concurring specially.
I concur in the opinion prepared for the majority although under the evidence and the Thurston test, the issue of “willfulness” is an extremely close question. I write separately to state that we should direct the district courts to use language similar to that found in Instruction No. 5.14, Eighth Circuit Model Civil Jury Instructions, nothing more. Attempts to help the jury better understand the meaning of willfulness in the two-tiered concept inherent in the ADEA tend to confuse rather than enlighten. This is because we generally try to use criminal law concepts and these ideas do not readily transfer to issues raised in civil litigation under the ADEA.