Thomas P. BLACKWELL, Jr., Plaintiff-Appellee, v. SUN ELECTRIC CORPORATION, Defendant-Appellant

net sales volume for his sales the minimum KRUPANSKY, Before KEITH and Cir- Eberhardt, Plain- territory. According to PHILLIPS, Judges, cuit Senior Circuit $8,000 net far below the tiff’s sales were Judge. needed to offset monthly net sales Sun’s expenses territory.2 KEITH, Judge. Circuit However, maintained that Eber- Plaintiff appeal question This raises the of wheth- hardt fired him because of his He er the instructions set- district court’s workers had cited the fact that other older ting applicable Age forth the law under fired, and that Eberhardt seemed also been Act. Employment Discrimination socializing a lot of time with the spend to seq., (1967)1 621 et (“ADEA”) U.S.C. §§ cited a comment younger employees. He Because we misleading improper. were Eberhardt to one of the other made jury, find that the taken as get up go has employees, older “Your whole, controlling stated the accurately gone.” Finally, he noted that got up and law, judgment we affirm the of District expanded territory Eberhardt the sales Judge Taylor. Robert refusing while successor territory when the

expand asked him to do so. I. 21, 1981, suit Corporation (“Sun”)

In Plaintiff filed February 1975 Sun Electric On District Court for the hired Thomas P. Black- the United States plaintiff-appellee alleged of Tennessee. He Eastern District (“Plaintiff”) representative well as a sales represent- quota 623(a)(1) of its sales a sales which each 1. 29 makes unlawful § U.S.C. discharge any representative’s expected “fail or refuse to hire or individu- attain. A atives is any against indi- performance appraisal al or otherwise discriminate and commission terms, respect compensation, vidual with to his figure. figure upon a sales This based net conditions, employment, privileges of be- by subtracting repos- the amount of obtained age; cause of such individual’s ...” equipment returned sessions and other applicable gross sales for the the amount of selling the nationwide of its Sun facilitates period. equipment by using regional further offices. It regions zones. Each zone has divides the into cases, subsequent him he In we have continued had that Sun old, application eschew a rigid in contravention McDon sixty-four years fact, Douglas nell In June the case formula. Sahadi v. On ADEA. Chemical, Reynolds rendered jury. was tried Cir. before verdict, 1980), during Sun liable for was terminated general fifty- Plaintiff awarding younger person an economic cutback and a ($50,000) position thousand dollars Sun was retained in a willing appeals. capable performing relo Nevertheless, perform. cate to the court held that had failed to estab II. prima lish a facie case discrimina the district court argues Shamrock, tion. v. Diamond Ackerman instructing on the erred (6th Cir.1982), 670 F.2d 66 the reaf prima a facie case essential elements of approach. firmed the case-by-case Judge Specifically, age an suit. discrimination Court, the Phillips,. speaking for noted: jury the should have Sun maintains that A of the application mechanical McDon- proffered been its reason instructed Douglas might bar the guidelines nell suit to was sufficient Plaintiff’s worthy of a ADEA claimant. other un dispel any inference of discrimination cases, an overly application mechanical they less the reason to be a mere found plaintiff could an ADEA with supply disagree. pretext. We triable claim where none exists. Laugesen In the case of v. Ana- seminal Id. at 70. Locke v. See also Commercial conda, 307, (6th Cir.1975), 312 we 510 F.2d Insurance, Union 676 F.2d 205 Cir. stated: it not be unreasonable “While 1982). to in a case proper guide- assume that the Douglas upon opinions lines in McDonnell v. relies established defendant 1817, 93 36 several courts which follow the Green U.S. circuit [411 and (1973) applied age Douglas guidelines L.Ed.2d can be McDonnell order of 668 ]3 cases, age we cases. We in discrimination believe it discrimination allowing the simply terpret opinions would be to those use of inappropriate borrow but apply automatically.” Douglas guidelines, them The Lau- the McDonnell making evi- them exclusive criteria for gesen court concluded strict es Indeed, dentiary tablishing used in racial discrimina- facie case. approach prima cases, blindly tion the courts applied expressly cases should not be in several those age Laugesen, preclude discrimination case. See disavowed intent to other any age 510 F.2d n. 4. The court methods of unlawful proving at 312-13 reasoned discrimi See, Textron, that while racial discrimination most of- nation. e.g., Loeb F.2d (1st upon disadvantage Cir.1979); Stanojev ten based a desire to v. Ebas Services, (2d particular minority, employment racial deci- co 643 F.2d 920-22 Cir. ; 1981) Hercules, involving age may sions reflect result of Hedrick v. (5th Cir.1981). extent the progression aging. universal To the cases designed protect permit

ADEA to older cited the McDon was defendant Douglas on the nell to be used arbitrary guidelines worker from classifications discrimination, are in full employer’s age they basis of not to restrict accord age, right approach bona fide business decisions. with the case-by-case make Thus, it was not error for interfering to avoid with court. We hold that order decisions, opted instruct legitimate we for a the court to refuse to business of a discrimination prima facie elements case-by-case approach. job rejected, (3) Douglas guidelines require plied for a that he was and was McDonnell following job, (4) qualified he that after show in order (1) rejected, appli- prima seek is a continued to establish a facie case: that he class, job.' ap- particular protected (2) he cants for member of the Douglas4 adopt language did not of McDonnell case as set forth in McDonnell Moreover, age reflects as modified for Douglas we hold that the record cases, enough simply directly introduced evi stated the issue age jury. agree facie case of We with the First present prima dence reasoning in Loeb v. Textron: discrimination. Circuit’s The court should not force a case into a age The ultimate issue in this discrimina- Douglas if to do will McDonnell format so determining tion was a age suit is whether is- merely divert the from the real factor in the decision to fire the employer’s sues; rather it should use its best judg- Ackerman, F.2d at 70. Lau- plaintiff. ment of the proper organization gesen, 510 F.2d at 317. The can charge. evidence and the In cases of this prima age establish a facie case of discrimi- type, may simply the best instruction Douglas nation cri- by using McDonnell emphasizes be one that teria. The can also establish a must prove by preponderance prima facie case statistical using informa- that he evidence tion, discrimination, direct evidence of age adequate explanation —with circumstantial other than that statute, meaning the deter- Douglas which is used McDonnell played, minative role must have etc. Services, Stanojev criteria. v. Ebasco See prima at 920-21. Once a facie 600 F.2d at 1018. The district court’s in- through case is established either of these structions included all relevant fac- methods, the employer provided burden shifts to the tors and guidance sufficient produce legitimate to a non-discriminatory jury from which it make could an informed reason for his The ultimate bur- controlling decision. decision on the issue.5 proving den of discrimination also remains disagree We also with defendant’s plaintiff. Department with the Texas of assertion that the plaintiff failed to estab Burdine, Community Affairs v. 450 U.S. lish prima a facie case. Even if we were to 248, 67 L.Ed.2d 207 strictly apply Douglas the McDonnell crite charge ria, The district court’s in- adequately 1) Plaintiff provided he jury respective class, structed the on the burdens protected 2) was a member of the he requisite and elements a prima discharged, 3) of facie case was he qualified was for the age of Though job, 4) discrimination. the court he replaced by younger was a cases, age Thus, As modified to fit discrimination the Act makes it unlawful for an em- Douglas the McDonnell making ployer discharge test for out a to an individual between the prima requires facie of ages case age. of 40 and 70 of because his plaintiff (1) that a demonstrate that every he was a discharge Not such is unlawful under class; protected (2) member of the he was Act, provides: however. The Act further discharged; (3) qualified posi- he was for the employer It shall not be unlawful for an to tion; (4) replaced by younger he was any prohibited take action otherwise where person. such action is based on reasonable factors Shamrock, Ackerman v. Diamond 670 F.2d age. other than (6th Cir.1982) (citing Marshall v. Good- discharge plaintiff If the of was based on year Tire and Rubber bona fide business or economic in reasons (5th Cir.1977)). factor, age which was not a there no could be law, violation of the and the defendant’s dis- 5. The court stated the in issue for the charge plaintiff would be lawful. And following manner: plaintiff would not be entitled to recover. Age Plaintiff bases his lawsuit on the Dis- in this has case the burden of amended, Employment crimination in Act as showing by preponderance of the evidence seq. pro- 29 U.S.C. Section et That Act that the defendant him pertinent part vides “It as follows: shall be age. his The defendant contends that it dis- employer discharge any unlawful for an charged him because of bona fide business or age.” individual because of such individual’s age. economic reasons unconnected with prohibitions contained in the Act are limited to individuals who are at least 40 years age years but less than instruct the that the ADEA was violat- class.6 We do protected outside the worker determining was a factor in age ed if failed that the agree Plain- the defendant’s decision He had job. for the qualified that he was disagree tiff. We instructions satisfactorily for several job performed constituted on this issue reversible error. Moreover, were to hold that a if we years. quali- case fails his prima facie age It is well settled that must be a defendant, challenged by fications are “determining factor” in an de employment age discrimi- effectively preclude we would impose liability upon cision order Then, of this kind. a defendant nation suits Laugesen, this employer. Court articu challenge plain- would be able to always guidelines instructing jury lated in an job, for the and the qualifications tiff’s ADEA case. The Court stated: away jury. issue would be taken we believe expressed, However it was produce burden to But it is the defendant’s essential understand from convince the trier of enough evidence to that there instructions could be more fact was fired because he than one factor the decision to dis- job. his incapable performing him, and that he was nevertheless certainly presented case recover if one such factor entitled to inference of enough evidence to raise an if in fact it age made difference age discrimination until such inference was determining whether he was to be from the de- explanation (cid:127)dispelled discharged. retained or fendant. (“... Id. at 317. also Ackerman at 70 See Even if the had not met the age ultimate issue is whether was a factor criteria, still Douglas McDonnell we would in a decision of an to terminate an facie presented prima hold that he had and whether the ADEA claimant conflicting testimony There was as to case. a difference in determining claimant made expand refused to the terri- why Eberhardt whether he was to be retained or dis- yet expanded tory plaintiff, (“... charged.”); at 1117 Sahadi who re- younger for the salesman territory reason, have to be the sole but a not of witnesses testified placed him. One the in connection with the contributing factor had stated to him that he that Eberhardt discharge.”). firing could find a reason for some- always evaluating adequacy jury In the of Eberhardt, body. There was evidence instructions, a they must be taken as whole. “buddied with” young supervisor,

the Walton, 208, Haislah v. 676 F.2d was also younger disputed salesmen. There 315; Cir.1982); Laugesen, Tyr 510 F.2d at the reasons for the dis- testimony regarding R.R., 524, York 382 F.2d ee v. New Central other older salesmen. charge of several (6th Cir.), cert. denied 389 U.S. the combination of these factors Certainly Thus, the 19 L.Ed.2d S.Ct. of was sufficient to raise an inference dis- about complain spe defendant cannot the crimination, require and thus the defendant wording they cific of the instructions if its explain actions. jury inform the of the relevant adequately provide considerations and a basis in law III. reaching the in its determi aiding jury contends that nation. district court’s instructions in The defendant further The functions.7 performed the district court erred because it failed to this case these ¡nation plain- requirement. were a Since 6. Several courts have held that an ADEA suit if this replaced replaced, by tiff need not that he or she was in this was an the case class, younger employee protected in establish a a order to outside the we need Textron, e.g., See, prima Loeb v. facie case. consider this issue. Douglas Cir.1979); (1st v. Anderson, (9th Cir.1981). They 656 F.2d 528 pertinent to this 7. The court’s instructions might employer reason hire an that such an point stated: age older worker in order to thwart an discrim- court refused amend though the district points at certain aware that fully We are which asked interrogatory court wheth- special the district instructions the lan- use discriminatory it tried to its when which was precise less than er a scheme The could understand. jurors for the guage “one reason” face was to use been would have practice better requested The discharge. defendant than language rather “determining factor” amended to read “one interrogatory several used language into” the “entered In uphold- made a difference.” reason that Despite trial.8 course of the times over the amend, the circuit court ing the refusal to lan- the district court’s of imprecision had been interrogatory that if the opined more than instructions we find the guage, jury, to the guidance given the only entirety. in their when viewed adequate might have been entitled to defendants that the can be one reason but age instructions state new trial since proving discrim- discharge. burden of reason for has the ultimate not a determinative correctly inform also They ination. was viewed interrogatory But once the be more than there jury though instructions, its mean- the context other decision, the employer’s one reason ing became clear. at least one whether jury must decide district, court’s instructions Similarly, More- plaintiff’s age. was the reasons apprised the adequately in this case if there over, they charge to “a fac- its task. The court’s reference reasons fide or economic were bona business tor”, other when viewed beside the court’s factor, was not a age discharge, instructions, “a obviously refers to factor plain- to the is not liable then plaintiff.” the termination of all the factors set forth tiff. Thus jury several times that it court instructs the present. are guidelines Laugesen would not have find recently Circuit addressed Second for his discharged except been case. age similar issue in re contends court’s Markham, (2d 635 F.2d 1027 Geller exception sponse to counsel’s 945, 101 Cir.1980), denied 451 U.S. cert. misunderstanding (1981), betrays instructions 68 L.Ed.2d 332 We upheld disagree. even the law.9 The court’s re- verdict for connection, you age age charges entered into the determination. If In this the Court employ- into termination of his need not show that entered ment, liability. then there would be On sole or exclusive factor defendant’s hand, enter discharge plaintiff. other did not into the be more There could of the defendant to terminate his decision than one in the decision factor employment, liability. no there could be plaintiff. is nevertheless enti- age, to if one factor was his tled recover such adequacy is 8. Our discussion of the the in deter- and if that factor made a difference by equally applicable to other comments made discharged. mining was whether the during the to the the the course of question is not whether the de- The ultimate trial. discharge plaintiff to re- fendant’s decision judgment MR. I flected accurate wise LAWS believe [Defendant’s Counsel]: being plaintiffs question charge age the abilities. The is whether his Honor’s as the —a considerations, by unlawfully I the reason if it was one of the and the decision was motivated the law state that that be believe would should factor of his discharge, you discharge for and that would be find reason If the defendant’s it, my charge. exception by I would ask was for reasons asserted age then, you the Court them but for the consider- find in must favor defendant. discharged. hand, ation have you prepon- he would not been if find On the other age plaintiffs you derance of evidence that that? THE COURT: Did understand made a defendant’s decision difference MR. HAYNES I don’t Counsel]: [Plaintiff’s discharge plaintiff, being then the defendant understand that law. you pro- plaintiff, be liable he THE COURT: I don’t understand what him. ceed to determine Now, due it. means indicated, case, previously charge, saying your in this MR. LAWS: You are — they upon plaintiff. jury, I if burden of is Before understood it to the should recover, plaintiff find can must show that— spe and with the tarily intentionally, more than a misunder- reflected no sponse something the law for cific intent to do note request. counsel’s We standing of rejected spe bids.” The Third Circuit instruction, even as characterized of Loeb in Wehr v. cific intent standard counsel, accurate. As by defendant’s (3d Burroughs Corp., 619 F.2d Cir. earlier, reversible error if it is not stated 1980). court concluded that Con The Wehr language use the exact the court refuses to gress liquidated did not to restrict intend requests. counsel cases which the defend damages to those It consciously ant violated the Act. held: IV. company that the prove It is sufficient A. discharge voluntary that the charged The district court accidental, mistaken, or inadvertent. of willful guilty the defendant was view, sufficient to In our it would also be if it be fired precipitated cause of his and knew or had reason to disregard consequences. reckless governed by know that its actions were Inc., Heublein, Id. Cf. Goodman this in challenges Act.10 defendant (2d Cir.1981). the Act and unsupported by struction as agree- The Ninth has indicated Circuit We opinions appeals. from other courts holding ment with the Third Circuit’s that a first impression note that this is an issue of support liqui- of recklessness will for this court. Kelly dated In v. American liquidated dam- provides The ADEA Standard, Inc., (9th Cir.1981), 640 F.2d 974 are in cases of willful ages payable the court held that the ADEA does not 626(b).11 violations of the Act. 29 U.S.C. § intent to violate the Act require specific itself no definition or provides The Act require employer that an have “knowl- “willful” is to guidance as to how term edge implications under the Act.” It appeals be defined. The courts of have employer reasoned that to allow an to avoid adopted distinguish- various for approaches he an intimate fa- liability because lacked ing cases in which violations of the Act will Act could frustrate the miliarity with the support liquidated damages those that would have “the congressional purpose. It not. will encouraging employers anomalous effect of Textron, Loeb v. at 1020 n. possible to know as little as about appeared adopt position the court they liqui- ADEA so would not be liable willfully damages.” that “an act is done done volun dated Id. at 980. is, age— did the Act THE That The test know the COURT: —age picture? MR. LAWS: awas consideration— was in the right, THE COURT: That’s and that is the 626(b) part: in relevant 11. 29 U.S.C. states § law. owing person to a as a result of a Amounts objecting I MR. LAWS: And am chapter shall be deemed to violation of charge. unpaid unpaid wages or minimum over- right, objection THE All COURT: sir. The compensation purposes time of sections overruled. Provided, liqui- That 216 and 217 of this title:

10. The entire instruction on the willfulness is- payable only dated shall be in cases charged: sue chapter. any of willful violations of this In charges you brought chapter In that connection the that action to enforce this the Court employer willfully jurisdiction grant an acts if he knows or has such court shall have may appropri- governed legal equitable reason to relief be know that his acts are or purposes chapter, the Act. That is this Act that has been re- effectuate the of this ate to familiarly including judgments Charge, ferred in which limitation com- without language Age employment, promo- pelling known in common as the Dis- reinstatement or tion, enforcing liability the for amounts crimination Act. or wages good unpaid Neither a minimum or un- faith belief the lawfulness deemed to be actions, ignorance illegality paid compensation sec- of his nor of their overtime under this employer shields the Act. he violates the tion. necessarily not employer tional. Boiler Manufac- v. Milwaukee Syvock he is un- liability because Cir.1981),the shielded Sev- 665 F.2d 149 turing, of his actions “implications of the must aware plaintiff that the held enth Circuit plaintiff the Alternatively, the Act.” were under actions that the defendant’s damages if he shows liquidated he knew receive and that knowing voluntary, in not know- employer was reckless that those that the should have known reasonably or governed by were at his actions ing of the ADEA. Id. that were violative actions reck- employer acted in that this ADEA or that explained Syvock 156. The court his actions were disregard less of whether “(1) employer implied: standard by the ADEA.12 have known covered reasonably should knew are; ADEA requirements what the the Third Circuit’s agree also with We reason- knew or (2) employer necessary that it is not holding in Wehr his actions have known that ably should employer show that plaintiff inconsistent with plaintiff were towards a intent to violate specific acted with requirements.” those Id. Wehr, 5. also 619 F.2d at n. See Act. adopting Moreover, finding Congress, though It appears Kelly at sought finding to dis- liquidated damages provision, preclude faith would good is intentional tinguish willfulness, cases in which there trier necessary it is not where the em- discrimination from those findings of fact on the express fact make not intentional. 1020; discrimination is ployer’s Loeb, issue. 600 F.2d at good faith by the fact interpretation This is buttressed Rather, Wehr, 279 n. 5. in a 619 F.2d at evidently intended that a Congress trial the court’s instructions plaintiff prove age be able to employer delib- should focus on whether to discriminate. proving without intent dis- intentionally knowingly erately, Thus, higher bur- must meet a age. because of his charged employee liquidated den of in order to receive 980; Sy- 640 F.2d at B. Kelly, See Manufacturing, Boiler vock v. Milwaukee instructions on now consider the We F.2d at 154. forego- light the willfulness issue Viewing the instructions ing principles.

However, intentional every showing of whole, the district supra, see we hold that discrimination does not entitle the formulated the relevant adequately liquidated damages. The fact Con- jury. Though for the our considerations liquidated gress incorporate on the issue of yet spoken had not of the Fair Labor Stan- Court damages provisions willfulness, court’s in- we think the district (FLSA) the ADEA evinces a dards Act into accurately question structions focused congressional meaningful intent to make a employer whether the had jury: willful violations of the distinction between deliberately, intentionally know- Act and violations that are not willful. acted See Pons, 575, 581, because of his ingly firing Lorillard v. U.S. 866, 870, 55 L.Ed.2d 40 See also Heublein, 645 F.2d at 129 n. 2.

Goodman v. case, we In the context of this read willfulness, picture” language “in the to describe We hold that in order to show court’s an employer that the em- threshold situation in which an ADEA must show against were and inten- discriminates ployer’s voluntary actions ally require reasoning some direct evidence of discrimi- with of the Sev- 12. We concur Syvock: natory intent or a show- enth Circuit in toward that, alleged ing time of the discrimina- at the showing clearly greater than action, tory was motivated to necessary for the initial of ADEA engaged pattern of dis- discriminate liability. showing must be sufficient employees. criminating against older discrimination indicate that the defendant’s (7th Cir.1981). disparate 156 n. 10 In a treat- was not unconscious. case, gener- finding will ment willfulness knowledge any specific supports record of willful- without ness, post-trial hearing and the indicated Fur- applicable. the ADEA is provision the district court and the attorneys thermore, that the court’s instruc- we think parties thought both had of the a consideration preclude tions do not finding.13 up- made such a we have Since Rather, they cor- good faith. defendant’s held the district court’s instructions on the of the good faith belief rectly state issue, willfulness we think the is of his actions does legality in the equal entitled to an amount to his lost necessarily liability shield him not wages liquidated damages.14 impreci- The court’s liquidated points of these does expressing grant sion in some The ADEA allows the court to eq- essential accu- uitable remedies to persons aggrieved by undermine their fatally Hence, provisions. violation of its Plaintiff con- we find no reversible error. racy. 626(b)

tends that under he is entitled to § $6,000 in pension benefits which have been C. posted pension to his plan $715 challenges jury’s Finally, Sun which health benefits he would have re- $50,000. argues award of damage in the eleven ceived months after his dis- showing support there is no on the record to charge. agree We that Plaintiff is entitled agree. benefits, assessment. We damage such a to the health but he is not entitled pension benefits. any $8,600 in approximately Plaintiff earned At the time of Plaintiff’s discharge, he preceding discharge. months the six rights pension had no vested benefits. was ex- discharge, territory After his rights No such would have vested until he greater introduced a dis- panded and Sun had worked for the for five company more in order to attract customers. policy count Moreover, all of the funds in years. testified that he could have earned Plaintiff were invested plan by Sun. Plaintiff would expanded two to three times as much in the pension have no received benefits vested territory. testimony speculative This is too pension benefits in the rights eleven However, support damage award. discharge. months after his It would be too in the record which indi- nothing there is speculative grant benefits that would not have cates that would been vest until such a distant time in the fu- compensated at a lower rate than in the ture.15 preceding six months. Eleven months passed However, between the time of the is Plaintiff entitled to the Thus, discharge and the date of trial. health benefits he would have received in $15,- approximately Plaintiff entitled to the eleven months his discharge between wages. 770 as lost and the trial. He has shown that he would compensation, or their overtime 13. district court allowed the to return as the case This, itself, general be, equal verdict. in and of is not a and in an additional amount as ground preferable liquidated damages. for reversal. It would be a however, practice, Though liquidated damages to submit the willfulness is- are not automatic jury by special interrogatory. sue to the This cases, the measure of provide examining a clearer basis for liquidated damages adopted from the FLSA jury’s findings factual and facilitate review on provisions. appeal. It should be noted that Plaintiff never re- ADEA, provision 14. The enforcement quested position. reinstatement to his former 626(b) specifically adopts U.S.C. § most of the requested If he had and the district court had remedies reinstatement, enumerated Sections 16 and 17 of granted would be Act, (FLSA), the Fair Labor Standards presented Perhaps, question. awith different 16(b) U.S.C. 216 and §§ 217. Section circumstances, equitable under those solu- provides part: FLSA in relevant provide post tion would be to that Sun Any employer plaintiffs pension plan who violates ... shall be lia- the amount that would employees period ble to the affected in have been contributed in the between unpaid wages, the amount of their minimum the unlawful and reinstatement. agreed Blackwell and In Sun in health insurance if have received $715 him. He Blackwell relocated in a illegally discharged had not transfer in which Sun also is entitled to recover region $400 Knoxville which zone in the equipment company that he returned to the compact incorpo- but geographically more evidence that presented when he left. He potential custom- greater rated a number reimbursed an company always almost Knoxville, manager regional ers. for such when the em- equipment superior, quota set a Blackwell’s immediate ployee leaving compa- returned it when even” $8,000 month as the “break per ny- De- each salesman in zone. figure for conflicting testimony as to the inter- spite

There is no other jury’s Thus we upon language by record. see no basis for this Sun pretation placed $50,000. Rather, award of Plaintiff enti- i.e. Blackwell, sales, gross or net wages tled to his lost for the eleven months Blackwell was ad- established that clearly trial, equal between his to “cor- writing February, vised in liquidated damages, amount as health bene- volume”. It is further rect low sales [his] months, fits for eleven and reimbursement that at the time Blackwell was established returned when he equipment to Sun 1980 at 64 his July terminated on Therefore, damage award should left. but remained below the sales had increased $32,655. reduced to on a net basis. quota computed when we remand this case to the Accordingly, presented There was additional evidence consist- entry judgment district court for two other salesmen over to the opinion. ent with this approximate- at age 50 had been ly replaced the same time as Blackwell and KRUPANSKY, Judge, dissenting. Circuit company presented men. The by younger appeal This is an from a verdict of the other termi- testimony in rebuttal $50,000 appellant returned in favor of policy had violated a nated salesmen (Blackwell) Blackwell after a six- Thomas switching equipment new and used against he was hour trial on a dis- problems. alcohol or had charged employment by from his Elec- allegedly supported which (Sun) Age in violation of the Corp. tric award, $50,000 damage which will be Act Employment Discrimination infra, thoroughly essentially more related Because (ADEA), 29 U.S.C. 621-634. §§ pri- of Blackwell’s projection consisted of a misleading instructions below were monthly earnings to the date average defining confusing on the basic issues plaintiff’s unsupported ($10,083); trial claim, ADEA and the term an actionable tripled conjecture fully that he could have “willful”, applied in an ADEA claim figure in the reconstructed or doubled damages, respect- I must support liquidated ($26,- assigned replacement sales area to his dissent. fully 166); wholly and the fantastic assertion I without jury, counsel that instruction, thereupon doubled receiving an suit operative underlying facts of the with the damage conformity award in complex. are not Blackwell Sun, electronic for an award hired an automotive statute. The foundation $50,- parts supplier, representative $50,000 a sales Blackwell demanded is that old and Memphis. years Blackwell was 59 demand was complaint and that failed. recently his insurance business had the court jury by repeated job required His that he travel in a sales charge. closing portion customers and contacting potential “zone” owners

holding garage “schools” to teach II. and service mechanics how to use Sun contested issue on Moreover, thoroughly The most zone had a equipment. each the elements is that which addresses quota. appeal minimum net sales

1187 of this has approach given of the ADEA. The result rise of an actionable violation such recently to conclusions as that offered bifurcated into suitably The issue be Judge Jones in Locke v. Commercial by related, inquiry though areas separate, Co., (6th Cir.1982) 676 Union Ins. F.2d 205 of a facie concerning components prima curiam) Jones, (per dissenting: case, weight to be attributed and the causal to an consideration of where This has not what employer’s Circuit articulated a factors are also other, non-discriminatory, prove prima to establish a (“mixed These case that his present analysis”). motive facie violated the ADEA. subjects sequentially. are here discussed with certainty

What can stated is that facie ADEA claim must contain prima A. plaintiff’s more than the mere conclusion While nine other circuits have concluded age. that he was terminated because of his for a Title prima the standards facie Locke, supra majority formulated the VII promulgated by Supreme action as follows: principle Green, Douglas in McDonnell v. 411 Court nothing more than 792, 1817, 93 S.Ct. 36 L.Ed.2d 668 U.S. state his conclusion that he was terminat actions, (1973) are to ADEA see applicable age. ed because of his permit To this Textron, Inc., (1st Loeb v. 600 F.2d 1003 single prima statement to constitute a Services, Inc., Cir.1979); Stanojev v. Ebasco facie place employers case would (2d Cir.1981); 643 F.2d 914 v. Bai Smithers Congress burden which never intended. lar, (3rd Cir.1980); 629 F.2d 892 v. Smith is no presumption There automatic Carolina, of North 632 F.2d 316 University every termination of an be (4th Co., Cir.1980); Marshall v. Sun Oil 605 ages tween the of 40 and 70 results in a Cir.1979); (5th Kephart F.2d 1331 v. Insti Age violation of the Discrimination in (7th 630 F.2d 1217 Technology, tute of Gas Act. Yet Employment permit plain denied, 959, Cir.1980), cert. 450 101 U.S. tiff to shift the burden to the defendant (1981); 67 L.Ed.2d 383 Cova v. justifying a termination on such a con Co., (8th Bottling 574 F.2d 958 Coca-Cola clusory statement would have this effect. Co., Cir.1978); v. Atlantic Richfield Sutton Chemical, Reynolds See Sahadi v. 636 (9th Cir.1981); 646 F.2d 407 Kentroti v. 1116, 1118 (6th Cir.1980); F.2d Ackerman Inc., Airlines, (10th Frontier 585 F.2d 967 Shamrock, v. Diamond F.2d Cir.1978), this has Circuit declined to “bor Cir.1982). * * * apply row and automatically,” Further, 676 F.2d at 206. this Court has prima guidelines facie case of McDonnell prima concluded that a facie case is not Douglas Laugesen to ADEA suits. v. Ana established when a plaintiff simply proves (6th Cir.1975). conda 510 F.2d he is a member of the 40 to 70 Instead, preference this Court has stated a ADEA, protected group that he asserting sufficiency of an ADEA discharged, replaced by he was basis, claim “on a case-by-case ig- younger person. Such a fact situation adopting approaches rather than formalistic * * reality “discharged nores the workers Chemical, v. Reynolds Sahadi replaced by will more often than not be (6th Cir.1980) (per 1118 n. 3 younger they”. Reyn- those than Sahadi curiam). As the Court in Acker noted Chemical, supra olds at 1118. Corp., man v. Diamond Shamrock (6th Cir.1982): fact, reading a careful Sixth Circuit framework for authority discloses basic application A mechanical of the McDon- pro- analysis. Laugesen ADEA Douglas guidelines might nell bar the suit this rubric: pounded worthy of a ADEA claimant. In other cases, plain- mechanical overly application initially upon burden [is] [The] could an ADEA with a he was dis- supply tiff to his claim that Absent an charged triable claim where none exists. because of his necessary concept convey or a state by the defendant admission that we are compelled person facts so clear that no reasonable law remand for a new trial. disagree, the issue one reverse and remain[s] burden of jury and the Accord, (emphasis added). 510 F.2d at 317 with the plaintiff. remain[s] Ackerman, at 70. supra * * * a case in This is not which the steps: clearly This standard involves two defense admits the but first, one fac- prove the must that plaintiff a bona fide justify occupa- seeks it as employment tor in to terminate the decision necessary tional disqualification two, age; the claimant’s and actually was business. operation normal of the differ- age that “the of claimant made a added). F.2d at (emphasis 313 determining whether was to be ence he Ackerman, 670 discharged.” burden retained differently, proof Stated the plaintiff remains with the until F.2d at 70. discrimina- conceded, “because shown age tion of” is Circuit, the approved which Second only then employer prove and must the that “factor that made a difference” test Lau its action was necessary otherwise as a bona Markham, gesen, in 635 F.2d Geller occupational fide qualification apart from Cir.1980), it (2d recently has noted that age. See also Ford Motor Tuohy v. “an stat approve could not instruction that (6th Cir., 1982). Indeed, F.2d 842 it is set- jury ed that must to be a age find that the tled ADEA “was not intended for without that ‘determining clarifying factor’ judicial review of business Kep- decisions.” Bentley v. Stromberg-Carlson term.” hart v. Institute Technology, supra, of Gas (2d Cir.1981). Corp., Ackerman, quoted supra at 70. Accord- suggested be Bentley at ingly, minimum, prima facie ADEA plaintiff told “a must was ‘a age requires ease this Circuit a plaintiff to determining factor’ his in the discharge prove that complained action of was sense his employer’s that ‘but for’ motive to taken age, “because of” his and an employ- him, discriminate he against would not have er is under no to prove burden the sound- been discharged.” quoting Id. v. Tex Loeb of its ness decision initio. ab tron, Inc., 1003, 1019(1st Cir.1979). Wherefore, case authority of this Cir- B. cuit seems to mandate judge that a trial It is at this juncture that the second instruct an ADEA on at least three prong discussion on the elements of first, points: essential has an actionable claim ADEA becomes rele- the burden of proving regardless vant. is Accordingly, it essential that a employer’s soundness of the stated reasons instructed as to the by manner for discharge, the actual reason a plaintiff which meet must the burden of second, claimant’s age; that the burden is proving that an action was taken “because met when the establishes that one of” a again, age. gene- Once factor in the decision was the claimant’s sis of this analysis Laugesen, Circuit’s is age, age and further factor “made supra: difference”, third, age However expressed, we believe that if, claimant made a difference taken when essential for the to understand together compelling with even non-diserimi- from the that there instructions could be reasons, natory would not have more than one factor decision to “but age. been for” his plaintiff] that he was [the nevertheless entitled to recover if one Ill factor age such was his and if in fact it bar, made a determining difference in wheth- in- the case at trial court’s he er was to be or discharged. appear retained structions to reflect the confusion * * * It is engendered “case-by-case” instructions did by this Circuit’s hand, other find you ADEA. Portions of On the approach to the Laugesen plain- track (10-page) brief the evidence preponderance immediately contiguous passages closely; age made a difference defend- tiff’s At commence- contradictory. appear to discharge plaintiff, decision then ant's dire, judge stated ment voir district the defendant would be liable thusly: the case you to deter- plaintiff, proceed Thomas P. THE This suit is COURT: mine the due him. Blackwell, Jr., plaintiff, who Now, case, in this indi- previously is the Corporation, who the Sun Electric cated, upon the burden defendant. Before can recov- plaintiff. says employer, Mr. that his Blackwell er, must show that entered Corporation, Electric terminated If into the determination. entered of his services because employment, the termination of his into Now, the defendant denies that. then, liability. would there be On the termination, If into the age entered hand, age if into other did not enter the then, be to recov- would entitled of the decision defendant to terminate his his But, er. if the defendant terminated there employment, could be no liability. rea- of his—for business services because noted, immediately previously As ob- reasons, legitimate the sons or for other jected frequent district the court’s in- (Empha- be would not liable. defendant liability may struction that ADEA be added). sis premised simply upon finding that Black- case, At of the conclusion age somehow into” well’s “entered Sun’s charged, part, in relevant as formally was The employer requested decision. follows: age be instructed that must do more case The this has the burden decision; than “enter into” the it must be preponderance of of the showing by that, the factor “but presence, for” its that the defendant discharge would not have occurred. The age. him of his The defendant judge professed trial not to understand the discharged him because contends that it meaning language of proposed Sun’s reasons of bona fide business economic age told counsel that be “a need con- age. with unconnected (Emphasis added). sideration”. connection, charges Court age need not show that you that Recognizing appellate court is factor in the was the sole or exclusive required “judge charge as a whole There plaintiff. defendant’s if, as and to affirm verdict taken more than one factor in could be whole, charge] fairly presents law [the discharge plaintiff. decision to applies it to the at hand.” Haislah as case recov- nevertheless entitled to plaintiff is al., Walton, (6th 676 Cir;1982), v. et F.2d 208 and if age, er if one such factor charge presently on review confuses in deter- that factor made difference principal and misstates law as plaintiff was dis- mining whether the issue of the case. is not charged. question The ultimate repeatedly told Specifically, jury was dis- the defendant’s decision to whether age could recover if “entered that Blackwell charge reflected an accurate decision; a test which obvi- into” Sun’s wise abilities. judgment language extracted from the ously is whether the decision question Standing alone, controlling authorities. of his motivated the factor unlawfully of voir dire it does at the commencement the relevant section and at the conclusionof If find that the dis- you defendant’s charge, the trial court’s formulation charge was for the reasons impression law leaves clear it, then, in of the you must find asserted liability age it to attach favor defendant. is sufficient 1190 Jury Federal Devitt & C. Blackmar. with- E. insignificant otherwise factor

was one 14.06 at 384 and Instructions § Practice Lauges- requiring, pursuant out further (3d 1977). ed. have en, factor be found to ter- difference" in the decision of “made a n. also Coates v. 600 at 27. See F.2d Co., of the trial approach mination. casual 433 655 Register F.Supp. National Cash Hyatt, ADEA viola- v. 318 (D.W.Va.1977); Hodgson court could result (N.D.Fla.1970). considering a 390 any F.Supp. time an tions became aware of simply potential discharge considering the is- majority A of circuits for then employee’s age, insofar sue concurred with Loeb have into” the decision surely have “entered act be inten- requires employer’s process. knowing. v. Syvock Milwaukee tional Manufacturing F.2d Boiler Accordingly, the district court’s Heublein, Inc., 645 Cir.1981); Goodman charge should be deemed insufficient Cir.1981); Kelly v. (2d F.2d 127 American law, as a the case improper matter Inc., (9th Cir.1981); Standard, F.2d retried. be Burroughs (3d Corp., Wehr v. However, Cir.1980). and Third the Second IV added willfulness could Circuits have joined appeal The second issue by merely “reckless” conduct. established of the trial court’s con- propriety 131; Further, at 619 F.2d at 283. ADEA, cerning “willful” violations the Ninth Circuit has concluded both which the Act provides liquidated intent” and “reckless” addi- “specific pay in damages, addition to back and bene- and knowing tions to the basic intentional fits, 626(b); 29 U.S.C. may awarded. § F.2d improper. are 640 at 980. standard 866, Pons, 98 Lorillard 434 U.S. S.Ct. Syvock, in supra, Circuit Seventh court, 40 The district 55 L.Ed.2d group to have this of appears harmonized noted, on the heretofore instructed following test as synthesized cases and of the meaning pertinent word “willful” in authority: of product of line as follows: part The standard for willfulness therefore employer Court that an charges you [T]he on of should focus the defendant’s state willfully to acts if he knows has reason allegedly discrimina- mind at the time the governed know that his acts are distinguish must tory acts occurred. It * * * Act. an employer situations in which those good Neither a belief faith in the law- against an em- consciously discriminates actions, ignorance fulness of nor of from those in ployee because of illegality, their shields the if he employer is which the discrimination unconscious. is, violates the Act. The test just necessary is This distinction employer Act was pic- know the as it is when disparate treatment cases (Emphasis added). ture? sues im- discriminatory on a This Circuit promulgated has not a defi- pact finding We think that theory. nition “willfulness” is specifically applica- should lie if there some willfulness knowledge ble to the The limited showing ADEA. case authori- as to the defendant’s We hold illegality is his actions. ty point divergent. One has approach that, in order to willfulness under been to define as requiring spe- “willful” 626(b) (1976), plaintiff U.S.C. § cific intent to Act. violate the an Such were know- the defendant’s actions show is approach clearly developed the First voluntary that he knew or and ing Loeb, supra. Circuit known that those reasonably should have “An act is ‘wilfully’ done done volun- ADEA. actions violated the tarily intentionally, spe- with 655 F.2d at 155-156. something intent to cific do the law for- test, is with say, purpose regard, Syvock bids: to bad which In this “consciousness disregard emphasizes either to or to the law.” the defendant’s disobey action”, Loeb, V of his illegality intent”, requires “specific actually which $50,000 further contests the award of Indeed, obvi- appears in conflict. damages being are not to Blackwell as in excess under the ADEA. permitted an of that voluntarily who commits one ous that has “act- illegality of its act while conscious ADEA, litigant a successful Under something do intent to specific ed with the may pay be awarded back and benefits Syvock either law forbids”. Under to the from the date of date of reinstatement, trial, Loeb, defining attorney willfulness fees and costs. purpose found, willful Where a violation an clear Congress’ is to illuminate may liquidated ADEA claimant also receive “distinguish those situations intent to “equal pecu amount consciously discrimi- which an compensate aggrieved loss niary [to] an against nates non-pecuniary losses”. party U.S.Code in which the discrimination from those (1978) Cong, p. and Admin.News 535. As at 155. Plain- Syvock, supra unconscious.” was noted in the landmark ADEA case of requires on review ly, Rogers Engineering v. Exxon Research & “igno- faith” or “good evidence of disregard (3rd Cir.1977), 340-41 which, circum- appropriate rance” under denied, cert. U.S. that, stances, well result in a (1978): L.Ed.2d 770 occurred, it was not while a violation has Congress saw fit to restrict the penalty support accordingly willful and could not provisions doubling of the Act penalty liquidated the added earnings. psy- amount of lost To allow in the matter at bar re- instruction chic distress awards in addition would in disregard the distinction quires very real sense thwart the limitation Con- conclusion that good between a faith thought gress impose. advisable ****** and a intent inapplicable specific Act is disregard act in of the law. The Act provides for determination of damages by objective the amount of Moreover, frequently as is the case earnings. test —the amount lost While the trial throughout proceedings, these subject exact be the computation may collo- judge employ has allowed himself disagreement, type dispute quial phrases to define the fundamental proceedings familiar to administrative Subjecting issues of the law. the defendant generally not difficult to resolve. damages only in in- permitted to excess California, Naton v. Bank of Accord: finding of “willful” specific stances of a (9th Cir.1981); F.2d 691 Walker v. Pettit discrimination, upon Co., (4th Construction 605 F.2d Cir. should determine if “the Lines, Inc., 1979); Air Vasquez Eastern picture”, the Act was in the is at [knew] (1st Cir.1978); 579 F.2d 107 Dean v. Ameri vague best and of little real value to the Co., Security can Insurance 559 F.2d 1036 factfinder, and at worst destructive of Con- denied, (5th Cir.1977), cert. 434 U.S. gress’ specific legal choice of a “term of 55 L.Ed.2d 767 precise art” with certain and well-under- bar, complaint In the case at Blackwell’s consequences. stood “$50,000 damages, requested compensatory reasons, the in- For all above-stated Plaintiff attorney’s treble and fees”. “willful” defining struction below the term $50,000 for reinstatement. pray fatally sup- flawed and cannot violations close figure was read to the at the further port a verdict. This Circuit should damages of that charge; found formulate the definition of “willful” clearly amount; thereupon which were awarded. applicable conduct to the ADEA as that trial, By argued its motion for a new Sy- delineated Seventh Circuit legal evidentiary that no foundation vock. laid for such award. Oh, Honor, MR. Your hearing question on the HAYNES:

The record of the Age Discrimination construing cases damages clearly impermissible reveals in- have said that. And in certain appar- Law “bootstrapping” by equal liqui- with the additional amount unfamiliarity by judge ent stances the same as dou- are dated That is liquidated damages basic law that to be equal bling. calculated as an amount having earnings, of actual lost thus amount added). (Emphasis amount of lost “doubling

the effect of post-trial in this rationaliza- Essentially Exxon Research & earnings”. Rogers v. (1) tion, attempted compute supra. part, In relevant Engineering Corp., Blackwell for average monthly income of the record reads as follows: his termination and prior the six months ATTORNEY HAYNES: PLAINTIFF’S figure for the earnings” arrive at a “lost Now, substantial evidence that there is $10,- trial of termination and year between next client did earn for six months my 083; (2) earnings calculate such actual lost sothat preceding firing enough at least then that amount on double just months you projected it for the nine conjecture at trial that he could have mere of trial it leading up before date in the new sales so increased his volume $10,083.00. have been a total of (3) replacement; covered his territory by adding thereafter increase the award was substantial There (4) $6,000 pension funds and in unvested you And territory. men who knew being without ever jury, conclude expanded company will recall that instructed, thereupon doubled that art- so employee young territory $50,- figure to arrive at fully accumulated place. my man’s they put he could have And there was evidence long recognized that the This Court has and at least doubled his commis- tripled employment purpose pay of a back award territory they expanded sions had is “to restore the matters client. my if the quo enjoyed he would have status Now, if, fact, you project had not taken discriminatory discharge months loss of commissions that he actu- Co., 570 place”. NLRB v. McCann Steel months, for the 11 ally projected earned Cir.1978). (6th pay Back he could have you and if believe that proved to actual be limited those, then, upwell gets doubled him EEOC v. De certainty. with reasonable to twenty-six-thousand $26,166.00. — 314-316 troit Edison Cir.1975). Although the factfinder has the Now, rights of pension he lost his damages in cases discretion to ascertain substantial evidence $6,000.00. There is damages elements of are not gets That where certain in the record that he lost that. calculation, such dis therefore, precise $26,166.00. susceptible And either him to “reasonably must be exercised by reason of cretion reinstating in lieu of him or range proofs in the case”. loss is dou- within the willfulness, that actual Corp., 591 F.2d $52,320.00. Drayton v. Jiffee Chemical bled, And it becomes Cir.1978). is that 352, The rule enough. 366 I didn’t sue apparent is shown with damage the existence of once you get THE COURT: Where difficulty in calculat certainty, reasonable part? double precision amount with mathematical ing is a find- MR. Where there HAYNES: Perma Research recovery. will not defeat can, there under of willfulness ing Co., 542 F.2d Development Singer v. liquidated compensate case law denied, 987, Cir.), 429 U.S. 97 (2d 111 cert. loss can be dou- damages pecuniary 507, L.Ed.2d 598 50 bled. bar, received abso- jury case at except In the THE Who said COURT: to this rule. Fur- no instruction as lutely Haynes? ther, potential of a “dou- only during pe- income Frances

bling” in Blackwell’s Brahna DENBERG and Albert A. Denberg, was his between termination and trial riod on behalf of themselves and ability similarly his sales in a all speculation situated, own about others Plaintiffs- Appellees, contrary This is to a clearly new area. Loubrido damage. of “certain” See

finding Rico, Puerto Company v. Hull Dobbs UNITED STATES of America RAIL Inc., (D.P.R.1981); Buch- F.Supp. ROAD RETIREMENT BOARD and Manufacturing holz v. Symons Cowen, James L. individually and as F.Supp. (E.D.Wisc.1978). [Award chairman of the United States of Ameri permissi- in ADEA commissions ca Board, Railroad Retirement Defend ble with only they predicted when can ants-Appellants. certainty.] reasonable No. 81-2386. Moreover, jury charged was never that if it did find a willful viola- specifically United States Court of Appeals, tion, it should double what thereupon Seventh Circuit. found The wider to be actual Argued May 1982. accepted practice dictate Decided Jan. 1983. should have been instructed to enter a as to the factual issue of As Modified Jan. 1983. liquidated damages willfulness. The should As Amended on Denial of Rehearing and thereafter be and assessed computed by the Rehearing En Banc May Corp., trial court. Mistretta v. Sandia (10th Cir.1980). analogous F.2d 588 This is damage in treble proper procedure

anti-trust actions.

Assuming arguendo instruc-

tions in the case at bar were not them-

selves sufficient to warrant a reversal here-

in, the absence of basic instructions in the damages clearly

area of resulted in an supported

award which cannot be on re-

view. Chiefly, must know that

each pay claimed element of back such as

commissions, bonuses, etc. must be shown to

exist certainty pro- with reasonable before thereof;

ceeding to consider the amounts further, should not be instruct-

ed or to return more than an presumed

amount of actual damages. hereinabove,

For I re- the reasons stated

spectfully dissent and would reverse

verdict and remand for a retrial.

Case Details

Case Name: Thomas P. BLACKWELL, Jr., Plaintiff-Appellee, v. SUN ELECTRIC CORPORATION, Defendant-Appellant

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 10, 1983

Citation: 696 F.2d 1176

Docket Number: 81-5517

Court Abbreviation: 6th Cir.