[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Nos. 95-3233 & 95-3367
D. C. Docket No. 94-324-CIV-ORL-19
RAFAEL DOMINGUEZ,
Plaintiff-Appellee,
versus
TOM JAMES COMPANY,
Defendant-Appellant.
Appeals from the United States District Court for the Middle District of Florida
(May 15, 1997)
Before TJOFLAT, DUBINA and CARNES, Circuit Judges. CARNES, Circuit Judge:
Raphael Dominguez brought this suit under the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et. seq., (the “ADEA”), alleging that the Tom James Company (“the Company”)
fired him because of his age. After a trial, the jury returned a
verdict in favor of Dominguez. The district court denied the
Company’s motion for a judgment as a matter of law and,
alternatively, for a new trial. The Company appeals that denial.
We affirm the judgment of the district court. In the course of
doing so, we apply our holding in Brown v. A.J. Gerrard
Manufacturing Co., 715 F.2d 1549 (11th Cir. 1983) (en banc) (Title
VII awards are not subject to reduction by amount plaintiff
received in unemployment compensation), to ADEA cases, and extend
that holding to encompass Social Security benefits as well. I. FACTS AND PROCEDURAL POSTURE
The Company is a men’s clothing retailer that provides
tailoring services. Raphael Dominguez worked for the Company as a
tailor in its Orlando office until he was terminated from that
position. At the time of his termination, Dominguez was sixty-five
years old and had worked as a tailor his entire adult life.
Dominguez began working for the Company in the early 1980's, when
he was around fifty-five years old. For the first six and one-half
years of his employment with the Company, all went well;
Dominguez’s tailoring work was entirely satisfactory.
In 1991, David Hester took over the management of the
Company’s Orlando office. According to the Company, Hester learned
2 when he took over that the quality of Dominguez’s work was becoming
increasingly less satisfactory. However, Dominguez contends that
he maintained a very high quality of work, and that whenever
mistakes occurred, he corrected them free of charge and without
complaint.
Hester discussed Dominguez’s status with Sarah Morgan, the
Operational Manager at the Orlando office. According to Morgan,
Hester asked her to tell Dominguez that he was too old to be
working and that he should retire. Morgan refused to do so based
on her belief that such action was “discrimination” and was
“against the law.” Nevertheless, Hester fired Dominguez.
One or two weeks after Dominguez was fired, Hester and Morgan
received a phone call from the Company’s in-house counsel, Tom
Harvey. Harvey called to investigate whether Dominguez might have
legal recourse against the Company because of his termination.
During the course of the conversation, Morgan repeated to Harvey
the substance of her prior conversation with Hester. Harvey told
them he agreed with Morgan’s assessment that firing Dominguez
because of his age would be illegal discrimination.
After his termination, Dominguez attempted to find other
tailoring work. However, the Company was the only employer in the
area looking for a tailor. For about a month, Dominguez worked
busing tables in a small cafeteria owned by his sister, but he
found that work to be unsatisfactory. Unable to find anything in
the tailoring field or other suitable work, Dominguez retired and began receiving Social Security retirement benefits. Dominguez
3 continues to perform out of his home as much tailoring work as he
can get, but it generates only a small income which is not enough
to affect his Social Security benefits.
After exhausting his administrative remedies, Dominguez filed
an ADEA claim against the Company. After a trial, the case was
submitted to a jury which rendered a verdict in favor of Dominguez
and awarded him back pay in the amount of $65,000.00. Because the
jury found that the Company’s action was a wilful violation of the
ADEA, the court awarded Dominguez liquidated damages in the same
amount. Finding that reinstatement was not a realistic alternative
for Dominguez, the court instead awarded him $11,900.00 of “front
pay.” Including prejudgment interest, Dominguez’s total award was
$151,264.00, plus costs. The district court rejected the Company’s
request that it reduce the award by the amount of Social Security
benefits Dominguez had received following his termination.
After the verdict, the Company renewed its motion for a
judgment as a matter of law and, alternatively, for a new trial.
The district court denied those motions, and this appeal ensued. II. DISCUSSION
We review a motion for judgment as a matter of law de novo. Daniel v. City of Tampa, 38 F.3d 546, 549 (11th Cir. 1994), cert.
denied, ___ U.S. ___, 115 S. Ct. 2557 (1995). We review for abuse
of discretion a district court’s ruling on a motion for a new
trial. F.D.I.C. v. Stahl, 89 F.3d 1510, 1514 (11th Cir. 1996).
The Company appeals the judgment of the district court on a
number of grounds, including the district court’s actions: (1)
4 admitting, over the Company’s assertion of attorney-client
privilege, testimony concerning the conversation between Harvey,
Hester, and Morgan; (2) awarding liquidated damages; (3) awarding
front pay instead of reinstatement; (4) failing to reduce
Dominguez’s award because of his failure to mitigate damages; and
(5) considering a late-filed motion for attorneys’ fees and costs.
As for the admission of the conversation between Harvey, Hester,
and Morgan, any error was harmless. Most of that testimony was
either cumulative of other evidence proving essentially undisputed
facts, or it had to do with indisputable propositions of law. The
little of the conversation that was not of that nature actually
favored the Company. None of the Company’s other issues that we
have listed above merit any further discussion.
The Company does raise one additional issue that deserves some
discussion. The Company contends that the district court erred in
failing to deduct from Dominguez’s award the amount of Social
Security benefits he has received since his termination. The
district court held that Social Security benefits should not be
subtracted from an ADEA award. That holding presents us with an
issue of first impression which we review de novo, as we do with all questions of law. Jackson v. Chater, 99 F.3d 1086, 1092 (11th
Cir. 1996).
In Brown v. A.J. Gerrard Manufacturing Co., 715 F.2d 1549,
1550 (11th Cir. 1983) (en banc), we held that unemployment
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Nos. 95-3233 & 95-3367
D. C. Docket No. 94-324-CIV-ORL-19
RAFAEL DOMINGUEZ,
Plaintiff-Appellee,
versus
TOM JAMES COMPANY,
Defendant-Appellant.
Appeals from the United States District Court for the Middle District of Florida
(May 15, 1997)
Before TJOFLAT, DUBINA and CARNES, Circuit Judges. CARNES, Circuit Judge:
Raphael Dominguez brought this suit under the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et. seq., (the “ADEA”), alleging that the Tom James Company (“the Company”)
fired him because of his age. After a trial, the jury returned a
verdict in favor of Dominguez. The district court denied the
Company’s motion for a judgment as a matter of law and,
alternatively, for a new trial. The Company appeals that denial.
We affirm the judgment of the district court. In the course of
doing so, we apply our holding in Brown v. A.J. Gerrard
Manufacturing Co., 715 F.2d 1549 (11th Cir. 1983) (en banc) (Title
VII awards are not subject to reduction by amount plaintiff
received in unemployment compensation), to ADEA cases, and extend
that holding to encompass Social Security benefits as well. I. FACTS AND PROCEDURAL POSTURE
The Company is a men’s clothing retailer that provides
tailoring services. Raphael Dominguez worked for the Company as a
tailor in its Orlando office until he was terminated from that
position. At the time of his termination, Dominguez was sixty-five
years old and had worked as a tailor his entire adult life.
Dominguez began working for the Company in the early 1980's, when
he was around fifty-five years old. For the first six and one-half
years of his employment with the Company, all went well;
Dominguez’s tailoring work was entirely satisfactory.
In 1991, David Hester took over the management of the
Company’s Orlando office. According to the Company, Hester learned
2 when he took over that the quality of Dominguez’s work was becoming
increasingly less satisfactory. However, Dominguez contends that
he maintained a very high quality of work, and that whenever
mistakes occurred, he corrected them free of charge and without
complaint.
Hester discussed Dominguez’s status with Sarah Morgan, the
Operational Manager at the Orlando office. According to Morgan,
Hester asked her to tell Dominguez that he was too old to be
working and that he should retire. Morgan refused to do so based
on her belief that such action was “discrimination” and was
“against the law.” Nevertheless, Hester fired Dominguez.
One or two weeks after Dominguez was fired, Hester and Morgan
received a phone call from the Company’s in-house counsel, Tom
Harvey. Harvey called to investigate whether Dominguez might have
legal recourse against the Company because of his termination.
During the course of the conversation, Morgan repeated to Harvey
the substance of her prior conversation with Hester. Harvey told
them he agreed with Morgan’s assessment that firing Dominguez
because of his age would be illegal discrimination.
After his termination, Dominguez attempted to find other
tailoring work. However, the Company was the only employer in the
area looking for a tailor. For about a month, Dominguez worked
busing tables in a small cafeteria owned by his sister, but he
found that work to be unsatisfactory. Unable to find anything in
the tailoring field or other suitable work, Dominguez retired and began receiving Social Security retirement benefits. Dominguez
3 continues to perform out of his home as much tailoring work as he
can get, but it generates only a small income which is not enough
to affect his Social Security benefits.
After exhausting his administrative remedies, Dominguez filed
an ADEA claim against the Company. After a trial, the case was
submitted to a jury which rendered a verdict in favor of Dominguez
and awarded him back pay in the amount of $65,000.00. Because the
jury found that the Company’s action was a wilful violation of the
ADEA, the court awarded Dominguez liquidated damages in the same
amount. Finding that reinstatement was not a realistic alternative
for Dominguez, the court instead awarded him $11,900.00 of “front
pay.” Including prejudgment interest, Dominguez’s total award was
$151,264.00, plus costs. The district court rejected the Company’s
request that it reduce the award by the amount of Social Security
benefits Dominguez had received following his termination.
After the verdict, the Company renewed its motion for a
judgment as a matter of law and, alternatively, for a new trial.
The district court denied those motions, and this appeal ensued. II. DISCUSSION
We review a motion for judgment as a matter of law de novo. Daniel v. City of Tampa, 38 F.3d 546, 549 (11th Cir. 1994), cert.
denied, ___ U.S. ___, 115 S. Ct. 2557 (1995). We review for abuse
of discretion a district court’s ruling on a motion for a new
trial. F.D.I.C. v. Stahl, 89 F.3d 1510, 1514 (11th Cir. 1996).
The Company appeals the judgment of the district court on a
number of grounds, including the district court’s actions: (1)
4 admitting, over the Company’s assertion of attorney-client
privilege, testimony concerning the conversation between Harvey,
Hester, and Morgan; (2) awarding liquidated damages; (3) awarding
front pay instead of reinstatement; (4) failing to reduce
Dominguez’s award because of his failure to mitigate damages; and
(5) considering a late-filed motion for attorneys’ fees and costs.
As for the admission of the conversation between Harvey, Hester,
and Morgan, any error was harmless. Most of that testimony was
either cumulative of other evidence proving essentially undisputed
facts, or it had to do with indisputable propositions of law. The
little of the conversation that was not of that nature actually
favored the Company. None of the Company’s other issues that we
have listed above merit any further discussion.
The Company does raise one additional issue that deserves some
discussion. The Company contends that the district court erred in
failing to deduct from Dominguez’s award the amount of Social
Security benefits he has received since his termination. The
district court held that Social Security benefits should not be
subtracted from an ADEA award. That holding presents us with an
issue of first impression which we review de novo, as we do with all questions of law. Jackson v. Chater, 99 F.3d 1086, 1092 (11th
Cir. 1996).
In Brown v. A.J. Gerrard Manufacturing Co., 715 F.2d 1549,
1550 (11th Cir. 1983) (en banc), we held that unemployment
compensation benefits should not be deducted from Title VII back
pay awards. Given the analogous nature and purpose of Title VII
5 and the ADEA, our holding in Brown applies to ADEA cases as well as
Title VII cases. See McKennon v. Nashville Banner Pub. Co., ___
U.S. ___, 115 S. Ct. 879, 884 (1995)(“ADEA and Title VII share
common substantive features and also a common purpose:
elimination of discrimination in the workplace.’”); McKelvy v.
Metal Container Corp., 674 F. Supp. 827, 831 (M.D. Fla. 1987)
(declining to deduct unemployment compensation benefits from a back
pay award in an ADEA case in view of our rationale in Brown).
Because there are no significant, relevant differences between
Social Security benefits and unemployment benefits insofar as back
pay awards are concerned, see Maxfield v. Sinclair Int’l, 766 F.2d
788, 795 (3d Cir. 1985), cert. denied, 474 U.S. 1057, 106 S. Ct.
796 (1985), we extend our Brown decision and hold that Social
Security benefits are not to be deducted from ADEA awards.1
We are aware that several other circuits appear to have left
to the discretion of the district courts whether to deduct Social
Security benefits from back pay awards in ADEA cases. See Guthrie
v. J.C. Penney Co., Inc., 803 F.2d 202, 209 (5th Cir. 1986) (“[T]he
trial court did not abuse its discretion for refusing to deduct
social security”); EEOC v. Wyoming Retirement Sys., 771 F.2d 1425, 1432 (10th Cir. 1986) (“We cannot say that the trial court abused
his discretion in deducting Social Security payments from the back
1 We do not foreclose the possibility that receipt of Social Security benefits may be evidence that a plaintiff failed to use his best efforts to mitigate damages. Maxfield, 766 F.2d at 793. However, in this case, the evidence supports a finding that Dominguez made every reasonable effort to find suitable employment after he was wrongfully terminated by the Company.
6 pay awards in this case.”). However, we agree with the position of
the Third Circuit in Maxfield, and “reject[] the argument that the
decision whether to offset should be left to the discretion of the
district court, favoring instead to fashion uniform rules to
further statutory objectives.” Id. at 793-95 (citations and
internal quotations omitted).
In order to further the statutory objectives of the ADEA and
to avoid a disparity of results, we decline to leave to the
discretion of the district courts the decision whether to deduct
Social Security from back pay awards in ADEA cases. As we
explained in Brown, “A consistent approach to this legal question
seems preferable to a virtually unreviewable discretion which may
produce arbitrary and inconsistent results.” Brown, 715 F.2d at
1551. Consequently, the district court was correct when it
concluded that Social Security benefits should not be deducted
from Dominguez’s damage award. It would have been incorrect to
rule otherwise. III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.2
2 We GRANT Dominguez’s motion for attorney’s fees as to entitlement and REMAND to the district court for a determination as to the appropriate amount.