APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 76-0581)
Before Aldisert and Gibbons, Circuit Judges, and Gerry, District judge.*fn*
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 ...