1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-3-1995

Starceski v Westinghouse

Precedential or Non-Precedential:

Docket 94-3182

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Recommended Citation

"Starceski v Westinghouse" (1995). 1995 Decisions. Paper 120.

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 Nos. 94-3182 & 94-3208 

 ___________ 

 JOHN D. STARCESKI, 

 Appellant at No. 94-3208 

 v. 

 WESTINGHOUSE ELECTRIC CORPORATION, 

 Appellant at No. 94-3182 

 ___________ 

 Appeal from the United States District Court 

 for the Western District of Pennsylvania 

 (D.C. Civil Action No. 91-cv-00454) 

 ___________ 

 Argued: October 25, 1994 

 PRESENT: STAPLETON, HUTCHINSON and GARTH, Circuit Judges

 (Filed: May 3, 1995) 

 ____________ 

Joseph A. Vater, Jr. Esquire (Argued) 

Beth Ann Slagle, Esquire 

Meyer, Unkovic & Scott 

1300 Oliver Building 

Pittsburgh, PA 15222 

 Attorneys for John D. Starceski 

Louise Q. Symons, Esquire (Argued) 

Westinghouse Electric Corporation 

Law Department 

11 Stanwix Street 

6 Gateway Center 

Pittsburgh, PA 15222 

 Attorney for Westinghouse Electric Corporation 
 ____________ 
 ____________ 

 OPINION OF THE COURT 

 ____________ 

HUTCHINSON, Circuit Judge. 

 Appellant/cross-appellee Westinghouse Electric 

Corporation ("Westinghouse") appeals an order of the United 

States District Court for the Western District of Pennsylvania 

denying Westinghouse's post-trial motion for judgment 

notwithstanding the verdict,1 a new trial or a remittitur of 

damages on appellee/cross-appellant John D. Starceski's 

("Starceski") claim for violations of the Age Discrimination in 

Employment Act ("ADEA"), 29 U.S.C.A. § 621 et seq. (West 1985 & 

Supp. 1994). Starceski cross-appeals other parts of the same 

order that denied his motions for pre-judgment interest and 

reinstatement. 

 We will affirm the district court's denial of 

Westinghouse's post-trial motions. The record is not critically 

deficient of evidence from which a jury might have reasonably 

found that Westinghouse discriminated against Starceski because 

of age, nor does it appear that the district court abused its 

discretion in refusing Westinghouse's motions for a new trial or 

 

1. The motion for judgment n.o.v. is now one of three motions 

called a motion for "judgment as a matter of law." See Fed. R. 

Civ. P. 50(a). The other two correspond to the motion for a 

directed verdict at the close of plaintiff's case (in some 

systems once called a motion for an involuntary non-suit) and the 

motion for a directed verdict at the close of all evidence. See

Fed. R. Civ. P. 50(a)-(b), as amended in 1991. 
remittitur. We also reject Westinghouse's objections to the 

district court's Price Waterhouse "mixed-motives" instruction and 

its challenge to the jury's finding it willfully discriminated 

against Starceski. 

 On Starceski's cross-appeal from the denial of his 

motions for pre-judgment interest and reinstatement, we will 

vacate the district court's order denying Starceski's motion for 

pre-judgment interest and remand for the purpose of calculating 

the interest due and adding it to his judgment; but we will 

affirm the district court's refusal to grant him reinstatement. 

An award of pre-judgment interest together with an award of 

liquidated damages is not a double recovery. The two serve 

different purposes and work together to facilitate the ADEA's 

"make-whole" purpose. Finally, we hold that the district court 

did not err in concluding that reinstatement is inappropriate 

under the circumstances. 

 I. Statement of Facts and Procedural History

 In April 1989, Westinghouse terminated Starceski from 

his senior engineer position after thirty-six years of service. 

When terminated, Starceski was about one month short of his 

sixty-fourth birthday. 

 Starceski worked for Westinghouse from 1951 to 1953 and 

from 1956 to March 1981 as an engineer in its Bettis Atomic Power 

Laboratory.2 In March 1981, Westinghouse transferred him to its 

 

2. From about 1954 to 1956, Starceski worked for Sikorski 

Aircraft. 
Nuclear Services Division ("NSD"). There he was responsible, 

among other things, for the design, building and upgrading of 

tools to repair reactor components in nuclear power plants. In 

early 1985, Starceski began reporting to Richard Saul, a 

first-level supervisor, whom Westinghouse terminated in February 

1989. Starceski thereafter reported directly to Ali Jaafar, the 

second-level manager who had been Saul's supervisor. 

 In late 1988, Jaafar received a directive to reduce his 

staff by about eighteen people during the following year. Saul 

testified that, in an October 1988 staff meeting, Jaafar directed 

the first-level managers to transfer work from older to younger 

employees and to rank employees by their value to the group. 

According to Saul, Jaafar also instructed him to "doctor" 

Starceski's evaluation to reflect poor performance. Starceski 

stated that once these orders were given, he was not given any 

new assignments and work was also taken away from other older 

colleagues, sometimes immediately after being assigned to them. 

 In March 1989, Starceski and five other engineers were 

informed that their services were no longer needed. Five of 

these six were in ADEA's protected age group. Their average age 

was fifty-one. The average age of the remaining engineers in the 

department was thirty-nine. The youngest member of the six was 

ultimately retained by Westinghouse, along with others who ranked 

lower than Starceski in performance according to Saul's 

evaluation. 

 On March 13, 1991, Starceski filed this action against 

Westinghouse alleging that it terminated him on the basis of age 
in violation of the ADEA. Westinghouse stipulated that 

Starceski's job performance was not a factor in his layoff, but 

contended that it was part of a reduction in force and a lack of 

work for persons with Starceski's skills. The district court 

initially granted Westinghouse's motion for summary judgment, but 

Starceski appealed to this Court, and we reversed and remanded 

the case for trial. Starceski v. Westinghouse Electric Corp., 

No. 92-3552 (3d Cir. April 19, 1993). 

 On February 11, 1994, a jury returned a general verdict 

awarding Starceski compensatory damages of $267,268.55. 

Immediately after the jury's verdict was announced, counsel for 

Starceski requested reinstatement. The district court denied 

this request. It then charged the jury on willfulness. The jury 

found that Westinghouse had willfully discriminated against 

Starceski on the basis of age. This doubled Starceski's 

compensatory damages giving him an award totalling $651,910.68 

after counsel fees and costs were added. 

 Post-trial, Starceski asked for the addition of 

pre-judgment interest and reinstatement. Westinghouse, on the 

other hand, filed a motion it called a "motion for judgment 

n.o.v."3 or, in the alternative, a new trial or remittitur. The 

district court denied Westinghouse's motions and Starceski's 

request for pre-judgment interest and reinstatement. This timely 

appeal and cross-appeal followed. 

 

3. We will hereafter refer to this motion as a motion for 

judgment as a matter of law. See supra n.1. 
 II. Jurisdiction and Standard of Review

 The district court had subject matter jurisdiction over 

this case under the ADEA, 29 U.S.C.A. § 621 et seq. We have 

appellate jurisdiction under 28 U.S.C.A. § 1291 (West 1993). 

 In reviewing a district court's ruling on a post-trial 

motion for judgment as a matter of law, this Court applies the 

same standard as the district court. Lightning Lube, Inc. v. 

Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993) (citations 

omitted); Rotondo v. Keene Corp., 956 F.2d 436, 438 (3d Cir. 

1992). We view the record in the light most favorable to the 

verdict winner, and affirm the denial "'unless the record "is 

critically deficient of that minimum quantum of evidence from 

which a jury might reasonably afford relief."'" Rotondo, 956 

F.2d at 438 (quoting Dawson v. Chrysler Corp., 630 F.2d 950, 959 

(3d Cir. 1980), cert. denied, 450 U.S. 959 and Denneny v. Siegel, 

407 F.2d 433, 439 (3d Cir. 1969)); Keith v. Truck Stops Corp. of 

America, 909 F.2d 743, 744-45 (3d Cir. 1990) (citations omitted); 

Link v. Mercedes-Benz of North America, Inc., 788 F.2d 918, 921 

(3d Cir. 1986). In other words, the court must determine whether 

a reasonable jury could have found for the prevailing party. 

Newman v. Exxon Corp., 722 F. Supp. 1146, 1147 (D. Del. 1989), 

aff'd, 904 F.2d 695 (3d Cir. 1990). 

 In reviewing a district court's denial of a motion for 

a new trial or remittitur, we ask generally whether the district 

court abused its discretion, but if the court's denial of the 

motion is based on application of a legal precept, our review is 
plenary and, in addition, any findings of fact on which the 

court's exercise of discretion depends are reviewed for clear 

error. See Rotondo, 956 F.2d at 438 (citing Link, 788 F.2d at 

921). 

 III. Discussion

 Westinghouse raises several challenges to the district 

court's denial of its post-trial motions. It asserts that 

(1) the district court improperly gave the jury a so-called 

"mixed-motives" instruction, see Price Waterhouse v. Hopkins, 490 

U.S. 228 (1989); (2) the district court erred in upholding the 

jury's finding that Westinghouse had failed to sustain its Price 

Waterhouse burden of proving that Starceski would have been 

terminated regardless of his age; (3) there was insufficient 

evidence to uphold the jury's finding of a willful ADEA 

violation; and (4) a remittitur was necessary because there was 

insufficient evidence to support the jury's damages award. 

 On his cross-appeal, Starceski argues that the district 

court should have granted his motion for pre-judgment interest 

and reinstatement. We will first discuss Westinghouse's 

arguments and then Starceski's cross-appeal. 

 A. Pretext and "Mixed-Motives"

 Before submitting the case to the jury, the district 

court determined that Starceski provided sufficient direct 

evidence to support a claim of age-based disparate treatment 

requiring a Price Waterhouse, or so-called "mixed-motives" 
instruction, rather than a McDonnell Douglas/Burdine, 411 U.S. 

792 (1973) and 450 U.S. 248 (1981), pretext instruction.4 

Westinghouse contends that the decision of the district court to 

charge the jury on "mixed-motives" was not in accord with the law 

and, because of its timing, substantially prejudiced 

Westinghouse. We disagree. 

 

4. The difference between the burden-shifting framework of a 

McDonnell Douglas/Burdine pretext case and a Price Waterhouse

"mixed-motives" employment discrimination case has been the 

subject of much comment since St. Mary's Honor Center v. Hicks, 

113 S. Ct. 2742 (1993) (itself a pretext case) and the Civil 

Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, which 

codified Price Waterhouse's "mixed-motives" standard at 42 

U.S.C.A. § 2000e-2(m) (West 1994). See Mardell v. Harleysville 

Life Ins. Co., 31 F.3d 1221, 1224-25 (3d Cir. 1994). We review 

the problem briefly. An employment discrimination case may be 

advanced on either a pretext or "mixed-motives" theory. In a 

pretext case, once the employee has made a prima facie showing of 

discrimination, the burden of going forward shifts to the 

employer who must articulate a legitimate, nondiscriminatory 

reason for the adverse employment decision. McDonnell Douglas, 

411 U.S. at 802; Burdine, 450 U.S. at 253. If the employer does 

produce evidence showing a legitimate, nondiscriminatory reason 

for the discharge, the burden of production shifts back to the 

employee who must show that the employer's proffered explanation 

is incredible. Burdine, 450 U.S. at 254-55; Armbruster v. Unisys 

Corp., 32 F.3d 768, 778 (3d Cir. 1994); Fuentes v. Perskie, 32 

F.3d 759, 763 (3d Cir. 1994) (quoting McDonnell Douglas, 411 U.S. 

at 802). At all times the burden of proof or risk of 

non-persuasion, including the burden of proving "but for" 

causation or causation in fact, remains on the employee. 

Burdine, 450 U.S. at 253; Hicks, 113 S. Ct. at 2749. In a 

"mixed-motives" or Price Waterhouse case, the employee must 

produce direct evidence of discrimination, i.e., more direct 

evidence than is required for the McDonnell Douglas/Burdine prima 

facie case. Mardell, 31 F.3d at 1225 n.6; Armbruster, 32 F.3d at 

778. If the employee does produce direct evidence of 

discriminatory animus, the employer must then produce evidence 

sufficient to show that it would have made the same decision if 

illegal bias had played no role in the employment decision. 

Price Waterhouse, 490 U.S. at 244-45; Mardell, 31 F.3d at 1225 

n.6. In short, direct proof of discriminatory animus leaves the 

employer only an affirmative defense on the question of "but for" 

cause or cause in fact. 
 In Griffiths v. CIGNA Corp., 988 F.2d 457, 470 (3d 

Cir.) (quotation omitted), cert. denied, 114 S. Ct. 186 (1993), 

overruled on other grounds, Miller v. CIGNA Corp., No. 93-1773, 

1995 WL 21907 (3d Cir. 1995) (in banc), we stated that a charge 

on a "mixed-motives" theory of employment discrimination requires 

"conduct or statements by persons involved in the decisionmaking 

process that may be viewed as directly reflecting the alleged 

discriminatory attitude."5 See also Ezold v. Wolf, Block, 

Schorr and Solis-Cohen, 983 F.2d 509, 522 (3d Cir. 1992), cert. 

denied, 114 S. Ct. 88 (1993). More recently, in Armbruster v. 

Unisys Corp., 32 F.3d 768 (3d Cir. 1994), we made the following 

observations concerning the difference between a McDonnell 

Douglas/Burdine pretext case and a Price Waterhouse

"mixed-motives" case: 

 [I]n a [mixed-motives] case unaffected by the 

Civil Rights Act of 1991, the evidence the 

plaintiff produces is so revealing of 

discriminatory animus that it is not 

necessary to rely on any presumption from the 

prima facie case [as is necessary in a 

pretext action] to shift the burden of 

production. Both the burden of production 

and the risk of non-persuasion are shifted to 

the defendant who . . . must persuade the 

factfinder that[,] even if discrimination was 

a motivating factor in the adverse employment 

decision, it would have made the same 

employment decision regardless of its 

discriminatory animus. 

 

5. In Miller, supra, we rejected the statement in Griffiths that 

an employee advancing a McDonnell Douglas/Burdine pretext theory 

must show that invidious discrimination is the "sole cause" of 

his employer's adverse action. Miller, 1995 WL 21907, at *22 

n.8. However, we relied upon Griffiths's description of the type 

of evidence that is needed to show a Price Waterhouse

"mixed-motives" case. Miller, 1995 WL 21907, at *11 n.9. 
Id. at 778 (citing Price Waterhouse, 490 U.S. at 244-46 and 

Griffiths, 988 F.2d at 469-70 and n.12) (emphasis added). See

also Miller, 1995 WL 21907, at *7. In her concurrence in Price 

Waterhouse, Justice O'Connor offered guidance on the type of 

evidence needed to make out a "mixed-motives" case. She 

reasoned: 

 [S]tray remarks in the workplace, while 

perhaps probative of [a discriminatory 

animus], cannot justify requiring the 

employer to prove that its [employment] 

decisions were based on legitimate criteria. 

Nor can statements by nondecisionmakers, or 

statements by decisionmakers unrelated to the 

decisional process itself, suffice to satisfy 

the plaintiff's burden in this regard; . . . 

What is required is . . . direct evidence 

that decisionmakers placed substantial 

negative reliance on an illegitimate 

criterion in reaching their decision.

Price Waterhouse, 490 U.S. at 277 (O'Connor, J., concurring) 

(emphasis added) (internal citation omitted); Armbruster, 32 F.3d 

at 778. 

 In applying this standard to Starceski's case, we are 

drawn at once to the testimony of Saul, who was once Starceski's 

first-level manager at Westinghouse. Saul testified that Jaafar, 

a second-level manager responsible for the layoff decision 

affecting Starceski, gave orders to him and other supervisors 

under himin preparation for a work force reduction directed 

by higher managementto consider age in the assignment of 

work. Saul specifically testified that Jaafar, at a meeting 
concerning the impending reduction, told the first-level managers 

to transfer work from older to younger employees. Saul also 

testified that he discussed Jaafar's comments with other managers 

after the meeting and they took Jaafar's statements as an order 

to set up older employees for termination in the impending work 

force reduction. Saul said "it was actually a fact that the 

older engineers or the senior people [were] going to be let go in 

'89." Joint Appendix ("App.") at 446. Saul also testified that 

Jaafar instructed him to "doctor" Starceski's performance 

appraisals so that they would reflect poor performance. These 

directives from Jaafar to Saul and other first-level managers are 

precisely the kind of evidence that is needed to indicate "that 

[the] decisionmakers [involved here] placed substantial negative 

reliance on an illegitimate criterion [i.e., age] in reaching 

their [termination] decision." Price Waterhouse, 490 U.S. at 277 

(O'Connor, J., concurring); Hook v. Ernst & Young, 28 F.3d 366, 

375 (3d Cir. 1994) (citing Tyler v. Bethlehem Steel Corp., 958 

F.2d 1176, 1186-87 (2d Cir.), cert. denied, 113 S. Ct. 82 

(1992)).6

 In Hook, we quoted with approval the following passage 

from the Second Circuit's opinion in Ostrowski v. Atlantic Mutual 

Insurance Companies: 

 

6. To be sure, the jury was faced with conflicting testimony as 

to whether Jaafar gave these directives. We are obliged, 

however, to view the evidence and review the record in the light 

most favorable to Starceski, the verdict winner. We must 

therefore assume that Jaafar gave these orders. See Radabaugh v. 

Zip Feed Mills, Inc., 997 F.2d 444, 450 (8th Cir. 1993) (citation 

omitted). 
 "[P]urely statistical evidence would not 

warrant [a Price Waterhouse 'mixed-motives'] 

charge; nor would evidence merely of the 

plaintiff's qualification for and 

availability of a given position; nor would 

'stray' remarks in the workplace by persons 

who are not involved in the pertinent 

decisionmaking process. . . . If however, 

the plaintiff's nonstatistical evidence is 

directly tied to the forbidden animus, for 

example[,] policy documents or statements of 

a person involved in the decisionmaking 

process that reflect a discriminatory or 

retaliatory animus of the type complained of 

in the suit, that plaintiff is entitled to a 

burden-shifting instruction." 

28 F.2d at 374 (quoting Ostrowski, 968 F.2d 171, 182 (2d Cir. 

1992)); see also Glover v. McDonnell Douglas Corp., 981 F.2d 388, 

394 (8th Cir. 1992) (statements demonstrating that a work force 

reduction was "designed, in part, to eliminate older employees," 

entitled plaintiff to a mixed-motives charge), vacated on other 

grounds, 114 S. Ct. 42 (1993). Because Starceski introduced 

evidence of this type, the district court did not err in giving 

the jury a "mixed-motives" instruction. Cf. Hook, 28 F.3d at 375 

(finding sexual comments by plaintiff's supervisor insufficient 

for a "mixed-motives" charge because they had nothing to do with 

plaintiff's job performance and were unrelated to the adverse 

decision process challenged in the case). 

 We disagree, however, with the sweeping statement of 

the court of appeals in Glover that: 

 [a]s a general rule, we [sh]ould expect that 

all successfully prosecuted age 

discrimination cases involving a reduction in 

force would involve mixed-motives because the 

plaintiff would be alleging the employer had 

both a legitimate reason (the economic need 
to reduce the workforce) and an illegitimate 

reason (to terminate an employee based on his 

or her age). 

Glover, 981 F.2d at 394. This statement, which could force every 

case into the Price Waterhouse framework, strikes us as an 

unfortunate consequence of the use of the phrase "mixed-motives" 

to capture the Price Waterhouse rationale. 

 We believe, on the other hand, that the distinction 

between a Price Waterhouse and a McDonnell Douglas/Burdine case 

lies in the kind of proof the employee produces on the issue of 

bias. In the former, direct evidence of discriminatory animus 

leads not only to a ready logical inference of bias, but also to 

a rational presumption that the person expressing bias acted on 

it. As Chief Justice Vinson put it in, Avery v. Georgia, 345 

U.S. 559, 562 (1953), he who has a mind to discriminate is likely 

to do so. A pretext case is different. It depends on 

circumstantial evidence allowing the factfinder to infer that the 

falsity of the employer's explanation shows bias. The inference 

from Saul's testimony that bias against older employees played a 

substantial part in the selection of those employees who would be 

discharged is direct and inescapable. The district court did not 

err when it gave the jury a Price Waterhouse instruction. 

 Westinghouse, however, contends that, even if there was 

sufficient evidence to warrant a Price Waterhouse instruction, it 

should not have been given here because the district court abused 

its discretion when it allowed Starceski, after all the evidence 

was in, to change his theory of recovery from pretext under 
McDonnell Douglas/Burdine to "mixed-motives" under Price 

Waterhouse. Westinghouse argues that the district court should 

have made a decision or forced an election on pretext or 

"mixed-motives" at the beginning of the case and that its failure 

to do so was so prejudicial that Westinghouse is entitled to a 

new trial. This contention lacks merit.7 In Armbruster we said: 

 an employee [need not] elect to proceed on 

either a pretext or a Price Waterhouse theory 

at trial. Rather, we think that an employee 

may present his case under both theories and 

the district court must then decide whether 

one or both theories properly apply at some 

point in the proceedings prior to instructing 

the jury. See, e.g., Price Waterhouse, 490 

U.S. at 247 n. 12, 109 S.Ct. at 1788 n. 12; 

id. at 278, 109 S.Ct. at 1805 (O'Connor, J., 

concurring); Griffiths, 988 F.2d at 472; see

also Ostrowski, 968 F.2d at 185. 

32 F.3d at 782 n.17 (emphasis added). See also Radabaugh, 994 

F.2d at 448 ("Whether a case is a pretext case or mixed-motives 

case is a question for the court once all the evidence has been 

received."); Ostrowski, 968 F.2d at 186 ("jury [should] be 

instructed on the law, including the possibility of 

burden-shifting, before it begins its factfinding").8

 Accordingly, we hold that the district court's decision 

to give the jury a "mixed-motives" instruction, made shortly 

 

7. Starceski contends that Westinghouse waived this objection. 

We reject that argument. We believe Westinghouse's objection to 

the charge was sufficient to preserve this issue. 

8. As a practical matter, the proofs required to defend this 

case under either a pretext or "mixed-motives" theory differed 

little. The effect is a shift in the burden, not the substance 

of the proofs. See supra n.4. 
before the case went to the jury, does not entitle Westinghouse 

to a new trial. 

 B. Westinghouse's Price Waterhouse Affirmative Defense

 Having found that age played a role in Westinghouse's 

decision to discharge Starceski, Price Waterhouse then required 

the jury to decide whether Westinghouse sustained its burden of 

proving by a preponderance of the evidence that it would have 

terminated Starceski even if it had not discriminated. Hook, 28 

F.3d at 368. In other words, the risk of non-persuasion, as well 

as the burden of production, was now on Westinghouse to prove 

that it would have fired Starceski anyway, without regard to his 

age. 

 Westinghouse stipulated that Starceski was not 

terminated because of poor job performance, the usual defense in 

this kind of a case, but argued instead that there was no work at 

Westinghouse which Starceski could do. Starceski, however, had 

produced evidence tending to show Westinghouse still had work he 

could do when it terminated him. The jury believed Starceski. 

It found that Westinghouse did not meet its burden of proving 

that the company would have discharged Starceski even if it had 

not considered his age. After reviewing the evidence presented 

at trial, we cannot say that it does not rationally support this 

finding. Evidence will support a jury verdict "if reasonable 

persons could differ as to the conclusions to be drawn from it." 

Gilkerson v. Toastmaster, Inc., 770 F.2d 133, 136 (8th Cir. 1985) 
(citations omitted).9 Westinghouse, therefore, is not entitled 

to either judgment as a matter of law or a new trial on the issue 

of unlawful age discrimination. 

 IV. Was Westinghouse's ADEA Violation Willful?

 Westinghouse next contends that the district court 

erred in upholding the jury's finding of willfulness. 

Willfulness is significant because the ADEA provides double 

damages when the employer's discriminatory conduct is willful. 

29 U.S.C.A. § 626(b). The double recovery is punitive and is 

intended to deter willful conduct. Trans-World Airlines, Inc. v. 

Thurston, 469 U.S. 111, 125 (1985). 

 An ADEA violation is willful if the employer either 

"knew or showed reckless disregard for the matter of whether its 

conduct was prohibited by the ADEA." Hazen Paper Co. v. Biggins, 

113 S. Ct. 1701, 1710 (1993). In Hazen Paper, the Supreme Court 

rejected any requirement of "direct" evidence of discrimination, 

"outrageous" conduct by the employer10 or proof that age was the 

 

9. We have considered Westinghouse's argument that certain time 

sheets, identifying work that Starceski could have performed when 

it terminated him, were improperly admitted into evidence under 

the business records exception to the hearsay rule but conclude 

this argument lacks merit. A proper foundation was laid for the 

admission of these documents and they were properly admitted 

under Rule 803(6) of the Federal Rules of Evidence, which permits 

the admission of documents prepared in the ordinary course of 

business, even if the individual who prepared them does not 

testify about their contents. See Fed. R. Evid. 803(6). 

10. This rejection of the "outrageous" standard effectively 

overrules our decisions in Lockhart v. Westinghouse Credit Corp., 

879 F.2d 43, 57-58 (3d Cir. 1989) and Dreyer v. Arco Chemical 
predominant rather than a determinative factor in the employment 

decision. Id.; Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 722 

n.9 (1st Cir. 1994). In addressing willfulness after Hazen 

Paper, the Court of Appeals for the Eighth Circuit reasoned that 

the "question is not whether the evidence used to establish 

willfulness is different from and additional to the evidence used 

to establish a violation of the ADEA, but whether the 

evidenceadditional or otherwisesatisfies the distinct 

standard used for establishing willfulness." Brown v. Stites 

Concrete, Inc., 994 F.2d 553, 560 (8th Cir. 1993). 

 In the instant case, the district court reasoned: 

 [T]he evidence was undisputed that Mr. 

Ali Jaafar was defendant's management 

personnel with final decisionmaking authority 

over plaintiff's layoff. Plaintiff's 

evidence, through his then supervisor, Mr. 

Dick Saul, was that several months prior to 

the planned layoff, Mr. Jaafar told Mr. Saul 

to set up the "senior" engineers in 

plaintiff's department for permanent layoff. 

Mr. Saul testified that the clear meaning of 

Mr. Jaafar's instructions was that the older 

engineers in plaintiff's department were to 

be specifically targeted for permanent 

layoff. Mr. Saul further testified that 

thereafter, Mr. Jaafar directed him to 

artificially lower plaintiff's performance 

evaluation. 

Starceski v. Westinghouse, No. 91-0454, slip op. at 5 (W.D. Pa. 

March 14, 1994).11 We again acknowledge the conflicting 

(..continued) 

Co., 801 F.2d 651, 658 (3d Cir. 1986), cert. denied, 480 U.S. 906 

(1987). 

11. The record also shows that five of the six individuals 

selected for layoff were in the protected age group, and 
testimony on whether Jaafar gave these orders, but state again 

that we are obliged to view the evidence in the light most 

favorable to Starceski, the verdict winner. See Radabaugh, 997 

F.2d at 450. Looking at the record in this way, Westinghouse's 

position that the violation resulted from no more than accident, 

inadvertence or ordinary negligence is factually incorrect. See

Sanchez, 37 F.3d at 721-22.12 On this record, a jury acting 

reasonably could find that Westinghouse either "knew or showed 

reckless disregard" for its statutory duty to avoid 

discriminating against Starceski because of his age.13 

(..continued) 

Starceski was the oldest. The average age of those laid off was 

fifty-one. The average age of those retained was thirty-nine. 

12. We reject Westinghouse's argument that Jaafar's intent 

cannot be imputed to it. Jaafar was a second level manager and 

was the final decision maker on the selection of people for 

termination. Therefore, his intent is imputed to the company 

both for the purpose of determining whether the Act was violated 

and for the purpose of determining whether that violation was 

willful. See Crawford v. West Jersey Health Systems, 847 

F. Supp. 1232, 1236 (D.N.J. 1994) (test for determining agency is 

whether "the alleged agent has 'participated in the decisionmaking process that forms the basis of the discrimination'") 

(quoting Hamilton v. Rodgers, 791 F.2d 439, 443 (5th Cir. 1986)). 

 We also reject Westinghouse's contention that the district 

court erred in admitting a list of employees in Starceski's 

department, which was prepared at the request of the EEOC and 

contained the employees' ages and indicated who had been selected 

for layoff, but then excluding the EEOC determination that 

Starceski's administrative charge lacked probable cause. 

Admission of the EEOC decision on probable cause and its file is 

entrusted to the discretion of the district court. Walton v. 

Eaton Corp., 563 F.2d 66, 75 (3d Cir. 1977) (upholding the trial 

court's refusal to admit portions of the EEOC file). We cannot 

say that the district court abused its discretion here. 

13. The dissenting opinion contends that Jaafar's statements 

were insufficient to show that Westinghouse acted willfully. In 

doing so, the dissenting opinion in footnote 2 disclaims any need 

to consider whether Jaafar's "conduct could be attributed to 
Accordingly, we will affirm the district court's denial of 

Westinghouse's motion for judgment as a matter of law or a new 

trial on willfulness. 

(..continued) 

Westinghouse." It concludes that a jury finding that Jaafar may 

have discriminated is not proof that Westinghouse knew or 

approved Jaafar's act. In this respect, the dissenting opinion 

fails to give Starceski, as the verdict winner, the benefit of 

all inferences that reasonably can be drawn from the evidence. 

One such inference from Saul's testimony about Jaafar's remarks 

is that Westinghouse knew of or showed reckless disregard for its 

duties under the ADEA. Under the usual standards governing the 

interpretation of a verdict speaking generally to any issue, we 

should assume the jury so found. Thus, our analysis does not 

disturb the two-tier rule as the dissenting opinion suggests. 
 V. Remittitur

 Finally, Westinghouse contends the jury's verdict 

should be reduced because (1) Starceski testified he was not able 

to work in 1993 because of an emotional disability; and (2) there 

was an insufficient basis in the record to make a precise 

determination of lost pension benefits. 

 An ADEA claimant is entitled to be made whole for 

losses sustained as a result of a wrongful termination. 

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); Maxfield v. 

Sinclair Int'l, 766 F.2d 788, 796 (3d Cir. 1985), cert. denied, 

474 U.S. 1057 (1986). An ADEA claimant, however, is generally 

not entitled to a recovery in excess of make-whole damages. Id. 

A remittitur is in order when a trial judge concludes that a jury 

verdict is "clearly unsupported" by the evidence and exceeds the 

amount needed to make the plaintiff whole, i.e., to remedy the 

effect of the employer's discrimination. Spence v. Board of 

Educ. of Christina School Dist., 806 F.2d 1198, 1201 (3d Cir. 

1986); Brunnemann v. Terra Int'l, Inc., 975 F.2d 175, 178 (5th 

Cir. 1992) (A remittitur may be granted if a jury's award is 

"excessive or so large as to appear contrary to right reason."). 

The trial judge's decision to grant or withhold a remittitur 

cannot be disturbed absent a manifest abuse of discretion. 

Spence, 806 F.2d at 1201 (citing Murray v. Fairbanks Morse, 610 

F.2d 149 (3d Cir. 1979) and Edynak v. Atlantic Shipping, Inc. 

CIE. Chambon Maclovia S.A., 562 F.2d 215 (3d Cir. 1977)). This 

deferential standard is corollary to the recognition that the 

trial judge "is in the best position to evaluate the evidence 
presented and determine whether or not the jury has come to a 

rationally based conclusion." Id. (citing Murray, 610 F.2d at 

152-53). 

 In this case, the jury returned a general verdict. The 

law "presumes the existence of fact findings implied from the 

jury's having reached that verdict." Railroad Dynamics, Inc. v. 

A. Stucki Co., 727 F.2d 1506, 1516 (Fed Cir.), cert. denied, 469 

U.S. 871 (1984). The district court considered how the jury 

could have rationally arrived at its damage award, reasoning: 

 The award clearly reflects that the jury 

awarded plaintiff the $223,616.60 he claimed 

in lost wages and saving plan 

contributions. . . . The jury then added 

plaintiff's claim for lost pension 

contributions in the amount of 

$51,766.95. . . . The jury obviously 

rejected, and therefore subtracted, 

plaintiff's claim for "unreimbursed expenses" 

for 1989 and 1990 in the amounts of $3,649 

and $4,466 respectively [for a total of 

$267,268.55.] 

Starceski, No. 91-0454, slip op. at 6-7. 

 We have recognized that "[t]rial courts and the parties 

themselves invariably lack perfect hindsight to forecast what 

would have happened had there been no unlawful acts." Rodriquez 

v. Taylor, 569 F.2d 1231, 1238 (3d Cir. 1977), cert. denied, 436 

U.S. 913 (1978); International Broth. of Teamsters v. United 

States, 431 U.S. 324, 372 (1977) ("process of recreating the past 

will necessarily involve a degree of approximation and 

imprecision"). We have concluded, however, that this "risk of 

lack of certainty with respect to projections of lost income must 
be borne by the wrongdoer, not the victim." Goss v. Exxon Office 

Systems Co., 747 F.2d 885, 889 (3d Cir. 1984) (citing Story 

Parchment Co. v. Paterson Paper Co., 282 U.S. 555 (1931)); Mason 

v. Association for Independent Growth, 817 F. Supp. 550, 555 

(E.D. Pa. 1993) (same). 

 Westinghouse, however, contends that Starceski had 

family obligations and concerns that precluded him from working 

during 1993, and that the record does not provide any basis for 

the calculation of lost pension benefits. Thus, to the extent 

the damage award includes recovery for these injuries, 

Westinghouse asks that it be reduced. "[A]s a general rule, [an 

employment discrimination plaintiff] will not be allowed back pay 

during any periods of disability" and "an employer who has 

discriminated need not reimburse the plaintiff for salary loss 

attributable to the plaintiff and unrelated to the employment 

discrimination." Mason, 817 F. Supp. at 554. In Starceski's 

case, Westinghouse had the burden of establishing a failure to 

mitigate, see Robinson v. Southeastern Pennsylvania Transp. 

Authority, Red Arrow Div., 982 F.2d 892, 897 (3d Cir. 1993), and 

it failed to persuade the jurors that Starceski was unable to 

continue working at Westinghouse in 1993 as a result of his 

family problems. 

 Westinghouse also contends that Starceski's proof 

relating to his pension benefits fails because he did not take 

into account the effect of a plan modification. We also reject 

this argument. Though Westinghouse may have modified its pension 

program during the course of this dispute, it never produced any 
documents showing the effect of the modifications on Starceski's 

pension. In the absence of evidence concerning the effect of the 

changes the jury was free to draw its own inferences from 

Starceski's evidence concerning the benefits he was entitled to 

under the original plan. See E.E.O.C. v. Kallir, Philips, Ross, 

Inc., 420 F. Supp. 919, 923 (S.D.N.Y. 1976), aff'd without 

opinion, 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920 

(1977). 

 The district court did not abuse its discretion when it 

denied Westinghouse's motion for remittitur. The damages awarded 

Starceski were neither excessive as a matter of law nor "clearly 

unsupported" by the record. See Brunnemann, 975 F.2d at 178 ("A 

verdict is excessive as a matter of law if shown to exceed 'any 

rational appraisal or estimate of the damages that could be based 

upon the evidence before the jury.'") (quotation omitted). We 

therefore affirm the district court's denial of Westinghouse's 

motion for a remittitur of damages. 

 Having considered all of Westinghouse's challenges to 

the denial of its post-trial motions, we turn to Starceski's 

cross-appeal. 

 VI. Starceski's Cross-Appeal

 Starceski asserts that the district erred in denying 

his motion for pre-judgment interest and reinstatement. For the 

reasons discussed below, we will vacate the district court's 

denial of pre-judgment interest, but affirm its refusal to grant 

reinstatement. 
 A. Pre-Judgment Interest

 The district court reasoned that an award of 

pre-judgment interest is precluded in an ADEA case when 

liquidated damages are awarded for willfulness "because the 

purpose of liquidated damages [like pre-judgment interest] 

is . . . to compensate plaintiff for the loss of the use of his 

funds up to trial, [making] an award for both liquidated damages 

and prejudgment interest . . . double compensation for the same 

loss." Starceski, No. 91-0454, slip op. at 8. 

 As the district court recognized, this Court has not 

yet decided whether pre-judgment interest may be awarded along 

with liquidated damages. The courts of appeals that have decided 

this issue are divided. Compare Criswell v. Western Airlines, 

Inc., 709 F.2d 544, 556-57 (9th Cir. 1983) (liquidated damages 

and pre-judgment interest serve different functions in making 

ADEA plaintiffs whole), aff'd on other grounds, 472 U.S. 400 

(1985); Reichman v. Bonsignore, Brignati & Mazzotta, P.C., 818 

F.2d 278, 281-82 (2d Cir. 1987) (same); Lindsey v. American Cast 

Iron Pipe Co., 810 F.2d 1094, 1102 (11th Cir. 1987) (same); with

Powers v. Grinnell Corp., 915 F.2d 34, 41 (1st Cir. 1990) (an 

award of liquidated damages precludes recovery of pre-judgment 

interest as that would constitute double recovery); Hamilton v. 

1st Source Bank, 895 F.2d 159, 165-66 (4th Cir. 1990) (same); 

Burns v. Texas City Refining, Inc., 890 F.2d 747, 752-53 (5th 

Cir. 1989) (same); Coston v. Plitt Theatres, Inc., 831 F.2d 1321, 

1336-37 (7th Cir. 1987) (same), vacated on other grounds, 486 
U.S. 1020 (1988); Rose v. National Cash Register Corp., 703 F.2d 

225, 230 (6th Cir.) (same), cert. denied, 464 U.S. 939 (1983); 

Gibson v. Mohawk Rubber Co., 695 F.2d 1093, 1102 (8th Cir. 1982) 

(same); Blim v. Western Elec. Co., Inc., 731 F.2d 1473, 1479-80 

(10th Cir.), cert. denied, 469 U.S. 874 (1984). 

 This circuit split is a consequence of two competing 

theories concerning Congress's purpose in providing liquidated 

damages for willful violations of the ADEA. We think the Supreme 

Court's decision in Thurston, 469 U.S. at 125, guides us in 

answering this question. There it stated that liquidated damages 

are punitive in nature and designed to deter willful conduct. If 

awards of pre-judgment interest are compensatory, and liquidated 

damages are punitive, a concomitant grant of both is appropriate 

because pre-judgment interest serves the statutory goal of making 

Starceski whole, i.e., it compensates him for the discriminatory 

wrong that he has suffered, while liquidated damages would punish 

Westinghouse, the wrongdoer, for its willful violation of the 

ADEA. Accordingly, we reject the reasoning of those courts that 

believe Congress intended to incorporate into the ADEA all of the 

damage provisions of the Fair Labor Standards Act ("FLSA"), 

including its prohibition of concomitant awards for pre-judgment 

interest and liquidated damages. See Brooklyn Sav. Bank v. 

O'Neil, 324 U.S. 697, 715 (1945) (FLSA plaintiff cannot recover 

both liquidated damages and pre-judgment interest because the 
former serve "as compensation for delay in payment of sums due 

under the Act").14

 Rather, we are persuaded by the reasoning of the courts 

of appeals for the second, ninth and eleventh circuits, who rely 

on Thurston, supra, to permit awards of both liquidated damages 

and pre-judgment interest.15 After Thurston, this Court held 

 

14. The ADEA incorporates the FLSA's liquidated damages 

provision, but adds a requirement of "willful" conduct. 

29 U.S.C.A. § 626(b). For a general discussion of the 

legislative history showing Congress's selective incorporation of 

FLSA provisions into the ADEA, see Sperling v. Hoffman-LaRoche, 

Inc., 24 F.3d 463 (3d Cir. 1994). 

15. Although the courts of appeals for the sixth, eighth and 

tenth circuits have determined that an ADEA plaintiff cannot 

recover both liquidated damages and pre-judgment interest, these 

courts rendered their decisions before Thurston and, as of yet, 

have not revisited this issue in light of Thurston's statement 

that liquidated damages are punitive in nature. See, e.g., Smith 

v. World Ins. Co., 38 F.3d 1456, 1467 n.5 (8th Cir. 1994) 

(question not properly before the Court because party appealing 

agreed with district court that after Thurston liquidated damages 

were not a bar to pre-judgment interest, casting doubt on the 

circuit's decision in Gibson). The Court of Appeals for the 

Eleventh Circuit, one of those that had originally decided an 

ADEA plaintiff could not recover both liquidated damages and 

pre-judgment interest, overruled its prior decision after 

Thurston, reasoning: 

 The Thurston decision . . . confirms the 

Ninth Circuit's approach in Criswell and 

undermines the assumptions of the other 

circuits' decisions, including ours in 

O'Donnell. See Bonura v. Chase Manhattan 

Bank, N.A., 629 F.Supp. 353, 363-66 (S.D.N.Y. 

1986) (Thurston clarifies "that prejudgment 

interest does not provide a double recovery 

to victims of age discrimination who have 

proven their entitlement to liquidated 

damages as well as back-pay."). 

Lindsey, 810 F.2d at 1102 n.7. 
that liquidated damages are punitive in nature. See Turner v. 

Schering-Plough Corp., 901 F.2d 335, 346 (3d Cir. 1990); Blum v. 

Witco Chemical Corp., 829 F.2d 367, 382 (3d Cir. 1987); Rickel v. 

C.I.R., 900 F.2d 655, 666 (3d Cir. 1990). We have also 

recognized that the purpose of an award of pre-judgment interest 

is "'to reimburse the claimant for the loss of the use of its 

investment or its funds from the time of the loss until judgment 

is entered.'" Berndt v. Kaiser Aluminum & Chemical Sales, Inc., 

789 F.2d 253, 259 (3d Cir. 1986) (quoting Arco Pipeline Co. v. SS 

Trade Star, 693 F.2d 280, 281 (3d Cir. 1982)). We are unable to 

reconcile Thurston's statement that liquidated damages are 

punitive with a denial of pre-judgment interest designed to 

compensate for loss of the time value of money. Thus, we are not 

persuaded by the reasoning of those courts of appeals which 

believe that Congress's incorporation of some of the FLSA's 

damage provisions into the ADEA was meant to preclude an award of 

damages for both willfulness and pre-judgment interest.16 Given 

this view of the law and the fact that Westinghouse points to no 

unusual circumstances in favor of a discretionary denial of 

pre-judgment interest, we will reverse the district court's 

denial of Starceski's motion for pre-judgment interest and remand 

for a quantification of the pre-judgment interest due him. See

Green v. USX Corp., 843 F.2d 1511, 1530 & n.16 (3d Cir. 1988). 

 

16. The difficulty with the FLSA incorporation argument is 

compounded by the ADEA requirement of willfulness, which is not 

found in the FLSA. 
 B. Reinstatement

 Starceski also contends that the district court erred 

in denying his request for reinstatement. We have held that the 

decision to grant reinstatement or its alternative, front pay, is 

within the sound discretion of the district court. Maxfield v. 

Sinclair Int'l, 766 F.2d 788, 796 (3d Cir. 1985) ("Since 

reinstatement is an equitable remedy, it is the district court 

that should decide whether reinstatement is feasible."), cert. 

denied, 474 U.S. 1057 (1986). 

 In determining whether to grant either reinstatement or 

front pay, we have suggested that district courts should take 

into consideration the ADEA's purpose to make aggrieved 

plaintiffs whole "by restoring them to the position they would 

have been in had the discrimination never occurred." Id. 

Although reinstatement "is the preferred remedy to avoid future 

lost earnings" because it is consistent with the ADEA's 

make-whole philosophy, we have concluded that reinstatement is 

not feasible in cases where there "may be no position available 

at the time of judgment or the relationship between the parties 

may have been so damaged by animosity that reinstatement is 

impracticable." Id.

 Here, we initially note that Starceski failed to object 

when the trial judge instructed the jury on front pay, even 

though he intended to make a motion for reinstatement.17 

 

17. Neither party raised as an issue on appeal the use of a 

general verdict. In that verdict, the jury awarded compensatory 

damages of $267,268.55, an amount that appears to include at 

least some element of front pay. 
Starceski is not entitled to both reinstatement and front pay. 

In any event, the district court found that reinstatement was not 

a viable option due to the lack of available positions and given 

the animosity between the parties. We cannot say that finding is 

clearly erroneous. Moreover, on this record, we see no abuse of 

discretion in the district court's decision to deny Starceski the 

remedy of reinstatement. "The district court was in a much better 

position [than us] to determine whether or not reinstatement was 

feasible based on the testimony and evidence at trial." 

Brunnemann, 975 F.2d at 180. Accordingly, we will affirm the 

district court's denial of Starceski's motion for reinstatement. 

 VII. Conclusion

 On Westinghouse's appeal, we will affirm the district 

court's order denying Westinghouse's post-trial motions for 

judgment as a matter of law or a new trial, as well as its denial 

of a remittitur. 

 On Starceski's cross-appeal, we will affirm the 

district court's denial of reinstatement but vacate its order 

denying pre-judgment interest and remand this case to the 

district court for the addition of pre-judgment interest due 

Starceski to the judgment in his favor. Each party shall bear 

its own costs. 
Starceski v. Westinghouse Electric Corp., Nos. 94-3182 & 94-3208 

GARTH, Circuit Judge, concurring and dissenting, 

 I agree with the court that the jury verdict finding 

Westinghouse liable for an ADEA violation should be sustained. I 

cannot agree, however, that the same conduct charged to 

Westinghouse and found to violate the ADEA, without more, 

justified a finding that Westinghouse was willful in its 

violation of the ADEA, resulting in the imposition of a 

liquidated damages award. The court's holding today leads 

ineluctably to the conclusion that every ADEA disparate treatment 

violation will also constitute a willful violation that permits a 

liquidated damages award. 

 I cannot agree with such a holding and I accordingly 

dissent from so much of the majority's opinion as affirms the 

award of liquidated damages against Westinghouse.18

I. 

 The ADEA provides for liquidated damages of twice the 

backpay award when an employer's violation of the ADEA is 

"willful." 29 U.S.C. § 626(b). Congress added this penalty as 

 

18. For purposes of clarity, I not only concur in the court's 

affirmance of the jury verdict as to the ADEA violation, but I 

agree as well that we should uphold the district court's rulings 

which denied Starceski reinstatement and which denied remittitur. 

Because my reading of the record and of Hazen Paper Co. v. 

Biggins, 113 S. Ct. 1701 (1993), causes me to conclude that no 

liquidated damages should have been awarded against Westinghouse, 

I would vacate the award of liquidated damages and remand for a 

determination of prejudgment interest. 
a deterrent to knowing misconduct by employers. 113 Cong. Rec. 

2199 (1967) (comments of Senator Javits). 

 Unfortunately, the term "willful" has eluded easy or 

precise definition. The difficulties which have attended the 

effort to define willfulness have resulted in numerous and 

sometimes conflicting decisions on the meaning and application of 

§ 626(b). See 2 Howard C. Eglitt, Age Discrimination § 8.30 (2d 

ed. 1993). Nonetheless, while the courts of appeals have adopted 

different standards at different times, the courts have 

consistently adhered to two principles to resolve disputes under 

§ 626(b). 

 First, courts have consistently acknowledged that 

Congress intended only some violations of the ADEA to be willful. 

 Second, courts have been careful not to punish good 

faith efforts by employers to comply with the Act. 

 Today's decision by the majority ignores both of those 

principles. 

 This appeal represents this court's first 

interpretation of willfulness since Hazen Paper v. Biggins, 113 

S. Ct. 1701 (1993). Hazen represents the Supreme Court's latest 

restatement of the standard for willful violations. The 

majority's disregard of the two established principles of 

interpretation under the ADEA, which I have identified, is 

therefore all the more troubling. 

 Before I discuss those principles and the majority's 

failure to apply these principles in its analysis of the 

Starceski record, I should explain that I have no quarrel with 
the court's statement that willfulness exists when an employer 

"knew or showed reckless disregard for the matter of whether its 

conduct was prohibited by the ADEA." Hazen, 113 S. Ct. at 1710. 

Rather, I strongly disagree with the majority's application of 

this standard in the present appeal -- an application that makes 

every ADEA violation a willful violation and ignores the good 

faith attempts of an employer to comply with its statutory 

duties. 

II. 

 The Supreme Court and the courts of appeals have 

repeatedly recognized that Congress did not intend every 

violation of the ADEA to be a willful violation. In Trans World 

Airlines, Inc. v. Thurston, 469 U.S. 111 (1985), the Supreme 

Court rejected Thurston's argument that a violation was willful 

whenever the employer knew the ADEA was "in the picture" because 

that standard would eliminate the distinction between ordinary 

and willful violations. 

 [T]he broad standard proposed by [Thurston] 

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 (footnote omitted). Rather than adopt Thurston's 

standard, the Court concluded that willfulness may be proved when 
the employer "knew or showed reckless disregard for the matter of 

whether its conduct was prohibited by the ADEA." Id. at 126 

(quoting Air Line Pilots Ass'n v. Tran World Airlines, 713 F.2d 

940, 956 (2d Cir. 1983). As the Supreme Court explained in 

Hazen, the principle adopted in Thurston, which it labeled the 

two-tiered liability principle, distinguishes between ordinary 

and willful violations: 

 The two-tiered liability principle was simply 

one interpretive tool among several that we 

used in Thurston to decide what Congress 

meant by the word "willful," and in any event 

we continue to believe that the "knowledge or 

reckless disregard" standard will create two 

tiers of liability across the range of ADEA 

cases. It is not true that an employer who 

knowingly relies on age in reaching its 

decision invariably commits a knowing or 

reckless violation of the ADEA. 

Hazen, 113 S. Ct. at 1709. 

 Three years after Thurston, the Supreme Court had an 

opportunity to reconsider the principle of two-tiered liability 

in McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988), a case 

involving the statute of limitations under the FLSA. The FLSA 

provides for a three year statute of limitations following 

willful violations as compared to the ordinary two year statute 

of limitations. 29 U.S.C. § 255(a). The Court refused to 

abandon either the knowledge or reckless disregard standard or 

the principle that some but not all violations will be willful. 

"The fact that Congress did not simply extend the limitations 

period to three years, but instead adopted a two-tiered statute 

of limitations, makes it obvious that Congress intended to draw a 
significant distinction between ordinary violations and willful 

violations." 486 U.S. at 132. A lower standard would 

"obliterate[] any distinction between willful and nonwillful 

violations" by adopting a more lenient standard. Id. at 132-33. 

 The Supreme Court in Hazen cautioned against abandoning 

the principle of two-tiered liability. Willful violations only 

extend to knowing or reckless violations of the ADEA, whether 

they result from formal or informal policies. 113 S. Ct. at 

1709. The Court repeated that "Congress aimed to create a `twotiered liability scheme,' under which some but not all ADEA 

violations would give rise to liquidated damages." Id. at 1708 

(quoting Thurston, 469 U.S. at 127). Further, the Court took 

pains to demonstrate why the Thurston standard does not result in 

liquidated damages in every case. Id. at 1709. 

III. 

 The principle of two-tiered liability has not stood 

alone as an interpretive guide to the meaning of § 626(b) of the 

ADEA. Courts have also been guided by a desire to encourage good 

faith attempts at compliance with the ADEA. 

 In Thurston, the Court stressed this when it held that 

TWA had not acted willfully, despite the adoption of a policy 

which explicitly disadvantaged older workers, when the airline 

believed the policy was a permissible bona fide occupational 

qualification (BFOQ). The Court concluded that "[i]t is 

reasonable to believe that the [company and its lawyers], in 

focusing on the larger overall problem, simply overlooked the 
challenged aspect of the new plan." 469 U.S. at 130. Thus, 

TWA's violation did not warrant liquidated damages. A company is 

not liable for liquidated damages when it "act[s] reasonably and 

in good faith in attempting to determine whether [its] plan would 

violate the ADEA." Id. at 129. 

 The Court in Hazen also acknowledged the importance of 

a company's good faith efforts to comply with the law. "If an 

employer incorrectly but in good faith and nonrecklessly believes 

that the statute permits a particular age-based decision, then 

liquidated damages should not be imposed." 113 S. Ct. at 1709. 

 The relevance of an employer's good faith has been 

repeatedly recognized by the courts of appeals. See, e.g., 

Schrad v. Federal Pacific Electric Co., 851 F.2d 152, 158 (6th 

Cir. 1988); Gilliam v. Amtex, Inc., 820 F.2d 1387, 1390 (4th Cir. 

1987); Whitfield v. City of Knoxville, 756 F.2d 455, 463 (6th 

Cir. 1985). 

IV. 

 Despite courts' consistent use of these principles to 

guide the interpretation of § 626(b), the majority here fails to 

acknowledge or apply either. This failure unfortunately is not 

harmless because here the majority's conclusion that Starceski is 

entitled to liquidated damages does violence to both. 
A. 

 If we adopt the majority's view of willfulness, every 

successful disparate treatment case under the ADEA will also be 

treated as a willful violation. According to the court, the 

evidence that establishes willfulness is the testimony that 

Jaafar, Starceski's supervisor, told Saul that Jaafar intended to 

discharge senior engineers and directed Saul to lower certain 

employee's performance evaluations. While Westinghouse contends 

that Jaafar's statement referred to the company's job category 

"Senior Engineer A" and not to older employees, the jury could 

certainly have believed Starceski's assertion that Jaafar was 

actually referring to older engineers. Hence, the jury had 

grounds to decide that Jaafar, a Westinghouse supervisor, 

intentionally discharged Starceski because of his age -- a 

violation of the ADEA.19

 

19. I deliberately do not address the issue of whether 

Jaafar's conduct could be attributed to Westinghouse. I do not 

do so because, even if we assume that Jaafar was speaking for 

Westinghouse, Jaafar's statements do not demonstrate that 

Westinghouse either knew or showed reckless disregard for its 

duties under the ADEA. Even though the jury may have found that 

Jaafar may have discriminated against Starceski on the basis of 

Starceski's age, that finding does not constitute proof that 

Jaafar or Westinghouse knew that Jaafar's choices in selecting 

employees for discharge violated the Act, even if Jaafar was 

generally aware of the Act. See Brown v. Stites Concrete, Inc., 

994 F.2d 553, 560 (8th Cir. 1993) (en banc) ("[I]t is a willful 

violation as opposed to voluntary conduct in general that is 

required."); Coston v. Plitt Theatres, Inc., 860 F.2d 834, 837 

7th Cir. 1988) ("the term 'knew' . . . refers to the fact that 

the employer knew he was violating the ADEA, not to the fact that 

he was aware of the Act."). Further evidence of willfulness is 

necessary. 
 However, the existence of an intent to act on the basis 

of age, the sine qua non of an ADEA disparate treatment case, 

cannot by itself also be the determinant of willfulness. Such a 

rule extinguishes any distinction between an ordinary disparate 

treatment case and a willful violation. Every ADEA plaintiff who 

claims disparate treatment must prove that the employer 

intentionally acted on the basis of the plaintiff's age. Hazen, 

113 S. Ct. at 1706-07; St. Mary's Honor Center v. Hicks, 113 S. 

Ct. 2742, 2748, 2751, 2756 (1993); Seman v. Coplay Cement Co., 26 

F.3d 428, 432-33 (3d Cir. 1994); Colgan v. Fischer Scientific 

Co., 935 F.2d 1407, 1417 (3d Cir. 1991). Disparate treatment 

cases are far and away the largest proportion of ADEA cases 

brought in the courts. Congress surely did not intend to permit 

an award of liquidated damages in every one of these cases. 

 The resulting tension is not solved by the court's 

statement that evidence of intent by itself is reasonable 

evidence that Westinghouse "`knew or showed reckless disregard' 

for its statutory duty to avoid discriminating against Starceski 

because of his age." Maj. Op. Typescript at 19. This assertion 

does not "draw a significant distinction between ordinary 

violations and willful violations." McLaughlin, 486 U.S. at 132. 

 If, as the majority apparently believes, intent and 

willfulness are the same under the ADEA, it is virtually 

impossible for a defendant to defend against a claim of 

willfulness apart from its defense against the plaintiff's 

underlying ADEA claim. Moreover, it reduces the two-tiered 
liability principle to a single-tiered determination that the 

ADEA has been violated. 

B. 

 Similarly, the majority ignores almost entirely 

Westinghouse's proof of its good faith effort to avoid a 

violation of age or race discrimination laws during its reduction 

in force. The majority misconstrues Westinghouse's argument as 

an attempt to show that the violation "resulted from no more than 

accident, inadvertence or ordinary negligence." Maj. Op. 

Typescript at 18. Westinghouse argues not that the violation was 

accidental but that Westinghouse did not recklessly disregard its 

duties under the Act as revealed by its review of its employment 

decisions to prevent employment discrimination. 

 Contrary to the majority, I believe the record reflects 

Westinghouse's reasonable, if unsuccessful, effort to prevent 

discrimination. As Hazen and Thurston discuss, this good faith 

effort makes a liquidated damages award inappropriate. "If an 

employer incorrectly but in good faith and nonrecklessly believes 

that the statute permits a particular age-based decision, then 

liquidated damages should not be imposed." Hazen, 113 S. Ct. at 

1709. 

 Once Westinghouse decided that it would need to lay off 

some employees, Westinghouse counseled all of its managers to 

choose employees based only on business reasons. App. 486. Once 

the managers chose candidates for lay off, each manager was 

required to give reasons for his or her decisions. App. 487. 
Two human resources employees and the company's legal counsel 

reviewed these justifications for possible discrimination. App. 

487. 

 According to these company reports, Starceski was 

chosen because the company lacked work in his division. App. 

488. Westinghouse human resources personnel confirmed this 

characterization with Mr. Jaafar's manager, Mr. Esposito. App. 

490. Starceski does not dispute that a number of projects in 

Westinghouse's Nuclear Services Division were terminated or being 

wound up during the time period in which he was laid off. These 

facts gave Westinghouse personnel more reason to credit Jaafar's 

representation. Though Westinghouse did not investigate Jaafar's 

and Esposito's statements further, the circumstances disclosed by 

the record gave Westinghouse every reason to believe that the 

sole reason for Starceski's discharge was the lack of work in his 

department. 

 Given the importance of good faith to our prior 

interpretations, willfulness is surely not demonstrated simply by 

showing that Westinghouse informed its managers of the ADEA and 

proof that an ADEA violation occurred. Thurston itself declined 

to hold "that a violation of the Act is `willful' if the employer 

simply knew of the potential applicability of the ADEA." 469 

U.S. at 127; see also Sanchez v. Puerto Rico Oil Co., 37 F.3d 

712, 721 (1st Cir. 1994) ("A finding of willfulness requires 

something more than merely showing that an employer knew about 

the ADEA and its potential applicability in the workplace."). 
 Nothing in this record leads to a conclusion that 

Westinghouse recklessly disregarded the rights of its older 

employees. Everything points to a conclusion that Westinghouse 

"acted reasonably and in good faith in attempting to determine 

whether [its] plan would violate the ADEA." Thurston, 469 U.S. 

at 129. In Starceski's case unfortunately, its internal efforts 

were unsuccessful. 

 Unlike the majority, however, I would not punish 

Westinghouse twice for its failure, once through a backpay award 

and again through a liquidated damages award. Such a policy does 

nothing to encourage companies to scrutinize closely their 

employment decisions and policies. While a company's inability 

to protect perfectly against age discrimination is grounds to 

award backpay and restitution so that an employee is fully 

compensated, it does not warrant doubling the award. 

V. 

 Willfulness, as defined by Thurston, focuses on a 

company's knowledge of or reckless disregard for whether its 

actions violate the ADEA. Sanchez, 37 F.3d at 721-22 

("Willfulness, then requires an element akin to reckless 

disregard of, or deliberate indifference to, an employer's ADEArelated obligations."); Brown v. Stites Concrete, Inc., 994 F.2d 

553, 560 (8th Cir. 1993) (en banc) ("[I]t is a willful violation 

of the law as opposed to voluntary conduct in general that is 

required."); Benjamin v. United Merchants & Mfrs., Inc., 873 F.2d 

41, 44 (2d Cir. 1989) (Willfulness occurs when employer has been 
"indifferent to the requirements of the governing statute and 

acted in a purposeful, deliberate, or calculated fashion."); 

Coston v. Plitt Theatres, Inc., 860 F.2d 834, 837 (7th Cir. 1988) 

("The term `knew' . . . refers to the fact that the employer knew 

he was violating the ADEA, not to the fact that he was aware of 

the Act."). Willfulness is not a matter of additional evidence 

but a matter of additional misconduct. See Hazen, 113 S. Ct. at 

1709; Kelly v. Mattlock, 903 F.2d 978, 982 (3d Cir. 1990). 

 An employer who pays no attention to its duties under 

the Act does so at the risk of paying double the penalty for any 

resulting violations. An employer who goes forward with an 

employment decision when it knows that its actions illegally 

discriminate against older workers likewise risks the imposition 

of liquidated damages. When awarded under these circumstances, 

liquidated damages serve as a necessary and beneficial deterrent 

to ADEA violations. Thurston, 469 U.S. at 125-26. 

 On the other hand, an employer's or a supervisor's 

intentional use of age in an employment decision, while 

completely adequate grounds for an ordinary ADEA award, does not 

by itself suffice to find that the employer knowingly pursued an 

unlawful course of conduct or recklessly disregarded its 

statutory duties. To so hold is to eliminate the ADEA's twotiered liability scheme and to overlook Westinghouse's good faith 

efforts to prevent an ADEA violation. 

 Because I fear that today's decision by the court 

operates to merge both tiers of the two-tiered liability 

principle into one -- i.e. a mere disparate treatment violation 
of the ADEA -- and because I cannot support the court's disregard 

for these principles which have consistently guided our 

interpretation of the ADEA, I respectfully dissent from the 

court's affirmance of the district court's award of liquidated 

damages.20

 

20. Because I would not award liquidated damages, I would 

remand the case for a determination of prejudgment interest. 

Such an order would obviate any conflict between liquidated 

damages and prejudgment interest. Forced to choose between an 

award of both liquidated damages and prejudgment interest, I 

would permit only one sanction because I believe, as we have 

held, that liquidated damages serve both compensatory and 

punitive functions. Blum v. Witco Chemical Corp., 829 F.2d 367, 

382 (3d Cir. 1987). In doing so, I would join the majority of 

courts of appeals that have considered the question since 

Thurston. See Powers v. Grinnel Corp., 915 F.2d 34, 40-41 (1st 

Cir. 1990); Hamilton v. 1st Source Bank, 895 F.2d 159, 165-66 

(4th Cir. 1990); Burns v. Texas City Refining, Inc., 890 F.2d 

747, 752-53 (5th Cir. 1989); Coston v. Plitt Theaters, Inc., 831 

F.2d 1321, 1336 (7th Cir. 1987), vacated on other grounds, 485 

U.S. 1007 (1988).