APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 75-1738).
Adams, Van Dusen and Hunter, Circuit Judges.
VAN DUSEN, Circuit Judge.
This appeal raises diverse issues resulting from a district court award of back pay, liquidated damages and attorneys' fees to a plaintiff who successfully proved that the City of Philadelphia violated the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (1970 & Supp. IV 1974) (ADEA). We affirm in part and reverse in part the district court's award of monetary relief and attorneys' fees.
Plaintiff, Luis Rodriguez, then age 46, applied on December 23, 1974, to the City of Philadelphia to take the competitive Civil Service examination for the position of Security Officer I. One month later, the City's Personnel Department informed Mr. Rodriguez that he could not sit for the examination because he was overage. Since 1966, the City of Philadelphia had adhered to a personnel policy requiring that applicants for the position of Security Officer I be less than 41 years of age in order to be eligible to take the requisite competitive examination.*fn1 Impelled by his rejection, and having exhausted federal and state administrative remedies, Mr. Rodriguez brought suit on behalf of himself and all other persons over the age of 41 against the City of Philadelphia (City) in the Eastern District of Pennsylvania. The gist of plaintiff's complaint alleged that the City's inflexible maximum age requirement for Security Officer I applicants violated the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (1970 & Supp. IV 1974).*fn2 The complaint sought class relief in the nature of a permanent injunction proscribing enforcement of the City's age limit and individual relief for Mr. Rodriguez in the form of an opportunity to take the competitive examination and an entitlement to recovery of pecuniary losses.*fn3
The district court certified the class pursuant to Rule 23(b)(2) and, after a non-jury trial, concluded that the City's policy of barring persons over the age of 41 from taking the competitive examination for the job of Security Officer I violated § 4(a)(1) of the ADEA, 29 U.S.C. § 623(a)(1), and was not a bona fide occupational qualification, see 29 U.S.C. § 623(f)(1). Accordingly, the district court ordered the requested class injunctive relief*fn4 but did not order any monetary relief to the class members other than the named plaintiff. Also, it granted the plaintiff an opportunity to take the examination he would have taken had he not been disqualified on the basis of his age. Were the plaintiff to score high enough to have been hired, but for his age, sometime between his original application and the time of trial, a period of one year and a half, he would have been entitled to the position of Security Officer I with full retroactive benefits. Whether or not Mr. Rodriguez proved to be successful on the exam, the district court awarded him, under § 7(b) of ADEA, 29 U.S.C. § 626(b), amounts owing as unpaid wages for the period between the date the first applicant was hired subsequent to the plaintiff's rejection and the date the final order was issued. The district court further ruled that because the City's violation was willful, the plaintiff was entitled to liquidated damages in the amount of the calculated unpaid minimum wages, see 29 U.S.C. § 626(b).*fn5 The district court ruled that the plaintiff, "having proved the violation, is not required to prove that 'but for' the violation he would have been hired in order to be entitled to an award of money both as an 'amount owing' to him and as liquidated damages" (119a). In a subsequent memorandum opinion of October 5, 1976, the district court awarded plaintiff's counsel, Community Legal Services, Inc., $2,820. in attorneys' fees.
The City has taken no appeal from the district court's conclusions of law that the personnel policy erecting age as a barrier to application for the position of Security Officer I willfully violated the ADEA and was not saved as a bona fide occupational qualification. Thus, for purposes of this appeal, the City stands as an undisputed willful violator of the ADEA, both with respect to the plaintiff, Luis Rodriguez, and the class of persons over age 41 which he represented. The City in this appeal challenges only certain aspects of the individual relief ordered by the district court.*fn6 The City contends that Mr. Rodriguez did not suffer pecuniary losses as a result of its discriminatory refusal to administer the employment examination and, therefore, he was not entitled to an unconditional award of unpaid wages or liquidated damages. The City also contends that the district court erred in not reducing the plaintiff's monetary award to account for wages he earned from other sources during the interim period for which back pay was calculated.
Furthermore, the City also appeals that portion of the district court's order entitling Mr. Rodriguez to be hired as a Security Officer I solely on the basis of his written examination performance. The City urges that the plaintiff's hiring should have been made contingent on his satisfaction of preexisting physical requirements for employment as a Security Officer I. Finally, the City maintains that the district court erred in awarding attorneys' fees under the ADEA to plaintiff's counsel, Community Legal Services. The plaintiff, while disputing all the grounds of appeal advanced by the City, has cross-appealed the calculation of attorneys' fees. The plaintiff contends that the district court employed incorrect standards in calculating the reasonable value of his attorneys' time devoted to this litigation.
At oral argument it was revealed that pursuant to the district court's order, Mr. Rodriguez was administered the competitive written examination for the job of Security Officer I, but that he failed to score high enough to have been hired during the time between rejection of his application and trial.*fn7 Mr. Rodriguez's examination failure moots the City's contention that he should not be hired without also passing a physical examination.*fn8 In view of Mr. Rodriguez's failure on the civil service exam, the district court's order will enable him to collect unpaid wages for a job for which he may have been unqualified on grounds other than his age. For the reasons stated below, we hold that the district court did not err in awarding both back pay and liquidated damages to Mr. Rodriguez. However, we conclude that the district court did err in not setting off wages earned during the same period for which back pay was calculated. Thus, we remand for a recalculation of the monetary relief accorded Mr. Rodriguez.*fn9 The district court similarly erred in the manner in which it calculated attorneys' fees which we hold Community Legal Services is entitled to under the mandatory attorneys' fees award provision of the ADEA.
The Age Discrimination in Employment Act of 1967 was enacted to ensure that employers base their hiring decisions on expectations of individuals' job performance rather than on unwarranted irrebuttable presumptions that all persons of a certain age less than 65 would be unable to satisfactorily perform a given job. Age became a proscribed basis for employment decisions in much the same manner as Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq. (1970 & Supp. IV 1974), had earlier prohibited employment discrimination on the basis of other immutable personal characteristics such as race, color, religion, sex or national origin. Age concededly differs from the Title VII classifications in that, for some jobs, statistically significant correlations might demonstrate that persons above certain middle ages are inherently disabled from performing as satisfactorily as their younger counterparts. Congress recognized the likelihood of legitimate connections between age and ability and saved from its statutory strictures employment decisions "where age is a bona fide occupational qualification reasonably necessary to the formal operation of the particular business . . .," § 4(f) of the ADEA, 29 U.S.C. § 623(f) (1970).
At trial, the plaintiff presented uncontroverted evidence that the City had established an absolute age limit of 41 for applicants for the position of Security Officer I. The plaintiff's evidence conclusively proved that his application for such a job had been rejected solely on the basis of his overage. Moreover, the City presented at trial no evidence indicating that Mr. Rodriguez was in any way unqualified for a job as a security guard or that there had not been vacancies which he might have filled. The City's evidence that its maximum age limit was a bona fide occupational qualification was found wanting by the district court and is not reiterated on appeal. Thus, the posture of plaintiff's suit as it stands before this court is that the City has committed a willful per se violation of the ADEA, see Houghton v. McDonnell Douglas Corp., 553 F.2d 561 (8th Cir.) cert. denied, 434 U.S. 966, 98 S. Ct. 506, 54 L. Ed. 2d 451, 46 U.S.L.W. 3354 (1977). Notwithstanding its indisputable liability, the City now claims that the district court's grant of legal relief to Mr. Rodriguez was unauthorized by statute.
Relief available to victims of unlawful age discrimination is governed by § 7 of the ADEA, 29 U.S.C. § 626 (1970), in conjunction with its incorporated enforcement provisions of the Fair Labor Standards Act (FLSA). See 29 U.S.C. § 626(b), incorporating 29 U.S.C. §§ 211(b), 216(b), 216(c), 217, 626(b), 626(c). The FLSA makes actionable employer violations of minimum wage and maximum hour laws and entitles aggrieved employees to recover "unpaid minimum wages" or "unpaid overtime compensation," as well as an equal amount of mandatory "liquidated damages." 29 U.S.C. § 216(b) (1970). Violations of the ADEA do not typically involve an employer's failure to pay minimum or overtime wages. A discriminatory refusal to hire or promote workers on the basis of age is likely to result in monetary damages less precisely measurable. Section 7(b) of the ADEA defines available monetary relief only in terms of "amounts owing to a person as a result of a violation of this chapter." Such amounts "shall be enforced" as are unpaid minimum wages and unpaid overtime compensation under the FLSA enforcement provisions incorporated by reference. See 29 U.S.C. § 626(b). Liquidated damages under the ADEA are available only in case of "willful violations" of the statute. In addition, § 7(b) empowers the courts to grant such "legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section."
The "amounts owing" to a victim of age discrimination are not further defined by statute. Thus, the scope of pecuniary relief available under the ADEA must be ascertained from examination of the whole statutory scheme. Damage standards should effectuate the purposes of anti-discrimination statutes. See generally Rogers v. Exxon Research & Engineering Co., 550 F.2d 834, 839-42 (3d Cir. 1977).
Monetary awards exacted from employers who practice unlawful discrimination serve two primary functions. First, the prospect of economic penalties more certainly deters illegal employment practice than does exposure to injunctive relief or prospective equitable remedies such as reinstatement. Second, economic exactions recompense individuals for injuries inflicted by employers' discriminatory conduct. These prophylactic and compensatory purposes are the basis of most recent anti-employment discrimination legislation, including the ADEA and Title VII. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-21, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975); H.R. Rep. No. 805, 90th Cong., 1st Sess. 2 (1967). Thus, the Supreme Court's mandate on the exercise of trial court's discretion in granting monetary relief in Title VII suits, as stated in Albemarle, supra, is equally compelling in the context of ADEA actions:
"Given a finding of unlawful discrimination, back pay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination."
The make whole standard of relief should be the touchstone for the district courts in fashioning both legal and equitable remedies in age discrimination cases. Victims of discrimination are entitled to be restored to the economic position they would have occupied but for the intervening unlawful conduct of employers. See Franks v. Bowman Transportation Co., 424 U.S. 747, 763-64, 47 L. Ed. 2d 444, 96 S. Ct. 1251 (1976) (Title VII standard). The difficulty arises in applying the concepts of a make whole restorative remedy and, but for causation, to facts developed in particular cases. Trial courts and the parties themselves invariably lack perfect hindsight to forecast what would have happened had there been no unlawful acts. Even in those cases where a retrospective fact ...