FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT

AUGUST 25, 2000 THOMAS K. KAHN CLERK [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

_______________________ Nos. 99-12360 & 99-13346

_______________________ D. C. Docket No. 96-03132-CV-SH BENIGNO MUÑOZ, Plaintiff-Appellee,

versus
OCEANSIDE RESORTS, INC. and MIAMI BEACH RESORTS, INC., Defendants-Appellants.

_________________________ Appeals from the United States District Court for the Southern District of Florida

_________________________ (August 25, 2000)

Before EDMONDSON, BARKETT and KRAVITCH, Circuit Judges.2 KRAVITCH, Circuit Judge: In these consolidated appeals, we deci de as an issue of first impression in this circuit whether an employer which dem onstrates only that it eliminated an age discrimination plaintiff’s former position satisfies its burden of proving that it legitimately would have terminated said plaintiff, thus precluding an award of front pay. We consider additionally: whether, following a jury verdict for the plaintiff, the district court improperly denied defendants’ motion for judgment as a matter of law; whether the district court adequate ly instructed the jury regarding the plaintiff’s evidentiary burden; and wh ether the damages award was excessive.

I. BACKGROUND AND PROCEDURAL HISTORY Plaintiff-Appellee Benigno Muñoz, prior to his termination at age sixty-four, worked as a room service waiter at the Holiday Inn Oceanside Resort, owned and operated by Defendants-A ppellants Oceanside Resorts, Inc. and Miami Beach Resorts, Inc. (collectively, the “Resor t”). During his twenty-seven years of employment at the Resort, Muñoz received numerous performance awards and, excepting the day of his termination, no official reprimands. On May 10, 1995, however, Manuel Gonzalez, the Resort’s Ge neral Manager, issued Muñoz a written1 The reprimand stated: Mr. Benigno Munoz was witnessed by General Manager Mr. Manuel Gonzalez on Tuesday, May 9, 1995 havi ng body contact with an employee with a kiss on the face. Let this se rve as a final written notice that any physical contact whatsoever with employees, guests, and or business associates of Oceanside Resorts Inc. will result in immediate termination. Pl.’s Ex. 41, quoted inAppellant’s Br. at 5. We note that this exhibit was not part of the appellate record, as both parties reclaimed their exhibits following trial. See Stipulation Permitting Withdrawal of Exhibits, inR.4, Tab 120. Muñoz, however, does not dispute the Resort’s reporting of the reprimand’s language. 3 reprimand 1 after observing Muñoz kissing Susan Eddy, a female co-worker, on the cheek the day before. Gonzalez instruct ed Muñoz not to discuss his reprimand with anyone. Although Muñoz does not specifically admit to the incident for which he was reprimanded, he concedes that he often greeted female co-workers with a kiss on the cheek, as is customary among individuals of Cuban decent. He qualifies, however, that such has been his practice throughout the duration of his employment; that the Resort’s management was aware, yet previously never objected to, this practice; and that no fema le employee ever has complained of this practice. The ensuing events are in dispute. The Resort claims, but Muñoz denies, that Muñoz confronted Mercedes Rea, Gonzalez’s secretary, whose signature appeared on the reprimand, and chided her for her complicity. Rea allegedly reported this confrontation to Gonzalez, who ordered Muñoz’s discharge. Jorge2 When a jury finds that a defendant willfully violated the ADEA, which this jury so found, a plaintiff may be awarded liquidated damages equa l to the amount of back pay damages. See 29 U.S.C. § 626(b) (1999) (authorizing liquidate d damages as defined in 29 U.S.C. § 216(b) (1999)). 4 Antonio, another Resort manager, informedMuñoz that the Resort was terminating him for insubordination, or more specifically, for having defied Gonzalez’s instruction not to discuss his reprimand. Antonio directed a security guard to escort Muñoz from the Resort. The Resort replaced Muñoz with Luis Salas, who at that time was over forty years of age, but twenty-three or twen ty-four years younger than Muñoz. Salas’s disciplinary record reveals that prior to his reassignment to Muñoz’s former position, Salas received at least three wr itten reprimands, yet was not terminated. After complying with the prerequisite administrative protocol, Muñoz filed against the Resort a complaint in which he alleged age discrimination in violation of the Age Discrimination in Employment Act (the “ADEA”), 29 U.S.C. §§ 621- 634, and the Florida Civil Rights Act (the “FCRA”), Fla. Stat. ch. 760. Following a three-day trial, the jury rendered a ve rdict in Muñoz’s favor and awarded him $208,838 in damages: $58,838 in backpay and $150,000 in compensatory damages for emotional distress and dignitary injury. Additionally, the district court, on a separate motion, awarde d Muñoz $58,838 in liquidated damages 2 and $22,449.80 in front pay, bringing Muñoz’s total damages award to $290,125.80.3 Two appeals are consolidated before us, Nos. 99-12360-G and 99-13346-G. The first, No. 99-12360-G, appeals the denial of the Resort’s motions for summary judgment and judgment as a matter of law. Because this appeal was filed pr ior to the entry of final judgment, these denials were not “final decisions” as defined by 28 U.S. C. § 1291 and thus were not appealable to this court. See Pitney Bowes, Inc. v. Mestre , 701 F.2d 1365, 1368 (11th Cir. 1983). We therefore lack jurisdiction over appeal No. 99-12360-G and dism iss it. The Resort also appeals the denial of its summary judgment motion in its second appeal, No. 99-13346-G; once a trial on the merits has occurred, however, the denial of such a motion is unreviewable on appeal. See Wenzel v. Boyles Galvanizing Co. , 920 F.2d 778, 782 (11th Cir. 1991); accord Jarrett v. Epperly , 896 F.2d 1013, 1016 & n.1 (6th Cir. 1990). 5 II. ANALYSIS Pursuant to Federal Rules of Civil Pro cedure 50(b) and 59, the Resort filed a renewed motion for judgment as a matter of law or, alternatively, for a new trial or remittitur, all of which the district court denied. The Resort appeals these denials. 3 Specifically, the Resort asserts: (1) it was entitled to a judgment as a matter of law because Muñoz failed to rebut sufficiently its nondiscriminatory explanation for Muñoz’s termination; (2) a new trial is warranted because the district court inadequately instructed the jury and because the jury’s damages award was excessive; and (3) the district court erre d in not remitting the excessive damages award. We consider each assertion in turn. For the sake of concision, we treat the damages issues together.

A. The Resort’s Motion for Judgment as a Matter of Law We review de novo the district court’s denial of the Resort’s Rule 50(b)4 Decisions by the former Fifth Circuit issued before October 1, 1981, are binding as precedent in the Eleventh Circuit. See Bonner v. City of Prichard , 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). 6 motion, applying the same standard as the district court. See Boeing Co. v. Shipman , 411 F.2d 365, 374 (5th Cir. 1969) (en banc). 4 In considering the evidence presented at trial, we draw all factual inferences and resolve all credibility determinations in the favor of the nonmoving party. See id. A Rule 50(b) motion should only be granted where “reasonable [jurors] could not arrive at a contrary verdict.” Id. Muñoz concedes that he has no direct evidence of the Resort’s intent to terminate him because of his age. Relying instead on circumstantial evidence, Muñoz alleged his age discrimination claim within the analytical framework outlined in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973). See Turlington v. Atlanta Gas Light Co. , 135 F.3d 1428, 1432 (11th Cir.), cert. denied , 525 U.S. 962, 119 S. Ct. 405 (1998) (applying the McDonnell Douglas framework to an ADEA claim). On ce Muñoz established a prima facie case of discrimination, an intermediate burden of production shifted to the Resort to proffer a legitimate, nondiscriminatory reason for Muñoz’s termination. See id. The Resort satisfied that burden by explaining that it terminated Muñoz for insubordination. Muñoz was then oblig ed to introduce evidence demonstrating5 Muñoz’s evidence of pretext included: • Muñoz was employed with the Resort for twenty-seven years, during which he never before received a documented reprimand; • the Resort’s management was aware of Muñoz’s practice of kissing female coworkers, but never before admonished him for it; • Muñoz was terminated following a single warning, which Muñoz alleges contravened the Resort’s policy as outlined in its employee handbook that termination would follow three warnings; • the reprimand was written in English, a language Muñoz neither reads nor speaks; • Salas, Muñoz’s replacement, had received several reprimands during the course of his employment; • a room service waiter of Muñoz’s age did not comport with the “trendy” image the Resort was attempting to cultivate.

6 See Trial Tr. at 220, inR.6.

7 See id. at 318, in R.6. 7 that the Resort’s proffered reason was pretextual, see id. , which the Resort contends Muñoz failed to do. We disagree. At trial, Muñoz presented a substantial quantum of evidence from which a reasonabl e jury could infer that the Resort’s proffered explanation for his termination was pretextual. 5 We focus on the evidence most critical to Muñoz’s satisfac tion of this burden: Muñoz’s assertion that he did not engage in insubordinate conduct. Muñoz testified that he never con fronted Rea in defiance of Gonzalez’s instruction not to discuss his reprimand. 6 Muñoz’s testimony directly contradicted that of Rea, 7 creating a factual conflict properly resolved by the jury. The jurors could have credited the testimony of either Muñoz or Rea, as such determinations are within their province, and neither the district court nor this court may substitute8 Appellant’s Br. at 10.

9 Gonzalez was unavailable to testify due to his death prior to trial. 8 its judgment for theirs. See Boeing , 411 F.2d at 375. The Resort, however, contests the relevance of whether or not the confrontation actually occurred; in its own words, “[a]ll that matters is whethe r Rea told, truthfully or not, Gonzalez of the alleged confrontation.” 8 In the Resort’s view, Gonzalez’s subjective belief that the confrontation occurred justified his decision to terminate Muñoz. The Resort, however, underestimates the effect that impugning Rea’s credibility might have had on the jury. Rea was the Resort’s only witness at trial 9 and therefore the only person to testify that she informed Gonzalez of a confrontation. If the jury rejected Rea’s testimony concerning the alleged confr ontation, it likewise could reject her further testimony regarding the reporting of that incident. A reasonable jury accordingly could accept Muñoz’s theory of events: that Gonzalez concocted a scheme that included both a bogus reprim and and a subsequent false accusation of insubordination to cover his discriminatory desire to discharge an older employee. The Resort contends that even if Muñoz produced sufficient evidence suggesting pretext, it nonetheless was entitled to judgment as a matter of law because Muñoz failed to introduce any evidence of the Resort’s intent to discriminate against him on the basis of hi s age. Essentially, the Resort argues that9 Muñoz may not survive its motion merely by discrediting the Resort’s proffered reason for the termination. In Reeves v. Sanderson Plumbing Products, Inc. , __ U.S. __, 120 S. Ct. 2097, 2109 (2000), however, the Supreme Court held to the contrary, explaining that “a plaintiff’s pr ima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the empl oyer unlawfully discriminated.” Although the Resort is correct that under the McDonnell Douglas framework, a plaintiff shoulders the ultimate burden of proving that age motivated the adverse employment action, see Texas Dep’t of Community Affairs v. Burdine , 450 U.S. 248, 256, 101 S. Ct. 1089, 1095 (1981), the plaintiff may satisfy this burden indirectly by undermining the legitimacy of the employer’s proffered reason. To require otherwise would impose on the plaintiff the encumbrance of producing direct evidence of discrimination within an evidentiary framework specifically designed for situations in which no such evidence is available.

B. The Resort’s Challenge to the Ad equacy of the Jury Instructions The Resort asserts that it is entitled to a new trial because the district court inadequately instructed the jury of Muñoz’s evidentiary burden both for establishing his prima facie case and for demonstrating that the Resort’s proffered10 The district court instructed the jury: In order for the plaintiff to preva il on his claim of age discrimination the plaintiff must prove the following four essential elements by a preponderance of the evidence: First, that plaintiff was within the protected group, that is, was 40 years of age or over; second, that plaintiff was adversely affected by an employment decision, namely, being discharged from employmen t; and third, that plaintiff was qualified for the position from which he was discharged; and finally, fourth, that plaintiff was replaced by a younger person. Trial Tr. at 497, inR.7. 10 reason for his termination was pretextual. We review a district court’s instructions to a jury as outlined in Pesaplas tic, C.A. v. Cincinnati Milacron Co. , 750 F.2d 1516, 1525 (11th Cir. 1985), looking first to “whether the charges, considered as a whole, sufficiently instruct the jury so that the jurors understand the issues involved and are not misled.” Provided th e instructions accurately convey the law, the district court is afforded great discretion in the wording and style of its instructions. See Carter v. DecisionOne Corp. , 122 F.3d 997, 1005 (11th Cir. 1997). We have reviewed the district court’s instruction regarding the four elements necessary to establish a prima facie case of age discrimination 10 supported by circumstantial evidence and find them to be substantively identical to those this court enumerated in Bogle v. Ora nge County Board of County Commissioners , 162 F.3d 653, 656-57 (11th Cir. 1998) (quoting Turlington , 135 F.3d at 1432):11 “(1) that [plaintiff] was a me mber of the protected group of persons between the ages of forty and seventy; (2) that [plaintiff] was subject to adverse employment action; (3) that a substantially younger person filled the position . . . from which he was discharged; and (4) that [plaintiff] was qualified to do the job [from wh ich he was discharged].” The Resort points out that the district cour t’s framing of the elements of the prima facie case differs from that discussed in th is court’s decision in Earley v. Champion International Corp. , 907 F.2d 1077, 1082 (11th Cir. 1990), which identified as one of its elements: “evidence by which a fact finder might reasonably conclude that the employer intended to discriminate on the basis of age.” Earley , however, is inapposite because the claim therein ar ose from an allegedly discriminatory reduction in force. As we recognized in Isenbergh v. Knight-Ridder Newspaper Sales, Inc. , 97 F.3d 436, 440 (11th Cir. 1996), “case law suggests that the standard for establishing a prima facie case de pends on whether the case concerns a reduction in force as opposed to a termin ation.” Because Munoz’s claim, like that at issue in Bogle , was born of an allegedly discrimi natory termination, we find that the district court satisfactorily articulat ed the elements of a prima facie case. Regarding Muñoz’s evidentiary burden for demonstrating that the Resort’s proffered reason for his termination was pr etextual, the district court gave the following instruction: “In order to find that the reason was pretextual you must find both that the reason was false and that th e discrimination was the real reason for11 Trial Tr. at 498, inR.7, Tab 128. 12 discharging the plaintiff.” 11 The Resort does not challenge the correctness of this instruction; rather, it complains that th e district court improperly declined to supplement the instruction by admonishing further that “‘[a] plaintiff may not establish that an employer’s proffered reason is pretextual merely by questioning the wisdom of the employer’s reason.’” Tidwell v. Carter Products , 135 F.3d 1422, 1427 (11th Cir. 1998) (quoting Combs v. Plantation Patterns , 106 F.3d 1519, 1543 (11th Cir. 1997)). Although the Resort is correct that a jury’s evaluation of a proffered reason should focus on its legitimacy rather than its wisdom, “the trial court’s refusal to give a requested instru ction is not error where the substance of that proposed instruction was covered by another instruction which was given.” Pesaplastic , 750 F.2d at 1525. This applies here. The district court’s instruction required the jury to determine that the Res ort’s proffered reason was false in order to deem it pretextual; because this burde n was more onerous than that implicit in the Resort’s requested proviso, the district court did not err in rejecting it.

C. The Alleged Excessiveness of the Damages Award The Resort next asserts that Muñoz’s damages award was excessive, thereby13 warranting either a new trial or remittitur. The damages award was segregated into four categories: (1) back pay and (2) da mages for emotional distress and dignitary injury, the values of which were dete rmined by the jury; and (3) liquidated damages and (4) front pay, the values of which were determined by the district court. The Resort challenges all but the liquidated damages award.

1. Back Pay In an age discrimination suit, a succe ssful plaintiff receives back pay from the date of his or her terminati on to the date of trial. See Kolb v. Goldring, Inc. , 694 F.2d 869, 874 n.4 (1st Cir. 1982). The Resort does not dispute that the jury’s award of $58,838 approximates Muñoz’s lost earnings for this four-year period—May 1995 to June 1999. Rathe r, the Resort asserts that Muñoz discontinued his efforts to find employment once he began collecting Social Security benefits and therefore his recove ry for back pay should have been limited accordingly. We find no merit in this a ssertion. The failure to mitigate one’s damages is an affirmative defense, and as such, the Resort bore the burden of demonstrating at trial that the plain tiff did not seek comparable employment following his termination. See Weaver v. Casa Gallardo, Inc. , 922 F.2d 1515, 1527 (11th Cir. 1991) (superseded by statute on other grounds). The only attempt12 See Trial Tr. at 272, inR.6, Tab 127. 14 the Resort made to prove that Muñoz had ceased searching for replacement employment was to question him on cross-examination about his efforts, and Muñoz replied that although he disconti nued recording his inquiries in 1996, he consistently pursued employment during this period. 12 Sufficient evidence existed, therefore, from which a reasonabl e jury could have concluded that Muñoz did mitigate his damages. The Resort also complains that the jury was permitted to include in its back pay award the value of Muñoz’s employee “fringe benefits,” such as the reduced cost of meals, health insurance coverage, and vacation pay. This circuit repeatedly has held that such benefits should be r ecouped in a back pay award. See, e.g. , Crabtree v. Baptist Hosp. of Gadsden, Inc. , 749 F.2d 1501, 1502 (11th Cir. 1985). Muñoz submitted to the jury for use in its damages calculations an annual income estimate, supported by testimony, which included these items. The Resort maintains that Muñoz inflated the value of the benefits, although it did not offer any competing figures to the jury. On appeal, this court reviews an award of pecuniary damages (such as back pay) to determine whether it exceeds “the maximum possible award that is reasonably supported by the evidence in the record.” Deakle v. John E. Graham & Sons , 756 F.2d 821, 827 (11th Cir. 1985).15 Because the estimate submitted by Muñoz was the only one before the jury, and because the jury’s award fell within th is estimate, the back pay award was not excessive. 2. Damages for Emotional Distress and Dignitary Injury Although damages for emotional distress and dignitary injury are unavailable under the ADEA, see Goldstein v. Manhattan Indus., Inc. , 758 F.2d 1435, 1446 (11th Cir. 1985), the FCRA authorizes such recovery, see Fla. Stat. ch. 760.11(5) (1999) (“section 760.11(5)”). The Resort asserts, however, that this category of damages is legally unava ilable to Muñoz because he failed to corroborate his claims to these injuries with objective medical testimony. In advocating this standard of proof, the Res ort relies exclusively on Time Insurance Co. v. Burger , 712 So. 2d 389, 393 (Fla. 1998), in which the Florida Supreme Court imposed such an evidentiary requirement on plaintiffs suing their health insurers under section 624.155(1)(b)(1) of the Florida Statutes for emotional distress resulting from a delay in the receiptof health care services. Compelled by its recognition that section 624.155(1)(b)(1) created a statutory exception to the common law “impact rule,” which, in th e absence of physical injury, generally precludes the recovery of damages for em otional distress caused by negligence, the Burger court construed narrowly the scope of recovery for such damages and thus16 formulated this heightened standard of proof. See id. at 393. We find Burger inapposite, however, because section 760.11(5), unlike section 624.155(1)(b)(1), does not derogate the impact rule. Indeed , the impact rule is not implicated in claims involving intentional conduct. See Brown v. Cadillac Motor Car Div. , 468 So. 2d 903, 904 & n.* (Fla. 1985). The rationale underlying this limitation is instructive: “Where the psychic injury is based on simple negligence, proof of impact or objective physical manifestation affords a guarantee that the mental distress is genuine.” Williams v. City of Minneola , 575 So. 2d 683, 693 (Fla. 5th Dist. Ct. App. 1991) (quoting Eastern Airlines, Inc. v. King , 557 So. 2d 574, 579 (Fla. 1990) (Ehrlich, C.J., specially c oncurring)). In contrast, where more egregious intentional conduct precipita tes the emotional injury, its own invidiousness validates the sincerity of the injury. See id. Because illegal discrimination qualifies as such a condemn able intentional act, the emotional and dignitary harms it can cause are neither unforeseeable nor particularly enigmatic. See, e.g. , Hill v. Xerox Corp. , 998 F. Supp. 1378, 1384 (N.D. Fla. 1998) (recognizing the intangible injuries attending age discrimination). Seemingly underscoring this observation, section 760.11(5) specifies that employees aggrieved by discrimination may seek “damages for mental anguish, loss of dignity, and any other intangible injuries.” Fla. Stat. ch. 760.11(5) (1999). By17 contemplating recovery for damages that cannot be corroborated by medical testimony, the provision implicitly rejects the standard of proof articulated in Burger . Accordingly, we conclude that Muñoz’s claim to damages for these injuries was permissible and that his testimony concerning the emotional and dignitary impact of the termination was su fficient to justify the jury’s award. Alternatively, the Resort contends that the jury’s award of $150,000 was so excessive that it demonstrates that the jury was swayed by passion and prejudice. We disagree. As we have observed, “[ t]he standard of review for awards of compensatory damages for intangible, emo tional harms is deferential to the fact finder because the harm is subjective and evaluating it depends considerably on the demeanor of the witnesses.” Ferrill v. Parker Group, Inc. , 168 F.3d 468, 476 (11th Cir. 1999) (internal quotation omitted). We therefore will disturb such a jury verdict only “where the verdict is so exce ssive as to shock the conscience of the court.” Goldstein , 758 F.2d at 1447. After reviewing the record, we conclude that this was not such a verdict. See, e.g. , Hill , 998 F. Supp. at 1384 (upholding a jury’s verdict of $457,000 for emotional distress). 3. Front Pay The ADEA accords the district court broa d remedial authority “to grant such legal or equitable relief as may be appropr iate to effectuate the purposes of [the18 ADEA].” 29 U.S.C. § 626(b) (1999). In a case of termination, such equitable relief assumes the form of either reinstatement or front pay for a finite future period. The district court enjoys wide discretion in selecting which remedy to impose against an employer found liable under the ADEA, and this court will not modify the remedial package absent an abuse of that discretion. See Goldstein , 758 F.2d at 1448. Here, the district court opted to award Muñoz $22,449.80 in front pay. The Resort contends that the front pay award was inappropriate because of its speculative nature. It points out that the only assurance the district court received that Muñoz would have con tinued in his position had he not been terminated was Muñoz’s own testimony, in which he stated an intent to remain employed until the age of seventy. Muñoz’s intent, the Resort argues, was an insufficient basis for awarding front pa y. As we have observed, however, “awarding prospective relief involves some risk of uncertainty, but that in itself does not preclude an award of such relief. [After all, d]istrict courts have had considerable experience with damages for future wages” in other contexts. Castle v. Sangamo Weston, Inc. , 837 F.2d 1550, 1562 (11th Cir. 1988) (internal quotation omitted). Moreover, when age discrimi nation plaintiffs are near the age of retirement, this court has signaled its comf ort with awarding front pay. In Lewis v.13 The Seventh Circuit’s decision in Hybert v. Hearst Corp. , 900 F.2d 1050 (7th Cir. 1990), does not persuade us otherwise. The Hybert court vacated a plaintiff’s five-year front pay award for being too speculative. In cases such as Castle and Lewis , however, we have rejected this notion. Notably, the Hybert court predicated its rejection of the front pay award in part on the existence of a liquidated damages reward: “[L]iquidated damages are a relevant consideration in determining whether and how much front pay should be awarded.” 900 F.2d at 1056. This court, on the other hand, explicitly has held that a liquidated damages award does not influence whether or not front pay is also awarded. See Castle , 837 F.2d at 1562 (“Liquidated damages are not meant to replace equitable relief under the ADEA.”). This underscores the different approaches taken by this and the Seventh Circuit with regard to front pay awards and further demonstrates the immateriality of Hybertto our analysis here. 19 Federal Prison Industries, Inc. , 953 F.2d 1277, 1280 (11th Cir. 1992), this court cited with approval Blum v. Witco Chemical Corp. , 829 F.2d 367, 376 (3d Cir. 1987), in which the Third Circuit held that awarding front pay to plaintiffs within eight years of normal retirement age did not require unreasonable speculation. Atthe time of his termination, Muñoz, after being employed by the Resort for twentyseven years, was within six years of retirem ent; at the close of trial, he was but one year away. We conclude that under these circumstances, awarding Muñoz one year’s worth of front pay was not an abuse of the district court’s discretion. 13
The Resort next asserts that Muñoz wa s ineligible to receive front pay because, even had Muñoz not been term inated in 1995, he nonetheless would not have been employed by the Resort at the tim e of trial. Rea testified on the Resort’s behalf that sometime after Muñoz was te rminated, the Resort eliminated its room14 See Trial Tr. at 382-83, inR.7.

15 See Defs.’ Opp’n to Pl.’s Proposed Final J. at 2-3, in R.4, Tab 129. In this motion, the Resort did suggest that the back pay award improperly included damages for the period between the elimination of Muñoz’s former position and trial. See id. at 3 n.1, inR.4, Tab 129. Back pay, however, was before the jury; the Resort’s failure to raise this issue at trial, therefore, waives it. 20 services and, accordingly, all room server positions. 14 Although the Resort did not argue to the jury that this change in circumstances should limit Muñoz’s back pay award, it did aver before the district court in a post-trial motion that it precluded front pay. 15 This court has acknowledged that the elimination of a plaintiff’s former position prior to trial may preclude the receipt of front pay. See Nord v. U.S. Steel Corp. , 758 F.2d 1462, 1473 n.11 (11th Cir. 1985); accordSandlin v. Corporate Interiors, Inc. , 972 F.2d 1212, 1215 (10th Cir. 1992); Graefenhain v. Pabst Brewing Co. , 870 F.2d 1198, 1209 (7th Cir. 1989). As we have observed, “[t]he purpose of the ADEA . . . is to make the plaintiff ‘whole,’ to restore the plaintiff to the economic position the plaintiff would have occupied but for the illegal discrimination of the employer.” Castle , 837 F.2d at 1561. Awarding front pay to a plaintiff who ultimately would have been terminated confers a windfall upon that plaintiff and contravenes the remedial purpose of the ADEA. The Resort does not dispute that it bore the burden of proving by a preponderance of the evidence that it would not have employed Muñoz at the time21 of trial. See Lewis v. Smith , 731 F.2d 1535, 1539 (11th Cir. 1984); Walker v. Ford
Motor Co. , 684 F.2d 1355, 1362 & n.9 (11th Cir. 1982). It argues instead that because Muñoz never refuted its factual allegation that all room server positions had been legitimately eliminated, it satisfi ed that burden, and, accordingly, the district court’s decision to award front pa y in light of this uncontroverted evidence was an abuse of discretion. This court considered a similar argument in Archambault v. United Computing Sys., Inc. , 786 F.2d 1507 (11th Cir. 1986). There, an ADEA plaintiff asserted thatalthough the employer introduced evidence that it had eliminated the plaintiff’s former position, it failed to demonstrate further that it actually would have terminated the plaintiff rather than reassign him to some other position. See id. at 1515. The court, however, disagreed with the plaintiff’s assessment of the evidence and determinedthat the employer offered sufficient evidence that the plaintiff was unqualified for any other position and therefore would have been terminated. See id. Consequently, the court did not decide the threshold issue of whether an employer satisfies its burden of proof by demonstrating only that it eliminated the plaintiff’s former position. The issue is now squarely before us, as the Resort’s only evidence that it would not have employed Muñoz at the time of trial is its allegation that it has discontinued its room services. We find that this eviden ce was insufficient to satisfy the Resort’s16 For example, although the Resort intimates that it eliminated several positions when it discontinued its room services, the record does not reveal whether the Resort actually terminated the other room service employees. If the Resort reassigned them, then presumably Muñoz would have been afforded this same opportunity had he not been discharged on account of his age. See Nord , 758 F.2d at 1473 n.11; cf. Wilson v. S & L Acquisitions Co. , 940 F.2d 1429, 1438 (11th Cir. 1991) (suggesting that although the employer had sold the division in which the plaintiff had worked to another company, front pay nonetheless may have been available because the purchasing company might have rehired her).

17 Notably, Rea testified at trial that the Resort continues to maintain a restaurant, providing breakfast and lunch services. See Trial Tr. at 382-83, inR.7. 22 burden. Although the elimination of Muñoz ’s former position certainly is a valid consideration in the resolution of this issue, it does not compel the more critical conclusion that the Resort would not have employed Muñoz at the time of trial. 16 The Resort failed to introduce any evidence demonstrating either that Muñoz was unqualified for another available position 17 or that, for some other reason, reassignment would have been infeasible. Given this court’s repeated recognition of the importance of equitable relief to compensating fully a victim of age discrimination, see, e.g. , Castle , 837 F.2d at 1561, we are persuaded that requiring an employer to demonstrate with particularity that it actually would have terminated the plaintiff ensures that equ itable relief is not foreclosed lightly and thus better comports with the broad remedial purpose of the ADEA.

III. CONCLUSION Because we conclude that the district court did not err in denying the23 Resort’s motions for judgment as a matter of law and for a new trial and that the damages award was not excessive, we A FFIRM the final judgment of the district

court.