694 F.2d 869 (1st Cir. 1982), 82-1408, Kolb v. Goldring, Inc.

Docket Nº:82-1408, 82-1466.
Citation:694 F.2d 869
Party Name:Theodore KOLB, Plaintiff, Appellee, v. GOLDRING, INC., Defendant, Appellant. Theodore KOLB, Plaintiff, Appellant, v. GOLDRING, INC., Defendant, Appellee.
Case Date:December 02, 1982
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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694 F.2d 869 (1st Cir. 1982)

Theodore KOLB, Plaintiff, Appellee,


GOLDRING, INC., Defendant, Appellant.

Theodore KOLB, Plaintiff, Appellant,


GOLDRING, INC., Defendant, Appellee.

Nos. 82-1408, 82-1466.

United States Court of Appeals, First Circuit

December 2, 1982

Argued Oct. 7, 1982.

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[Copyrighted Material Omitted]

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Michael I. Bernstein, New York City, with whom Neal I. Korval, Mark H. Leeds, Mindy Novick and Benetar Isaacs Bernstein & Schair, New York City, were on brief, for Goldring, Inc.

R. Daniel Prentiss, Providence, R.I., with whom Decof & Grimm, Providence, R.I., was on brief, for Theodore Kolb.

Before PECK, [*] Senior Circuit Judge, CAMPBELL and BREYER, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

On March 17, 1978, Theodore Kolb, then 63, was fired by his employer of two and one-half years, Goldring, Inc. Kolb brought this action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621-634, alleging that he had been terminated on account of his age. A jury awarded him $45,000 in compensatory damages; $45,000 in liquidated damages was added on a finding of willfulness on the part of Goldring. Kolb then requested but was denied an award of prejudgment interest. The district court denied Goldring's motions for a new trial, judgment notwithstanding the verdict, and remittitur. Both parties appeal. Defendant contends the damages award was grossly excessive and should have been remitted by the district court. 1 Plaintiff contends that the district court should have allowed his request for prejudgment interest.

Turning first to the issue of excessive damages, the evidence before the jury indicated that at Goldring, Kolb had enjoyed a salary of $22,000 a year, an annual allowance of $5,000 for "expenses," personal use of a company car, and a 40 percent discount on clothing purchased from his employer. Following his discharge, he briefly collected unemployment insurance and worked for an executive search firm before finding, two months after leaving Goldring, the position which he continued to hold up to the time of trial. His starting salary at the new job had been identical to that received at Goldring, $22,000 per year. However, within three years he was making $34,500 and participating in a bonus plan. It is unclear from the record how much, if any, income Kolb received under the bonus plan. The parties do agree, however, that apart from any bonuses Kolb had an income of $101,350 for the 46 1/4 months between his termination by Goldring and the date of judgment.

Generousness of a jury's award does not alone justify an appellate court in setting it aside. In tort cases, where the damages are given to compensate for losses not susceptible of arithmetical calculation, such as pain and grief, we have declined to second-guess a jury unless its verdict is "grossly excessive" or "shocking to the conscience." E.g., LaForest v. Autoridad de Las Fuentes Fluviales, 536 F.2d 443, 447 (1st Cir.1976); see Bonn v. Puerto Rican International Airlines, 518 F.2d 89, 94 (1st Cir.1975). In contract or other cases involving only economic loss, the standard of review is somewhat different, although still deferential to the jury. In cases of that type, in the words of Judge Wisdom, a verdict is excessive as a matter of law if shown to exceed "any rational appraisal or estimate of the damages that could be based upon the evidence before the jury." Glazer v. Glazer, 374 F.2d 390, 413 (5th Cir.), cert. denied, 389 U.S. 831, 88 S.Ct. 100, 19 L.Ed.2d 90 (1967).

Jury trials of age discrimination claims fall under the contract rubric. The action is for "amounts owing." 29 U.S.C. Sec. 626(c)(2). Indeed, the Third Circuit has stated, with regard to the availability of

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jury trial, that in its "essential nature" an ADEA action is identical to a common law suit for back wages for breach of contract. Rogers v. Exxon Research & Engineering Co., 550 F.2d 834, 838 (3d Cir.1977), cert. denied, 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 770 (1978). Unlike the tort plaintiff, the plaintiff suing under the ADEA may recover only "those pecuniary benefits connected to the job relation." Note, Set-Offs Against Back Pay Awards Under the Federal Age Discrimination in Employment Act, 79 Mich.L.Rev. 1113, 1117 (1981). Pain and suffering form no part of the damages. Vazquez v. Eastern Air Lines, Inc., 579 F.2d 107 (1st Cir.1978). Punitive damages are not allowed. Walker v. Pettit Construction Co., 605 F.2d 128, 130 (4th Cir.1979). See Pfeiffer v. Essex Wire Corp., 682 F.2d 684, 686-88 (7th Cir.), petition for cert. filed, 51 U.S.L.W. 3305 (Oct. 5, 1982). Damages are meant to put the plaintiff in the economic position he would have occupied but for the discrimination. Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979); Note, supra, 79 Mich.L.Rev. 1113. See generally Annot., 52 A.L.R.Fed. 837 (1981). Thus cases like this one call for a simple tabulation of "items of pecuniary or economic loss such as wages, fringe, and other job-related benefits." H.R.Rep. No. 950, 95th Cong., 2d Sess. 13, reprinted in 1978 U.S.Code Cong. & Ad.News 504, 528, 535. From these must be subtracted post-termination economic benefits. While in calculating damages the jury is free to select the highest figures for which there is adequate evidentiary support, it may go no higher. Courts cannot "permit damages speculation where the formula for calculation is articulable and definable. Flexibility beyond the range of the evidence will not be tolerated." Jamison Co. v. Westvaco Corp., 526 F.2d 922, 936 (5th Cir.1976).

The jury in this case found compensatory damages in the sum of $45,000. 2 The question is thus whether, reading the record most favorably to the jury's verdict, this amount "exceeds any rational appraisal or estimate of the damages that could be based upon the evidence before" it.

Plaintiff-appellee argues that the following yearly values and 46 1/4 month (the period from termination to judgment) totals were permissible inferences from the evidence, and that they more than support the $45,000 verdict.

  1. Salary — $22,000/year, $85,000 2. Prospective Raises — $8,000/year, $31,000 3. Expense Account — $5,000/year, $19,000 4. Use of company car — $2-3,000/year, $10,000 5. Clothing discount — $1,600/year, $6,000 _______________________ Grand Totals $39,000/year, $151,000 These figures, if accepted, justify an award of $50,000, i.e., $151,000 less $101,000, the amount Kolb earned after leaving Goldring. However, we are satisfied only that the salary (1) and the clothing discount (5) figures are sufficiently supported in the record to have been included in full by the jury. We now turn to items (2) through (4).

Prospective Raises. Recovery for raises an employee might reasonably have anticipated had he not been wrongfully discharged

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has been allowed in ADEA cases. See, e.g., Syvock v. Milwaukee Boiler Manufacturing Co., 665 F.2d 149, 160-61 (7th Cir.1981); Kelly v. American Standard, Inc., 640 F.2d 974, 985-86 (9th Cir.1981); Combes v. Griffin Television, Inc., 421 F.Supp. 841, 844 (W.D.Okla.1976). However, where awarded, either under the ADEA or in other contexts, the projection has been based on expert testimony, patterns of past increases, or similar evidence. In addition to the three cases just cited, see Grunenthal v. Long Island Rail Road, 393 U.S. 156, 160, 89 S.Ct. 331, 333, 21 L.Ed.2d 309 (1968) (FELA case; Court notes " 'convincing testimony not refuted ... demonstrating the steady wage increases in recent times for work equivalent to that rendered by the plaintiff, and the strong likelihood that similar increases would continue.' "); Satty v. Nashville Gas Co., 522 F.2d 850, 855 (6th Cir.1975), modified, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977) (Title VII).

Here Kolb did not in fact receive any raise before he was let go. No evidence was introduced showing a company policy or practice from which it could be inferred that someone in his position would have received an $8,000 raise. Nor was other statistical or expert evidence introduced showing comparable salary increases in the industry. And while the jury had evidence that Kolb had unsuccessfully sought an $8,000 raise before being fired, this proved little, if anything.

On the other hand, there was evidence that Kolb's successor was paid $28,000 3--$6,000 more than Kolb--and that Kolb's salary went up markedly in his new employment, suggesting that it would be unrealistic to believe that he would have remained at $22,000 in an inflation-ridden economy throughout the period in question. There was also evidence, which the jury could have credited, that Kolb had been largely responsible for putting the company back on its feet. Employees generally--and certainly effective employees--do often receive raises as they continue to work at the same job.

While the above factors might well have led a rational jury to believe that Kolb would have been granted raises during the period in question had he not been fired, we remain troubled by the lack of specific evidence from which the jury could have deduced the amount of such raises. The situation resembles that in contract cases involving claims for lost profits. There the evidence must establish the amount of lost profits with "reasonable certainty." 3 Restatement of Contracts 2d, Sec. 352 & comment a (1981); 5 Corbin on Contracts Sec. 1020 (1964). To be...

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