dissenting.
This is an appeal from a jury verdict of $50,000 returned in favor of appellant Thomas Blackwell (Blackwell) after a six-hour trial on a charge that he was discharged from his employment by Sun Electric Corp. (Sun) in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. Because the jury instructions below were misleading and confusing on the basic issues defining an actionable ADEA claim, and the term “willful”, as applied in an ADEA claim to support liquidated damages, I must respectfully dissent.
I
The operative facts of the underlying suit are not complex. In 1975, Blackwell was hired by Sun, an automotive electronic parts supplier, as a sales representative in Memphis. Blackwell was 59 years old and his insurance business had recently failed. His job required that he travel in a sales “zone” contacting potential customers and holding “schools” to teach garage owners and service mechanics how to use Sun equipment. Moreover, each zone had a minimum net sales quota.
In 1979, Blackwell and Sun agreed to a transfer in which Blackwell relocated in a zone in the Knoxville region which was more geographically compact but incorporated a greater number of potential customers. The regional manager in Knoxville, Blackwell’s immediate superior, set a quota of $8,000 per month as the “break even” figure for each salesman in the zone. Despite conflicting testimony as to the interpretation placed upon this language by Sun and Blackwell, i.e. gross or net sales, it is clearly established that Blackwell was advised in writing in February, 1980 to “correct [his] low sales volume”. It is further established that at the time Blackwell was terminated on July 3, 1980 at age 64 his sales had increased but remained below the quota when computed on a net basis.
There was additional evidence presented to the jury that two other salesmen over age 50 had been discharged at approximately the same time as Blackwell and replaced by younger men. The company presented testimony in rebuttal that the other terminated salesmen had violated a policy against switching new and used equipment or had alcohol problems.
The evidence which allegedly supported the $50,000 damage award, which will be more thoroughly related infra, essentially consisted of a projection of Blackwell’s pri- or average monthly earnings to the date of trial ($10,083); the plaintiff’s unsupported conjecture that he could have fully tripled or doubled this figure in the reconstructed sales area assigned to his replacement ($26,-166); and the wholly fantastic assertion by plaintiff’s counsel that the jury, without receiving an instruction, thereupon doubled the damage award in conformity with the statute. The only foundation for an award of $50,000 is that Blackwell demanded $50,-000 in his complaint and that demand was repeated to the jury by the court in the closing portion of the charge.
II.
The most thoroughly contested issue on appeal is that which addresses the elements *1187of an actionable violation of the ADEA. The issue may be suitably bifurcated into separate, though related, areas of inquiry concerning the components of a prima facie case, and the causal weight to be attributed to an employer’s consideration of age where other, non-discriminatory, factors are also present (“mixed motive analysis”). These subjects are here discussed sequentially.
A.
While nine other circuits have concluded that the standards for a prima facie Title VII action promulgated by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) are applicable to ADEA actions, see Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979); Stanojev v. Ebasco Services, Inc., 643 F.2d 914 (2d Cir.1981); Smithers v. Bailar, 629 F.2d 892 (3rd Cir.1980); Smith v. University of North Carolina, 632 F.2d 316 (4th Cir.1980); Marshall v. Sun Oil Co., 605 F.2d 1331 (5th Cir.1979); Kephart v. Institute of Gas Technology, 630 F.2d 1217 (7th Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981); Cova v. Coca-Cola Bottling Co., 574 F.2d 958 (8th Cir.1978); Sutton v. Atlantic Richfield Co., 646 F.2d 407 (9th Cir.1981); Kentroti v. Frontier Airlines, Inc., 585 F.2d 967 (10th Cir.1978), this Circuit has declined to “borrow and apply * * * automatically,” the prima facie case guidelines of McDonnell Douglas to ADEA suits. Laugesen v. Anaconda Co., 510 F.2d 307, 312 (6th Cir.1975). Instead, this Court has stated a preference for asserting the sufficiency of an ADEA plaintiff’s claim “on a case-by-case basis, rather than adopting formalistic approaches * * Sahadi v. Reynolds Chemical, 636 F.2d 1116, 1118 n. 3 (6th Cir.1980) (per curiam). As noted by the Court in Ackerman v. Diamond Shamrock Corp., 670 F.2d 66, 70 (6th Cir.1982):
A mechanical application of the McDonnell Douglas guidelines might bar the suit of a worthy ADEA claimant. In other cases, an overly mechanical application could supply an ADEA plaintiff with a triable claim where none exists.
The result of this approach has given rise to conclusions such as that offered recently by Judge Jones in Locke v. Commercial Union Ins. Co., 676 F.2d 205 (6th Cir.1982) (per curiam) Jones, dissenting:
This Circuit has not articulated what a plaintiff must prove to establish a prima facie case that his discharge violated the ADEA.
What can be stated with certainty is that a prima facie ADEA claim must contain more than the plaintiff’s mere conclusion that he was terminated because of his age. The Locke, supra majority formulated the principle as follows:
The plaintiff did nothing more than state his conclusion that he was terminated because of his age. To permit this single statement to constitute a prima facie case would place on employers a burden which Congress never intended. There is no automatic presumption that every termination of an employee between the ages of 40 and 70 results in a violation of the Age Discrimination in Employment Act. Yet to permit a plaintiff to shift the burden to the defendant of justifying a termination on such a conclusory statement would have this effect. See Sahadi v. Reynolds Chemical, 636 F.2d 1116, 1118 (6th Cir.1980); Ackerman v. Diamond Shamrock, 670 F.2d 66 (6th Cir.1982).
676 F.2d at 206. Further, this Court has concluded that a prima facie case is not established when a plaintiff simply proves that he is a member of the 40 to 70 age group protected by the ADEA, that he was discharged, and that he was replaced by a younger person. Such a fact situation ignores the reality that “discharged workers will more often than not be replaced by those younger than they”. Sahadi v. Reynolds Chemical, supra at 1118.
In fact, a careful reading of Sixth Circuit authority discloses a basic framework for ADEA analysis. The Laugesen court propounded this rubric:
[The] burden [is] initially upon the plaintiff to prove his claim that he was discharged because of his age. Absent an *1188admission by the defendant or a state of facts so clear that no reasonable person would disagree, the issue remain[s] one for the jury and the burden of proof remain[s] with the plaintiff.
* * * This is not a case in which the defense admits the discrimination but seeks to justify it as a bona fide occupational disqualification necessary to the normal operation of business.
510 F.2d at 313 (emphasis added).
Stated differently, the burden of proof remains with the plaintiff until discrimination “because of” age is shown or conceded, and only then must the employer prove that its action was otherwise necessary as a bona fide occupational qualification apart from age. See also Tuohy v. Ford Motor Co., 675 F.2d 842 (6th Cir., 1982). Indeed, it is settled that the ADEA “was not intended for judicial review of business decisions.” Kephart v. Institute of Gas Technology, supra, quoted in Ackerman, supra at 70. Accordingly, at a minimum, a prima facie ADEA ease in this Circuit requires a plaintiff to prove that the action complained of was taken “because of” his age, and an employer is under no burden to prove the soundness of its decision ab initio.
B.
It is at this juncture that the second prong of the discussion on the elements of an actionable ADEA claim becomes relevant. Accordingly, it is essential that a jury be instructed as to the manner by which a plaintiff must meet the burden of proving that an action was taken “because of” a plaintiff’s age. Once again, the genesis of this Circuit’s analysis is Laugesen, supra:
However expressed, we believe that it was essential for the jury to understand from the instructions that there could be more than one factor in the decision to discharge [the plaintiff] and that he was nevertheless entitled to recover if one such factor was his age and if in fact it made a difference in determining whether he was to be retained or discharged. * * * It is because the instructions did not convey this necessary concept of the law to the jury that we are compelled to reverse and remand for a new trial.
510 F.2d at 317 (emphasis added). Accord, Ackerman, supra at 70.
This standard clearly involves two steps: first, the plaintiff must prove that one factor in the decision to terminate employment actually was the claimant’s age; and two, that “the age of the claimant made a difference in determining whether he was to be retained or discharged.” Ackerman, 670 F.2d at 70.
The Second Circuit, which approved the “factor that made a difference” test of Laugesen, in Geller v. Markham, 635 F.2d 1027, 1035 (2d Cir.1980), has recently noted that it could not approve “an instruction that stated only that the jury must find age to be a ‘determining factor’ without clarifying that term.” Bentley v. Stromberg-Carlson Corp., 638 F.2d 9, 12 (2d Cir.1981). The Bentley court suggested that the jury be told “a plaintiff must prove that age was ‘a determining factor’ in his discharge in the sense that ‘but for’ his employer’s motive to discriminate against him, he would not have been discharged.” Id. quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir.1979).
Wherefore, the case authority of this Circuit seems to mandate that a trial judge instruct an ADEA jury on at least three essential points: first, that the plaintiff has the burden of proving that regardless of the soundness of the employer’s stated reasons for discharge, the actual reason was the claimant’s age; second, that the burden is met when the plaintiff establishes that one factor in the decision was the claimant’s age, and further that the age factor “made a difference”, and third, that the age of the claimant made a difference if, when taken together with even compelling non-diseriminatory reasons, the plaintiff would not have been discharged “but for” his age.
Ill
In the case at bar, the trial court’s instructions appear to reflect the confusion engendered by this Circuit’s “case-by-case” *1189approach to the ADEA. Portions of the brief (10-page) charge track Laugesen closely; immediately contiguous passages appear contradictory. At the commencement of voir dire, the district judge stated the case thusly:
THE COURT: This suit is by Thomas P. Blackwell, Jr., who is the plaintiff, and the Sun Electric Corporation, who is the defendant.
Mr. Blackwell says that his employer, Sun Electric Corporation, terminated his services because of his age.
Now, the defendant denies that.
If age entered into the termination, then, plaintiff would be entitled to recover. But, if the defendant terminated his services because of his — for business reasons or for other legitimate reasons, the defendant would not be liable. (Emphasis added).
At the conclusion of the case, the jury was formally charged, in relevant part, as follows:
The plaintiff in this case has the burden of showing by a preponderance of the evidence that the defendant discharged him because of his age. The defendant contends that it discharged him because of bona fide business or economic reasons unconnected with age.
In this connection, the Court charges you that plaintiff need not show that age was the sole or exclusive factor in the defendant’s discharge of plaintiff. There could be more than one factor in the decision to discharge plaintiff. The plaintiff is nevertheless entitled to recover if one such factor was his age, and if that factor made a difference in determining whether the plaintiff was discharged. The ultimate question is not whether the defendant’s decision to discharge plaintiff reflected an accurate or wise judgment of the plaintiff’s abilities. The question is whether the decision was unlawfully motivated by the factor of his age.
If you find that the defendant’s discharge of plaintiff was for the reasons asserted by it, then, you must find in favor of the defendant.
On the other hand, if you find by a preponderance of the evidence that plaintiff’s age made a difference in defendant's decision to discharge plaintiff, then the defendant would be liable to the plaintiff, and you must proceed to determine the damages due him.
Now, in this case, as previously indicated, the burden of proof is upon the plaintiff. Before the plaintiff can recover, plaintiff must show that age entered into the determination. If age entered into the termination of his employment, then, there would be liability. On the other hand, if age did not enter into the decision of the defendant to terminate his employment, there could be no liability.
As previously noted, Sun immediately objected to the district court’s frequent instruction that ADEA liability may be premised simply upon a finding that Blackwell’s age somehow “entered into” Sun’s decision. The employer requested that the jury be instructed that age must do more than “enter into” the decision; it must be the factor that, “but for” its presence, the discharge would not have occurred. The trial judge professed not to understand the meaning of Sun’s proposed language and told counsel that age need only be “a consideration”. (Emphasis added).
Recognizing that an appellate court is required to “judge the charge as a whole and to affirm the jury verdict if, taken as a whole, [the charge] fairly presents the law as it applies to the case at hand.” Haislah v. Walton, et al., 676 F.2d 208 (6th Cir;1982), the charge presently on review confuses and misstates the law as to the principal issue of the case.
Specifically, the jury was repeatedly told that Blackwell could recover if age “entered into” Sun’s decision; a test which is obviously not extracted from the language of the controlling authorities. Standing alone, as it does at the commencement of voir dire and at the conclusion of the relevant section of the charge, the trial court’s formulation of the law leaves the clear impression that it is sufficient for liability to attach if age *1190was one otherwise insignificant factor without further requiring, pursuant to Laugesen, that the age factor be found to have “made a difference" in the decision of termination. The casual approach of the trial court could result in finding ADEA violations any time an employer considering a potential discharge simply became aware of the employee’s age, for then age would have surely “entered into” the decision process.
Accordingly, the district court’s jury charge should be deemed insufficient and improper as a matter of law, and the case be retried.
IV
The second issue joined on appeal is the propriety of the trial court’s charge concerning “willful” violations of the ADEA, for which the Act provides that liquidated damages, in addition to back pay and benefits, may be awarded. 29 U.S.C. § 626(b); Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). The district court, as heretofore noted, instructed the jury on the meaning of the word “willful” in pertinent part as follows:
[T]he Court charges you that an employer acts willfully if he knows or has reason to know that his acts are governed by the Act. * * *
Neither a good faith belief in the lawfulness of his actions, nor ignorance of their illegality, shields the employer if he violates the Act. The test is, did the employer know the Act was in the picture? (Emphasis added).
This Circuit has not promulgated a definition of “willfulness” specifically applicable to the ADEA. The limited case authority on point is divergent. One approach has been to define “willful” as requiring a specific intent to violate the Act. Such an approach is clearly developed by the First Circuit in Loeb, supra.
“An act is done ‘wilfully’ if done voluntarily and intentionally, and with the specific intent to do something the law forbids: that is to say, with bad purpose either to disobey or to disregard the law.” E. Devitt & C. Blackmar. Federal Jury Practice and Instructions § 14.06 at 384 (3d ed. 1977).
600 F.2d at 1020, n. 27. See also Coates v. National Cash Register Co., 433 F.Supp. 655 (D.W.Va.1977); Hodgson v. Hyatt, 318 F.Supp. 390 (N.D.Fla.1970).
A majority of circuits considering the issue have concurred with Loeb insofar as it requires that the employer’s act be intentional and knowing. Syvock v. Milwaukee Boiler Manufacturing Co., 665 F.2d 149 (7th Cir.1981); Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir.1981); Kelly v. American Standard, Inc., 640 F.2d 974 (9th Cir.1981); Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir.1980). However, the Second and Third Circuits have added that willfulness could be established by merely “reckless” conduct. 645 F.2d at 131; 619 F.2d at 283. Further, the Ninth Circuit has concluded that both the “specific intent” and “reckless” additions to the basic knowing and intentional standard are improper. 640 F.2d at 980.
The Seventh Circuit in Syvock, supra, appears to have harmonized this group of cases and synthesized the following test as the product of this line of authority:
The standard for willfulness therefore should focus on the defendant’s state of mind at the time the allegedly discriminatory acts occurred. It must distinguish those situations in which an employer consciously discriminates against an employee because of age from those in which the discrimination is unconscious. This distinction is just as necessary in disparate treatment cases as it is when the plaintiff sues on a discriminatory impact theory. We think that a finding of willfulness should lie only if there is some showing as to the defendant’s knowledge of the illegality of his actions. We hold that, in order to prove willfulness under 29 U.S.C. § 626(b) (1976), a plaintiff must show the defendant’s actions were knowing and voluntary and that he knew or reasonably should have known that those actions violated the ADEA.
655 F.2d at 155-156.
In this regard, the Syvock test, which emphasizes the defendant’s “consciousness *1191of the illegality of his action”, and Loeb, which actually requires “specific intent”, are not in conflict. Indeed, it appears obvious that one who voluntarily commits an act while conscious of its illegality has “acted with the specific intent to do something that the law forbids”. Under either Syvock or Loeb, the purpose of defining willfulness for the jury is to illuminate Congress’ clear intent to “distinguish those situations in which an employer consciously discriminates against an employee because of age from those in which the discrimination is unconscious.” Syvock, supra at 155. Plainly, the charge on review requires the jury to disregard evidence of “good faith” or “ignorance” which, under appropriate circumstances, may well result in a finding that, while a violation has occurred, it was not willful and accordingly could not support the added penalty of liquidated damages. The instruction in the matter at bar requires the jury to disregard the distinction between a good faith conclusion that the Act is inapplicable and a specific intent to act in disregard of the law.
Moreover, as is frequently the case throughout these proceedings, the trial judge has allowed himself to employ colloquial phrases to define the fundamental issues of the law. Subjecting the defendant to excess damages permitted only in instances of a specific finding of “willful” discrimination, upon the charge that the jury should determine if “the employer [knew] the Act was in the picture”, is at best vague and of little real value to the factfinder, and at worst destructive of Congress’ specific choice of a legal “term of art” with certain precise and well-understood consequences.
For all the above-stated reasons, the instruction below defining the term “willful” violations is fatally flawed and cannot support a verdict. This Circuit should further clearly formulate the definition of “willful” conduct applicable to the ADEA as that delineated by the Seventh Circuit in Syvock.
V
Sun further contests the award of $50,000 in damages to Blackwell as being in excess of that permitted under the ADEA.
Under the ADEA, a successful litigant may be awarded back pay and benefits from the date of discharge to the date of trial, reinstatement, attorney fees and costs. Where a willful violation is found, an ADEA claimant may also receive liquidated damages in the amount “equal to the pecuniary loss [to] compensate the aggrieved party for non-pecuniary losses”. U.S.Code Cong, and Admin.News (1978) p. 535. As was noted in the landmark ADEA case of Rogers v. Exxon Research & Engineering Co., 550 F.2d 834, 340-41 (3rd Cir.1977), cert. denied, 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 770 (1978):
Congress saw fit to restrict the penalty provisions of the Act to doubling the amount of lost earnings. To allow psychic distress awards in addition would in very real sense thwart the limitation Congress thought advisable to impose. ******
The Act provides for determination of the amount of damages by an objective test — the amount of lost earnings. While the exact computation may be the subject of disagreement, that type of dispute is familiar to administrative proceedings and generally not difficult to resolve.
Accord: Naton v. Bank of California, 649 F.2d 691 (9th Cir.1981); Walker v. Pettit Construction Co., 605 F.2d 128 (4th Cir.1979); Vasquez v. Eastern Air Lines, Inc., 579 F.2d 107 (1st Cir.1978); Dean v. American Security Insurance Co., 559 F.2d 1036 (5th Cir.1977), cert. denied, 434 U.S. 1066, 98 S.Ct. 1243, 55 L.Ed.2d 767 (1978).
In the case at bar, Blackwell’s complaint requested “$50,000 compensatory damages, treble and attorney’s fees”. Plaintiff did not pray for reinstatement. The $50,000 figure was read to the jury at the close of the charge; the jury found damages of that amount; which were thereupon awarded. By its motion for a new trial, Sun argued that no legal or evidentiary foundation was laid for such an award.
*1192The record of the hearing on the question of damages reveals clearly impermissible “bootstrapping” by the plaintiff and apparent unfamiliarity by the judge with the basic law that liquidated damages are to be calculated as an amount equal to the amount of actual lost earnings, thus having the effect of “doubling the amount of lost earnings”. Rogers v. Exxon Research & Engineering Corp., supra. In relevant part, the record reads as follows:
PLAINTIFF’S ATTORNEY HAYNES: Now, there is substantial evidence that my client did earn for six months next preceding the firing at least enough so that if you projected it for the nine months just before leading up to the date of trial it would have been a total of $10,083.00.
There was substantial evidence from men who knew the territory. And you will recall that the company expanded the territory for the young employee that they put in my man’s place.
And there was evidence he could have tripled and at least doubled his commissions had they expanded that territory for my client.
Now, if, in fact, you project his 11 months loss of commissions that he actually earned projected for the 11 months, and if you believe that he could have doubled those, then, that gets him well up to twenty-six-thousand — $26,166.00.
Now, he lost his pension rights of $6,000.00. There is substantial evidence in the record that he lost that. That gets him to $26,166.00. And therefore, either in lieu of reinstating him or by reason of the willfulness, that actual loss is doubled, that is $52,320.00. And it becomes apparent I didn’t sue for enough.
THE COURT: Where did you get the double part?
MR. HAYNES: Where there is a finding of willfulness there can, under the case law to compensate as liquidated damages the pecuniary loss can be doubled.
THE COURT: Who said that except Haynes?
MR. HAYNES: Oh, Your Honor, the cases construing this Age Discrimination Law have said that. And in certain instances additional equal amount in liquidated damages. That is the same as doubling.
(Emphasis added).
Essentially in this post-trial rationalization, plaintiff attempted to (1) compute the average monthly income of Blackwell for the six months prior to his termination and arrive at a “lost earnings” figure for the year between termination and trial of $10,-083; (2) calculate such actual lost earnings and then double that amount on plaintiff’s mere conjecture at trial that he could have so increased his volume in the new sales territory covered by his replacement; (3) thereafter increase the award by adding $6,000 in unvested pension funds and (4) conclude that the jury, without ever being so instructed, thereupon doubled that artfully accumulated figure to arrive at $50,-000.
This Court has long recognized that the purpose of a back pay award in employment matters is “to restore the employee to the status quo he would have enjoyed if the discriminatory discharge had not taken place”. NLRB v. McCann Steel Co., 570 F.2d 652, 656 (6th Cir.1978). Back pay must be limited to actual damages and proved with reasonable certainty. EEOC v. Detroit Edison Co., 515 F.2d 301, 314-316 (6th Cir.1975). Although the factfinder has the discretion to ascertain damages in cases where certain elements of damages are not susceptible of precise calculation, such discretion must be exercised “reasonably and within the range of proofs in the case”. Drayton v. Jiffee Chemical Corp., 591 F.2d 352, 366 (6th Cir.1978). The rule is that once the existence of damage is shown with reasonable certainty, difficulty in calculating the amount with mathematical precision will not defeat recovery. Perma Research and Development v. Singer Co., 542 F.2d 111 (2d Cir.), cert. denied, 429 U.S. 987, 97 S.Ct. 507, 50 L.Ed.2d 598 (1976).
In the case at bar, the jury received absolutely no instruction as to this rule. Fur*1193ther, the only evidence of a potential “doubling” in Blackwell’s income during the period between termination and trial was his own speculation about his sales ability in a new area. This is clearly contrary to a finding of “certain” damage. See Loubrido v. Hull Dobbs Company of Puerto Rico, Inc., 526 F.Supp. 1055 (D.P.R.1981); Buchholz v. Symons Manufacturing Co., 445 F.Supp. 706 (E.D.Wisc.1978). [Award of commissions in ADEA damages is permissible only when they can be predicted with reasonable certainty.]
Moreover, the jury was never charged that if it did specifically find a willful violation, it should thereupon double what it found to be the actual damages. The wider accepted practice would dictate that the jury should have only been instructed to enter a finding as to the factual issue of willfulness. The liquidated damages should thereafter be computed and assessed by the trial court. Mistretta v. Sandia Corp., 639 F.2d 588 (10th Cir.1980). This is analogous to the proper procedure in treble damage anti-trust actions.
Assuming arguendo that the jury instructions in the case at bar were not by themselves sufficient to warrant a reversal herein, the absence of basic instructions in the area of damages clearly resulted in an award which cannot be supported on review. Chiefly, the jury must know that each claimed element of back pay such as commissions, bonuses, etc. must be shown to exist with reasonable certainty before proceeding to consider the amounts thereof; and further, the jury should not be instructed or presumed to return more than an amount of actual damages.
For the reasons stated hereinabove, I respectfully dissent and would reverse the verdict and remand for a retrial.