reviewing jury award of compensatory damages under the ADEA and citing Howell v. Marmpegaso Compania Naviera, S.A., 536 F.2d 1032, 1034-35 (5th Cir.1976) and Natco, Inc. v. Williams Bros. Eng’g Co., 489 F.2d 639, 641 (5th Cir.1974)
How later courts described this case
- reviewing jury award of compensatory damages under the ADEA and citing Howell v. Marmpegaso Compania Naviera, S.A., 536 F.2d 1032, 1034-35 (5th Cir.1976) and Natco, Inc. v. Williams Bros. Eng’g Co., 489 F.2d 639, 641 (5th Cir.1974)
- stating that reinstatement is the “preferred remedy for discriminatory discharge” in ADEA cases
- “[A] remittitur order reducing a jury’s award to the outer limit of the proof is the appropriate remedy where the jury’s damage award exceeds the amount established by the evidence.”
- several employees replaced by younger workers, with an age difference of 5-10 years, showed a pattern of discrimination
Written by the judges who cited it.
The opinion
JOHNSON, Circuit Judge,
concurring in part and dissenting in part:
Although I concur in all other parts of the majority opinion, I must dissent from that section which holds it appropriate to include in compensatory damages the decrease in “outside earnings” that Goldstein suffered following his termination by Manhattan. The connection between Gold-stein’s work for Manhattan and his sale of “outside” lines is too tenuous, as an analytic matter, to justify inclusion under the relevant case law. See Blim v. Western Electric Co., 731 F.2d 1473 (10th Cir.1984); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979) (demonstrably close connection required). The simple fact that Manhattan gave Goldstein the opportunity to undertake “outside” sales does not render his income from this activity a fringe benefit of his employment with Manhattan. A benefit can be described as concomitant or fringe only to the extent that it derives directly from some feature of Goldstein’s employment with Manhattan. Such a connection might be established by the fact that Manhattan permitted Goldstein to use its name and showroom to bring in customers whom he could then interest in his “outside” lines. But the record demonstrates that these benefits had a smaller role in Goldstein’s sale of “outside” lines than Goldstein suggests. In the last years of Goldstein’s non-exclusive contract, for example, his sales in “outside” lines rose substantially while his sales in Manhattan products decreased. This suggests that the outside lines were more attractive to many customers than the Manhattan lines, and that the Manhattan products may not have been the factor that encouraged customers to buy from Goldstein. And while Goldstein used a Manhattan showroom to exhibit his other products, his ability to *1450 obtain another showroom for his fall show when he was terminated by Manhattan demonstrates that this factor was not determinative either.
Even beyond the tenuousness of the connection, it would be impossible to document the decrease in “outside earnings” with the precision which has been demanded by the courts in this area of the law. Compare Kolb v. Goldring, Inc., 694 F.2d 869 (1st Cir.1982) (decrying speculative damages and excluding benefits incapable of precise valuation), with Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir.1981) (including benefits capable of precise calculation). Because this “outside income” can only be described as a fringe benefit of employment to the extent that it was earned because of the resources or facilities that working for Manhattan made available to Goldstein, what would have to be documented is not simply the decrease in “outside earnings”, but the decrease attributable to the fact that Goldstein could no longer use Manhattan’s name, showroom or products to attract potential buyers to his “outside” lines. The impossibility of documenting this portion of lost income with any precision demonstrates that it is too speculative to be included within the category of lost benefits.