[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.
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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
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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
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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)
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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
 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.

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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: <the

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
 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.

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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