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

696 F.2d 1176, 1983 U.S. App. LEXIS 27671, 30 Empl. Prac. Dec. (CCH) 33,268, 30 Fair Empl. Prac. Cas. (BNA) 1177

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 10, 1983
• Docket: 81-5517
• Status: Published

Opinions

KEITH, Circuit Judge.

This appeal raises the question of whether the district court’s jury instructions setting forth the applicable law under the Age Discrimination in Employment Act. (“ADEA”) 29 U.S.C. §§ 621 et seq., (1967)¹ were misleading or improper. Because we find that the charge to the jury, taken as a whole, accurately stated the controlling law, we affirm the judgment of District Judge Robert Taylor.

I.

In 1975 Sun Electric Corporation (“Sun”) hired plaintiff-appellee Thomas P. Blackwell (“Plaintiff”) as a sales representative in its Memphis, Tennessee, regional office. His responsibilities included selling and instructing customers on the use of electronic diagnosis equipment used to test automotive vehicles.

During his three-year tenure at the Memphis office, Plaintiff was in the top 15% of Sun’s national salesmen, and twice received a sales award for “being in the top $100,000 sales volume.” In August 1978, Plaintiff voluntarily took a leave of absence from Sun. In January 1979 he returned and was transferred to the Knoxville, Tennessee regional office.

In November 1979 Mike Eberhardt became regional manager for Sun’s Knoxville office. In February, 1980, he warned Plaintiff that he would have to increase his sales. Between March and July 1980 plaintiff did improve his monthly gross sales volume. But on July 3, 1980, Eberhardt discharged Plaintiff, allegedly for his failure to meet the minimum net sales volume for his sales territory. According to Eberhardt, Plaintiff’s net sales were far below the $8,000 monthly net sales needed to offset Sun’s expenses in the territory.²

However, Plaintiff maintained that Eberhardt fired him because of his age. He cited the fact that other older workers had also been fired, and that Eberhardt seemed to spend a lot of time socializing with the younger employees. He cited a comment made by Eberhardt to one of the other older employees, “Your get up and go has got up and gone.” Finally, he noted that Eberhardt expanded the sales territory for the plaintiff’s successor while refusing to expand the territory when the plaintiff asked him to do so.

On February 21, 1981, Plaintiff filed suit in the United States District Court for the Eastern District of Tennessee. He alleged that Sun had discharged him because he was sixty-four years old, in contravention of the ADEA. On June 11, 1981 the case was tried before a jury. The jury rendered a general verdict, finding Sun liable for age discrimination and awarding Plaintiff fifty-thousand dollars ($50,000) in damages. Sun appeals.

II.

Sun argues that the district court erred by not instructing the jury on the essential elements of a prima facie case in an age discrimination suit. Specifically, Sun maintains that the jury should have been instructed that its proffered reason for Plaintiff’s discharge was sufficient to dispel any inference of discrimination unless they found the reason to be a mere pretext. We disagree.

In the seminal case of Laugesen v. Anaconda, 510 F.2d 307, 312 (6th Cir.1975), we stated: “While it may not be unreasonable to assume that in a proper case the guidelines established in McDonnell Douglas v. Green [411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ]³ can be applied in age discrimination jury cases, we believe it would be inappropriate to simply borrow and apply them automatically.” The Laugesen court concluded that the strict evidentiary approach used in racial discrimination cases should not be blindly applied in an age discrimination case. See Laugesen, 510 F.2d at 312-13 n. 4. The court reasoned that while racial discrimination is most often based upon a desire to disadvantage a particular racial minority, employment decisions involving age may reflect the result of the universal progression of aging. The ADEA was designed to protect the older worker from arbitrary classifications on the basis of age, not to restrict the employer’s right to make bona fide business decisions. Thus, in order to avoid interfering with legitimate business decisions, we opted for a case-by-case approach.

In subsequent cases, we have continued to eschew a rigid application of the McDonnell Douglas formula. In fact, in Sahadi v. Reynolds Chemical, 636 F.2d 1116 (6th Cir.1980) , an employee was terminated during an economic cutback and a younger person was retained in a position the plaintiff was capable of performing and willing to relocate to perform. Nevertheless, the court held that the plaintiff had failed to establish a prima facie case of age discrimination. In Ackerman v. Diamond Shamrock, 670 F.2d 66 (6th Cir.1982), the court reaffirmed the case-by-case approach. Judge Phillips,. speaking for the Court, noted:

A mechanical application of the McDonnell Douglas guidelines might bar the suit of a worthy ADEA claimant. In other cases, an overly mechanical application could supply an ADEA plaintiff with a triable claim where none exists.

Id. at 70. See also Locke v. Commercial Union Insurance, 676 F.2d 205 (6th Cir.1982).

The defendant relies upon opinions from several circuit courts which follow the McDonnell Douglas guidelines and order of proof in age discrimination cases. We interpret those opinions as allowing the use of the McDonnell Douglas guidelines, but not making them the exclusive criteria for establishing a prima facie case. Indeed, in several of those cases, the courts expressly disavowed any intent to preclude other methods of proving unlawful age discrimination. See, e.g., Loeb v. Textron, 600 F.2d 1003, 1018 (1st Cir.1979); Stanojev v. Ebasco Services, 643 F.2d 914, 920-22 (2d Cir.1981) ; Hedrick v. Hercules, 658 F.2d 1088, 1093 (5th Cir.1981). To the extent the cases cited by the defendant permit the McDonnell Douglas guidelines to be used to prove age discrimination, they are in full accord with the case-by-case approach of this court. We hold that it was not error for the court to refuse to instruct the jury on the prima facie elements of a discrimination case as set forth in McDonnell Douglas4 Moreover, we hold that the record reflects that the plaintiff introduced enough evidence to present a prima facie case of age discrimination.

The ultimate issue in this age discrimination suit is whether age was a determining factor in the employer’s decision to fire the plaintiff. Ackerman, 670 F.2d at 70. Laugesen, 510 F.2d at 317. The plaintiff can establish a prima facie case of age discrimination by using the McDonnell Douglas criteria. The plaintiff can also establish a prima facie case using statistical information, direct evidence of discrimination, and circumstantial evidence other than that which is used in the McDonnell Douglas criteria. See Stanojev v. Ebasco Services, 643 F.2d at 920-21. Once a prima facie case is established through either of these methods, the burden shifts to the employer to produce a legitimate non-discriminatory reason for his decision. The ultimate burden of proving discrimination also remains with the plaintiff. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

The district court’s charge adequately instructed the jury on the respective burdens and requisite elements of a prima facie case of age discrimination. Though the court did not adopt the language of McDonnell Douglas as modified for age discrimination cases, it simply and directly stated the issue for the jury. We agree with the First Circuit’s reasoning in Loeb v. Textron:

The court should not force a case into a McDonnell Douglas format if to do so will merely divert the jury from the real issues; rather it should use its best judgment as to the proper organization of the evidence and the charge. In cases of this type, the best jury instruction may simply be one that emphasizes that plaintiff must prove by a preponderance of the evidence that he was discharged because of his age — with adequate explanation of the meaning of the age statute, the determinative role age must have played, etc.

600 F.2d at 1018. The district court’s instructions included all of the relevant factors and provided sufficient guidance to the jury from which it could make an informed decision on the controlling issue.⁵

We also disagree with defendant’s assertion that the plaintiff failed to establish a prima facie case. Even if we were to strictly apply the McDonnell Douglas criteria, Plaintiff provided evidence that 1) he was a member of the protected class, 2) he was discharged, 3) he was qualified for the job, and 4) he was replaced by a younger worker outside the protected class.⁶ We do not agree that the plaintiff failed to prove that he was qualified for the job. He had performed the job satisfactorily for several years. Moreover, if we were to hold that a plaintiff’s prima facie case fails if his qualifications are challenged by the defendant, we would effectively preclude age discrimination suits of this kind. Then, a defendant would always be able to challenge the plaintiff’s qualifications for the job, and the issue would be taken away from the jury. But it is the defendant’s burden to produce enough evidence to convince the trier of fact that the plaintiff was fired because he was incapable of performing his job. The plaintiff in this case certainly presented enough evidence to raise an inference of age discrimination until such inference was •dispelled by an explanation from the defendant.

Even if the plaintiff had not met the McDonnell Douglas criteria, we would still hold that he had presented a prima facie case. There was conflicting testimony as to why Eberhardt refused to expand the territory for the plaintiff, and yet expanded the territory for the younger salesman who replaced him. One of the witnesses testified that Eberhardt had stated to him that he could always find a reason for firing somebody. There was evidence that Eberhardt, the young supervisor, “buddied with” younger salesmen. There was also disputed testimony regarding the reasons for the discharge of several other older salesmen. Certainly the combination of these factors was sufficient to raise an inference of discrimination, and thus require the defendant to explain its actions.

III.

The defendant further contends that the district court erred because it failed to instruct the jury that the ADEA was violated only if age was a determining factor in the defendant’s decision to discharge Plaintiff. We disagree that the jury instructions on this issue constituted reversible error.

It is well settled that age must be a “determining factor” in an employment decision in order to impose liability upon the employer. In Laugesen, this Court articulated guidelines for instructing a jury in an ADEA case. The Court stated:

However expressed, we believe it was essential for the jury to understand from the instructions that there could be more than one factor in the decision to discharge him, and that he was nevertheless entitled to recover if one such factor was his age and if in fact it made a difference in determining whether he was to be retained or discharged.

Id. at 317. See also Ackerman at 70 (“... ultimate issue is whether age was a factor in a decision of an employer to terminate an ADEA claimant and whether the age of claimant made a difference in determining whether he was to be retained or discharged.”); Sahadi at 1117 (“... age would not have to be the sole reason, but only a contributing factor in connection with the discharge.”).

In evaluating the adequacy of jury instructions, they must be taken as a whole. Haislah v. Walton, 676 F.2d 208, 212 (6th Cir.1982); Laugesen, 510 F.2d at 315; Tyree v. New York Central R.R., 382 F.2d 524, 527 (6th Cir.), cert. denied 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967). Thus, the defendant cannot complain about the specific wording of the instructions if they adequately inform the jury of the relevant considerations and provide a basis in law for aiding the jury in reaching its determination. The district court’s instructions in this case performed these functions.⁷

We are fully aware that at certain points in the instructions the district court was less than precise when it tried to use language the jurors could understand. The better practice would have been to use the “determining factor” language rather than the “entered into” language used several times over the course of the trial.⁸ Despite the imprecision of the district court’s language, we find the instructions more than adequate when viewed in their entirety.

The instructions state that the plaintiff has the ultimate burden of proving discrimination. They also correctly inform the jury that though there may be more than one reason for the employer’s decision, the jury must decide whether at least one of the reasons was the plaintiff’s age. Moreover, they charge the jury that if there were bona fide business or economic reasons for the discharge, and age was not a factor, then the employer is not liable to the plaintiff. Thus all of the factors set forth in the guidelines in Laugesen are present.

The Second Circuit recently addressed a similar issue in an age discrimination case. In Geller v. Markham, 635 F.2d 1027 (2d Cir.1980), cert. denied 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981), the court upheld a jury verdict for the plaintiff even though the district court refused to amend a special interrogatory which asked whether a scheme which was discriminatory on its face was “one reason” for the plaintiff’s discharge. The defendant requested that the interrogatory be amended to read “one reason that made a difference.” In upholding the refusal to amend, the circuit court opined that if the interrogatory had been the only guidance given to the jury, the defendants might have been entitled to a new trial since age can be one reason but not a determinative reason for discharge. But once the interrogatory was viewed in the context of other instructions, its meaning became clear.

Similarly, the district, court’s instructions in this case adequately apprised the jury of its task. The court’s reference to “a factor”, when viewed beside the court’s other instructions, obviously refers to “a factor in the termination of the plaintiff.” The court instructs the jury several times that it must find that the plaintiff would not have been discharged except for his age.

Sun contends that the court’s response to counsel’s exception to the jury instructions betrays a misunderstanding of the law.⁹ We disagree. The court’s re-sponse reflected no more than a misunderstanding of counsel’s request. We note that the instruction, even as characterized by defendant’s counsel, is accurate. As stated earlier, it is not reversible error if the court refuses to use the exact language counsel requests.

IV.

A.

The district court charged the jury that the defendant was guilty of willful discrimination if it fired the plaintiff because of his age and knew or had reason to know that its actions were governed by the Act.¹⁰ The defendant challenges this instruction as unsupported by the Act and opinions from other courts of appeals. We note that this is an issue of first impression for this court.

The ADEA provides that liquidated damages are payable only in cases of willful violations of the Act. 29 U.S.C. § 626(b).¹¹ The Act itself provides no definition or guidance as to how the term “willful” is to be defined. The courts of appeals have adopted various approaches for distinguishing cases in which violations of the Act will support liquidated damages from those that will not.

In Loeb v. Textron, 600 F.2d at 1020 n. 27, the court appeared to adopt the position that “an act is done willfully if done voluntarily and intentionally, and with the specific intent to do something the law forbids.” The Third Circuit rejected the specific intent standard of Loeb in Wehr v. Burroughs Corp., 619 F.2d 276, 283 (3d Cir.1980). The Wehr court concluded that Congress did not intend to restrict liquidated damages to those cases in which the defendant consciously violated the Act. It held:

It is sufficient to prove that the company discharged the employee because of age and that the discharge was voluntary and not accidental, mistaken, or inadvertent. In our view, it would also be sufficient to prove that the discharge was precipitated in reckless disregard of consequences.

Id. Cf. Goodman v. Heublein, Inc., 646 F.2d 127 (2d Cir.1981).

The Ninth Circuit has indicated agreement with the Third Circuit’s holding that a finding of recklessness will support liquidated damages. In Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir.1981), the court held that the ADEA does not require a specific intent to violate the Act or require that an employer have “knowledge of implications under the Act.” It reasoned that to allow an employer to avoid liability because he lacked an intimate familiarity with the Act could frustrate the congressional purpose. It would have “the anomalous effect of encouraging employers to know as little as possible about the ADEA so they would not be liable for liquidated damages.” Id. at 980.

In Syvock v. Milwaukee Boiler Manufacturing, 665 F.2d 149 (7th Cir.1981), the Seventh Circuit held that the plaintiff must prove that the defendant’s actions were knowing and voluntary, and that he knew or reasonably should have known that those actions were violative of the ADEA. Id. at 156. The Syvock court explained that this standard implied: “(1) that the employer knew or reasonably should have known what the requirements of the ADEA are; and (2) that the employer knew or reasonably should have known that his actions towards the plaintiff were inconsistent with those requirements.” Id.

It appears that Congress, in adopting the liquidated damages provision, sought to distinguish cases in which there is intentional discrimination from those where the employer’s discrimination is not intentional. This interpretation is buttressed by the fact that Congress evidently intended that a plaintiff be able to prove age discrimination without proving intent to discriminate. Thus, the plaintiff must meet a higher burden of proof in order to receive liquidated damages. See Kelly, 640 F.2d at 980; Syvock v. Milwaukee Boiler Manufacturing, 665 F.2d at 154.

However, every showing of intentional discrimination does not entitle the plaintiff to liquidated damages. The fact that Congress did not incorporate the liquidated damages provisions of the Fair Labor Standards Act (FLSA) into the ADEA evinces a congressional intent to make a meaningful distinction between willful violations of the Act and violations that are not willful. See Lorillard v. Pons, 434 U.S. 575, 581, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978). See also Goodman v. Heublein, 645 F.2d at 129 n. 2.

We hold that in order to show willfulness, an ADEA plaintiff must show that the employer’s actions were voluntary and intentional. The employer is not necessarily shielded from liability because he is unaware of the “implications of his actions under the Act.” Alternatively, the plaintiff may receive liquidated damages if he shows that the employer was reckless in not knowing that his actions were governed by the ADEA or that the employer acted in reckless disregard of whether his actions were covered by the ADEA.¹²

We also agree with the Third Circuit’s holding in Wehr that it is not necessary for the plaintiff to show that the employer acted with a specific intent to violate the Act. Wehr, 619 F.2d at 279 n. 5. See also Kelly at 980. Moreover, though a finding of good faith would preclude a finding of willfulness, it is not necessary that the trier of fact make express findings of fact on the good faith issue. Loeb, 600 F.2d at 1020; Wehr, 619 F.2d at 279 n. 5. Rather, in a jury trial the court’s instructions to the jury should focus on whether the employer deliberately, intentionally and knowingly discharged the employee because of his age.

B.

We now consider the jury instructions on the willfulness issue in light of the foregoing principles. Viewing the instructions as a whole, see supra, we hold that the district court adequately formulated the relevant considerations for the jury. Though our Court had not yet spoken on the issue of willfulness, we think the district court’s instructions accurately focused the question for the jury: whether the employer had acted deliberately, intentionally and knowingly in firing the plaintiff because of his age.

In the context of this case, we read the court’s “in the picture” language to describe a threshold situation in which an employer discriminates against an employee because of age without knowledge that any specific provision of the ADEA is applicable. Furthermore, we think that the court’s instructions do not preclude a consideration of the defendant’s good faith. Rather, they correctly state that the good faith belief of the employer in the legality of his actions does not necessarily shield him from liability for liquidated damages. The court’s imprecision in expressing some of these points does not fatally undermine their essential accuracy. Hence, we find no reversible error.

C.

Finally, Sun challenges the jury’s damage award of $50,000. Sun argues that there is no showing on the record to support such a damage assessment. We agree.

Plaintiff earned approximately $8,600 in the six months preceding his discharge. After his discharge, the territory was expanded and Sun introduced a greater discount policy in order to attract customers. Plaintiff testified that he could have earned two to three times as much in the expanded territory. This testimony is too speculative to support a damage award. However, there is nothing in the record which indicates that the plaintiff would have been compensated at a lower rate than in the preceding six months. Eleven months passed between the time of the plaintiff’s discharge and the date of trial. Thus, Plaintiff is entitled to approximately $15,-770 as lost wages.

The record supports a finding of willfulness, and the post-trial hearing indicated that the district court and the attorneys for both parties thought that the jury had made such a finding.¹³ Since we have upheld the district court’s instructions on the willfulness issue, we think the plaintiff is entitled to an amount equal to his lost wages as liquidated damages.¹⁴

The ADEA allows the court to grant equitable remedies to persons aggrieved by a violation of its provisions. Plaintiff contends that under § 626(b) he is entitled to $6,000 in pension benefits which have been posted to his pension plan and $715 in health benefits which he would have received in the eleven months after his discharge. We agree that Plaintiff is entitled to the health benefits, but he is not entitled to any pension benefits.

At the time of Plaintiff’s discharge, he had no vested rights in the pension benefits. No such rights would have vested until he had worked for the company for five more years. Moreover, all of the funds in the plan were invested by Sun. Plaintiff would have received no pension benefits or vested rights in pension benefits in the eleven months after his discharge. It would be too speculative to grant benefits that would not vest until such a distant time in the future.¹⁵

However, Plaintiff is entitled to the health benefits he would have received in the eleven months between his discharge and the trial. He has shown that he would have received $715 in health insurance if Sun had not illegally discharged him. He also is entitled to recover $400 for the equipment that he returned to the company when he left. He presented evidence that the company almost always reimbursed an employee for such equipment when the employee returned it when leaving the company-

There is no other proof of damages on the record. Thus we see no basis for the jury’s award of $50,000. Rather, Plaintiff is entitled to his lost wages for the eleven months between his discharge and trial, an equal amount as liquidated damages, health benefits for eleven months, and reimbursement for equipment returned to Sun when he left. Therefore, the damage award should be reduced to $32,655.

Accordingly, we remand this case to the district court for entry of judgment consistent with this opinion.

1 . 29 U.S.C. § 623(a)(1) makes it unlawful to “fail or refuse to hire or discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; ...”

2 . Sun facilitates the nationwide selling of its equipment by using regional offices. It further divides the regions into zones. Each zone has a sales quota which each of its sales representatives is expected to attain. A representative’s performance appraisal and commission is based upon a net sales figure. This figure is obtained by subtracting the amount of repossessions and other returned equipment from the amount of gross sales for the applicable period.

3 . The McDonnell Douglas guidelines require that the plaintiff show the following in order to establish a prima facie case: (1) that he is a member of the protected class, (2) that he applied for a job and was rejected, (3) that he was qualified for the job, and (4) that after he was rejected, the employer continued to seek applicants for the particular job.'

4 . As modified to fit age discrimination cases, the McDonnell Douglas test for making out a prima facie case of discrimination requires that a plaintiff demonstrate that (1) he was a member of the protected class; (2) he was discharged; (3) he was qualified for the position; and (4) he was replaced by a younger person.

Ackerman v. Diamond Shamrock, 670 F.2d 66, 69 (6th Cir.1982) (citing Marshall v. Goodyear Tire and Rubber Co., 554 F.2d 730, 735 (5th Cir.1977)).

5 . The court stated the issue for the jury in the following manner:

Plaintiff bases his lawsuit on the Age Discrimination in Employment Act as amended, 29 U.S.C. Section 623, et seq. That Act provides in pertinent part as follows: “It shall be unlawful for an employer to discharge any individual because of such individual’s age.” The prohibitions contained in the Act are limited to individuals who are at least 40 years of age but less than 70 years of age. Thus, the Act makes it unlawful for an employer to discharge an individual between the ages of 40 and 70 because of his age.

Not every such discharge is unlawful under the Act, however. The Act further provides: It shall not be unlawful for an employer to take any action otherwise prohibited where such action is based on reasonable factors other than age.

If the discharge of plaintiff was based on bona fide business or economic reasons in which age was not a factor, there could be no violation of the law, and the defendant’s discharge of plaintiff would be lawful. And plaintiff would not be entitled to recover. The plaintiff in this case has the burden of showing by a preponderance of the evidence that the defendant discharged him because of his age. The defendant contends that it discharged him because of bona fide business or economic reasons unconnected with age.

6 . Several courts have held that an ADEA plaintiff need not prove that he or she was replaced by a younger employee in order to establish a prima facie case. See, e.g., Loeb v. Textron, 600 F.2d 1003, 1013 (1st Cir.1979); Douglas v. Anderson, 656 F.2d 528 (9th Cir.1981). They reason that such an employer might hire an older worker in order to thwart an age discrim¡nation suit if this were a requirement. Since the plaintiff in this case was replaced, by an employee outside the protected class, we need not consider this issue.

7 . The court’s instructions pertinent to this point stated:

In this connection, the Court charges you that plaintiff need not show that age was the sole or exclusive factor in the defendant’s discharge of plaintiff. There could be more than one factor in the decision to discharge plaintiff. The plaintiff is nevertheless entitled to recover if one such factor was his age, and if that factor made a difference in determining whether the plaintiff was discharged. The ultimate question is not whether the defendant’s decision to discharge plaintiff reflected an accurate or wise judgment of the plaintiffs abilities. The question is whether the decision was unlawfully motivated by the factor of his age.

If you find that the defendant’s discharge of plaintiff was for the reasons asserted by it, then, you must find in favor of the defendant. On the other hand, if you find by a preponderance of the evidence that plaintiffs age made a difference in defendant’s decision to discharge plaintiff, then the defendant would be liable to the plaintiff, and you must proceed to determine the damages due him. Now, in this case, as previously indicated, the burden of proof is upon the plaintiff. Before plaintiff can recover, plaintiff must show that age entered into the determination. If age entered into the termination of his employment, then there would be liability. On the other hand, if age did not enter into the decision of the defendant to terminate his employment, there could be no liability.

8 . Our discussion of the adequacy of the jury is equally applicable to other comments made by the court to the jury during the course of the trial.

9 . MR. LAWS [Defendant’s Counsel]: I believe his Honor’s charge on the age as being the — a reason if it was one of the considerations, and I believe the law would state that that should be the reason for the discharge, and that would be my exception to the charge. I would ask that the Court charge them but for the age consideration he would not have been discharged.

THE COURT: Did you understand that?

MR. HAYNES [Plaintiff’s Counsel]: I don’t understand that being the law.

THE COURT: I don’t understand what he means by it.

MR. LAWS: You are saying — your charge, as I understood it to the jury, if they should find that— THE COURT: That age—

MR. LAWS: —age was a consideration—

THE COURT: That’s right, and that is the law.

MR. LAWS: And I am objecting to the charge.

THE COURT: All right, sir. The objection is overruled.

10 . The entire instruction on the willfulness issue charged:

In that connection the Court charges you that an employer acts willfully if he knows or has reason to know that his acts are governed by the Act. That is this Act that has been referred to in this Charge, which is familiarly known in common language as the Age Discrimination Act.

Neither a good faith belief in the lawfulness of his actions, nor ignorance of their illegality shields the employer if he violates the Act. The test is, did the employer know the Act was in the picture?

11 . 29 U.S.C. § 626(b) states in relevant part: Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title: Provided, That liquidated damages shall be payable only in cases of willful violations of this chapter. In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section.

12 . We concur with the reasoning of the Seventh Circuit in Syvock:

The showing must clearly be greater than that necessary for the initial finding of ADEA liability. The showing must be sufficient to indicate that the defendant’s discrimination was not unconscious. In a disparate treatment case, a finding of willfulness will generally require some direct evidence of discriminatory intent toward the plaintiff or a showing that, at the time of the alleged discriminatory action, the employer was motivated to discriminate or engaged in a pattern of discriminating against older employees.

665 F.2d 149, 156 n. 10 (7th Cir.1981).

13 . The district court allowed the jury to return a general verdict. This, in and of itself, is not a ground for reversal. It would be a preferable practice, however, to submit the willfulness issue to the jury by special interrogatory. This would provide a clearer basis for examining the jury’s factual findings and facilitate review on appeal.

14 . The enforcement provision of the ADEA, 29 U.S.C. § 626(b) specifically adopts most of the remedies enumerated in Sections 16 and 17 of the Fair Labor Standards Act, (FLSA), 29 U.S.C. §§ 216 and 217. Section 16(b) of the FLSA provides in relevant part:

Any employer who violates ... shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.

Though liquidated damages are not automatic in age discrimination cases, the measure of liquidated damages is adopted from the FLSA provisions.

15 . It should be noted that Plaintiff never requested reinstatement to his former position. If he had requested and the district court had granted reinstatement, this court would be presented with a different question. Perhaps, under those circumstances, an equitable solution would be to provide that Sun post to the plaintiffs pension plan the amount that would have been contributed in the period between the unlawful discharge and reinstatement.