Brown v. Stites Concrete, Inc.

994 F.2d 553, 1993 U.S. App. LEXIS 13600, 61 Empl. Prac. Dec. (CCH) 42,339, 61 Fair Empl. Prac. Cas. (BNA) 1666, 1993 WL 193522

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 10, 1993
• Docket: Nos. 91-2581, 91-3057
• Status: Published

Opinions

HANSEN, Circuit Judge.

Fred Brown brought this age discrimination action against Stites Concrete, Inc. (Stites) pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. The jury found in favor of Brown and awarded $38,500 in compensatory damages. Based upon the jury’s finding of willfulness, the district court¹ doubled the award pursuant to 29 U.S.C. § 626(b). The district court also awarded Brown $28,089 in attorney’s fees.

On appeal to a panel of this court, Stites argued that the district court erred in denying its motion for judgment notwithstanding the verdict or for a new trial and challenged the jury instructions given on willfulness and mitigation. Brown cross-appealed on the issue of attorney’s fees. In Brown v. Stites Concrete, Inc., Nos. 91-2581, 91-3057, 91-3139, 1992 WL 161417 (8th Cir. July 15, 1992), the panel affirmed the district court on all issues. Stites then filed a suggestion for rehearing en banc on the following issue:

The trial court erred in instructing the jury on the issue of willful conduct in that the instruction given encouraged a finding of willfulness in every case and did not require a finding of evidence beyond that needed for compensatory damage.

See appellant’s suggestion for rehearing en banc, filed July 29,1992, at i. On September 14, 1992, we granted Stites’s suggestion for rehearing en banc and vacated the opinion and judgment filed by the panel. 969 F.2d 714.

I.

As a preliminary matter, we must determine which issue or issues are before the court en banc. Stites, based on its counsel’s professional judgment, appropriately limited its suggestion for rehearing en banc to the one issue that it believed satisfied the rigid standards of Federal Rule of Appellate Procedure 35(a) and Eighth Circuit Rule 35A(a): whether the panel decision affirming the district court on the question regarding the jury instruction on willfulness is contrary to prior decisions of this court. See 8th Cir.R. 35A(c)(2)(i). That single issue is clearly before this court en banc. Upon granting the suggestion for rehearing en banc, however, we vacated the panel decision in its entirety rather than vacating only the portion of the panel decision regarding the instruction on willfulness. Therefore, although only the issue regarding the jury instruction on willfulness was properly preserved for en banc consideration, all issues originally on appeal technically remain open because the panel opinion was vacated in its entirety.

It has long been the policy of this court that we do not consider issues en banc that are not specifically raised in the suggestion for en banc consideration. Only in the rarest of occasions, when justice requires, do we depart from this policy. Rehearing en banc is appropriate “only when the attention of the entire court must be directed to an issue of grave constitutional dimension or exceptional public importance, or to an opinion that directly conflicts with Supreme Court or Eighth Circuit precedent.” 8th Cir.R. 35A(a).

Because we see no reason to depart from our policy in this case, we will discuss only the issue regarding the jury instruction on willfulness because that was the sole basis upon which the suggestion for rehearing en banc was granted. Therefore, we reinstate the panel opinion to the extent it resolves the Other issues raised on initial appeal but leave vacated that portion of the opinion addressing the issue regarding the jury instruction on willfulness.² The original panel opinion is appended to this opinion.

II.

The issue on which en banc consideration was granted is essentially a legal one. The reinstated panel opinion thoroughly discusses the facts. Therefore, we only summarize the factual background for this opinion.

Brown was employed by Stites as a mechanic for a period of approximately seven years, beginning in 1968. In July of 1986, Brown, at the age of seventy-five, approached Dale Stites, the president and owner of Stites, and asked to work for Stites Concrete again. Brown testified that he told Dale Stites that he “always went to Florida for two or three months out of the year” after the first of the year and that Dale Stites responded, “There’s no problem. We’re not busy at that time of the year.” The following Monday, Brown began working part-time in the maintenance department, and within a few weeks, he was working full-time and then overtime. Shortly after Brown was hired, Stites also hired Steve Hyslop, who was thirty-five years old and less experienced than Brown, to work in the maintenance department.

In 1987, an engine block fell on Brown while at work, resulting in a hernia that required surgery. Brown missed approximately ten weeks of work. Hyslop testified that after Brown’s injury, Dale Stites began making statements about Brown’s age and his ability to perform his duties.

In December of 1987, Brown asked for a leave of absence from the first of January 1988 until the first of April 1988. According to Brown’s testimony, Dale Stites responded by stating “no problem.” Brown further testified that on the day he left, Dale Stites shook his hand and said, “Have a good trip, a good vacation, and I’ll see you the first day of April.” Upon returning from his trip, Brown returned to Stites Concrete but was told that there was no work and that they would call him. Steve Hyslop, who had less seniority than Brown, was working at this time and testified that he thought there was more than enough work for two people. Stites never called Brown back to work. The union steward, Tom Morían, testified that he spoke to Dale Stites upon Brown’s request and that Dale Stites told him that “there wasn’t a problem.... Fred’s getting too old to work out there. I’m afraid he might get hurt.”

After a two-day trial, the jury returned a verdict for Brown, awarded $38,500 in compensatory damages, and found that Stites had willfully violated the ADEA. Upon the jury’s finding of willfulness, the district court awarded liquidated damages pursuant to 29 U.S.C. § 626(b).

III.

Stites argues that the district court erred in its willfulness instruction because the instruction did not require additional evidence beyond that needed for compensatory damages and it encouraged a finding of willfulness in every case that a violation of the ADEA was found. After the oral arguments before this court en banc, the United States Supreme Court has addressed the issue of “willfulness” in an ADEA case and has overruled some Eighth Circuit case law on the topic. Therefore, we find it useful to review the development of the applicable law on this issue before we address the jury instruction in dispute in this case.

A.

The ADEA provides that “liquidated damages shall be payable only in cases of willful violations of this chapter.” 29 U.S.C. § 626(b). In Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), the Supreme Court held that an employer’s violation of the ADEA is “willful” if “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.” Id. at 128-29, 105 S.Ct. at 625. The Court rejected the argument that a violation of the ADEA is willful if the employer “simply knew of the potential applicability of the ADEA.” Id. at 127, 105 S.Ct. at 625. The Court went on to explain:

[T]he broad standard proposed by the respondents would result in an award of double damages in almost every case. As employers are required to post ADEA notices, it would be virtually impossible for an employer to show that he, was unaware of the Act and its potential applicability. Both the legislative history and the structure of the statute show that Congress intended a two-tiered liability scheme. We decline to interpret the liquidated damages provision of ADEA § 7(b) in a manner that frustrates this intent.

Id. at 128,105 S.Ct. at 625 (footnote omitted).

This circuit, as well as several others, has tried to apply the Thurston standard in a manner that would ensure a two-tiered liability scheme. In Neufeld v. Searle Laboratories, 884 F.2d 335 (8th Cir.1989), this court stated:

We think Thurston means at least this: if the people making the employment decision know that age discrimination is unlawful, and if there is direct evidence — more than just an inference from, say, an arguably pretextual justification — of age-based animus, the trier of fact may properly find willfulness.

Id. at 340. Since Neufeld, this court has consistently required direct evidence rather than inference to support a finding of “willfulness.” See, e.g., Glover v. McDonnell Douglas Corp., 981 F.2d 388, 396 (8th Cir.1992); Hudson v. Normandy Sch. Dist., 953 F.2d 410, 413 (8th Cir.1992); Beshears v. Asbill, 930 F.2d 1348, 1356 (8th Cir.1991); Morgan v. Arkansas Gazette, 897 F.2d 945, 952 (8th Cir.1990) (more than inference from arguable pretextual justification required in disparate treatment cases);³ Blake v. J.C. Penney, Co., 894 F.2d 274, 280 (8th Cir.1990). Also in addressing the same concern for a two-tiered system, this court in Bethea v. Levi Strauss & Co., 827 F.2d 355 (8th Cir.1987), quoted — but did not adopt — the requirement imposed by the Court of Appeals for the Third Circuit that liquidated damages in an informal disparate treatment case could not be found unless the employer’s conduct was “outrageous.” Id. at 359 (quoting Dreyer v. Arco Chem. Co., 801 F.2d 651, 657 (3d Cir.1986), cert. denied, 480 U.S. 906, 107 S.Ct. 1348, 94 L.Ed.2d 519 (1987)).

Recently, in Hazen Paper Co. v. Biggins, — U.S. -, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), the Supreme Court found the concern for maintaining a two-tiered liability scheme to be “misplaced.” Id. at -, 113 S.Ct. at 1709. The Court stated:

The ADEA does not provide for liquidated damages “where consistent with the principle of a two-tiered liability scheme.” It provides for liquidated damages where the violation was “willful.” That definition must be applied here unless we overrule Thurston, or unless there is some inherent difference between this case and Thurston to cause a shift in the meaning of the word “willful.”

Id. at -, 113 S.Ct. at 1709. The Court declined to overrule Thurston and did not find the case before it distinguishable from Thurston. Id. Biggins reaffirmed that the Thurston standard for willfulness applicable in all disparate treatment cases under the ADEA is simply whether “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” Id. The Court held that “[o]nce a ‘willful’ violation has been shown, the employee need not additionally demonstrate that the employer’s conduct was outrageous, or provide direct evidence of the employer’s motivation.... ” Id.

B.

We review jury instructions as a whole to determine whether they fairly and adequately instruct the jury as to the substantive law. Tioga Pub. Sch. Dist. v. United States Gypsum Co., 984 F.2d 915, 923-24 (8th Cir.1993) (citation omitted). The district court has wide discretion in the formulation of jury instructions. Davis v. Merrill Lynch, Pierce, Fenner & Smith, 906 F.2d 1206, 1212 (8th Cir.1990) (citation omitted).

Stites argues that the instruction given by the district court fails to require additional evidence and results in a finding of willfulness in every case that a violation of the ADEA is found. Stites contends that its proposed instruction was correct and should have been used instead.

Stites’s proposed instruction included the sentence, “A violation is willful if, in addition to the facts you have used to find discrimination, there is some additional evidence of outrageous conduct.” The aspect of Stites’s, argument that the instruction should have required evidence of outrageous conduct is now foreclosed by Biggins. Biggins, — U.S. at -, 113 S.Ct. at 1709 (rejecting an “outrageousness” requirement). Aside from the “outrageousness” requirement, Stites’s proposed instruction also required “additional evidence” to support a finding of willfulness. Beginning with the decision in Bethea v. Levi Strauss & Co., 827 F.2d 355, 359 (8th Cir.1987), this court has required additional evidence to establish a willfulness violation. See, e.g., Glover, 981 F.2d at 395-96 (liquidated damages award must be supported by evidence beyond the minimum necessary to prove the violation); Reyher v. Champion Int’l Corp., 975 F.2d 483, 487 (8th Cir.1992) (requiring “an additional quantum of evidence,” but determination may be from “same nucleus of operative fact”); Williams v. Valentec Kisco, Inc., 964 F.2d 723, 729 (8th Cir.1992) (requiring additional evidence); Rademaker v. Nebraska, 906 F.2d 1309, 1313 (8th Cir.1990) (same); Morgan, 897 F.2d at 952 (same). In formulating this requirement, we stated:

“Because Thurston makes clear that we must interpret the liquidated damages provisions in a way that would not permit ‘an award of double damages in almost every case,’ Thurston, 469 U.S. at 128 [105 S.Ct. at 625] we must seek a standard for willfulness that distinguishes between a violation, which is almost always intentional, and a willful violation, leading to double damages.” Dreyer [v. Arco Chem. Co., 801 F.2d 651, 657 (3d Cir.1986), cert. denied, 480 U.S. 906 [107 S.Ct. 1348, 94 L.Ed.2d 519 (1987).] The Thurston Court looked to the legislative history of the ADEA which indicated that “Congress intended for liquidated damages to be punitive in nature.” Thurston, 469 U.S. at 125 [105 S.Ct. at 624], In its analysis of the Thurston standard of willfulness, one court concluded that “[t]he essence of punitive damages is that they may be awarded ‘for conduct that is outrageous.’ ” Dreyer, 801 F.2d at 657 (citation omitted). Thus, in order that the liquidated damages be based on evidence that does not simply duplicate that needed for the compensatory damages, there must be some additional evidence of the employer’s “reckless disregard.” Thurston, 469 U.S. at 128 [105 S.Ct. at 625].

Bethea, 827 F.2d at 359.

The rationale we expressed in Bethea has been severely undercut by the decision in Biggins. As noted above, the Third Circuit’s requirement in Dreyer that the conduct of the employer be “outrageous” before liquidated damages could be imposed has been overruled. Biggins, — U.S. at -, 113 S.Ct. at 1709. More importantly, the Supreme Court has clarified that the concern for ensuring a two-tiered liability scheme is “misplaced” and that the focus should strictly be on whether the employer’s actions were in willful violation of the ADEA as provided in the statute. To support an award for liquidated damages, therefore, the sole relevant determination is whether the evidence meets the standard that the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.” The question is not whether the evidence used to establish willfulness is different from and additional to the evidence used to establish a violation of the ADEA, but whether the evidence' — additional or otherwise — satisfies the distinct standard used for establishing willfulness. Accordingly, we reject Stites’s argument that the jury instruction in this case is flawed because it did not require “additional evidence” to establish willfulness.

The jury instruction given by the district court in this case stated:

[A] violation is willful if the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the federal law under which the plaintiff sues in this case. And the violation is willful if it’s done voluntarily and deliberately and intentionally and not by accident or inadvertence or ordinary negligence. And, in this connection, you can consider statements made or acts done or omitted and all facts or circumstances which show whether or not the defendant acted intentionally and not by accident.

Trial transcript, at 444-45.

The first sentence of the instruction given by the district court correctly states the “willfulness” standard as set forth in Thurston and reaffirmed in Biggins. We suggest that an instruction that sets forth the standard on willfulness alone is ordinarily sufficient. See, e.g., Instruction No. 5.14, Eighth Circuit Model Civil Jury Instructions (West 1993). The jury instruction given by the district court, however, followed the statement of the willfulness standard by two more sentences.

The second sentence distinguishes willful violations from violations done “by accident or inadvertence or ordinary negligence.” This distinction is not inconsistent with the proper standard for willfulness. See Biggins, - U.S. at -, 113 S.Ct. at 1708 (“The word ‘willful’ ... is generally understood to refer to conduct that is not merely negligent.”) (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 1681, 100 L.Ed.2d 115 (1988) (a Fair Labor Standards Act case)); MacDissi v. Valmont Indus., 856 F.2d 1054, 1061 (8th Cir.1988). The first portion of the second sentence is problematic, however, principally because it equates “willfully” with “voluntarily” in the ADEA context when it is a willful violation of the law as opposed to voluntary conduct in general that is required. This problem could have been avoided if the instruction simply stated that a willful violation of the statute cannot occur by accident, inadvertence, or ordinary negligence. When read in context of the whole instruction, we find that portion of the second sentence as given was not reversible error because the instruction as a whole fairly and adequately instructed the jury as to the substantive law.

The last sentence instructs that the jury can “consider statements made or acts done or omitted and all facts or circumstances.” This statement fairly and adequately states the law because, as discussed above, neither direct evidence nor additional evidence is required to establish willfulness. Once again, the focus is not on the type or source of the evidence but rather on whether the evidence meets the standard for willfulness.

Because we find that the instruction fairly and adequately states the law as set forth in Thurston and reaffirmed in Biggins, we reject Stites’s argument that the instruction given directs a finding of willfulness every time a violation of the ADEA is found.

It is not true that an employer who knowingly relies on age in reaching its decision invariably commits a knowing or reckless violation of the ADEA. The ADEA is not an unqualified prohibition on the use of age in employment decisions, but affords the employer a “bona fide occupational qualification” defense ... and exempts certain subject matters and persons.... If an employer incorrectly but in good faith and nonrecklessly believes that the statute permits a particular age-based decision, then liquidated damages should not be imposed.

Biggins, — U.S. at -, 113 S.Ct. at 1709 (citations omitted). Accordingly, we hold that the district court did not abuse its discretion in the formulation of the jury instruction on willfulness.

IV.

For the reasons above, we find that the district court did not abuse its discretion in its formulation of the jury instruction on willfulness. We reinstate the panel decision to the extent that it resolves all issues other than the issue regarding the instruction on “willfulness” under the ADEA. The judgment of the district court is affirmed.

1 . The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri.

2 . Consequently, the only portion of the majority panel opinion that remains vacated is the first six paragraphs in section II.B. See Brown v. Stites Concrete, Inc., Nos. 91-2581, 91-3057, 91-3139, slip op. at 7-9, 1992 WL 161417 (8th Cir. July 15, 1992). [See Appendix at 565-66, infra.}

3 . In formulating the direct evidence requirement in Neufeld, this court characterized Thurston as a disparate-impact case and noted that the "chief difficulty in transposing Thurston into the disparate-treatment context is that disparate-treatment claims involve charges of specific bias focused against a particular victim." Neufeld, 884 F.2d at 340; see also Tolan v. Levi Strauss & Co., 867 F.2d 467, 471 (8th Cir.1989) (expressing same concerns in applying Thurston to a disparate treatment ADEA case). In Hazen Paper Co. v. Biggins, — U.S. -, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), the Supreme Court characterized Thurston as a disparate treatment case. See, id. at -, 113 S.Ct. at 1706. In comparing disparate treatment cases, the Court stated that the discrimination in Thurston entered the employment decision through a formal policy rather than informally and on an ad hoc basis as in cases such as Neufeld. Biggins, - U.S. at -, 113 S.Ct. at 1709. The Court further noted that it has “never decided whether a disparate impact theory of liability is available under the ADEA.” Id. at -, 113 S.Ct. at 1706.