Whittlesey v. Union Carbide Corp.

• Decision Date: 22 August 1984
• Docket Number: D,1094,Nos. 1146,s. 1146
• Citation: 742 F.2d 724
• Parties: 35 Fair Empl.Prac.Cas. 1089, 35 Empl. Prac. Dec. P 34,620, 5 Employee Benefits Ca 2002 John W. WHITTLESEY, Plaintiff-Appellee-Cross-Appellant, v. UNION CARBIDE CORP., Defendant-Appellant-Cross-Appellee. ockets 84-7066, 84-7118.
• Court: U.S. Court of Appeals — Second Circuit

Page 724

742 F.2d 724

35 Fair Empl.Prac.Cas. 1089,

35 Empl. Prac. Dec. P 34,620,

5 Employee Benefits Ca 2002

John W. WHITTLESEY, Plaintiff-Appellee-Cross-Appellant, v. UNION CARBIDE CORP., Defendant-Appellant-Cross-Appellee.

Nos. 1146, 1094, Dockets 84-7066, 84-7118.

United States Court of Appeals Second Circuit.

Argued May 14, 1984.

Decided Aug. 22, 1984.

Judith P. Vladeck, New York City (Joseph J. Garcia, Anne C. Vladeck, Vladeck, Waldman, Elias & Englehard, P.C., New York City, of counsel), for plaintiff-appellee-cross-appellant.

Eugene T. D'Ablemont, New York City (William A. Krohley, Kelley, Drye & Warren, New York City, of counsel), for defendant-appellant-cross-appellee.

Justine S. Lisser, Atty. E.E.O.C., Washington, D.C. (David L. Slate, General Counsel, Philip B. Sklover, Associate General Counsel, Vincent Blackwood, Asst. General Counsel, Washington, D.C., of counsel), for E.E.O.C. as amicus curiae.

Before CARDAMONE, and PRATT, Circuit Judges, and DUDLEY B. BONSAL of the United States District Court for the Southern District of New York, sitting by designation.

GEORGE C. PRATT, Circuit Judge.

Defendant Union Carbide Corporation appeals from a judgment of the United States District Court for the Southern District of New York, Pierre Leval, Judge, determining that Union Carbide's compulsory retirement of plaintiff, John Whittlesey, violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621 et seq. (1982), and that Whittlesey's position as chief labor counsel of Union Carbide was not a "bona fide executive or high policymaking position" shielded from full protection of the act. 29 U.S.C. Sec. 631(c)(1). Judge Leval awarded Whittlesey damages of $242,649.08, consisting of back pay plus prospective wages or "front pay" adjusted to reflect, among other things, Whittlesey's pension benefits and his potential earnings in mitigation of damages. Finding that Union Carbide did not "willfully" violate the ADEA, Judge Leval denied plaintiff's request for the liquidated damages that would have doubled his back pay award. 29 U.S.C. Sec. 626(b).

Union Carbide's major claims on the appeal are that, as its chief labor counsel, Whittlesey was exempt from ADEA coverage by 29 U.S.C. Sec. 631(c)(1), and that "front pay" is not permitted under the ADEA. On the cross-appeal Whittlesey challenges the court's finding that Union Carbide did not act "willfully".

We have carefully reviewed the arguments advanced by both sides and conclude that Judge Leval's analysis of the governing legal standards was correct and that his findings of fact were not clearly erroneous. We therefore affirm the judgment substantially for the reasons set forth in Judge Leval's opinion on liability, Whittlesey v. Union Carbide Corp., 567 F.Supp. 1320 (S.D.N.Y.1983), and in his supplemental opinions on damages. We write this opinion primarily to make clear, as a matter of precedent, our approval of "front pay" as a permissible remedy under the ADEA.

The central liability issue was whether Whittlesey was exempt from ADEA protection as a "bona fide executive or high policymaking employee" under 29 U.S.C. Sec. 631(c)(1). Judge Leval correctly rejected the argument that Whittlesey's high salary and title of chief labor counsel automatically removed him from coverage. After analyzing the statute, regulations, and case law, he determined that congress intended the test for the exemption to be "one of function, not of pay." 567 F.Supp. at 1326. From the evidence concerning Whittlesey's duties at Union Carbide, Judge Leval found that Whittlesey was not a "bona fide executive", but "was primarily an attorney doing legal work, giving legal advice, giving attention to the effect of statutes, regulations and administrative action upon company practices and attending to litigation." Id. at 1323. While Whittlesey had "some administrative or executive responsibility over the functioning of this small [labor law] section", his supervisory duties nevertheless "were quite minimal and occupied a very small portion of his time." Id.

Nor did Whittlesey lose his ADEA protection under the "high policymaking employee" prong of the exemption, for Judge Leval found that "Union Carbide did not encourage or invite its house lawyers to play a dynamic policy-creating role" and that "they were employed to do legal work". Id. at 1324. He further found that when Whittlesey did contribute to corporate policy, his "role in connection with policy formulation was minor" and did not rise to the exemption level contemplated by the statute and regulations. Id. at 1325. Since these findings by Judge Leval are amply supported by the record, we affirm his determination that Whittlesey was not exempt from ADEA protection by Sec. 631(c)(1).

Similarly, we agree with Judge Leval's conclusion that Union Carbide's violation was not "willful". There was excusable uncertainty over the coverage of the new amendment, passed in 1978, which exempted executive and high policymaking employees from the act's coverage.

Judge Leval addressed the complex damage issues in three separate opinions which weighed the evidence and arguments submitted in relation to back pay, front pay, lump sum payments, anticipated earnings, expected bonuses, stock options, pension credits, life insurance credits, social security benefits, pre-judgment interest, and the effects of inflation. The damages finally allowed came to $242,649.08. We find no error in the total amount, its various components, or the computations employed. We turn, then, to the issue of "front pay" under the ADEA, i.e., whether damages for loss of future earnings are available to a victim of age discrimination when reinstatement is not a suitable remedy for the defendant's discriminatory discharge.

Front pay as a remedy for an ADEA violation has never been directly passed on by this circuit. Three other circuits have expressly ruled on the availability of front pay under the ADEA; two allowed it and one denied it. In Cancellier v. Federated Dept. Stores, 672 F.2d 1312 (9th Cir.), cert. denied, 459 U.S. 859, 103 S.Ct. 131, 74 L.Ed.2d 113 (1982), the ninth circuit expressly approved an award of front pay under the ADEA, but did not discuss its reasons for so holding. Id. at 1319. In Gibson v. Mohawk Rubber Co., 695 F.2d 1093 (8th Cir.1982), the eighth circuit also allowed front pay, stating that the "equitable relief that the district court may grant includes, inter alia, additional pension benefits, reinstatement, and monetary damages in lieu of reinstatement", and that the court should "assume, absent evidence to the contrary, that the illegally discharged employee would have continued working for the employer until he or she reached normal retirement age." Id. at 1100-01 & n. 8.

The only circuit holding to the contrary on this issue did so in a footnote, without explaining why front pay should be foreclosed. Kolb v. Goldring, Inc., 694 F.2d 869, 874-75 & n. 4 (1st Cir.1982) (citing Monroe v. Penn-Dixie Cement Corp., 335 F.Supp. 231, 235 (N.D.Ga.1971)). But see Loeb v. Textron, Inc., 600 F.2d 1003, 1022-23 (1st Cir.1979). The third and tenth circuits have each discussed the arguments for and against an award of front pay, but have not actually decided the issue of its availability. Wehr v. Burroughs Corp., 619 F.2d 276, 283 (3rd Cir.1980); Blim v. Western Electric Co., 731 F.2d 1473, 1479 (10th Cir.1984). We agree with the eighth and ninth circuits, and hold that front pay is an available remedy in appropriate cases brought under the ADEA.

While the enforcement provisions of the ADEA were generally modeled after the remedies in the Fair Labor Standards Act (FLSA), 29 U.S.C. Secs. 211(b), 216, and 217, which were incorporated by reference into the ADEA's Sec. 626(b), see Lorillard v. Pons, 434 U.S. 575, 577-78, 98 S.Ct. 866, 868-69, 55 L.Ed.2d 40 (1978), congress did more than merely incorporate that statute's back pay and limited injunctive remedies. It expressly authorized the district courts to grant an ADEA claimant

such legal or equitable relief as may be appropriate to effectuate the purposes of [the act], including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts [owing to a person as a result of the violation of the ADEA].

29 U.S.C. Sec. 626(b).

Guided by this broad grant of remedial authority, we have previously encouraged district judges in this circuit to fashion remedies designed to ensure that victims of age discrimination are made whole. Geller v. Markham, 635 F.2d 1027, 1036 (2d Cir.1980), cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981). We now hold specifically that this language permits a district court, in appropriate circumstances, to award front pay to victims of age discrimination.

In many cases involving unlawful compulsory retirement the plaintiff can be made whole through an award of back pay coupled with an order of reinstatement. See Blim v. Western Electric Co., 731 F.2d at 1478-79; see also Albemarle Paper Co. v. Moody, 422 U.S. 405, 416-22, 95 S.Ct. 2362, 2371-2374, 45 L.Ed.2d 280 (1975). These remedies, explicitly authorized by the statute, involve the least amount of uncertainty because, in effect, they reestablish the prior employment relationship between the parties and at the same time assure the plaintiff of employment free of discrimination based on age.

Reinstatement, however, may not always be possible. For example, there may be no position available for plaintiff at the time of judgment, see, e.g., Patterson v. American Tobacco Co., 535 F.2d 257, 268-69 (4th Cir.), cert. denied, 429 U.S. 920, 97 S.Ct. 314, 50 L.Ed.2d 286 (1976), or, as was the case here, the employer-employee relationship may have been irreparably damaged by animosity associated with the litigation, see, e.g., Hoffman v....