40 Fair empl.prac.cas. 843, 40 Empl. Prac. Dec. P 36,105 Eugene E. Smith, Cross-Appellant v. The Consolidated Mutual Water Company, Cross-Appellee

McKAY, Circuit Judge.

At trial, Mr. Eugene Smith contended that Consolidated Mutual Water Company fired him because of his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. Consolidated contended that it fired Mr. Smith for falsifying water meter tests. After the jury found for Mr. Smith, the court entered judgment in the amount of $67,028.71, which included “front pay” in lieu of reinstatement.

I.

Consolidated contends that the trial court erred in denying its motion for a directed verdict and its motion for judgment notwithstanding the verdict or a new trial. The issue is simply whether Mr. Smith presented sufficient evidence to permit a reasonable jury to conclude that age was a determinative factor in Consolidated’s decision to fire him.

We conclude that the evidence, when taken as a whole and when viewed in the light most favorable to Mr. Smith, is sufficient to support the jury’s verdict. First, Mr. Smith’s supervisor, who was 20 years younger than Mr. Smith, often referred to him as “an old goat.” ^* Second, Consolidated replaced Mr. Smith with a younger worker. Third, Consolidated never confronted Mr. Smith about his allegedly falsifying meter tests before deciding to discharge him. Fourth, all other employees under the direction of Mr. Smith’s supervisor were considerably younger than Mr. Smith. Fifth, the last two evaluations of Mr. Smith’s job performance commented that he had been “knocked around a bit over the years,” record, vol. 2, at 110, and questioned whether he had the educational background to rate at the top of his pay scale. Finally, Mr. Smith’s supervisors criticized him for being slow and unable to meet quotas. Although the evidence is thin and circumstantial, we conclude that, taken as a whole, it is enough to permit a reasonable juror to infer that age was a determinative factor in Consolidated’s decision.

II.

Consolidated next contends that the trial court erred in refusing its requested instruction that Mr. Smith prove, as part of his prima facie case, that he was doing satisfactory work at the time he was fired.

In reviewing this issue, we must consider the instructions given as a whole. EEOC v. Prudential Federal Savings and Loan Association, 763 F.2d 1166, 1170 (10th Cir. 1985). As we have stated before, “no particular form of words is essential if the instruction as a whole conveys the correct statement of the applicable law.” Perrell v. Finance America Corp., 726 F.2d 654, 656 (10th Cir.1984). In discussing proper instructions in an ADEA action, we recently stated:

The essence of the correct formulation of the standard of proof is that it requires the jury to focus on the effect of the factor of age. The jury must understand that it is not enough that age discrimination figure in the decision to demote or discharge; age must “make a difference” between termination and retention of the employee in the sense that, “but for” the factor of age discrimination, the employee would not have been adversely affected.

Id. at 656.

In the instant case, the trial court instructed the jury, in part, as follows:

In order to prevail in this claim, under the ADEA, the plaintiff must prove by a preponderance of the evidence: (1) that he was within the protective age group, that is, between the ages of 40 and 70; (2) that he was discharged; and (3) that his age was a determining factor to the defendant’s decision so that but for the plaintiffs age, there would not have been a discharge.

To establish the third element, the plaintiff must prove that the defendant’s motivation in discharging the plaintiff was discriminatory, and thus unlawful. It is not unlawful for an employer to discharge an employee for cause____ You may not base a finding of age discrimination merely on your disagreement with the business judgment of the defendant in this particular case. Your focus is to be on whether the defendant’s motivation in discharging the plaintiff was discriminatory, and not on the business judgment.

Record, vol. 2, at 172-73 (emphasis added). The court also instructed the jury that Mr. Smith claimed he was discharged because of his age and not for good cause and that Consolidated claimed that he was discharged “for falsifying water meter tests, in other words, for good cause and not because of his age.” Record, vol. 2, at 167-68.

The jury was properly instructed that Mr. Smith had the burden of proving that his discharge was motivated by his age— not by good cause. Because the trial court had already informed the jury of Consolidated’s claim of good cause, it properly rejected Consolidated’s attempt to insert this claim again in another instruction to avoid giving it undue weight. We agree with the trial court that “in this instance the satisfactory work and the cause are somewhat coexistent.” Record, vol. 2, at 153.

III.

Consolidated next contends that the trial court erred in awarding “front pay” to Mr. Smith. In EEOC v. Prudential Savings and Loan Association, supra, we held that future damages are available under the ADEA. As we stated in that case:

The power to grant equitable relief provided in the ADEA clearly stands in addition to the monetary relief available under the FLSA sections and is expressly stated to be without limitation. When we read this section as a whole and construe it liberally, as we must, see Dartt, 539 F.2d at 1260, we conclude that the legal and equitable remedies available under the ADEA are not limited either to those specifically listed or to those available under the FLSA, so long as the relief is “appropriate to effectuate the purposes of [the Act].”

763 F.2d at 1172. Because the trial court articulated its reasons for awarding future damages in lieu of reinstatement and because those reasons are sound, we conclude that the trial court did not err in awarding “front pay” to Mr. Smith.

IV.

The ADEA provides that “liquidated damages shall be payable only in cases of willful violations of this chapter.” 29 U.S.C. § 626(b). The parties stipulated that the jury would determine liability only, leaving the determination of damages, including a determination on the willfulness issue, to the court. Mr. Smith contends that the trial court erred in determining that Consolidated’s actions did not constitute a willful violation of the ADEA.

In Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), the Supreme Court rejected the notion that an employer’s conduct is willful under the ADEA if the employer was cognizant of an appreciable possibility that the employees involved were covered by the ADEA or if the ADEA was “in the picture.” Id. 105 S.Ct. at 625. Rather, the court found that a violation was willful under the Act if “the employer ... knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.” Trans World Airlines, Inc. v. Thurston, 469 U.S. at-, 105 S.Ct. at 624.

The thin nature of the evidence presented by Mr. Smith at trial compels us to agree with the trial court that Consolidated’s conduct was not “willful” under the standard announced by the Supreme Court in Trans World Airlines, Inc. v. Thurston, supra.

AFFIRMED.

* Although references to Mr. Smith as "an old goat" were arguably made in jest, a reasonable juror could infer that they were meant to be disparaging, regardless of their tone.