Julian v. City of Houston

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 01-20541

CHARLES H. JULIAN,

Plaintiff – Appellee – Cross-Appellant,

versus

THE CITY OF HOUSTON, TEXAS, ET AL,

Defendants,

THE CITY OF HOUSTON, TEXAS,

Defendant – Appellant – Cross-Appellee.

Appeals from the United States District Court
for the Southern District of Texas, Houston
December 11, 2002

Before DeMOSS, STEWART, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

A jury found that the City of Houston failed to promote

firefighter Charles Julian on the basis of his age in violation of

the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§

621–34. Both parties appeal. The City contends that the district

court lacked subject matter jurisdiction because Julian did not

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obtain a right-to-sue letter from the Equal Employment Opportunity

Commission (“EEOC”) prior to filing his ADEA claim. The City also

argues that the district court improperly instructed the jury.

Julian, on the other hand, contests the district court’s denial of

his request for front pay. We hold that the receipt of a right-to-

sue notice is not a prerequisite to filing an ADEA action. We also

find that the City has not demonstrated improper instruction of the

jury. And we conclude that the district court must reconsider

whether Julian should be awarded front pay. We therefore AFFIRM

the district court’s judgment in part, VACATE in part, and REMAND.

I. BACKGROUND

Charles Julian is a sixty-year-old firefighter who has served

the City of Houston since 1968. He became a District Chief of the

City’s fire department in 1984. Since 1989, however, the City has

denied him promotion to Assistant Fire Chief five times.

On October 10, 1995, Julian filed a charge of discrimination

with the EEOC, alleging that he had not been promoted to the

Assistant Chief level in September 1995 because he is black. The

United States Department of Justice issued him a right-to-sue

notice in December 1998. In accordance with the notice, Julian

instituted this action against the City under Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-

17. In his suit, filed in the Southern District of Texas on March

1, 1999, Julian complained of promotion denials occurring between

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1989 and May 1998. But his right-to-sue notice only covered his

allegation that he was denied promotion in September 1995 because

of his race. Therefore, Julian filed a second charge with the EEOC

on March 5, 1999, that included all of the promotion denials. In

addition to alleging race discrimination, Julian also claimed that

the City had discriminated against him on the basis of his age in

violation of the ADEA. On July 27, 1999, the Department of Justice

issued Julian another right-to-sue notice. The notice, however,

only addressed Julian’s Title VII claims.

On August 10, 1999, Julian filed an unopposed motion to amend

his federal court complaint to include an ADEA claim. Two days

later, the district court granted the motion, and Julian filed his

First Amended Complaint.

In February 2000, the City moved for summary judgment on all

of Julian’s claims. The district court granted the motion in part

and dismissed Julian’s Title VII claims. The case proceeded to

jury trial on the ADEA claim alone. On May 25, 2000, a jury found

that the City intentionally failed to promote Julian to the

position of Assistant Fire Chief on the basis of his age and

awarded him $109,222.00 in back pay and benefits. The district

court entered judgment on the verdict, but denied Julian’s request

for front pay. The City then filed a renewed motion for judgment

as a matter of law, arguing, among other grounds, that the district

court did not have subject matter jurisdiction. The City also

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moved for a new trial on the basis of improper jury instructions.

The district court denied the City’s post-judgment motions on April

23, 2001. Both parties filed timely notices of appeal.

II. ANALYSIS

A. Right-to-Sue Notice and the ADEA

We review de novo the denial of the City’s motion for judgment

as a matter of law, applying the same standard that the district

court used.1 “[T]he issue of subject matter jurisdiction is

subject to plenary review by this court.”2

The City contends, as it did in its JMOL motion, that the

judgment in Julian’s favor should be set aside due to his failure

to obtain a right-to-sue notice from the EEOC prior to asserting

his ADEA claim. In the City’s view, the right-to-sue notice is a

jurisdictional prerequisite to bringing an ADEA action in federal

court. This contention lacks merit. Although Title VII provides

that the right to bring suit does not arise until after the EEOC

has issued a right-to-sue notice,3 the ADEA has no such

1
Rutherford v. Harris County, Tex., 197 F.3d 173, 178 (5th Cir.
1999).
2
Taylor-Callahan-Coleman Counties Dist. Adult Prob. Dep’t v.
Dole, 948 F.2d 953, 956 (5th Cir. 1991).
3
See 42 U.S.C. § 2000e-5(f)(1) (providing that a Title VII
action may be brought “within ninety days after the giving of . .
. notice”). Our Title VII cases hold that “receipt of a right-to-
sue letter is not jurisdictional but a condition precedent subject
to equitable modification.” McKee v. McDonnell Douglas Technical
Servs. Co., Inc., 705 F.2d 776, 777 n.2 (5th Cir. 1983) (citing
Pinkard v. Pullman-Standard, 678 F.2d 1211, 1215–19 (5th Cir.

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requirement.

But there are preconditions to bringing suit under the ADEA.

Title 29 U.S.C. § 626(d) provides: “No civil action may be

commenced by an individual under this section until 60 days after

a charge alleging unlawful discrimination has been filed with the

Equal Employment Opportunity Commission.”4 Thus, a person seeking

relief under the ADEA must first file an administrative charge with

the EEOC.5 And § 626(d) establishes time limits for filing the

EEOC charge. For cases arising in Texas, a complainant must file

within 300 days of the last act of discrimination.6 After timely

filing the EEOC charge, the complainant must then wait sixty days

before filing a civil action. Under the plain language of §

626(d), “the claimant’s independent right to sue arises

automatically upon the expiration of sixty days after filing of the

1982)). Thus, even if the ADEA required a right-to-sue notice
prior to filing suit, we would likely reject the City’s
characterization of such a requirement as a jurisdictional
prerequisite, which, if not satisfied, deprives courts of subject
matter jurisdiction.
4
29 U.S.C. § 626(d).
5
See Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir.
1988) (“A charge of discrimination must be timely filed with the
EEOC prior to the initiation of a civil action under the ADEA.”).

6
See id. § 626(d)(2); Anson v. Univ. of Tex. Health Sci. Ctr.,
962 F.2d 539, 540 (5th Cir. 1992) (stating that the time limit is
300 days).

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charge with the EEOC.”7 Accordingly, a complainant who timely

files the EEOC charge and then observes the sixty-day waiting

period has satisfied the statutory preconditions to filing suit.8

In this case, Julian filed a charge of age discrimination with

the EEOC on March 5, 1999, and the City does not dispute the

timeliness of the charge.9 He did not amend his federal suit to

include an ADEA claim until August 10, 1999, well beyond the sixty-

day period. Julian’s decision to assert his claim by amending the

pending suit instead of filing a new one does not complicate our

analysis. He clearly had the right to sue in August 1999, and we

do not fault him for choosing the more efficient of his two

options. We therefore find that Julian satisfied the statutory

preconditions to commencing an ADEA action.

In arguing that the receipt of a right-to-sue notice is an

additional precondition to filing an ADEA suit, the City calls our

7
Adams v. Burlington N. R.R. Co., 838 F. Supp. 1461, 1468 (D.
Kan. 1993).
8
See Grayson v. K Mart Corp., 79 F.3d 1086, 1100 (11th Cir.
1996) (“Unlike Title VII, the ADEA does not require that the
plaintiff first receive a right to sue notice from the EEOC prior
to commencing suit.”); Seredinski v. Clifton Precision Prod. Co.,
776 F.2d 56, 63 (3d Cir. 1985) (“ADEA does not require that a
‘right-to-sue’ letter be first obtained. Rather, a complainant
must simply file a charge with the EEOC not less than 60 days
before commencing suit . . . .”).
9
The last act of age discrimination that Julian complained of
in his March 5, 1999 EEOC charge was a May 28, 1998 promotion
denial. Because only 281 days elapsed between these two dates, the
EEOC charge was timely filed. See Anson, 962 F.2d at 540.

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attention to 29 U.S.C. § 626(e). Section 626(e) provides that if

a charge filed with the EEOC is dismissed or the proceedings are

otherwise terminated, the EEOC must notify the complainant, who may

then bring a civil action within ninety days after receipt of the

EEOC notice.10 Although this section establishes a ninety-day

limitations period for the ADEA complainant who actually receives

notice from the EEOC, it does not require a complainant to receive

such notice before filing suit.11 Thus, in cases such as this one,

where a plaintiff commences a civil action after the sixty-day

waiting period, but before the EEOC responds to his charge, §

626(e) is irrelevant because the action has been timely filed.12

In short, we decline the City’s invitation to create the

additional requirement it advocates and hold that the receipt of a

right-to-sue notice is not a prerequisite to filing an ADEA action.

The district court properly denied the City’s motion for JMOL on

this issue.

10
See 29 U.S.C. § 626(e) (“If a charge filed with the Commission
under this chapter is dismissed or the proceedings of the
Commission are otherwise terminated by the Commission, the
Commission shall notify the person aggrieved. A civil action may
be brought under this section by a person defined in section 630(a)
of this title against the respondent named in the charge within 90
days after the date of the receipt of such notice.”).
11
See Weaver v. Ault Corp., 859 F. Supp. 256, 257–58 (N.D. Tex.
1993) (discussing the legislative history of § 626(e)).
12
See Adams, 838 F. Supp. at 1467–68 (“[U]nder the current law,
the window for filing an ADEA suit begins sixty days after filing
the EEOC charges and ends ninety days after receipt of the EEOC
right-to-sue notice.”).

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 B. Jury Instructions

We review the district court’s jury charge for abuse of

discretion.13 “If a party wishes to complain on appeal of the

district court’s refusal to give a proffered instruction, that

party must show as a threshold matter that the proposed instruction

correctly stated the law.”14 If a party makes this threshold

showing, he must then demonstrate that the actual charge “as a

whole creates substantial and ineradicable doubt whether the jury

has been properly guided in its deliberations.”15 But if the charge

correctly states the substance of the law, we will not reverse.16

The City argues that the district court erred in refusing to

give the following “business judgment” instruction:

You are instructed that an employer is free to direct its
work force as it considers best to meet its objectives.
You are not being asked to judge whether acts by the
Defendant were wise, whether they represented good
management, or whether you would have handled matters in
a different fashion. The City is free to use its own
judgment, so long as it did not act with the intent to
discriminate against Mr. Julian because of his age.

The City cites only one case, Walker v. AT&T Technologies,17 in

support of its argument that the district court’s failure to give

13
EEOC v. Manville Sales Corp., 27 F.3d 1089, 1096 (5th Cir.
1994).
14
FDIC v. Mijalis, 15 F.3d 1314, 1318 (5th Cir. 1994).
15
Id. (internal quotation and citation omitted).
16
Deloach v. Delchamps, Inc., 897 F.2d 815, 822 (5th Cir. 1990).
17
995 F.2d 846 (8th Cir. 1993).

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this instruction constitutes reversible error. But the City’s

reliance on the Eighth Circuit’s opinion in Walker is misplaced.

The Walker court ordered a new trial because the district court

refused to instruct the jury that the defendant had a right to make

employment decisions for any nondiscriminatory reason.18 Here, the

district court’s jury charge effectively communicated this

principle of substantive law:

Your verdict should be for the defendant if you find that
the defendant has proved that plaintiff would not have
received the promotion regardless of his age. You should
not find that the decision is unlawful just because you
may disagree with the defendant’s stated reason or
because you believe the decision was harsh or
unreasonable, as long as defendant would have reached the
same decision regardless of plaintiff’s age.

. . . .

It is not against the law for an employer to fail to
promote an employee who is over forty years of age if the
reason for doing so is unrelated to the employee’s
age....
If you determine that Julian was not promoted
because of factors other than his age, you must decide in
favor of the City.

The City is not entitled to have the jury instructed in the precise

language or form it suggests.19 Because the district court properly

instructed the jury that the City’s employment decision was lawful

18
See id. at 849–50 (“AT&T’s proposed instruction states the
substantive law that an employer has the right to make business
decisions . . . for good reason, bad reason, or no reason at all,
absent intentional age discrimination.”); see also Stemmons v.
Missouri Dep’t of Corr., 82 F.3d 817, 819 (8th Cir. 1996).
19
Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 270 (5th Cir.
1991).

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“as long as [the City] would have reached the same decision

regardless of plaintiff’s age,” we find that the court did not

abuse its discretion in refusing to give the City’s proposed

instruction.

The City also contends that it was entitled to an instruction

requiring Julian to prove that he was clearly better qualified than

the younger employees who received promotions. We summarily reject

this argument. The City has not satisfied its threshold burden of

showing that this proposed instruction is a correct statement of

the law.20 Although pointing to clearly superior qualifications is

one permissible way to demonstrate intentional discrimination, a

plaintiff is not required to make this showing.21 Julian presented

direct evidence in support of his claim, and the district court

instructed the jury accordingly. Thus, we find no abuse of

discretion.

We conclude that the City’s contentions with respect to the

jury charge present no reversible error.

C. Front Pay

In his cross-appeal, Julian contends that the district court

erred in refusing to award him front pay. Julian sought

compensation at the Assistant Fire Chief level from May 25, 2000,

20
See Mijalis, 15 F.3d at 1318.
21
Price v. Federal Express Corp., 127 F. Supp. 2d 801, 808 (S.D.
Tex. 2001) (citing EEOC v. Manville Sales Corp., 27 F.3d 1089, 1096
n.5 (5th Cir. 1994)).

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the date of the jury’s verdict, to October 2, 2005, his expected

retirement date. We review the district court’s decision on this

issue for abuse of discretion.22

A primary remedial purpose of the ADEA is to make the

individual victim of discrimination whole.23 To effectuate this

purpose, Congress gave courts broad authority to “grant such legal

or equitable relief as may be appropriate . . ., including without

limitation judgments compelling employment, reinstatement or

promotion . . . .”24 Although reinstatement is the preferred

equitable remedy for a discriminatory discharge, this court has

held that front pay—money awarded for future lost compensation—is

appropriate when reinstatement is not feasible.25 But this is a

failure to promote case, not a discharge case. This distinction

requires a slight change in our terminology: In a failure to

22
Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869, 869 (5th
Cir. 1991).
23
Id. at 870.
24
29 U.S.C. § 626(b).
25
Reneau, 945 F.2d at 870. “Since front pay is an equitable
remedy, the district court rather than the jury should determine
whether an award of front pay is appropriate, and if so, the amount
of the award.” Walther v. Lone Star Gas Co., 952 F.2d 119, 127
(5th Cir. 1992). But the district court may determine the amount
of the award with the assistance of an advisory jury. See
Rutherford v. Harris County, Tex., 197 F.3d 173, 188 (5th Cir.
1999); see also FED. R. CIV. P. 39(c). Here, Julian did not request
an award of front pay until after the jury returned its verdict.
The district court therefore had no occasion to seek advisory
findings from the jury on this issue.

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promote case, the preferred remedy is instatement to an illegally

denied position, not reinstatement.26 If instatement is not

feasible, however, front pay is the appropriate award.

Julian argued in the district court that instatement is not

feasible in this case because the City’s Fire Chief testified to

that effect at trial. So Julian requested front pay instead.

Because the parties did not contest the feasibility of instatement,

the district court did not address the issue in its final judgment.

Our preference for instatement, however, has led us to require

district courts to adequately articulate their reasons for finding

instatement to be infeasible and for considering an award of front

pay instead.27 Thus, the district court should have considered, as

a threshold matter, whether instatement was feasible.28

Furthermore, the district court’s reasons for denying front

pay reveal an abuse of discretion. The court first found that

Julian’s front pay request was speculative because an Assistant

Fire Chief is an at-will employee who serves at the pleasure of the

Fire Chief and with the approval of the Mayor and City Council of

26
See Rutherford, 197 F.3d at 188–89; see also Kennedy v. Ala.
State Bd. of Educ., 78 F. Supp. 2d 1246, 1249 (M.D. Ala. 2000)
(“The general rule . . . is that a person should be instated to an
illegally denied position, and front pay is an exception to that
rule.”).
27
See Rutherford, 197 F.3d at 188.
28
See Hansard v. Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461,
1469–70 (5th Cir. 1989).

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Houston. But the employment-at-will doctrine does not function as

an absolute bar to recovering front pay; it is merely a factor for

the district court to consider when determining whether a front pay

award is equitably required and, if so, for what period of time

such pay should be granted.29 Thus, an Assistant Chief’s

employment-at-will status, taken alone, is not a sufficient basis

for denying Julian’s request for front pay. In addition, we have

recognized that “[c]alculations of front pay cannot be totally

accurate because they are prospective and necessarily speculative

in nature.”30 “The courts must employ intelligent guesswork to

arrive at the best answer.”31 Although a court may deny front pay

because of insufficient evidence, Julian presented the district

court with the information necessary to calculate an award,

including wage and benefit data for both his current rank in the

department and the Assistant Chief position.32 Consequently, the

record does not support the district court’s apparent conclusion

that an award of front pay would be purely speculative in this

29
See Reneau, 945 F.2d at 870–71.
30
Id. at 870 (emphasis added).
31
Id.
32
See id. (finding that evidence of the plaintiff’s pre- and
post-termination earnings constitutes substantial support for
calculating a front pay award).

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case.33 Because the jury found that the City denied Julian a

promotion on the basis of his age, the fact that calculating front

pay involves some degree of speculation is a risk that the City

must bear as a proven discriminatory employer.

The district court also found that front pay was inappropriate

because Julian was made whole by his back pay award. Back pay and

front pay are distinct remedies, however, and making victims of

discrimination whole may require courts to award both. Back pay

provides retrospective relief. Its purpose is to restore the

plaintiff to the position he would have been in absent the

discrimination.34 Front pay, on the other hand, is intended to

compensate the plaintiff for wages and benefits he would have

received from the defendant employer in the future if not for the

discrimination.35 Although this court has determined that a

substantial liquidated damages award may render an additional award

of front pay inappropriate or excessive,36 we have never held that

33
But cf. Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 402 (5th
Cir. 2002) (affirming the district court’s denial of front pay
where an award would be purely speculative).
34
Id. at 401.
35
Id. at 402.
36
See Walther, 952 F.2d at 127. In cases where an employer
commits a willful violation of the ADEA, the plaintiff is entitled
to recover liquidated damages in an amount equal to the back pay
award. See generally Tyler, 304 F.3d at 399–401. In other words,
the back pay award is doubled. Here, the jury found that the
City’s conduct was not willful, so Julian did not receive
liquidated damages.

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an award of back pay can have this same effect. The district court

properly instructed the jury on the function of back pay, and the

City does not contend that the jury disregarded the court’s

instructions and awarded an excessive amount. Therefore, Julian’s

back pay award does not preclude him from receiving prospective

relief in the form of front pay.

Although the district court’s decision is entitled to

considerable deference, because the court did not address the

feasibility of instatement and erred in basing its denial of front

pay on the grounds advanced, we find it appropriate to remand the

case for a reevaluation of these issues in the light of this

opinion.37

III. CONCLUSION

That portion of the final judgment denying front pay is

VACATED, and the case is REMANDED for further proceedings

consistent with this opinion. In all other respects, the judgment

entered on the jury’s verdict is AFFIRMED.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Judge DeMoss dissents as to Part II.C.

37
On remand, if the district court finds that instatement is not
feasible, it should then consider the factors this court listed in
Reneau, 945 F.2d at 871, as well as any other relevant, non-
discriminatory factor affecting Julian’s employment relationship
with the City.

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