Wehr v. Burroughs Corp.

• Decision Date: 16 April 1980
• Docket Number: 79-2403 and 79-2404,No. 79-1265,Nos. 79-1265,No. 79-2403,No. 79-2404,79-1265,79-2403,79-2404,s. 79-1265
• Citation: 22 FEP Cases 994,619 F.2d 276
• Parties: 22 Fair Empl.Prac.Cas. 994, 55 A.L.R.Fed. 590, 22 Empl. Prac. Dec. P 30,838 Karl C. WEHR v. The BURROUGHS CORPORATION, Appellant inKarl C. WEHR, Appellant in, v. The BURROUGHS CORPORATION. Karl C. WEHR v. The BURROUGHS CORPORATION, Appellant in
• Court: U.S. Court of Appeals — Third Circuit

Page 276

619 F.2d 276

22 Fair Empl.Prac.Cas. 994, 55 A.L.R.Fed. 590,

22 Empl. Prac. Dec. P 30,838

Karl C. WEHR v. The BURROUGHS CORPORATION, Appellant in No. 79-1265.

Karl C. WEHR, Appellant in No. 79-2403, v. The BURROUGHS CORPORATION.

Karl C. WEHR v. The BURROUGHS CORPORATION, Appellant in No. 79-2404.

Nos. 79-1265, 79-2403 and 79-2404.

United States Court of Appeals Third Circuit.

Argued March 17, 1980.

Decided April 16, 1980.

Carter R. Buller (argued), Robert M. Goldich, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for The Burroughs Corporation, appellant in Nos. 79-1265 and 79-2404 and cross-appellee in No. 79-2403.

Alan M. Lerner (argued), Faye R. Cohen, Manya L. Kamerling, Cohen, Shapiro, Polisher, Shiekman & Cohen, Philadelphia, Pa., for Karl C. Wehr, appellee in Nos. 79-1265 and 79-2404 and as cross-appellant in No. 79-2403.

Carol Cresswell Moschandreas (argued), Lutz Alexander Prager, Paul E. Mirengoff, Equal Employment Opportunity Commission, Leroy D. Clark, Gen. Counsel, Joseph T. Eddins, Jr., Associate Gen. Counsel, Washington, D. C., for Equal Employment Opportunity Commission, amicus curiae in Nos. 79-2403, and 79-2404.

Michael Churchill, Public Interest Law Center of Philadelphia, Philadelphia, Pa., for amicus curiae in Nos. 79-2403 and 79-2404.

Before ALDISERT and GIBBONS, Circuit Judges, and GERRY, District judge. ^*

OPINION OF THE COURT

ALDISERT, Circuit Judge.

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. ¹ 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.

I.

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. ² 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. ³

II.

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. ⁴ 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), ⁵ we determine that § 11 of the Portal-to-Portal Act is not incorporated into the ADEA.

III.

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')." ⁶ 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. ⁷

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. ⁸ We are encouraged that the Senate Judiciary Committee endorses the same concept. The Senate Committee Report accompanying S.1722, ⁹ 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. ¹⁰

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," ¹¹ 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...