John D. Starceski, at No. 94-3208 v. Westinghouse Electric Corporation, at No. 94-3182

gery, findings. point inferred is the of “maximum court’s Simek cure.” How- the district any ever, acci- position had occurred because upon no accident McCormack’s is based an him, reported to should have been incomplete dent testimony. recitation of Deisler’s that Daniel testified Deisler re- none was. Deisler testified that his doctors told him his him ported the accident to after Deisler had condition improve would not without sur- when, Regardless of if been terminated. gery.21 ever, told or Daniel of his Deisler Simek accident, the evidence that Deisler told Ellis III. CONCLUSION injury prior being and Melendez of his For the reasons stated above we find that supports the district court’s find- terminated arguments McCormack’s are without merit. ing. Accordingly, judgment of the district Third, argues that McCormack court will be affirmed.22 finding that the inves district court erred tigation of Deisler’s claim was not conducted good faith. McCormack claims that the finding equally upon er

court based finding namely, only

roneous rea pay did not maintenance and son McCormack that no

cure was that it believed accident sup and that the medical evidence

occurred porting ignored. Deisler’s claim was STARCESKI, Appellant D. John previously detailed abundance 94-3208, at No. supporting evidence the district court’s find- ing rely that McCormack did not on Deisler’s

pre-existing condition in hir- medical either WESTINGHOUSE ELECTRIC ing pay him or in its decision not to mainte- CORPORATION, Appellant Moreover, sup- nance and cure. the record at No. 94-3182. ports finding that all of the evidence which 94-3182, Nos. 94-3208. tended to corroborate Deisler’s claim was ignored by McCormack. Appeals, United States Court of Finally, argues McCormack Third Circuit. finding court district erred Deisler Argued Oct. 1994. improvement will reach maximum medical approximately surgery. four months after 3,May Decided McCormack claims that Deisler admitted in testimony him his trial that his doctors told

toward the end 1989 that his medical improve. Appel

condition would Brief of

lant at 25. McCormack claims that the end rather than four months after sur- Absolutely. following

21. Defendants failed to include the tes- A. timony you Q. in their brief: why Is that hesitated? you surgery Q. Did Dr. Molzen tell would A. Yes. improve your condition? Suppl.App. at 20. tricky question. A. That is Dr. Molzen rec- me, Yes, surgery yes. ommended it would grant 22. We will also Deisler's motion for reim- improve my condition. There is also a threat bursement of the costs associated with Deisler’s successful, yes that it will not be would it Supplemental Appendix. submission of a help. inadequate Appendix filed McCormack Gott, you surgery Q. Dr. did he tell testimony editing and the of Melendez and improve your would condition? misleading. Deisler was so selective as to be Yes, did. A. he Supplemental Deisler therefore had to file the they you Q. But also told that there were Appendix clarify the record. risks involved. Q. Symons, (argued), Westinghouse Louise PA, Dept. Corp. Pittsburgh, Elec. Law Corp. Elec. STAPLETON, Before: HUTCHINSON GARTH, Judges. Circuit OPINION OF THE COURT HUTCHINSON, Judge. Circuit AppellanVcross-appellee Westing Corporation (“Westinghouse”) house Electric appeals an order of the Dis United States trict Court for the Western District of Penn sylvania denying Westinghouse’s post-trial judgment notwithstanding motion verdict,1 a new trial or a remittitur of dam ages appellee/cross-appellant John D. (“Starceski”) claim for violations Starceski’s Age Employment of the Discrimination in (“ADEA”), seq. § 29 U.S.C.A. 621 et Act (West Supp.1994). 1985 & Starceski cross- appeals parts other of the same order that pre-judgment his for denied motions interest and reinstatement.

We will affirm the district court’s denial of Westinghouse’s post-trial motions. The rec- critically ord is not deficient of evidence from jury might reasonably which a found Westinghouse against discriminated age, appear nor it because of does Starceski abused its discretion that the district court refusing Westinghouse’s motions for new reject Westing- trial or remittitur. We also objections to the district court’s Price house’s “mixed-motives” instruction and Waterhouse jury’s finding willfully it challenge to the against discriminated Starceski. cross-appeal from the denial On Starceski’s pre-judgment interest and of his motions for reinstatement, district we will vacate the denying motion for court’s order Starceski’s for the pre-judgment interest and remand calculating purpose of the interest due adding judgment; but we will affirm it to his him Vater, Jr., grant refusal to rein- (argued), Beth Ann the district court’s Joseph A. Scott, pre-judgment inter- Pittsburgh, An award Slagle, Meyer, Unkovic & statement. an PA, together est with award D. for John Starceski. involuntary systems an judgment once called a motion for n.o.v. is now one of

1. The motion "judgment non-suit) as a three motions called motion for the motion for a directed verdict 50(a). 50(a)- of law.” See Fed.R.Civ.P. The matter See Fed.R.Civ.P. the close of all evidence. correspond to the motion for a direct- other two ed verdict at the close of (b), as amended in 1991. (in plaintiff's case some average age fifty-one. average age recovery. The two was The damages is not a double remaining engineers department purposes together serve different and work thirty-nine. youngest pur- was member to facilitate the ADEA’s “make-whole” ultimately by Westing- Finally, court the six was retained pose. we hold that the district house, along concluding that reinstatement with others who ranked lower did not err in performance according inappropriate under the circumstances. than Starceski

Saul’s evaluation. I. Facts and Statement of 13, 1991, On March Starceski filed this History Procedural against Westinghouse alleging that it action April Westinghouse In terminated age him terminated on the basis viola- engineer position his senior Westinghouse stipulated Starceski from tion of the ADEA. thirty-six years job after of sendee. When ter- performance was not a Starceski’s minated, was about one month layoff, Starceski that it factor his but contended sixty-fourth birthday. short of his part of a in force and a lack of reduction persons work for with Starceski’s skills. The Westinghouse worked for Starceski initially granted Westing- district court March 1951 to 1953 and from 1956 to 1981 as summary judgment, house’s motion for engineer in its Bettis Atomic Power Labo- Court, appealed to this and we Starceski ratory.2 Westinghouse In March for trial. reversed and remanded ease him to its Nuclear Divi- transferred Services Electric Starceski (“NSD”). responsible, There he was sion Cir.1993). F.2d 879 among things, design, building other upgrading repair 11, 1994, of tools to com- February reactor On returned a early ponents power plants. in nuclear awarding compen- general verdict Starceski began reporting $267,268.55. to Richard satory Immediately damages of Saul, Westing- supervisor, announced, a first-level whom jury’s after the verdict was coun- February house terminated 1989. Starce- requested sel for Starceski reinstatement. Jaafar, reported directly ski thereafter to Ali request. The district court denied this It manager the second-level who had been charged jury then on willfulness. The supervisor. jury willfully Saul’s Westinghouse found that had against discriminated Starceski on the basis 1988, In late Jaafar received a directive age. compensa- This doubled Starceski’s by eighteen people reduce his staff about tory damages giving totalling him an award year. during following testified Saul $651,910.68after counsel fees and costs were that, meeting, in an October 1988 staff Jaafar added. managers directed the first-level to transfer younger employees from older to and Post-trial, work Starceski asked for the addition employees to rank their value to the pre-judgment and interest reinstatement. Saul, group. According to Jaafar also in- hand, Westinghouse, on the other filed a structed him to “doctor” Starceski’s evalua- judgment motion it a “motion for called poor performance. or, alternative, tion to reflect Starceski n.o.v.”3 a new trial or given, stated once these orders were he remittitur. The district court denied West- given any assignments was not new and work inghouse’s request motions and Starceski’s away was also taken other older col- pre-judgment interest and reinstatement. leagues, immediately being sometimes after timely appeal cross-appeal This and followed. assigned to them. II. Jurisdiction and Standard Review 1989,

In March Starceski and five other engineers subject juris- were informed that their The district court had matter services ADEA, longer were no needed. Five of these six diction over this case under the 29 § protected age group. seq. appellate were in ADEA’s Their 621 et U.S.C.A. 1956, 2. From about 1954 to Starceski worked for 3. We will hereafter refer to this motion as a judgment motion for as a matter of law. See Sikorski Aircraft. supra n. 1.

1095 Rotondo, (West § reviewed for clear error. See 956 1291 jurisdiction under 28 U.S.C.A. 921). Link, (citing F.2d at 438 788 F.2d at 1993). ill. Discussion reviewing court’s rul In a district judgment as a ing post-trial on a motion challenges raises several law, applies the same matter of this Court post-trial the district court’s denial of its Lightning (1) court. as the' district standard motions. It asserts that the district court 1153, Lube, Corp., 4 F.3d 1166 Inc. v. Witco improperly gave jury a so-called “mixed- (3d Cir.1993) (citations omitted); instruction, Rotondo v. v. motives” see Price Waterhouse (3d Cir.1992). 436, 228, 1775, 104 Corp., Hopkins, 490 U.S. Keene (2) (1989); light favor the district court record in the most L.Ed.2d We view the winner, upholding jury’s finding affirm the erred able to the verdict “ Westinghouse had failed to sustain its Price critically the record “is defi denial ‘unless proving Waterhouse burden of that Starceski quantum minimum of evidence cient regardless would have been terminated of his jury might reasonably afford from which ’ ” (3) age; there was insufficient evidence to Rotondo, (quoting 956 F.2d at 438 relief.” uphold jury’s finding of a willful ADEA 950, Corp., F.2d Chrysler Dawson (4) violation; necessary a remittitur was (3d denied, Cir.1980), because there was insufficient evidence to Denneny v. L.Ed.2d 383 and jury’s support award. (3d Cir.1969)); Siegel, F.2d America, Stops Corp. Keith v. Truck argues cross-appeal, On his Starceski Cir.1990) (citations granted court should have his district omitted); v. Mercedes-Benz North Link pre-judgment motion for interest and rein- America, Inc., Westing- Cir. will first discuss statement. We 1986). words, arguments In the court must deter then other house’s Starceski’s cross-appeal. a reasonable could have mine whether party. prevailing for the Newman found A. Pretext and “Mixed-Motives” (D.Del.1989), F.Supp.

Exxon (3d Cir.1990). 'd, 904 F.2d 695 submitting Before the case to the aff jury, court determined that the district reviewing denial a district court’s provided direct evidence sufficient remittitur, trial or we of a motion for a new support age-based disparate a claim of generally Waterhouse, whether the district court ask requiring a Price or treatment discretion, instruction, but if the court’s denial abused its rather so-called “mixed-motives” application a is based on 411 Douglas/Burdine, of the motion McDonnell than a and, 1817, plenary 792, in legal precept, our review is 36 L.Ed.2d 668 93 S.Ct. (1973) 248, 1089, addition, any findings fact on 101 S.Ct. 67 which and 450 U.S. (1981), pretext instruction.4 depends are L.Ed.2d 207 court’s exercise of discretion legitimate, burden-shifting articulate a nondiscrimi- between the er who must 4. The difference employment Douglas/Burdine pre natoiy deci reason for the adverse of a McDonnell framework 802, Douglas, 411 U.S. at 93 a "mixed-mo sion. McDonnell text case and Price Waterhouse 253, 1824; Burdine, at 101 employment S.Ct. at 450 U.S. discrimination case has been tives” produce employer Mary’s does subject St. S.Ct. at 1093. If the of much comment since Hicks, U.S. —, showing legitimate, evidence a discharge, nondiscriminato Honor Center v. — 2742, (1993) (itself pro pretext ty the burden of a reason for the 125 L.Ed.2d 407 1991, case) employee Rights back to the who must Act of Pub.L. No. duction shifts and the Civil 102-166, 1071, explanation employer’s proffered is which codified Price show 105 Stat. 254-55, Burdine, at 101 42 450 U.S. "mixed-motives" standard at incredible. Waterhouse's 1094; 2000e-2(m) (West 1994). Unisys Corp., v. 32 § S.Ct. at Armbruster U.S.C.A. See Mardell Perskie, Co., 1221, 768, (3d Cir.1994); Fuentes v. Harleysville 778 1224- F.3d v. Ins. 31 Life 759, Cir.1994) (3d Cir.1994). (quoting McDon problem 32 F.3d We review the brief 802, 1824). Douglas, S.Ct. at may 411 U.S. at ly. employment case nell An discrimination proof or risk of non- pretext At all times the burden of either a or "mixed-motives” advanced on case, proving including "but employee persuasion, the burden of theory. pretext has In a once the fact, discrimination, remains on or causation in prima showing for” causation facie made 253, Burdine, employee. U.S. at employ going to the the burden of forward shifts Waterhouse, (citing Id. at 778 Price contends that the decision 244-46, 109 Griffiths, charge court on at the district S.Ct. 1787-88 and 12) was not in accord with the (emphasis “mixed-motives” 988 F.2d at 469-70 and n. and, substantially timing, added). Miller, law because of its also 47 F.3d at 593-94. See prejudiced Westinghouse. disagree. Waterhouse, In in Price her concurrence guidance Justice O’Connor offered on Corp., In v. CIGNA Griffiths denied,type to make out a of evidence needed (3d Cir.) omitted), (quotation cert. — reasoned: “mixed-motives” case. She —, S.Ct. (1993), L.Ed.2d 145 overruled on other [S]tray workplace, in while remarks grounds, Miller v. 47 F.3d 586 CIGNA perhaps probative discriminatory ani- [aof Cir.1995) (in banc), we stated that a mus], justify requiring employ- cannot theory charge on a “mixed-motives” of em- prove [employment] decisions er to ployment requires or discrimination “conduct legitimate on Nor can were based criteria. by persons involved in the deci- statements nondeeisionmakers, by statements state- sionmaking may process that be viewed as by ments decisionmakers unrelated directly reflecting alleged discriminatory itself, satisfy process suffice to decisional Block, Wolf, attitude.”5 See also Ezold plaintiffs regard; ... burden this Solis-Cohen, Schorr required is is ... direct What evidence (3d Cir.1992), denied, U.S. —, placed that decisionmakers substantial More 126 L.Ed.2d 56 re negative illegitimate reliance on an crite- cently, Unisys Corp., Armbruster reaching rion in their decision. (3d Cir.1994), F.3d 768 we made follow- Waterhouse, Price 490 U.S. at ing concerning observations the difference (O’Connor, J., concurring) (emphasis at 1805 Douglas/Burdine pre- between a McDonnell added) (internal omitted); citation Armbrus text case and a Price Waterhouse “mixed- ter, 32 F.3d at 778. motives” case: applying standard Starceski’s [I]n [mixed-motives] case unaffected case, testimony we are drawn at once to the Rights the Civil Act of the evidence Saul, who was once Starceski’s first-level plaintiff produces revealing is so manager Westinghouse. Saul testified discriminatory animus that it not nec- is Jaafar, manager responsi- a second-level essary rely any presumption Starceski, layoff affecting for the ble decision prima necessary [as case facie gave supervisors orders to him and other pretext pro- to shift the burden of action] preparation him—in under for a work force production duction. Both the burden by higher management— reduction directed non-persuasion and the risk of are shifted age assignment to consider of work. persuade to the defendant who ... must specifically Jaafar, that[,] Saul testified that at a the factfinder if discrimination even reduction, meeting concerning motivating impending was a factor in the adverse decision, employment managers told the first-level it would have made to transfer work employment regardless younger employees. the same decision from older to Saul also discriminatory of its animus. testified that he discussed Jaafar’s comments 1093; Hides, — U.S. at —, proof discriminatory S.Ct. at 113 S.Ct. direct animus leaves the at 2749. In a "mixed-motives" or Price Water- employer only an affirmative defense on the case, employee produce house must direct question of “but for” cause or cause in fact. i.e., discrimination, evidence of more direct evi required Doug dence than is for the McDonnell Miller, supra, rejected 5. In we the statement in Mardell, prima facie case. las/Burdine employee advancing that an a McDon- Griffiths 6; Armbruster, at 1225 n. 32 F.3d at 778. If the Douglas/Burdine pretext theory nell must show employee produce does direct evidence of dis that discrimination is the invidious "sole cause” animus, criminatory employer pro must then Miller, employer's of his 47 adverse action. duce evidence sufficient to show that it would However, upon we at n. relied Griffiths’s illegal have made the same decision if bias had description type of the of evidence that is needed played employment no role in the decision. to show a Price Waterhouse "mixed-motives” Waterhouse, 244-45, Price 490 U.S. at 109 S.Ct. Miller, case. 47 F.3d at 597 n. 9. 1787; Mardell, short, at 31 F.3d at 1225 n. 6. In (8th Cir.1992) (statements demonstrating meeting and managers after the with other “designed, in that a work force reduction as an order they statements took Jaafar’s employees,” part, older entitled in the to eliminate employees for termination up older set charge), plaintiff to a mixed-motives vacated Saul said force reduction. impending work — —, engi grounds, that the older on other U.S. actually a fact “it was Because Starce- people going to be 126 L.Ed.2d [were] neers or the senior type, (“App.”) at evidence of this the dis Appendix ski introduced go in Joint let *89.” giving not a that instruct trict court did err also testified Jaafar 446. Saul Hook, performance “mixed-motives” instruction. him to “doctor” Starceski’s ed Cf. poor (finding comments they reflect F.3d at 375 sexual appraisals that would so supervisor insufficient a plaintiffs from Jaafar performance. These' directives charge they had managers are “mixed-motives” because and' other first-level to Saul plaintiffs job performance nothing needed to do with kind of evidence precisely and were unrelated to the adverse decision [in “that decisionmakers [the] to indicate case). negative process challenged reli placed substantial here] volved [i.e., age] in illegitimate criterion ance on an however, disagree, sweeping with the We reaching decision.” Price [termination] their appeals in statement of the court of Glover Waterhouse, 277, 109 S.Ct. U.S. that: J., (O’Connor, concurring); Hook v. rule, expect general we [a]s [sh]ould Young, 28 F.3d Cir. Ernst & successfully prosecuted age all discrimina- 1994) (citing Tyler v. Bethlehem Steel involving a reduction force tion cases (2d Cir.), de mixed-motives because the would involve —, nied, employer plaintiff alleging would (1992)).6 L.Ed.2d 46 (the legitimate had both a reason economic workforce) and an ille- need to reduce the Hook, quoted approval the In we with (to gitimate employee reason terminate Circuit’s following passage from the Second age). based his or her on Mutual In opinion in Atlantic Ostrowski Companies: Glover, statement, surance F.2d at 394. This every case into the Price which could-force “[P]urely evidence would statistical framework, un- strikes us as an Waterhouse Price Waterhouse ‘mixed-mo [a warrant consequence use of the of the fortunate merely charge; nor would evidence tives’] capture the Price phrase “mixed-motives” to qualification for and avail plaintiff’s of the rationale. Waterhouse given position; nor would ability of a workplace by per ‘stray1 remarks hand, believe, the other pertinent not involved sons who are Price between a Waterhouse the distinction however, If decisionmaking process.... Douglas/Burdine case lies a McDonnell is di plaintiffs nonstatistical evidence produces proof employee in the kind of animus, for rectly to the forbidden tied former, direct of bias. on the issue policy or statements example[,] documents discriminatory animus leads evidence of decisionmaking person involved in the of a bias, only ready logical inference of to a discriminatory process that reflect per presumption also to a rational complained retaliatory type animus it. As Chief expressing bias acted on son suit, plaintiff is entitled to of in the in, Georgia, Avery v. put it Justice Vinson burden-shifting instruction.” 891, 892-93, 559, 562, (1953), Ostrowski, mind to he who has a L.Ed. 1244 (quoting 968 F.2d 28 F.2d at 374 likely pretext A (2d Cir.1992)); to do so. v. discriminate is see also Glover depends on circumstan- It 394 case is different. Douglas McDonnell gave sure, these conflicting that Jaafar must therefore assume jury was faced with 6. To be the Inc., Mills, gave Radabaugh Zip testimony these di Feed as to whether Jaafar See orders. however, 1993) (citation obliged, (8th view We are to the rectives. omit Cir. light in the most ted). evidence and review the record Starceski, winner. We to the verdict favorable law, allowing including possibility tial evidence to on factfinder infer of bur- falsity explanation employer’s den-shifting, begins that the of the it before its factfind- ing”).8 shows bias. The inference from Saul’s testi- mony against employees that bias older Accordingly, we hold that the dis played part a substantial selection of give jury trict court’s decision to a employees discharged those who would is instruction, shortly “mixed-motives” made inescapable. direct and The district court jury, before the case went to the does not gave jury did err when it a Price Westinghouse entitle to a new trial.

Waterhouse instruction. however, Westinghouse, contends Westinghouse’s B. Price Waterhouse that, even if there was sufficient evidence to Affirmative Defense instruction, a warrant Price Waterhouse it Having age played found that a role given should not have been here because the Westinghouse’s discharge decision to Starce- district court it abused its discretion when ski, required jury Price Waterhouse then Starceski, allowed after all evidence Westinghouse to decide whether sustained its in, change theory recovery his proving by preponderance burden of pretext Douglas/Burdine under McDonnell evidence that it would have terminated to “mixed-motives” under Price Waterhouse. if Starceski even it had not discriminated. Westinghouse argues that the district court Hook, words, 28 F.3d at other should have made a decision or forced an non-persuasion, risk of as as well the burden pretext election on or at “mixed-motives” production, Westinghouse was now on beginning of the case and that its failure to prove that it any- would have fired Starceski prejudicial do so Westinghouse was so way, regard age. without to his entitled to a trial. This new contention lacks merit.7 In Armbruster we said: Westinghouse stipulated employee proceed [need not] elect to poor Starceski was not terminated because pretext either or a Price Waterhouse job performance, the usual defense this Rather, theory at trial. we think that an case, kind argued of a instead that there employee may present his under case both Westinghouse was no work at which Starce theories and the district court must then Starceski, however, ski could do. pro had decide whether prop one or both theories tending duced Westing evidence to show erly apply point proceed at some house still had work he could do when it See, ings prior instructing jury. jury terminated him. The believed Starce Waterhouse, e.g., Price 490 U.S. at 247 n. ski. It Westinghouse found that did not 12; 109 S.Ct. at 1788 n. at id. proving meet its burden of company (O’Connor, J., concurring); discharged would have Starceski even if it 472; Griffiths, 988 F.2d at see also Ostrow age. had not reviewing considered his After ski, 968 F.2d at 185. presented trial, the evidence we cannot added). (emphasis say F.3d at 782 n. 17 rationally See that it does support this (“Whether Radabaugh, also finding. F.2d at 448 support Evidence will verdict pretext a case is a case persons or mixed-motives “if reasonable could differ toas question case is a for the court once all the conclusions to be drawn from it.” Gilkerson Ostrowski, received.”); Toastmaster, Inc., (8th evidence has been Cir.1985) (citations (“jury omitted).9 F.2d at [should] be instructed Westinghouse, 7. Starceski Westinghouse's argument contends that waived 9.We have considered objection. reject argument. We sheets, identifying that certain time work that Westinghouse's objection charge believe performed Starceski could have when it termi- preserve was sufficient to this issue. him, improperly nated were admitted into evi- exception dence under the business records matter, practical proofs required 8. As a hearsay argument rule but conclude this pretext defend this case under either a proper lacks merit. A foundation was laid for theory "mixed-motives” differed little. The ef- burden, they the admission of these documents fect is a shift in the were not the substance of proofs. supra 803(6) properly See n. 4. admitted under Rule Fed-

1099 ADEA, but whether the evi of the judgment violation therefore, either entitled to is not or otherwise —satisfies issue dence—additional trial on the law or a new matter of as a establishing used for willfulness.” distinct standard age discrimination. unlawful Concrete, Inc., v. 994 Bro wn Stites Westinghouse’s ADEA (8th Cir.1993). Was IV. 553, F.2d 560 Violation Willful? case, rea- district court In the instant that the contends Westinghouse next soned: jury’s upholding the court erred district undisputed that Mr. Ali was evidence [T]he signifi is Willfulness finding of willfulness. per- management was defendant’s Jaafar provides double because the ADEA cant authority decisionmaking final with sonnel discriminatory employer’s damages when evidence, layoff. Plaintiffs plaintiffs over 626(b). § 29 is willful. U.S.C.A. conduct Mr. Dick through supervisor, his then in is recovery punitive and is The double Saul, prior to the that months was several Trans- conduct. deter willful tended to layoff, Mr. told Mr. Saul planned Jaafar World, Thurston, Airlines, Inc. v. engineers plaintiffs up the “senior” set 623-24, 613, L.Ed.2d 111, 125, 83 105 S.Ct. layoff. Mr. permanent for department (1985). 523 meaning of Mr. clear testified Saul the older instructions was Jaafar’s if willful ADEA violation is An department were to engineers plaintiffs reck “knew or showed employer either lay- targeted permanent specifically for matter of whether disregard for the less that there- further testified off. Mr. Saul ADEA.” by the prohibited conduct was after, him artificial- Mr. Jaafar directed Biggins, Paper v. Hazen Co. plaintiffs performance evaluation. ly lower 1710, 338 —, —, 1701, 123 L.Ed.2d 91-0454, slip Westinghouse, v. No. (1993). Supreme Court Paper, the In Hazen 1994).11 (W.D.Pa. 14, op. at 5 March “direct” evi rejected any requirement of testimony acknowledge conflicting again discrimination, “outrageous” con dence of orders, gave these Jaafar age was whether employer10 proof by the duct obliged to view again that we are state than a determinative predominant rather Id.; light most favorable in the San evidence employment decision. in the factor Starceski, 712, See Rada Co., the verdict winner. F.3d Rico chez v. Puerto Oil Looking at the Cir.1994). F.2d at 450. (1st baugh, 997 addressing willfulness n. 9 way, Westinghouse’s position in this record Appeals Paper, Court after Hazen more than from no violation resulted “ques that the Eighth Circuit reasoned accident, ordinary negligence inadvertence or used to the evidence not whether tion is Sanchez, F.3d factually incorrect. See is willfulness is different establish record, jury acting at 721-22.12 On to establish used additional to evidence argument Westinghouse’s that Jaa- Evidence, reject permits the admis- 12.We which eral Rules imputed it. Jaafar was cannot be ordinary far's intent prepared in the documents sion of manager deci and was the final business, level a second who if the individual even course people for termi the selection of sion maker on testify their con- prepared about them does not Therefore, imputed to the is his intent 803(6). nation. Fed.R.Evid. tents. See determining purpose company both for the purpose and for the Act was violated whether “outrageous” rejection standard 10. This determining was will that violation whether effectively in Lockhart decisions overrules our Systems, Jersey v. West Health ful. See Crawford F.2d Westinghouse Credit (test (D.N.J.1994) F.Supp. Co., Cir.1989) Dreyer v. Arco Chemical alleged determining agency whether "the denied, (3d Cir.1986), F.2d decision-making 'participated agent has 94 L.Ed.2d basis of the discrimina process that forms the ") Rodgers, (quoting Hamilton tion’ of the six that five The record also shows (5th Cir.1986)). pro- layoff were in the individuals selected for reject Westinghouse’s contention the oldest. We also age group, Starceski was tected admitting a list of fifty-one. court erred the district average age off was of those laid The department, which was thirty- employees in Starceski's average age of those retained request and con- of the EEOC prepared at the nine. 1100

reasonably Westinghouse could find that grant ei- decision to or withhold a remittitur disregard” ther “knew or showed reckless for cannot be disturbed absent a manifest abuse statutory duty its to discriminating (cit avoid Spence, of discretion. 806 F.2d at 1201 against age.13 Starceski because of his ing Morse, Ac- Murray v. Fairbanks F.2d 610 (3d cordingly, Cir.1979) we will affirm the district court’s 149 Edynak and v. Atlantic Westinghouse’s denial of judg- S.A., motion for Shipping, Inc. Cie. Chambon Maclovia (3d ment a matter Cir.1977)). as of law or a new trial on 562 F.2d 215 This deferential willfulness. corollary recognition standard is judge the trial position “is the best to

V. Remittitur presented evaluate the evidence deter and Finally, Westinghouse mine jury’s jury contends the whether or not the has come to a (1) rationally verdict should be reduced (citing because Starce- based conclusion.” Id. 152-53). Murray, ski he testified was not able to 610 F.2d at work (2) disability; of an because emotional and case, In jury returned there anwas insufficient basis in the record general “presumes verdict. The law the ex precise amake pen- determination of lost findings istence of fact implied from the sion benefits. jury’s having reached that verdict.” Rail An ADEA claimant is entitled to Co., Dynamics, road Inc. v. A. Stucki be made whole for losses sustained as a 1506, (Fed.Cir.), denied, wrongful result aof termination. Albemarle 871, 220, 83 L.Ed.2d 150 Paper 405, Moody, Co. v. (1984). The district court considered how 2362, (1975); 45 L.Ed.2d 280 jury rationally Maxfield could have arrived at its Cir.1985), Int’l, (3d Sinclair 766 F.2d damage award, reasoning: denied, rt. ce clearly The award jury reflects that L.Ed.2d An ADEA plaintiff $223,616.60 awarded he claimant, however, generally not entitled to wages claimed saving plan in lost con- recovery in excess of damages. make-whole - jury plain- tributions The then added Id. A remittitur is in order when a trial pension tiffs claim lost contributions in judge jury concludes that “clearly verdict is $51,766.95_ jury amount The unsupported” by the evidence and exceeds obviously rejected, and therefore subtract- the amount needed plaintiff to make the ed, plaintiffs claim for “unreimbursed ex- whole, i.e., remedy the effect of the em penses” for 1989 and 1990 in the amounts ployer’s Spence discrimination. v. Board of $3,649 $4,466 respectively [for a Dist., Educ. Christina School 806 F.2d $267,268.55.] total of Cir.1986); Brunnemann Starceski, 91-0454, slip op. No. at 6-7. Int’l, Inc., (5th Terra Cir. 1992) (A may remittitur granted jury’s if a recognized We have that “[t]rial courts and award large is “excessive or appear so parties as invariably themselves perfect lack reason.”). contrary right judge’s hindsight trial to forecast what hap- would have employees' ages tamed the Westinghouse.” indicated who attributed to It that a concludes layoff, had excluding been selected for but then jury finding may that Jaafar have discriminated the EEOC determination that Starceski’s admin proof Westinghouse is not approved knew or charge probable istrative lacked cause. Admis respect, Jaafar's dissenting opin- act. In this probable sion of the EEOC decision on cause and Starceski, give winner, ion fails to as the verdict its file is entrusted to the discretion of the district reasonably benefit of all inferences that can court. Walton v. Eaton be drawn from the evidence. One such inference 1977) (upholding Cir. the trial court’s refusal testimony about Saul's Jaafar’s remarks is portions file). to admit of the EEOC We cannot knew of or showed reckless say that the district court abused discretion its disregard duties under the ADEA. Under here. governing the usual interpretation standards dissenting opinion 13. The contends that Jaafar’s issue, speaking generally of a any verdict we statements were insufficient to show that West- Thus, should assume so found. our inghouse so, willfully. acted doing the dis- analysis does not disturb the two-tier rule as the senting opinion any in footnote 2 disclaims need dissenting opinion suggests. to consider whether Jaafar's "conduct could be

HOI concerning effect of of evidence acts.” absence unlawful no there been had pened (3d its jury was free to draw 1231, changes the F.2d 1238 Taylor, 569 Rodriguez v. evidence 913, Stareeski’s denied, inferences from 98 S.Ct. own Cir.1977), U.S. 436 cert. entitled to concerning he was (1978); the benefits International 2254, 414 56 L.Ed.2d Broth, States, original plan. See E.E.O.C. 431 under United Teamsters of 919, Ross, Inc., Kallir, F.Supp. 1843, 1873, Philips, 420 372, 52 L.Ed.2d 324, U.S. (S.D.N.Y.1976), opinion, without past (1977) recreating 923 of (“process 396 aff'd denied, (2d Cir.), U.S. 434 approxi- F.2d 1203 degree of 559 necessarily involve a will 395, 277 920, 54 L.Ed.2d 98 conclud- S.Ct. We have imprecision”). mation and lack however, of of certain- ed, that this “risk not abuse its court did The district lost of income respect projections ty with Westinghouse’s mo it when denied discretion wrongdoer, by not must borne damages awarded The remittitur. tion for Co., Systems v. Exxon victim.” Goss Office a matter neither excessive as were Starceski Cir.1984) (citing Story 885, 889 “clearly the rec unsupported” of nor law Co., 282 Paper v. Paterson Co. Parchment (“A Brunnemann, 975 F.2d at 178 ord. See (1931)); 248, L.Ed. 544 555, law if a matter of is as verdict excessive Independent v. Association Mason appraisal or ‘any rational to exceed shown (E.D.Pa.1993) Growth, F.Supp. damages that could be based estimate (same). ”) jury.’ (quota upon the evidence before however, omitted). contends Westinghouse, dis affirm the therefore tion We obligations and family had motion Westinghouse’s that Starceski court’s denial of trict working him from precluded damages. concerns that for a remittitur record does dining and Westinghouse’s all of Having considered lost any for the basis calculation provide post-trial mo- of its challenges to the denial Thus, the extent pension benefits. tions, cross-appeal. we turn Starceski’s these recovery for includes damage award re it be Westinghouse asks injuries, Cross-Appeal Starceski’s VI. rule, employment general [an “[A]s duced. the district erred asserts allowed will not be plaintiff] discrimination interest pre-judgment denying his motion for disability” during any periods of pay back dis- For the reasons reinstatement. and has discriminated employer “an who and below, district vacate the we will cussed salary plaintiff need not reimburse interest, but pre-judgment denial of court’s to the and.unrelat plaintiff loss attributable grant reinstatement. its refusal affirm Ma employment discrimination.” ed case, son, F.Supp. at 554. Starceski’s Pre-Judgment Interest A. establishing Westinghouse had burden an award reasoned that district court Robinson v. mitigate, see South a failure to precluded in interest pre-judgment Authority, Transp. Pennsylvania eastern damages are liquidated when ADEA case Div., Cir. F.2d Red Arrow purpose “because the for willfulness jurors awarded 1993), persuade it failed to in- pre-judgment damages [like work to continue was unable that Starceski plaintiff for compensate is ... terest] of his Westinghouse in as result ing trial, up to of his funds of the use loss family problems. liquidated dam- for both [making] an award also contends Starce- Westinghouse ... double interest prejudgment ages and relating pension benefits to his proof ski’s Starceski, loss.” compensation for the same into account the he did take fails because 91-0454, op. slip No. reject also plan of a modification. effect recognized, this Court the district court may As Though argument. this pre-judgment yet whether during decided has not program pension have modified liqui- along with may be awarded produced it interest dispute, never of this the course appeals that damages. The courts dated the effect showing any documents Com- are divided. this issue have decided In the pension. on Starceski’s modifications Airlines, pare Inc., Criswell v. guides Western answering question. us in There (9th Cir.1983) (liquidated it stated that damages punitive are pre-judgment interest serve designed nature and to deter willful con- making different plain functions ADEA duct. pre-judgment If awards of interest are whole), tiffs grounds, on other compensatory, liquidated damages are aff'd (1985); 86 L.Ed.2d punitive, grant ap- concomitant of both is Reichman Bonsignore, Brignati v. & Maz propriate pre-judgment because interest zotta, P.C., 278, (2d 818 F.2d 281-82 Cir. statutory goal serves making the of 1987) (same); Lindsey whole, i.e., v. American Cast it compensates him for the dis- Co., (11th 1094, Pipe Iron 810 F.2d 1102 criminatory wrong suffered, that he has Cir.1987) (same); with Powers v. Grinnell liquidated damages punish while would West- (1st Cir.1990) Corp., 34, (an 915 F.2d 41 inghouse, wrongdoer, the for its willful viola- liquidated award of damages precludes re tion of the ADEA. Accordingly, reject we covery pre-judgment of interest as reasoning the of those courts believe would recovery); constitute double Hamilton Congress intended to incorporate into the Bank, (4th 159, 165-66 v. 1st Source 895 F.2d ADEA damage all of the provisions of the Cir.1990) (same); City Burns v. Texas (“FLSA”), Fair Standards Act Labor includ- Refin Inc., ing, 747, (5th Cir.1989) 890 F.2d 752-53 ing prohibition its of concomitant awards for (same); Theatres, Inc., Coston v. Plitt 831 pre-judgment liquidated interest and dam- 1321, (7th Cir.1987) F.2d (same), 1336-37 ages. Brooklyn O’Neil, See Sav. Bank v. 324 grounds, 1020, 108 vacated on other 697, 715, 486 895, U.S. 906, U.S. 89 L.Ed. 1990, (1988); S.Ct. (1945) (FLSA 100 L.Ed.2d 223 Rose v. plaintiff 1296 cannot recover Register 225, National Cash Corp., 703 F.2d liquidated both damages pre-judgment and (6th Cir.) (same), denied, 230 cert. interest because the former serve “as com- 939, 352, 104 (1983); S.Ct. 78 L.Ed.2d pensation delay 317 payment for in of sums due Co., Gibson v. Act”).14 Mohawk Rubber 695 F.2d under the 1093, (8th Cir.1982) (same); 1102 Blim v. Rather, persuaded by we are reasoning the Co., Inc., 1473, Western Elec. 731 F.2d 1479- of appeals second, the courts of for the ninth (10th Cir.), denied, 80 874, 469 105 circuits, Thurston, and eleventh rely who 233, 161 L.Ed.2d supra, permit liquidated awards both of This circuit split consequence is a damages of pre-judgment interest.15 After two competing concerning Thurston, theories Con this Court liquidated held that gress’s purpose providing liquidated in dam damages punitive are in nature. See Turner ages for willful violations of the ADEA. We Schering-Plough v. Corp., 335, 901 F.2d Supreme think (3d Court’s decision Cir.1990); in Thur Blum v. Witco Chemical ston, 125, 623-24, (3d 105 S.Ct. at Cir.1987); 829 F.2d Rick incorporates 14. The ADEA liquidated interest, pre-judgment ELSA’s casting doubt on the damages provision, requirement Gibson). adds decision in Ap circuit's The Court of 626(b). ''willful” § conduct. 29 U.S.C.A. For a peals Circuit, Eleventh one of those that general legislative history discussion of the show- originally had plaintiff decided an ADEA could ing Congress’s incorporation selective of FLSA liquidated damages not recover both pre provisions ADEA, into Sperling see interest, judgment prior Hoff- overruled its decision man-LaRoche, Inc., (3d Cir.1994). 24 F.3d 463 Thurston, reasoning: after Although sixth, Thurston appeals decision ... courts confirms the eighth approach Ninth Circuit’s and tenth circuits have Criswell and un- determined that an in plaintiff assumptions ADEA dermines the liquidated cannot recover both other circuits’ decisions, damages interest, pre-judgment including ours these courts See O'Donnell. and, Bank, N.A., rendered their decisions before v. Chase Bonura Thurston as Manhattan yet, (S.D.N.Y.1986) (Thurston have light F.Supp. not revisited this issue liquidated Thurston's damages prejudgment statement that are clarifies "that interest does not See, punitive e.g., provide recovery nature. Smith World Ins. a double age to victims of Co., (8th Cir.1994) proven n. 5 discrimination who have their entitle- (question properly liquidated before the damages because ment to Court as well as back- party appealing agreed pay.”). with district court after Thurston were Lindsey, a bar 810 F.2d at 1102 n. 7. Cir.1990). “by restoring them (3d whole grieved plaintiffs C.I.R., F.2d el v. they have been had position would purpose of recognized also haveWe Id. Al- occurred.” “‘to never interest is discrimination pre-judgment an award preferred reme- though “is use reinstatement loss of for the the claimant reimburse it is earnings” because dy time future lost funds from the to avoid investment or itsof phi- ADEA’s make-whole with the is entered.’” consistent judgment loss until concluded that reinstate- we have losophy, & Chemical Kaiser Aluminum Berndt v. Cir.1986) there in cases where not feasible Inc., ment is Sales, Star, time of “may position no available Trade Pipeline Co. v. SS Arco (quoting Cir.1982)). relationship between judgment We.are damaged ani- may been so parties statement Thurston’s reconcile unable to impracticable.” mosity a denial that reinstatement punitive with damages are designed com to Id. interest pre-judgment of money. value of the time for loss of

pensate Here, that initially we note reasoning by the Thus, persuaded are not we object trial to when the failed Starceski that believe appeals of which those courts of jury pay, front even the judge instructed the of some of incorporation Congress’s a for to make motion though he intended into the ADEA damage provisions FLSA’s to Starceski is entitled reinstatement.17 damages award of preclude an meant to any pay. In front and both reinstatement intere pre-judgment and both willfulness for event, that reinstate found the district court and fact the law view of this st.16 Given to the lack option due not a viable ment was cir no unusual to Westinghouse-points that animosity given positions of available discretionary denial of in favor a cumstances say that cannot parties. We between the interest, we will reverse pre-judgment of Moreover, on clearly erroneous. is finding motion denial of Starceski’s court’s district record, abuse of discretion we see no for a and remand interest pre-judgment for deny to court’s decision Starceski the district interest pre-judgment quantification district “The remedy of reinstatement. v. USX See Green due him. position [than us] in a much better court was Cir.1988). & n. 16 reinstatement or not whether to determine testimony evi based on was feasible B. Reinstatement Brunnemann, F.2d at trial.” dence that contends district also the district Accordingly, will affirm we rein- denying request his erred court rein motion for of Starceski’s denial court’s that the have held decision statement. statement. alternative, grant reinstatement to sound discretion is within the pay, front VII. Conclusion Int’l, v. Sinclair court. the district Maxfield affirm appeal, we will Westinghouse’s On (“Since Cir.1985) rein- 788, 796 Westing- denying court’s order district remedy, it is equitable is statement judgment as a post-trial motions house’s re decide whether that should district court trial, as its as well or a new of law matter denied, feasible.”), instatement a remittitur. denial of L.Ed.2d 773 (1986). affirm cross-appeal, we will Starceski’s On of reinstatement court’s denial grant the district either determining whether denying pre-judgment its order but vacate suggest- have we pay, or front reinstatement to the district this case and remand con- interest should take into courts ed that district inter- pre-judgment for the addition ag- court purpose make the ADEA’s sideration appeal the issue on party as an raised incorporation 17. Neither difficulty FLSA with the 16. The verdict, jury general In that use a verdict. require- by compounded the ADEA argument is $267,268.55, damages compensatory awarded willfulness, is not found which ment of some appears to include least an amount FLSA. pay. front element judgment First, est due Stareeski to the in his courts consistently acknowl- party edged favor. Each Congress only shall bear its own costs. intended some vio-

lations of the ADEA to be willful. GARTH, concurring Circuit Judge, Second, courts have been careful dissenting. punish good by employers faith efforts comply with the Act. agree

I with court verdict Today’s finding majority ignores decision Westinghouse liable for an ADEA principles. both of those violation should be I sustained. cannot however, agree, the same conduct appeal represents This this court’s first charged Westinghouse and found to vio- interpretation of willfulness since Hazen Pa ADEA, more, justified late without per Biggins, U.S. —, finding was willful in its 123 L.Ed.2d 338 represents Hazen ADEA, resulting violation of the impo- Supreme Court’s latest restatement damages sition award. The the standard for willful violations. The ma holding today ineluctably court’s leads jority’s disregard of the prin two established every conclusion that disparate ADEA treat- ciples of interpretation ADEA, under the ment violation will also constitute a willful identified, which I have is therefore all the permits violation that troubling. more award. Before I principles discuss those and the agree I cannot holding with such a and I majority’s apply failure to principles these in accordingly dissent from so much of the ma- analysis record, its of the I Stareeski should jority’s opinion as liqui- affirms the award of explain that I quarrel no have with the damages against dated Westinghouse.1 court’s statement that willfulness exists when employer

an “knew or reckless showed disre- gard for the matter of whether its conduct I. — prohibited by Hazen, was the ADEA.” provides The ADEA liquidated for dam- at —, U.S. Rather, at S.Ct. 1710. I ages of twice the backpay award when an strongly disagree majority’s with applica- the employer’s violation of the ADEA is “willful.” tion of this present appeal— the standard 626(b). § Congress U.S.C. added this application that every makes ADEA viola- penalty as a knowing deterrent to miscon- tion a willful ignores violation good and the by employers. Cong.Rec. duct 2199 faith attempts an employer comply of to with (1967) (comments Javits). of Senator statutory duties. Unfortunately, the term “willful” has elud- II. easy precise ed or definition. The difficulties which have attended the effort to define will- Supreme The and ap Court the courts of fulness have resulted in peals numerous and some- repeatedly recognized have that Con conflicting times meaning gress decisions the did not every intend violation of the 626(b). application § 2See Howard ADEA to be a willful violation. In Trans Eglitt, Age C. Airlines, § Discrimination 8.30 Thurston, ed. World Inc. 469 U.S. 1993). Nonetheless, ap- while courts of (1985), 105 S.Ct. L.Ed.2d peals adopted different Supreme standards at Court rejected argu Thurston’s times, different consistently courts have ment that a violation was willful whenever adhered to principles two to disputes resolve employer knew the ADEA was “in the 626(b). § under picture” because that standard would elimi- purposes clarity, 1. only For I not (1993), concur in the 113 S.Ct. 123 L.Ed.2d 338 causes court's affirmance of the verdict as to the me to conclude that no violation, ADEA agree but I as well that we against should have Westinghouse. been awarded uphold should rulings district court's which I would liquidated damages vacate the award of denied Stareeski reinstatement which denied and remand for a prejudgment determination of my reading remittitur. Because of the record interest. Paper Biggins, — U.S. —, and of Co. v. Hazen

H05 or disregard standard knowledge reckless or ordinary and between the distinction nate not all violations that some principle violations. willful Congress did “The fact that willful. will be by [Thur- proposed standard broad [T]he period to limitations simply extend of double an award result would ston] adopted a two-tiered instead years, but three employ- As every case. almost damages in that limitations, obvious makes it statute notices, it ADEA post to required are ers significant dis- draw Congress intended an em- impossible virtually would will- ordinary violations between tinction unaware he was ployer show at 108 S.Ct. at 486 U.S. violations.” ful Both applicability. potential and its Act “obliterate[ ] would standard A lower structure history and the legislative and nonwillful willful between any distinction intended Congress show statute stan- lenient a more by adopting violations” decline liability scheme. two-tiered 132-33, at 1681. Id. at dard. damages provision interpret 7(b) that frus- a manner § ADEA cautioned in Hazen Court Supreme intent. trates principle two-ti- abandoning against omitted). (footnote only extend 128, 105 at violations S.Ct. Id. liability. at Willful ered standard, the adopt Thurston’s violations reckless knowing than or Rather may be willfulness formal ADEA, result they concluded Court whether — at —, or showed “knew employer policies. proved when informal “Congress of whether the matter repeated disregard Court 1709. The reckless at liability ADEA.” by the prohibited ‘two-tiered to create its conduct aimed Air Line (quoting ADEA 126, 105 not all scheme,’ at some but Id. at S.Ct. which under Airlines, World liquidated dam v. Tran give rise Pilots Ass’n would violations Cir.1983)). the Su —, As at Id. ages.” Hazen, princi Thurston, explained Court preme (quoting Thurston, the labeled 624-25). Further, it took which the Court in adopted ple at S.Ct. distinguishes why the Thurston stan liability principle, to demonstrate pains two-tiered in damages willful violations: ordinary liquidated in result does not between dard — at —, at Id. was sim- every U.S. liability principle case. two-tiered The among several tool 1709. interpretive ply one decide what Thurston in to we used that “willful,” and word by the meant Congress III. believe to we continue any event not liability has of two-tiered principle The disregard” or reckless “knowledge the the guide interpretive as an alone stood liability two tiers will create standard 626(b) Courts ADEA. § meaning of It not ADEA cases. range of the across to encour- by a desire guided been also re- knowingly who employer an true with compliance attempts at faith good age invari- reaching its decision age lies ADEA. the viola- knowing reckless ably commits ADEA. the tion this when Thurston, stressed the Court — willfully, —, at 1709. Hazen, acted S.Ct. had U.S. TWA it held explic- policy which of a adoption the despite Thurston, Supreme the years after Three workers, the when older disadvantaged itly the to reconsider opportunity had an Court permissible awas policy believed McLaugh- airline liability of two-tiered principle (BFOQ). qualification occupational fide Co., 108 bona 486 U.S. Shoe Richland v. lin is reasonable that “[i]t concluded (1988), The Court case L.Ed.2d S.Ct. lawyers], [company to believe under limitations involving statute problem, larger overall focusing on year a three provides FLSA The FLSA. aspect challenged overlooked simply willful viola- following of limitations statute at 130, 105 S.Ct. plan.” new year ordinary two compared as tions warrant did Thus, 255(a). violation TWA’s 626. § 29 U.S.C. limitations. statute liable is not company A damages. liquidated either to abandon refused The Court liquidated damages when it job rea- “act[s] category Engineer “Senior A” and not to sonably in good faith in attempting to older employees, jury certainly could determine whether plan [its] would violate have believed Starceski’s assertion that Jaa- the ADEA.” Id. at 105 S.Ct. at 625. far actually referring to engineers. older Hence, grounds had to decide that The Court in Hazen also acknowledged the Jaafar, a Westinghouse supervisor, intention- importance of a good company’s faith efforts ally discharged Starceski because of his comply with the law. “If an employer age violation of the ADEA.2 incorrectly good but in —a faith and nonreckless ly believes that the permits statute particu However, the existence of an intent to act age-based decision, lar liquidated then dam on the age, basis of qua the sine non of an — ages imposed.” should not be U.S. at ADEA disparate case, treatment cannot —, itself also be the determinant of willfulness. employer’s relevance of an good faith Such a rule extinguishes any distinction be- repeatedly has been recognized by the courts tween ordinary disparate treatment case See, appeals. e.g., Schrand Federal and a willful Every violation. plain- ADEA Co., (6th Electric 851 F.2d Pacific tiff who claims disparate treatment must Cir.1988); Armtex, Inc., Gilliam v. 820 F.2d prove employer intentionally acted 1387, 1390(4th Cir.1987); City Whitfield of on the basis of the plaintiffs age. Hazen, Knoxville, (6th Cir.1985). — at —, 1706-07; S.Ct. at Mary’s St. Hicks, Honor Center v. IV. —, —, —, —, 2742, 2748, 2751, 2756 125 (1993); L.Ed.2d 407 Seman v. Despite courts’ consistent use of these Coplay Co., Cement principles guide interpretation Cir.1994); Colgan Co., v. Fisher 626(b), § majority here fails to Scientific acknowl- 1407, 1417 Cir.1991). Disparate edge or apply either. This failure unfortu- treatment cases are far and away largest nately is not harmless because here ma- proportion of ADEA brought cases jority’s conclusion that Starceski is entitled Congress courts. surely did not intend does violence to both. permit an award of damages in every one of these cases. A. adopt If we majority’s resulting the tension view is not by of willful- solved the

ness, every successful court’s disparate statement that treatment evidence of intent by ease under the ADEA itself is will also be reasonable treated as evidence that Westing- “ a willful violation. According court, to house the ‘knew or showed disregard’ reckless the evidence that establishes for its statutory duty willfulness is to avoid discriminating testimony the Jaafar, that against super- Starceski’s Starceski because of age.” his Maj. visor, told Saul that Op. Jaafar Typescript to dis- intended at 1099. This assertion does charge engineers senior and directed Saul to not significant “draw a distinction between employee’s lower certain performance ordinary evalu- violations and willful violations.” ations. Westinghouse While contends that McLaughlin, at 108 S.Ct. at Jaafar’s statement company’s referred to the 1681. deliberately 2. I do not address the issue discharge Act, violated the even if Jaafar was whether Jaafar's conduct could be attributed to generally aware of the Act. See Brown Stites Westinghouse. because, I do not do so even if Concrete, Inc., (8th Cir.1993) F.2d we assume speaking that Jaafar was Westing- (en banc) ("[I]t is a opposed willful as violation house, Jaafar's do not statements demonstrate voluntary to general conduct in that is re- Westinghouse that less either knew or showed reck- quired.''); Theatres, Inc., Coston v. Plitt disregard for its duties under the ADEA. (7th Cir.1988) ("the 'knew' term ... though Even may the have found that Jaafar refers to the fact may employer that the knew he discriminated against Starceski the ADEA, violating age, basis Starceski's the finding to the that not that does not fact he was proof constitute Act.”). that Westinghouse Jaafar or aware of the Further evidence of willful- knew that Jaafar’s selecting choices employees necessary. ness is personnel resources human believes, Westinghouse in- apparently majority If, as the Mr. with Jaa- this characterization confirmed the under same are the and willfulness tent App. 490. Esposito. Mr. manager, far’s defen- for a impossible ADEA, virtually it is number of that a dispute does willfulness a claim against to defend dant Nuclear Services Westinghouse’s projects plaintiffs the against its defense from apart up wound being or were terminated Moreover, Division re- it claim. ADEA underlying was laid which he period in during time to a liability principle two-tiered duces person- Westinghouse gave facts off. These ADEA that determination single-tiered represen- credit Jaafar’s to reason nel more been violated. has not inves- Westinghouse did Though tation. statements fur- Esposito’s tigate Jaafar’s B. by the rec- ther, circumstances disclosed every to reason be- Westinghouse gave ord en- almost ignores majority Similarly, dis- for Starceski’s reason sole lieve that good faith its proof of Westinghouse’s tirely depart- in his of work the lack charge was race or age a violation effort avoid ment. reduction during its laws discrimination Westing- misconstrues majority force. The good faith our importance Given that attempt to show anas argument house’s surely not willfulness interpretations, prior than more no “resulted violation showing that West- simply demonstrated negli- ordinary accident, inadvertence managers of the informed inghouse Westinghouse at 1099. Maj. Op. gence.” violation ADEA that an proof ADEA was accidental violation argues not to hold declined itself Thurston occurred. recklessly dis- Westinghouse did if the Act is ‘willful’ violation “that a as revealed the Act under its duties regard potential appli- simply knew employer employment decisions of its review by its at cability of the ADEA.” discrimination. employment prevent Rico v. Puerto 625; also Sanchez at see Cir.1994) (“A (1st Co., Oil I majority, believe Contrary something requires willfulness finding of reasonable, if Westinghouse’s reflects record employer showing that an merely than more unsuccessful, prevent discrimination. effort ap- potential and its ADEA knew about discuss, good and Thurston Hazen As workplace.”). plicability damages makes effort faith incor employer “If an inappropriate. award a conclu leads to record Nothing in this nonrecklessly good faith rectly but disregard recklessly sion that particular permits a statute believes Every employees. its older rights of ed decision, then age-based Westing a conclusion thing points Hazen, imposed.” not be should faith in good reasonably and in “acted house —, plan [its] whether determine attempting to Thurston, 469 ADEA.” violate the would it would decided Westinghouse Once In Starceski’s 625. S.Ct. at at Westing- employees, lay off to some need were unfortunately, its internal efforts case choose managers to of its all counseled house unsuccessful. reasons. only on business based employees candi- chose managers App. 486. Once however, not I would majority, Unlike required was off, manager lay each for dates failure, its for twice punish App. her decisions. for his give reasons to again award backpay through a once employees resources human Two 487. Such damages award. liquidated through these reviewed legal counsel company’s companies encourage nothing to does policy discrimination. possible justifications deci- employment closely their to scrutinize App. 487. inabil- company’s aWhile policies. sions and age discrimi- against perfectly ity protect reports, company According to these and res- backpay to award grounds is nation company because was chosen compen- fully employee an so titution 488. App. division. in his lacked work sated, it does not warrant doubling the hand, On the employer’s other or a award. supervisor’s age intentional use an em-

ployment decision, completely while adequate grounds ordinary for an award, ADEA does V. by itself suffice find that employer Willfulness, Thurston, as by defined focus pursued knowingly an unlawful course of on a company’s es knowledge of or reckless or recklessly conduct disregarded its statuto- disregard for whether its actions violate the ry duties. To so hold tois eliminate the Sanchez, ADEA. (“Will 37 F.3d ADEA’s liability two-tiered scheme and to fulness, requires then an element akin to overlook Westinghouse’s good faith efforts to of, disregard reckless or deliberate indiffer prevent an ADEA violation. to, ence an employer’s ADEA-related obli Because I fear that today’s decision gations.”); Goncrete, Brown v. Inc., Stites court operates merge both tiers of the (8th Cir.1993) (en bane) liability two-tiered principle i.e., into one— (“[I]t is a willful violation op of the law as disparate mere treatment violation of the posed to voluntary general conduct in that is ADEA —and because I cannot support required.”); Benjamin v. United Merchants court’s disregard for these principles which Inc., Mfrs., & (2d Cir.1989) 873 F.2d have consistently guided our interpretation (Willfulness occurs when employer been has ADEA, of the I respectfully dissent from the requirements “indifferent gov of the court’s affirmance of the district court’s erning statute and acted in a purposeful, award of damages.3 deliberate, or fashion.”); calculated v. Coston Theatres, Inc., Plitt (7th Cir.1988) (“The term ‘knew’ ... refers fact that the employer knew he violating ADEA, not to the fact that he was aware Act.”). Willfulness is not a matter of additional evidence abut matter additional In re David COHN, Louis Debtor. Hazen, misconduct. See at —, INSURANCE COMPANY OF NORTH 1709; Kelly Matlack, AMERICA, Appellant, (3d Cir.1990). employer

An pays who no attention to its duties under the Act does so David Louis at the COHN. risk of paying double the penalty any resulting No. 94-1742. violations. An employer goes who forward United States Court Appeals, with an employment decision when it knows Third Circuit. actions illegally against discriminate older workers likewise risks imposition Argued Feb. 1995. liquidated damages. When awarded under May 10, Decided circumstances, these liquidated damages serve as a necessary and beneficial deterrent

to ADEA Thurston, violations. 469 U.S. at 125-26, 105 S.Ct. at 624. 3. Because I would Cir.1987). award so, dam doing join I would majority ages, I would remand the case for a determina appeals of courts of that have considered the prejudgment tion of interest. Such an order question since Thurston. See Powers v. Grinnell any would obviate conflict liquidated between 34, (1st Cir.1990); 915 F.2d 40-41 Hamil damages prejudgment interest. Forced to Bank, ton v. 1st (4th Source 895 F.2d 165-66 choose between an award of both Cir.1990); City Inc., Burns Refining, v. Texas interest, prejudgment per I would (5th F.2d Theatres, Inc., Cir.1989); v. Plitt Coston only mit believe, one sanction because I as we (7th Cir. held, damages serve both 1987), grounds, vacated on other compensatory punitive functions. Blum L.Ed.2d Witco Chemical Corp.,

Case Details

Case Name: John D. Starceski, at No. 94-3208 v. Westinghouse Electric Corporation, at No. 94-3182

Court Name: Court of Appeals for the Third Circuit

Date Published: May 3, 1995

Citation: 54 F.3d 1089

Docket Number: 94-3182, 94-3208

Court Abbreviation: 3rd Cir.