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October 29, 1980

Louis GINSBERG, Plaintiff,

The opinion of the court was delivered by: SOFAER

Plaintiff Louis Ginsberg brought this action against his former employer, defendant Burlington Industries, Inc., alleging that he was discharged from his position as a salesman in Burlington's Dallas, Texas office because of his age in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634. On July 7, 1977, after 27 years of employment, Ginsberg was informed of Burlington's decision to terminate him. Ginsberg was removed from the active payroll on November 30, 1977, but received his annual salary until November 30, 1978 as severance pay.

On September 10, 1980, a jury returned a verdict for Ginsberg on the issue of liability under the ADEA. All other issues, including those involving damages, were the subject of pre-trial stipulations or were left to the decision of the court by agreement or by the terms of the statute. The ADEA includes the following provision governing remedies:

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 this title: 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).

 I. Reinstatement

 After the trial ended, plaintiff moved to amend his complaint to include a request that he be reinstated as a salesman in Burlington's Dallas office. Defendant asserts that the motion should be denied as untimely and prejudicial on the ground that a pre-trial order signed by the plaintiff on April 28, 1980 constituted a waiver of the right to amend the complaint. Specifically, defendant points to the language of paragraph 1 of the order which states that "(t)he pleadings shall not be further amended after the date of this Order" as well as paragraph 2 which reads: "The trial of this action, including the submission of evidence and the calculation of damages, if any, shall be based upon this Order and limited by the pleadings as amended herein."

 Courts should be hesitant to set such stipulations aside, except where necessary to avoid clear injustice. See, e.g., Marshall v. Emersons Ltd., 593 F.2d 565 (4th Cir. 1979); Henry v. Commissioner, 362 F.2d 640 (5th Cir. 1966). Moreover, other portions of the pre-trial order and representations to the Court concerning the availability of various remedies make no mention of reinstatement.

 These facts are quite similar to those at issue in Wehr v. Burroughs Corp., 619 F.2d 276, 284 n.19 (3d Cir. 1980), where the Court of Appeals for the Third Circuit held, in an age discrimination case, that the District Court acted within its discretion in refusing to allow the plaintiff to amend his complaint to seek reinstatement after trial. The decision in Wehr was based on an explicit disclaimer of a desire for reinstatement made in a letter to the court. Similarly, plaintiff here had taken the position that he was seeking only money damages, until after the Court indicated that he could not receive prospective damages or damages for pain and suffering. The timing of plaintiff's motion to amend reflects a change in tactics adopted to strengthen plaintiff's bargaining position rather than a sincere desire to return to his old job.

 Even if plaintiff were permitted to amend his complaint, reinstatement would not be warranted under the circumstances of this case. The decision whether or not to reinstate lies within the discretion of the trial court. Cleverly v. Western Electric Co., 450 F. Supp. 507 (W.D.Mo.1978); Combes v. Griffin Television, Inc., 421 F. Supp. 841 (W.D.Okl.1976). As Judge Weinfeld stated in a case arising under analogous provisions of Title VII of the Civil Rights Act of 1964, *fn1" "reinstatement is not mandatory upon a finding that an employee had been discriminatorily discharged, but is an equitable remedy whose appropriateness depends upon the discretion of the court in light of the facts of each individual case." EEOC v. Kallir, Philips, Ross, Inc., 420 F. Supp. 919, 926 (S.D.N.Y.1976), aff'd 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920, 98 S. Ct. 395, 54 L. Ed. 2d 277 (1977). The evidence in this case overwhelmingly demonstrates that all of plaintiff's superiors at Burlington consider Ginsberg incompetent. While the jury's verdict necessarily represents a finding that age was a factor in Burlington's decision to fire Ginsberg, the evidence presented also shows that Burlington officials sincerely entertain serious doubts as to Ginsberg's ability to perform his job. Furthermore, Ginsberg has become embittered against Burlington and his superiors there, and does not genuinely wish to work for them. In short, as in EEOC v. Kallir, Philips, Ross, Inc., supra, the "lack of complete trust and confidence between plaintiff and defendant could lead to misunderstandings, misrepresentations and mistakes, and could seriously damage defendant's relationship with its clients." See also Combes v. Griffin Television, Inc., supra. Reinstatement is denied.

 II. Monetary Damages

 A. Back Pay

 Before trial, the parties stipulated to a schedule of damages to be applied if plaintiff prevailed. The schedule includes no provision covering potential damages for pain and suffering, liquidated damages, or attorney's fees; these items were left for the Court. The parties agree, however, that plaintiff is entitled to $ 24,084.00 to cover lost back pay for the period between November 30, 1978 and July 1, 1980. *fn2"

 B. Prospective Damages

 Ginsberg claims that, if he is not granted reinstatement, he must be awarded damages for lost compensation to the date he would have retired at age 70. No case has specifically approved granting prospective damages. Two Circuit Court cases suggest that prospective damages might be available as an alternative to reinstatement, Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir. 1980); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979), ...

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