Formby v. Farmers and Merchants Bank

• Decision Date: 28 June 1990
• Docket Number: 88-7467 and 88-7617,Nos. 88-7466,s. 88-7466
• Citation: 904 F.2d 627
• Parties: 53 Fair Empl.Prac.Cas. 378, 54 Empl. Prac. Dec. P 40,043, 16 Fed.R.Serv.3d 1287 Sarah FORMBY, Plaintiff-Appellee, v. FARMERS AND MERCHANTS BANK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 627

904 F.2d 627

53 Fair Empl.Prac.Cas. 378,

54 Empl. Prac. Dec. P 40,043, 16 Fed.R.Serv.3d 1287

Sarah FORMBY, Plaintiff-Appellee, v. FARMERS AND MERCHANTS BANK, Defendant-Appellant.

Nos. 88-7466, 88-7467 and 88-7617.

United States Court of Appeals, Eleventh Circuit.

June 28, 1990.

J. Michael Cooper, Birmingham, Ala., Albert L. Shumaker, Burns, Shumaker & Burns, Centre, Ala., for defendant-appellant.

Donald R. Rhea, Clarence F. Rhea, Rhea, Boyd & Rhea, Gadsden, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Alabama.

Before JOHNSON and ANDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

PER CURIAM:

This is the second appeal to this court by defendant Farmers & Merchants Bank ("the Bank"), challenging its liability to Sarah Formby for engaging in age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621-34. In its first appeal, the Bank challenged a jury determination that the Bank had intentionally discriminated against Formby because of her age. A panel of this court affirmed without opinion the jury's verdict and award of $19,400.00 in back pay. Formby v. Farmers & Merchants Bank, 832 F.2d 1266 (11th Cir.1987) (table), cert. denied, 486 U.S. 1023, 108 S.Ct. 1997, 100 L.Ed.2d 229 (1988).

In this appeal, the Bank challenges the relief obtained by Formby. In particular, the Bank argues that the district court erred in ordering the Bank to reinstate Formby and in awarding Formby liquidated damages and attorneys' fees. The Bank also contends that even if the award of attorneys' fees were proper, the district court erred by awarding a double enhancement of attorneys' fees. ¹

For the reasons that follow, we affirm.

I.

The Bank argues that the district court erroneously awarded relief in addition to the $19,400 jury award for back pay. The Bank's contention is that there was a final judgment awarding only the $19,400, and that Formby did not file a timely motion to alter or amend the judgment under Fed.R.Civ.P. 59(e) or otherwise seek in a timely manner to add the additional relief to the final judgment. We reject the Bank's argument because there was no final judgment at the time suggested by the Bank, i.e., before the first appeal.

The district court explicitly stated on the record its intention to award liquidated damages at twice the amount of the jury verdict. Record Vol. 2 at 157. However, the only filing in the district court's records reflecting a judgment was the clerk's court minutes memorializing the jury verdict. The minutes indicated that the jury had found in favor of the plaintiff Sarah Formby and had awarded Formby damages of $19,400. The clerk's court minutes did not, however, reflect the trial judge's oral determination that the plaintiff was entitled to receive liquidated damages. Thus, at the time of the first appeal, there was no court order or other document in the court's records which memorialized the district court's oral pronouncement that the plaintiff was entitled to receive liquidated damages at twice the amount of the jury verdict. The law is clear that a clerk of the court's minute entry of a jury verdict does not constitute a final judgment, when, as here, that verdict does not encompass the full relief to which a party may be entitled. United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973) (per curiam). See also Bankers Trust Co. v. Mallis, 435 U.S. 381, 384-85, 98 S.Ct. 1117, 1119-20, 55 L.Ed.2d 357 (1978) (per curiam). Until the court entered a judgment embodying that intention, it cannot be said that the court had rendered a final decision as to the plaintiff's entitlement to liquidated damages. See Pure Oil Co. v. Boyne, 370 F.2d 121, 122-23 (5th Cir.1966). ² See also Jones v. Celotex Corp., 857 F.2d 273, 275 (5th Cir.1988); Wood v. Coast Frame Supply, 779 F.2d 1441, 1442-43 (9th Cir.), as amended, 791 F.2d 802 (9th Cir.1986).

Moreover, Formby's requested remedy of reinstatement still remained outstanding and unresolved. ³ In both her complaint and pretrial order, Formby explicitly sought reinstatement in addition to the other relief mentioned above. The clerk's court minutes in the record at the time of the first appeal made no mention as to whether this relief had been granted or denied. Because the district court had not yet determined Formby's entitlement to reinstatement, it cannot be said that there was a final judgment at the time of the Bank's first appeal. A final judgment "generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). See also Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976) (district court determination of liability in Title VII case not a final, appealable judgment where several of the plaintiff's prayers for relief remain open for determination); Richerson v. Jones, 551 F.2d 918, 921 (3rd Cir.1977) (order in employment discrimination case in which district court stated "judgment is rendered for plaintiff and against defendant" but did not dispose of claims for retroactive promotion, back pay, and punitive damages was not final, appealable order).

For the foregoing reasons we reject the Bank's argument that the district court erroneously awarded relief in addition to the $19,400 jury verdict for back pay. ⁴

II.

The Bank's challenges to the district court's award of liquidated damages to Formby are equally without merit. Under section 7(b) of the ADEA, 29 U.S.C. Sec. 626(b), an employee is entitled to receive liquidated damages when an employer "willfully" violates the ADEA. Upon proof of an employer's willful violation of the Act, the employee is entitled to receive double damages.

Congress intended the award of liquidated damages to serve as a means of punishing offending employers. Trans World Airlines v. Thurston, 469 U.S. 111, 125, 105 S.Ct. 613, 624, 83 L.Ed.2d 523 (1985). Consequently, an employee's entitlement to liquidated damages is not determined by examining the injury suffered by the employee; rather, it is determined by looking to conduct of the employer who is guilty of discrimination. By establishing a standard requiring proof of "willful" misconduct, Congress created a two-tiered liability scheme: one designed solely to ensure the proper compensation for individuals whose rights under the ADEA are violated and a second devised to punish employers whose conduct constitutes a willful violation of the ADEA's proscriptions. Thurston, 469 U.S. at 128 n. 22, 105 S.Ct. at 625 n. 22.

To ensure that a separation exists between these two forms of liability, we have recognized that a showing that an employer engaged in intentional age discrimination does not automatically entitle a plaintiff to receive liquidated damages. Stanfield v. Answering Service, Inc., 867 F.2d 1290, 1296 (11th Cir.1989). The precise contours of the separation between a violation of the ADEA and a willful violation of the ADEA are, however, somewhat difficult to delineate. A mere showing that an employer knew of the potential applicability of the ADEA, Thurston, 469 U.S. at 129-30, 105 S.Ct. at 625, or that an employer acted negligently in determining whether its conduct comports with the requirements of the ADEA, see McLaughlin v. Richland Shoe Co., 486 U.S. 128, 108 S.Ct. 1677, 1681, 1682 & n. 13, 100 L.Ed.2d 115 (1988), is not sufficient to warrant the imposition of liquidated damages. At the same time, sufficient evidence to satisfy this standard does not require proof that the employer acted with an evil motive, bad purpose, or intent to violate the ADEA. Thurston, 469 U.S. at 126 n. 19, 105 S.Ct. at 624 n. 19; Lindsey v. American Cast Iron Pipe Co., 810 F.2d 1094, 1099 (11th Cir.1987).

In Thurston, the Supreme Court suggested that to prove entitlement to liquidated damages a plaintiff must establish that the employer knew its conduct was prohibited or showed reckless disregard for whether its conduct was prohibited by the Act. In several cases decided subsequent to Thurston, this court has adopted this standard. See, e.g., Verbraeken v. Westinghouse Electric Corp., 881 F.2d 1041, 1048 (11th Cir.1989), cert. dismissed, --- U.S. ----, 110 S.Ct. 884, 107 L.Ed.2d 1012 (1990); Stanfield, 867 F.2d at 1296; Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1561 (11th Cir.1988); Spanier v. Morrison's Management Services, 822 F.2d 975, 978 (11th Cir.1987); Lindsey, 810 F.2d at 1099-1101.

Looking to the district court's oral and written findings of fact in support of its conclusion that the Bank's actions constituted a willful violation of the ADEA, we conclude that the district court correctly applied this standard to the facts presented in the case. The jury found that the Bank, through its president, Eugene Rutledge, discriminated against Formby because of her age by discharging her and later failing to recall her. In so concluding, the jury rejected as pretextual the Bank's explanations that its decisions to discharge and not recall or transfer the plaintiff were premised upon legitimate business reasons or subjective business judgments. ⁵ The district court also found that Rutledge, a practicing attorney, was aware that the ADEA prohibited discrimination on the basis of age at the time that he discharged Formby because of her age. ⁶ As we have previously noted in Lindsey v. American Cast Iron Pipe Co., the combination of these two facts "satisfy the strictest prong of the Thurston willfulness standard: the employer knew that its conduct violated the ADEA." 810 F.2d at 1099 (emphasis in original). Applying a clearly erroneous standard of review to the district court's determination of willfulness, we uphold the district court's...