Gary Community School Corp. v. Powell

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

John P. Reed Anna M. Hearn

Hammond, Indiana Thomas F. Macke

Valparaiso, Indiana

Gregory S. Reising

Gary, Indiana ATTORNEY FOR AMICUS CURIAE

NATIONAL EMPLOYMENT LAWYERS

ASSOCIATION

Tae Sture

Indianapolis, Indiana

______________________________________________________________________________

In the FILED

Indiana Supreme Court May 19 2009, 11:06 am

_________________________________ CLERK

of the supreme court,

court of appeals and

tax court

No. 45S03-0809-CV-482

GARY COMMUNITY SCHOOL CORPORATION,

Appellant/Cross-Appellee

(Defendant below),

v.

TOM POWELL,

Appellee/Cross-Appellant

(Plaintiff below).

_________________________________

Appeal from the Lake Superior Court, No. 45D10-0306-PL-58

The Honorable John R. Pera, Judge

The Honorable Thomas Webber, Sr., Judge Pro Tempore

_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 45A03-0701-CV-17

_________________________________

May 19, 2009

Boehm, Justice.

We hold that an employee filling multiple positions with the same employer is eligible

for leave under the federal Family and Medical Leave Act if that employee’s total service is

sufficient to qualify, even if service in either position alone does not qualify. We hold that a

―front pay‖ award for future lost wages should be discounted to its present value. We otherwise

affirm the judgment of the trial court.

Facts and Procedural History

Tom Powell has taught math at Lew Wallace High School in Gary since 1987. From

1987 to 1999, Powell served as an assistant football coach, and in 2000, he was promoted to head

football coach. Beginning in 1995, Powell also served as assistant basketball coach at Lew

Wallace. For the 2001–2002 school year, Powell was under contract as a math teacher, night

school teacher, and head football coach.

On July 31, 2001, the second day of football practice, Powell developed a blood clot in

his leg that required hospitalization. After three weeks of leave, he returned to work, but

reinjured his leg and required another four weeks of leave.

On October 1, Powell returned to his positions as math teacher and night school teacher,

but learned that the board of Gary Community School Corporation (―GCSC‖) had fired him from

his head football coaching position and replaced him with the assistant coach. Powell

complained to the Lew Wallace principal and also spoke with a reporter from the Gary Post-

Tribune. On October 13, the Post-Tribune published an article reporting that Powell had been

fired after taking medical leave with an injured leg. After the football season, Powell learned

that he would no longer be assistant basketball coach.

Powell applied for the head football coaching position in 2002 and 2003 and was rejected

both times. In June 2003, Powell brought this action alleging that GCSC violated the Family and

Medical Leave Act (―FMLA‖) by failing to restore him as coach for the 2001 season and by

retaliating against him for taking FMLA leave by rejecting him as head football coach in

subsequent years. Powell and GCSC both moved for summary judgment on several issues,

including whether Powell’s leave was covered by the FMLA. The trial court granted summary

judgment for Powell on this issue and concluded that GCSC had violated the FMLA by failing to

reinstate Powell as head football coach in 2001. Damages for failure to reinstate remained for

trial along with Powell’s separate claim that GCSC had retaliated for taking FMLA leave. The

trial resulted in an award of damages totaling $280,200.20 for the failure to reinstate and the

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retaliation claims. The trial court reduced the award to $188,919.29 and added prejudgment

interest of $18,274 and attorneys fees of $125,000.

The Court of Appeals reversed, concluding that Powell was not eligible for FMLA leave.

Gary Cmty. Sch. Corp. v. Powell, 881 N.E.2d 57, 58 (Ind. Ct. App. 2008), reh’g denied. We

granted transfer.

I. The Family and Medical Leave Act

The Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601–54 (2008), entitles

certain employees to twelve weeks of unpaid leave for the employee’s serious health condition,

the birth or adoption of a child, or the employee’s need to care for a seriously ill family member.

Id. § 2612. Following a qualified leave, an eligible employee is entitled to be restored to the

former position or one with equivalent benefits, pay, and conditions of employment. Id. §

2614(a)(1). The employee may sue in federal or state court for damages, equitable relief, and

fees if an employer interferes with the employee’s FMLA rights or retaliates for the exercise of

those rights. Id. §§ 2615, 2617.

GCSC contends that (1) Powell was not an eligible employee with respect to his head

football coaching position and (2) insufficient evidence supported the jury’s determination that

GCSC retaliated against Powell.

A. Powell’s FMLA Eligibility

Under the FMLA, an ―eligible employee‖ is entitled to be restored to ―the position of

employment held by the employee when the leave commenced‖ or ―an equivalent position.‖ 29

U.S.C. § 2614(a)(1). One of the requirements of an ―eligible employee‖ is employment by the

employer ―for at least 1,250 hours of service with such employer during the previous twelve-

month period.‖ Id. § 2611(2)(A). In the twelve months before his leave, Powell served more

than 1,250 hours in his capacity as a math teacher, but fewer than 1,250 hours as head football

coach. Powell asserts that his total hours of service to GCSC required his reinstatement in all

capacities. GCSC argues that Powell’s service as teacher and coach are to be viewed separately

for purposes of the FMLA, so Powell was entitled to reinstatement as a teacher, but not as a

coach.

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Whether an employee’s FMLA eligibility is determined by the employee’s entire service

to the employer or separately for each position is an issue of first impression. The trial court

concluded that Powell was an eligible employee for purposes of both his teaching and coaching

positions. The Court of Appeals reversed, holding that the issue is controlled by the parties’

treatment of the jobs as unified or separate. Gary Cmty. Sch. Corp. v. Powell, 881 N.E.2d 57, 58

(Ind. Ct. App. 2008). The Court of Appeals concluded that because the parties ―treated the jobs

as entirely separate and independent of one another,‖ they are separate for the purposes of FMLA

coverage. Id. Because this issue is a question of law, we review it de novo. For the reasons

explained below, we hold that an employee filling multiple positions with the same employer is

eligible for FMLA leave as to all positions if that employee has completed 1,250 total hours of

service to that employer in the twelve months preceding the request for leave.

Because this issue is purely an issue of statutory interpretation, we look first to the

language of the FMLA. The parties are the Gary Community School Corporation—an

―employer‖ subject to the FMLA—and Powell as an employee. An ―employee‖ is defined in the

FMLA simply as ―any individual employed by an employer.‖ 29 U.S.C. §§ 203(e)(1), 203(d),

2611(3). Employers are defined as ―any person engaged in commerce or in any industry or

activity affecting commerce who employs 50 or more employees for each working day during

each of 20 or more calendar workweeks in the current or preceding calendar year.‖ Id. §

2611(4)(A)(i). Only an ―eligible employee‖ may assert claims under the FMLA. The definition

of ―eligible employee‖ in § 2611(2) requires: (1) employment for at least 12 months by the

employer from whom leave was requested, id. § 2611(2)(A)(i), and (2) employment for at least

1,250 hours of service by that employer during the previous 12-month period, id. §

2611(2)(A)(ii). None of these definitions suggests that separate positions held by the employee

are relevant. Importantly, the test for eligibility is phrased in terms of ―hours of service‖ to an

―employer,‖ not service in any particular position. In short, the definitions are entity specific,

not job specific, and the service requirements for an eligible employee are in terms of overall

service, not service in any specific position.

Our conclusion that the 1,250-hour requirement applies to the employee’s overall service

to the employer is supported by the legislative history of the FMLA and applicable federal

regulations. Committee reports accompanying passage of the FMLA instruct that the ―minimum

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hours of service requirement is meant to be construed broadly.‖ H.R. Rep. No. 103-8(I), at 35

(1993); S. Rep. No. 103-3, at 25 (1993). The FMLA directs that regulations under the Fair Labor

Standards Act (―FLSA‖), 29 U.S.C. §§ 201–19 (2008), apply under the FMLA for determining

hours of service. § 2611(2)(C). Under the FLSA, to determine hours worked for purposes of

overtime compensation ―the employer must total all the hours worked by the employee for him

in that workweek (even though two or more unrelated job assignments may have been

performed) . . . .‖ 29 C.F.R. § 778.103 (2008). Similarly, FMLA regulations provide that the

determination of hours worked ―is not limited by methods of recordkeeping, or by compensation

agreements that do not accurately reflect all the hours an employee has worked for or been in

service to the employer. Any accurate accounting of actual hours worked under FLSA’s

principles may be used.‖ Id. § 825.110(c)(1); see also H.R. Rep. 103-8(I), at 35 (same); S. Rep.

No. 103-3, at 25 (same). Finally, the regulations provide that ―[n]ormally the legal entity which

employs the employee is the employer under FMLA. Applying this principle, a corporation is a

single employer rather than its separate establishments or divisions.‖ 29 C.F.R. § 825.104(c);

see also id. § 825.600 (describing the ―school board‖ as the employer for purposes of the 50-

employee test in its example). Thus, GCSC—the legal entity employing Powell—is the

employer under the FMLA, even though Powell had separate academic and athletic supervisors.

GCSC points to § 207 of the FLSA, incorporated by reference in the FMLA. The only

portion of § 207 arguably relevant to Powell’s relationship with GCSC is subsection (p)(2),

which provides

If an employee of a public agency which is a . . . political subdivision of a State

. . . undertakes, on an occasional or sporadic basis and solely at the employee’s

option, part-time employment for the public agency which is in a different

capacity from any capacity in which the employee is regularly employed with the

public agency, the hours such employee was employed in performing the different

employment shall be excluded by the public agency in the calculation of the hours

for which the employee is entitled to overtime compensation under this section.

Gary argues that Powell’s coaching position was such a position and should therefore be

excluded from the FMLA hours of service calculation. It seems a stretch to characterize a head

football coaching position as ―occasional or sporadic‖ or ―solely at the employee’s option.‖

Moreover, the regulation under section 207 specifically explains that ―any activity traditionally

associated with teaching (e.g., coaching, career counseling, etc.) will not be considered as

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employment in a different capacity.‖ 29 C.F.R. § 553.30(c)(5) (2008). We do not find

subsection (p)(2) applicable to Powell’s employment.

Finally, GCSC notes that it employed Powell under separate contracts and may have

issued separate paychecks for coach and teacher. In view of the statute and regulations already

described, we do not find these relevant.

B. The Retaliation Claim

Powell’s claim for ―retaliation‖ seeks damages resulting from GCSC’s actions against

Powell for ―opposing any practice made unlawful‖ by the FMLA. Powell claims that his

opposition to GCSC’s initial FMLA violation during the 2001 football season resulted in his

being denied employment as head football and assistant basketball coach for the seasons from

2002 to his anticipated retirement in 2014. At trial, the jury found that GCSC had retaliated

against Powell and awarded the full amount of damages sought by Powell.

On appeal, GCSC argues that there was insufficient evidence to support the jury’s

determination that GCSC had retaliated against Powell, particularly in light of GCSC’s asserted

proper reasons for not rehiring Powell. The Court of Appeals, finding the eligibility issue

dispositive, did not address the retaliation claim. When reviewing a claim of insufficient

evidence, we do not reweigh evidence or judge the credibility of witnesses. We affirm a verdict

when, considering the probative evidence and reasonable inferences, a reasonable jury could

have arrived at the same determination. Erie Ins. Co. v. Hickman, 622 N.E.2d 515, 521 (Ind.

1993). We conclude that Powell has presented sufficient evidence to support the jury’s

conclusion that GCSC retaliated against him for complaining about not being reinstated.

FMLA retaliation claims have been evaluated in federal circuit courts reviewing

summary judgments by applying the burden-shifting framework set out in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802–04 (1973). Phillips v. Mathews, 547 F.3d 905, 912 (8th Cir.

2008); Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 707 (6th Cir. 2008); Martin v. Brevard

County Pub. Sch., 543 F.3d 1261, 1268 (11th Cir. 2008); Yashenko v. Harrah’s NC Casino Co.,

LLC, 446 F.3d 541, 551 (4th Cir. 2006); Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 175 (2d

Cir. 2006). On appeal from a jury verdict, however, the McDonnell Douglas presumptions fade

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away, and the appellate court reviews ―whether the evidence is sufficient to support whatever

finding was made at trial.‖ E.g., Hite v. Vermeer Mfg. Co., 446 F.3d 858, 865 (8th Cir. 2008).

Although juries do not rigidly apply the McDonnell Douglas framework, it is a useful

tool for evaluating the sufficiency of Powell’s evidence. Under this framework, the employee

must first show that he engaged in activity protected by the FMLA, that the employer took

adverse action against him, and that the adverse action was causally connected to the plaintiff’s

protected activity. The burden then shifts to the employer to present evidence of a proper reason

for the adverse employment action. Finally, the burden returns to the employee to establish that

the employer’s proffered explanation is a pretext. McDonnell Douglas, 411 U.S. at 802–04.

1. Protected activity. Here, Powell argues that he engaged in protected activity—taking

FMLA leave and opposing GCSC’s FMLA violation by complaining to the newspaper. A

newspaper article published October 13, 2001, shortly after Powell’s termination as head football

coach, stated:

Imagine you have a job, one you like very much. But one day, on the job,

you get hurt. After going through proper channels to inform your employer of

your work status, you expect to return to that job when healthy.

Instead, when you return, you learn you have been terminated. Any

human resources director knows you can’t fire a productive employee because he

or she is sick.

But it happened to Thomas Powell II, Wallace’s coach . . . .

The newspaper reporter and Powell testified that Powell was the source of information for the

article. Similarly, a May 22, 2002 article, published when Powell had applied as head football

coach for the 2002 season, stated:

Powell missed most of the first six weeks of the [2001] season after he

developed a blood clot in his leg.

When he tried to return to the sidelines on October 1, Hoover told him that

he had been replaced.

GCSC disputes that Powell complained to the newspaper about an FMLA violation,

stressing that no article quoted him as saying he was fired for taking FMLA leave. Although

none of the newspaper articles explicitly refers to the FMLA, the jury could have reasonably

concluded from the articles that Powell complained to the newspaper about GCSC’s failure to

reinstate him after taking medical leave. We agree with Powell that his complaints to the

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newspaper were acts ―opposing‖ actions prohibited by the FMLA, and therefore were not a

permissible ground for retaliation.

2. Adverse employment action and causal connection. Powell experienced an adverse

employment action when he was subsequently not hired as head football and assistant basketball

coach. The timing of this action in relation to Powell’s complaints suggests a causal connection.

On May 22, 2002, a three-person committee consisting of Lew Wallace’s principal and athletic

director and a parent recommended Powell for head football coach for the 2002 season. The

same day, a newspaper article referring to Powell’s medical leave was published. On May 29,

the GCSC athletic director, who was not a member of the recommending committee, sent a

memorandum to the superintendant explaining why he would not recommend Powell. The

memorandum’s reasons included ―Thomas Powell created a number of problems for the players

and the coaching staff after he failed in his attempt to get his job back,‖ and ―He was in contact

with the news media and several articles were perpetrated with unfounded statements through

Thomas Powell.‖

3. Employer’s legitimate reasons. GCSC responds that it did not rehire Powell for

legitimate reasons unrelated to his FMLA leave or complaints to the press. First, GCSC alleges

that Powell failed to obtain a proper medical examination form from a football player who was

later injured and sued the school. Second, GCSC points to an incident in which Powell allegedly

gambled with a student over a one-on-one basketball game. Third, GCSC asserts that the coach

selected for the 2002 season, who had played in the Rose Bowl and was an All Big Ten football

player, was superior to Powell. Finally, GCSC argues that Powell had no expectation that he

would be hired as football coach for the 2002 season because all coaches in the school system

are terminated at the end of each season per school policy.

4. Pretext. Powell argues that GCSC’s proffered proper reasons are pretextual. Powell

notes that the medical form and gambling incidents occurred during 2000, before both the Lew

Wallace and GCSC athletic directors recommended Powell for the 2001 season. Powell also

points out that the GCSC athletic director omitted these incidents from his list of reasons for not

recommending Powell in 2002. Powell also argues that the coach hired for the 2002 season was

not more qualified because he was not a certified teacher, and certified teachers were to receive

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priority for coaching positions pursuant to GCSC’s Collective Bargaining Agreement. Finally,

regarding the school’s automatic termination policy, Powell presented evidence that the head

basketball coach did not reapply or interview for his position from 1995 until 2006, when he was

replaced.

Given the statements of GCSC’s athletic director, the temporal proximity of the

statements to the newspaper articles, and Powell’s rebuttal of GCSC’s proffered

nondiscriminatory reasons, the jury had sufficient evidence to find that Powell’s protected

actions were causally related to his not being rehired as head football coach.

II. Damages Issues

GCSC raises several challenges to the award of damages: these include (1) whether the

trial court erred in entering judgment on an erroneous verdict form, and (2) whether the amount

of damages was too high considering Powell’s efforts to mitigate damages, the propriety of front

pay, and the trial court’s failure to discount the front pay award to present value.

A. Verdict Form

GCSC argues that the trial court erred in entering judgment on an erroneous verdict form

and by failing to grant GCSC a new trial. The verdict form contained a series of questions to aid

the jury in arriving at its verdict. The trial court read the verdict form in full before submitting it

to the jury, and GCSC did not object. GCSC has waived any issue regarding the verdict form by

failing to object to the form at trial. See Fisher v. State, 810 N.E.2d 674, 677 (Ind. 2004) (―[T]he

law is settled that failure to object to a jury instruction given by the trial court waives the issue

for review . . . .‖).

B. Amount of Damages

The FMLA provides for damages to include lost wages, with ―interest at the prevailing

rate‖ plus ―liquidated damages‖ equal to the lost wages and interest. 29 U.S.C. § 2617 (2008).

The statute also provides for ―such equitable relief as may be appropriate, including

employment, reinstatement, and promotion.‖ Id. § 2617. Because ―front pay‖ is available, if at

all, as equitable relief, the amount of front pay is set by the court and is reviewed for abuse of

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discretion. Downey v. Strain, 510 F.3d 534, 544 (5th Cir. 2007); Whittington v. Nordam Group,

Inc., 429 F.3d 986, 1000 (10th Cir. 2005); Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 504

(4th Cir. 2001); see McBurney v. Stew Hansen’s Dodge City, Inc., 398 F.3d 998, 1002 (8th Cir.

2005). But see Arban v. West Publ’g. Corp., 345 F.3d 390, 406 (6th Cir. 2003) (―While the

determination of the precise amount of an award of front pay is a jury question, the initial

determination of the propriety of an award of front pay is a matter for the court.‖). Federal

courts have identified numerous factors that are relevant to a court’s award of front pay,

including length of prior employment, permanency of the position held, nature of the work, age

and physical condition of the employee, possible consolidation of jobs, work life expectancy,

availability of other work opportunities, the employee’s duty to mitigate, possible increases in

salary, and methods to discount any award to net present value. Downey, 510 F.3d at 544;

Whittington, 429 F.3d at 1000–01; Arban, 354 F.3d at 406. Federal courts have stressed that

front pay ―must avoid granting the plaintiff a windfall.‖ Whittington, 429 F.3d at 1001; see also

Nichols, 251 F.3d at 504 (award of front pay must be ―tempered by the potential for windfall to

the plaintiff‖).

The trial court submitted the front pay issue to the jury in an advisory capacity. The

jury awarded front pay in an amount equal to the amount Powell requested for eight additional

years as head football coach and assistant basketball coach, with three-percent annual increases

($91,280.91), and doubled that amount pursuant to the statute’s provision for ―liquidated

damages.‖ The trial court requested additional briefing on the front pay award, and both parties

submitted additional materials regarding the jury’s role and whether liquidated damages were

appropriate on a front pay award. The trial court entered judgment on September 27, 2006,

adopting the jury’s front pay recommendation but removing the liquidated damages portion,

resulting in a front pay award of $91,280.91. The total damages awarded for back pay and front

pay were $188,919.29.

GCSC appeals the trial court’s award of damages. GCSC first argues that Powell should

have been awarded no more than $5,174.93 in total damages because Powell failed to mitigate

his damages. GCSC next argues that given the award of back pay and prejudgment interest, the

trial court should not have awarded any front pay. Finally, GCSC argues that the trial court

abused its discretion by failing to discount the front pay award to present value.

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1. Mitigation of damages. GCSC argues that the trial court abused its discretion in

awarding front pay because Powell failed to mitigate his damages. At trial, Powell contended

that he mitigated his damages by applying for the head football position at Lew Wallace in 2002,

2003, 2004, and 2005, and at East Chicago Central High School in 2006. Powell also presented

evidence that obtaining a coaching position outside GCSC would be difficult because collective

bargaining agreements give priority to teachers within a school system. Although GCSC

contends that these efforts at mitigation were not sufficient, this is a matter for the trier of fact.

We cannot say as a matter of law these efforts were insufficient.

2. Propriety of front pay. GCSC argues that the award of front pay is improper because

it duplicates some or all of the award for liquidated damages and prejudgment interest. GCSC

cites Price v. Marshall Erdman & Associates, Inc., a case under the Age Discrimination in

Employment Act, which described liquidated damages as both punitive and compensatory. 966

F.2d 320, 326 (7th Cir. 1992). However, the Seventh Circuit concluded in Price that ―while

previous cases . . . suggest that the presence or absence of a liquidated damages award is material

in determining entitlement to front pay, we think it should play only a very small role in that

determination.‖ Id. Federal circuit courts have upheld awards of front pay in addition to

liquidated damages and prejudgment interest. E.g., Hite v. Vermeer Mfg. Co., 446 F.3d 858, 861

(8th Cir. 2008); Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960, 966 (10th Cir.

2002). The statute clearly permits all three, and GCSC has identified no demonstrable

duplication in the award. We therefore cannot say the trial court’s award is clearly erroneous.

3. Discounting front pay to present value. Following entry of the judgment, Powell

requested prejudgment interest and GCSC moved to discount the front pay award to its present

value. The trial court granted Powell’s motion but denied GCSC’s. Powell argues that GCSC

waived its claim to discount the front pay award by failing to raise the issue during trial, in its

supplemental briefing, or in its motion to correct errors. These issues were first presented when

the trial court awarded front pay. We do not find them waived when they were raised in post-

trial motions and the trial court addressed them.

In this case, Powell presented evidence that he would have continued to coach football

and basketball until 2014, and that his pay for those positions would have increased at three

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percent per year. Powell claimed total future lost wages of $91,280.91, and the trial court

awarded that amount. We cannot say the trial court abused its discretion in awarding front pay in

exercise of its equity jurisdiction, but front pay should be discounted to present value. Without

discounting, Powell would receive a windfall in the form of the use of the money years before it

would have been earned. See Downey, 510 F.3d at 544 (listing discounting any award to present

value as a consideration in awarding front pay); see also Whittington, 429 F.3d at 1001; Arban,

354 F.3d at 406; Nichols, 251 F.3d at 504.

GCSC points us to 28 U.S.C. 1961 (2008), which generally provides for the interest rate

―on any money judgment in a civil case recovered in a district court.‖ We do not believe this

statute applies here. It is a general provision for postjudgment interest on federal court

judgments and is not specific to the FMLA. There is no clear federal authority regarding the

discount rate applicable to an award of front pay under the FMLA. In the absence of federal

authority, we use the Indiana statutory rate of eight percent, which is the same annual rate the

trial court used to add prejudgment interest.

III. Attorney Fees

The FMLA provides that ―in addition to any judgment awarded to the plaintiff,‖ the court

―shall . . . allow a reasonable attorney’s fee, reasonable expert witness fees, and other costs of the

action to be paid by the defendant.‖ § 2617(a)(3). On cross-appeal, Powell claims three errors

involving attorney fees: (1) the trial court failed to enter findings of fact and conclusions of law

in its attorney fees award; (2) the trial court admitted an untimely expert affidavit; and (3) the

trial court reduced the attorney fees from the amount requested by Powell. For the reasons

explained below, we affirm the trial court’s attorney fees award.

A. Failure to Enter Findings of Fact and Conclusions of Law

Powell first claims that the trial court’s award of attorney fees is clearly erroneous

because the trial court failed to enter findings of fact and conclusions of law. Unlike Federal

Rule of Civil Procedure 52, Indiana Trial Rule 52 provides that, with certain exceptions, the trial

court need not make findings and conclusions. State procedures govern federal causes of action

tried in state courts. E.g., Missouri ex rel. St. Louis v. Taylor, 266 U.S. 200, 209 (U.S. 1924)

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(―The origin of the right does not affect the manner of administering the remedy. The grant of

concurrent jurisdiction implies that, in the first instance, the plaintiff shall have the choice of the

court.‖); Thompson v. Med. Licensing Bd., 180 Ind. App. 333, 348, 398 N.E.2d 679, 680 (1979)

(―[A] state court does not undergo a metamorphosis into a federal court merely because it must

decide a § 1983 suit. No matter what the nature of the action before an Indiana state court, it

remains a state court. . . . Our rules of trial procedure and evidence still apply. . . . If [plaintiff]

desired the benefit of federal procedures, he should have brought his suit in federal court.‖).

Powell does not identify any applicable exception to the Indiana rule that findings are not

required, so the trial court’s failure to enter findings and conclusions was not error.

B. Reduction of Attorney Fees Requested by Powell

Powell contends that the trial court abused its discretion in awarding attorney fees in an

amount less than what Powell requested. Powell requested $214,630.08 in fees and expenses,

including supplemental fees incurred post-trial. In support of this request, Powell submitted

itemized billing statements from his attorneys and their support staff, receipts for litigation

expenses, affidavits of his attorneys detailing their qualifications, and the affidavits of four

attorneys stating that the requested fees and hourly rates were reasonable. On the morning of the

fees hearing, GCSC submitted the affidavit of a local attorney apparently stating that the hourly

rates requested by Powell’s attorneys were too high. After considering the parties’ submissions,

the trial court awarded attorney fees of $125,000, an amount which Powell contends is too low.

The appropriate amount of attorney fees depends on a number of factors including the

skill and experience of the attorney, the extent of effort required, and the amounts in dispute.

Based on the limited record before us we cannot say the trial court’s resolution of this issue was

an abuse of discretion.

C. Admission of Expert Affidavit

Powell argues that the trial court abused its discretion in admitting the affidavit described

above on the morning of the attorney fees hearing. Powell notes that Indiana Trial Rule 6(D)

provides that ―opposing affidavits may be served not less than one [1] day before the hearing.‖

Powell omits the exception to this rule—―unless the court permits them to be served at some

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other time.‖ Ind. Trial Rule 6(D). Powell concedes that the trial court is authorized to permit the

affidavit to be served late, but argues that the delay was unfair surprise and prevented him from

conducting discovery and the affidavit. But Powell concedes that the trial court permitted him to

respond to the affidavit. We find no reversible error here.

Conclusion

This case is remanded for the trial court to discount the front pay award to present value.

The judgment of the trial court is otherwise affirmed.

Shepard, C.J., and Sullivan, Rucker, JJ., concur.

Dickson, J., dissents, believing that the Court of Appeals correctly decided the issues in

the case.

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