Mary Jane Kelly, in No. 89-1578 v. Matlack, Inc., in No. 89-1536

SEITZ, Circuit Judge,

concurring and dissenting.

I concur in the majority opinion except as to its determination that the district court committed error in denying Matlack’s motion for JNOV on Kelly’s claim for liquidated damages based on the willfulness of Matlack’s conduct. As the majority noted, our scope of review is quite narrow here. We look to see whether there is sufficient evidence to support the verdict, drawing all reasonable inferences in favor of the verdict winner. Blum v. Witco Chem. Corp., 829 F.2d 367, 372 (3d Cir.1987). The standards governing the willfulness requirement have been set forth in several opinions in this circuit. However, they are much easier to state than to apply to the variety of factual settings coming before the court. Given that difficulty, it seems to me that appellate restraint is particularly important where review may well encroach on the protection afforded by the seventh amendment.

Turning to Kelly’s evidence, which must be accepted as true in view of the jury verdict, I find it necessary to address only one factor, viz., that Matlack mislead Kelly into believing that she would have a job after the Lansdowne facility was closed. Kelly was assured of continued employment by Matlack’s general statements to employees regarding employment after the consolidation and by a more explicit promise that she would have a newly created position of Audit Manager. She was induced to stay for several months because of these misrepresentations and thereby was discouraged from seeking other employment immediately. As I read the majority opinion it concludes, without explicit factual analysis, that such evidence was insufficient to support liquidated damages. Rather than conduct such analysis, the majority obtained “guidance” from Lockhart v. Westinghouse Credit Corp., 879 F.2d 43 (3d Cir.1989). I find the case inapplicable to the present facts.

The Lockhart opinion makes no reference to any evidence that defendant promised Durham a new position with the intention of retaining him only temporarily. Nor did the opinion state as a fact for review purposes that defendant had this intention from the date of the promise. Consequently, discussion of permissible inferences in Lockhart is irrelevant. Indeed, it would encroach on our scope of review to go behind the facts as stated by the Lock-hart opinion by speculating as to what the jury could infer. Thus, the case is not binding precedent here.

In addition, the claim of harm resulting from the promise in Lockhart was the addi *988 tional work Durham did in planning the Atlanta Area Business Center. The court did not find this cognizable harm justified liquidated damages because Durham was compensated for his efforts and voluntarily assumed these additional responsibilities. Unlike the harm to Durham identified by the court in Lockhart , Kelly remained a Matlack employee, failing to seek other employment, because of Matlack’s conduct.

With all deference, I do not believe the majority’s conclusory evaluation of the evidence is compatible with the governing standard of review. But, of greater importance, the fact that Kelly was “strung along” goes well beyond age discrimination merely accompanied by simple pretext. It deterred her from looking for another position. It also made her aware, after her termination, that she had been exploited, assuredly creating a deeply humiliating feeling. In my view the jury was entitled to conclude that such conduct went beyond the merely pretextual to the outrageous. 1

I therefore would affirm the district court’s denial of the JNOV motion.

. Thus, I need not consider whether it is legally permissible for the fact-finder to evaluate evidence cumulatively in determining a willfulness issue.