United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
Nos. 96-1456/1535
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Richard Newhouse, *
*
Cross-Appellant/Appellee, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
McCormick & Co., Inc., *
*
Appellant/Cross-Appellee. *
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Submitted: November 19, 1996
Filed: April 14, 1997
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Before FAGG and HANSEN, Circuit Judges, and MAGNUSON,1 District Judge.
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HANSEN, Circuit Judge.
Richard Newhouse brought this suit against McCormick & Co., Inc.,
alleging age discrimination in violation of the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1994), and in violation of the
Nebraska Act Prohibiting Unjust Discrimination in Employment Because of
Age, Neb. Rev. Stat. §§ 48-1001 through 48-1010 (Reissue 1993). A jury
decided the ADEA claim in favor of Newhouse, and the district court decided
the claim under the Nebraska Act, also concluding that McCormick
1
The Honorable Paul A. Magnuson, Chief Judge, United States
District Court for the District of Minnesota, sitting by
designation.
intentionally discriminated against Newhouse on account of his age.
McCormick appeals on several grounds, and Newhouse cross-appeals the
district court's refusal to provide him with an enhanced attorney fee
award. We affirm in part and reverse in part.
I. Background
We recite the facts in the light most favorable to the jury verdict
and the district court's findings. See Parrish v. Immanuel Medical Ctr.,
92 F.3d 727, 731 (8th Cir. 1996). On February 1, 1993, Richard Newhouse,
then 61 years old, interviewed with McCormick & Co., Inc., for a position
as a sales representative for McCormick's product line of Schilling spices,
a job he had held in the past. Despite Newhouse's excellent credentials
and spice sales experience, McCormick gave the job to a less-experienced
37-year- old man.
Newhouse had previously worked as a successful sales representative
for McCormick, selling its line of Schilling spices for approximately 23
years. In 1987, McCormick terminated Newhouse's employment when it
eliminated its direct sales force, electing instead to use a food broker
to sell Schilling spices. Newhouse then obtained a job with the food
broker, marketing McCormick products for the broker as he had done as a
McCormick employee. The sales representatives whom McCormick terminated
understood from representations of McCormick's vice president, Mr. Harris,
that if McCormick decided to use a direct sales force again, they would be
given first priority in the rehiring process.
Newhouse continued working for the food broker through 1992. While
working in this capacity, Newhouse dealt with several grocery stores that
purchased through a grocery wholesaler named Affiliated
2
Foods. In late 1992, Affiliated Foods agreed to carry McCormick spices,
but it required McCormick to deal with Affiliated through a direct sales
force rather than a food broker. Thus, McCormick once again needed a
direct sales force in Nebraska. McCormick created four sales positions.
The food broker for which Newhouse was working eliminated his
position in January 1993. Newhouse had heard about an opening with
McCormick and was very interested in returning to McCormick as a sales
representative. Newhouse contacted Dale DeWit, the zone manager at
McCormick who was in charge of hiring the new sales force, and expressed
his interest in obtaining one of the sales positions. DeWit initially told
Newhouse to contact him later because they were not yet ready to begin the
hiring process. Newhouse called DeWit several times after that, and
finally, DeWit agreed to interview him.
On January 15, 1993, DeWit interviewed Michael Soflin, a 37-year-old
man with grocery and food sales experience. On February 1, 1993, DeWit
interviewed Newhouse. Newhouse had sold McCormick's Schilling spices very
successfully for approximately 29 years. He had received the C. P.
McCormick award, which is the company's top sales award. Newhouse had
routinely ranked among the top sales representatives for his zone and
possessed a thorough knowledge of Schilling spices. DeWit assured Newhouse
that he would not be making a hiring decision for some time. He did not
tell Newhouse that he had obtained approval on January 29, 1993, to hire
Soflin, two days prior to Newhouse's scheduled interview. Furthermore,
DeWit hired Michael Soflin for the sales position the day after Newhouse's
interview.
Of the four available positions, one was filled by a current
McCormick employee, and DeWit interviewed applicants for the
3
remaining openings. The applicants did not apply for positions at certain
locations. DeWit decided which location to consider each applicant for,
and once compartmentalized as he saw fit, he did not consider them for the
other available locations. In each instance, DeWit passed over the oldest
applicants for the position, regardless of qualifications. When one 59-
year-old applicant inquired about the salary, DeWit responded, "normally,
I hire younger people and start them out at $17,000 a year." (Trial Tr.
at 542.) That applicant was not offered a job. DeWit also rejected
another older applicant, who had 30 years of experience selling Schilling
spices, as overqualified. Yet, DeWit initially told Newhouse that he was
not qualified for the position (though Newhouse had 29 years of sales
experience with McCormick spices).
McCormick offered various and changing reasons for not hiring
Newhouse. DeWit initially told Newhouse that he was not qualified, while
McCormick conceded at trial that Newhouse was qualified for the position,
and the record amply supports the fact. Later, McCormick sent a letter
explaining that Newhouse was not hired because Soflin had direct experience
with its new customer, Affiliated Foods, yet DeWit rejected a 59-year-old
applicant who was better known to Affiliated Foods than Soflin. In his
affidavit, DeWit said that Soflin was hired not so much for his experience
with Affiliated as for his ideas about expanding the business, while Soflin
testified at trial that during his interview he did not present any ideas
for expanding the business. DeWit also said that Soflin performed better
in the interview than Newhouse, but he used no objective scoring or ranking
devices, so no evidence was presented to corroborate this statement.
After learning that McCormick did not offer him a position, Newhouse
sought other full-time employment. He applied with various food brokerage
companies and sought help through the
4
Nebraska job service, but his search proved unsuccessful in securing full-
time employment. Newhouse did not want to retire, but because he was only
able to obtain part-time work, he applied for and began receiving social
security retirement benefits beginning in August 1994. He would not have
retired at that time had he been employed full-time by McCormick.
On April 19, 1994, Newhouse filed this suit alleging age
discrimination in violation of the ADEA, 29 U.S.C. §§ 621-634, and in
violation of the Nebraska Act Prohibiting Unjust Discrimination in
Employment Because of Age, Neb. Rev. Stat. §§ 48-1001 through 48-1010. He
requested and received a jury trial on the ADEA claim, and the Nebraska
claim was tried to the court. The jury found in favor of Newhouse and
awarded him $59,426.76 in back pay and $206,359 in front pay from the date
of the verdict until the date Newhouse normally would have retired. The
jury also found that McCormick's conduct was willful, and based on this
finding, the district court awarded an additional $59,426.76 in liquidated
damages. The district court also awarded Newhouse attorney fees in the
amount of $31,240.02, plus costs and interest on the judgment but denied
Newhouse's request for enhanced attorney fees and prejudgment interest.
On the Nebraska claim, the district court issued findings of fact and
concluded that McCormick had intentionally discriminated against Newhouse
on the basis of his age. The district court awarded back pay in the amount
of $59,426.76, front pay in the amount of $84,062, attorney fees in the
amount of $31,240.02, plus costs and interest on the judgment. The
judgment provided that Newhouse was entitled only to the greater of the
cumulative awards under either the ADEA claim or the state law claim, but
not to both.
5
Following the entry of the judgment, McCormick filed motions for
judgment as a matter of law, for a new trial, or alternatively, to alter
or amend the judgment in this case. The district court denied the post-
trial motions, except to conclude that it would grant a new trial as to
damages unless Newhouse agreed to a remittitur of the jury's front pay
award on the ADEA claim within ten days of the court's order. Newhouse
timely consented to reducing the jury's front pay award to $158,365.96, and
the district court denied McCormick's motion for a new trial.
McCormick appeals, arguing that the district court erred in the ADEA
claim by submitting the issue of front pay to the jury and by denying its
motions for judgment as a matter of law, for a new trial, and to alter or
amend the judgment. McCormick also argues that the district court erred
in its findings of fact, conclusions of law, and order of relief in the
Nebraska state claim. Newhouse cross appeals the district court's refusal
to grant him enhanced attorney fees.
II. Discussion
A. Judgment as a Matter of Law
McCormick moved for judgment as a matter of law at the close of
Newhouse's evidence, at the close of its own case, and at the end of the
case. In each instance, the district court denied the motion. "It is well
settled that we will not reverse a jury's verdict for insufficient evidence
unless, after viewing the evidence in the light most favorable to the
verdict, we conclude that no reasonable juror could have returned a verdict
for the non-moving party." Ryther v. KARE 11, No. 94-3622, slip op. at 5
(8th Cir. Mar. 6, 1997) (en banc).
6
Our standard for reviewing the sufficiency of proof in an age
discrimination case tried to verdict by a jury is set forth in Ryther. See
id., slip op. at 5-10, 33-35. The fundamental issue is "whether [the
plaintiff] produced sufficient evidence to allow a jury reasonably to find
that [the employer] intentionally discriminated against him on the basis
of his age." Id., slip op. at 10-11. McCormick contends that Newhouse
failed to establish that its articulated reasons for not hiring him were
a pretext for discrimination. While McCormick offered several
nondiscriminatory reasons for not hiring Newhouse, our review of the
evidence reveals sufficient evidence presented by Newhouse from which a
reasonable jury could conclude that those reasons were not credible and
were in fact a pretext for age discrimination.
DeWit initially said that Newhouse was not qualified, but there is
no question that he was qualified for the job, and McCormick even admitted
this at trial. A letter from McCormick dated May 12, 1993, states that
Soflin was hired instead of Newhouse because of Soflin's experience with
Affiliated Foods, a new customer. In an affidavit, DeWit stated that
Soflin's relationship with Affiliated Foods was not the primary reason he
selected Soflin; instead it was Soflin's "concepts for expanding
McCormick's position in the spice industry." (Appellant's App. at 161.)
At trial, however, Soflin testified that he did not present any ideas for
improving the spice business during the interview but presented his ideas
after their first spring food show, about four months after he had been
hired. Additionally, though McCormick advanced Soflin's experience with
Affiliated Foods as an important factor, DeWit bypassed another older
applicant who had a stronger relationship with Affiliated Foods than
Soflin. DeWit cited Soflin's enthusiasm and desire to work for McCormick
as important, yet the record also reveals great enthusiasm and desire on
the part of Newhouse, who had much more sales experience with the product
7
and had a great deal of success while working for McCormick in the past.
Because McCormick's "nondiscriminatory reasons" for not hiring Newhouse
were various and always changing, McCormick's motive becomes suspect. See
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993) ("The factfinder's
disbelief of the reasons put forward by the defendant (particularly if
disbelief is accompanied by a suspicion of mendacity) may, together with
the elements of the prima facie case, suffice to show intentional
discrimination.") Viewing this together with the other evidence in the
record demonstrating that DeWit consistently hired younger applicants
instead of the older ones, even when the older applicants were much better
qualified for the position (including his own statement that he normally
hires younger people), a reasonable jury could conclude that the real
reason Newhouse was not hired was his age. Having carefully considered the
entire record in this case, we conclude that the evidence was sufficient
for a reasonable jury to conclude that McCormick intentionally
discriminated against Newhouse on the basis of his age.
McCormick argues that there was insufficient evidence from which a
jury could conclude that it willfully violated the ADEA. "Under § 7(b) of
the ADEA, 29 U.S.C. § 626(b), a `willful' violation gives rise to
liquidated damages." Hazen Paper Co. v. Biggins, 507 U.S. 604, 606 (1993).
Liquidated damages amount to a punitive double recovery, "intended to deter
willful conduct." Wiehoff v. GTE Directories Corp., 61 F.3d 588, 593 (8th
Cir. 1995). An ADEA violation is "`willful' if the employer knew or showed
reckless disregard for the matter of whether its conduct was prohibited by
the ADEA." Hazen Paper Co., 507 U.S. at 614 (quoting Trans World Airlines,
Inc. v. Thurston, 469 U.S. 111, 126 (1985)). In determining whether a
violation is willful, "[t]he question is not whether the evidence used to
establish willfulness is different from and additional to the evidence used
to establish a violation
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of the ADEA, but whether the evidence -- additional or otherwise --
satisfies the distinct standard used for establishing willfulness." Brown
v. Stites Concrete, Inc., 994 F.2d 553, 560 (8th Cir. 1993) (en banc).
Considering the evidence in the light most favorable to Newhouse and
giving him the benefit of all favorable inferences, Parrish, 92 F.3d at
736, the evidence shows that DeWit knew of the ADEA, yet he disregarded it
and rejected Newhouse on the basis of his age. Age was not a "bona fide
occupational qualification" in this case, Hazen Paper Co., 507 U.S. at 616,
and the decision not to hire Newhouse was not "based on reasonable factors
other than age." 29 U.S.C. § 623(f)(1) (1994). A reasonable jury could
have concluded that DeWit only agreed to interview Newhouse to give the
appearance that he was complying with the ADEA, though he had already
decided to hire Soflin. This is not a case where the person making the
hiring decision incorrectly but in good faith believed that the statute
permitted an age-based decision. See Hazen Paper Co., 507 U.S. at 616.
The jury's determination that McCormick willfully violated the ADEA is
supported by the record.
McCormick also contends that Newhouse's failure to mitigate his
damages by not actively seeking full-time employment after he began
receiving social security benefits should reduce the back pay award and cut
off his right to front pay as a matter of law. A successful ADEA plaintiff
must show that he or she attempted to mitigate damages or face a reduction
in the damage award. Parrish,
92 F.3d at 735. This duty to mitigate requires a plaintiff to use
reasonable diligence in finding other suitable employment and not to refuse
a job that is substantially equivalent to the one at issue. Id. (citing
Ford Motor Co. v. EEOC, 458 U.S. 219, 231-32 (1982)). Our review of the
record convinces us that Newhouse did use reasonable diligence in seeking
suitable full-time employment.
9
He applied to various food brokerage companies looking for comparable work
and sought the help of the Nebraska job service. He accepted the only job
offered to him, which happened to be part-time work. Later, he attempted
to supplement this income with social security retirement benefits.
Thereafter, he applied for only one other job, but he testified that there
were no openings available in his field. Newhouse also testified that he
would have given up his social security benefits had he been offered a
full-time position. The burden to mitigate damages "is not onerous and
does not requires success." Brooks v. Woodline Motor Freight, Inc., 852
F.2d 1061, 1065 (8th Cir. 1988). "All that is required by law is an
honest, good faith effort." Id. We are satisfied that Newhouse's efforts
were reasonable and that he made a good faith, albeit unsuccessful, effort
to secure full-time employment. Thus, the district court did not err in
refusing to grant judgment as a matter of law on this issue.
For the same reasons as set forth above, we also conclude that the
district court did not abuse its discretion by refusing to grant a new
trial or to alter or amend the judgment. The jury was free to believe
Newhouse instead of DeWit on material factual issues, and the verdict is
not against the great weight of the evidence.
B. Front Pay
McCormick argues that the district court abused its discretion by
choosing front pay in lieu of reinstatement as the appropriate form of
equitable relief and by submitting the issue of front pay to the jury.
"Front pay is an equitable remedy, which the district court in its
discretion may award under the ADEA to make the injured party whole."
Smith v. World Ins. Co., 38 F.3d 1456, 1466
10
(8th Cir. 1994). Front pay consists of monetary damages that may be
awarded in lieu of reinstatement in situations where reinstatement is
"impracticable or impossible." Philipp v. ANR Freight Sys., Inc., 61 F.3d
669, 674 (8th Cir. 1995). In making a front pay award, the district court
is not free to reject or contradict findings by the jury on issues that
were properly submitted to the jury, but the district court "retains its
discretion to consider all the circumstances in th[e] case when it
determines what equitable relief may be appropriate." Gibson v. Mohawk
Rubber Co., 695 F.2d 1093, 1101 (8th Cir. 1982).
McCormick first argues that the district court erred because
reinstatement is the preferred remedy absent some evidence of hostility,
and the tension caused by the litigation process alone does not make
reinstatement impracticable or impossible in this case. See Brooks, 852
F.2d at 1065. We review only for an abuse of discretion. Philipp, 61 F.3d
at 674. The district court rejected reinstatement, finding that the suit
had strained the relationship between Newhouse and McCormick, and in
particular, Mr. DeWit, who would have been Newhouse's zone manager.
(Appellant's Addend. at 11.) The district court stated that Newhouse's
testimony to the effect that he did not think he could go back to work for
McCormick was "not probably inaccurate, listening to both Mr. Soflin and
Mr. Newhouse." (Trial Tr. at 685-86, as amended by the district court,
Appellee's App. at 4.) DeWit was the McCormick representative who
reluctantly interviewed Newhouse, made the willful discriminatory decision
not to hire Newhouse, and told Newhouse that he was not qualified for the
job. This evidence supports the district court's conclusion that
reinstatement is not appropriate. Additionally, by the time of trial,
Newhouse was receiving social security retirement benefits due to his
inability to secure full-time employment, rendering reinstatement
impractical. See Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424 (4th
11
Cir.) ("If a plaintiff is close to retirement, front pay may be the only
practical approach."), cert. denied, 502 U.S. 963 (1991). Viewing the
record in this case as a whole, the district court did not abuse its
discretion by ordering front pay in lieu of reinstatement.
Newhouse asked the court to submit the front pay issue to the jury,
and McCormick objected, arguing that front pay is an equitable matter to
be determined by the court. The district court concluded that the issue
of "whether or not the facts support a front pay award is no different in
principle than many other damage questions that we present to jurors in an
employment context or outside of an employment context, and for that
matter, it seems to me in this case entirely appropriate to submit it to
the jury . . . " (Trial Tr. at 686.) Thus, the district court submitted
to the jury the decision of what amount of front pay should be awarded.
Acknowledging some uncertainty about the proper procedure, however, the
district court also made a corollary finding that, had the court determined
the front pay issue for the ADEA claim, the court would have awarded front
pay reduced to the present value of $84,062.
The choice between the two equitable remedies of reinstatement and
front pay clearly belongs to the court. See Doyne v. Union Elec. Co., 953
F.2d 447, 450 (8th Cir. 1992). Once front pay is chosen, whether the
district court must determine the amount or whether the court may submit
that determination to the jury is still an open question in this circuit.
We have stated, "Although the calculation of a front-pay award necessarily
involves some uncertainty, it is a matter of equitable relief which we
leave to the sound discretion of the District Court." MacDissi v. Valmont
Indus., Inc., 856 F.2d 1054, 1060 (8th Cir. 1988). Yet we have not
directly decided whether the district court's discretion includes
12
the authority to submit the determination of the amount of front pay to the
jury. See Doyne, 953 F.2d at 451 (stating, "This circuit has not addressed
this issue, and it is not necessary to reach it in this case . . . .").
In Doyne, we reversed a magistrate judge's decision to reduce the amount
of front pay awarded by a jury, but we expressly refused to decide whether
a trial court is permitted to submit the front pay issue to the jury in the
first instance. Id. We now have the opportunity to address this issue
squarely.
Our sister circuits have expressed differing opinions on the question
of whether a jury can determine the amount of front pay. The Third, Fifth,
Sixth, and Ninth Circuits have held that while the district court must
initially determine whether a plaintiff is entitled to front pay in lieu
of reinstatement, the jury determines the amount of front pay damages. See
Hansard v. Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461, 1470 (5th Cir.),
cert. denied, 493 U.S. 842 (1989); Fite v. First Tennessee Prod. Credit
Ass'n, 861 F.2d 884, 893 (6th Cir. 1988); Cassino v. Reichhold Chem., Inc.,
817 F.2d 1338, 1347 (9th Cir. 1987), cert. denied, 484 U.S. 1047 (1988);
Maxfield v. Sinclair Int'l, 766 F.2d 788, 796 (3d Cir. 1985), cert. denied,
474 U.S. 1057 (1986). These courts have adopted this view without any
analysis, merely reciting the one statement of dicta from Maxfield in which
the Third Circuit, without citation to any authority, stated that "the
amount of damages available as front pay is a jury question." 766 F.2d at
796.
To the contrary, the Second, Fourth, Seventh, and Tenth Circuits hold
that both the determination of whether front pay is appropriate and the
determination of how much front pay to award are questions for the district
court's equitable discretion, and thus, the issue of the amount of front
pay should not be submitted
13
to the jury. See Fortino v. Quasar Co., 950 F.2d 389, 398 (7th Cir. 1991);
Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1426 (10th Cir. 1991); Duke
v. Uniroyal, Inc., 928 F.2d 1413, 1424 (4th Cir.), cert. denied, 502 U.S.
963 (1991); Dominic v. Consol. Edison Co. of New York, Inc., 822 F.2d 1249,
1257 (2d Cir. 1987). We agree with this rule and find that the Second
Circuit's Dominic case best enunciates the rationale.
In Dominic, the Second Circuit set forth a thorough and well-reasoned
discussion, concluding that the amount of front pay must be determined by
the court. 822 F.2d at 1257-58. The court concluded that the language,
structure, and history of 29 U.S.C. § 626 all indicate Congress's intention
"to limit jury trials to factual issues underlying claims for legal
relief." Id. at 1257 (emphasis added). Additionally, the court reasoned
as follows:
There is much overlap between the facts relevant to whether an
award of front pay is appropriate and those relevant to the
size of the award. For example, both questions turn in part on
the ease with which the employee will be able to find other
employment. To divide the fact-finding responsibilities in
such circumstances would be anomalous and would risk
inconsistent decisions. . . . [For example,] a judge might
find front pay appropriate, but the jury might award only a
nominal sum based on its belief that the employee could secure
immediate employment.
Id.
We agree with the Second Circuit's cogent analysis and now expressly
hold that front pay, including the determination of how much front pay to
award, is an equitable issue for the court. The district court erred in
this case by submitting the front pay determination to the jury.
Nevertheless, we need not remand on this issue because the district court
made a corollary finding that
14
had it not submitted the issue to the jury, the court would have awarded
Newhouse front pay reduced to the present value of $84,062 on the ADEA
claim. McCormick does not challenge this factual finding. Thus, Newhouse
is entitled to $84,062 in front pay, as determined by the district court.
McCormick also argues that the receipt of liquidated damages cuts off
Newhouse's entitlement to front pay as a matter of law. We disagree. As
previously noted, liquidated damages are punitive in nature under the ADEA.
Thurston, 469 U.S. at 125. Front pay, on the other hand, is equitable
relief that may be obtained in lieu of reinstatement. The jury's finding
of willfulness and the resulting award of liquidated damages simply does
not affect the district court's determination of appropriate equitable
relief.
C. Nebraska State Law Claim
McCormick argues that the district court erred in several respects
in its findings of fact, conclusions of law, and order of relief on the
state law claim. The Nebraska state courts interpret the Nebraska Act
Prohibiting Unjust Discrimination in Employment Because of Age as requiring
the same proof of age discrimination as we require under the ADEA. See
Allen v. AT&T Technologies, Inc., 423 N.W.2d 424, 431 (Neb. 1988) (noting
that "[a]gain, we follow the lead of the federal courts" in evaluating an
age discrimination claim). Our review of the record indicates that the
district court's findings of fact and conclusions of law are not clearly
erroneous. Although differing inferences could have arisen from the
evidence presented, the district court as fact finder was free to make its
own findings, and those findings have support in the record.
15
Finally, McCormick contends that the district court erred by awarding
attorney's fees under the state law claim. The Nebraska Act does not
explicitly provide for an award of attorney's fees but gives the court
jurisdiction to grant legal or equitable relief as the court may deem
appropriate to effectuate the purposes of the Act. Neb. Rev. Stat. § 48-
1009. We need not decide whether Nebraska law allows an award of
attorney's fees in an age discrimination case, because this issue of state
law is not material to the outcome of this case. The judgment of the
district court provides that the plaintiff is entitled to the total of all
amounts awarded under either the state law claim or the ADEA claim,
whichever is greater -- but not both. The total judgment under the ADEA
claim is greater than the total judgment under the state law claim, even
if attorney's fees were properly included under Nebraska law, an issue we
do not decide. Thus, Newhouse is entitled only to the amounts awarded
under the ADEA claim.
D. Enhanced Attorney's Fees
Newhouse claims in his cross appeal that the district court abused
its discretion by not awarding him an enhanced contingency fee. Newhouse
asserts that an enhanced contingency fee award is necessary due to the
difficulty plaintiffs encounter when trying to obtain counsel for
employment discrimination cases where the Nebraska Employment Opportunity
Commission makes a finding of no cause. In support of his argument,
Newhouse relies on our opinion in Morris v. American Nat'l Can Corp., 952
F.2d 200, 204 (8th Cir. 1991), rev’d, 988 F.2d 50 (1993). We reject this
argument as meritless.
The Supreme Court has held that an enhancement above the lodestar fee
for contingency is not permitted. City of Burlington
16
v. Dague, 505 U.S. 557, 567 (1992) (specifically referring to the
attorney's fee provision of the Solid Waste Disposal Act, 42 U.S.C.
§ 6972(e)); id. at 561-62 (including within its discussion the similar
language of other federal fee-shifting statutes); Hukkanen v. Int'l Union
of Operating Eng'rs, 3 F.3d 281, 287 (8th Cir. 1993) (noting the Supreme
Court held in Dague that "the federal fee shifting statutes do not allow
enhancement of a fee award beyond the lodestar amount to reflect that a
party's attorneys were retained on a contingency basis"). Our opinion in
Morris, on which Newhouse relies, has been reversed by this court in
response to the Supreme Court's opinion in Dague. We conclude that the
holding of Dague applies with full force to the ADEA fee shifting statute,
see 29 U.S.C. §§ 626(b) & 216(b), thus prohibiting a fee enhancement beyond
the lodestar amount on the basis of a contingency arrangement. Therefore,
the district court did not abuse its discretion by denying an enhanced
contingency fee award in this case.
III. Conclusion
We reverse the district court's decision to submit the front pay
award to the jury, and remand for entry of judgment on the district court's
corollary front pay finding, awarding $84,062 in front pay on the ADEA
claim. In all other respects, we affirm the judgment of the district
court. We grant McCormick's motion to strike a portion of Newhouse's
cross-appeal reply brief for its failure to conform to Fed. R. App. P.
28(c).
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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