Clarence F. Davis v. Combustion Engineering, Inc.
742 F.2d 916
6th Cir.
1984
Check Treatment

*3 WELLFORD, and Before JONES I. * RUBIN, Judge District Judges; and Appellant’s first contention is that RUBIN, qualifying in Judge. District trial court erred Professor B. CARL expert Geraghty Thomas E. as an witness Engineering, Inc. Appellant Combustion permitting testify in him “to to the and (“Combustion”), appeals the denial of its legal in the case— ultimate conclusion following jury trial trial motion for a new age discrimination had occurred.” whether District Court for the in the United States Appellant argues Appellant’s Brief at 5. District of Tennessee. Eastern unqualified Geraghty was to that Professor special issues, finding returned a verdict testify expert age in the area of as an appellant liable for willful violation testimony discrimination and that as to his Employment Age in Act of Discrimination “usurped conclusions the function of the § (“ADEA”), 29 U.S.C. 621 et seq., unfairly irreparably and influ court and awarding appellee Clarence F. Davis and Id,.1 jury’s enced the decision.” $88,800 $22,200 pay compen- in in back and Geraghty’s qualifications pay.” for future losses or “front Professor sation undergraduate addition, appel- brought trial. His the district court awarded out at $40,- $20,000 damages degree in administration. He liquidated in was business lee fees, degree in that sub- attorney’s in for a total award also had an advanced 813.90 $171,813.90. of in- ject, with concentration the areas rela- management dustrial and industrial (1) appeal: issues are raised on Five tions. permitting the trial court erred whether witness, as testimony appellee’s employment history His included work expert consulting engineer and Geraghty; wheth- a chief industrial Professor Thomas E. * Rubin, Judge, was dis- "I find the fact that Mr. Davis Chief United Honorable Carl B. [sic], only charged very, very singly for the Southern District of and the States District Court Ohio, sitting by designation. age. Must between him [sic] difference age question in the dis- be somehow a objection Appellant to the substance bases his charge Davis.” Tr. at 248. of Mr. Geraghty’s testimony spe- on four of Professor given, "Barring any would other reason improper testimony allegedly cific instances of (Answer Id. appear to me to be obvious.” legal conclusions: question, your opinion, response then, "It is to the there was an unconscious "... in this case discharged Clarence Davis was that Mr. because of bias and Mr. Davis was terminated defendant, August, Combus- (Tr.) age.” Transcript his at 245. age Engineering, unlawful as a result of tion appears Mr. Davis to be discriminated "... Id.) discrimination?" age against factor that and ... was a determined his termination." personnel. ibility, qualifications testify. of finance and not his El work in the areas Co., Inc., lis v. K-Lan personnel policies He and con- has written personnel (6th Cir.1983). mat- training sessions in ducted ters. Applying standards, these we hold trial, Geraghty At the time Professor trial court did not abuse its discre Management and Market- was Professor permitting Geraghty tion Professor University of at the Tennessee-Chatta- testify expert. as an We note first that the teaching largely in nooga. His duties were applied the legal correct standard in production personnel. areas Mannino, reaching its decision. su Cf. Barker, 849; in pra, previously He had not been involved at 1022. The discrimination, he was conclusion area of Court’s that Professor Ger specifics testimony ADEA. aghty’s unfamiliar with would assist familiarity, clearly erroneous, record does reveal his given was not the broad *4 any, general. if with discrimination law Rule standards of opinion, at trial

He testified that his further appellant’s We note that counsel appellant’s per- based on his examination of of, given, advantage and took full was the records, appellee sonnel was terminated be- opportunity challenge to Professor Ger- age. analysis of his Pursuant to an cause familiarity aghty’s ADEA with the and his records, he of those he testified that was credibility expert. an as Tr. at 263-64. all as able to eliminate other factors bases addition, carefully instructed the discharge. for appellee’s they were to determine the weight given credibility to be the ex- pro Federal Rule Evidence 702 testimony. pert’s Tr. at 446-47. Under vides: circumstances, these conclude that we scientific, technical, special- other If or permitting court did not trial err knowledge will trier of ized assist expert testimony of Geraghty. Professor or to fact to understand the evidence issue, reject quali- appellant’s challenge a fact a witness also determine We skill, expert by knowledge, Geraghty’s fied as an to the substance of Professor education, supra. training, may testimony. fn. experience, or See Under Fed 1, opinion 704, testify thereto form of an eral Rule of Evidence otherwise admis expert is opinion testimony by otherwise. sible an not it objectionable ground on the em testify to allow a witness to as decision United fact. braces an ultimate issue of largely expert an is within the discretion Barrett, 1076, v. 1084 States 703 F.2d n.14 will on trial court and not be disturbed Corp., 701 (9th Cir.1983); Moore v. Wesbar appeal clearly an abuse unless erroneous or 1247, (7th Cir.1983); United 1253 F.2d Mannino v. International discretion. 135, (8th Kelly, 136 States v. F.2d 679 Co., 846, (6th Manufacturing 650 849 F.2d Estelle, Cir.1982). also v. See 463 Cir.1981); Morvant Barefoot v. Construction 880, 3383, 9, U.S. 103 S.Ct. 3400 n. 77 (6th Corp., 570 626, Aggregates 634 F.2d (1983). The first three in L.Ed.2d 1090 dismissed, Cir.), 801, 439 99 cert. S.Ct. challenged testimony simply are stances of v. 44, (1978); United States L.Ed.2d 94 58 fact, opinions embrace an ultimate which Cir.1977). Barker, 553 1024 discrimination, i.e., presence age broadly inter Rule 702 should be clearly are thus within the ambit of the use of preted on the basis of whether the Rule. expert testimony trier of will assist Mannino, supra. challenged fact that a The fourth bit of testi fact. regarding proffered may mony opinion with an “un expert be unfamiliar involves statutory It is therefore pertinent definitions or standards lawful” discrimination. Rule disqualification. arguably exception Such grounds for within “phrased familiarity opinions cred- in terms inade- lack affects the witness’ legal prima discrimination, See Owen quately explored criteria.” facie case of “[t]he Corp., v. Kerr-McGee employer burden then must shift to the (5th Cir.1983); Advisory Committee Note legitimate, articulate some nondiscriminato Assuming, arguendo, that it on Rule 704. McDonnell ry reason” for conduct. its this one bit of testimo- was error to admit supra, U.S., Douglas, 93 S.Ct. See ny, error to be harmless. find the we Department In Texas Com at 1824. above, As noted Profes- Fed.R.Civ.P. 61. Burdine, munity 450 U.S. Affairs familiarity Geraghty’s lack of with the sor 1089, 1094, L.Ed.2d 207 provisions exposed ADEA (1981), the Court described the defendant’s significantly, More cross-examination. forth, clearly setting burden as one of they were to de- jury was instructed “through the introduction admissible evi weight give expert’s termine the Appel dence” the reasons for its conduct. 446-47, they spe- opinion, Tr. at argues court, by casting lant that the trial they “totally cifically instructed that could its instructions on defendant’s burden in opinion they if found it disregard” such evidence, imposed terms of “credible” any at 447. unsound for reason. Un- higher standard than that established in circumstances, no er- der these reversible Burdine. ror was committed. While we believe is better II. practice phrase to use the “admissible evi assigns error trial Appellant also dence”, we do not believe *5 court’s instruction on a defendant’s eviden proof, instructions on burden of taken as a tiary meeting prima in a facie burden show whole, require reversal. age of discrimination. The trial court jury plaintiff that a was instructed the using phrase In the “admissible evi upon in entitled to a verdict his favor estab dence,” Supreme Court in Burdine was the age lishing prima a facie case of discrimina simply indicating that a defendant could tion, proffered unless the defendant “credi by advancing not meet its burden an “artic legitimate, ble evidence” of non-discrimina ulation,” Complaint such as the to a answer tory Appellant reasons for its actions.2 argument counsel, or the of which could that, argues by speaking in terms of “cred Burdine, su not be admitted as evidence. evidence,” ap trial ible the court misstated pra, at 255 n.9, 101 S.Ct. at 1094 n.9. As pellant’s evidentiary burden. out, pointed this Court of the has the use phrase not “admissible evidence” was adopted, age This Court has discrimi- suggest any meant to that admissible state cases, nation modified of the a version non-discriminatory ment of intent would Doug- in McDonnell guidelines established Green, suffice to its Corp. 792, enable a defendant to meet las 411 93 S.Ct. See Rowe v. Cleveland Pneumat 1817, burden. allocating 36 L.Ed.2d 668 for Co., Control, Inc., ic Numerical proof the in Title eases. burden of VII Anaconda, 88, (6th Cir.1982). (6th Relying specific 96 Laugesen v. 510 F.2d 307 Burdine, Douglas, Cir.1975). language in said McDonnell In the Su- we that “[n]ot that, preme plaintiff only must such ‘clear and rea Court stated once a evidence be establishing sonably specific,’ has met a must be of such a his initial burden but it instructed, jury pertinent part, by age 2. was him were motivated factors other than good follows: or were for Tr. at cause. that, was also instructed "even in the However, even in the absence of direct proof age absence of discrimination direct discrimination, proof age prima such a by upon entry and even the of credible evidence facie case would be sufficient to entitle the by the defendant that it was motivated reason- age plaintiff upon verdict the issue of a terminating the able factors other than you unless should further find discrimination him,” plaintiff failing to recall and/or that the defendant has entered credible evi- plaintiff prove by preponder- could his case a dence that its termi- in the record actions in ance of the evidence. Id. at 454. nating failing to recall and/or

921 whole, 45; 451-52; 454. Taken as a ‘justify judgment a for the as to character omitted). suggest not (citations instructions do burden Id.” Of defendant.’ persuade appellant persuade course, “need shifted to the defendant ever actually that it was moti- jury by preponderance evidence fact] [trier reasons,” Burdine, by proffered legitimate and non vated its motives 254, 1094, U.S., at Burdine, at 101 S.Ct. supra, at 450 See discriminatory. retains the burden of “plaintiff at 1092. See also Sones- at 1095. at 101 S.Ct. persuasion.” Corp., 725 F.2d 1070 Morgan v. Hertz Keene Trustees State also Board See Cir.1984) (reference to defendant’s burden n.2, Sweeney, 439 U.S. College v. persuasion" discrimination case “of in sex (1978). n.2, A L.Ed.2d S.Ct. 295-296 harmless error where district court only produce admissible “need defendant correctly applied rule that ultimate burden the trier of allow which would evidence plaintiff.) remained with employ- rationally conclude that fact by not been motivated had ment decision III. Burdine, supra, discriminatory animus.” appellant’s We turn next to conten U.S., at 1096. 101 S.Ct. at tion that the trial court erred in its instruc the trial court’s We believe jury regarding tions to the willful viola as a proof, taken on burden instructions again, Here tions of the ADEA.4 we hold whole,3 foregoing stan comport with the instructions, considered as a concept We are convinced dards. whole, require do not reversal. in evidence which credibility is inherent in this At the time the briefs case were Rowe, reasonably specific.” “clear and decision in Blackwell v. filed, Sun our as to supra, “of such a character supra, addressing this Corp., n.3 Electric defendant,” id., judgment justify Thus, issue, nei- had not been rendered. trier of fact “allow the which would parties court nor the had ther the trial rationally to conclude that employ guidance therein. benefit had not been motivated ment decision Burdine, supra, Blackwell, discriminatory animus.” we held *6 added). (emphasis 1096 101 S.Ct. at at willfulness, an ADEA In order to show employer’s the plaintiff must show that the trial court particularly note We voluntary and intentional. actions were plaintiff “the carefully instructed that necessarily shielded employer The is not proof ... with have the burden would he is unaware of liability from because issue,” Tr. at and that respect to each “implications actions under the the of his plaintiff has bur- “at all times ... may Alternatively, plaintiff Act.” establishing by a his contentions den of damages if he liquidated shows Id. at receive ...” of the evidence preponderance in not employer reckless repeated re- The instructions contain 444. governed knowing Id. at 442- that his actions were plaintiff’s ferences to burden. intentionally violation of the Act. evaluating adequacy jury done and in instruc- 3. tions, employer Com- they a whole. Blackwell exist if the must be taken as Willfulness would (6th Corp., subject F.2d 1181 Electric 696 to the Feder- v. Sun Cir.1983); knew that it was bustion Walton, 676 F.2d Haislah v. Age Employment Act and al Discrimination in Cir.1982); Laugesen, supra, at 315. voluntarily proceeded in the face of that knowledge engage it in conduct which damages provides liquidated 4. The ADEA might the Act. Willfulness need knew violate only of willful violations in cases are available purpose bad or evil motive on not involve a 626(b). The Act itself § Act. U.S.C. employer. are in- part en You [sic] "willful,” provide nor does does not define regard that an act is done in this structed fashioning a definition. guidance in such knowingly, wilfully done if it is done inten- on this district court The instructed done, say, tionally, is as I in violation and that as follows: issue the Act. Tr. at 455-56. regard that an act is in this You are instructed knowingly willfully is done done if it employer by expectancy the ADEA or that the acted based on life inappro would be Id. at disregard priate. of whether his ac- reckless by tions were covered the ADEA. Circuit Kolb v. Subsequently, the First Inc., Goldring, (1st Cir.1982), 694 F.2d 869 (footnote omitted). at 1184 We stated specifically plaintiff held that a could not Circuit, see agreement our with the Third pay damages recover front where Corp., Burroughs Wehr judgment, “settled” on the date of even 1980), (3rd plaintiff 279 n.5 Cir. that a need though injury Id. at 874 continued. employer not show that acted with a n.4. The Court noted that an award of violate specific intent the ADEA. damages “put plaintiff place should Blackwell, supra, at 1184. We also stated occupied would have but for the discrim required the trier of fact is not ¡nation. Id. at 872.6 findings express make of fact on the issue Wehr, The Third Circuit in Id. We con- employer’s good faith. de- dined to consider the issue in a situation cluded that the instructions to the plaintiff where the had disclaimed a desire employer “should focus on whether the de- disclaimer, for reinstatement. Such liberately, intentionally knowingly dis- out, pointed Court removed future dam- charged employee age.” because of his ages from further consideration. Id. Id' Reviewing the Trial court’s instructions Eighth Circuit in Gibson v. Mohawk whole, as a on willfulness we conclude that Rubber, (8th Cir.1982), held they “adequately formulated the relevant might f^af a District Court consider mone- Id. Accord- jury.” considerations for the damages in lieu of reinstatement but taiT held ingly, find no error. we reversible damages peri- recoverable for the beyond od which the would have IV. non-discriminatory terminated for been rea- sons, Appellant contends that the district court awarding prospective damages Circuit, erred in Cancellier v. Fed The Ninth Department Stores, (“front $88,800.5 erated pay”) in the amount of 672 F.2d 1312 (9th Cir.1982), Appellant argues pay damages that front stated that in lieu not re of reinstatement were available under the coverable under the ADEA. such award had been AKEA’ altbouSh question pay previ of front has not f° by made the tnal court M at 1319"20- ously been considered this Court. In There is a consistent theme those deci- deed, those Circuits which have considered problem, sions which have considered the problem differing have reached conclu damages The award of such is a matter of *7 Loeb v. Tex sions. The First in Circuit Eighth discretion with the trial court. The tron, (1st Cir.1979), 600 F.2d 1003 reserved Gibson, in Circuit stated it best question pay, pend decision on the of front observing purpose when that “the of the issue, of the in consideration the first persons ADEA is to make whole.” instance, by the District Court. The Court 1097. did, however, Appeals suggest of standards by gov pay” which the District Court should be appear “Front does not to lend it- emed, including suggestion per that con self to a se rule. It is neither mandat- tinuing payments Rather, prohibited by or substantial awards ed nor the Act. it is question pay prospective damage 5. The of front was submitted to the seek his satisfaction in the $88,200 $88,800 special by jury.” as a issue. An award of award of as returned [sic] litigation parties was made. The to the had agreed question of reinstatement should might passing It be noted in that The Honora- by Peck, Court, be reserved for decision the Court. The Judge ble John W. Senior of this District Court by designation declined to order reinstatement sat in the First Circuit and con- leaving plaintiff and held instead that it foregoing "was curred in the decision. years approximately six until he would range of remedial meas- be of a broad but one mandatory ADEA. faced with retirement. under the ures available notes the Court also substantial reductions 626(b) provides, Act Section changed in force and conditions at the de- part, in plant fendant’s due to a continued reduced brought to enforce this any In action products prospects its demand for with jurisdiction chapter the court shall have making reduction in for further force equitable as legal such or grant relief possible lawfully would be may appropriate be to effectuate mandatory retire- terminated before his chapter, with- including purposes this (Memorandum 18, date.” March ment filed compelling out limitation judgments 1982, 145). Appendix, pg. promotion, or employemnt, reinstatement upon Based such determinations enforcing liability for amounts or court, by the trial this holds Court now wages unpaid minimum or deemed to be approval prospective damage compensation under this unpaid overtime $88,800 award as returned section. was not an abuse of discretion. § added). 626(b) In (emphasis 29 U.S.C. (c) addition, provides part, in subsection V. bring aggrieved may a civil

“Any person competent jurisdic- any court of action regarding attorney fees in this rule equitable legal tion for such Northcross v. was set forth Circuit relief chap- purposes this will Memphis City Board Education effectuate § 626(e)(1) (emphasis add- Schools, ter.” (6th Cir.1979) 29 U.S.C. cert. 611 F.2d 624 ed). language, light 2999, In we hold denied, this 447 U.S. trial pay remedy available to the (1980). front Northcross provides L.Ed.2d 862 discretion, use, fashioning in its court for calculating attorney for fees the standard relief. See brought pursuant to ADEA. actions Corp., Register Rose v. National Cash however, that an award emphasize, We — denied, (6th Cir.) cert. governed by the pay must be of front —, 104 S.Ct. 78 L.Ed.2d 317 may of the trial court and sound discretion (1983). in all cases. For exam- appropriate not be pay a discrimina- ple, the award of front $27,471.50 The trial awarded employee old un- torily discharged year attorney expenses. for for fees and $842.40 pension qualifies he for a til such time as represented one-half of of these sums Each hand, On the other might be unwarranted. In addi that had been claimed. the total an such an award for the failure to make $12,500.00 tion, the sum of was awarded discriminatorily likewise employee quality rep “contingency factor and might an of discre- discharged, be abuse have The trial court did not resentation.” tion. Supreme Court of the recent the benefit — concluding Eighth join the We U.S. —, Stenson, in Blum decision is to make purpose of the Act (1984). 79 L.Ed.2d 891 104 S.Ct. people that which makes people whole and case, the Blum analysis an was made the discretion of is a matter for whole upward an the circumstances under which circumstanc- under the facts and trial court could adjustment of reasonable fees *8 See, Gibson, case. es of the individual Supreme concluded: made. The Court may justify an “The district court ... in case adjustment only the rare upward in the matter at considering In the award specific applicant offers where the fee analysis, the Court upon this hand based quality ser- evidence to show made the fol- the District Court notes that that one superior to present- vice rendered was findings: [plaintiff] is lowing “He expect light in reasonably should has but age and that he ly years charged speculative I hourly and that the suc- what consider to be a front rates not, view, ‘exceptional’.” pay my cess was award. This does in constitute the sound exercise of discretion Id., There at 1549. is no discus- 104 S.Ct. by majority. discerned The ADEA was court’s Memorandum of sion in the district not intended to insulate workers from the this award. There was a the basis for problems struggling company of a in a and under those similar absence in Blum economy circumstances, in difficult and uncertain and the the increase fee award upon probability layoffs plant closing. such determina- Based even was reversed. tion, to take similar this Court is bound damages, Plaintiff’s chief witness on accordingly the award of such action and Geraghty, only could describe the actions hereby is increase in fee Reversed. appearing of defendant as to him to be “by any “unconscious bias” and stretch VI. imagination policy ... overall foregoing, with the In accordance discrimination____ mistake [A] [was] hereby court is judgment of the district best, view, my in in made this case.” At to all determinations with AFFIRMED as appellee should have been ordered reinstat exception of an enhancement of attor- position paid ed to his and former his back- regard in to such ney fees and Reversed pay $22,200 damage only. Appel award of $12,500.00 only fees as to the award prayed complaint lee in his amended and quality repre- “contingency factor and requested require at trial that the court sentation.” defendant to reinstate him full em “with ployment rights and and “award benefits” WELLFORD, concurring Judge, wages through his lost the date of his dissenting part part. in in reemployment.” plaintiff That is all that agree Judge I with much of Ru- While should have received event of my opinion, separately I to state bin’s write judgment. favorable Blackwell v. See Sun regarding views three issues. (6th Cir.1983). Corp., Elec. 696 F.2d 1176 First, majority’s I from the treat- dissent view, my in Initially, judge, the trial react pay” deciding ment the “front issue. In properly stating “any ed in that claim for plaintiff, grant not to reinstatement to the damages damages limited to that would be “the reduc- the trial court noted substantial accrued to date of tria.” The trial have changed tions in conditions at the force plaintiff had was well aware plant defendant’s due to a continued re- already employment secured other products, duced demand for its with the relief so indicated would render Davis prospects for further reductions force whole. plaintiff making possible would Second, I dissent from court’s conclu- lawfully before his mandato- terminated properly charged sion ry retirement date.” court neverthe- regarding constitutes a willful viola- what $88,800 pro- plaintiff less awarded analyzing tion of the Act. After the will- spective damages, upon the amount based the ADEA fulness standards under em- expert the as- by plaintiff’s calculations circuits, Judge ployed in Pell of the other sumption would not have appropriate articulated an Seventh Circuit off, have continued to been laid but would support: standard and sound reasons work full time on a normal work-life based opinion, essence, Congress, in our intended that expectancy. the court denied liability ADEA under the could be estab- reinstatement of the likelihood of because showing layoff making any lished without as to ignored but that likelihood import have were it not for the unlawful discrimi- 1. The of the discrimination been whole VII, laws, Firefighters employment Local Union No. 1784 v. whether ADEA or Title nation." — Stotts, —, aggrieved by "persons effects of the n. the ... be, n. pos- employment practice (empha- so far as 2590 n. 81 L.Ed.2d 483 unlawful sible, added). they position would sis restored to a where *9 age of from equally ployee It is because those in of mind. defendant’s state that, allowing liquidated dam- clear the is which discrimination unconscious. violation, 29 ages only for a “wilful” just necessary This distinction is § 626(b) Congress (1976), did not U.S.C. disparate treatment cases as is when damages doubling of to the be intend discriminatory on plaintiff the sues a im- courts which have automatic. Those theory. finding We think that a pact of showing on a to exist found willfulness only if should lie there is willfulness argu- the have answered of recklessness showing as to the some defendant’s leads to such an ment that their standard illegality knowledge the his actions. pointing doubling by out that automatic that, prove to hold order willful- We plaintiff the this not the case when is § 626(b) (1976), under 29 U.S.C. a ness to statistical evidence relies on establish the plaintiff must show that defendant’s his facie case. prima knowing voluntary actions were from readily conclude this One could reasonably he or should have that knew damages reasoning liquidated that will that those actions violated the known plaintiff always available a who ADEA. ADEA a liability under the on establishes Co., Syvock Mfg. v. Milwaukee Boiler discriminatory rather than a dis- intent Cir.1981) (citations (7th F.2d 154-56 & find criminatory impact theory. We omitted). 10 Syvock § footnotes Footnote 626(b) (1976), or in nothing in 29 U.S.C. ADEA, reads: history of legislative the the a support such result. aspect of this test for willfulness fact, history legislative the requires showing employ- a that Congressional suggests that ADEA reasonably knew or should have er thought discrim-

framers that non-willful that his actions were violative of known individual directed towards an ination put ADEA not an insurmounta- does possible. Unlike race discrimi- quite plaintiff. The on the ADEA ble burden nation, age may simply ar- discrimination plaintiff must implies criterion ise from an unconscious application of (1) things: employer two show ability rather than stereotyped notions reasonably or should have known knew desire to remove older- from a deliberate are; of the ADEA requirements what employees workforce: from the employer knew or rea- is the same as Age discrimination his ac- sonably have known that should on insidious discrimination based incon- towards the tions bigotry. prejudices and race or creed requirements. with those sistent in non-em- Those discriminations result reasoning of the concur with the We feelings a ployment because of about American Kelly Ninth ability his person entirely unrelated to Standard, Inc., problem job. hardly is a to do a This Cir.1981), appropriate standard Discrimina- jobseeker. the older for the em- create an incentive cannot assump- him because of arises for tion ignorant of the law. 29 ployer to remain the effects that are made about tions § (1976)requires employers to U.S.C. 627 general performance. As on Secretary required by the post notices rule, ability ageless. Labor, statutory authority, Pursuant (1976) (remarks 34,742 Cong.Rev. promulgated regula- Secretary has Burke). Rep. post requiring employers to notices tion therefore for willfulness The standard places premises advis- conspicuous defendant’s state focus on the should application of employees about allegedly discrimina- at the time the mind § (1980). Act, 29 C.F.R. 850.10 distinguish It tory occurred. must acts showing plaintiff’s burden employer an in which those situations reasonably should employer knew against an em- consciously discriminates *10 926 required (emphasis added).

have known what the law Tr. at 455-56 In a dis- parate one, met. treatment case such easily should therefore be as this not based on any plan statistical evidence of or employ- The determination whether the general practice age discrimination, reasonably or should er knew have confusing indicating instruction was plain- his known that actions toward if defendant knew it subject was to the Act tiff were inconsistent with law is a and voluntarily engaged in conduct which jury determination left to the in the first “might law, violate” the it should be held showing clearly instance. The must be liable. greater necessary than the ini- Third, while I believe that error was com finding ADEA liability. tial regarding mitted Geraghty’s testimony, I must be showing to indicate sufficient majority concur with the handling in its discrimination defendant’s this issue because the error was harmless. disparate was not unconscious. In a separately I simply write to stress that case, finding treatment a of willfulness Geraghty permitted should not have been generally require will some direct evi- testify to that certain actions of the defend discriminatory dence intent toward ant constituted “unlawful” discrimina that, showing or a at the tion. As set out the notes of the adviso alleged discriminatory time ac- ry 704, opinions committee to Fed. R. Evid. tion, employer was motivated to merely “which would tell the what engaged pattern in a discriminate result to reach” should be excluded. Such discriminating against employ- older opinions, “phrased in inadequately terms of ees. explored criteria,” legal are inadmissible. question (emphasis added). n.10 asked this was 156 witness like This example indeed, condemned in court, the notes: “Did specifically approved the lan- T capacity have to make a will?” Profes Syvock emphasized guage from sor Geraghty appel was asked whether quotation above and added that “instruc- lant’s actions were “lawful.” Fed. R. Evid. tions to the should focus on whether 704, dispensing against while with the rule deliberately, employer intentionally opinions is not “in issues,” on “ultimate knomngly discharged the employee legal give tended to a allow witness to age.” his Blackwell v. Sun because of Fogg, United States v. conclusions. 652 Corp., Elec. (emphasis 696 F.2d at 1184 denied, 551, (5th Cir.1981), cert. 557 added). 905, 1751, 456 U.S. S.Ct. 72 L.Ed.2d [102 Judge charge dealing Wilson’s with the (1982).” Corp., Owen Kerr-McGee 162] willfulness standard here as was follows: (5th Cir.1983). 698 F.2d “[C]ourts regard You are instructed in this that an vigilant must against remain admission willfully act if knowing- is done it is done legal conclusions.” United States v. ly intentionally, and done and in violation Milton, Cir.1977); 555 F.2d of the Act. Willfulness would exist if Club, Inc., see also Marx & Co. v. Diners’ employer cert. de (2d Cir.), Combustion knew that 508-512 nied, subject Age the Federal Discrimi- L.Ed.2d (1977). Employment nation in Act voluntari- ly proceeded in the of that face knowl- sum, prepared I be concur in would conduct which it knew edge engage in judgment a of reinstatement and limited might violate the Act. Willfulness need damage despite award what I consider to purpose involve bad or evil motive a confusing improper instruction and employer. part on the of en You expert testimony. agree [sic] I with the han- regard are in this instructed an act dissent, dling attorney I fee issue. willfully is done if knowingly, however, it is done damage as to the here award done, intentionally, done I approved under circumstances of this say, in violation the Act. case.