United States Court of Appeals,
Fifth Circuit.
No. 94-40821.
Jim WEAVER, Plaintiff-Appellee,
v.
AMOCO PRODUCTION COMPANY, Defendant-Appellant.
Oct. 10, 1995.
Appeal from the United States District Court for the Eastern District of Texas.
Before JOLLY and BENAVIDES, Circuit Judges, and FITZWATER,* District Judge.
BENAVIDES, Circuit Judge:
Defendant-Appellant Amoco Production Company ("Amoco") appeals the district court's final
judgment after a jury verdict finding Amoco discriminated against Plaintiff-Appellee Jim Weaver
("Weaver") on the basis of age in willful violation of the Age Discrimination in Employment Act
("ADEA"), 29 U.S.C. § 621, et seq., thereby entitling Weaver to liquidated damages in accordance
with 29 U.S.C. § 626(b). Amoco also appeals the court's denial of its motion for new trial We affirm
the judgment with respect to Weaver's claims, except for Weaver's claim for front pay, which we
remand for further review by the district court. Additionally, attorneys' fees for services rendered on
appeal are awarded to Weaver.
FACTS AND PROCEDURAL HISTORY
Weaver was hired by Amoco in 1968. He was fifty-six years old at the time of his termination
on October 1, 1992. During the last sixteen years of his employment, Weaver held the position of
Field Foreman at Amoco's Woodlawn Field office.
In 1992, Amoco decided to reorganize its Southeast Business Unit ("SBU"), determining that
several positions would have to be eliminated as a result of the reorganization. In total, thirty
positions were eliminated from the SBU, including eight supervisors. Three of the eight were
reassigned to other positions within Amoco, while the remaining supervisors, including Weaver, were
*
District Judge of the Northern District of Texas, sitting by designation.
terminated. Some of the employees terminated were older than Weaver, and some younger.
On January 29, 1993, Weaver filed suit in district court alleging that Amoco discriminated
against him in violation of the ADEA and that Amoco's conduct was willful.1 During trial before a
jury, Weaver introduced a taped conversation he had with his supervisor, Phil Henigan ("Henigan"),
in which Weaver was informed of his dismissal. Weaver also introduced a transcript of an enhanced
version of the tape that contained the following exchange between Weaver and Henigan:
WEAVER: "Well, I know they are looking at the future."
HENIGAN: "And—and that's, you know, that's a big part of it, that"
WEAVER: "And a guy who is my age doesn't have much future left."
HENIGAN: "Yeah, that's a hell of a note to have to ... have that stuck in your face, but I
guess in full assessment you're right. That's a—thing of it is it's ... Uh, it will be a
cold—a cold reality you know when I say this. We think it's—we think it is time. If
I were in your position and—we have got other people who are, who are going to be
faced with the same thing."
WEAVER: "What kind of options are we talking about? And how long is it going to affect
me and affect what we are looking at?"
HENIGAN: "You'll have to—you'll have to retire."
The jury returned a verdict in favor of Weaver. In answering the interrogatories submitted
by the court, the jury found that Amoco discriminated against Weaver on the basis of his age. The
jury awarded Weaver $105,000 in back pay and $280,000 in front pay. In addition, the jury found
that Amoco's discrimination was willful.
On July 19, 1994, the district court entered an order finding that reinstatement was not
feasible, awarding Weaver front pay. The Court also found, with regard to the issue of liquidated
damages, that the jury's finding that Amoco willfully violated the ADEA was supported by the
evidence. On August 1, 1994, the district court entered final judgment in favor of Weaver, awarding
him $105,000 in back pay, $280,000 in front pay, $105,000 in liquidated damages, $52,862.50 in
attorneys' fees, $3,569.90 in costs and postjudgment interest at the rate of 5.31%.
After considering each party's post-judgment motions, the district court denied Amoco's
1
Weaver also alleged that Amoco intentionally inflicted emotional distress, but that claim was
later abandoned.
motion for judgment, motion to alter or amend judgment, or in the alternative, motion for new trial.
Amoco appeals the district court's final judgment and denial of Amoco's post-judgment motion.
EVIDENCE OF AGE DISCRIMINATION
Amoco asserts that the only "evidence" of age discrimination presented by Weaver was the
recorded conversation and transcript between Weaver and Henigan. Amoco argues that at no point
in the conversation did Henigan indicate to Weaver that his age was relevant to his termination, but
that Weaver "manipulated" the conversation by making a transcript that is not corroborated by the
tape itself.2 Amoco argues that Weaver has failed to make a prima facie case of discrimination, that
his only offering of proof of discrimination is his subject ive belief that he was the victim of age
discrimination and that such proof is insufficient to establish that age discrimination occurred.
On appeal of a jury's verdict of age discrimination, we need not address the sufficiency of
Weaver's prima facie case, but proceed to determine whether there was sufficient evidence upon
which a jury could find that discrimination occurred. Walther v. Lone Star Gas Co., 952 F.2d 119,
122-23 (5th Cir.1992). Our review of the record reveals sufficient evidence in support of the jury's
finding that Amoco discriminated against Weaver on the basis of age. The transcript of the tape and
Weaver's testimony with respect to the taped conversation between Weaver and Henigan reflects not
mere subjective belief on Weaver's part, but specific evidence that would allow a reasonable jury to
conclude that Amoco considered age in its determination to force Weaver to retire from the company.
EVIDENCE OF WILLFUL DISCRIMINATION
Amoco contends that the district court abused its discretion in awarding liquidated damages
because Weaver failed to produce any evidence that Amoco willfully violated the ADEA. Amoco
argues that the record only demonstrates that Amoco made a good faith attempt to make a very
difficult business decision with no regard to age of any affected employee. In addition, there is no
evidence in the record tending to show an adversarial relationship between the parties. Finally,
Amoco argues that not one witness t estified that age "even remotely" entered into the decision to
2
While Amoco asserts that it objected to the admission of the tape and transcript at trial,
Amoco raises no argument on appeal with regard to the admissibility of the tape or the transcript.
terminate Weaver, let alone that Amoco egregiously violated Weaver's rights.
An award of liquidated damages is reviewed for an abuse of discretion. Hendrick v.
Hercules, Inc., 658 F.2d 1088, 1095-96 (5th Cir.1981). Our review of the record reveals evidence
that Amoco acted in willful violation of the ADEA. The taped conversation between Weaver and
Henigan not only supports the jury's finding of discrimination, but that Amoco knowingly decided to
force retirement on Weaver based on his age and its effect on the future of the company.3 Therefore,
we find t hat the district court did not abuse its discretion in concluding that the jury's finding of a
willful violation of the ADEA was supported by the evidence and that Amoco's contention that it
acted in good faith was not.
MOTION FOR NEW TRIAL
Amoco again contends that because the jury was presented with virtually no evidence that
Amoco unlawfully discriminated against Weaver because of his age, or that Amoco willfully violated
the ADEA, the jury's verdict "is obviously against the great weight of evidence in this case and
Amoco is entitled to a new trial." Our review of the district court's order is for an abuse of discretion,
giving greater deference to the court when the motion is denied leaving the jury's determinations
undisturbed. Dawson v. Wal-Mart Stores, Inc., 978 F.2d 205, 208 (5th Cir.1992). Having already
found sufficient evidence in support of the jury's verdict, we also find that the district court did not
abuse its discretion in denying Amoco's motion for new trial.
FEASIBILITY OF REINSTATEMENT
Amoco contends that the evidence in the record establishes that Weaver's reinstatement was
more than feasible in this case, and therefore, the district court abused its discretion in finding that
reinstatement was not feasible and in awarding front pay. Amoco criticizes the court's failure to
articulate the basis of its conclusion that reinstatement is not feasible, but cites to no authority that
requires courts to articulate their findings with regard to determining the feasibility of reinstatement.
3
See e.g., Ray v. Iuka Special Mun. Separate School Dist., 51 F.3d 1246, 1251-52 (5th
Cir.1995) (noting Supreme Court's rejection of requirement of proof of egregious conduct to
prove willfulness in Hazen Paper Co. v. Biggins, --- U.S. ----, 113 S.Ct. 1701, 123 L.Ed.2d 338
(1993)).
Amoco argues that the only evidence presented by Weaver was that he did not desire reinstatement.
Finally, Amoco argues that even if front pay is appro priate, the district court's award was clearly
excessive because the court failed to articulate a rational basis and calculation for the award.4
This Circuit continues to recognize the decided preference to award reinstatement instead
of front pay for a discriminatory discharge in violation of the ADEA. Deloach v. Delchamps, Inc.,
897 F.2d 815, 822 (5th Cir.1990). However, if reinstatement is not feasible, front pay is the
appropriate award. Id. "The selection between reinstatement and front pay is discretionary with the
trial court so long as the relief granted is consistent with the purposes of the ADEA." Brunnemann
v. Terra Intern., Inc., 975 F.2d 175, 180 (5th Cir.1992) (citing Goldstein v. Manhattan Industries,
Inc., 758 F.2d 1435, 1448-49 (11th Cir.), cert. denied, 474 U.S. 1005, 106 S.Ct. 625, 88 L.Ed.2d
457 (1985)). On appeal, we look to the record to determine why the district court considered
reinstatement infeasible. Walther, 952 F.2d at 127.
In this case, we find that the record do es not indicate why the district court considered
reinstatement infeasible, nor does it contain a basis for the award of front pay. The court's only
statement on the issue of reinstatement versus front pay was made in an order issued in response to
Weaver's motion for additional damages, attorneys' fees and costs:
At the conclusion of the trial in this case the Court was of the opinion that reinstatement was
not feasible and submitted a jury question on the amount of front pay to be awarded in lieu
of reinstatement. After carefully considering the parties post-trial briefs, the Court remains
of the opinion that reinstatement is not feasible. In addition, the Court is of the opinion that
the amount of front pay awarded by the jury was fair and appropriate....
The court did not articulate the basis for its conclusion that reinstatement was not feasible, nor did
the court respond to Amoco's offer of reinstatement.5 Furthermore, in Walther, we agreed "with the
Seventh and First Circuits that a substantial liquidated damage award may indicate that an additional
4
Amoco additionally argues that the offer of reinstatement given to Weaver after the verdict
renders moot his award of front pay. This argument is without merit, and we note that the only
authority relied on by Amoco does not support its argument.
5
We note that Amoco's offer to reinstate Weaver was not made until after the district court
initially found that reinstatement was not feasible and submitted the front pay issue to the jury.
The district court was apparently first made aware of the offer through Amoco's motion for new
trial.
award of front pay is inappropriate or excessive." Id. (additional citations omitted). The court in the
instant case did not indicate whether it considered this factor in ratifying the jury's award of front pay
in addition to a substantial amount of liquidated damages. In light of our holding in Walther, we find
it appropriate to vacate the award of front pay in this case and remand to the district court for a more
thorough review of this issue, and for articulated findings by the district court.
ATTORNEY'S FEES ON APPEAL
Weaver seeks an award of $5,000 in attorneys' fees for services rendered on appeal. It is
within our discretion to award attorneys' fees for the appeal of an ADEA case. Hendrick v. Hercules,
Inc., 658 F.2d 1088, 1097-98 (5th Cir.1981). We conclude that an award of $5,000 in attorneys' fees
for services rendered on appeal is reasonable in light of the expertise and experience of Weaver's
attorney, the time and labor involved and the results obtained. Accordingly, we award $5,000 in
attorneys' fees for services rendered in connection with this appeal.
CONCLUSION
The judgment entered upon the jury verdict is AFFIRMED, except the award of front pay is
VACATED, and the claim for recovery of front pay is REMANDED for further proceedings.
Attorneys' fees are awarded to Weaver in the amount of $5,000 for services rendered on appeal.