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Wehr v. Burroughs Corp.


decided: April 16, 1980.



Before Aldisert and Gibbons, Circuit Judges, and Gerry, District judge.*fn*

Author: Aldisert


These consolidated appeals and cross-appeals from a judgment entered following a jury verdict in this age discrimination case present many issues for review, but the major question for decision is whether the court gave a proper jury charge on what constitutes a "willful violation" of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634.*fn1 We find no reversible error in the court's instructions, and except for certain modifications of its determinations on attorneys' fees and costs, we affirm the judgment of the district court.


Karl C. Wehr had been employed as an engineer by the Burroughs Corporation since May 1967. He was discharged on August 1, 1975, ostensibly for unsatisfactory work performance, at the age of forty-four. Believing that he was a victim of age discrimination because of the company's expressed desire to replace some older employees with "young tigers," Wehr sought relief in district court in the form of lost wages, including both back and front pay, statutory liquidated damages, compensatory damages for pain and suffering, and attorneys' fees and costs.*fn2 The jury returned a verdict of $126,760 in Wehr's favor for back pay and liquidated damages, and the court awarded $83,382.13 in counsel fees and costs. In the appeal at No. 79-1265, Burroughs contends that the district court erred in its interpretation and application of the liquidated damages provision of the Act.*fn3


The rights created by the Age Discrimination in Employment Act of 1967 (ADEA) are "enforced in accordance with the powers, remedies, and procedures" of specified sections of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 626(b). Following the model of the FLSA, Congress has established two primary enforcement mechanisms within the ADEA. The Secretary of Labor may bring suit on behalf of an aggrieved individual for injunctive and monetary relief. In addition, private actions are authorized by the incorporated FLSA provisions together with § 7(c) of the ADEA, 29 U.S.C. § 626(c), for "such legal or equitable relief as will effectuate the purposes of" the ADEA. In a private action for damages under the ADEA, a plaintiff may initially recover lost wages. In addition, he may recover liquidated damages in an amount equal to the unpaid wages, see FLSA § 16(b), 29 U.S.C. § 216(b), but only when the violation is "willful." ADEA § 7(b), 29 U.S.C. § 626(b). In this respect the district court charged:

Members of the jury, the Act provides that the plaintiff is entitled to liquidated damages if the defendant's conduct in violating the Act was willful. . . . (Y)ou will have to determine whether the defendant's violation of the Act was willful. That is, did the defendant willfully use age as a determining factor in its decision to terminate plaintiff?

What do we mean by "willfully"?

An act is done willfully if it is done intentionally, deliberately and knowingly. Thus, an employer acts willfully in violation of the Act if the employer deliberately, intentionally and knowingly discharged the employee because of his age. In other words, if the employer intended to act consciously and intentionally in the discharge of the employee because of age, the employer acted willfully. The act of the employer must be intentional and cannot be an accident or it would not be willful.

Appendix to Briefs at 437a-38a.

Burroughs finds two faults with this charge. First, it contends that the ADEA incorporates the good faith test of § 11 of the Portal-to-Portal Act of 1947, 29 U.S.C. § 260.*fn4 From this Burroughs would infer that, procedurally, the final decision to award liquidated damages properly rested with the court rather than the jury, and substantively, that the court should have considered whether Burroughs believed in good faith that it had a legitimate reason to discharge Wehr, notwithstanding the jury finding of age discrimination. We reject this contention, and for the reasons stated in Loeb v. Textron, Inc., 600 F.2d 1003, 1020 (1st Cir. 1979),*fn5 we determine that § 11 of the Portal-to-Portal Act is not incorporated into the ADEA.


Burroughs second attack on the court's jury charge centers on the definition of the term "willful" in ADEA § 7(b). Burroughs contends that the proviso in ADEA § 7(b) that allows liquidated damages only upon a showing of a "willful violation of (the Act)" should be interpreted to mean that an employer is subject to liability for liquidated damages only if he intentionally violates the Act. The district court instructed the jury that "an employer acts willfully in violation of the Act if the employer deliberately, intentionally and knowingly discharged the employee because of his age." Appendix to Briefs at 437a-38a.

Although this is a civil case, the degree of culpability known as "willful" comes to us from criminal law. The National Commission on Reform of Federal Criminal Laws has said that "(t)here may be no word in the Federal criminal lexicon which has caused as much confusion as the word "willfully' (or "willful')."*fn6 We agree. The Senate Judiciary Committee has explained that

the term "willful" has been construed by the courts in a variety of ways, often inconsistent and contradictory. The courts have defined a "willful" act as an act done voluntarily as distinguished from accidentally, an act done with specific intent to violate the law, an act done with bad purpose, an act done without justifiable excuse, an act done stubbornly, an act done without grounds for believing it is lawful, and an act done with careless disregard whether or not one has the right so to act.*fn7

The Judicial Conference of the United States has recommended the abolition of "willfully" as a degree of culpability in the proposed revision of the Federal Criminal Code.*fn8 We are encouraged that the Senate Judiciary Committee endorses the same concept. The Senate Committee Report accompanying S.1722,*fn9 summarizes the welcomed new approach:

The Federal Criminal Code, as reported, discards the confused and inconsistent ad hoc approach to culpability that now characterizes Federal criminal law. Instead it reduces the number of terms used to describe the requisite mental state to four: intentional, knowing, reckless, or negligent. All other statutory formulations within title 18, United States Code, are eliminated. The four degrees of culpability that are retained express the significant distinctions found by the courts and are sufficient for all the distinctions in defining offenses.*fn10

Until Congress excises "willfully" from our statutes, however, we must distill from the case law some semblance of a consensus in order to decide whether the district court here erred by instructing the jury that "(a)n act is done willfully if it is done intentionally, deliberately and knowingly."

Although there is an abundance of confusion in the cases about the actual meaning of "willful,"*fn11 it has been generally accepted that the term does not denote the same state of mind when used to describe civil violations of statutes as when used to describe criminal violations. Thus, in United States v. Murdock, 290 U.S. 389, 54 S. Ct. 223, 78 L. Ed. 381 (1933), the decision cited as the leading authority for the proposition that "willful" denotes evil motive, the Court held that a defendant in a criminal prosecution for willful violation of the tax laws was entitled to a jury charge with respect to his good faith and actual belief. In considering whether the word "willfully," as used in the statute under which the indictment was brought, required more than a showing of voluntary action, the Court stated: "The word often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal statute it generally means an act done with a bad purpose . . . ." 290 U.S. at 394, 54 S. Ct. at 225. This distinction between the civil and criminal uses of the word was further elaborated in United States v. Illinois Central R. R., 303 U.S. 239, 58 S. Ct. 533, 82 L. Ed. 773 (1938), a case involving a civil violation by the railroad for improperly transporting livestock. The Court addressed the meaning "willfully" should have for civil violations by reaffirming its statement in Murdock :

In statutes denouncing offenses involving turpitude, "willfully" is generally used to mean with evil purpose, criminal intent or the like. But in those denouncing acts not in themselves wrong, the word is often used without any such implication. Our opinion in United States v. Murdock, 290 U.S. 389, 394, 54 S. Ct. 223, 78 L. Ed. 381, shows that it often denotes that which is "intentional, or knowing, or voluntary, as distinguished from accidental," and that it is employed to characterize "conduct marked by careless disregard whether or not one has the right so to act."

Id. at 242-43, 58 S. Ct. at 535.

Although it is apparent that this unfortunate word is capable of a multitude of meanings and that neither the Supreme Court nor Congress has been willing to fashion a precise meaning for it, we are able to draw some conclusions to assist us in this case. First, only three degrees of culpability are associated with the term "willful": intentional, knowing, or reckless. Merely negligent conduct is never deemed "wilful." E. g., Anderson v. Commissioner, 81 F.2d 457, 460 (10th Cir. 1936). Second, when the Supreme Court speaks of "bad faith," "bad purpose," "evil intent," or "evil nature" in connection with violations of criminal statutes, it is in fact describing the highest degree of culpability. The Court is saying that proof of any of these mental states is equivalent to proof of conduct that is "intentional," as distinguished from "knowing" or "reckless." Third, unless legislative history or the statutory context compels proof of an intentional violation of the statute, or proof of the judicial equivalents "bad faith," "bad purpose," "evil intent," or "evil nature," any conduct that is intentional, knowing, or reckless should be considered "willful." This last approach comports with the National Commission's suggestion to Congress in 1970 that "(a) person engages in conduct . . . "willfully' if he engages in the conduct intentionally, knowingly, or recklessly,"*fn12 and finds precedential authority in United States v. Murdock, 290 U.S. 389, 394-95, 54 S. Ct. 223, 225-226, 78 L. Ed. 381 (1933), and United States v. Illinois Central R. R., 303 U.S. 239, 242-43, 58 S. Ct. 533, 534-535, 82 L. Ed. 773 (1938).

The starting point in any case is to ascertain the degree of culpability intended by Congress when using "willful." In the absence of enlightenment from legislative history, the term must be construed within its statutory context, civil or criminal. As the Court has directed, we "continue to recognize that context is important in the quest for the word's meaning." United States v. Bishop, 412 U.S. 346, 356, 93 S. Ct. 2008, 2015, 36 L. Ed. 2d 941 (1973).*fn13 Unfortunately, a review of the legislative history of the ADEA and its assimilated acts uncovers nothing helpful on this question. We note, however, that § 6(a) of the Portal-to-Portal Act,*fn14 which extends by one year the statute of limitations for willful civil violations of the FLSA, is specifically incorporated into the ADEA. See 29 U.S.C. § 626(e)(1). In Hodgson v. Hyatt, 318 F. Supp. 390 (N.D.Fla.1970), a case defining a willful violation of the FLSA, the court offered the following definition of "willful," which we find to be helpful:

Since the Portal-to-Portal Act limitations apply to civil actions, the term "willful" which was added by the 1966 amendment must be construed in the civil sense. It therefore applies to violations which are intentional, knowing or voluntary as distinguished from accidental and it is used to characterize conduct marked by careless disregard whether or not one has the right to act. United States v. Illinois Cent. R. Co., 303 U.S. 239, 243, 58 S. Ct. 533, 535, 82 L. Ed. 773.

Id. at 392-93.*fn15 We believe this definition of "willful" as it is used in § 6(a) of the Portal-to-Portal Act, incorporated into the ADEA by 29 U.S.C. § 626(e), also applies to ADEA § 7(b).

Accordingly, we conclude that Congress did not intend to restrict the meaning of "willful," as Burroughs suggests, to intentional violations of the ADEA. 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. Using these standards, we reject Burrough's contention that the district court erred in charging the jury that "(a)n act is done willfully if it is done intentionally, deliberately and knowingly." By charging the jury as it did, the district court actually placed a higher burden on the plaintiff in this case than would be required under our formulation.*fn16 It required the jury to find that Burroughs acted intentionally, and it omitted the culpability degree of "reckless" which, in a civil context, describes a much lower threshold of culpability than does "intentional." Compare Restatement (Second) of Torts § 8A (1965) with id. § 500.

In sum, we find no reversible error in the trial court's jury charge on willful violation of the ADEA.



Wehr makes several arguments in his appeal at No. 79-2403. Although he was awarded backpay from the date of discharge to the date of trial, Wehr argues that he is also entitled to future damages, or front pay, to some date in the future possibly to the age of retirement as a substitute for the equitable remedy of reinstatement.

We will not decide whether future damages may be awarded in ADEA cases, however, because we are persuaded that Wehr has removed this issue from consideration. Any basis for calculating front pay would include the amount Wehr would have received had he continued to be employed by Burroughs beyond the trial date. Of necessity, Wehr's argument that he is entitled to future damages in lieu of reinstatement presupposes that he wanted to be reinstated.*fn17 At pre-trial, however, Wehr specifically disclaimed any desire for reinstatement.*fn18 We therefore conclude that the question whether future damages may be recovered in ADEA cases is not properly before us at this time.*fn19 Wehr's further contention, that the court erred by refusing to permit compensatory damages for pain and suffering including emotional distress, is foreclosed by our decision in Rogers v. Exxon Research and Engineering Co., 550 F.2d 834, 839-42 (3d Cir. 1977), cert. denied, 434 U.S. 1022, 98 S. Ct. 749, 54 L. Ed. 2d 770 (1978).


Also in the appeal at No. 79-2403, Wehr's counsel complain that the court's award of attorneys' fees and costs was inadequate. See Wehr v. Burroughs Corp., 477 F. Supp. 1012 (E.D.Pa.1979).*fn20 Although ultimately awarded a total of $80,651.79, Wehr's counsel sought $161,879 in fees for the litigation on the merits, and $11,816.25 for time expended in preparing the fee petition. In addition, counsel requested reimbursement of $11,053.79 in costs. After Burroughs objected to the reasonableness of the proposed figures, the district court examined the documentation under the standards enunciated by this court in Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) (Lindy I ), Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) (in banc) (Lindy II ), and their progeny. The court disallowed certain discrete amounts from the proposed lodestar and adjusted that figure downward. It also declined to augment the lodestar by a multiplier. Counsel complain that by doing so, the district court misused its discretion.

On review, except for two modifications of the award mentioned below, we will affirm the district court's determination concerning fees and costs, and we reject counsel's various contentions regarding the court's exercise of discretion over whether to multiply the award. Indeed, it appears to us that this should not have been a difficult case for counsel, yet it was overprepared, over-discovered, and overtried by counsel for both sides. Significantly, in its instructions to the jury, the trial court recognized the absence of complexity in this case and summarized the controlling issue in one sentence:

Although there has been considerable testimony in this case, your task, members of the jury, is not complicated. You must simply determine whether plaintiff has proven his claim by a preponderance of the evidence that plaintiff's age was a determining factor in defendant's decision to discharge him and if you resolve that issue in favor of the plaintiff, whether, in discharging plaintiff, plaintiff has proven by a preponderance of the evidence that defendant acted willfully.

Appendix to Briefs at 425a.

We will modify the award of attorneys' fees and costs in two minor respects. First, we note an arithmetical error in the court's computation regarding the award for the fee petition. The district court awarded $4,167 as attorneys' fees for litigating the fee petition. When computing this award, the district court incorrectly stated that counsel's request for $7,877.50 in compensation was for 164.7 hours when, in fact 117.6 hours was the actual figure requested. The district court believed that 164.7 hours greatly exceeded the time reasonably necessary to litigate a fee petition. 477 F. Supp. at 1020-21. It therefore subtracted 50 hours and made a corresponding deduction in fees. This computation resulted in an inaccurately reduced amount, however, because the figure used by the court as the minuend of its equation was the amount ($7,877.50) representing 117.6 hours and not the 164.7 hours that the court believed were billed.

Thus, because the court evidently would have allowed 114.7 hours (164.7 minus 50) to litigate the fee petition, and because counsel's billable rates for the fee petition were not determined to be too high, we have decided for the sake of judicial economy not to remand for a redetermination of this calculation, but instead to allow recovery for the entire 117.6 hours requested. Therefore, the district court's award of $4,167 will be increased to $7,877.50, an amount that accurately represents recovery for 117.6 hours.

Second, we will modify the district court's award of costs because we disagree with the court's refusal to allow recovery for computer-aided legal research as a reasonable cost of litigation. We will allow recovery of these costs. Use of computer-aided legal research such as LEXIS, or WESTLAW, or similar systems, is certainly reasonable, if not essential, in contemporary legal practice. Indeed, in at least one other case decided in this circuit, this type of cost has been awarded as a reimbursable expense. See Pitchford Scientific Instruments Corp. v. Pepi, Inc., 440 F. Supp. 1175, 1178 (W.D.Pa.1977), aff'd without opinion, 582 F.2d 1275 (3d Cir. 1978), cert. denied, 440 U.S. 981, 99 S. Ct. 1790, 60 L. Ed. 2d 242 (1979). We think this is the better rule, but we are careful to note that the amount of use must be reasonable in order to be allowed. We conclude that the $440 requested by counsel in this case was reasonable.


Accordingly, the judgment of the district court will be affirmed in all respects except that the award for the fee petition will be increased by $3,710.50 and an additional $440 will be added to the district court costs.

Each side to bear its own costs in the appeals before us.

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