Feldman v. Philadelphia Housing Authority

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit

12-22-1994

Feldman v. Phila. Housing Auth. al.
Precedential or Non-Precedential:

Docket 93-1977

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________________

Docket Nos. 93-1977, 93-1978, 93-2115, 93-2129, 93-2139
_____________________

JAMES C. FELDMAN,

v.

THE PHILADELPHIA HOUSING AUTHORITY;
JONATHAN A. SAIDEL, individually and as
Chairman of the Board of Commissioners
of the Philadelphia Housing Authority;
JOHN PAONE, individually and as
Executive Director of the
Philadelphia Housing Authority;
PEGGY JONES; CLAYTON CARTER, JR.,;
NELLIE REYNOLDS; COURTNEY C. SMITH, JR.,
individually and as members of the
Board of the Philadelphia Housing Authority

Jonathan A. Saidel, in his
individual capacity,

Appellant in Nos. 93-1977
and 93-2129

John Paone,

Appellant in No. 93-2115

Philadelphia Housing Authority,
Jonathan A. Saidel and
John Paone, in their official
capacities,

Appellants in Nos. 93-
1978
and 93-2139
______________________

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil No. 91-cv-05861)
_______________________
 _______________________

Argued June 20, 1994

BEFORE: STAPLETON, GARTH, and PRATT, Circuit Judges*

(Opinion filed December 22, l994)
(Corrected as of December 30, 1994)
______________________

Alan Klein (Argued)
Barry H. Boise
Cohen, Shapiro, Polisher,
Sheikman & Cohen
PSFS Building - 22nd Floor
12 South 12th Street
Philadelphia, PA 19107

Attorneys for Appellant
Jonathan A. Saidel

Robert J. Sugarman (Argued)
Sugarman & Associates
Robert Morris Building, 7th Floor
100 N. 17th Street
Philadelphia, PA 19103

Attorney for Appellant
John Paone

Jerome J. Shestack (Argued)
Joseph C. Crawford
Jonathan D. Wetchler
Wolf, Block, Schorr &
Solis-Cohen
12th Floor Packard Building
15th and Chestnut Streets
Philadelphia, PA 19102

Attorney for Appellants
Philadelphia Housing Authority,
Jonathan Saidel, and John Paone
(the latter two in their
official capacities)

_______________________________________
* Honorable George C. Pratt, United States Circuit Judge for the
Second Circuit, sitting by designation.
Joseph F. Lawless, Jr. (Argued)
6 Harvey Lane
Newtown Square, PA 19073

Attorney for Appellee

____________________

OPINION OF THE COURT

____________________

PRATT, Circuit Judge:

INTRODUCTION

Plaintiff James C. Feldman claims the defendant

Philadelphia Housing Authority ("PHA"), through its agents,

defendants Jonathan A. Saidel and John Paone, violated the First

and Fourteenth Amendments of the Constitution of the United

States, as well as the State of Pennsylvania's "whistleblower"

statute, by firing him in retaliation for publishing reports that

exposed wrongdoing at PHA. After a jury trial the district court

entered judgment for plaintiff on all claims, awarding him

$616,696 in compensatory damages and a total of $20,000 in

punitive damages. Defendants appeal. We affirm.

FACTS AND BACKGROUND

Since the jury found for Feldman, we view the facts by

drawing from the evidence all reasonable inferences in his favor.
 Defendant PHA, a public agency responsible for

providing housing for low-income citizens, is the largest housing

agency in Pennsylvania and fourth largest in the United States.

The agency is governed by a board of commissioners consisting of

five members, two each being appointed by the mayor and the city

controller, respectively, with the fifth member being selected by

the four appointees.

In January 1990 Saidel, exercising his authority as

Philadelphia's city controller, appointed himself to the board of

commissioners. Three months later, Paone was named as PHA's new

executive director, responsible for overseeing the day-to-day

activities of the agency. Paone and Saidel worked closely

together, routinely discussing the daily management and affairs

of PHA.

Feldman had been working at PHA since 1982. From May

1990 until his termination on May 3, 1991, Feldman acted as the

director of the agency's Internal Audit Department. In this

capacity, Feldman was responsible for investigating, identifying,

and exposing waste, inefficiency, fraud, and criminal activity

within PHA. In order to carry out this function, Feldman

regularly prepared detailed reports of his investigations. Under

the internal-audit charter, which specifies the responsibilities

of the Internal Audit Department, Feldman was required to present

his findings and observations to the executive director and the

board of commissioners, i.e. to Paone, as executive director; and

to Saidel, as chairman of the board of commissioners as well as

to the four other members of the board.
 For most of Feldman's career at PHA, his work was

considered exemplary. His personnel file contained no reprimands

or comments concerning poor job performance. His last

performance evaluation, dated April 24, 1990, gave Feldman a

rating of "SUPERIOR". However, after Saidel became chairman of

the board and Paone became executive director, things changed.

In several of his reports on PHA's management and operations over

approximately the next twelve months, Feldman revealed numerous

improprieties in several key areas at the agency. As required by

the internal auditing charter, Feldman made his reports to Paone,

Saidel, and the rest of the board. Many of his reports

criticized the job PHA's management was doing. On several

occasions, Paone and Saidel reprimanded Feldman for preparing the

critical reports.

Paone was particularly displeased with Feldman after he

reported that management had promoted a PHA employee who was

under investigation for corruption. As a result of a tip, the

Internal Audit Department had conducted an investigation of PHA's

Central Maintenance Department. The investigation revealed that

the Central Maintenance Department, which was responsible for the

agency's fencing contracts, was involved in an illegal bid-

rigging scheme, and several PHA employees were linked to the

unlawful activity. Feldman periodically reported to Paone and

Saidel on the details of this investigation, including which PHA

employees were probably involved. Ultimately, Feldman reported

that one of the implicated employees had been promoted despite

being under the continuing investigation. Paone challenged
Feldman, saying, "I thought you were on our side". Paone then

instructed Feldman to remove from his report the reference to the

mid-investigation promotion. Feldman complied.

Later, after Feldman circulated a quarterly report to

the board that criticized certain other managerial decisions,

Paone and Saidel separately reprimanded Feldman and instructed

him that in the future he was to report his findings to Paone

only. Feldman refused to yield to this direction, because it was

contrary to the internal-audit charter, and he continued to

circulate his reports to the entire board.

The last matter that Feldman worked on that was to be

circulated to the board was a human-resources audit. The purpose

of the audit was to determine if PHA management was using its

employees in an efficient and economical manner. Feldman had

routinely advised the board and Paone of the progress of the

audit. The final audit report would have revealed favoritism and

other improprieties in personnel decisions made by Paone and

Saidel. In general, the audit was very critical of the manner in

which PHA was being run.

Around the same time, however, Paone and Saidel were

portraying their management of PHA to the public in a different

light. Saidel prepared a "Letter from the Chairman" that was

featured in PHA's 1991 annual report. The letter stated that

although the agency had previously been "financially

floundering", when he became chairman and Paone became executive

director, "[t]hings had to change fast -- and they did". He went

on to say that the board of commissioners "began to reorganize
PHA management and restore the Authority to a viable condition".

Moreover, in the "Letter from the Executive Director", also

featured in the annual report, Paone said that PHA's greatest

challenge was "to win the hearts, minds and respect of our

residents and to develop a team approach with them in resolving

other major issues". Had it been published, Feldman's human

resources audit report would have severely undercut the annual

report's glowing portrayal of management's success.

The same day the human-resources report was to be

circulated to the board, Paone, after conferring with Saidel,

fired Feldman. He told Feldman that, effective immediately, his

services were no longer needed, because the agency had decided to

reorganize the Internal Audit Department. Feldman was then

promptly escorted out of his office by two police officers,

without being given an opportunity to retrieve his work or

publish the audit report.

Four months later, Feldman instituted this action in

district court against PHA, Paone, and Saidel, and against other

PHA board members who were dismissed from the action as

defendants at the completion of plaintiff's case-in-chief.

Feldman alleged that defendants had fired him for

"whistleblowing" in violation of the first and fourteenth

amendments, 42 U.S.C. § 1983, and 43 Pa. Cons. Stat. Ann. §

1423(a) and (b) (the Pennsylvania "Whistle-blower" Law).

The case was tried before the Honorable William H.

Yohn, Jr. and a jury, which returned a verdict in favor of

Feldman and against defendants PHA, Saidel, and Paone. The jury
awarded Feldman $616,696 in compensatory damages, of which

$500,000 was for front pay. It also awarded Feldman punitive

damages against Paone and Saidel in their individual capacities,

in the amount of $10,000 each. Defendants now appeal. We have

jurisdiction under 28 U.S.C. § 1291.

Defendant PHA raises three issues on appeal:

1) whether the district court erred in not granting judgment as a

matter of law dismissing the first amendment and "whistleblower"

claims; 2) whether the district court erred by allowing an award

of front pay instead of reinstating plaintiff at PHA; and

3) whether the jury's $500,000 award for front pay was excessive.

Both Paone and Saidel argue that the evidence was

insufficient to justify punitive damages. Saidel also challenges

the award of punitive damages against him, claiming a lack of

evidence to establish that he personally participated in

Feldman's firing.

We affirm.

DISCUSSION

Review of a denial of a directed verdict is plenary,

and we invoke the same standard that the district court applies.

Thus, viewing the evidence in the light most favorable to

Feldman, the nonmoving party, we determine whether there is

evidence reasonably tending to support his claim. See Bielevicz
v. Dubinon, 915 F.2d 845, 849 (3d Cir. 1990). While the role of

an appellate court, in a first amendment case, requires an

enhanced examination of the entire record, see Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984), "[a]

jury verdict will not be overturned unless the record is

critically deficient of that quantum of evidence from which a

jury could have rationally reached its verdict". Swineford v.

Snyder County, 15 F.3d 1258, 1265 (3d Cir. 1994).

A. First Amendment Claim

Feldman recovered, in part, on a theory that his firing

was in retaliation for his having engaged in speech protected

under the first amendment. Determining whether PHA's dismissal

of Feldman violated the first amendment requires a three-step

analysis. See Swineford, 15 F.3d at 1270; Czurlanis v. Albanese,

721 F.2d 98, 103 (3d Cir. 1983). Feldman was first required to

show that his speech constituted protected activity. See

Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). If

protected, Feldman then had to establish that the speech was a

substantial or motivating factor for his discharge. See Mt.

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287

(1977). If Feldman satisfied the first two steps, then

defendants could avoid liability by showing that they would have

fired Feldman anyway. Id.
 1. Constitutionally Protected Activity

A state cannot lawfully discharge an employee for

reasons that infringe upon that employee's constitutionally

protected interest in freedom of speech. Rankin v. McPherson,

483 U.S. 378, 383 (1987). A public employee's freedom of speech,

however, does have its limits. The court must weigh the

employee's interest in free speech against the government's

interest in promoting efficiency among its employees. See

Versarge v. Township of Clinton New Jersey, 984 F.2d 1359, 1364

(3d Cir. 1993). As the Supreme Court explained in Pickering:
The problem in any case is to arrive at a
balance between the interests of the
[employee], as a citizen, in commenting upon
matters of public concern and the interest of
the State, as an employer, in promoting the
efficiency of the public services it performs
through its employees.

391 U.S. at 568. It is for the court, not the jury, to perform

the Pickering balancing test. See Czurlanis, 721 F.2d at 105
("As the Supreme Court made clear in Connick, it is the role of

the court in a case alleging retaliatory action which violates

the First Amendment to decide not only whether the speech at

issue related to a matter of public concern, but also to conduct

the necessary Pickering balancing.").

Thus, in order to determine whether Feldman's speech

was protected, we must first determine if the speech related to

matters of public concern, or constituted merely personal

grievances, see Connick v. Myers, 461 U.S. 138, 147 (1983);

Pickering, 391 U.S. at 568, and looking at the entire record, we
must consider the content, form, and context of the speech for

which Feldman contends he was fired. See Connick, 461 U.S. at

147-48.

An employee's speech addresses a matter of public

concern when it can "be fairly considered as relating to any

matter of political, social or other concerns of the community".

Id. at 146. Feldman's speech was not related in any way to

personal grievances; on the contrary, it clearly pertained to

matters of important public concern. The very purpose of his

auditing reports was to ferret out and highlight any

improprieties that he found at PHA. Disclosing corruption,

fraud, and illegality in a government agency is a matter of

significant public concern. See Swineford, 15 F.3d at 1274.

Next we must balance Feldman's interests in engaging in

the speech, together with the public's interest in listening,

against defendants' interest in promoting efficiency at PHA. Id.

The interests of Feldman, as well as the public, in exposing

governmental wrongdoing of the nature and magnitude that

Feldman's reports exposed, is very strong. We have recently

recognized:
Speech involving government impropriety
occupies the highest rung of First Amendment
protection. Moreover, the public's
substantial interest in unearthing
governmental improprieties requires courts to
foster legitimate whistleblowing.

Swineford, 15 F.3d at 1274.

Defendants, however, stress in opposition the

disruptive impact of Feldman's speech which, they argue, was
sufficient to deprive it of constitutional protection. This

argument is misplaced. We have previously explained:
The First Amendment balancing test [of
Pickering] can hardly be controlled by
finding that disruption did occur. An
employee who accurately exposes rampant
corruption in her office no doubt may disrupt
and demoralize much of the office. But it
would be absurd to hold that the First
Amendment generally authorizes corrupt
officials to punish subordinates who blow the
whistle simply because the speech somewhat
disrupted the office * * *. The point is
simply that the balancing test articulated in
Pickering is truly a balancing test, with
office disruption or breached confidences
being only weights on the scales.

Czurlanis, 721 F.2d at 107 (quoting Porter v. Califano, 592 F.2d
770, 773-74 (5th Cir. 1979)) (emphasis in original). Moreover,

revelations of misconduct at PHA by Feldman stand in a unique

position. Feldman was not the typical employee exposing fraud

within one's work environment; he was the head of a department

whose very job it was to uncover improprieties. Feldman's

conduct was not only permitted, but required by the Internal

Audit Department's charter, which provided:
It is the policy of the Philadelphia Housing
Authority (PHA) to determine the adequacy and
effectiveness of management policies,
controls and procedures with respect to all
activities within PHA, and to insure full
compliance with such policies, controls and
procedures.

In order to implement this objective, it is
the policy of PHA to provide and support an
Internal Audit Department to determine the
adequacy and effectiveness of management
policies, controls and procedures in
discharging management's responsibilities for
the control of assets and operations * * *.
(emphasis added).

As director of the Internal Audit Department, Feldman

was responsible for uncovering and reporting any wrongdoing that

he discovered at PHA. If done correctly, Feldman's very job was

to be disruptive. His responsibility to investigate and ferret

out improprieties extended not only to Feldman's co-workers, but

also to Paone, the executive director, and yes, even Saidel, the

chairman of the board. The charter specifically provided that

the Internal Audit Department must "determine the adequacy and

effectiveness of management policies, controls and procedures in

discharging management's responsibilities for the control of

assets and operations". (emphasis added).

Exposing waste, fraud, and corruption within an agency

will likely cause disruption, particularly when done by a person

whose responsibility it is to unveil such conduct. This type of

disruption, however, cannot justify a retaliatory discharge.

At the time of his firing, Feldman was about to publish

an audit report that would have revealed wrongdoing on the part

of Paone and Saidel. Feldman, however, was fired the day the

report was to be published. The jury could have reasonably

concluded that this was no coincidence, especially in light of

the fact that after being fired, Feldman was escorted from his

office by two police officers, and prevented from either

circulating the report or even retrieving any of his work.

Very likely, publication of the report would have

caused some disruption at PHA, particularly between Feldman and
his superiors, Paone and Saidel. Defendants would have us

believe, however, that the disruption would have been great

enough to justify, under Pickering balancing, their firing of

Feldman. We disagree. Feldman did what the charter required him

to do; failure to do so would have been a breach of his

responsibilities. Moreover, the subject matter of his reports --

improprieties in governmental business -- occupies a high level

of public concern. Simply because his reports might cause

disruption in the eyes of Paone and Saidel, the very people he

was reporting on, could not be a sufficient justification for his

discharge. We conclude that Feldman's speech was

constitutionally protected.

2. Unconstitutional Discharge

Feldman contended that his discharge was caused by

defendants' retaliatory motives. The record is replete with

evidence from which the jury could properly conclude that

Feldman's firing was directly precipitated by his engaging in

protected speech. Initially, defendants told Feldman that the

reason he was being fired was that they were reorganizing the

audit department. This, the jury could have found, was a

pretext. Except for a few minor changes, the audit department

was substantially the same at the time of trial as it was when

Feldman was fired.

Defendants later abandoned their initial reason for the

firing, and launched an intense attack on Feldman's ability to

perform his job. They alleged, inter alia, that Feldman was
insubordinate, self-serving, and overall, an incompetent

employee. Their attack on Feldman's alleged incompetence as the

reason for his dismissal raised a jury issue. Incidentally, the

argument is substantially undercut by PHA's present contention

that Feldman should be reinstated at PHA instead of receiving

front pay. Because there is ample evidence to support the jury's

finding that Feldman was fired for engaging in protected

activity, we affirm the jury's determination that defendants

violated Feldman's constitutional rights.

Defendants also argue that the district court committed

reversible error by failing to conduct, on the record,

particularized fact-finding and balancing under Pickering. They

further contend that the district court inappropriately submitted

to the jury all of Feldman's statements and reports before first

determining for itself which, if any, were protected.

Defendants, however, have failed to preserve these issues for

appeal. They did not except to the court's jury instruction con-

cerning Pickering, nor did they take any pre-verdict exception to

the district court's failure to make specific factual findings on

the record.

Even if defendants had properly preserved the record,

we would still affirm. Although the district court did not

perform the Pickering balancing test in precisely the fashion
that some cases suggest is appropriate, it is apparent from the

district court's memorandum and order denying defendants' motion

for judgment notwithstanding the verdict, that it had considered

all of Feldman's speech to be constitutionally protected under
Pickering. Consequently, we see no prejudicial error in the

court's having first submitted the same issue to the jury, which

arrived at the same conclusion.

B. Front Pay Versus Reinstatement

PHA argues that the district court erred by permitting

an award of front pay instead of ordering Feldman reinstated at

PHA. The equitable remedy of reinstatement is available for

discharges that violate 42 U.S.C. § 1983, see Versarge, 984 F.2d

at 1368, and reinstatement is the preferred remedy to cover the

loss of future earnings. See Blum v. Witco Chem. Corp., 829

F.2d 367, 373-74 (3d Cir. 1987). However, reinstatement is not

the exclusive remedy, because it is not always feasible, such as

when there exists "irreparable animosity between the parties".

Id. at 374.; see also Versarge, 984 F.2d at 1368. When

reinstatement is not appropriate, front pay is the alternate

remedy. See Maxfield v. Sinclair International, 766 F.2d 788,

796 (3d Cir. 1985), cert. denied, 474 U.S. 1057 (1986). Guided

by the particular circumstances of a case, the district court has

broad discretion in determining whether reinstatement is

appropriate, and its determination is reviewed under an abuse-of-

discretion standard. See id.
Although Feldman initially requested reinstatement in

his complaint, he sought, prior to trial, to have reinstatement

excluded as a potential remedy. The district court deferred its

ruling until after both sides had presented their evidence to the

jury. Then, having heard all the evidence, the district court
held that reinstatement was not feasible, because "irreparable

distrust and animosity developed between Feldman and PHA as a

result of the events prior to his termination, the termination

itself, and the litigation that followed in its wake". The

district court also concluded that the "lawsuit irrevocably

impaired [Feldman's] ability to function as an auditor at PHA".

Consequently, the district court submitted to the jury the issue

of the amount of front pay that Feldman should be awarded.

PHA also argues that because Paone and Saidel are no

longer with PHA, the animosity is no longer present. Even on

this appeal, PHA has joined Paone and Saidel in their continuing,

albeit unsuccessful attack on Feldman's professional competence

and personal integrity. The record contains ample evidence of

the hostility that was caused by this litigation. The facts

surrounding Feldman's firing, together with defendants'

litigation strategy, are but two examples of the irreparable

animosity that resulted. We conclude that the district court did

not abuse its discretion in allowing front pay rather than

reinstatement.

During this litigation, PHA offered Feldman another

position at the agency. However, having determined that the

district court did not abuse its discretion in permitting the

alternate remedy of front pay, we need not address the effect of

Feldman's rejection of the offer.

Contrary to PHA's contention, neither Feldman nor the

court was bound by Feldman's alternative request for

reinstatement made in the wherefore clause of his complaint.
Relief is determined by the merits of the case, not by the

pleadings. Rule 54(c) of the Federal Rules of Civil Procedure

provides that "every final judgment shall grant the relief to

which the party in whose favor it is rendered is entitled, even

if the party has not demanded such relief in the party's

pleadings." Fed. R. Civ. P. 54(c).

In short, we see no reason at this late date to

overturn the district court's determination, fully supported by

the record when made, that front pay was appropriate relief in

the circumstances of this case.

C. Amount of Front Pay

PHA asserts that even if some front pay was

appropriate, the jury's award of $500,000 was excessive,

considering Feldman's age, experience, and future likelihood of

employment. While PHA's argument is cast in terms of

excessiveness, it, at times, seems to be faulting the district

court for failing to instruct the jury on mitigation of damages,

i.e., on what the jury should do if it believed Feldman would be

capable of securing other employment at some point prior to

retirement age. The district court did instruct the jury on this

point, however. Its charge was not materially different from

that requested by the defense and was not objected to by it. The

court's instruction was:
"Now, award of front pay or future
damages is used to make the plaintiff whole
for future expected losses. In calculating
such an award, you must consider the expected
future damages caused by defendants' wrongful
 conduct from the date of judgment to the date
of retirement by the plaintiff, less any
wages and benefits he might receive during
that same period of time. In other words,
future damages in this case consists of what
Mr. Feldman would have earned in wages and
benefits working at PHA, less whatever he
earns from any other employment he undertakes
from the date judgment is entered to the date
of his expected retirement.

If PHA proves that Mr. Feldman
unjustifiably failed or fails to take a new
job of like kind, status and pay which is
available to him or he fails to make
reasonable efforts to find a new job, you
must also subtract any amount he could have
earned in that new job after today."

Based on these instructions, the jury awarded to

Feldman front pay of $500,000. The jury's verdict may not be

disturbed unless the record is critically devoid of the minimal

amount of evidence upon which the jury could have reached its

verdict. See Swineford, 15 F.3d at 1265; Dutton v. Wolpoff and

Abramson, 5 F.3d 649, 653 (3rd Cir. 1993). On this record, we

think that the evidence supports the jury award.

Feldman's actuarial-economic expert testified exten-

sively on plaintiff's lost future income, making several

sophisticated calculations that produced various figures,

depending upon which criteria he applied. The $500,000 award,

however, was over $30,000 less than the lowest figure calculated

by Feldman's expert. Defendants called no expert of their own,

and they offered no evidence to controvert the testimony of

Feldman's expert.
 The jury's award, therefore, was sufficiently supported

by the evidence, and we do not think that $500,000 is so

excessive as to shock the conscience of this court. See Savarese

v. Agriss, 883 F.2d 1194, 1205 (3d Cir. 1989).

D. Punitive Damages

The jury awarded punitive damages against Paone and

Saidel, in their individual capacities, in the amount of $10,000

each. Both of them contend that their conduct here does not sink

to the level that would permit punitive damages. In addition,

Saidel argues that he should not have been found liable for

punitive damages because he did not have sufficient involvement

with Feldman's firing. We disagree with both contentions.

Punitive damages are authorized on Feldman's federal

and state law claims.

In a § 1983 action:
[A] jury may be permitted to assess punitive
damages * * * when the defendant's conduct is
shown to be motivated by evil motive or
intent, or when it involves reckless or
callous indifference to the federally
protected rights of others.

Smith v Wade, 461 U.S. 30, 56 (1983). Similarly, the

Pennsylvania Supreme Court has stated that "punitive damages may

be awarded for conduct that is outrageous, because of the

defendant's evil motive or his reckless indifference to the

rights of others." Feld v. Merriam, 506 Pa. 383, 485 A.2d 742,

747 (Pa. 1984) (internal quotations omitted).
 It is true that Paone's conduct was more culpable than

Saidel's. The record contains evidence, however, from which the

jury could reasonably have concluded that Saidel not only knew

about and acquiesced in, but also directed Paone's firing of

Feldman for engaging in his constitutionally protected speech.

Saidel and Paone worked closely together on PHA matters, and

Feldman's reports implicated both Saidel and Paone in the

mismanagement of PHA. Paone testified that before firing

Feldman, he spoke with Saidel about the matter and that Saidel

"concurred" with the decision to terminate Feldman. Paone

further testified that he and Saidel discussed the reorganization

of the Internal Audit Department, one of the pretextual reasons

initially offered for their discharge of Feldman. However, the

Internal Audit Department, with only a few minor changes,

remained the same. In response to written interrogatories,

defendants admitted that the only step taken to reorganize the

department was that the director of the Internal Audit Department

"no longer reports to the Board of Commissioners but reports to

the Executive Director".

The jury could reasonably have inferred that Paone

would not have engaged in the unlawful firing of Feldman without

first consulting with and obtaining Saidel's approval, that

Saidel thus participated in the retaliatory firing of Feldman;

that they fired him in order to conceal their own mismanagement

at PHA; and that this conduct sank to the levels of conduct that

justify imposition of punitive damages under both federal and
Pennsylvania law. We conclude that both Paone and Saidel must

pay the modest punitive damages the jury assessed against them.

We have considered defendants' remaining arguments and

find them to be similarly without merit.

CONCLUSION

The judgment of the district court is affirmed.

_______________________________________

Feldman v. Philadelphia Housing Auth.
Nos. 93-1977, 93-1978, 93-2115, 93-2129, 93-2139

GARTH, Circuit Judge, concurring in part and dissenting in part:

While I agree with the majority's conclusion that

Feldman's actions as Director of Internal Audit at the

Philadelphia Housing Authority were entitled to First Amendment

protection under Pickering, I find that the majority's failure to

identify any evidence supporting (1) the failure to reinstate

Feldman, (2) the excessive front pay award of $500,000, and (3)

the punitive damage award imposed upon Saidel requires reversal.

Thus, I would reverse and remand to the district court

with instructions that it order reinstatement of Feldman, that it

vacate the front pay award of $500,000 and that it vacate the

punitive damage award against Saidel.
 I

So that my disagreement with the majority may be

clearly understood, I fault the majority's opinion because it

does not point to any evidence in the record nor does it discuss

the relevant case law, which can support an affirmance of the

three issues I have identified. In my view, it is not sufficient

to state in a conclusory manner that there is "ample evidence" to

support the court's finding (Maj. Op, p. 17) without calling

attention to at least some evidence. Nor is it sufficient to

decide complex issues such as front pay or restitution with

little reference to the criteria established in case law and

without relating the facts of record to those criteria. Indeed,

one can search long and hard in the record for the evidence which

"fully support[s]" the district court's determination that front

pay to retirement was appropriate relief in this case. (Maj. Op.

p. 18.) But that search reveals nothing. One can look even

harder to find evidence that would support a $500,000 front pay

award to retirement for a 38-year-old professional auditor who

rejected an annual salary of $66,616 in favor of working for

$12,500 annually and who has an opportunity to reestablish

himself in the job market long prior to his retirement.

Finally, there is just no evidence to be found in the

record of outrageous, wanton or reckless conduct on the part of

Saidel. This is the standard by which punitive damages are

measured. While there is evidence in the record that supports
compensatory damages -- specifically Saidel's concurrence in the

decision to discharge Feldman, this meager fact alone does not

warrant a punitive damage award against Saidel. The majority's

decision suggests that a supervisor's concurrence in any unlawful

discharge must result in both compensatory and punitive damages,

a doctrine which Pennsylvania has yet to adopt.

In short, my quarrel with the majority is that it has

taken unwarranted liberties with the record and has glossed over

the lack of evidence in reaching its conclusions. Having set

forth the predicate for this separate opinion, I now recite in

some detail the reasons why I disagree so strongly with the

majority on the three issues I have identified: reinstatement,

excessive front pay and punitive damages.

II

In his original complaint, and in his amended

complaint, Feldman asked to be reinstated to his former position

at the housing authority. A few months before trial, PHA offered

to reinstate Feldman to a different position, but at the same

salary.

Thereafter, Feldman filed a motion asking the district

court to rule that PHA had failed to offer him a "substantially

equivalent" position and that reinstatement was not a viable

remedy as a result of continuing animosity between him and PHA.
 Immediately before closing arguments, the district

court granted Feldman's motion. Ultimately, the jury awarded

Feldman $500,000 in front pay in lieu of reinstatement. In a

post-trial motion, PHA, in addition to arguing that the front pay

award was improper and excessive, also argued that the district

court had erred in ruling that reinstatement was inappropriate.

The district court rejected PHA's arguments.

In particular, the district court reiterated its view

that reinstatement was not a feasible remedy because

"[i]rreparable distrust and animosity [had] developed between

Feldman and PHA as a result of the events prior to his

termination, the termination itself, and the litigation that

followed in its wake." Dist. Ct. Order of 9/16/93 at 3. The

district court noted that: (1) Feldman had been fired for

insubordination; (2) Feldman's ability to function as an auditor

at PHA had been irrevocably impaired by his lawsuit; and (3)

although Paone and Saidel no longer worked at PHA, "many of the

people, with whom or for whom Feldman would work if he were to

return, worked at PHA prior to his termination." Dist. Ct. Order

of 9/16/93 at 5.

In my opinion, the district court abused its discretion

when it refused to reinstate Feldman.

III
 In employment discrimination suits, there are two

alternative remedies available to compensate a claimant for

future lost earnings: reinstatement or front pay. The

determination of which remedy is appropriate is left to the

discretion of the district court judge. Blum v. Witco Chem.

Corp., 829 F.2d 367, 374 n.4 (3d Cir. 1987); Maxfield v. Sinclair

Int'l, 766 F.2d 788, 796 (3d Cir. 1985), cert. denied, 474 U.S.

1057 (1986). Only after the judge determines that reinstatement

is not feasible, and that front pay is appropriate, does the jury

calculate a front pay award. Accordingly, when we review a

district court's order to reinstate, or to deny reinstatement, we

are not reviewing a jury determination. Rather, we are reviewing

a judge's ruling. In reviewing the district court's exercise of

discretion, we consider not only the reasons proffered by the

district court for its determination, but also whether those

reasons find support in the record.

It is well settled that reinstatement is the preferred

remedy to avoid future lost earnings. Maxfield, 766 F.2d at 796;

see also James v. Sears, Roebuck & Co., 21 F.3d 989, 997 (10th

Cir. 1994); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d
668, 678 (7th Cir. 1993); Roush v. KFC Nat'l Management Co., 10

F.3d 392, 398 (6th Cir. 1993), cert. denied, 115 S. Ct. 56

(1994); Brunnemann v. Terra Int'l, Inc., 975 F.2d 175, 180 (5th

Cir. 1992); Wilson v. S & L Acquisition Co., L.P., 940 F.2d 1429,

1438 (11th Cir. 1991); Duke v. Uniroyal, Inc., 928 F.2d 1413,
1424 (4th Cir. 1991), cert. denied, 112 S. Ct. 429 (1991);

Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1346 (9th Cir.

1987), cert. denied, 484 U.S. 1047 (1988). Only when the

evidence supports a judge's decision that reinstatement is not

feasible, may he award front pay in lieu of reinstatement.

Reinstatement may not be deemed feasible (1) where the

relationship between the parties has been so damaged by animosity

as to make reinstatement impracticable, Robinson v. Southeast Pa.

Transp. Auth., 982 F.2d 892, 899 (3d Cir. 1993); Witco Chem.

Corp., 829 F.2d at 373-74; Maxfield, 766 F.2d at 796; or (2)

where no comparable position is available to which the claimant

can be reinstated. Witco Chem. Corp., 829 F.2d at 374;

Whittlesey v. Union Carbide Corp., 742 F.2d 724, 728 (2d Cir.

1984).
 A.

I believe that the record simply does not support the

district court's finding that substantial animosity had developed

between Feldman and PHA -- as opposed to the animosity that had

evolved between Feldman, on the one hand, and Paone and Saidel on

the other. Nor has the majority identified any such evidence.

Speculation that Saidel might, in the future, be re-elected to

the position of city comptroller and, in that capacity, be

permitted to appoint persons to the Board of Commissioners, which

in turn governs PHA, simply is too remote to support an award of

front pay in lieu of reinstatement and is no substitute for

evidence. Accordingly, in my opinion, the district court's

finding of fact that Feldman could not enjoy a productive working

relationship with PHA were he to be reinstated, is clearly

erroneous.

Unlike almost all cases in which reinstatement is

denied, here there is no record evidence of lingering hostility

between Feldman and any individual still working at PHA.1 While

1 See, e.g., Robinson, 982 F.2d at 899 (3d Cir. 1993)
(affirming district court's denial of reinstatement where
evidence supported finding of lingering hostilities between
plaintiff and his supervisors); Versarge v. Township of Clinton,
984 F.2d 1359 (3d Cir. 1993) (holding reinstatement inappropriate
"because of the great animosity between plaintiff and other
volunteer firefighters"); Standley v. Chilhowee R-IV Sch. Dist.,
5 F.3d 319, 322 (8th Cir. 1993) (upholding district court's
denial of plaintiffs' request for reinstatement to former
teaching positions on grounds that (1) school district and school
building were very small; (2) record was filled with testimony
regarding tense and hostile atmosphere at school between
plaintiffs, individual defendants, and other teachers; and (3)
some PHA employees testified at trial, their testimony did not

reveal any animus towards Feldman. See Bingman v. Natkins & Co.,

937 F.2d 553, 558 (10th Cir. 1991) (affirming district court's

finding that work place would not be unduly hostile where "all

persons involved in plaintiff's termination testified, and none

showed animosity toward him because of [his] lawsuit").

Most importantly, Paone and Saidel no longer work for

the Philadelphia Housing Authority. See, e.g., Rodgers, 12 F.3d

at 678 (affirming district court's award of reinstatement where

supervisor, whose racial comments had been the impetus for

Rodgers' Title VII action, no longer worked for Western-

Southern); Marshall v. TRW, Inc., 900 F.2d 1517, 1523 (10th Cir.

1990) (reversing award of front pay where two employees who made

the decision to discharge Marshall were no longer employed by

TRW); Morgan v. The Arkansas Gazetteer, 897 F.2d 945, 953 (8th

Cir. 1990) (affirming reinstatement order where any animosity was

eradicated inasmuch as employees responsible for the

friction that precipitated lawsuit would dog the school districts
if plaintiffs were returned to their positions); Tennes v.
Commonwealth of Mass. Dep't of Revenue, 944 F.2d 372, 381 (7th
Cir. 1991) (affirming denial of reinstatement where there was no
reason to believe that parties would enjoy a productive and
amicable working relationship); Spulak v. K Mart Corp., 894 F.2d
1150, 1157 (10th Cir.) (affirming award of front pay in lieu of
reinstatement where record supported Spulak's assertion that K
Mart's investigation of Spulak's alleged illegal activities "left
his employees with the impression that he was guilty of
wrongdoing, rendering him unable to function amicably and
productively in his former supervisory capacity," and where the
level of animosity between Spulak and K Mart only increased as a
result of the litigation).
discrimination no longer worked for the Arkansas Gazetteer);

Jackson v. City of Albuquerque, 890 F.2d 225, 232 (10th Cir.

1989) (reversing district court's denial of reinstatement where

"most of those making complaints against [Jackson] are no longer

employed" by the City's park department).

Although this might be a very different case were Paone

and Saidel still employed by PHA, quite clearly, they are not.

See, e.g., Grantham v. Trickey, 21 F.3d 289, 296 (8th Cir. 1994)

(concluding that unacceptable level of hostility existed and,

thus, reinstatement not feasible, inasmuch as claimant would have

to report to supervisor with whom he had "the most bitter

conflict"); Prive v. Marshall, Erdman & Assocs., Inc., 966 F.2d

320, 325 (7th Cir. 1992) (disapproving "reinstatement of a high-

level employee performing discretionary functions into the

division from which he was fired and which remains under the

management of the person who fired him"). That distinction

dictates a vastly different result from that reached by the

district court and now affirmed by the majority of this court.

In addition, between the time Feldman filed his first

complaint and the time he filed his amended complaint, HUD took

over PHA and appointed a special master to assume control of the

housing authority's daily operations. PHA, under new management,

has given every indication that it would like to see Feldman

return. Although the litigation of Feldman's claim may have

generated animosity, that animosity, as I have pointed out, was
generated by or against Paone and Saidel, and not by or against

PHA. Moreover, despite the majority's reliance upon this factor,

the existence of litigation-based hostility, without more,

generally is not sufficient to defeat reinstatement.2 (Maj. Op.

p. 17). Whether or not it might be uncomfortable for Feldman to

return to work at PHA, our jurisprudence implicitly tolerates

such discomfort as an unavoidable concomitant of our well-

established preference for reinstatement over front pay.

Concededly, the general rule is that a district court

may exercise its discretion to award front pay in lieu of

reinstatement. Its determination, however, must be well reasoned

and supported by record evidence. Here, there is not even a
2
See Grantham, 21 F.3d at 296 (holding hostility necessary to
support award of front pay "must go beyond the normal hostility
between parties to litigation"); United States E.E.O.C. v.
Century Broadcasting Corp., 957 F.2d 1446, 1462 (7th Cir. 1992)
(rejecting claim of hostility where only hostility present was
that "hostility common to litigation"); Walther v. Lone Star Gas
Co., 952 F.2d 119, 127 (5th Cir. 1992) (vacating award of front
pay where district court stated only that the litigation was
"protracted and necessarily vexing" and did not support its
finding with specific instances of discord); Goldstein v.
Manhattan Indus., Inc., 758 F.2d 1435, 1448 (11th Cir. 1985)
(affirming reinstatement of plaintiff who had argued that
litigation caused ill feelings between himself and persons who
would be his immediate superiors, but where supervisor testified
that he would be happy to have plaintiff back under same terms as
when he left); Dickerson v. Deluxe Check Printers, Inc., 703 F.2d
276, 281 (8th Cir. 1983) (holding "friction arising from the
litigation process itself is not alone sufficient to deny
employment"). Cf. Berndt v. Kaiser Alum. & Chem. Sales, Inc.,
789 F.2d 253, 261 (3d Cir. 1986) (upholding district court's
award of front pay in lieu of reinstatement where "relationship
between plaintiff and Kaiser has been so damaged by the
litigation that a continued working relationship for the four
months remaining until plaintiff will retire is not feasible").
scintilla of evidence that Feldman's working relationship with

PHA, as distinguished from his relationship with the now absent

Paone and Saidel, would be tainted by any animosity.

Unfortunately, the majority, as I have earlier indicated, has not

called our attention to any evidence supporting the district

court or its conclusion. This is not surprising as there is no

such evidence disclosed in the record.

Thus, inasmuch as the district court's determination

that reinstatement was not feasible was grounded on its

unsupported and, therefore, erroneous finding that there was

unabated hostility between Feldman and PHA, the district court's

determination was an abuse of discretion.

B.

It should not be overlooked, as I have emphasized, that

the question of whether reinstatement, in fact, is viable, is a

question for the judge and not the jury. Thus, it is the judge

who must determine whether the claimant's former position still

exists or whether it has been eliminated, whether a comparable

position is available, whether reinstatement should proceed, and

how. In the present case, not only did PHA make an offer of

reinstatement, but it conceded that, regardless of PHA's offer,

had the district court ordered reinstatement, PHA would have been

obligated to reestablish Feldman's position, and reinstate him to

it.
 Although the district court found that the position

offered by PHA to Feldman before trial was not substantially

equivalent to the one Feldman held before he was fired, the

district court did not make any explicit findings as to whether

some other substantially equivalent position existed at PHA to

which Feldman could be reinstated.3 See, e.g., Anderson v.

Phillips Petroleum Co., 861 F.2d 631, 638 (10th Cir. 1988)

(reversing award of front pay and ordering reinstatement where

company could have reinstated Anderson to a comparable position);

cf. Nelson v. Boatmen's Bancshares, Inc., 26 F.3d 796 (8th Cir.

1994) (upholding district court front pay award where district

court found that Nelson's position no longer existed and that

there was no comparable position to which he could be

reinstated). Nor did the district court make a determination

with respect to whether a position could have been created to

which Feldman could be reinstated.

PHA asserted at oral argument that Feldman could have

been reinstated to the exact same position he held before he was

fired. I grant that this somewhat belated assertion must be

accepted with a measure of skepticism inasmuch as it differs from

the position advanced by PHA before the district court. There

PHA argued that IAD had been completely reorganized and that its

3
Front pay also may be awarded in lieu of reinstatement where
no comparable position is available to which the claimant can be
reinstated. Witco Chem. Corp., 829 F.2d at 374; Whittlesey, 742
F.2d at 728 (2d Cir. 1984).
pre-trial offer to Feldman of "Chief, Procurement Audit Unit" was

the best it could do. In this connection, Feldman had claimed

before the district court that his former position, "Director of

Internal Audit," had been renamed "Manager of Internal Audit" and

that, at the time of trial, the position was filled by a former

subordinate, Edward Merenda.

I am satisfied that reinstatement still would be

feasible, and an available remedy, even though a third person

might now occupy Feldman's former position. For example, in

Reeves v. Claiborne County Bd. of Ed., 828 F.2d 1096, 1101-1102

(5th Cir. 1987), the district court refused to reinstate Reeves

to her former position because a replacement had been hired

during the course of the litigation. The Fifth Circuit reversed:
If the existence of a replacement constituted
a complete defense against reinstatement,
then reinstatement could be effectively
blocked in every case merely by hiring an
innocent third party after the retaliatory
purpose was achieved. . . . While
reinstatement may displace an innocent
employee, the "[e]nforcement of
constitutional rights [may have] disturbing
consequences. Relief is not restricted to
that which would be pleasing and free of
irritation."

Id. at 1102 (citations omitted); see also Brunnemann, 975 F.2d at

180 (affirming reinstatement order even though Brunnemann's

former position already was held by another employee where there

was no evidence of animosity or hostility between the parties).

Contra United States E.E.O.C. v. Century Broadcasting Corp., 957

F.2d 1446, 1463 (7th Cir. 1992) (holding reinstatement not
feasible where claimant's position had been filled by third

party).

I see no reason why reinstatement here could not be

ordered as it is with respect to workers who are discharged as

the result of, or who go out on strike to protest, an employer's

unfair labor practice. "Under those circumstances, the striking

employees do not lose their status [as employees] and are

entitled to reinstatement with back pay, even if replacements for

them have been made." Mastro Plastics Corp. v. NLRB, 350 U.S.

270, 278 (1956). That is, "an employer must dismiss replacement

workers if necessary to make room for the returning unfair labor

practice strikers." NLRB v. International Van Lines, 409 U.S.

48, 50-51 (1972); see, e.g., Aguayo for NLRB v. Tomco Carburetor

Co., 853 F.2d 744, 750 (9th Cir. 1988) (rejecting Tomco's

argument that reinstatement would be inappropriate because eleven

innocent workers would have to be discharged and holding that

"the rights of the employees who were discriminatorily discharged

are superior to the rights of those whom the employer hired to

take their places"). Inasmuch as Feldman was fired, essentially,

as the result of an unfair labor practice, I see no reason why

his right to reinstatement -- the relief he requested originally

and our preferred remedy -- should be subordinated to the rights

of whichever employee was hired to replace him.

In light of the unequivocal representation made by PHA

to us that, if reinstated, Feldman would have his former position
reactivated, I would remand to the district court to accept PHA's

offer and to order that Feldman be reinstated as Director of

Internal Audit or its equivalent with appropriate back pay.
 IV

Even if front pay were appropriate in the present case,

the $500,000 actually awarded to Feldman by the jury was clearly

excessive. See Williams v. Martin Marietta Alumina, Inc., 817

F.2d 1030, 1038 (3d Cir. 1987).

A.

PHA argues that Feldman should not have been granted

front pay until the age of retirement but, rather, until a point

in time at which he "would be expected to regain a position at

the level of the one he lost when his employment was terminated."

Appellant's Br. at 43.

The time period over which the jury calculated its

front pay award goes to the heart of the question of whether that

award was excessive. We have held that "[i]n selecting a cut-off

date for an equitable front pay remedy the [district] court

exercises discretion." Goss v. Exxon Office Sys. Co., 747 F.2d

885, 890 (3d Cir. 1984). Accordingly, in determining whether the

front pay amount awarded by the jury was excessive, it is proper

for us to consider whether the district court's front pay

instruction to the jury caused the jury to return with a front

pay award that was excessive.4 That instruction required that

4
PHA's requested jury instruction, which was not granted by
the district court, did not limit the end date to "retirement."
Rather, it would have instructed the jury, among other things,
that "[i]f you decide to award [front pay], front pay begins
today. It ends when James Feldman would have stopped working for
the jury calculate its front pay award "from the date of judgment

to the date of retirement by the plaintiff."

I conclude that the district court abused its

discretion in selecting a cut-off date ("retirement") which was

unreasonable in the context of this case. As a result, the jury

granted to Feldman an excessive front pay award.

B.

The purpose of front pay is to make an injured employee

whole by compensating him for future lost earnings resulting from

his wrongful termination. The future, of course, is unknown, and

we have been reluctant to award front pay where such an award

would be overly speculative. Goss, 747 F.2d at 889. Common

sense dictates that the farther into the future a front pay award

reaches, the more speculative it becomes. Consequently, "[a]

claimant's work and life expectancy are pertinent factors in

PHA (because of retirement or termination or otherwise) in the
absence of dismissal."

Despite the majority's contention to the contrary (Maj. Op.
p. 18-19), the district court did not leave it to the jury to
determine the termination date for front pay. Rather, the
district court instructed the jury to award front pay from the
date of judgment to the date of retirement. See id. at 19.
Thus, the instruction given by the district court to the jury was
fundamentally different from the instruction requested by PHA.
The PHA instruction, as noted in text, left to the jury the
appropriate cutoff date for front pay.
calculating front pay." Anastasio v. Schering Corp., 838 F.2d

701, 709 (3d Cir. 1988).

When a plaintiff's work expectancy is relatively short,

it is not overly speculative and, therefore, appropriate to award

front pay "to retirement." Duke v. Uniroyal, Inc., 928 F.2d

1413, 1424 (4th Cir. 1991) ("If a plaintiff is close to

retirement, front pay may be the only practical approach.").

Thus, in ADEA cases, front pay often is awarded from the date of

discharge to the date of retirement based on the assumption that,

in many instances, ADEA claimants will not work long enough to

reestablish themselves in the marketplace. See, e.g., Witco

Chem. Corp., 829 F.2d at 374-76 (awarding "front pay-to-

retirement" where plaintiffs were all within eight years of

normal retirement age when terminated and, therefore, it was not

overly speculative to assume that the plaintiffs would have

finished their working careers working for Witco).

This is not to say, however, that all front pay awards

should be calculated to the plaintiff's date of retirement. In

fact, not even all ADEA claimant's are entitled to "front pay-to-

retirement." See Anastasio, 838 F.2d at 709 ("The purpose of
front pay under the ADEA is to ensure that a person who has been

discriminated against on the basis of age is made whole, not to

guarantee every claimant who cannot mitigate damages by finding

comparable work an annuity to age 70."); Davis v. Combustion

Eng'g, Inc., 742 F.2d 916, 923 (6th Cir. 1984) (noting that an
award of front pay to 41-year old until normal retirement age

might be unwarranted while failure to make such an award to 63-

year old might be an abuse of discretion).5

In those cases in which the plaintiff is not close to

retirement age, the expectation that he will continue working

tempers the need for "front pay-to-retirement," the award of

which might constitute a "windfall" for the plaintiff. Standley

v. Chilhowee R-IV School District, 5 F.3d 319, 322 (8th Cir.

1993). In such cases, one can only speculate "how long the

plaintiff actually would have remained working at the job,

whether the plaintiff soon would have left for a different,

perhaps better-paying, job, or whether the plaintiff soon would

have been dismissed for legitimate reasons." Id. Consequently,

the general rule in such cases is that front pay may only be

awarded "for a reasonable future period required for the victim

to reestablish her rightful place in the job market." Goss, 747

F.2d at 889; see also Cassino v. Reichhold Chems., Inc., 817 F.2d

5
It is not surprising that relevant caselaw reveals that
"front pay-to-retirement" only has been awarded where the
plaintiff is close to retirement age. See, e.g., Boehm v.
American Broadcasting Co., Inc., 929 F.2d 482, 488 (9th Cir.
1991) (awarding six years "front pay-to-retirement" where
district court found that Boehm would not be able to obtain a
position equivalent to his former job); Witco Chem. Corp., 829
F.2d at 373-74 (awarding "front pay-to-retirement" where
plaintiffs were within eight years of retirement); Davis, 742
F.2d at 923 (approving jury's $88,000 front pay award, based on
district court's finding that Davis was 59 years old and facing
mandatory retirement in six years).
at 1347 (9th Cir. 1987) (stating that front pay is intended to be

temporary in nature).

Just as it is a plaintiff's duty to mitigate his

damages prior to trial, see Ford Motor Co. v. EEOC, 458 U.S. 219,

232 (1981), cert. denied, 454 U.S. 1030 (1981), it is expected

that he will continue to mitigate his damages into the future.

Maxfield, 766 F.2d at 796 (recognizing that plaintiff's duty to

mitigate serves as a control on front pay damage awards);

Whittlesey, 742 F.2d at 728 (noting that award of front pay "does

not contemplate that a plaintiff will sit idly by and be

compensated for doing nothing").

The Second Circuit explained this concept of "future

mitigation" in Dominic v. Consolidated Edison Co., 822 F.2d 1249

(2d Cir. 1987), a case in which the Court of Appeals upheld a

district court's decision to reduce an ADEA claimant's front pay

award:
Had Con Edison proved that Dominic failed to
mitigate damages -- for example, by refusing
a substantially equivalent job -- Dominic's
back-pay award would have been cut off or
reduced at the time of his failure to
mitigate and any front-pay award would have
been foreclosed. See Ford Motor Co. v. EEOC,
458 U.S. 219, 233-34 (1982). However, Con
Edison's failure to show that Dominic had not
mitigated damages does not entitle him to a
lifetime front-pay award. In calculating the
size of a front-pay award the court must
estimate the plaintiff's ability to mitigate
damages in the future.
Id. at 1258 (affirming district court's award of two years front

pay) (emphasis added). It follows that a plaintiff may only

receive front pay for that period of time reasonably necessary

for him to mitigate his losses. See Cassino, 817 F.2d at 1347

(reversing front pay award where jury, "without instruction on

mitigation, found that Cassino was entitled to front pay from the

time of trial until the time he would have retired"); Fitzgerald

v. Sirloin Stockade, Inc., 624 F.2d 945, 956 (10th Cir. 1980)

(awarding front pay for five years to reflect amount of time

necessary for plaintiff to reach the current salary of the

position from which he was fired).

Simply stated, the longer a plaintiff is expected to

work, the more likely it becomes that he will have sufficient

opportunity to mitigate his damages. Given this likelihood of

mitigation, the longer the period upon which a front pay award is

based, the more likely that the award will be overly speculative.

C.

In the present case, Feldman was fired from an auditing

position at which he was earning $66,616 per year. Prior to

trial, HUD, which had taken over PHA, offered to reinstate

Feldman to an auditing position, at his old salary. Feldman

refused the offer. Six months after his discharge, Feldman had

accepted a non-salaried "sales-like" position with the Individual

Financial Services Division of the CIGNA Corporation -- a
position unrelated to auditing -- which paid Feldman $12,500 a

year.

I agree that PHA's actions caused Feldman significant

harm. Feldman testified that his firing had an emotional effect

on his family life. The jury awarded him $50,000 to compensate

him for his mental and emotional distress.

Front pay, however, is not intended as damages for

mental distress. Rather, front pay is designed to reimburse a

claimant for his future lost earnings. I do not believe that,

under the circumstances, it was reasonable for Feldman to refuse

a job similar (though not identical) to the one from which he was

fired -- a job that would have paid him $66,616 a year -- when he

was earning only $12,500 in a field unrelated to the one for

which he was trained. Rather, I am convinced that, had Feldman

acted reasonably, he would not have suffered a future loss of the

magnitude that is reflected in the jury's outrageous $500,000

front pay award.

Furthermore, I would conclude that the $500,000 front

pay award was excessive, even if I were persuaded that Feldman,

in fact, was justified in turning down HUD's reinstatement offer.

At the time of trial, Feldman was thirty-eight years old. By all

accounts, he is a highly trained professional. He has been in

the work force for fewer than twenty years. He will be part of

the work force, one can expect, for, at least, another twenty-

seven years. In light of these uncontroverted facts, there can
be no justification for, just as there is no legitimate evidence

supporting, the $500,000 front pay award, calculated to Feldman's

retirement age of 65.

Under these circumstances, to have permitted the jury

to consider a front pay award to retirement was an abuse of

discretion on the part of the district court. While we have

never said so explicitly, I believe that it was the district

court's responsibility to determine, and then to instruct the

jury as to, a finite period over which the jury should have

calculated its front pay award. At worst, the district court

should have instructed the jury to award front pay "for a

reasonable future period required for [Feldman] to reestablish

[his] rightful place in the job market." Goss, 747 F.2d at 889.

Whichever is the correct approach, clearly the district court

abused its discretion when it directed the jury to calculate

Feldman's front pay award to retirement.

I conclude that the jury's highly speculative front pay

award -- $500,000 -- given the circumstances, was so "grossly

excessive as to shock the judicial conscience." Williams, 817

F.2d at 1038. I would direct that the front pay award be

vacated.

VI

Saidel argues that the jury's verdict against him on

both his compensatory and punitive liability must be reversed for
lack of sufficient evidence. While I agree with the majority

that the record could be read to support the jury's finding with

respect to Saidel's compensatory liability, I do not believe that

there was sufficient evidence to satisfy the stricter standard

which must be met in order for a jury to award punitive damages.

Punitive damages may be awarded in § 1983 actions "for

conduct that is outrageous, because of the defendant's evil

motive or his reckless indifference to the rights of others."

Smith v. Wade, 461 U.S. 30, 46-47 (1983), quoting Restatement

(Second) of Torts § 908(2). See also Savarese v. Agriss, 883

F.2d 1194, 1204 (3d Cir. 1989). Pennsylvania has adopted the

same standard for awarding punitive damages. See Chuy v.

Philadelphia Eagles Football Club, 595 F.2d 1265, 1277 (3d Cir.

1979) (in banc); Rizzo v. Haines, 555 A.2d 58, 69 (Pa. 1989).

I find nothing in the record which suggests that

Saidel's single action of "concurring" in Paone's decision to

terminate Feldman's employment was so "outrageous" as to merit

the imposition of punitive liability. Nor has the majority

directed our attention to any such evidence of that nature.

There is just no evidence in the record that Saidel's action

exhibited a reckless or callous disregard of, or indifference to,

Feldman's rights. Nor is there any evidence that Saidel's

conduct was outrageous. See Tunis Brothers Co. v. Ford Motor
Co., 952 F.2d 715, 739-40 (3d Cir. 1991).
 Concededly, the record suggests that Saidel was made

aware of Feldman's IAD reports. There also is record evidence

that Paone conferred with Saidel before firing Feldman, just as

there is record evidence that Saidel concurred in Paone's

decision to fire Feldman.6

6
Saidel testified at his deposition as follows:

Q: When you had the conversation with Mr.
Paone regarding Mr. Feldman's firing did Mr.
Paone ever say to you that he wanted Feldman
fired for giving information to the HUD
inspector general?

A: If I'm not mistaken he mentioned to me
that one of the things he felt was a problem
was that . . . Mr. Feldman did not follow the
chain of command.

App. VI at 1306. At trial, Saidel testified as follows:
Q: Do you recall discussing Mr. Feldman's
firing with Mr. Paone before he was fired?

A: I didn't discuss it with Mr. Paone. Mr.
Paone told me that he was contemplating
dismissing Mr. Feldman.

App. VIII at 2238. Paone testified as follows:
A: . . . I discussed the situation with Mr.
Saidel based on the meeting that I had with
Mr. Feldman and I told Mr. Saidel that I
wanted to terminate Mr. Feldman, asked his
concurrence, he concurred.

Q: Did you actually terminate him that week?

A: No. I terminated him two weeks later, May
3d.

Q: And what was the reason for the delay?
 Discharging an employee, however, can be a neutral,

non-discriminatory action. Here, there is no direct evidence

that Saidel had knowledge of Paone's discriminatory motive in

firing Feldman. Nor is there any direct evidence that Saidel

concurred in Paone's decision because of his own personal

discriminatory motive.

In Keenan v. City of Philadelphia, 983 F.2d 459 (3d

Cir. 1992), we vacated the punitive damages awarded against

Philadelphia's Police Commissioner even though we upheld the

compensatory damages imposed against him. We held that even

though Police Commissioner Tucker "had been fully aware of the

actions of his subordinate command personnel in this particular

case," this fact alone could not justify the imposition of

punitive damages against him. Id. at 471.

This case is much the same as Keenan and highlights the

rule that "despite its utility as a deterrent, the punitive

damage remedy must be reserved . . . for cases in which the

defendant's conduct amounts to something more than a bare

A: Well there's a number of reasons. We
spent a day in Richmond, when I came back I
talked to both Rich Brown who is the Director
of Human Resources and Mr. Saidel again. Mr.
Saidel had a concern that [objection omitted]
. . . Mr. Saidel's concern was that there
would be a perception because of Mr.
Feldman's position in terminating an Internal
Auditor that we should touch base with
relevant Federal officials first.

App. VII at 1625-27.
violation justifying compensatory damages or injunctive relief."

Cochetto v. Desmond, 572 F.2d 102, 106 (3d Cir. 1978). See also

Savarese, 883 F.2d at 1205 (3d Cir. 1989) (noting that "punitive

damages in general represent a limited remedy, to be reserved for

special circumstances").

Here, where there is only minimal evidence supporting

Saidel's liability for compensatory damages, and no evidence

which would tend to show that Saidel's actions were in any way

"outrageous," I believe that the imposition of punitive damages

against Saidel was inappropriate and should be vacated.

VI

In sum, I would reverse and remand to the district

court with instructions that it order the reinstatement of

Feldman at the same salary to the same position or an equivalent

position to the one he previously held at PHA. I would vacate

the front pay award of $500,000 as inappropriate upon Feldman's

reinstatement and alternatively as excessive under the

circumstances of this case. Finally, I would vacate the $10,000

award of punitive damages against Saidel.

I respectfully dissent from so much of the majority's

opinion as holds otherwise.
f