Burlew v. Eaton Corp.

• Decision Date: 03 March 1989
• Docket Number: No. 87-3090,87-3090
• Citation: 869 F.2d 1063
• Parties: 49 Fair Empl.Prac.Cas. 395, 49 Empl. Prac. Dec. P 38,874 Russell BURLEW, Plaintiff-Appellant, v. EATON CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1063

869 F.2d 1063

49 Fair Empl.Prac.Cas. 395,

49 Empl. Prac. Dec. P 38,874

Russell BURLEW, Plaintiff-Appellant, v. EATON CORPORATION, Defendant-Appellee.

No. 87-3090.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 30, 1988.

Decided March 3, 1989.

E. Campion Kersten, Kersten & McKinnon, Milwaukee, Wis., for plaintiff-appellant.

David B. Kern, Quarles & Brady, Milwaukee, Wis., for defendant-appellee.

Before CUMMINGS, FLAUM and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

Plaintiff-Appellant Russell Burlew brought this action against his former employer, Eaton Corporation ("Eaton"), alleging both non-willful and willful age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621, et seq. The allegations arose out of Eaton's termination of Burlew's employment pursuant to a reduction in force (RIF) which had eliminated Burlew's position. Burlew was 59 years old at the time he was fired. The parties stipulated to the dismissal of the non-willful count on statute of limitations grounds, and the remaining willful discrimination claim was tried to a jury. ¹

The jury found that Eaton had violated the ADEA but that the violation was not willful. The trial judge denied Burlew's motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, and entered a judgment dismissing the action. On appeal, Burlew asserts that, under the particular instructions given by the trial court regarding intent to discriminate, the jury had to find willful age discrimination in order to find any age discrimination at all, and thus the trial judge erred in denying the motion for JNOV, or alternatively, the trial judge erred in not granting a new trial on the basis of inconsistent verdicts. Because we find that the jury's answers to the special verdict questions cannot be reconciled, we reverse.

I.

This case raises thorny questions about the role of "discriminatory intent" in an age discrimination suit brought under the ADEA. It will not be necessary to answer all of those questions in order to resolve the issue on appeal. However, we will outline the troublesome area in order to place Burlew's argument in context.

The ADEA sets up a two-tier liability scheme. Section 623 constitutes the first tier and provides, in part, as follows:

It shall be unlawful for an employer--

(1) to fail or refuse to hire or to 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; ...

29 U.S.C. Sec. 623. Violation of this section, without additional evidence of willfulness, would constitute non-willful age discrimination and would subject the employer to payment of damages.

Section 626(b) provides for the second tier of liability. That section subjects the employer to double damages for willful violations. ² The Supreme Court has held that the standard for determining if a violation was willful is whether "the employer knew or showed reckless disregard as to whether its conduct was prohibited by the ADEA." Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126, 105 S.Ct. 613, 624, 83 L.Ed.2d 523 (1985); see also McLaughlin v. Richland Shoe Co., --- U.S. ----, 108 S.Ct. 1677, 1681-82, 100 L.Ed.2d 115 (1988).

Operation of the two-tier liability scheme is exemplified by Thurston. In that case, Trans World Airlines, Inc. (TWA) had adopted a policy which allowed pilots who were disqualified from serving in that capacity for reasons other than age to automatically transfer to the position of flight engineer but did not allow pilots who were disqualified because of age (i.e., were mandatorily retired at age 60 from serving as pilots) to automatically transfer. Instead, 60-year-old pilots were required to obtain flight engineer status through bidding procedures. The Supreme Court held that the TWA policy discriminated against the protected pilots ³ on the basis of age and therefore violated the ADEA. The Court further held, however, that TWA, whose officials had in good faith sought legal advice and consulted with representatives of the pilots' union, did not act willfully--i.e., with knowledge that or in reckless disregard as to whether the policy violated the ADEA.

In setting the standard for willfulness as knowledge or reckless disregard of a violation--and in rejecting a less stringent standard of mere awareness that the ADEA was "in the picture"--the Thurston Court emphasized that virtually all employers are aware of the ADEA and its potential applicability. Thus, the Court stated, a lesser standard "would result in an award of double damages in almost every case." 469 U.S. at 128, 106 S.Ct. at 625. Such a result, the Court found, would be contrary to the intent of Congress. Id.

Various courts have noted that while the knowledge or reckless disregard standard is relatively easy to apply in cases such as Thurston, where the challenged employer action consists of the adoption of an employment policy, the willfulness standard is difficult to apply in cases that involve a discrete employment decision directed at an individual. See, e.g., Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1548-52 (10th Cir.1988); Lindsey v. American Cast Iron Pipe Co., 810 F.2d 1094, 1099 (11th Cir.1987); Dreyer v. Arco Chemical Co., 801 F.2d 651, 656 (3d Cir.1986), cert. denied, 480 U.S. 906, 107 S.Ct. 1348, 94 L.Ed.2d 519 (1987). The reasons for the difficulty are as follows. In a Thurston-type case, the factfinder can determine whether the plan or policy at issue is discriminatory without any inquiry into the defendant's state of mind. After the initial finding of discrimination, the factfinder can move on to the question of willfulness. However, to establish tier one liability in the latter type of case--generally referred to as a "disparate treatment" case ⁴--an inquiry into the defendant's motive is required:

[The plaintiff] must prove not that age was the sole factor motivating the employer to discharge him [or her] but that age was a "determining factor," in the sense that he [or she] would not have been discharged "but for" [the] employer's motive to discriminate against him [or her] because of his [or her] age.

La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th

Cir.1984) (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir.1979)); see also Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1222 (7th Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981); Golomb v. Prudential Ins. Co. of America, 688 F.2d 547, 551-52 and n. 2 (7th Cir.1982).

This standard--that age was a determining factor--does not in itself require a finding as to defendant's state of mind, for in law there is a distinction between motive and intent. "Motive is what prompts a person to act, or fail to act. Intent refers only to the state of mind with which the act is done or omitted." Black's Law Dictionary at 727 (5th ed. 1979). Indeed, in 1981 we stated:

Congress, in our opinion, intended that liability under the ADEA could be established without any showing as to the defendant's state of mind....

....

... Unlike race discrimination, age discrimination may simply arise from an unconscious application of stereotyped notions of ability rather than from a deliberate desire to remove older employees from the workforce....

Syvock v. Milwaukee Boiler Manufacturing Co., 665 F.2d 149, 154-55 (7th Cir.1981), overruled in part by Coston v. Plitt Theatres, Inc., 860 F.2d 834 (7th Cir.1988) (emphasis in original). ⁵ In subsequent cases we have adhered to the proposition that age discrimination "may be subtle and even unconscious." See LaMontagne, 750 F.2d at 1410; see also Oxman v. WLS-TV, 846 F.2d 448, 453 (7th Cir.1988); Matthews v. Allis-Chalmers, 769 F.2d 1215, 1220 (7th Cir.1985) (Flaum, J., concurring), majority overruled by Oxman, 846 F.2d at 455-56.

Moreover, an ADEA plaintiff can establish tier one liability without presenting any evidence as to the employer's state of mind, by using the burden-shifting method of proof adopted from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a Title VII case. As adopted to ADEA reduction-in-force cases, the indirect method requires the plaintiff to first prove a prima facie case of discrimination by showing that: (1) plaintiff was in the protected class; (2) plaintiff's job performance met the employer's legitimate expectations; (3) plaintiff was discharged; and (4) others who were not in the protected class were treated more favorably than plaintiff. Oxman, 846 F.2d at 455. Once the plaintiff establishes this prima facie case, the burden shifts to the employer to articulate a non-discriminatory reason for the discharge. If the employer meets this burden of production, the plaintiff must then prove that the proffered reasons are a pretext. This can be done by showing that the employer's decision to discharge plaintiff was, more likely than not, motivated by discriminatory reasons or that the employer's proffered explanations are not credible. Id. at 456.

However, despite our adherence to the position that age discrimination can be unconsciously motivated, and the fact that a plaintiff can establish liability without presenting evidence of the defendant's state of mind, we have at the same time, relying on Title VII cases, come to equate a finding that age was a "determining factor" in the employer's decision with a finding that the employer intentionally discriminated. Although Title VII does not set up a two-tier liability scheme, ⁶ we and the other circuits have relied upon Title VII cases, primarily Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1980), to hold that in an ADEA disparate treatment case, the plaintiff's ultimate burden is to prove that the defendant...