Accordingly, plaintiff is entitled to good 595 n. and hold that faith liquidated damages in equal an amount to defense of section 11 of the Portal-to-Portal $34,200 pecuniary by in losses found § 260, Pay Act, incorporat 29 U.S.C. is not jury. section, ed into ADEA. This which judgment The is affirmed insofar as it applies liquidated damages to awards of $34,200 plaintiff in lost wages. awards It FLSA, “grants authority under the courts as it fails is reversed insofar to award liquidated to deny or limit where liquidated damages, and the re- case is ‘employer shows to the satisfaction of enter judgment manded with directions to giving the court that the act or omission faith____’” $34,200. good in the amount of rise action was additional to such Lorillard, judgment 434 U.S. at 581-82 is also reversed insofar as it n. § $17,000 (quoting 260). plaintiff awards 870-71 n. 8 future U.S.C. benefits, pointedly As Supreme Court has ob- and retirement the case is however, preserve appeal, argues proper- issue is not the issue for we con- Prudential ly propose given the EEOC did not before us because clude instruction constituted to court the instruction it now contends affecting rights. the trial plain error substantial "[W]e given. Although been EEOC should have properly objected will review instructions not objected given, to the instruction the instruction plain significant." trial where the error is offered, circuits, approved while several (10th Fox v. Ford Motor articulated was not in the form this court. Cir.1978). assuming properly that the EEOC failed Even of this relief reconsideration remanded for light opinion. of this Dwayne David DOWNIE Bereska, Plaintiffs, BARRETT, dissenting in Judge, Circuit v.

part. CORPORATION, corporation, ABEX a agree the dissent filed Chief I with Defendant-Appellee/Cross-Appellant, Judge in Blim v. Elect. Seth Western (10th Cir.1984) Inc., 731 F.2d 1473 remedy contemplated by pay front is not a CORPORATION, GENERAL MOTORS also, Goldring, Kolb v. the ADEA. See corporation, Third-Party Cir.1982). (1st 694 F.2d 869 Defendant-Appellant/Cross-Appellee. carefully Judge reviewed the Chief Seth 82-1368, Nos. 83-1369. ADEA and legislative history of he con- “allowing pay cluded that front runs Appeals, United States Court Congress limiting against the intent of Tenth Circuit. ‘unpaidwages unpaid legal remedies to Aug. 1984. compensation.’ overtime court should powers equitable its to frustrate use the intent of the statute.” 731 F.2d at salutary Judge Seth set forth rea- pay,

sons for the disallowance of front recognizing liquidated damages

after recovered for willful violations: be pay

The front are too uncer- wages”

tain to be considered “lost possibilities

“lost earned benefits.” The demotions, promotions, legitimate ter-

minations, inject many or death too un-

knowns. these circumstances the speculative pay

award of front is too pecuniary damages

be considered under

the statute. The enforcement section of specifically

the ADEA was constructed type damages.

to limit the of available mentioned, although

As the statute

grants equitable powers broad those

powers expand cannot be used to

legal specifically remedies detailed in the

statute. Id. at 1481. Doe, 202, 242,

In Plyler v. 2382, 2408, (1982)

S.Ct.

Supreme Court observed that Con- “[T]he does not constitute

stitution us Jus- [the Supreme

tices of Court of the United ‘Platonic Guardians’ nor does it

States] authority

vest in this Court to strike they do not meet our

down laws because policy, of desirable social ‘wis-

standards ” dom,’ sense.’ In like manner or ‘common should be ever cautious not

the court superlegislature.

play the role of a

Case Details

Case Name: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. PRUDENTIAL FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant-Appellant

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Aug 7, 1984

Citation: 741 F.2d 1225

Docket Number: 82-2444, 83-1073

Court Abbreviation: 10th Cir.