APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 681-70).
Adams and Weis, Circuit Judges and Fogel,*fn* District Judge.
Although involuntary retirement after lengthy service may be a traumatic experience for an employee, statutory silence circumscribes the relief that can be obtained. We conclude that an Age Discrimination in Employment Act suit may be a proper subject for a jury trial but that there can be no monetary damages for "pain and suffering" in the nature of emotional distress. Accordingly, we vacate a district court's judgment which incorporates a substantial award for such damages.*fn1
Dr. Dilworth T. Rogers worked for the Exxon Corporation from 1938, except for a one year absence, until his involuntary retirement on September 1, 1969. He contended that his separation from the company was the result of age discrimination and brought suit under the Age Discrimination in Employment Act of 1967, (ADEA), 29 U.S.C. §§ 621 et seq. Dr. Rogers died on March 29, 1973 and his executrices were substituted as plaintiffs. A jury awarded the plaintiffs $750,000 for pain and suffering as well as $30,000 in compensatory damages. The latter amount was doubled by the court because the defendant's conduct had been willful. After plaintiffs accepted a remittitur of $550,000 on the pain and suffering verdict, defendant's post-trial motions were denied, and judgment was entered in favor of plaintiffs.
Dr. Rogers was a research scientist who had done extensive post-graduate work in chemistry and had earned a doctorate in that field. Active in professional societies, he was credited with fifty-one patents and, during his service with Exxon, was designated as its first Senior Research Associate. In his early years with the company, promotions and salary increases came fairly frequently but, beginning in 1959, when Dr. Rogers became 50 years of age, his relations with the company began to deteriorate. The plaintiffs asserted that the reversal of his fortunes was the result of Exxon's policy of age discrimination which included a policy of harassment designed to make him leave the company. The defendant, however, contended that Dr. Rogers became frustrated and dissatisfied because he could not climb the administrative ladder of the company.
Dr. Rogers, unhappy with his job assignments, the technical facilities designated for his use, and the failure to receive periodic salary increases, found his relationships with superiors and co-workers becoming strained. The tensions of his employment were accompanied by emotional problems which in turn were reflected in his physical health.
On March 7, 1969, after a disagreement with a superior over his work, Dr. Rogers left his employment in an emotional turmoil, taking an extended sick leave. In the ensuing months, he suffered a number of physical ailments and a condition diagnosed in part as a situational neurosis. During this period, Dr. Rogers' attending physician and the company medical director exchanged information, the nature of which was disputed at the trial. On August 1, 1969, the company wrote to Dr. Rogers that he would be retired for medical reasons. Despite his protests, the retirement became effective on September 1, 1969, and he received benefits thereafter in accordance with the company retirement plan.*fn2 At trial, the defense contended that the sole reason for retirement was medical disability.
Plaintiffs claimed damages for earnings lost because of the company's failure to grant salary increases before 1969, in addition to the differential between the pension payments and what would have been received had Dr. Rogers continued in active service. Further, claims were made for the emotional and physical problems caused by Dr. Rogers' involuntary retirement, as well as the onerous treatment he had received before that time. The trial court ruled that the plaintiffs were entitled to a jury trial and the ADEA permitted a recovery of damages for pain and suffering.
After the jury in the bifurcated trial found liability against the defendant, the parties stipulated that compensatory damages were $30,000. Following the verdict on damages, the parties agreed to submit the question of willfulness to the judge rather than to the jury. The district judge determined the actions of the defendant to have been willful and doubled the compensatory damages to $60,000 as permitted by the statute, 29 U.S.C. § 626(b). However, he held the doubling provision inapplicable to the pain and suffering award.
RETIREMENT UNDER A BONA FIDE PLAN
Defendant raises a number of interesting issues in its appeal, the first of which is the Act's exemption of retirement pursuant to a bona fide plan.
The ADEA prevents discrimination in an employee's compensation, terms, conditions or privileges of employment because of age. However, it exempts retirement pursuant to a bona fide pension plan that is not a subterfuge to evade the purposes of the Act, 29 U.S.C. § 623(f)(2).*fn3 The heart of plaintiffs' case, as well as the fundamental premise for the district court's evidentiary rulings and charge to the jury, was that the Act bans involuntary retirement before age 65 even under an otherwise bona fide plan, if age played any part in the decision.
We recently examined the legislative history of the ADEA and the purposes behind the § 623(f)(2) exemption in detail and need not repeat our lengthy discussion here. After careful study, we concluded that the Act does not prohibit involuntary retirement at age 60 with an adequate pension pursuant to a bona fide retirement program. Zinger v. Blanchette, 549 F.2d 901 (3d Cir. 1977). We observed that the age discrimination present in most involuntary retirement plans is generally not barred by the Act. Our holding in Zinger, contrary to the district court's theory in the case sub judice, requires that the judgment here be vacated.
However, on the record before us, we are unable to enter judgment for the defendant.*fn4 Moreover, even if Rogers could properly have been retired under the age and service qualification, the claims that he was mistreated and did not receive promotions and salary increases because of age, if proven, constitute arguable violations of the Act.*fn5 No effort was made to segregate the items of pre-retirement damages from those of the post-retirement period and, consequently, we cannot determine what violations the jury found and whether any sums might be due if the post-retirement events are excluded. Since a new trial must be granted, it is necessary that we review most of the points raised on appeal.
The district court properly refused to strike the plaintiffs' request for a jury trial. The statute does not specify whether trial by jury is available. However, there is a provision that:
"The court shall have jurisdiction to grant such legal or equitable relief as may be appropriate . . . including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or ...