dissenting.
I respectfully dissent. I believe that this perverse verdict of age discrimination and willful violation was caused by instructions that were contrary to the present law in this circuit with respect to age discrimination, and contrary to governing Supreme Court precedent with respect to willfulness. Therefore, I would reverse and remand for a new trial.
AGE DISCRIMINATION
Dale Stites hired Fred Brown to repair small motors for Stites Concrete, Inc., in July 1986, when Brown was seventy-five years old. In early 1987, Brown asked for and received two weeks of paid vacation that he had not yet earned. In mid-1987, Brown missed ten and one-half weeks of work due to a hernia injury caused when a sixty-pound starter he was removing from a truck fell on him. In December 1987, Brown asked for a three-month leave of absence so he could winter in Florida. The testimony of Brown and Dale Stites differed as to whether the leave was granted, or Brown quit. In any event, Brown went to Florida and sued when Stites refused to employ him after he returned in February 1988.
According to trial testimony by Hyslop, an ex-employee who worked with Brown in the maintenance department, and by Morían, a union shop steward responsible for pressing employee grievances, Dale Stites commented on several occasions that Brown appeared to be getting too old for the work. Though Stites testified at length, he was not asked whether he made the comments to Hyslop. He was asked about his comment to Morían, and replied:
I told him, I said “I’m afraid that through the past experiences I’ve had with Fred before he quit and went to Florida that he could hurt himself here.” My insurance was on my back at that particular time through injuries, and I felt that as a friend of Fred’s, which I’ve known him for a long time, I didn’t want to see him hurt there. So I said “I’ll tell you what I can do.” I said “There’s work,” you know, there’s *568small motors and things like that that break down that we sort of set aside and buy another one or, you know, something to get by. I said “He could take it home and work on it. I’ll be glad to pay him for it.”
At the trial’s conclusion, the district court gave the following instruction defining age discrimination:
Now, your verdict will be for the plaintiff if you find.... that plaintiff has proven that his age, more likely than not, was a motivating factor in defendant’s decision to terminate plaintiff....
Now, in showing that the plaintiffs age was a motivating factor, the plaintiff is not required to prove that his age was the sole motivation or even the primary motivation for the defendant’s decision to terminate him from his position. Plaintiff need only prove that his age played a part in the decision. And, in addition, plaintiff is not required to produce direct evidence of unlawful motive.
Intentional discrimination, if it exists, is seldom admitted, but it is a fact which you may infer from the existence of other facts. Now, on the other hand, your verdict will be for the defendant if you find ... that plaintiff has failed to prove that his age was a motivating factor in the defendant’s decision to terminate him from his position.
Given the above-summarized testimony, this instruction virtually directed a verdict for Brown on this issue. Yet the relevant facts are that Stites hired a seventy-five year-old worker and only discharged him (accepting the jury’s verdict that Brown did not quit) when he was physically unable to do the work and insisted on taking the winter off. Other than Dale Stites’s careless remarks to Hyslop and Morían, there was a total absence of proof of age discrimination. On these facts, is it correct to instruct the jury only that plaintiff must prevail if “age was a motivating factor”? I think not.
In Proud v. Stone, 945 F.2d 796, 797 (4th Cir.1991), the court held:
[I]n cases where the hirer and the firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer.
Proud v. Stone has now been followed by this court. Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173, 174-175 (8th Cir.1992). The facts of this case give rise to the Proud v. Stone inference, yet it was not included in the district court’s instruction. The inference is essential to a proper definition of age discrimination on the facts of this case. This new law of the circuit must be applied to pending cases. Therefore, I would grant Stites a new trial. See Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1494-96 (9th Cir.1986); Demmer v. Patt, 788 F.2d 1387 (8th Cir.1986); Lang v. Texas & Pac. Ry., 624 F.2d 1275, 1278-80 (5th Cir.1980).
I have another problem with the age discrimination charge as given. We are among the circuits that have held that, “the age statute was not meant to prohibit employment decisions based on factors that sometimes accompany advancing age, such as declining health or diminished vigor and competence.” Holley v. Sanyo Mfg., Inc., 771 F.2d 1161 (8th Cir.1985), quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1016 (1st Cir.1979), and quoted in Barnes v. Southwest Forest Ind., Inc., 814 F.2d 607, 611 (11th Cir.1987). No such instruction was requested, and therefore I would not reverse on this ground. However, on the facts of this case, I think it would be reversible error to refuse a request that an instruction to this effect be given to clarify the concept of age discrimination for the jury.
WILLFULNESS
In Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125-130, 105 S.Ct. 613, 623-626, 83 L.Ed.2d 523 (1985), the Supreme Court defined the concept of a “willful” violation that entitles an ADEA plaintiff to liquidated double damages. The Court noted that “Congress intended for liquidated damages to be punitive in nature”; indeed, the “willful” standard was taken from the criminal *569liability section of an early draft of the legislation. 469 U.S. at 125, 105 S.Ct. at 623. Because “Congress intended a two-tiered liability scheme,” the Court rejected the argument that liquidated damages are appropriate “if the employer simply knew of the potential applicability of the ADEA.” Instead, it found “acceptable” the lower court’s standard — “a violation is ‘willful’ if ‘the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.’ ” 469 U.S. at 127-128, 105 S.Ct. at 624-625.
Since Thurston, we have repeatedly held that the “two-tiered liability scheme” must be reflected in ADEA judgments: “in order that the liquidated damages be based on evidence that does not simply duplicate that needed for the compensatory damages, there must be some additional evidence of the employer’s ‘reckless disregard.’ ” Williams v. Valentec Kisco, Inc., 964 F.2d 723, 729 (8th Cir.1992), quoting Morgan v. Arkansas Gazette, 897 F.2d 945, 952 (8th Cir.1990), and Bethea v. Levi Strauss & Co., 827 F.2d 355, 359 (8th Cir.1987). Similarly, in Wheeler v. McKinley Ent., 937 F.2d 1158, 1165 (6th Cir.1991), a jury verdict for an ADEA plaintiff was reversed because, “The jury was given absolutely ... no description of the ‘two-tiered liability scheme’ embodied in the ADEA, and the instructions failed to bring home to the jury, in terms that ordinary people could understand, what it was that the jury was supposed to determine before any award of back pay could be doubled.”
In this case, the district court gave the following instruction defining a “willful” violation:
Now, in this connection, a violation is willful if the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the federal law under which the plaintiff sues in this case. And the violation is willful if it’s done voluntarily and deliberately and intentionally and not by accident or inadvertence or ordinary negligence. And, in this connection, you can consider statements made or acts done or omitted and all facts or circumstances which show whether or not the defendant acted intentionally and not, by accident.
The first sentence of this definition is directly from Thurston and, when given,1 was beyond reproach. However, the second and third sentences unmistakably softened the standard, from whether Stites’s conduct “showed reckless disregard,” to whether Stites “acted intentionally and not by accident.” Perhaps more significantly, nowhere in this instruction was the jury given a “description of the ‘two-tiered liability scheme,’ ” nor was it told that these are punitive damages, and that a willfulness finding must be based upon “additional evidence of the employer’s ‘reckless disregard.’” Instead the jury was told to focus upon whether there was intentional discrimination, the same focus they ivere given in the prior age discrimination instruction.
At the instructions conference, in overruling Stites’s objection to this instruction, the district court acknowledged that Thurston and Bethea suggested the need for additional language defining the punitive nature of the willfulness issue. But the court decided to use existing model jury instructions until “the Eighth Circuit determines that this instruction is improper.” The instruction is plainly improper because it misstates the law and effectively nullifies the Supreme Court’s decision in Thurston. I would so hold, and I would remand this case to afford Stites a new trial free of this seriously prejudicial error.
*570CONCLUSION
This is apparently the first reported case involving an ADEA plaintiff who was both hired and fired over the age of seventy.2 I fear that the majority’s decision will have the disastrous effect of making this class of elderly workers virtually unemployable. Stites could probably have avoided this liability if Dale Stites had received and followed careful (and costly) legal advice. But in the future, what employer will incur the risk of over $100,000 in wrongful discharge liability in order to hire a seventy-five year-old mechanic? Large employers can avoid that hiring risk by adopting appropriate “bona fide occupational qualifications” under 29 U.S.C. § 623(f) that disqualify elderly job applicants. Small employers are effectively denied that device, as it has been interpreted, but, being-risk averse, they will simply refuse to hire motivated elderly workers such as Brown because the risk of ADEA liability is far greater after the worker has been hired.
Obviously Congress, in extending the ADEA to elderly workers, did not intend to decrease their employment opportunities. The appellate decisions applying this difficult statute reflect a careful balancing of the competing policies and interests. Unfortunately, the so-called model jury instructions in this field do not. In cases involving complex areas of the law, I believe that juries are seldom to blame for absurd verdicts. Usually, the blame lies with lawyers who fail to request appropriate, ease-specific instructions, and with trial judges who refuse to depart from the mind-numbing generalities of model jury instructions in order to explain to the jury how a complex body of law applies to the evidence in a particular case.3 I dare say that, if one of the jurors in this case were to read the controlling Supreme Court and circuit court decisions discussed in our opinions, he or she would say, “Oh, my, the judge never told us that was the law.”
. On June 22, 1992, the Supreme Court granted certiorari in Biggins v. The Hazen Paper Co., 953 F.2d 1405 (1st Cir.1992), to consider the question whether this standard should be modified for "claims of individual discriminatory treatment" because "of its consequence of imposing automatic punitive damages.” The majority relies upon Biggins in rejecting Stites’s argument that "outrageous conduct" should be an element of willfulness, thereby taking sides in a circuit conflict the Supreme Court will now resolve. See p. 565 & n. 4, supra. Therefore, in addition to dissenting on the issues discussed in this opinion, I disagree with the majority's decision not to hold our disposition of this appeal until the Supreme Court decides Biggins.
. Congress extended ADEA’s protections to workers over seventy in 1986. See 29 U.S.C. § 631(a).
. Among his Ten Practical Suggestions about Federal Jury Instructions, the late Judge Edward J. Dcvitt included:
8. Pattern Instructions Must be Tailored to the Case
It is urged that you exercise caution when using pattern jury instructions. Very few pattern instructions are intended to be copied verbatim in every case.... Each case has its own peculiar facts and formalized instructions must be tailored to the facts and issues.
38 F.R.D. 75, 77 (1965).