Brown v. Stites Concrete, Inc.

• Decision Date: 10 June 1993
• Docket Number: Nos. 91-2581,91-3057,s. 91-2581
• Citation: 994 F.2d 553
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 1666, 61 Empl. Prac. Dec. P 42,339 Fred BROWN, Appellee/Cross-Appellant, v. STITES CONCRETE, INC., Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 553

994 F.2d 553

61 Fair Empl.Prac.Cas. (BNA) 1666,

61 Empl. Prac. Dec. P 42,339

Fred BROWN, Appellee/Cross-Appellant, v. STITES CONCRETE, INC., Appellant/Cross-Appellee.

Nos. 91-2581, 91-3057.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 11, 1993.

Decided June 10, 1993.

Thomas M. Blumenthal, St. Louis, MO, for appellant, cross-appellee.

Mary Anne Sedey, St. Louis, MO, for appellee, cross-appellant.

Before RICHARD S. ARNOLD, Chief Judge, BRIGHT, Senior Circuit Judge, McMILLIAN, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges, En Banc.

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 court ¹ 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 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).

                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
                

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 Morlan, 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...