Greene v. Safeway Stores, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 28 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
FOR THE TENTH CIRCUIT

ROBERT D. GREENE,

Plaintiff - Appellee and
Cross-Appellant,
Nos. 99-1215 & 99-1228
v.

SAFEWAY STORES, INC.,

Defendant - Appellant and
Cross-Appellee.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 94-N-691)

Gregory A. Eurich, Holland & Hart LLP, Denver, Colorado (Marcy G. Glenn and
Megan C. Bertron of Holland & Hart LLP, Denver, Colorado with him on the
brief), for Defendant-Appellant and Cross-Appellee.

Thomas L. Roberts, Roberts & Zboyan, P.C., Denver, Colorado (JoAnne M.
Zboyan of Roberts & Zboyan, P.C., Denver, Colorado; W. Randolph Barnhart,
and Angela L. Ekker of Branney, Hillyard & Barnhart, Englewood, Colorado with
him on the brief), for Plaintiff-Appellee and Cross-Appellant.
 Before BRISCOE , McWILLIAMS , and ALARCÓN , * Circuit Judges.

_________________________

ALARCÓN , Circuit Judge.

_________________________

Safeway Stores, Inc. (“Safeway”), appeals from the July 1997 judgment

entered following a jury’s verdict in favor of Robert Greene (“Greene”), a former

Safeway employee. The jury found that Safeway engaged in willful

discrimination in violation of the Age Discrimination in Employment Act, 29

U.S.C. § 621 et seq. (“ADEA”), and awarded Greene $6.7 million in damages.

The first trial in this matter commenced on February 13, 1995. The district

court granted Safeway’s motion for judgment as a matter of law at the close of

Greene’s case-in-chief. On October 15, 1996, a panel of this court reversed and

remanded the case for a new trial. This court held that the evidence presented

was legally sufficient to support an inference of age discrimination. See Greene

v. Safeway Stores, Inc. , 98 F.3d 554, 564 (10th Cir. 1996) [“ Greene I ”]. The

retrial of the action began on June 2, 1997 [“ Greene II ”]. The district court

denied Safeway’s motions for judgment as a matter of law at the close of

Greene’s case-in-chief, at the close of all evidence, and after the jury found in

favor of Greene.

*
The Honorable Arthur L. Alarcón, Senior United States Circuit Judge
for the Ninth Circuit, sitting by designation.

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 Safeway appeals the denial of its motions for judgment as a matter of law.

Because the evidence presented at the second trial was not substantially different

from that presented at the first trial, we affirm. Safeway also appeals from the

judgment awarding Greene $4.4 million for unrealized stock option appreciation.

We conclude that the unrealized appreciation was compensable under the ADEA.

In his cross-appeal, Greene appeals from the district court’s decision that

the $4.4 million in unrealized stock option appreciation was not subject to

doubling under the ADEA’s provision for liquidated damages. We reject this

contention and hold that the unrealized stock option appreciation was not an

amount owing at the time of trial. We also uphold the district court’s decision to

deny prejudgment interest because an award of liquidated damages precludes an

award of prejudgment interest.

I

Greene was born November 7, 1940. He went to work for Safeway as a

courtesy clerk in 1957. In 1961, he became a produce manager at a Safeway store

in Denver, Colorado. He became a store manager in 1966. Ten years later, he

became a retail operations manager in Little Rock, Arkansas. Two years later, he

returned to Denver as a retail operations manager. Five years later, Greene

became a marketing operations manager in Houston. In 1986, Greene was

appointed to the post of manager of Safeway’s Denver Division.

On June 10, 1993, Greene was summoned to a meeting with Safeway’s

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president, Steven Burd, and Safeway’s executive vice president, Kenneth Oder.

Burd fired Greene at that meeting. Greene was then 52. A document introduced

at trial entitled “Senior Executive Supplemental Benefit Plan” showed that

Greene’s interest in Safeway’s supplemental executive pension plan would have

vested a little over two years later, when he turned 55. Greene testified at the

Greene II trial that Burd said that he was “assembling his new team and

unfortunately, he didn’t have a place for me on his team.” Burd testified that he

told Greene at the meeting that “he didn’t fit in with the new management style.”

Greene testified that Burd told him at the meeting that Safeway would “give [him]

the chance to resign if [he thought] that would be better.”

The specific reasons Burd gave for firing Greene were that Greene was a

poor merchandiser, that sales had flattened or declined at established stores in the

Denver Division, that Greene was pessimistic about competition with another

supermarket chain in Denver, and that Greene was intimidating to the employees

he supervised. Burd, Oder, and Bob Kinnie, who had been Greene’s direct

supervisor, each testified at trial that he had not mentioned these concerns to

Greene prior to his termination on June 10, 1993. Also in evidence at trial were

three internal memoranda that praised Greene’s work and the performance of the

Denver Division. The memoranda were dated November 5, 1992, February 8,

1993, and April 6, 1993.

John King, a marketing operations manager from Safeway's Seattle

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Division, replaced Greene as Denver Division Manager. King was 57 at the time.

Denita Renfrew, a Denver Division employee, testified that King “seemed

shocked” by his appointment to the position of Denver Division Manager.

Renfrew testified that King said “he was very happy living in Seattle,” that “he

said he wanted to retire in Seattle,” and that he indicated that he expected to be

with the Denver Division for “a short period.” King has remained with the

Denver Division throughout the pendency of this litigation.

Greene elicited testimony and introduced documents showing that eight

other executives left Safeway in the months leading up to and following Greene’s

termination. All eight men were in their fifties or sixties. Younger people

succeeded all eight men.

Greene originally filed this action on March 24, 1994. The case proceeded

to trial for the first time on February 13, 1995. At the close of Greene's

case-in-chief, Safeway moved for judgment as a matter of law on Greene’s ADEA

claim. The district court granted Safeway's motion. This court reversed and

remanded for a new trial. This appeal arises out of the judgment entered

following the second trial in this matter. Safeway filed a timely notice of appeal.

This court has jurisdiction pursuant to 28 U.S.C. § 1291.

II

Safeway contends the district court erred in denying its motions for

judgment as a matter of law. This court reviews de novo a denial of a motion for

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judgment as a matter of law. See Townsend v. Daniel, Mann, Johnson &

Mendenhall , 196 F.3d 1140, 1144 (10th Cir. 1999). The district court reasoned

that judgment as a matter of law was unwarranted because, “[a]s a matter of logic

and law of the case, the appellate court decision means, at a minimum, that,

unless the plaintiff’s second presentation fell short of the presentation at the first

trial, plaintiff’s case should get to the jury.”

"The law of the case 'doctrine posits that when a court decides upon a rule

of law, that decision should continue to govern the same issues in subsequent

stages in the same case.'" United States v. Alvarez , 142 F.3d 1243, 1247 (10th

Cir. 1998) (quoting United States v. Monsisvais , 946 F.2d 114, 115 (10th Cir.

1991) (quoting Arizona v. California , 460 U.S. 605, 618 (1983))). “Accordingly,

‘when a case is appealed and remanded, the decision of the appellate court

establishes the law of the case and ordinarily will be followed by both the trial

court on remand and the appellate court in any subsequent appeal.’" Id. (quoting

Rohrbaugh v. Celotex Corp. , 53 F.3d 1181, 1183 (10th Cir. 1995)). “This

doctrine is ‘based on sound public policy that litigation should come to an end

and is designed to bring about a quick resolution of disputes by preventing

continued re-argument of issues already decided.’" Id. (quoting Gage v. General

Motors Corp. , 796 F.2d 345, 349 (10th Cir. 1986) (citations omitted)). The rule

"also serves the purposes of discouraging panel shopping at the court of appeals

level." Monsisvais , 946 F.2d at 116.

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 This court has recognized, however, that the law of the case doctrine is not

an “inexorable command." Alvarez , 142 F.3d at 1247 (quoting White v. Murtha ,

377 F.2d 428, 431 (5th Cir. 1967)). This court “will depart from the law of the

case doctrine in three exceptionally narrow circumstances:

(1) when the evidence in a subsequent trial is substantially different;

(2) when controlling authority has subsequently made a contrary
decision of the law applicable to such issues; or

(3) when the decision was clearly erroneous and would work a
manifest injustice.”

See Alvarez , 142 F.3d at 1247 (citing Monsisvais , 946 F.2d at 117).

Here, Safeway argues that the evidence presented in Greene II was

substantially different from that presented in Greene I . We are persuaded from

our close examination of the record in Greene II that the same evidence was

presented in Greene II that led this court to conclude in Greene I that the evidence

was legally sufficient to support an inference of age discrimination.

Safeway first points to differences in witness testimony to support its

argument that substantially different evidence was presented in Greene II .

Safeway notes that Renfrew testified in Greene I that King, Greene’s replacement,

seemed “surprised” and planned to be around only for “a couple of years” and that

she testified in Greene II that King seemed “shocked” and planned to be around

only for “a short period.” Safeway also notes that Greene testified in Greene I

that Burd told him he did not fit in with the “new culture” and that there was no

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place for him on the “new team” and that Greene testified only to the “new team”

statement in Greene II . These are empty distinctions.

Safeway also makes much of the fact that the testimony of John Etchison

corroborated Renfrew’s recollection of King’s reaction in Greene I but that his

testimony did not corroborate hers in Greene II . In the opinion in Greene I ,

however, this court discussed Renfrew’s testimony without mentioning Etchison’s

corroborating testimony. See Greene, 98 F.3d at 561-62. In sum, we conclude

that the differences to which Safeway points are immaterial and insufficient to

warrant a departure from the law of the case doctrine.

Contrary to Safeway’s contention, the fact that Safeway had a chance to

present its side of the story in Greene II does not make the evidence substantially

different from that presented at the first trial. The rebuttal evidence Safeway

introduced in Greene II is irrelevant to the question whether the evidence

presented in Greene I continued to be legally sufficient to support a verdict for

Greene in Greene II . See Townsend , 196 F.3d at 1144 (stating that, in reviewing

the denial of a motion of judgment as a matter of law, this court “may not weigh

the evidence, pass on the credibility of witnesses, or substitute our judgment for

that of the jury”).

In Greene I , this court held that the evidence Greene presented was legally

sufficient to support a finding of discrimination. Nothing has changed. We

therefore affirm the denial of Safeway’s motions for judgment as a matter of law

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in Greene II .

III

Safeway contends that the $4.4 million award of unrealized stock option

appreciation must be vacated because such damages are not recoverable under the

ADEA. In his cross-appeal, Greene contends that the district court should have

doubled the $4.4 million award pursuant to the ADEA’s liquidated damages

provision. This court reviews the amount of damages awarded for clear error and

determinations of law de novo. See Dill v. City of Edmond , 155 F.3d 1193, 1208-

09 (10th Cir. 1998).

The jury awarded Greene a total of $6.7 million, which encompassed three

categories of damages: (1) $600,000 for loss of salary, bonuses, and health

insurance benefits; (2) $1.7 million for loss of retirement plan benefits; and (3)

$4.4 million for unrealized stock option appreciation. On Greene’s motion to

alter or amend the judgment, the district court awarded an additional $810,786

under the ADEA’s provision for liquidated damages. This amount was equal to

the amount the jury awarded Greene for salary, bonuses, and employee and

retirement benefits that Greene would have received before the June 1997 trial but

for his termination. The district court declined, however, to double the $4.4

million awarded for unrealized stock option appreciation.

A

Safeway concedes in its brief that it first raised the argument that

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unrealized stock option appreciation is not compensable under the ADEA in a

post-trial motion. Greene argues that we should find the argument to have been

waived. The district court, however, fully analyzed and responded to Safeway’s

argument in its order disposing of the post-trial motions of both parties.

Moreover, the issue presented is one of law. We will therefore exercise our

discretion to consider this argument. See Sussman v. Patterson , 108 F.3d 1206,

1210 (10th Cir. 1997) (noting that the “the general waiver rule is not absolute . . .

and we may depart from it in our discretion” (quotations omitted)).

A stock option gives the option holder the right to buy a share of stock at a

fixed “exercise price,” typically the market price on the date the options are

granted. See Susan J. Stabile, Motivating Executives: Does Performance-Based

Compensation Positively Affect Managerial Performance? , 2 U. Pa. J. Lab. &

Employment L. 227, 235 (1999). The value of an option is inherently fluid

because it equals the difference in the exercise price and the market price. See id.

The conferring of options on an executive creates an incentive for the executive

to work hard to increase the market price of the employer’s stock because that

increases the value of the executive’s stock options. See id. at 229-30. Stock

options are an increasingly common form of executive compensation. See id. at

227-28. Options are often conferred in the place of more traditional forms of

compensation like salary and require the executive to assume considerable risk.

See id. Stock options are sometimes referred to as “contingent compensation.”

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See id. at 229-30.

At the time of his termination, Greene had 250,000 fully vested Safeway

stock options. The exercise price was $1 per share. He also had roughly 250,000

more options that had not yet vested. The subscription agreement required

Greene to exercise his vested options within ninety-five days of his October 15,

1993, separation from Safeway. Had he not exercised the vested options within

ninety-five days, they would have expired. He exercised all of his vested options

on December 21, 1993. He acquired Safeway stock with a market value in excess

of $3,000,000. His gain on the transaction, on paper, was roughly $2,160,000.

He immediately incurred a tax liability of roughly $850,000. See Commissioner

v. LoBue , 351 U.S. 243, 248-49 (1956) (holding that gain realized on the exercise

of incentive stock options is taxable income and that the gain is measured by the

difference in the option price and the market value of the shares at the time the

options were exercised, not at the time the options were granted).

Greene testified that, had he not been terminated, he would have refrained

from exercising his stock options until shortly after November 7, 1995, the date

he planned to retire upon reaching the age of 55. Greene testified that he sold all

the shares he acquired within a few months of exercising his options because he

needed cash to pay the Internal Revenue Service and because he was without

income to cover his daily living expenses.

Leslie Patten, an accountant who was Greene’s expert witness on damages,

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testified that, had Greene exercised his vested options on January 31, 1996,

instead of December 21, 1993, he would have reaped the benefit of increases in

the market price of Safeway stock for an incremental gain in excess of

$3,000,000. Patten also testified that, had Greene retired from Safeway in

November 1995 as he planned, the options that had not yet vested at the time of

Greene’s termination would have vested and could have been exercised to

purchase additional Safeway stock for a gain of more than $1,000,000.

The ADEA includes a broad remedial provision:

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). Deterrence and providing compensation for

injuries caused by illegal discrimination are goals of the ADEA. See Dalal v.

Alliant Techsystems, Inc. , 182 F.3d 757, 760-61 (10th Cir. 1999) (citing

McKennon v. Nashville Banner Publ’g Co. , 513 U.S. 352, 358 (1995)). "The

purpose of the . . . remedies under the ADEA is to make a plaintiff whole--to put

the plaintiff, as nearly as possible, into the position he or she would have been in

absent the discriminatory conduct." Sandlin v. Corporate Interiors, Inc. , 972 F.2d

1212, 1215 (10th Cir. 1992); see also Anderson v. Phillips Petroleum Co. , 861

F.2d 631, 637 (10th Cir. 1988) (noting that making an ADEA plaintiff “whole”

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means “returning him as nearly as possible to the economic situation he would

have enjoyed but for the defendant’s illegal conduct”); Blim v. Western Elec. Co. ,

731 F.2d 1473, 1480 (10th Cir. 1984) (holding that “fringe benefits” such as a

company savings plan and eligibility for social security benefits “are proper

damages under the ADEA”).

An “Employment Agreement” dated February 15, 1988, provides that

Safeway (1) agreed to employ Greene at his specified base rate of pay of

$105,000 and (2) “further agreed to provide certain investment opportunities to

Employee pursuant to a Subscription Agreement and the Stock Option Agreement

referred to therein.” Greene’s stock options were a component of his

compensation package. When Safeway terminated Greene’s employment, it

forced him to exercise his stock options sooner than he had planned to do so. The

difference in the value of the options at the time Greene was forced to exercise

them, and their value when he otherwise would have exercised them, is contingent

compensation Greene would have received but for his termination. Failure to

compensate Greene for his unrealized stock option appreciation would be a failure

to “return[] him as nearly as possible to the economic situation he would have

enjoyed but for the defendant’s illegal conduct.” Anderson , 861 F.2d at 637.

Safeway cites no case holding that stock options cannot be a basis for

ADEA damages or that the appreciated value of the options is not the correct

measure of damages. Instead, Safeway relies on a sentence in Commissioner v.

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Schleier , 515 U.S. 323 (1995), a case in which the Supreme Court considered

whether a recovery of damages under the ADEA is taxable income. In concluding

that such a recovery is taxable income, the Court rejected the argument that it

should apply the rule applicable to tort damages and hold that ADEA damages are

similarly not taxable. In rejecting that argument, the Court explained that “the

ADEA provides no compensation for any of the other traditional harms associated

with personal injury, . . . . such as pain and suffering, emotional distress, harm to

reputation, or other consequential damages .” Id. at 335-36 (quotations omitted)

(emphasis added).

Safeway argues that the unrealized stock option appreciation constituted

“consequential damages” because Safeway had no control over the market price

of its stock and Greene opted to sell his stock a short time after exercising his

options. Safeway’s argument is unpersuasive because Safeway conferred on

Greene the right to buy shares of its stock at a set price. The value of that right to

buy stock at a prefixed price went up and down with the market price of the stock.

In forcing Greene to exercise the options earlier than he otherwise would have,

Safeway curtailed Greene’s right to choose the date on which he would exercise

his right to buy stock in order to maximize his profit on the sale of the shares

acquired.

Safeway argues in the alternative that the district court should have

instructed the jury that Greene had a duty to mitigate his unrealized stock option

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appreciation by holding on to the shares of stock he acquired and hoping the

market price of the stock would not decrease. Rule 51 of the Federal Rules of

Civil Procedure provides:

No party may assign as error the giving or the failure to give an
instruction unless that party objects thereto before the jury retires to
consider its verdict, stating distinctly the matter objected to and the
grounds of the objection.

Fed. R. Civ. P. 51. Here, the transcript of the jury instruction conference includes

a discussion about whether the district court should give the jury such a

mitigation instruction. In that discussion, counsel for Safeway stated that there

was a “major mitigation issue on the stock options.” The district court replied

that it believed the issue was one of proximate cause rather than mitigation. The

district court then read a proximate cause instruction to the lawyers, and asked the

lawyer for each side if they want the court to give that instruction. Both lawyers

said yes. The district court then said to Safeway’s counsel, “in that case, Mr.

Eurich, I will leave out any mitigation on the stock options and let you argue that

as an issue of causation. If we stick mitigation in there, I’d be confused if I got

that instruction, and so the jury is bound to be confused, I think.” Safeway’s

counsel said nothing further.

Rule 51 is satisfied by an oral objection sufficient to call the error to the

district court’s attention. See Unit Drilling Co. v. Enron Oil & Gas Co. , 108 F.3d

1186, 1190 n.5 (10th Cir. 1997) (citing Taylor v. Denver & Rio Grande W. R.R.

Co. , 438 F.2d 351, 353 (10th Cir. 1971)). Here, Safeway assented to the use of a

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proximate cause instruction in lieu of a mitigation instruction and never offered

any reason for the district court to believe that the failure to instruct on mitigation

was legal error. Accordingly, Safeway failed to comply with Rule 51. Thus, we

review the failure to give a mitigation instruction for plain error. Under that

standard, we will affirm unless the instructions were “patently, plainly erroneous

and prejudicial.” See id. at 1190 (quotations omitted). We conclude that, where

the district court gave a proximate cause instruction, the failure to give a

mitigation instruction is not patently, plainly erroneous and prejudicial. See

McCue v. State of Kan. Dep’t of Human Resources , 165 F.3d 784, 790 (10th Cir.

1999) (holding that there was not plain error where the district court declined to

grant a requested instruction that “retaliation is the sole basis on which you may

award damages” but gave an instruction that “you may award damages only for

injuries the plaintiff proves were caused by the defendant’s retaliation”).

Finally, Safeway contends that the jury’s award was too speculative. “In

reviewing a jury’s award of damages, this [c]ourt should sustain the award unless

it is clearly erroneous or there is no evidence to support the award.” Sanjuan v.

IBP, Inc. , 160 F.3d 1291, 1299 (10th Cir. 1998) (quotations omitted). The jury’s

award of $4.4 million in stock option damages is close in amount to the

tabulations presented by Greene’s expert witness on damages, Leslie Patten.

Patten’s testimony supports the award.

B

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 In his cross-appeal, Greene contends that the district court erred in

concluding that the $4.4 million in damages the jury awarded for unrealized stock

option appreciation was not subject to doubling under the ADEA’s provision for

liquidated damages. The remedial provision of the ADEA incorporates by

reference relevant provisions of the Fair Labor Standards Act (“FLSA”),

including the FLSA’s provision for liquidated, or double, damages for “amounts

owing” at the time of trial. See 29 U.S.C. § 626(b). Under the FLSA, an award

of liquidated damages is mandatory except where the employer shows it acted in

good faith. See Blim , 731 F.2d at 1479 n.1 (citing 29 U.S.C. § 260). In such a

case, the court has discretion to award liquidated damages. See id.

Under the ADEA, however, “liquidated damages shall be payable only in

cases of willful violations.” See § 626(b); Spulak v. K Mart Corp. , 894 F.2d

1150, 1159 (10th Cir. 1990). Once a violation of the ADEA is determined to be

willful, an award of liquidated damages is mandatory. See Bruno v. Western

Elec. Co. , 829 F.2d 957, 967 (10th Cir. 1987) (“[I]n section 626(b), Congress

provided that in cases of willful violations of the ADEA the court would order

liquidated damages.”). We have held, however, that not all forms of relief

available under the ADEA are subject to this mandatory doubling:

Parsing the statutory language of § 626(b) reveals that it
provides two types of relief. First is "amounts owing" as unpaid
wages or unpaid overtime compensation. Section 216(b) instructs
that the items to be doubled as liquidated damages are unpaid wages
or unpaid overtime compensation. Thus for a monetary award to
qualify for doubling as liquidated damages it must be an "amount

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 owing" under § 626(b).

The second type of relief permitted, including front pay, is not
found in the "amounts owing" provision of § 626(b), but in the
following sentence: "[T]he court shall have jurisdiction to grant such
legal or equitable relief as may be appropriate . . . ." 29 U.S.C.
§ 626(b) (emphasis added). We have said this sentence "makes a
significant addition to the FLSA remedies" referred to by the
"amounts owing" language, EEOC v. Prudential Federal Savings &
Loan Ass'n , 763 F.2d 1166, 1171 (10th Cir.1985). Because the
authority to grant front pay as a remedy stems not from the "amounts
owing" language but from the additional power to grant appropriate
legal and equitable relief, we conclude that the statute does not
contemplate the doubling of front pay awards as liquidated damages
in cases of willful violations.

Cooper v. Asplundh Tree Expert Co. , 836 F.2d 1544, 1556-57 (10th Cir. 1988).

By the time of the June 1997 trial, all the dates relevant to the calculation

of Greene’s unrealized stock option appreciation were in the past. Greene

actually exercised his options in December 1993. But for his termination, he

would have exercised them shortly after his November 1995 retirement. We are

nevertheless persuaded that the $4.4 million the jury awarded Greene for

unrealized stock option appreciation is more like front pay than it is like back pay

and that it therefore falls within the second category of ADEA damages described

above.

An award of front pay is based on speculation. See Blim , 731 F.2d at 1479

(“[A]n award of front pay is always somewhat speculative.”); id. at 1481 (“The

front pay damages are too uncertain to be considered ‘lost wages’ or ‘lost earned

benefits.’ The possibilities of promotions, legitimate demotions, terminations, or

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death inject too many unknowns. In these circumstances the award of front pay is

too speculative to be considered pecuniary damages under the [ADEA].”) (Seth,

C.J., concurring and dissenting). An award of damages for unrealized stock

option appreciation is similarly speculative. It was only through Greene’s

testimony in this action that Safeway learned Greene would not have exercised his

vested options until shortly after his planned November 1995 retirement.

Moreover, as Safeway points out, Greene’s expert witness somewhat arbitrarily

chose the market price on January 31, 1996, as the foundation of his calculations

of Greene’s unrealized appreciation. The date chosen is critical: Safeway asserts

in its brief to this court that Greene’s unrealized appreciation would have been

$842,000 less had Patten used the market price from two weeks earlier.

Safeway cannot be charged with pretrial knowledge of the date on which

Greene would have exercised his options had he not been terminated. This issue

of fact had to be litigated before the amount of Greene’s unrealized appreciation

could be ascertained. We therefore decline to characterize Greene’s lost

appreciation damages as an amount owing at the time of trial that would be

subject to doubling under the liquidated damages provision of the ADEA.

C

Greene also cross-appeals the district court’s decision to deny prejudgment

interest. This court reviews the district court’s decision for abuse of discretion

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and will reverse only if left with a definite conviction that the district court

clearly erred in its judgment. See Suiter v. Mitchell Motor Coach Sales, Inc. , 151

F.3d 1275, 1288 (10th Cir. 1998).

Prejudgment interest is not recoverable as a matter of right. See id. 1288-

89. “[T]he rationale underlying an award of prejudgment interest is to

compensate the wronged party for being deprived of the monetary value of his

loss from the time of the loss to the payment of the judgment.” Id. at 1288

(quotations and alterations omitted). In deciding whether to award prejudgment

interest, “the district court must first determine whether an award of prejudgment

interest would serve to compensate the wronged party.” Id. at 1289.

Here, the district court followed the law of the circuit that “prejudgment

interest is not available under the ADEA if plaintiffs receive liquidated damages.”

See Blim , 731 F.2d at 1479. The district court also found in its discretion that an

award of prejudgment interest was unwarranted. The district court reasoned that,

“[h]aving awarded liquidated damages on all amounts which I find to be ‘amounts

owing,’ I see no reason to add money for prejudgment interest.” We find no

abuse of discretion.

The judgment of the district court is AFFIRMED.

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