DocketNumber： 94-3182, 94-3208
Judges： Stapleton, Hutchinson, Garth
Filed Date： 5/3/1995
Status： Precedential
Modified Date： 11/5/2024
OPINION OF THE COURT
AppellanVcross-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,
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 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
I. Statement of Facts and Procedural History
In April 1989, Westinghouse terminated Starceski from his senior engineer position after thirty-six years of sendee. 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.
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 ease for trial. Starceski v. Westinghouse Electric Corp., 993 F.2d 879 (3d Cir.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.”
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
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, 101 S.Ct. 1418, 67 L.Ed.2d 383 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 deter mine 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).
ill. 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, 109 S.Ct. 1775, 104 L.Ed.2d 268 (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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), pretext instruction.
In Griffiths v. CIGNA Corp., 988 F.2d 457, 470 (3d Cir.) (quotation omitted), cert. denied, — U.S. —, 114 S.Ct. 186, 126 L.Ed.2d 145 (1993), overruled on other grounds, Miller v. CIGNA Corp., 47 F.3d 586 (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 deci-sionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude.”
[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.
Id. at 778 (citing Price Waterhouse, 490 U.S. at 244-46, 109 S.Ct. at 1787-88 and Griffiths, 988 F.2d at 469-70 and n. 12) (emphasis added). See also Miller, 47 F.3d at 593-94. 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 nondeeisionmakers, or statements by decisionmakers unrelated to the decisional process itself, suffice to satisfy the plaintiffs 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, 109 S.Ct. at 1805 (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
In Hook, we quoted with approval the following passage from the Second Circuit’s opinion in Ostrowski v. Atlantic Mutual Insurance Companies:
“[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 ‘stray1 remarks in the workplace by persons who are not involved in the pertinent decisionmaking process.... If however, the plaintiffs 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, — U.S. —, 114 S.Ct. 42, 126 L.Ed.2d 13 (1993). Because Starce-ski 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 plaintiffs supervisor insufficient for a “mixed-motives” charge because they had nothing to do with plaintiffs 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, 73 S.Ct. 891, 892-93, 97 L.Ed. 1244 (1953), he who has a mind to discriminate is likely to do so. A pretext case is different. It depends on circumstan
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.
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, 997 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 factfind-ing”).
Accordingly, we hold that the district court’s decision to give the jury a “mixed-motives” instruction, made shortly 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 Starce-ski, 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).
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, 105 S.Ct. 613, 623-24, 83 L.Ed.2d 523 (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, — U.S. —, —, 113 S.Ct. 1701, 1710, 123 L.Ed.2d 338 (1993). In Hazen Paper, the Supreme Court rejected any requirement of “direct” evidence of discrimination, “outrageous” conduct by the employer
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 plaintiffs layoff. Plaintiffs 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 plaintiffs department for permanent layoff. Mr. Saul testified that the clear meaning of Mr. Jaafar’s instructions was that the older engineers in plaintiffs department were to be specifically targeted for permanent layoff. Mr. Saul further testified that thereafter, Mr. Jaafar directed him to artificially lower plaintiffs performance evaluation.
Starceski v. Westinghouse, No. 91-0454, slip op. at 5 (W.D.Pa. March 14, 1994).
V. Remittitur
Finally, Westinghouse contends the jury’s verdict should be reduced because (1) Starce-ski 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, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Maxfield v. Sinclair Int’l, 766 F.2d 788, 796 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (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, 105 S.Ct. 220, 83 L.Ed.2d 150 (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 plaintiffs claim for lost pension contributions in the amount of $51,766.95_ The jury obviously rejected, and therefore subtracted, plaintiffs 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 hap
Westinghouse, however, contends that Starceski had family obligations and concerns that precluded him from working dining 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 Starce-ski’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 Stareeski’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, 98 S.Ct. 395, 54 L.Ed.2d 277 (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. Com
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, 105 S.Ct. at 623-24, 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, 65 S.Ct. 895, 906, 89 L.Ed. 1296 (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”).
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.
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, 106 S.Ct. 796, 88 L.Ed.2d 773 (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.
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 inter
. 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.
. From about 1954 to 1956, Starceski worked for Sikorski Aircraft.
. We will hereafter refer to this motion as a motion for judgment as a matter of law. See supra n. 1.
. 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, — U.S. —, 113 S.Ct. 2742, 125 L.Ed.2d 407 (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, nondiscrimi-natoiy reason for the adverse employment decision. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. If the employer does produce evidence showing a legitimate, nondiscriminatoty 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, 101 S.Ct. at 1094; 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, 93 S.Ct. at 1824). 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, 101
. 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, 47 F.3d at 596 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, 47 F.3d at 597 n. 9.
. 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).
. 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.
. 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.
.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 Fed
. 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 Co., 801 F.2d 651, 658 (3d Cir.1986), cert. denied, 480 U.S. 906, 107 S.Ct. 1348, 94 L.Ed.2d 519 (1987).
. The record also shows that five of the six individuals selected for layoff were in the protected age group, and Starceski was the oldest. The average age of those laid off was fifty-one. The average age of those retained was thirty-nine.
.We reject Westinghouse’s argument that Jaa-far'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 decision-making 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 con-
. 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 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.
. The ADEA incorporates the ELSA’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).
. 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 prejudgment 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.
. The difficulty with the FLSA incorporation argument is compounded by the ADEA requirement of willfulness, which is not found in the FLSA.
. 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.