UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-20541
CHARLES H. JULIAN,
Plaintiff – Appellee – Cross-Appellant,
versus
THE CITY OF HOUSTON, TEXAS, ET AL,
Defendants,
THE CITY OF HOUSTON, TEXAS,
Defendant – Appellant – Cross-Appellee.
Appeals from the United States District Court
for the Southern District of Texas, Houston
December 11, 2002
Before DeMOSS, STEWART, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
A jury found that the City of Houston failed to promote
firefighter Charles Julian on the basis of his age in violation of
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§
621–34. Both parties appeal. The City contends that the district
court lacked subject matter jurisdiction because Julian did not
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obtain a right-to-sue letter from the Equal Employment Opportunity
Commission (“EEOC”) prior to filing his ADEA claim. The City also
argues that the district court improperly instructed the jury.
Julian, on the other hand, contests the district court’s denial of
his request for front pay. We hold that the receipt of a right-to-
sue notice is not a prerequisite to filing an ADEA action. We also
find that the City has not demonstrated improper instruction of the
jury. And we conclude that the district court must reconsider
whether Julian should be awarded front pay. We therefore AFFIRM
the district court’s judgment in part, VACATE in part, and REMAND.
I. BACKGROUND
Charles Julian is a sixty-year-old firefighter who has served
the City of Houston since 1968. He became a District Chief of the
City’s fire department in 1984. Since 1989, however, the City has
denied him promotion to Assistant Fire Chief five times.
On October 10, 1995, Julian filed a charge of discrimination
with the EEOC, alleging that he had not been promoted to the
Assistant Chief level in September 1995 because he is black. The
United States Department of Justice issued him a right-to-sue
notice in December 1998. In accordance with the notice, Julian
instituted this action against the City under Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-
17. In his suit, filed in the Southern District of Texas on March
1, 1999, Julian complained of promotion denials occurring between
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1989 and May 1998. But his right-to-sue notice only covered his
allegation that he was denied promotion in September 1995 because
of his race. Therefore, Julian filed a second charge with the EEOC
on March 5, 1999, that included all of the promotion denials. In
addition to alleging race discrimination, Julian also claimed that
the City had discriminated against him on the basis of his age in
violation of the ADEA. On July 27, 1999, the Department of Justice
issued Julian another right-to-sue notice. The notice, however,
only addressed Julian’s Title VII claims.
On August 10, 1999, Julian filed an unopposed motion to amend
his federal court complaint to include an ADEA claim. Two days
later, the district court granted the motion, and Julian filed his
First Amended Complaint.
In February 2000, the City moved for summary judgment on all
of Julian’s claims. The district court granted the motion in part
and dismissed Julian’s Title VII claims. The case proceeded to
jury trial on the ADEA claim alone. On May 25, 2000, a jury found
that the City intentionally failed to promote Julian to the
position of Assistant Fire Chief on the basis of his age and
awarded him $109,222.00 in back pay and benefits. The district
court entered judgment on the verdict, but denied Julian’s request
for front pay. The City then filed a renewed motion for judgment
as a matter of law, arguing, among other grounds, that the district
court did not have subject matter jurisdiction. The City also
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moved for a new trial on the basis of improper jury instructions.
The district court denied the City’s post-judgment motions on April
23, 2001. Both parties filed timely notices of appeal.
II. ANALYSIS
A. Right-to-Sue Notice and the ADEA
We review de novo the denial of the City’s motion for judgment
as a matter of law, applying the same standard that the district
court used.1 “[T]he issue of subject matter jurisdiction is
subject to plenary review by this court.”2
The City contends, as it did in its JMOL motion, that the
judgment in Julian’s favor should be set aside due to his failure
to obtain a right-to-sue notice from the EEOC prior to asserting
his ADEA claim. In the City’s view, the right-to-sue notice is a
jurisdictional prerequisite to bringing an ADEA action in federal
court. This contention lacks merit. Although Title VII provides
that the right to bring suit does not arise until after the EEOC
has issued a right-to-sue notice,3 the ADEA has no such
1
Rutherford v. Harris County, Tex., 197 F.3d 173, 178 (5th Cir.
1999).
2
Taylor-Callahan-Coleman Counties Dist. Adult Prob. Dep’t v.
Dole, 948 F.2d 953, 956 (5th Cir. 1991).
3
See 42 U.S.C. § 2000e-5(f)(1) (providing that a Title VII
action may be brought “within ninety days after the giving of . .
. notice”). Our Title VII cases hold that “receipt of a right-to-
sue letter is not jurisdictional but a condition precedent subject
to equitable modification.” McKee v. McDonnell Douglas Technical
Servs. Co., Inc., 705 F.2d 776, 777 n.2 (5th Cir. 1983) (citing
Pinkard v. Pullman-Standard, 678 F.2d 1211, 1215–19 (5th Cir.
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requirement.
But there are preconditions to bringing suit under the ADEA.
Title 29 U.S.C. § 626(d) provides: “No civil action may be
commenced by an individual under this section until 60 days after
a charge alleging unlawful discrimination has been filed with the
Equal Employment Opportunity Commission.”4 Thus, a person seeking
relief under the ADEA must first file an administrative charge with
the EEOC.5 And § 626(d) establishes time limits for filing the
EEOC charge. For cases arising in Texas, a complainant must file
within 300 days of the last act of discrimination.6 After timely
filing the EEOC charge, the complainant must then wait sixty days
before filing a civil action. Under the plain language of §
626(d), “the claimant’s independent right to sue arises
automatically upon the expiration of sixty days after filing of the
1982)). Thus, even if the ADEA required a right-to-sue notice
prior to filing suit, we would likely reject the City’s
characterization of such a requirement as a jurisdictional
prerequisite, which, if not satisfied, deprives courts of subject
matter jurisdiction.
4
29 U.S.C. § 626(d).
5
See Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir.
1988) (“A charge of discrimination must be timely filed with the
EEOC prior to the initiation of a civil action under the ADEA.”).
6
See id. § 626(d)(2); Anson v. Univ. of Tex. Health Sci. Ctr.,
962 F.2d 539, 540 (5th Cir. 1992) (stating that the time limit is
300 days).
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charge with the EEOC.”7 Accordingly, a complainant who timely
files the EEOC charge and then observes the sixty-day waiting
period has satisfied the statutory preconditions to filing suit.8
In this case, Julian filed a charge of age discrimination with
the EEOC on March 5, 1999, and the City does not dispute the
timeliness of the charge.9 He did not amend his federal suit to
include an ADEA claim until August 10, 1999, well beyond the sixty-
day period. Julian’s decision to assert his claim by amending the
pending suit instead of filing a new one does not complicate our
analysis. He clearly had the right to sue in August 1999, and we
do not fault him for choosing the more efficient of his two
options. We therefore find that Julian satisfied the statutory
preconditions to commencing an ADEA action.
In arguing that the receipt of a right-to-sue notice is an
additional precondition to filing an ADEA suit, the City calls our
7
Adams v. Burlington N. R.R. Co., 838 F. Supp. 1461, 1468 (D.
Kan. 1993).
8
See Grayson v. K Mart Corp., 79 F.3d 1086, 1100 (11th Cir.
1996) (“Unlike Title VII, the ADEA does not require that the
plaintiff first receive a right to sue notice from the EEOC prior
to commencing suit.”); Seredinski v. Clifton Precision Prod. Co.,
776 F.2d 56, 63 (3d Cir. 1985) (“ADEA does not require that a
‘right-to-sue’ letter be first obtained. Rather, a complainant
must simply file a charge with the EEOC not less than 60 days
before commencing suit . . . .”).
9
The last act of age discrimination that Julian complained of
in his March 5, 1999 EEOC charge was a May 28, 1998 promotion
denial. Because only 281 days elapsed between these two dates, the
EEOC charge was timely filed. See Anson, 962 F.2d at 540.
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attention to 29 U.S.C. § 626(e). Section 626(e) provides that if
a charge filed with the EEOC is dismissed or the proceedings are
otherwise terminated, the EEOC must notify the complainant, who may
then bring a civil action within ninety days after receipt of the
EEOC notice.10 Although this section establishes a ninety-day
limitations period for the ADEA complainant who actually receives
notice from the EEOC, it does not require a complainant to receive
such notice before filing suit.11 Thus, in cases such as this one,
where a plaintiff commences a civil action after the sixty-day
waiting period, but before the EEOC responds to his charge, §
626(e) is irrelevant because the action has been timely filed.12
In short, we decline the City’s invitation to create the
additional requirement it advocates and hold that the receipt of a
right-to-sue notice is not a prerequisite to filing an ADEA action.
The district court properly denied the City’s motion for JMOL on
this issue.
10
See 29 U.S.C. § 626(e) (“If a charge filed with the Commission
under this chapter is dismissed or the proceedings of the
Commission are otherwise terminated by the Commission, the
Commission shall notify the person aggrieved. A civil action may
be brought under this section by a person defined in section 630(a)
of this title against the respondent named in the charge within 90
days after the date of the receipt of such notice.”).
11
See Weaver v. Ault Corp., 859 F. Supp. 256, 257–58 (N.D. Tex.
1993) (discussing the legislative history of § 626(e)).
12
See Adams, 838 F. Supp. at 1467–68 (“[U]nder the current law,
the window for filing an ADEA suit begins sixty days after filing
the EEOC charges and ends ninety days after receipt of the EEOC
right-to-sue notice.”).
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B. Jury Instructions
We review the district court’s jury charge for abuse of
discretion.13 “If a party wishes to complain on appeal of the
district court’s refusal to give a proffered instruction, that
party must show as a threshold matter that the proposed instruction
correctly stated the law.”14 If a party makes this threshold
showing, he must then demonstrate that the actual charge “as a
whole creates substantial and ineradicable doubt whether the jury
has been properly guided in its deliberations.”15 But if the charge
correctly states the substance of the law, we will not reverse.16
The City argues that the district court erred in refusing to
give the following “business judgment” instruction:
You are instructed that an employer is free to direct its
work force as it considers best to meet its objectives.
You are not being asked to judge whether acts by the
Defendant were wise, whether they represented good
management, or whether you would have handled matters in
a different fashion. The City is free to use its own
judgment, so long as it did not act with the intent to
discriminate against Mr. Julian because of his age.
The City cites only one case, Walker v. AT&T Technologies,17 in
support of its argument that the district court’s failure to give
13
EEOC v. Manville Sales Corp., 27 F.3d 1089, 1096 (5th Cir.
1994).
14
FDIC v. Mijalis, 15 F.3d 1314, 1318 (5th Cir. 1994).
15
Id. (internal quotation and citation omitted).
16
Deloach v. Delchamps, Inc., 897 F.2d 815, 822 (5th Cir. 1990).
17
995 F.2d 846 (8th Cir. 1993).
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this instruction constitutes reversible error. But the City’s
reliance on the Eighth Circuit’s opinion in Walker is misplaced.
The Walker court ordered a new trial because the district court
refused to instruct the jury that the defendant had a right to make
employment decisions for any nondiscriminatory reason.18 Here, the
district court’s jury charge effectively communicated this
principle of substantive law:
Your verdict should be for the defendant if you find that
the defendant has proved that plaintiff would not have
received the promotion regardless of his age. You should
not find that the decision is unlawful just because you
may disagree with the defendant’s stated reason or
because you believe the decision was harsh or
unreasonable, as long as defendant would have reached the
same decision regardless of plaintiff’s age.
. . . .
It is not against the law for an employer to fail to
promote an employee who is over forty years of age if the
reason for doing so is unrelated to the employee’s
age....
If you determine that Julian was not promoted
because of factors other than his age, you must decide in
favor of the City.
The City is not entitled to have the jury instructed in the precise
language or form it suggests.19 Because the district court properly
instructed the jury that the City’s employment decision was lawful
18
See id. at 849–50 (“AT&T’s proposed instruction states the
substantive law that an employer has the right to make business
decisions . . . for good reason, bad reason, or no reason at all,
absent intentional age discrimination.”); see also Stemmons v.
Missouri Dep’t of Corr., 82 F.3d 817, 819 (8th Cir. 1996).
19
Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 270 (5th Cir.
1991).
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“as long as [the City] would have reached the same decision
regardless of plaintiff’s age,” we find that the court did not
abuse its discretion in refusing to give the City’s proposed
instruction.
The City also contends that it was entitled to an instruction
requiring Julian to prove that he was clearly better qualified than
the younger employees who received promotions. We summarily reject
this argument. The City has not satisfied its threshold burden of
showing that this proposed instruction is a correct statement of
the law.20 Although pointing to clearly superior qualifications is
one permissible way to demonstrate intentional discrimination, a
plaintiff is not required to make this showing.21 Julian presented
direct evidence in support of his claim, and the district court
instructed the jury accordingly. Thus, we find no abuse of
discretion.
We conclude that the City’s contentions with respect to the
jury charge present no reversible error.
C. Front Pay
In his cross-appeal, Julian contends that the district court
erred in refusing to award him front pay. Julian sought
compensation at the Assistant Fire Chief level from May 25, 2000,
20
See Mijalis, 15 F.3d at 1318.
21
Price v. Federal Express Corp., 127 F. Supp. 2d 801, 808 (S.D.
Tex. 2001) (citing EEOC v. Manville Sales Corp., 27 F.3d 1089, 1096
n.5 (5th Cir. 1994)).
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the date of the jury’s verdict, to October 2, 2005, his expected
retirement date. We review the district court’s decision on this
issue for abuse of discretion.22
A primary remedial purpose of the ADEA is to make the
individual victim of discrimination whole.23 To effectuate this
purpose, Congress gave courts broad authority to “grant such legal
or equitable relief as may be appropriate . . ., including without
limitation judgments compelling employment, reinstatement or
promotion . . . .”24 Although reinstatement is the preferred
equitable remedy for a discriminatory discharge, this court has
held that front pay—money awarded for future lost compensation—is
appropriate when reinstatement is not feasible.25 But this is a
failure to promote case, not a discharge case. This distinction
requires a slight change in our terminology: In a failure to
22
Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869, 869 (5th
Cir. 1991).
23
Id. at 870.
24
29 U.S.C. § 626(b).
25
Reneau, 945 F.2d at 870. “Since front pay is an equitable
remedy, the district court rather than the jury should determine
whether an award of front pay is appropriate, and if so, the amount
of the award.” Walther v. Lone Star Gas Co., 952 F.2d 119, 127
(5th Cir. 1992). But the district court may determine the amount
of the award with the assistance of an advisory jury. See
Rutherford v. Harris County, Tex., 197 F.3d 173, 188 (5th Cir.
1999); see also FED. R. CIV. P. 39(c). Here, Julian did not request
an award of front pay until after the jury returned its verdict.
The district court therefore had no occasion to seek advisory
findings from the jury on this issue.
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promote case, the preferred remedy is instatement to an illegally
denied position, not reinstatement.26 If instatement is not
feasible, however, front pay is the appropriate award.
Julian argued in the district court that instatement is not
feasible in this case because the City’s Fire Chief testified to
that effect at trial. So Julian requested front pay instead.
Because the parties did not contest the feasibility of instatement,
the district court did not address the issue in its final judgment.
Our preference for instatement, however, has led us to require
district courts to adequately articulate their reasons for finding
instatement to be infeasible and for considering an award of front
pay instead.27 Thus, the district court should have considered, as
a threshold matter, whether instatement was feasible.28
Furthermore, the district court’s reasons for denying front
pay reveal an abuse of discretion. The court first found that
Julian’s front pay request was speculative because an Assistant
Fire Chief is an at-will employee who serves at the pleasure of the
Fire Chief and with the approval of the Mayor and City Council of
26
See Rutherford, 197 F.3d at 188–89; see also Kennedy v. Ala.
State Bd. of Educ., 78 F. Supp. 2d 1246, 1249 (M.D. Ala. 2000)
(“The general rule . . . is that a person should be instated to an
illegally denied position, and front pay is an exception to that
rule.”).
27
See Rutherford, 197 F.3d at 188.
28
See Hansard v. Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461,
1469–70 (5th Cir. 1989).
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Houston. But the employment-at-will doctrine does not function as
an absolute bar to recovering front pay; it is merely a factor for
the district court to consider when determining whether a front pay
award is equitably required and, if so, for what period of time
such pay should be granted.29 Thus, an Assistant Chief’s
employment-at-will status, taken alone, is not a sufficient basis
for denying Julian’s request for front pay. In addition, we have
recognized that “[c]alculations of front pay cannot be totally
accurate because they are prospective and necessarily speculative
in nature.”30 “The courts must employ intelligent guesswork to
arrive at the best answer.”31 Although a court may deny front pay
because of insufficient evidence, Julian presented the district
court with the information necessary to calculate an award,
including wage and benefit data for both his current rank in the
department and the Assistant Chief position.32 Consequently, the
record does not support the district court’s apparent conclusion
that an award of front pay would be purely speculative in this
29
See Reneau, 945 F.2d at 870–71.
30
Id. at 870 (emphasis added).
31
Id.
32
See id. (finding that evidence of the plaintiff’s pre- and
post-termination earnings constitutes substantial support for
calculating a front pay award).
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case.33 Because the jury found that the City denied Julian a
promotion on the basis of his age, the fact that calculating front
pay involves some degree of speculation is a risk that the City
must bear as a proven discriminatory employer.
The district court also found that front pay was inappropriate
because Julian was made whole by his back pay award. Back pay and
front pay are distinct remedies, however, and making victims of
discrimination whole may require courts to award both. Back pay
provides retrospective relief. Its purpose is to restore the
plaintiff to the position he would have been in absent the
discrimination.34 Front pay, on the other hand, is intended to
compensate the plaintiff for wages and benefits he would have
received from the defendant employer in the future if not for the
discrimination.35 Although this court has determined that a
substantial liquidated damages award may render an additional award
of front pay inappropriate or excessive,36 we have never held that
33
But cf. Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 402 (5th
Cir. 2002) (affirming the district court’s denial of front pay
where an award would be purely speculative).
34
Id. at 401.
35
Id. at 402.
36
See Walther, 952 F.2d at 127. In cases where an employer
commits a willful violation of the ADEA, the plaintiff is entitled
to recover liquidated damages in an amount equal to the back pay
award. See generally Tyler, 304 F.3d at 399–401. In other words,
the back pay award is doubled. Here, the jury found that the
City’s conduct was not willful, so Julian did not receive
liquidated damages.
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an award of back pay can have this same effect. The district court
properly instructed the jury on the function of back pay, and the
City does not contend that the jury disregarded the court’s
instructions and awarded an excessive amount. Therefore, Julian’s
back pay award does not preclude him from receiving prospective
relief in the form of front pay.
Although the district court’s decision is entitled to
considerable deference, because the court did not address the
feasibility of instatement and erred in basing its denial of front
pay on the grounds advanced, we find it appropriate to remand the
case for a reevaluation of these issues in the light of this
opinion.37
III. CONCLUSION
That portion of the final judgment denying front pay is
VACATED, and the case is REMANDED for further proceedings
consistent with this opinion. In all other respects, the judgment
entered on the jury’s verdict is AFFIRMED.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Judge DeMoss dissents as to Part II.C.
37
On remand, if the district court finds that instatement is not
feasible, it should then consider the factors this court listed in
Reneau, 945 F.2d at 871, as well as any other relevant, non-
discriminatory factor affecting Julian’s employment relationship
with the City.
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