dissenting in part:
While I have serious doubt that Smith presented sufficient evidence to support the jury’s verdict (the majority opinion re*1444fers to it as “thin and circumstantial”), I agree with the majority that the district court did not err in its instructions. I dissent, however, from the majority’s holding that the district court acted properly in awarding “front pay” to Smith. Consistent with Judge Seth’s dissent in Blim v. Western Elect. Co., Inc., 731 F.2d 1473 (10th Cir.1984) and my dissent in part in E.E.O.C. v. Prudential Federal Savings and Loan Ass’n, 763 F.2d 1166 (10th Cir.1985), I adhere to the view that the provisions of the ADEA do not justify the awarding of “front pay” under the facts of this case.
In Blim, supra, the jury found that the plaintiffs had not been repromoted because of their employer-defendant’s willful violation of the ADEA. The trial court awarded each plaintiff “front pay” from the date of judgment to the date of their respective projected dates of retirement. The majority there observed: “[T]he amount equaled the difference between the salary being received at the time the judgment was entered and what each plaintiff would have made until the assumed retirement dates had they been repromoted.” 731 F.2d at 1478. The Blim majority set the front pay award aside, however, simply because each of the plaintiffs could have been reinstated in the repromoted positions.
Then Chief Judge Seth, in a partial dissent, pertinently observed regarding the awarding of “front pay:”
It must be recognized that the equitable jurisdiction of a federal court should be flexibly and broadly construed to afford complete relief in light of the statutory purposes____ However, such equitable powers cannot be used to expand or override the limited legal remedies available under the ADEA. The Congress very clearly distinguishes between the legal and equitable remedies available under the ADEA____ Allowing front pay runs against the intent of Congress in limiting legal remedies to “unpaid wages and unpaid overtime compensation.” The court should not use its equitable powers to frustrate the intent of the statute____
The legal remedies under the ADEA consist of “unpaid minimum wages and unpaid overtime compensation,” thus “items of pecuniary or economic loss such as wages, fringe, and other job-related benefits.” H.R.Rep. No. 950, 95th Cong., 2d Sess., reprinted in [1978] U.S. Code Cong. & Ad.News 504, 535.
Liquidated damages may be recovered when the violation is willful. Liquidated damages are designed to compensate the plaintiff for non-pecuniary losses or highly speculative pecuniary losses. Liquidated damages are a significant factor in this analysis of damages.
The front pay damages are too uncertain to be considered “lost wages” or “lost earned benefits.” The possibilities of promotions, legitimate demotions, terminations, or death inject too many unknowns. In these circumstances the award of front pay is too speculative to be considered pecuniary damages under the statute.
731 F.2d at 1481 (citations omitted).
In E.E.O.C. v. Prudential Federal Sav. and Loan Ass’n, supra, we upheld the trial court’s award of $17,000 as “lost retirement and pension benefits accruing through normal retirement, in lieu of reinstatement” in the same sense that we would there have upheld an award of “front pay,” i.e., as an award of future damages in lieu of reinstatement furthering the remedial purposes of the ADEA. 763 F.2d at 1172, 1173. In addition, while we remanded on the issue of willfulness, we allowed the front pay award to stand. Thus, it is clear that the “front pay” or future damage award was treated as distinct from a liquidated damage award. This, I submit, is a double-barrel approach which finds no justification in the Act.
I believe the dissents in Blim and EEOC v. Prudential Federal stand for the proposition that “front pay” is a legal remedy which Congress intended to be awarded, if at all, under the liquidated damage clause of section 626(b) of the ADEA. “Front pay” is not to be awarded in lieu of the equitable remedies of reinstatement or pro*1445motion provided under section 626(b); rather, front pay is a liquidated damage intended to compensate the aggrieved party for losses “too obscure and difficult of proof for estimate other than by liquidated damages,” Overnight Motor Transp. v. Missel, 316 U.S. 572, 583-84, 62 S.Ct. 1216, 1222-23, 86 L.Ed. 1682 (1942), which under section 626(b) requires a willful violation of the ADEA. Therefore, in the case at bar, front pay may not be awarded because the majority specifically holds that Consolidated Mutual’s violation of the ADEA was not willful.
Section 626(b) of the ADEA provides in relevant part:
The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in [enumerated sections of the Fair Labor Standards Act (FLSA)]____ Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of [the FLSA]: Provided, That liquidated damages shall be payable only in cases of willful violations of this chapter. In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section.
29 U.S.C. § 626(b) (emphasis added).
In Lorillard v. Pons, 434 U.S. 575, 583 n. 11, 98 S.Ct. 866, 871 n. 11, 55 L.Ed.2d 40 (1977) the Supreme Court held that the ADEA created legal rights triggering the right to a jury trial under the Seventh Amendment. In reaching this conclusion, the Court distinguished the legal and equitable remedies available under section 626(b) of the ADEA on the basis of whether the remedy involved money damages:
Section 7(b), 29 U.S.C. § 626(b), does not specify which of the listed categories of relief are legal and which are equitable. However, since it is clear that judgments compelling “employment, reinstatement or promotion” are equitable, see 5 J. Moore, Federal Practice ¶ 38.21 (1977), Congress must have meant the phrase “legal relief” to refer to judgments “enforcing ... liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation.”
The court went on to distinguish the remedies available under the ADEA from those available under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., clearly implying that contrary to Title VII, the award of backpay under the ADEA is a legal, not an equitable remedy: “Similarly, the ADEA incorporates the FLSA provision that employers ‘shall be liable’ for amounts deemed unpaid minimum wages or overtime compensation, while under Title VII, the availability of backpay is a matter of equitable discretion____” Id. at 584, 98 S.Ct. at 872 (citation omitted).
Relying on the Supreme Court’s reasoning in Lorillard v. Pons, draftsmen of House Conference Report No. 95-950 reasoned:
The Supreme Court recently ruled that a plaintiff is entitled to a jury trial in ADEA actions for lost wages, but it did not decide whether there is a right to jury trial on a claim for liquidated damages____ Because liquidated damages are in the nature of legal relief, it is manifest that a party is entitled to have the factual issues underlying such a claim decided by a jury____ [A]n award of liquidated damages under the FLSA is not a penalty but rather is available in order to provide full compensatory relief for losses that are ‘too obscure and difficult of proof for estimate other than by liquidated damages____’
H.R.Conf.Rep. No. 950, 95th Cong., 2d Sess. 13-14, reprinted in 1978 U.S.Code Cong. & Ad.News 504, 528, 535 (citations omitted and emphasis added).
*1446I conclude from Lorillard v. Pons, supra, and the House Conference Report, supra, that Congress in enacting the remedial provisions of the ADEA distinguished monetary relief from nonmonetary relief identifying them as legal or equitable remedies, respectively. As the court in Dickerson v. Deluxe Check Printers, Inc., 703 F.2d 276, 280 (8th Cir.1983) stated after reviewing the House Conference Report: “As these statements indicate, liquidated damages are not intended to take the place of equitable relief.” Conversely, I do not think a court’s equitable powers are intended to replace the legal remedies, including liquidated damages, provided under the statute.
It is well established that the award of future damages is a legal remedy. It is also well known that future damages are speculative and difficult to ascertain. In EEOC v. Prudential Federal, we characterized the “front pay” remedy as future damages. As such, the “front pay remedy” is properly a liquidated damage under section 626(b) of the ADEA. Therefore, I maintain that “front pay” may only be awarded, if at all, under the ADEA as a liquidated damage upon a showing that plaintiff’s employer willfully violated the ADEA. In the case at bar, the award of “front pay” is unjustified and beyond the court’s jurisdiction under the ADEA where no willful violation was found and in fact the plaintiff has prevailed on razor-thin evidence.