Feldman v. Philadelphia Housing Authority

STAPLETON, Bеfore GARTH and PRATT,* Judges. Circuit THE OPINION OF COURT PRATT, Judge: GEORGE C. Circuit

INTRODUCTION Plaintiff claims the de- James C. Feldman Housing Authority Philadelphia fendant (“PHA”), through agents, Jon- defendants Paone, A. violated the athan Saidel John * Pratt, George tion. Honorable C. United States Circuit Circuit, by designa- Judge sitting for the Second as well as to the four other members ers Amendments Fourteenth

First States, the board. as well as of the United Constitution Pennsylvania’s “whistleblower” State PHA, career at his For most of Feldman’s pub- statute, firing him in retaliation exemplary. per- was considered His work wrongdoing at exposed reports that lishing reprimands or com- sonnel file contained no jury trial the district PHA. After job concerning poor performance. ments claims, plaintiff on all judgment for entered evaluation, April performance last dated His $616,696 compensatory dam- awarding him rating gave Feldman of “SUPE- punitive dam- total of ages and a However, after became RIOR”. affirm. appeal. We ages. Defendants became chairman of the board Paone director, things changed. In sever-

executive reports management PHA’s AND BACKGROUND al of his FACTS approximately the next operations over Feldman, we view jury found for Since months, numerous twelve Feldman revealed all by drawing from the evidence facts key improprieties sеveral areas in his favor. inferences reasonable required by auditing agency. As the internal PHA, agency responsi- public Defendant Paone, charter, reports to Feldman made his housing citi- providing for low-income ble Many of and the rest of the board.' zens, housing agency in Penn- largest is the job manage- reports criticized the PHA’s largest in the United fourth sylvania and occasions, doing. ment was On several governed by a board agency is The States. reprimanded Feldman for Paone and Saidel members, consisting of five of commissioners reports. preparing the critical mayor and being appointed two each particularly displeased with Paone was controller, fifth respectively, with the city management reported that Feldman after he appoin- being the four selected member employee PHA who was promoted had tees. investigation corruption. As a re- under Saidel, exercising his au- January 1990 In tip, Department Internal Audit sult of a controller, city ap- thority Philadelphia’s investigation of PHA’s had conducted the board of commission- pointed himself to in- Department. The Maintenance Central later, named Paone was Three months ers. that the Central Mainte- vestigation revealed directоr, responsible executive as PHA’s new responsible for Department, which was nance overseeing day-to-day activities of contracts, fencing was involved agency’s closely agency. Paone and Saidel worked scheme, and several illegal bid-rigging in an daily man- routinely discussing the together, unlawful employees linked to the were PHA agement affairs of PHA. and reported to periodically activity. Feldman this inves- the details of Paone and Saidel on working PHA since been Feldman had employees tigation, including which May his termination From 1990 until 1982. Ultimately, Feld- probably involved. were as the di- May Feldman acted em- implicated of the reported that one man Depart- Audit agency’s Internal rector of being despite promoted had ployees been respon- was capacity, In this Feldman ment. Paone continuing investigation. under the identifying, expos- and investigating, sible for Feldman, thought you saying, “I challenged fraud, waste, inefficiency, criminal and ing instructed Paone then were on our side”. carry out activity PHA. In order to within report the ref- from his Feldman to remove function, regularly prepared Feldman promotion. mid-investigation to erence investigations. Under reports of his detailed complied. charter, specifiеs the internal-audit quarter- Later, circulated a after Feldman Depart- Audit responsibilities of the Internal criticized certain ly report to the board ment, required present to Feldman was decisions, Paone and Saidel managerial executive other findings and observations and in- commissioners, reprimanded separately i.e. and the board of director he was in the future director; him that Paone, structed and Sai- as executive only. Feldman findings to Paone report his del, commission- of the board of as chairman direction, later, yield refused to to this because it Four months Feldman instituted this charter, contrary to PHA, Paone, was the internal-audit against action in district court reports he continued to circulate his and other PHA board the entire board. members who were dismissed from the ac- completion plain- tion as defendants at the matter that Feldman worked on The last alleged tiff’s case-in-chief. Feldman that de- circulated to the board was a was him “whistleblowing”, fendants had fired purpose audit. The human-resources in violation of the first and fourteenth management if PHA audit was to determine amendments, § 42 U.S.C. and 43 P.S. using employees in an was efficient and (the 1423(a) (b) § Pennsylvania “Whis- routinely economical manner. Feldman had Law). tle-blower” progress advised the board and Paone of the report of the audit. The final audit The case was tried before the Honorable impro- have revealed favoritism other Yohn, jury, H. William Jr. and a which re- prieties personnel decisions made turned a verdict in favor of Feldman and general, Paone and Saidel. the audit was PHA, Saidel, against defendants and Paone. very critical of the manner in which PHA $616,696 awarded Feldman in com- being run. $500,000 pensatory damages, of which time, however, Around the same pay. Paone for front It also awarded Feldman portraying manage- Saidel were their punitive damages against Paone and Saidel public ment of PHA to the in a different capacities, their individual in the amount light. prepared “Letter from the each. appeal. Defendants now jurisdiction Chairman” was featured PHA’s 1991 § haveWe under 28 U.S.C. report. annual The letter stated that al- Defendant PHA raises ap- three issues on though agency previously had been “fi- peal: nancially floundering”, when he became 1) whether the district court erred in not chairman and Paone became executive di- granting judgment as a matter of law dis- rector, “[t]hings change had to fast —and missing the first amendment and “whistle- they say did”. on to He went the boаrd 2) claims; blower” whether the district court “began reorganize to commissioners by allowing erred an award of front management Authority and restore the to a PHA; reinstating plaintiff instead of at Moreover, viable condition”. in the “Letter 3) jury’s whether the award for Director”, from the Executive also featured was excessive. in report, the annual Paone said that PHA’s greatest hearts, challenge “to win the argue Both Paone and Saidel that the evi- respect minds and of our residents and to dence justify punitive was insufficient develop approach a team with them in resolv- damages. challenges Saidel also the award ing major pub- other issues”. Had it been punitive damages him, claiming a lished, human Feldman’s resources audit re- lack of evidence personal- to establish that he port severely would have undercut the annu- ly participated in firing. Feldman’s report’s al glowing portrayal manage- affirm. We ment’s success. day report The same the human-resources DISCUSSION board, Paone, was to be circulated after conferring with fired Feldman. Review of a denial of a directed that, He told immediately, effective plenary, verdict is and we invoke the same needed, longer his services were no because standard that applies. the district court agency Thus, reorganize had decided to viewing fight evidence most Internal Department. Feldman, Audit Feldman was nonmoving party, favorable to promptly then escorted out of his office we determine whether there is evidence rea police officers, two being given sonably without tending support his claim. See opportunity Dubinon, (3d publish 845, to retrieve his work or Bielevicz v. 849 Cir.1990). report. the audit appellate While the of an role

829 case, public concern and the interest requires an matters of court, amendment in a first record, State, employer, promoting as an of the of the entire examination enhanced U.S., efficiency public per- of the services it Corp. v. Union Bose Consumers see 1958, 499, 1949, through employees. Inc., 485, 104 S.Ct. forms 466 U.S. (1984), jury verdict will “[a] 502 80 L.Ed.2d 568, at 88 at 1734-35. It is for 391 U.S. S.Ct. criti- the record is overturned unless not be court, jury, perform the Pick- not the quantum of evidence cally of that deficient Czurlanis, ering balancing 721 test. See rationally have could from which (“As Supreme at Court made F.2d 105 Snyder v. its verdict”. reached Swineford Connick, it is the role of the court in clear Cir.1994). (3d 1258, County, 1265 retaliatory alleging a ease action vio- Amendment to decide not lates the First First Amendment Claim A. speech whether at issue related to recovered, part, on a the concern, to conduct public matter of but also firing for his ory that his was in retaliation necessary Pickering balancing.”). speech protected under having engaged Thus, in order to determine whether Determining whether amendment. the first protected, speech was we must the first of Feldman violated PHA’s dismissal speech first determine if the related to mat analysis. three-step requires a amendment concern, merely public or constituted ters of 1270; v. Swineford, 15 F.3d at Czurlanis See personal grievances, Myers, see Connick Cir.1983). Albanese, 98, 103 721 138, 147, 1684, 1690, 75 461 U.S. S.Ct. that his required to show Feldman was first (1983); Pickering, 391 at L.Ed.2d 708 U.S. activity. protected See speech constituted looking at the S.Ct. at Educ., Pickering 391 U.S. v. Board of content, record, entire must consider we 1731, 1734, 20 L.Ed.2d 811 88 S.Ct. form, speech for which and context (1968). protected, Feldman then had to If he was fired. See Con Feldman contends speech was a substantial or establish that the nick, 147-48, 103 S.Ct. at 1690. 461 U.S. discharge. Mt. motivating for his factor y Educ. v. City Dist. Bd. Sch. Health employee’s speech An addresses 568, 576, 274, 287, Doyle, 429 U.S. it can “be public matter of concern when (1977). If Feldman satisfied the L.Ed.2d 471 fairly relating matter of considered avoid steps, then defendants could first two of the com political, social or other сoncerns they liability by showing that would have munity”. 1690]. [103 Id. at S.Ct. anyway. Id. fired any way in speech was not related Feldman’s contrary, it grievances; on the personal Activity Constitutionally 1. Protected important clearly pertained to matters of lawfully discharge A cannot state very of his purpose The public concern. infringe upon employee for reasons that an ‍‌‌‌‌​‌​​‌​​​‌‌‌​‌​​‌‌​‌‌​‌​​‌​​​‌​​‌​‌‌‌‌​​‌​‌​​‍high out and auditing reports was to ferret constitutionally protected in employee’s he found at light any improprieties that speech. Rankin v. in freedom of terest fraud, and ille Disclosing corruption, PHA. 383, McPherson, 378, 483 U.S. agency a matter of gality government in a is (1987). public A 97 L.Ed.2d 315 Swineford, 15 significant public concern. See however, speech, of does employee’s freedom F.3d at 1274. weigh The court must have its limits. against speech in free employee’s interest in Feldman’s Next we must balance efficiency promoting in government’s interest speech, together engaging in in the terests Versarge v. Town among employees. listening, in public’s interest with the Jersey, ship Clinton New efficiency promoting in interest defendants’ of (3d Cir.1993). Supreme Court As the Feldman, The interests of at PHA. Id. Pickering: in explained in, exposing governmental public, well as the magnitude that wrongdoing of the nature arrive at a problem The case is to very strong. exposed, is reports of the Feldman’s [em- between the interests balance recently recognized: citizen, commenting upon We have ployee], as a Speech involving government impropriety sponsibilities the control assets and of * * occupies highest rung of First Amend- operations *. Moreover, protection. public’s ment added). (emphasis in unearthing govern- substantial interest Depart- As director of the Internal Audit improprieties requires mental courts to ment, responsible Feldman was for uncover- legitimate whistleblowing. foster ing reporting any wrongdoing that he Swineford, F.3d at correctly, discovered at PHA. If done Feld- Defendants, however, opposition stress very job disruptive. man’s was to be His disruptive impact speech responsibility investigate and ferret out which, they argue, deprive was sufficient to it improprieties extended not to Feldman’s protection. argument constitutional This co-workers, Paone, but also to the executive misplaced. previously is explained: We have director, yes, even the chairman balancing The First Amendment test [of of the board. The specifically pro- charter Pickering] hardly by can be controlled vided that Department the Internal Audit finding disruption did occur. An em- must adequacy “determine the and effective- ployee accurately exposes who rampant management policies, ness of controls and corruption in her office no doubt dis- procedures in discharging management’s re- rupt and demoralize much of the office. sponsibilities for the control of assets and But it would be absurd to hold that the added). operations”, (emphasis generally First Amendment authorizes waste, Exposing fraud, corruption corrupt punish officials to subordinates agency likely within an disruption, will cause who blow simply the whistle because the particularly person when a done whose speech disrupted somewhat the office responsibility it is to unveil such conduct. * * point *. simply The that the bal- type however, disruption, This jus- cannot ancing test in Pickering truly articulated tify retaliatory discharge. balancing test, disruption office being only breached confidences weights At the firing, time Feldman was on the scales. publish about to report audit that would have wrongdoing part revealed on the Czurlanis, 721 (quoting F.2d at 107 Porter v. Feldman, however, Paone and Saidel. (5th Califano, 773-74 Cir. day report fired the published. was to be 1979)) Moreover, (emphasis original). rev reasonably could have concluded elations of misconduct at PHA coincidence, especially was no unique position. stand in a Feldman was not light fired, being of the fact that after Feld- typical employee exposing fraud within man was escorted from his office two environment; one’s work he was the head of officers, police prevented from either department job very whose it was to uncov circulating report retrieving any or even improprieties. er Feldman’s conduct was not of his work. only permitted, required by but the Internal charter, Department’s Audit provided: Very likely, publication report policy It is Philadelphia the Housing PHA, disruption have caused partic- some at (PHA) Authority to adequa- determine the ularly between superiors, Feldman and his cy and management effectiveness of poli- Paone and Saidel. Defendants would have cies, procedures controls and respect believe, however, us disruption that the PHA, to all activities within and to insure great enough justify, would have been to compliance full policies, with such controls Pickering balancing, firing under their procedures. and disagree. Feldman. We Feldman did what implement objective, order to do; this it required is the charter him to failure to do policy thе PHA provide support to and so responsi- would have been a breach of his Department an Internal Audit Moreover, subject deter- bilities. the matter of his adequacy mine the and reports improprieties governmental busi- effectiveness of — management policies, proce- controls and occupies high public level of concern. ness— discharging dures in management’s Simply reports might re- because his cause dis- engaging was fired ing that Feldman the and eyes of Paone in the ruption jury’s activity, deter- on, protected we affirm could reporting he was very people discharge. that violated Feldman’s defendants for his justification mination a sufficient rights. was con- speech constitutional that Feldman’s conclude We stitutionally protected. argue also that the dis Defendants speech was that Feldman’s conclusion Our error fail court committed reversible trict on three constitutionally protected rests conduct, record, particularized ing to on the (1) a matter of speech that was propositions: Pickering. fact-finding balancing under and (2) concern; of Feldman the interests public the district court They further contend that governmental exposing public and the jury all of inappropriаtely submitted magnitude that of the nature wrongdoing reports before statements Feldman’s strong; very exposes is report Feldman’s which, any, determining if were for itself first (3) dis- speech caused Feldman’s while Defendants, however, failed have protected. task precisely the performing ruption, he was They appeal. issues for preserve these perform. With employed he was that except to the instruction court’s did not there is propositions, of these respect to each they take concerning Pickering, did nor Because there dispute of material fact. no exception to the district court’s pre-verdict facts as found between the no difference findings specific factual on to make failure may have viewed defendants facts as the record. time, present does not case them at* properly had Even if by the Su defendants recently addressed issues — record, Churchill, affirm. would still we preserved U.S. in Waters v. preme Court (1994). perform court did not 1878, 128 Although the district -, L.Ed.2d 686 precisely Pickering balancing test Discharge 2. Unconstitutional suggest appropri that some cases fashion ate, district court’s apparent it is from the his dis contended denying defendants’ and order memorandum retaliatory charge сaused defendants’ was notwithstanding judgment motion replete with evidence The record is motives. verdict, Feld- all of it had considered properly conclude which the could from constitutionally protected speech to be man’s directly precipitat firing Feldman’s was Pickering. Consequently, we see no under speech. Ini protected engaging ed his having first in the court’s error prejudicial that the rea told tially, defendants jury, the same issue submitted they being were fired was he was son at the same conclusion. arrived This, the department. reorganizing the audit found, pretext. Ex jury could have was Pay Reinstatement Front Versus B. audit de changes, minor cept for a few at the substantially the same partment district argues that Feldman was trial as it was when time of an award of by permitting erred fired. ordering Feldman reinstated instead remedy of reinstate equitable PHA. The their initial later abandoned Defendants discharges that violate is available firing, an intense ment and launched for the reason Versarge, 984 F.2d §.1983, see ability perform 42 U.S.C. Feldman’s attack preferred is the alia, reinstatement that Feldman job. They alleged, inter earnings. future overall, loss of remedy to cover the insubordinate, self-serving, and Corp., 829 F.2d Blum v. Witco Chem. attack on incompetent employee. Their (3d Cir.1987). However, rein 373-74 incompetence as the rea- alleged remedy, be the jury is not exclusive raised a issue. statement for his dismissal son feasible, such as when always substantially it is not cause Incidentally, argument is the animosity “irreparable between that exists present contention there by PHA’s undercut 374; Versarge, also at see parties”. Id. PHA in- the. should be reinstated Feldman not is reinstatement F.2d at 1368. When there receiving Because pay. of front stead alternate reme- pay the jury’s appropriate, find- support the ample evidence to International, contention, dy. Contrary v. Sinclair to PHA’s nei Maxfield denied, Cir.1985), cert. by ther Feldman nor the court was bound request 88 L.Ed.2d 773 Feldman’s alternative U.S. for reinstate (1986). by particular in the circum ment made the wherefore Guided clause of his case, complaint. by the district court has Relief is stances of a broad determined the mer case, by determining pleadings. in its of the not discretion whether reinstate Rule 54(e) of the Federal appropriate, and its Rules of Civil Procedure ment is determination is provides “every judgment final an abuse-of-diseretion stan shall reviewed under grant party the relief to which the in whose dard. See id. entitled,

favor it is rendered is if even party hаs not demanded such relief initially Although request 54(c). party’s pleadings.” Fed.R.Civ.P. complaint, sought, in his ed reinstatement he trial, prior to have reinstatement excluded short, In we see no reason at this late date potential remedy. as a The district court determination, to overturn the district court’s ruling until after deferred its both sides had fully supported by made, the record when presented jury. Then, their evidence to the pay that front appropriate was relief evidence, having heard all the the district circumstances of this case. court held that reinstatement was not feasi ble, “irreparable because distrust and ani Pay C. Amount Front of mosity developed between Feldman and prior PHA a result of the events PHA asserts that pay even if some front termination, itself, the termination and the appropriate, was jury’s award of litigation that followed its wake”. The excessive, considering age, Feldman’s concluded that district court also the “lawsuit experience, and future employ- likelihood of irrevocably impaired ability [Feldman’s] to ment. argument While PHA’s is cast an auditor at PHA”. function as Conse excessiveness, it, times, of terms seems to quently, court the district submitted to the faulting the district failing court for jury pay the issue of the amount of front jury mitigation instruct damages, on Feldman should be awarded. i.e., on what the should do if it believed capable securing would be other argues also because Paone and employment point prior at some to retire- PHA, longer animosity Saidel are no age. ment The district court did instruct the longer present. appeal, is no Even on this point, charge this however. Its joined PHA has Paone and Saidel in their materially requested different from that continuing, albeit unsuccessful attack on by objected by defense and was not it. professional competence per- The court’s instruction was: integrity. sonal ample The record contains “Now, award of front or future dam- hostility evidence was caused ages is plaintiff used to make the whole for litigation. surrounding this The facts Feld- expected future calculating losses. In such firing, together litiga- man’s with defendants’ award, you expected must consider the strategy, tion examples are but two damages future caused defendants’ irreparable animosity that resulted. We con- wrongful conduct judg- from the date of clude that the district did not abuse its ment to the date of retirement allowing discretion in rather than plaintiff, any wages less and benefits he reinstatement. might during receive period that same During litigation, PHA offered Feld- words, time. damages other future agency. man another at the Howev- this case consists of what Mr. Feldman er, having determined that the district court wages have earned in and benefits permitting did not abuse its discretion in PHA, working at less whatever he earns remedy pay, alternate of front we need not employment from other he undertakes rejection address the effect of Feldman’s judgment from the date is entered to the expected offer. date of his retirement. to be motivated evil is shown unjust- conduct proves that Mr. If PHA intent, it involves reck- or when job of motive or a new or fails take ifiably failed federally indifference to the less or callous available kind, pay which is and status like rights others. protected reasonable to make he fails to him you must also job, find a new efforts Wade, v. 461 U.S. S.Ct. Smith earned could he have amount subtract (1983). Similarly, 1625, 1640, L.Ed.2d 632 today.” job after in that new has stated Pennsylvania Court Supreme instructions, the Based on these may be awarded for “punitive damages that $500,- pay of to Feldman front jury awarded outrageous, because of the conduct that is disturbed not be jury’s verdict 000. The indif or his reckless evil motive defendant’s critically of the devoid the record unless rights of others.” Feld to the ference uрon which of evidence amount minimal Merriam, 383, 485 A.2d 506 Pa. its verdict. See have reached jury could omitted). (internal (1984) quotations 1265; v. Wol Dutton Swineford, Paone’s conduct It is true that (3rd Abramson, 649, 653 poff and The record con culpable than Saidel’s. more Cir.1993). record, that the we think this On however, evidence, from tains jury award. supports the evidence reasonably concluded that Saidel have could expert testi- actuarial-economic Feldman’s in, acquiesced and but only knew about future in- lost extensively plaintiffs on fied firing of Feldman Paone’s also directed sophisticated calcula- come, making several constitutionally protected in his engaging depend- figures, various produced tions that closely and Paone worked speech. Saidel applied. The he criteria ing upon which matters, and on PHA Feldman’s together $30,000 however, award, was over $500,000 implicated Saidel and Paone reports both calculated figure than the lowest less Paone mismanagement of PHA testi called no ex- expert. Defendants Feldman’s Feldman, spoke firing he that before fied own, they no evi- and offered pert their matter and that Saidel about with Saidel testimony Feld- to controvert dence to terminate with the decision “cоncurred” expert. man’s that he testified Feldman. Paone further therefore, award, was sufficient jury’s The reorganization of and Saidel discussed evidence, we do not ly supported Department, one Audit the Internal excessive that so think initially offered for their pretextual reasons court. See Sar of this the conscience shock However, the Inter discharge of Feldman. 1194, 1205 Agriss, 883 F.2d varese v. only a few minor with Department, nal Audit Cir.1989). response to In the same. changes, remained admitted interrogatories, defendants written Damages D. Punitive reorganize the only step taken damages punitive awarded The the In the director department was that Saidel, in their individual against Paone reports longer “no Department Audit ternal $10,000 each. amount of capacities, in the reports to but of Commissioners to the Board here their conduct contend that Both themof Director”. Executive permit that would to the level sink does not reasonably inferred have jury could addition, argues In damages. punitive engaged have would not that Paone found hable not have been that he should first con- firing without of Feldman unlawful did not have damages he because punitive approval, obtaining Saidel’s sulting with firing. Feldman’s with involvement sufficient in the retaliato- participated thus that Saidel disagree both contentions. We Feldman; they him fired firing ry damages are authorized Punitive mismanagement own to conceal their order claims. law federal and state PHA; sank conduct imposition of justify § 1983 action: conduct that levels of federal damages both under punitive puni- to assess jury may permitted [A] * * * conclude both Pennsylvania law. We the defendant’s damages when tive pay puni- Paone and Saidel must the modest $500,- to find evidence support that would a damages against tive assessed pay them. 000 front award to retirement for a 38- year-old professional rejected auditor who We have considered remaining defendants’ salary $66,616 annual in working favor of arguments and find similarly them to be $12,500 annually and who has an opportu- without merit. nity to job reestablish himself in the market long prior to his retirement. CONCLUSION Finally, just there is no evidence to be judgment of the district court is af- found in outrageous, the record of wanton or firmed. part reckless conduct on the of Saidel. This is the punitive, standard which damages GARTH, Judge, concurring part Circuit are measured. While there is evidence in dissenting part: the record that supports compensatory dam- agree I majority’s While with the conclu- ages specifically Saidel’s сoncurrence in the — sion that Feldman’s actions as Director of Feldman, discharge decision to meager this Philadelphia Internal Audit at the Housing fact alone does not warrant punitive a dam- Authority were to First entitled Amendment age against award Saidel. The majority’s protection Pickering, under I find that the suggests decision supervisor’s a concur- majority’s identify any failure to evidence any rence discharge unlawful must result (1) supporting the failure to reinstate Feld- in both compensatory punitive damages, (2) man, pay front excessive award of Pennsylvania doctrine yet has $500,000, (3) punitive damage award adopt. imposed upon requires reversal. short, my In quarrel majority with the Thus, I would reverse remand to the that it has taken unwarranted liberties with district court with instructions that it order glossed record and has over the lack of Feldman, reinstatement of that it vacate the evidence in reaching its Having conclusions. pay $500,000 award of and that it va- predicate set forth the separate this opin- punitive cate damage award Sai- ion, I now recite in some detail the reasons del. why disagree I strongly so majority with the on the three issues I have identified: rein- I statement, pay excessive front punitive my damages. So that disagreement mаjority with the understood, clearly major- I fault the

ity’s opinion point because it does not II evidence the record it nor does discuss the original In his complaint, and in his law, relevant support case which can an affir- complaint, amended Feldman asked to be mance of the three issues I have identified. reinstated to his former at the hous- view, my it is not sufficient to state ing authority. trial, A few months before conclusory manner that “ample there is evi- PHA offered to reinstate Feldman to a dif- support dence” to finding (Maj. court’s position, ferent but salary. at the same 832) Op. p. calling without attention to at Thereafter, filed asking a motion least some evidence. Nor is it sufficient to the district court to rule that PHA had failed complex decide issues such pay as front to offer him “substantially equivalent” posi- restitution with little reference to the criteria tion and that reinstatement was not a viable established in case and without relating law remedy as a result continuing animosity the facts of Indeed, record to those criteria. between him and can long one search and hard in the record for the “fully support[s]” evidence which Immediately closing arguments, before district court’s determination that granted district court Feldman’s motion. Ul- appropriate retirement was relief in timately, awarded Feldman 832.) (Maj. Op. p. case. But that search in front in lieu of reinstatement: In a reveals nothing. One can post-trial motion, PHA, look even harder argu- in addition to is the that reinstatement It is well settled improper pay award front ing that the remedy future lost earn to avoid preferred the district excessive, argued that also and 796; also Maxfield, F.2d at see 766 ings. ruling that reinstatement erred had court Co., 989, Sears, 21 F.3d Roebuck & v. James reject- court district inappropriate. (10th Cir.1994); v. Western- Rodgers 997 arguments. PHA’s ed (7th 668, Co., 12 678 Ins. F.3d Southern Life court reiterated district particular, In Cir.1993); Management Roush v. KFC Nat’l a feasible was not that reinstatement view its (6th Cir.1993), Co., 392, cert. 398 ‍‌‌‌‌​‌​​‌​​​‌‌‌​‌​​‌‌​‌‌​‌​​‌​​​‌​​‌​‌‌‌‌​​‌​‌​​‍10 F.3d distrust “[ijrreparable remedy — because 56, -, 130 denied, 115 S.Ct. U.S. Feldman developed between animosity [had] (1994); v. Terra 15 Brunnemann L.Ed.2d prior of the events a result PHA as (5th Cir.1992); 175, Inc., F.2d 180 975 Int'l itself, and termination, the termination Co., L.P., 940 Acquisition L v. S & Wilson in its wake.” that followed litigation (11th Cir.1991); 1429, Duke v. 1438 F.2d Cir.1991), The district at 3. (4th Order 1413, Dist. Ct. Inc., 9/16/93 1424 F.2d Uniroyal, 928 (1) fired been had that: noted 963, court denied, 112 S.Ct. 502 U.S. rt. ce (2) ability to insubordination; (1991); for v. 429, 449 Cassino 116 L.Ed.2d had been at PHA auditor 1338, as an Chems., Inc., function F.2d 1346 817 Reichhold (3) lawsuit; and by his impaired 1047, irrevocably denied, (9th Cir.1987), 484 U.S. cert. longer worked (1988). no although Only Paone 785, L.Ed.2d 870 98 108 S.Ct. whom or PHA, people, with “many judge’s deci supports evidencе when the if were to feasible, he may work whom is not reinstatement sion his termi- prior to return, at PHA worked reinstatement. pay in lieu of front he award at 5. Order feasible Dist. Ct. deemed 9/16/93 not be nation.” Reinstatement (1) par relationship between where court abused the district my opinion, In animosity damaged so ties has been Feld- to reinstate it when refused discretion impracticable, Robinson make reinstatement man. Auth., 982 F.2d Transp. Pa. v. Southeastern (3d Corp., Cir.1993);

892, Chem. Witco 899 373-74; F.2d at Maxfield, 766 829 F.2d Ill position is (2) 796; comparable no where or rein suits, can be the claimant there to which available employment discrimination 374; F.2d at Corp., 829 Chem. available stated. Witco remedies alternative two are Corp., 742 F.2d Whittlesey v. Carbide earn Union future lost a claimant compensate Cir.1984). (2d 724, deter 728 pay. The front reinstatement ings: is remedy appropriate is of which mination A. court district discretion to the left not simply does record I believe Corp., 829 Chem. Blum v. Witco judge. finding that sub- district court’s Cir.1987); support the Sinclair 367, 4n. 374 Maxfield developed between animosity had (3d Cir.1985), stantial 'l, Int ani- to the opposed PHA —as 88 Feldman denied, 474 U.S. cert. Feldman, evolved mosity had between (1986). judge Only after the L.Ed.2d on hand, and Saidel feasible, and Paone the one is not that reinstatement determines majority identified Nor has other. does appropriate, that Saidel Speculation evidence. According such pay award. a front calculate future, re-elected might, court’s order district ly, we review a when and, ca- in that comptroller city reinstatement, position of are reinstate, we deny toor appoint persons to Rather, permitted pacity, be reviewing a determination. not Commissioners, in turn the Board ruling. In re judge’s reviewing a we are sup- remote to PHA, simply is too governs exercise discre viewing the district court’s of rein- pay in lieu award of port an prof tion, the reasons we consider evidence. no substitute and is statement for its determina by the district fered the district my opinion, Accordingly, find reasons tion, those also whether but could not fact that Feldman finding of court’s in the record. support enjoy productive working relationship plaints longer [Jackson] are no em- reinstated, PHA were he to be clearly ployed” by City’s park department). erroneous. Although might very abe different Unlike almost all eases which reinstate- case were Paone and employed by Saidel still denied, ment is there here is no evi- record PHA, quite clearly, See, they are not. e.g., dence of lingering hostility between Feldman (8th Trickey, Grantham v. any and working individual still at PHA.1 Cir.1994) (concluding unacceptable level While some employees trial, testified at and, of hostility thus, existed reinstatement testimony their did not reveal any animus feasible, not inasmuch as claimant would towards Feldman. Bingman v. Nothin report have to supervisor with whom he Co., (10th 553, Cir.1991) & 937 F.2d 558 had conflicts”); “the most bitter Price v. (affirming district finding court’s that work Assocs., Inc., Marshall Erdman & 966 F.2d place would unduly not be hostile where “all 320, (7th Cir.1992) 325 (disapproving “rein- persons plaintiffs involved in termination high-level statement of a employee perform- testified, and animosity none showed toward ing discretionary into functions the division lawsuit”). him because of [his] from which he was fired and which remains under management person of importantly, Most Paone who and Saidel no him”). longer fired work for That Philadelphia distinction Housing dictates a vast- See, Authority. ly e.g., Rodgers, different result by 12 from F.3d at 678 that reached (affirming district court’s award of court reinstate- district and now major- affirmed ment supervisor, where ity whose com- of racial this court. ments had impetus been the Rodgers’ for addition, between the time Feldman action, Title VII longer no worked for West- filed his first complaint and the time he filed ern-Southern); TRW, Inc., Marshall v. 900 his amended complaint, HUD took over PHA 1517, (10th Cir.1990) F.2d 1523 (reversing and apрointed special master to assume award of front pay where employees two who control housing of the authority’s daily oper- made the discharge decision to Marshall PHA, ations. under management, new longer

were no has employed by TRW); Morgan given every indication it Gazette, v. that would like 945, Arkansas 897 F.2d 953 (8th Cir.1990) see Feldman return. Although litigation (affirming reinstatement order of where Feldman’s claim animosity generated have ani- eradicated inas- mosity, much employees responsible animosity, pointed out, as I the dis- have longer generated crimination no against worked for The or Arkan- Paone and Sai- Gazette); del, sas City Jackson v. and not Albuquer- Moreover, or PHA. of que, (10th 225, Cir.1989) 890 (re- F.2d despite 232 the majority’s upon reliance this fac- versing tor, district court’s denial of reinstate- litigation-based the existence of hostility, ment where “most of those making more, eom- without generally is not sufficient to See, Robinson, e.g., 982 F.2d at plaintiffs 899 Cir. if districts posi- were returned their 1993) (affirming district court's of denial rein tions); Tennes v. Dep’t Commonwealth Mass. of statement lingering supported where evidence finding of Revenue, (7th Cir.1991) 944 F.2d 381 of plaintiff hostilities between su (affirming denial of reinstatement where there pervisors); Clinton, Versarge Township 984 of was no parties reason to believe that enjoy (3d Cir.1993) (holding reinstate productive working and amicable relationship); inappropriate ment mosity "because great ani Spulak Corp., v. K Mart plaintiff between and the other volunteer (10th Cir.1990) (affirming of award firefighters”); Standley v. Chilhowee Sch. R-IV lieu of supported reinstatement where record Dist., (8th Cir.1993) (upholding Spulak’s assertion that K investigation Mart's district plaintiffs’ request court’s denial Spulak's alleged illegal activities “left his em- reinstatement teaching positions to former ployees impression with the guilty that he was grounds (1) school district and school build wrongdoing, rendering ing small; (2) him unable very were to function record was filled with amicably productively testimony sphere regarding supervi- in his former tense and atmo hostile sory capacity',” plaintiffs, school and where between the level of animosity individual defendants, teachers; (3) Spulak and other between friction and K Mart increased as a precipitated dog lawsuit would the school litigation). result of the 832). still exists position former (Maj. p. claimant’s Op. at reinstatement.2 defeat eliminated, whether it been has for whether uncomfortable might be it or not Whether available, re- whether comparable position PHA, our to work to return how. In the proceed, and should instatement dis such tolerates implicitly jurisprudence case, only did PHA make present our concomitant as an unavoidable comfort that, reinstatement, but it conceded offer reinstatement preference well-established offer, had the district regardless of PHA’s pay. over reinstatement, PHA. would ordered court a dis- rule is that general Coneededly, the obligated to reestablish have been its discretion may exercise trict to it. reinstate him position, Its of reinstatement. pay in lieu award front found that district court Although the . rea- however, well determination, must be by PHA Feldman before offered evidence. by record supported soned substantially equivalent to was not trial of evidence a scintilla Here, not even there fired, he was held before one relationship with working that Feldman’s explicit any find- not make court did district relationship from his PHA, distinguished as substantially some other ings as to whether Saidel, would and Paone absent the now with at PHA to which existed equivalent position Unfortunately, animosity. by any tainted be See, e.g., be reinstated.3 Feldman could indicated, has I have earlier majority, as Petroleum, Co., 861 Phillips v. Anderson sup- to evidence attention our not called Cir.1988) (10th (reversing 631, 638 F.2d or its court conclusion. district porting ordering reinstate- pay front of award no such there as is surprising This is not have reinstated company could where ment in the record. disclosed evidence Nel- position); comparable ato Anderson cf. de- Thus, district court’s as the inasmuch Inc., Bancshares, 26 F.3d son v. Boatmen’s not feasi- was that reinstatement termination Cir.1994) court (8th district (upholding 796 and, unsupported its grounded on was ble found court pay where district award front finding that there was therefore, erroneous longer position no existed.and Nelson’s that hostility Feldman between unabated to position comparable there no that determination PHA, court’s district reinstated). did the Nor be he could discretion. of an abuse re- with make a determination district could been have position spect to whether B. be reinstat- could to created which ed. overlooked, I have as not be It should argument that Feld- at oral PHA asserted whether question of emphasized, exact to the reinstated been viable, man could have fact, reinstatement, question is a I he was fired. Thus, position he held before same jury. it is judge and not for the assertion somewhat belated grant that this whether must judge who determine left); v. Deluxe he Dickerson when Grantham, (holding hostility same terms as 21 at 296 F.3d 2. See 276, (8th Printers, Inc., 281 Cir. pay 703 F.2d "must nеcessary support of front Check award litiga parties arising hostility 1983) from the (holding, between beyond "friction go the normal Century deny v. E.E.O.C. litigation"); States sufficient to process United is not alone itself tion (7th 1446, Broadcasting Corp., F.2d 1462 957 Alum. & v. Kaiser employment”). Berndt Cf. hostility Cir.1992) where (rejecting 253, (3d claim Inc., Sales, Cir. 261 789 F.2d Chem. “hostility common hostility present was that 1986) award of (upholding district court’s Co., 952 Star Gas litigation”); v. Lone Walther "relationship where reinstatement pay in lieu of Cir.1992) (vacating 119, (5th award of 127 F.2d dam has been so plaintiff and Kaiser between only that the stated district court where working litigation a continued aged necessarily vex “protracted and litigation was remaining until relationship months for the four specific finding support with ing" did not feasible"). plaintiff retire- is will discord); v. Manhattan Goldstein instances 1985) 1435, (11th Indus., Inc., Cir. 1448 758 F.2d lieu of be awarded also Front plaintiff ar had (affirming who reinstatement position comparable no where reinstatement feelings between litigation ill gued caused can be reinstat which the claimant available be immediate persons would who himself 374; Whittle Corp., F.2d 829 ed. Witco Chem. that he supervisor testified superiors, but where Cir.1984). sey, at 728 plaintiff under happy to back have would be accepted must be with a skepti- measure of lose their employees] status [as and are enti- cism inasmuch as it position differs from the tled to reinstatement back if pay, even advanced PHA before the district court. replacements for them have been made.” argued There PHA that IAD had been com- NLRB, Corp. Mastro Plastics 350 U.S. pletely reorganized pre-trial and that its of- 349, 355, 76 S.Ct. 100 L.Ed. 309 “Chief, fer to Feldman of (1956). Procurement Audit is, That an employer must dismiss Unit” was the best it could do. In this replacement if necessary workers to make connection, Feldman had claimed before the returning room practice unfair labor district court that position, his former “Di- Lines, strikers. NLRB v. International Van Audit,” rector of Internal had been renamed 50-51, 409 U.S. 74, 76-77, “Manager of that, Internal Audit” and at the (1972); see, L.Ed.2d 201 e.g., Aguayo for trial, time of was filled Co., NLRB v. Tomco Carburetor subordinate, former (9th Edward Cir.1988) Merenda. (rejecting Tomco’s argument that reinstatement inap- would be I am satisfied that still reinstatement propriate because eleven innocent workers feasible, would be and an remedy, available discharged have holding though even person might third now occu rights “the employees who were dis- py position. Feldman’s former For example, criminatorily discharged superior are in Reeves v. County Ed., Claiborne Bd. rights of those employer whom hired to (5th 1096, 1101-02 Cir.1987), the district places”). take their Inasmuch court refused to reinstate Reeves to her for fired, essentially, was as the result of an position mer replacement because a had been practice, unfair labor I why no see reason his during hired the course litigation. of the right to request- reinstatement —the relief he The Fifth Circuit reversed: originally ed preferred our remedy— If the replacement existence of a constitut- should be rights ‍‌‌‌‌​‌​​‌​​​‌‌‌​‌​​‌‌​‌‌​‌​​‌​​​‌​​‌​‌‌‌‌​​‌​‌​​‍subordinated to the complete ed a defense reinstate- employee whichever was replace hired to ment, then reinstatement could effec- be him. tively in every blocked merely case by hiring an party innocent third after the light In unequivocal representation retaliatory purpose was achieved.... by that, made PHA to reinstated, if us Feld-

While may reinstatement displace an inno- man would have position his former reacti- employee, cent the “[e]nforcement of vated, con- I would to the remand district court to stitutional rights [may disturbing have] accept PHA’s offer and to order that Feld- consequences. is not Relief restricted to man be reinstated as Director of Internal that which would pleasing be and free of Audit equivalent or its with appropriate bаck irritation.” pay. (citations Id. at omitted); 1102 also see Brunnemann, 975 (affirming F.2d 180 re- IV instatement order though even Brunne- Even if front pay appropriate were in the mann’s former position already by was held present ease, $500,000 actually awarded employee another where there was no evi- jury was clearly excessive. dence animosity hostility between See Alumina, Williams Martin Marietta parties). Contra United States E.E.O.C. v. Inc., (3d Cir.1987). 817 F.2d 1038 Century Broadcasting Corp., (7th Cir.1992) 1463 (holding reinstatement A. not feasible where claimant’s had been filled party). third argues that Feldman should not have I see no reason why granted reinstatement here been pay front age until the of re- could not be ordered itas is with respect but, rather, tirement point until a in time at workers who discharged are of, as the result which he expected “would be regain or who go out on protest, strike to em- position an at the level of the one he lost when ployer’s practice. unfair labor “Under employment those Appel- terminated.” circumstances, striking employees do not lant’s Br. at 43.

839 expectancy is rela plaintiffs aWhen work jury calcu- which the over period The time and, short, overly speculative it tively goes to the heart pay award its front lated therefore, pay “to ex- to award front appropriate award was of whether question Inc., selecting a Uniroyal, “[i]n Duke v. 928 have held that retirement.” We cessive. (“If (4th Cir.1991) pay front reme- equitable plaintiff for an date cut-off discretion.” exercises retirement, dy pay [district] front be the is close n onlypractical approach.”). Co., 747 F.2d Sys. Thus, v. Exxon Goss in ADEA Office Cir.1984). Accordingly, determin- cases, pay is awarded from the front often awarded pay amount front ing whether the discharge date of to the retirement date of excessive, proper for us it is that, many in assumption based on front court’s the district whether to consider stances, long will not ADEA claimants work jury to jury caused the to the pay instruction mar enough to reestablish themselves was ex- front award with a return See, Corp., e.g., Chem. ketplace, Witco required that the That instruction cessive.4 (awarding pay-to-re “front F.2d at 374-76 “from the pay award front its calculate plaintiffs were all within where tirement” of retirement judgment to the date date of age when eight years of normal retirement plaintiff.” by the and, therefore, overly it was not terminated abused the district court I plaintiffs conclude speculative assume (“retire- date selecting a cut-off discretion working their carеers have finished ment”), in the con- unreasonable which was Witco). working for result, jury grant- As a of this case. text however, front say, that all This not to pay award. front an excessive to Feldman ed plain- should calculated pay awards fact, not even all tiffs date retirement. B. pay- to “front claimant’s entitled ADEA are pay is to make purpose of Anastasio, to-retirement.” him by compensating employee whole injured (“The under the purpose resulting from his earnings lost for future person that a who has is to ensure ADEÁ course, future, of The termination. wrongful against on the basis been discriminated to unknown, reluctant have been and we whole, every guarantee to not age is made award would an pay front where such award damages by mitigate cannot who claimant Goss, F.2d at 889. 747 overly speculative. be annuity age to finding comparable work into the farther dictates that sense Common n Inc., Eng’g, 70.”); 742 Davis v. Combustion reaches, the pay a front award the future Cir.1984) (6th (noting that an 916, 923 F.2d Consequently, it speculative becomes. more 41-year until nor- pay old of front to award expectancy are work and life “[a] claimant’s might be unwarranted age mal retirement calculating pay.” front factors in pertinent to 63- an award make such failurе to while F.2d Schering Corp., 838 Anastasio discretion).5 might abuse Cir.1988). year old be an 709 requested by instruction, PHA. the instruction ferent from jury which was requested 4. PHA's text, instruction, to the court, left as noted PHA limit the granted by did not the district not pay. Rather, date for front jury appropriate cutoff the it would have date to "retirement.” end things, among “[i]f jury, that the other instructed pay begins re- relevant pay], surprising front that caselaw you [front award is not decide to It only have has pay-to-retirement” would today. James Feldman It ends when veals that “front (because plaintiff to working of retirement is close stopped the awarded where been otherwise) See, absence of age. e.g., in the Boehm v. American or termination retirement Inc., (9th Co., 488 Broadcasting F.2d 929 dismissal.” Cir.1991) years pay-to-re- (awarding "front six con- majority’s to the Despite contention that Boehm court found where district 832), tirement” court did (Maj.Op. p. district trary position equivalent obtain a not be able to would jury the termi- to it to the determine not leave Corp., 829 F.2d Rather, job); Chem. Witco to his former district pay. date for front nation pay-to-retirement” (awarding “front pay at 373-74 from to front instructed the award court eight years of retire- plaintiffs within were where date retirement. judgment to the date of Davis, jury’s ment); (аpproving at 923 Thus, 742 F.2d given id. at 832. instruction award, $88,000 pay based on district fundamentally front dif- district 840 plaintiff damages

In eases in which the those ed does not entitle him to a age, expectation front-pay calculating close to retirement award. In lifetime working tempers front-pay he will continue the need the size award the court pay-to-retirement,” for “front the award of plaintiff’s ability must estimate the to mit- might igate constitute a “windfall” for the damages in the future. plaintiff. Standley v. Chilhowee R-IV School (affirming Id. at 1258 district court’s award (8th Cir.1993). District, added). years pay) of two (emphasis front It cases, only speculate long such one can “how plaintiff may follows receive front actually plaintiff would have remained pay period for that reasonably of time neces- working job, plaintiff at the whether the soon sary mitigate for him to his losses. See different, perhaps left for a have bet- Cassino, (reversing 817 F.2d at 1347 front job, plaintiff ter-paying, or whether the soon pay jury, award where “without instruction legitimate dismissed for would have been mitigation, found that Cassino was enti- Consequently, general reasons.” Id. pay tled to front from the time of trial until pay may only is that front rule such cases retired”); the time he would have Fitzgerald period be “for a reasonablе awarded future Stockade, Inc., v. Sirloin required victim to for the reestablish her (10th Cir.1980) (awarding pay for five Goss, job rightful place in the market.” 747 years to reflect amount of necessary time 889; F.2d at see also Cassino v. Reichhold plaintiff salary to reach the current (9th Chems., Inc., Cir.1987) 817 F.2d at 1347 fired). position from which he was (stating pay that front is intended to be stated, Simply longer plaintiff is ex- nature). temporary in pected work, likely the more it becomes plaintiffs duty mitigate Just as it is a that he will opportunity have sufficient trial, damages prior his see Ford Motor mitigate damages. his Given this likelihood EEOC, 219, 232, Co. v. 458 U.S. mitigation, longer period upon 3057, 3066, (1982), 73 L.Ed.2d 721 it is ex- based, which a pay award is the more pected mitigate that he will continue to likely overly the award specula- will be Maxfield, damages into the future. tive. (recognizing plaintiff’s duty C. mitigate as a serves control on front awards); damage Whittlesey, 742 present case, F.2d at 728 In the Feldman was fired (noting that award of front “does not from an auditing position at which he was contemplate plaintiff idly by that a will earning per year. sit trial, Prior to HUD, compensated doing nothing”). PHA, which had taken over offered to reinstate Feldman auditing position, to an explained concept The Second Circuit salary. his old Feldman refused the offer. mitigation” “future Dominic v. Consoli Six discharge, months after his Feldman had Co., (2d dated Edison 822 F.2d 1249 Cir. accepted a non-salaried position “sales-like” 1987), a case which the Appeals Court of with the Individual Financial Services Divi- upheld a district court’s decision to reduce sion of Corporation the CIGNA —a pay ADEA claimant’s front award: auditing paid unrelated to —which proved Had Edison Con that Dominic $12,500 year. a mitigate damages failed to example, —for I agree that PHA’s actions caused Feld- by refusing substantially equivalent significant man harm. Feldman testified job back-pay award would —Dominic's firing that his had an emotional on effect his have been cut off or reduced at the time of family jury $50,000 life. The awarded him to mitigate any his failure to front-pay compensate him for his mental and emotional award would have been foreclosed. See distress. EEOC, 219, Ford Motor v.Co. 458 U.S. 3057, 3066, [102 233-34 S.Ct. 73 L.Ed.2d pay, however, Front is not intended as (1982). However, 721] Con Edison’s damages Rather, for mental distress. front fail- ure to show that Dominic mitigat- had not pay designed to reimburse a claimant for finding years court’s facing that Davis was mandatory 59 old and years). retirement in six

841 circumstances, “grossly so excessive as was earnings. I not believe do lost his future Williams, ‍‌‌‌‌​‌​​‌​​​‌‌‌​‌​​‌‌​‌‌​‌​​‌​​​‌​​‌​‌‌‌‌​​‌​‌​​‍judicial conscience.” to shock circumstances, it was reason- that, under the I would direct that the 817 F.2d at 1038. job similar to refuse for Feldman able pay front award be vacated. identical) the one from which (though not paid argues jury’s him job that would have verdict he was fired —a compensatory him only against on both earning $66,616 he was year a —when liability must for lack of punitive be reversed to the one for $12,500 unrelated in a field agree While I with the sufficient evidence. Rather, I am con- trained. which he was majority that the record could be read reasonably, that, acted had Feldman vinced jury’s finding respect support a future loss not have suffered he would compensatory liability, I do not be- Saidel’s jury’s is reflected magnitude that was sufficient evidence to lieve that there $500,000 pay front award. outrageous satisfy the standard which must be stricter jury punitive in order for a to award Furthermore, the met I would conclude damages. excessive, $500,000 even pay award was front fact, Feldman, in persuaded that

if I were damages may awarded Punitive rein- turning down HUD’s justified in § conduct that is outra- 1983 actions “for trial, At time of Feld- evil motive geous, offer. because of the defendant’s statement rights By all ac- or his reckless indifference thirty-eight years old. man was Wade, 30, 46-47, others.” Smith v. U.S. counts, highly professional. trained he is а 1635-36, 75 L.Ed.2d 632 than work force for fewer has been in the He (Second) (1983), quoting Restatement part the work twenty years. He will be 908(2). Agriss, § v. Torts See also Savarese least, for, force, another expect, can one Cir.1989). Pennsyl- years. light of these uncon- twenty-seven adopted the same standard vania has facts, justification can be no there troverted Chuy damages. See v. awarding punitive for, legitimate evidence just there is no as Club, Philadelphia Eagles Football award, pay supporting, (3d Cir.1979) (in banc); Rizzo age of 65. to Feldman’s retirement calculated (1989). Haines, 58, 69 Pa. 555 A.2d circumstances, per- to have Under these suggests nothing in the record which I find jury a front award “concurring” to consider single mitted action of that Saidel’s of discretion Feldman’s em- was an abuse to terminate to retirement Paone’s decision “outrageous” as to merit ployment we have was so part of the district court. While punitive liability. Nor has the imposition of I that it was explicitly, believe never said so any such majority our attention directed responsibility to deter- court’s the district just no that nature. There evidence of to, mine, and then to instruct action in the record Saidel’s evidence jury should have period over which the finite of, disregard or callous exhibited a reckless worst, At award. calculated its to, rights. Nor is or indifference instructed the court should have district conduct there evidence Saidel’s future pay “for a reasonable award front v. Ford outrageous. Tunis Brothers Co. required for to reestablish period [Feldman] (3d Co., Cir. 739-40 Motor Goss, job market.” rightful place in the [his] 1991). the correct 747 F.2d at 889. Whichever suggests that record Sai- Concededly, the its clearly court abused approach, the district IAD re- of Feldman’s was made aware del to calcu- when it directed discretion is record evidence ports. There also pay award to retire- late Feldman’s firing before conferred with Saidel Paone ment. Feldman, just is record evidence as there highly specula- in Paone’s decision jury’s concurred I conclude that Saidel $500,000—given the fire Feldman.6 tive front award — say you that he wanted ever deposition Mr. Paone as follows: testified at his 6. Saidel giving information to fired for you Q: When had the conversation inspector general? firing HUD regarding did Mr. Feldman's Mr. Paone however, Discharging employee, imposition can be punitive damages against of Saidel neutral, Here, non-discriminatory inappropriate a action. should be vacated. there is no' direct evidence that Sаidel had VI knowledge discriminatory of Paone’s motive sum, I would reverse and remand to the firing in Feldman. Nor is there direct district court with instructions that it order evidence that Saidel concurred in Paone’s the reinstatement of Feldman at the same personal decision because of his own discrim- salary to equivalent the same or an inatory motive. position to previously the one he held City Philadelphia, In Keenan v. 983 PHA. I would vacate the front award of (3d Cir.1992), $500,000 F.2d 459 puni- we vacated the inappropriate upon as damages against tive Philadelphia’s awarded reinstatement alternatively as excessive under the though upheld Police Commissioner circumstances of this even we ease. Final- ly, I would puni- vacate the compensatory damages imposed award of damages against tive Saidel. though him. We held that even Police Com- fully missioner Tucker “had been aware of respectfully I dissent from so much of the per- actions his subordinate command majority’s opinion as holds otherwise. case,” in particular sonnel this fact alone ORDER AMENDING OPINION justify imposition could not punitive damages against him. Id. at 471. January IT IS ORDERED that:

This case is much the same as Keenan and Page 831 of opinion in the above highlights “despite utility the rule that 22, 1994, matter entered on December deterrent, punitive damage remedy by adding amended following para- new must be reserved ... for cases which the graph to the end of Section A-l: [Editor’s defendant’s something conduct amounts to incorporated Note: Amendment purposes more than a bare justifying compen violation publication.] satory damages injunctive relief.” Cochet eight-day period 2. The Desmond, provided ti v. IOP Cir. 8.2 and 9.5.4 voting petitions 1978). Savarese, See also 883 F.2d at 1205 rehearing currently before the court on be- (3d Cir.1989) (noting “punitive damages half of Philadelphia Housing Authority, general represent remedy, limited to be 93-1978, as to Nos. 93-2139; 93-2115 and circumstances”). special reserved for J.A. 93-2129; as to Nos. 93-1977 and Here, where there is minimal evi- and John Paone as to Nos. 93-1977 and 93- supporting liability dence Saidel’s for com- begin 2115 will on the date this order is pensatory damages, and no evidence which entered, and further disposing orders would tend to show that Saidel’s actions were petitions those will be entered at the end of any way “outrageous,” I believe that period. A: If I’m not mistaken you Q: he mentioned to me actually Did terminate him that things problem that one of the he felt was a week? was that ... Mr. Feldman did not follow the later, A: No. I terminated him two weeks chain of command. May 3d. trial, App. VI at 1306. At Saidel testified as Q: And what delay? was the reason for the follows: A: Well there’s a number of reasons. We you Q: discussing Do recall Mr. Feldman's Richmond, spent day when I came back I firing with Mr. Paone before he was fired? talked to both Rich Brown who is the Director A: I didn’t discuss it with Mr. Paone. Mr. of Human again. Resources and Mr. contemplating Paone told me that he was dis- Mr. Saidel [objection had a concern that omit- missing Mr. Feldman. ted] ... Mr. Saidel's concern was that there

App. VIII at 2238. Paone testified as follows: perception would be a because of Mr. Feld- A: ... I discussed the situation with Mr. terminating man’s in an Internal Au- meeting Saidel based on the that I had with ditor that we Mr. Feldman should touch base with and I told Mr. relevant Saidel that I Feldman, wanted to terminate Mr. Federal asked his officials first. concurrence, App. he concurred. VII at 1625-27. SLOVHER, Judge, Chief Before: MANSMANN, STAPLETON,

BECKER, SCIRICA, HUTCHINSON,

GREENBERG, ROTH, NYGAARD, ALITO,

COWEN, GARTH, McKEE, SAROKIN,

LEWIS,

PRATT, Judges. Circuit FOR REHEARING PETITION

SUR 15, 1995

Feb. rehearing by appel- petitions ‍‌‌‌‌​‌​​‌​​​‌‌‌​‌​​‌‌​‌‌​‌​​‌​​​‌​​‌​‌‌‌‌​​‌​‌​​‍for filed Paone, Philadelphia Hous-

lants hav- Authority in the above-entitled cases

ing judges partici-

ing who been submitted and to all

pated in the decision of Court judges circuit of the cir- other available service, judge and no regular active

cuit having decision asked concurred in the

who majority of the circuit rehearing, regular active service

judges of the circuit rehearing by the court having voted for banc, rehearing are de- petitions

nied. grant panel rehearing

Judge Garth would panel dissent. reasons stated

for the BANK, successor in UNITED

HUDSON Bank, National former-

interest to HUB

ly National known as Meadowlands

Bank, Appellant BANK MANHATTAN OF CON-

CHASE N.A.;

NECTICUT, Asset Consolidated

Recovery Deposit Corporation; Federal Corporation, corporate

Insurance Deposit

capacity; Federal Insurance Citytrust.

Corporation, as Receiver for

No. 93-5729. Appeals,

United States Court

Third Circuit.

Argued July 1994. Dec.

Decided

Case Details

Case Name: Feldman v. Philadelphia Housing Authority

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 22, 1994

Citation: 43 F.3d 823

Docket Number: 93-1977, 93-1978, 93-2115, 93-2129 and 93-2139

Court Abbreviation: 3rd Cir.