Dolen E. Lindsey, Cross-Appellee v. American Cast Iron Pipe Company, Cross-Appellant, 810 F.2d 1094

Dolen E. Lindsey, Cross-Appellee v. American Cast Iron Pipe Company, Cross-Appellant

810 F.2d 1094

11th Cir.

1987

Check Treatment

*3 7(b) ADEA, Section 29 U.S.C. VANCE, Before GODBOLD and 626(b), provides liquidated damage for Judges, *, Circuit and SWYGERT Senior when employer “willfully” awards an vio- Judge. lates Act. In Trans World Airlines v. Thurston, Ill, 469 U.S. 105 S.Ct. SWYGERT, Judge: Senior Circuit (1985), L.Ed.2d 523 Supreme Court held that an' ADEA violation is willful if “the court, In a return visit to this Dolen employer either knew or showed reckless Lindsey appeals the district court’s denial disregard for the matter of whether its liquidated of his claim for in this prohibited conduct the ADEA.” Id. age discrimination suit. Lindsey’s employ- 128-29, at 105 S.Ct. at 625. er, Pipe Company American Cast Iron (ACIPCO), cross-appeals from district trial, Lindsey At presented evidence that prejudgment court’s award of interest demonstrated that he asked about Lindsey. We believe that promotion, ACIPCO’s Vice President of Airlines, Court’s Trans World Finance and Treasurer John Foshee said Thurston, Ill, Inc. v. 469 U.S. company looking that “the would be for a (1985), 83 L.Ed.2d 523 supports both person younger Lindsey.” I, than Lindsey an pre- award for ACIPCO countered with judgment Therefore, interest this case. promote evidence that it refused to Lindsey we reverse the denial of dam- legitimate nondiscriminatory reasons. ages and the prejudgment jury, however, affirm interest Id. ACIPCO’s award. pretext1 reasons mere and credited * Swygert, Honorable Luther M. Douglas Senior U.S. Cir- discrimination. See McDonnell Judge Circuit, sitting by Green, 792, 802, cuit the Seventh designation. I, (1973). Lindsey L.Ed.2d In we deter- although attempted mined that ACIPCO jury proceeded 1. The trial this case under the reasons, legitimate present "there was sufficient Douglas proof, McDonnell mode of which re- jury [Lindsey for the evidence to find that had] quires plaintiff present prima to first facie successfully refuted ACIPCO's articulated rea- case of discrimination. If the defendant I, his sons for non-selection.” presents nondiscriminatory evidence reasons at 802 n. employment for the must addition, In trial the court instructed the prove then that the defendant’s articulated rea- jury: pretext merely sons are cover-up for the issue, Id. deciding at 802. The standard. the dis- Lindsey’s account. upon proffered trict relied had inten- ACIPCO’s accordingly found against Lindsey nondiscriminatory promot- reasons for not be- tionally discriminated argues appeal, ing Lindsey.2 ACIPCO that Lind- age. his On the first this cause of right sup- sey waived his to a trial on the substantial evidence court held that finding. at 801-02. issue and that it was ported jury’s addition, proper for the district court to decide the defendant admitted at trial prohibited willfulness issue on remand.3 it knew considering employee’s employers from need not decide whether Lind We making decisions. sey right waived his to a trial on that I, Thus, this court reversed the did, assuming issue because even that he entry judgment court’s notwith- the district court should not have denied standing verdict and reinstated liquidated damages. The court was not at *4 verdict. jury’s findings make liberty to conflicted remand, jury’s findings. plaintiff neither the nor with the When some is On jury additional evi sues are tried to the and some to the presented defendant the court, jury generally issue. The district the issues should be dence on the willfulness Otherwise, issue, estoppel first. collateral applying the the heard court then decided judiciata or res Thurston “knowing disregard” apply deprive could and or reckless gives specific sidestep jury’s reasons 2. The district court tried to the Where a defendant promote plaintiff by relying its not to a in a for decision disbelief of ACIPCO'sreasons on the Age Employ- case under the Discrimination testimony Lindsey. emphasized The court Act, burden is not on the defendant ment the Lindsey’s previously turned statements that he prove are the real ... that reasons stated job he down a with ACIPCO that believed was Rather, and valid reasons for the decision. jury critical. The court held that the had credit- plaintiff by to show a the burden is on the and, therefore, testimony ed that ACIPCO had preponderance evidence that the stated of the legitimate the reasons for decision. merely pretence up are a or cover reasons 2, Appeal, Record on Vol. at 101-03. This find- determining age was the in the factor however, jury’s ing, the face of the find- flies in promote plaintiff. the decision not ing jury of intentional discrimination. If the truly selected another believed that ACIPCOhad employer The defendant as an is entitled to job Lindsey person for the because had turned subjective judgments its business make regarding own job change, jury previous could down a then pro- individuals for the selection of Lindsey. have found for not may any person any select for motion and person’s age or some reason other than waiver, Lindsey absence of was entitled other consideration forbidden law. liability jury only trial not on the issue of to a qualified defendant employee is entitled to select one damages, on the issue of as well. In 1978 but equally qualified another em- over Congress specifically amended the ADEA to add good ployee believes who the jury provision: a trial employee faith that the selected would do a job, long better pretext so as this belief is not a by jury person a shall be entitled to a trial for discrimination. any any issue of fact in such action recov- you If believe that the defendant did not ery owing of amounts as a result of a viola- vacancy plaintiff it select the for the Act, regardless eq- of whether tion of this plaintiff believed in faith that sought by any party in such uitable relief is qualified employee job for the or not the most action. did not believe that the could ade- 1979). 626(c)(2) (Supp. Ill The Con- 29 U.S.C. manager’s job, quately perform the assistant Report on the 1978 Amend- ference Committee you may against return a verdict not then owing" phrase "amounts ments defines the defendant. liquidated damages. See Goodman v. include Excerpts Record at 26-28. Plaintiffs 127, (2d Heublein, Inc., n. 2 F.2d 645 presume jury followed Because we Cir.1981) (jury issues trial available for factual verdict, rendering see its instructions in Therefore, damages). underlying liquidated 253, Aluminum, v. Kaiser 789 F.2d 261 Bemdt jury trial for all factu- was entitled to a 219, Harrison, (3d Cir.1986); 332 F.2d Klink v. claim, including his claim of his ADEA al issues (3d Cir.1964), jury must have 225 to find for the defendant’s evidence in this case. 1098 See, verdict, rights. trial

litigants e.g., jury’s findings of their and the fact became Westover, Theatres, part Beacon Inc. 359 of our mandate. 948, 955, 500, 508-09, U.S. 3 doctrine, Under the law case (1959). principle This L.Ed.2d 988 extends a district may court not deviate from the to the instant in which the tried appellate See, mandate. court’s e.g., the court tried liability issue and Grove, City Wheeler v. Pleasant 746 damages issue. has necessar Once 1437, (11th Cir.1984); F.2d 1440 City of issue, ily actually or decided district Comm’n, Cleveland v. Federal Power 561 Moreover, may it. not reconsider 344, (D.C.Cir.1977); 348 see also IB J. may is that the ‘court well-settled “[i]t Moore, Currier, J. Lucas T.& Moore’s Fed contrary findings’ make to or inconsistent (2d 1983). eral Practice ed. A 110.404[10] jury’s with the resolution ... of that same court, however, may reconsider an implicitly general issue verdict____” reflected its disregard appellate issue and mandate v. Board Trustees Craft “(1) subsequent produces trial sub Illinois, University evidence, (2) stantially controlling different — (7th Cir.), denied, U.S.-, cert. authority contrary has since made a deci (1986) (quoting S.Ct. 93 L.Ed.2d issue, applicable (3) sion of law to that Ohio-Sealy Mfg. Mattress Co. v. Sealy, prior clearly decision was erroneous (7th Cir.1978), cert. injustice.” would manifest work denied, 59 Wheeler, (quoting F.2d at United (1979)). L.Ed.2d 486 *5 Robinson, States v. Cir.1982)).

The district court here erred as a The here district court could not by redeciding matter of law factual issues general circumvent the law of the case already necessarily by determined the principle, notwithstanding the fact that the jury.4 jury rejected Because the ACIPCO’s Supreme Court in Thurston pretext reasons for its age actions changed legal the for determining standard discrimination, the court was not free to liquidated whether damages. to award prove resurrect those same reasons to The Court decided Thurston after the dis “good ACIPCO’s faith.”

trict court initially tried this case. The addition, by entering new find decision did the facts already not alter de ings of fact that are inconsistent by jury. with our termined the While the district I, decision in the district court empanelled court could have a jury new own, circumvented the of the case heard law and ex additional on its evidence it did ceeded that parties the mandate issued from not do so that and neither of the offered decision. This jury court reinstated the additional the evidence on willfulness issue. interpreted ployer 4. subject liquidated The district court Thurston to bar could not be to then liquidated damages here, damages. if: applying But the standard as it, employer reasonably good interpreted an the acts and in district court there faith was no interprets which in this the finding good context to basis for a faith. The of mean that other if there are reasons unrelated they court had instructed the that could not (sic) to race which would have led to the same Lindsey they employer find for found if that the employer decision and the court finds that the good "believed in the that was not faith reasons, part relied in employer on those other then the qualified employee job.” the most for the Plain- subject liquidated damages. is not to By Excerpt returning tiffs Record Appeal, Record on Vol. jury necessarily Lindsey, verdict for Apparently, the district court believed that if any good notion that ACIPCO"believed in faith” employer age unrelated reasons to any nondiscriminatory reasons on which employment employer then the Accordingly, purported rely. there were no might discriminating not think that it was on age other unrelated to credited reasons that age. Consequently, employer the basis of would have led to same deci- would not know its actions violated sion. The did not believe the reasons that may only impose liqui- ADEA. Since a court presented. ACIPCO violations, dated for willful the em- hand, Instead, applied the Thurston Id. at 625 n. 22. On the other the court own, findings motive, new of fact require to its Court refused to evil standard bad with the facts estab- that were inconsistent purpose, or intent to violate ADEA. jury verdict and the first lished n. Id. at 624 19. The Thurston standard resurrecting discredited appeal. By thus falls somewhere between automatic recov- testimony, district court violated the ery recovery of of I. mandate aggravated only limited circumstances. standard for Applying the Thurston applied The Thurston Court jury’s fact find liquidated to the plan in new standard to TWA’s retirement Lindsey is entitled to ings, we hold that impact disparate situation. Id. at 625-26. The found that apply The standard is easier to such a intentionally discriminated case because there is no initial of of his against Lindsey because See, e.g., intentional discrimination. Koss for its deci “legitimate” its reasons County, 800 F.2d man v. Calumet merely for the discrimi pretext sion were (7th Cir.1986) (Attorney General addition, admit the defendant nation. county illegality warned its retire prohibit that it knew the ted at trial policy knowing ment case of viola age in employee’s ed consideration —clear tion); Knoxville, City Together making employment decisions.5 Whitfield (6th Cir.1985) (good F.2d 455 faith belief satisfy prong strictest these facts constitutionally apply ADEA could the em willfulness standard: the Thurston city’s policy ployer that its conduct violated the retirement knew —no Thus, danger damages). Unfortunately, exists in this case ADEA. no courts are find damages upon an imposing liquidated ing helpful disparate the standard less made a faith effort to cases, who treatment such as the instant one. ADEA. comply with the example, For in Dreyer v. Arco Chemical (3rd Cir.1986), tightened liqui- explained, danger Third Circuit “There is a imposing damages standard to avoid *6 disregard’ that use of the ‘knew or reckless Thurston, In every them in case. employment standard for a discrete deci legislative history of Court examined the age sion that has been made on the basis of appropriate to ascertain recovery liqui would in effect allow the of liquidated damages awards. threshold for damages any time there was a dated viola The 105 S.Ct. at 624-25. Court sought tion of the Act.” The Third Circuit picture” “in the more lenient standard distinguish and between intentional will applied liquidated damages in cases FLSA impos the ADEA to avoid ful violations of adopted “knew the somewhat stricter ing damages every dispar in almost double disregard” reckless standard. showed Relying upon ate treatment case. Id. sec explained that the lesser Id. The Court 908(2) (Second) tion of the Restatement recovery liq- of standard “would allow the Torts, modified the the court Thurston damages even if the act- uidated “outrageous” complete ‘good require conduct reasonably and in faith.’ standard ed damages disparate in Congress hardly intended such a result.” to recover Jr., was, Doughty, that. Joseph who at the time of A: Yes. I'm aware of P. decision, you Q: other ACIPCO [the Assistant Treasurer And know that ACIPCO, on cross-ex- in the also decision] and Controller of testified officers involved Act? amination: knew about the A: Yes. not, aware, you Q: were at the You were Appeal, Supplemental Record on Vol. being time decision was made that it argument, Lindsey’s distin- At oral counsel discriminatory to consider someone’s was knowledge guished from the old “in the this decision, you? age making a weren’t in here, standard, picture" at the moment A: Yes. employer made the he knew that you Q: knew about this Act that said And you permitted. that, discrimination was not you? do didn’t couldn’t liquidated damages The court clearly treatment cases. Id. declined to erroneous damages impose liquidated Dreyer, in age explicit was the reason for em- implementing where was a reduc- decision); ARCO ployment Real v. Continental Dreyer plan tion-in-force did not con- Inc., Group, (N.D.Cal. F.Supp. job pre- tend eliminated that her as 1986)(sufficient evidence of intentional dis- employment. text to terminate her at plus knowledge crimination sup- of ADEA Circuit, struggling 658. The Third to ports jury’s finding of liqui- willfulness— intentions, Supreme understand the Court’s appropriate). dated Contra distinguish attempted to between “willful” McNeil v. Laboratory, Economics difficulty This sort of and “intentional.” (7th Cir.1986) (although modify led that court to further the stan- court found substantial evidence of discrim- conflicting dard to some sense of the make inatory plus knowledge ADEA, intent messages opinion. from the Thurston denied damages holding not — The Third Circuit is not alone in its frus- clearly erroneous). The case at bar is not tration with Thurston standard. We one which the declined to find will- knowing disregard find the or reckless after finding fulness intentional discrimina- difficult to reconcile standard with the ad- express opinion tion. We no on whether imposing liquidated monition to avoid dam- holding our would be the same if this case case, ages every at least in the context procedural posture. in that were disparate treatment cases. The Thur- The Fifth recently liqui- Circuit awarded wrestling ston leaves the courts case, in a similar Powell v. issue. There International, Rockwell logical way square is no a finding of (5th Cir.1986). Powell, intentional discrimination awith employee claimed that Rockwell fired him employer’s part. faith on the because he had an ADEA filed suit. Id. at acknowledge While we the awkwardness argued 282. Rockwell that it terminated disparate Thurston standard in a Powell because he had removed a doc- adopt treatment we decline to plant ument from the without Rockwell’s fact, Third Circuit’s modification. however, jury, authorization. Id. The re- argument oral ACIPCO’s counsel conceded jected argument pretext this for. require showing did not Thurston though discrimination. Id. at 283. Even outrageous conduct. The applied stringent, the district court a less specifically rejected stringent “inten- pre-Thurston willfulness standard tional” violation standard. 469 U.S. at 126 awarding liquidated damages, the Fifth n. 105 S.Ct. at 624 n. 19. On the other held it was harmless error. hand, every plain- we hesitate to hold that explained necessarily *7 tiff who liability phase wins of a found willfulness when Rock- Douglas age McDonnell discrimination argument: well’s automatically liqui- case should receive only question before the was [T]he damages. Court cau- discharged whether for vio- Powell against awarding liquidated tioned dam- lating company policy, or whether he was ages Instead, every case. only we hold discharged filing for his ADEA claim. on jury’s that the facts of this jury specifically Because the found that finding of intentional discrimination deter- discharged filing Powell was for pursuant given mined to the instruction claim, possibility ADEA there exists no jury concerning good coupled faith any good upon faith action which knowledge defendant’s admission of that rely Rockwell can to avoid prohibited the ADEA such discrimination words, any precluded other assertion good faith. See 1298, that Rockwell acted in faith in ter- Galvan v. 785 F.2d 1307 Bexar denied, Cir.), (1986) minating its were 790 F.2d 890 Powell and that actions reh’g (district knowing finding of not in reckless or violation of court’s willfulness

1101 rejected by argument, however, the ADEA was ACIPCO’s dis regards the justifications found that the difference the language of FLSA section on firing by Powell offered Rockwell were and the provisions. Thurston, ADEA’s See pretextual. 469 125, (“the U.S. 105 S.Ct. at 624 remedial 6; at 286-87 n. see also v. Goodman provisions of are not [FLSA ADEA] Heublein, Inc., 127, (“an n. 645 F.2d 6 identical”). provides The FLSA section employer’s action if taken because of only “unpaid for an award of minimum impermissible age, factor such as cannot be wages, unpaid or their compensa overtime mistake, negligence, the result of or other tion equal ... an additional amount as reason.”). innocent liquidated damages.” 216(b). 29 U.S.C. § stronger. The instant case is even Add differs, The ADEA “empowering the dis jury’s rejection justifi- to the of ACIPCO’s grant legal trict court to such equitable or cations the admission that ACIPCO knew may appropriate relief as be to effectuate the ADEA that barred deci- purposes chapter, of this including upon age, sions based and the result is an limitation, judgments without compelling prohib- who knew that the employment, promotion, reinstatement or its satisfy ited actions. ACIPCO’s actions enforcing liability or for amounts requirements the “willfulness” of Thur- unpaid deemed to be wages minimum ston and entitle dam- unpaid compensation overtime under this ages. 626(b); section.” 29 U.S.C. see also Lor illard, 581, 434 U.S. at 98 S.Ct. at 870 (Congress followed different course with II allowing equitable relief in any ADEA— action to While the district court refused to im- enforce). These sug variations pose liquidated damages, pre- it did award gest Congress that intended a different judgment Lindsey. interest ACIPCO range of remedies under the ADEA. cross-appeals argues this award and addition, circuits, number includ prejudgment interest cannot be awarded one, ing this acknowledged have the avail under the ADEA. counters that ability prejudgment interest awards un only prejudgment not is interest available See, der e.g., the ADEA. O’Donnell v. ADEA, under the it remains available even Inc., Georgia Osteopathic Hosp., liquidated damages. when a court awards 1543, (11th Cir.1984); Heiar v. Craw Wisconsin, 1190, County, ford posi We find ACIPCO’s extreme (7th Cir.1984), denied, cert. 472 U.S. unpersuasive. argues tion (1985); 105 S.Ct. 87 L.Ed.2d 631 Congress incorporated proce Airlines, Criswell Western dures and remedies of the Fair Labor Stan (9th Cir.1983), on aff'd (FLSA), 201-19, dards Act 29 U.S.C. §§ grounds, other ADEA, Pons, into the see Lorillard v. (1985). Thus, 86 L.Ed.2d 321 we find 575, 580-84, 866, 869-72, U.S. prejudgment is interest available as a (1978), L.Ed.2d 40 a court should consider remedy ADEA cases and that the district may FLSA cases to determine whether it court did abuse its discretion award prejudgment award In this cir interest. ing prejudgment interest. plaintiff may prejudg cuit a not recover *8 private reversing ment interest in a In FLSA action. the district court’s denial of See, e.g., liquidated damages, Tiffany English Barcellona v. we confront the issue 464, (5th Pub, Cir.1979);6 plaintiff may 597 F.2d 469 see of whether a recover both Co., 370, liquidated damages prejudgment Hill Penney also v. J.C. 688 F.2d and inter- (5th Cir.1982). 4 375 n. est under the ADEA. v. O’Donnell 1206, 30, Prichard, City prior September precedent 6. See Bonner v. F.2d to as 661 cases 1981 (11th Cir.1981) cases). (adopting 1206 Fifth Circuit for Eleventh Circuit 1102 case, Hospital, prejudgment this circuit law. In the instant Osteopathic

Georgia stand, prejudgment may interest in of both award addition to an held that an award damages liquidated award of liquidated constituted interest and thus not allow- recovery and a double reasons, foregoing For we RE- ADEA. 748 F.2d at 1552. able under the deny the district court’s decision to VERSE that under 29 U.S.C. This court reasoned liquidated damages liquidated and award FLSA, 626(b) liquidated damages of the § damages plaintiff. to the We AFFIRM the compensation delay pay- in represent prejudgment award of interest. owing. Id. Because the ment of amounts liquidated damages incorporates ADEA VANCE, Judge, concurring FLSA, we held that provision of the dissenting part: part and damages compensatory. liquidated are also panel I in the concur ma- also prejudgment Because interest jority respects except in all as to the award compensate, this court concluded serves interest, I prejudgment from which dis- allowing prejudgment both interest sent. damages liquidated and would enable Congress explicitly has stated that loss- plaintiff to recover twice for the same owing amounts under the ADEA are es. Id. owing deemed to be amounts under the this circuit’s decision Since 626(b); FLSA. 29 U.S.C. O’Donnell See however, O’Donnell, Georgia Osteopathic Hospital, v. 748 F.2d In that the Court decided Thurston. 1543, (11th Cir.1984). 1552 It is settled legislative history of the ADEA to read the prejudgment that an award of interest both liq Congress intended for “indicate[ ] liquidated damages represents and a dou- damages punitive uidated to be nature.” recovery ble under the Brook- FLSA. See 125, Liqui 105 469 U.S. at S.Ct. 897, O’Neil, lyn Savings Bank v. 324 U.S. damages the ADEA are differ under 895, (1944); 65 S.Ct. 89 L.Ed. 1296 Barcel- ent in kind from those under the available Pub, Inc., English Tiffany lona v. 597 damages FLSA. ADEA awards 464, (5th Cir.1979); F.2d 469 Foremost violators, liq punish and deter while FLSA 186, (5th Ivey, Dairies v. 204 F.2d 190 compensate merely uidated for Cir.1953). I can fathom no reason for damages that would be difficult to calcul treating the successful ADEA dif- Therefore, awarding prejudg both ate.7 ferently counterpart his from FLSA liquidated damages in an ment interest and respect liquidated damages prejudg- ADEA case does not constitute double com ment interest. pensation. decision, light of the Thurston recovery

portion of that bars O’Donnell liquidated damages prejudgment

both longer

interest under the ADEA is no 869, 1982); Only recognized Goldring, has the dif Kolb v. 694 F.2d 875 the Ninth Circuit prejudgment (1st Cir.1982); Spagnuolo Whirlpool Corp., ferent functions of interest and v. liquidated damages 1109, (4th Cir.), denied, and has allowed simulta 641 F.2d 1114 cert. 454 recovery Western 860, neous of both. See Criswell v. 316, (1981). U.S. 70 L.Ed.2d 158 Airlines, 709 F.2d at 556-57. Other circuits that however, confirms the The Thurston concluded, question have as considered approach in Criswell and under- Ninth Circuit’s O’Donnell, we did in assumptions of the other circuits’ mines the prejudgment compensa and tory interest were both decisions, including ours in O’Donnell. See simultaneously and thus not recoverable. Bank, N.A., Manhattan Bonura v. Chase 1473, Co., See Blim v. Western Elec. 353, (Thurston (S.D.N.Y.1986) F.Supp. 363-66 denied, 874, (10th Cir.), U.S. 1479-80 cert. prejudgment does not clarifies "that interest (1984); S.Ct. 83 L.Ed.2d 161 Rose v. recovery provide victims of a double Register Corp., National Cash proven their entitle- discrimination who have (6th Cir.), denied, cert. well as back- ment to (1983); 78 L.Ed.2d Gibson Mohawk pay.”). Rubber Cir.