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United States Court of Appeals,
Fifth Circuit.
No. 93-7332.
Aubrey RAY, Plaintiff-Appellant Cross-Appellee,
v.
IUKA SPECIAL MUNICIPAL SEPARATE SCHOOL DISTRICT, et al.,
Defendants,
Tishomingo County Special Municipal Separate School District,
Defendant-Appellee Cross-Appellant.
May 16, 1995.
Appeals from United States District Court for the Northern District
of Mississippi.
Before DAVIS, BARKSDALE and STEWART, Circuit Judges.
STEWART, Circuit Judge:
This is a suit under the Age Discrimination in Employment Act
(the "ADEA"), arising from the failure of the consolidated school
district of Tishomingo County, Mississippi (the "School District"),
to rehire former school principal Aubrey Ray following the
consolidation of the Tishomingo County School District and the Iuka
Special Municipal Separate School District. Ray, who has nineteen
years of experience as a principal, had served as principal in the
Iuka County School District for six years prior to bringing this
suit.
The consolidation of the two school districts took effect on
July 1, 1991. Pursuant to this plan, the Iuka school district sent
a letter to its employees in January 1991 informing them that their
contracts would not be renewed at the end of the school year. Ray
received this letter, but did not interpret it as a notice of
1

termination because it was understood that many Iuka employees
would be hired by the consolidated school district.
Ray filed an application for a high school principal position
in January of 1991 and for any other administrative position in
February of 1991. In March, the School District hired Benny
McClung, a man nine years Ray's junior with much less experience,
to be the principal of the school where Ray had formerly been
principal. In response, Ray filed an EEOC claim against the School
District for age discrimination on March 11, 1991.
After holding an "executive session" to discuss the charge,
the School District filed a response with the EEOC, claiming that
Ray's suit was premature because some positions with the school
remained vacant. The School District subsequently hired Robert
Haggard, a person from out-of-state who had twelve years of
experience, as principal of Magnet High School. It also hired John
Mullins, a man from outside the district with 1.5 years of
experience, as assistant principal.
Ray filed this complaint on June 26, 1991, alleging age
discrimination and retaliation under the ADEA as well as violation
of Mississippi's notice provisions. Ray voluntarily dismissed his
age discrimination claim before the case went to the jury, and the
court directed a verdict against the notice claims.
At trial, the School District claimed that its decision not to
rehire Ray was based on his failure to maintain student discipline.
Ray sought to show that this explanation was a pretext for
retaliation by offering rebuttal evidence that he had been a good
2

principal. Ray Rhodes, a former assistant principal, described Ray
as an "even-handed disciplinarian." In addition, Dr. Jerry Clay
Stone, the former superintendent of the Iuka school district and
Ray's former supervisor, testified that following a joint school
board meeting, several board members approached him about Ray. A
school board member had told him: "We might have been able to work
out something like this if he had not sued us. I don't think you
would hire somebody that had sued us."
The jury concluded that the School District's decision not to
rehire Ray was in retaliation for the EEOC charge and that the
School District's conduct was a willful violation of the ADEA. The
district court awarded actual and liquidated damages, but denied
Ray's request for reinstatement, instead awarding front pay. The
court also denied the School District's motions for judgment as a
matter of law and, in the alternative, for a new trial. Ray
appeals the district court's denial of reinstatement, and the
School District cross-appeals the denial of its motions. Because
a finding in favor of the School District on the district court's
denial of its motions would render the issues raised by Ray moot,
we will discuss the issues raised in the cross-appeal first.
DISCUSSION
Was there sufficient evidence to support the verdict?
The School District cross-appeals the district court's denial
of its motions on the basis that the jury's findings are
unsupported by the evidence. This Court reviews a district court's
denial of a motion for judgment as a matter of law to determine
3

whether, based upon the entire record, a reasonable trier of fact
could conclude that retaliation was a determinative factor in the
decision not to rehire. See Hansard v. Pepsi-Cola Metro. Bottling
Co., Inc., 865 F.2d 1461, 1465 (5th Cir.), cert. denied, 493 U.S.
842, 110 S.Ct. 129, 107 L.Ed.2d 89 (1989).
The Age Discrimination in Employment Act prohibits an
employer from retaliating against an employee who has made a charge
in a proceeding under the Act. 29 U.S.C. � 623(d). To prove
retaliation by circumstantial evidence, a plaintiff must first
establish a prima facie case by showing: (1) that he engaged in
activity protected by the ADEA; (2) that an adverse employment
action occurred; and (3) that a causal link between the
participation in the protected activity and the adverse employment
decision exists. Shirley v. Chrysler First, Inc., 970 F.2d 39, 42
(5th Cir.1992). The defendant then bears the burden of producing
a nondiscriminatory reason for its action. Id. The employee bears
the ultimate burden of showing that the reasons given by the
employer are a pretext for retaliation. Id.
The School District contends that Ray failed to show that the
reasons
that
it
articulated
as
the
basis for its
decision--specifically, that Ray failed to maintain discipline and
was not a good administrator--was a pretext for retaliation. The
School District claims that, absent some additional evidence of
retaliatory motivation, Ray failed to present sufficient evidence
that, but for the EEOC claim, he would have been rehired.
The Supreme Court addressed a longstanding controversy over
4

the evidentiary burden in ADEA cases in St. Mary's Honor Ctr. v.
Hicks, --- U.S. ----, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). In
Hicks, the Court held that a plaintiff must show that the
employer's proffered reason is not credible; and show that an
unlawful discriminatory intent motivated the employer's action.
Id. at ----, 113 S.Ct. at 2752. Under Hicks, "[i]t is not enough,
in other words, to disbelieve the employer; the factfinder must
believe the plaintiff's explanation of intentional discrimination."
Id. at ----, 113 S.Ct. at 2754.
The School District presented testimony that the high school
experienced discipline problems during Ray's tenure. In rebuttal,
Ray testified that during his six years as principal, no school
board member had ever voted against his re-employment; that the
Tishomingo school district had once tried to hire him away from the
Iuka school district; that each board member had assured him after
McClung was hired that his performance was not a factor; that he
was more qualified than the other people hired; and that the Board
had not mentioned performance in its response to the EEOC.
Ray's testimony was corroborated by other witnesses. Dr.
Stone testified that, although he had heard some complaints about
discipline, Ray had been an "outstanding" principal and a "model"
administrator. The Superintendent of the Baldwyn school district,
where Ray is now employed, testified that Ray was doing a "great
job" and that he was impressed with Ray's even-handed disciplinary
style. A former assistant principal also contradicted the School
District's testimony as to the extent of the disciplinary problems.
5

We conclude that, from this evidence, the jury could reasonably
conclude that the School District's explanation for not hiring Ray
was pretextual. See Hansard, supra, 865 F.2d at 1465 (where only
evidence of poor performance is testimonial, jury can discredit
it).
More importantly, Ray also presented evidence that the School
District's true motive in not hiring Ray was retaliation: Dr.
Stone testified that, following a joint board meeting, a board
member had told him that Ray might have been hired had it not been
for the EEOC charge.1 In attacking this evidence, the School
1Dr. Stone's exact testimony on direct examination was as
follows:
Q Would you tell the jury whether after that EEOC
charge was filed any board members from either the Iuka
district, the county district, or the new consolidated
district, ever talked to you about either filing of the
charge or what you thought about Aubrey Ray?
A The filing the charge was generally referred to in
the community as suing the school, suing us. There was
one occasion on, after a joint board meeting, in the
front steps of the courthouse after the meeting,
several of the board members and I were standing there,
and I was asked the question if the Iuka school was
still the Iuka school, would I recommend Mr. Ray. And
I said, in effect, I said, Yes, I had recommended him
many times. And then it came back to me that there
might be some problem with Mr. Ray on--as being
principal of the Magnet school, which was the new
school.
So I said at that time that, Well, there were many
duties that Mr. Ray could perform for the district.
He's a high ranking officer in the National Guard and
fairly skilled carpenter and several other things. I
said there would be many things he could contribute to
the district. Then it came back to me that we might
have been able to work out something like this if he
hadn't sued us. And I don't think you would hire
somebody that had sued us. And that was pretty well
6

the end of the conversation.
Q All right, sir. Dr. Stone, what--can you recall
specifically what board members were present when that
statement was made?
A I can recall some of them. All the board members
were there, I think. It just happened, as far as I'm
concerned. It just--it was just--it just happened right
there. The people standing real close to me were Mr.
Walker--
Q Excuse me. Mr. Earl Walker?
A Mr. Earl Walker.
Q He's on the city board; right?
A That's right.
Q Okay.
A And Mr. Bonds, who is now back on the board, who at
that time was on the county board. And I think Mr.
Phillips was there, right with me, and then there was
other groups formed around in different places.
Q All right. So that was not a formal board meeting?
That was just a meeting after--
A No, unh-unh. It was not a board meeting.
Q All right. Looking over at the counsel table, were
any of the board members that are seated here in the
courtroom present at that meeting, that you recall?
A Well, at the meeting I suppose--I suppose everybody
was there at the meeting. At the discussion out in
front of the meeting, I guess they were all there. I
don't know that they were all standing real close to
me, though.
Q You don't know that they all heard that comment--
A No.
Q --is that what you're saying?
A Right.
7

District points out that Stone could not attribute this statement
to any particular person, and could not recall whether it was made
by one of the old or new board members. The School District also
points out that Stone testified on cross-examination that he was
not aware of any retaliation by any of the board members. In
effect, the School District argues that inconsistencies or seeming
contradictions in Stone's testimony rendered him unworthy of belief
by the jury on the issue of retaliation. However, our close
examination of his complete testimony reveals that his answers were
consistent. Stone qualified his answer by saying that he had no
THE COURT: Who made this comment?
A I--I have been asked that question before, and I
honestly cannot say. It was a series of questions that
came to me in a rather rapid--did not put a lot of
attention to it until later on, a lot of emphasis on
it.
BY MR WAIDE:
Q Was anybody present other than yourself and board
members, either joint board, the city board, or the--was
anybody there other than board members, I guess--
A No, I don't think so.
Q When the statement was made, do you recall anybody
disagreeing with that and saying it didn't make any
difference if he'd sued us or not?
A No, no. I just got the feeling it was very important
for me to say that I would not recommend Mr. Ray.
Q You got that feeling from who?
A Just from the way it was presented to me.
Q Why didn't you say that?
A Because I would have.
8

personal knowledge of any plan by an individual board member or the
boards not to rehire Ray because of the EEOC claim "other than the
quick conversation I've already related to." Having heard all of
Stone's testimony, the jury exercised its prerogative to resolve
any conflicts in favor of Ray's claim of retaliation.
Ray also rebuts the School District's assertion that he simply
was not the best person for the job by pointing out that the
persons hired included a person from out-of-state and with much
less experience than he.
The School District also makes much of the fact that Stone
admitted he had received complaints about Ray's handling of
discipline problems. However, a review of Stone's entire testimony
reveals that he stated that many times parents are dissatisfied
with the actions of principals, but that the number of complaints
he received about Ray was "significantly below average."
The School District claims that it contradicted Ray's rebuttal
evidence of retaliation. It first points to the testimony of Dr.
Bob Ferguson, the new superintendent. Dr. Ferguson testified that
no one ever told him not to hire Ray. He claimed that he did not
recommend Ray because he did not think he was the best person for
the job. Dr. Ferguson testified that he was not even aware of the
EEOC claim until after he had hired Mullins or Haggard. Several
witnesses corroborated Dr. Ferguson's testimony that he was not
told of the EEOC claim. The School District also points to the
testimony of Dr. Bob McCord, superintendent of the Oxford,
Mississippi, school district, who testified that Ray had applied
9

for a position with his school but was not hired because McCord did
not feel Ray was the best person for the job.2
The School District's argument that Ray did not carry his
burden of proof on the retaliation claim because it contradicted
all of the rebuttal evidence lacks merit. As this court stated in
Johnson v. Chapel Hill Ind. School Dist., 853 F.2d 375, 381 (5th
Cir.1988):
In the face of conflicting evidence the [jury] was required to
assess the credibility of defendant's witnesses. We are
ill-positioned to disturb this assessment. Although the
evidence is less than compelling that the Board's decision to
not rehire Ms. Walton was racially motivated, it is not our
role to weigh the evidence.
See also Wilson v. Monarch Paper Co., 939 F.2d 1138, 1146 (5th
Cir.1991) ("There were clearly two sides to this case. The jury
believed [the plaintiff] and his evidence; it did not believe [the
defendant].") Because the assessment of the witnesses' credibility
is clearly a jury function, we reject the School District's
contention that it successfully contradicted Ray's rebuttal
evidence such that no reasonable jury could have found in his
favor. A reasonable jury clearly was entitled to believe Ray and
his evidence and to disbelieve the School District's evidence if it
chose to. Clearly it did. The district court did not err in
denying the School District's motion for judgment as a matter of
law and motion for new trial. We will not disturb the jury's
2The Oxford school was smaller than the Tishomingo school.
The School District argues that because Ray was not considered
the best person to serve as principal of the Oxford school, a
fortiori, he would not be the best person to serve as principal
of the Tishomingo school, which was larger than the Oxford school
and much larger than the Iuka school.
10

determination that the School District retaliated against Ray.
Willfulness?
The School District next challenges the district court's
denial of its motion on the issue of willfulness. A violation of
the ADEA is willful if "the employer either knew or showed reckless
disregard for" whether its conduct was prohibited by the ADEA.
Hazen Paper Co. v. Biggins, --- U.S. ----, 113 S.Ct. 1701, 123
L.Ed.2d 338 (1993). In contrast, "[i]f an employer incorrectly but
in good faith and nonrecklessly believes that the statute permits
a particular age-based decision, then liquidated damages should not
be imposed." Id. at ----, 113 S.Ct. at 1709. Although this court
has previously limited willfulness to egregious conduct, see
Normand v. Research Institute of America, Inc., 927 F.2d 857, 864
(5th Cir.1991), the Supreme Court in Hazen expressly rejected such
limitations. Id. --- U.S. at ----, 113 S.Ct. at 1703. ("[T]he
employee need not additionally demonstrate that the employer's
conduct was outrageous, or provide direct evidence of the
employer's motivation, or prove that [retaliation] was the
predominant ... factor....").
The School District argues that any violation of the ADEA was
negligent at most, arguing that no evidence suggested that the
School District knew its actions violated the ADEA. However, as
Ray points out, the jury verdict in this case was based, not upon
a finding of age discrimination, but upon retaliation. Ray argues
that an employer who retaliates against an employee for filing an
EEOC charge can do so only by acting "willfully." "Accidental"
11

retaliation is factually impossible. Thus, Ray argues persuasively
that the record supports the jury's determination of willfulness by
virtue of the fact that the jury found that the Board had
retaliated against Ray for his filing the EEOC charge. Ray urges
that no more proof than that is required in this retaliation case.
We agree. There is ample evidence in the record to support the
jury's finding of retaliation; based upon this same evidence, the
jury could also reasonably conclude that the School District's
retaliation was willful.
Even assuming that the School District and the Board members
did not in fact know that retaliation violated the ADEA, their
actions in the very least constituted recklessness or "willful
disregard," which would support a finding of willfulness under
Hazen. There is no evidence in the record suggesting that the
School District exercised a good faith belief that the ADEA statute
permitted its retaliation against Ray for filing his EEOC claim.
The district court correctly denied the School District's motion on
the issue of willfulness, as the jury could reasonably infer that
the School District either was aware that its actions were in
violation of the ADEA or that it was recklessly indifferent to
whether it was violating the law.3
3We point out in particular that the record establishes that
many of the board members knew about the EEOC claim. Moreover,
Dr. Stone testified that "[t]he filing of the charge was
generally referred to in the community as suing the school, suing
us." Having been "sued" by Ray, as the board members themselves
referred to the EEOC claim, the jury reasonably could have
inferred that the members became sufficiently aware of the ADEA
once the charge was filed.
12

Finally, the School District challenges the jury instruction
on the issue of liquidated damages related to a finding of
willfulness. The School District claims that the court incorrectly
suggested that the court must double the compensatory damages upon
a finding of willfulness.
The School District argues that, under Purcell v. Seguin State
Bank and Trust Co., 999 F.2d 950, 951 (5th Cir.1993), the district
court has discretion whether or not to award liquidated damages
even upon a finding of willfulness. Ray contends that the language
in Purcell is mere dictum because in that case the Court held that
there was no evidence of willfulness. He maintains that the
district court is not entitled to exercise discretion and deny
liquidated damages when there has been a finding of willfulness,
because the court would have no basis upon which to exercise that
discretion.
The court charged the jury as follows:
You are instructed that, in addition to claiming actual
damages in this case, Aubrey Ray is also seeking liquidated
damages. Liquidated damages are double damages ... which may
be awarded if you found that any discrimination against Mr.
Ray was willful. I charge you that discrimination is willful
when a defendant commits a discriminatory act either knowing
that he is in violation of the law or in reckless indifference
as to whether or not he is violating the law [emphasis added].
Normally, "the trial judge ha[s] broad discretion to compose
jury instructions, as long as they are fundamentally accurate and
not misleading." Gates v. Shell Offshore, Inc., 881 F.2d 215, 218
(5th Cir.1989), cert. denied, 494 U.S. 1017, 110 S.Ct. 1320, 108
L.Ed.2d 495 (1990). The School District relies on Cassino v.
Reichhold Chemicals, Inc., 817 F.2d 1338 (9th Cir.1987), in support
13

of its position that it is improper to require that a jury award
double damages. However, a review of this jury instruction plainly
reveals that the trial judge made no suggestion that double damages
must be awarded upon a finding of willfulness. The court plainly
stated that liquidated damages may be awarded for willful violation
of the ADEA. The instruction constituted merely a helpful
explanation to the jury of the significance of their determination
on willfulness and how it could impact upon damages. The court,
and not the jury, actually determined the damage award. Thus,
there was no way for the jury to have been misled by this entirely
lucid instruction.4
At oral argument, the School District sought to add an
additional point to its repertoire of challenges to the
determinations made below on the willfulness/liquidated damages
issue. The School District argued that the district court itself
improperly applied the law on liquidated damages to be awarded
pursuant to a finding of willfulness. During the jury instruction
conference with counsel, the judge stated (out of the presence of
the jury) that under the ADEA you must double the damages once
there has been a finding of willfulness. Thus, the School District
maintains that even if the instruction to the jury was clear and
did not mislead the jurors, the district court itself was under the
4We also note in passing that it is questionable whether the
School District should be deemed to have preserved its objection
on the jury instruction. Counsel for the School objected to this
charge only on the basis that a finding of willfulness was not
supported by the record, not because the instruction was unclear
or not correct under the law.
14

impression that he had to double the damages upon a finding of
willfulness. As explained above, the parties have differing views
of whether Purcell mandates an award of liquidated damages upon a
finding of willfulness, or whether the district court can refuse to
make such an award in the face of a willfulness determination.
We have carefully reviewed the exchange which occurred at
sidebar concerning the liquidated damages issue. The district
judge did make an off-hand statement during an exchange with
counsel out of the presence of the jury that he had to double the
damages upon a finding of willfulness. However, it is obvious from
the court's charge to the jury that the district judge understood
that the award of liquidated damages upon a finding of willfulness
was within his discretion, and he chose to exercise that
discretion. Neither party suggests that liquidated damages are not
awardable under the Act upon a finding of willfulness: they merely
disagree on whether, under Purcell, the court can refuse to award
liquidated damages if there is a determination of willfulness.
Because the district court awarded liquidated damages, we do
not have to address the question of whether the court had
discretion to refuse such an award. Thus, we do not reach the
Purcell issue. The Act clearly gives the district judge the
authority to award liquidated damages upon a finding of
willfulness. Where the jury was presented with sufficient evidence
to support its findings of retaliation and willfulness, there was
no error on the part of the district judge in awarding liquidated
damages in accordance with the statute. Because the Act provides
15

that liquidated damages can be awarded in an amount equal to
compensatory damages, we likewise find no abuse of discretion in
the district court's award of liquidated damages in this amount.
Should Ray be reinstated?
On appeal, Ray contends that the district court erroneously
refused to reinstate him.5 Under � 626(b) of the ADEA, a district
court has 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...." Although the preferred equitable
relief is reinstatement, front pay is appropriate when
reinstatement is not feasible. Hansard, 865 F.2d at 1469. Because
the selection of remedies for an ADEA violation is in the trial
court's discretion, so long as the relief granted is consistent
with the purposes of the Act, this court reviews only for abuse of
that discretion. Deloach v. Delchamps, Inc., 897 F.2d 815, 822
(5th Cir.1990).
Ray contends that the district court's decision to deny
reinstatement was inconsistent with the presumption in favor of
reinstatement established in Hansard, supra. The Hansard Court
stated that "front pay cannot be recovered unless the plaintiff
shows that reinstatement is not feasible." Hansard, 865 F.2d at
5The district court's refusal to order reinstatement and/or
to award front pay until such time that a substantially
equivalent vacancy arises in the School District is the sole
assignment of error Ray argues on appeal. Ray does not otherwise
challenge the amount of back pay, front pay, and other actual
damages awarded by the district court.
16

1469. Ray argues that reinstatement is the only way he can be made
whole. He is currently living in Baldwyn and has to pay a monthly
trailer note for his living accommodations there. He also
continues to have to make house payments on his old home in
Tishomingo County. The statute does not provide for these types of
damages. Thus, the only way to put Ray back in his place would be
to reinstate him so that he could move back to Tishomingo County.
Ray contends that the district court based its decision to
deny reinstatement upon a finding that reinstatement would create
discord and cause antagonism. Ray points out that this court has
held in First Amendment retaliation cases that antagonism alone
cannot bar reinstatement. See, e.g., Bueno v. City of Donna, 714
F.2d 484, 496 (5th Cir.1983) ("Reinstatement is normally "an
integral part of the remedy for a discharge which contravenes the
[F]irst [A]mendment, and may not be denied on the ground that
reinstatement would revive old antagonisms.' " (citations
omitted)). Ray urges that the rule for ADEA cases in this Circuit
should be consistent with the rule for First Amendment cases.
Thus, Ray urges us to follow Bueno and reverse the district court's
denial of reinstatement because, according to Ray, the district
court relied solely upon the possibility that Ray's reinstatement
would cause discord and antagonism.
Ray also argues that the district court's denial of
reinstatement on the basis of discord and antagonism is
inconsistent with the jury's verdict. He points out that the
reasons cited by the School District as to why Ray was not rehired
17

were that he was not a good disciplinarian nor a good
administrator. Those reasons were rejected by the jury, who found
that Ray was not rehired in retaliation for filing his EEOC claim.
Ray submits that the district court abused its discretion in
attempting to utilize the very reasons rejected by the jury to
support his decision not to order reinstatement. In other words,
Ray submits that the district court, in referring to the "discord
and antagonism" which would result from Ray's reinstatement, was in
effect denying reinstatement because it felt Ray was not a good
disciplinarian. Thus, he contends that the district court's
decision was inconsistent with the jury verdict.
We have carefully reviewed the district court's memorandum
opinion denying reinstatement. Ray is correct in stating that the
district court referred to the discord and antagonism which would
result from Ray's reinstatement. However, we do not agree that the
district court improperly based his decision upon reasons rejected
by the jury, i.e., that Ray was not a good disciplinarian. A fair
reading of the district court's well-reasoned opinion reveals that
the court considered several factors in making his determination
that reinstatement was not feasible. The court noted that there
were no existing vacancies in the School District and that ordering
reinstatement would require displacement of an existing employee.
It also considered the fact that, after he was not rehired, Ray
almost immediately secured substantially similar employment as a
principal in the Baldwyn Separate School District in Baldwyn,
Mississippi, and later in the Starkville Municipal School District
18

in Starkville, Mississippi. These factors, relied upon by the
district court in making its determination, are permissible factors
in denying reinstatement. See Deloach, 897 F.2d at 822.
Any reference by the district court to "discord and
antagonism" which would result from reinstatement seems to have
been tied to the district court's observation of the problems
associated with firing or relocating the existing principal and
re-introducing Ray into the school as principal. We also point out
that the district court made its decision against the backdrop of
the consolidation of the two school districts. The testimony in
the record revealed that the consolidation of the two school
districts caused a good deal of uncertainty and confusion in the
school system. The trial court's ruling suggests its sensitivity
to the need for predictability in the personnel decisions of the
system. These sorts of concerns seem to have predominated the
district court's decision to deny reinstatement, rather than an
impermissible reluctance to enforce plaintiffs' rights like that
contemplated in Bueno.6
Moreover, because of the consolidation, Ray's former principal
position no longer exists. The School District points out that,
under Cassino, supra, reinstatement is inappropriate when a
comparable position is not available. The School District argues
6Knowing that no administrative vacancy currently exists in
the School District, Ray has stated that he will take the first
available administrative position. However, Ray's willingness to
wait for his reinstatement is not dispositive. The district
court did not abuse its discretion in refusing to invoke such
terms.
19

that there no longer exists a position comparable to Ray's old job.
The school for which Ray served as principal had about 240
students; the new school has over 700 students.
Because all remedies under the ADEA are equitable and
discretionary, the district court did not abuse its discretion in
denying reinstatement.
CONCLUSION
We AFFIRM the judgment of the district court.

20