Opposition Brief — Hajoca Corp. v. Herold

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No. 88-1697 | JOSEPH F. SPANIOL, JR

64S. ie

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In The

Supreme Court of the United States

October Term, 1989

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HAJOCA CORPORATION,

Petitioner,

~ WARREN G. HEROLD,

Respondent.

>

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

*

EDWARD B. Lowry

(Counsel of Record)

Rosert W. JACKSON

for Micuiz, HAMLETT, Lowry,

RASMUSSEN & TWEEL, P.C

500 Court Square Suite 300

Charlottesville, Virginia 22901

(804) 977-3390

Counsel for the Respondent

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Whether the evidence demonstrating an intent to dis-

criminate on the basis of age was sufficient to justify the trial

court in over-ruling the defendant’s motion for a directed

verdict and in submitting the plaintiff’s claim of age discrim-

ination to the jury.

ii

PARTIES

The parties to the proceedings in the court below were:

Warren G. Herold, an individual, and Hajoca Corporation.

iil

TABLE OF CONTENTS

Page

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JURISDICTIONAL STATEMENT .............---0+05: 2

ED coe sks ecco cscs ence ensecscess 2

es 9 a Oe’ OS 2

ARGUMENT WITH RESPECT TO REASONS FOR

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I. THE DECISION BELOW IS IN ACCORD WITH

THE PRINCIPLES ESTABLISHED BY THIS COURT 6

Il. THE DECISION OF THE COURT BELOW IS NOT

IN CONFLICT WITH OTHER CIRCUITS......... 13

ica kp dv Abs stn des cce wens seecenes 15

iv

TABLE OF AUTHORITIES

Cases

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). .

Brieck v. Harbison-Walker Refractories, a Division of

Dresser Industries, 624 FSupp. 363 (W.D. Pa. 1985) ..

Christie v. Foremost Insurance Company, 785 F.2d 584

SP Ge Pe rae eee ne ane eg de

Cline v. Roadway Express, Inc., 689 F.2d 481 (4th Cir.

SOE PAS Der rab a cncadenencicet hepa ee

Goldberg v. B. Green and Company, Inc., 836 F.2d 845

ae | REI earn tea, Reece

Harbison-Walker Refractories v. Eugene F. Brieck, No.

86-3068, slip op. (3rd Cir. June 19, 1987), cert.

granted, 108 S.C. 1218 (1987), cert. withdrawn, 57

U.S.L.W. 4063 (December 12, 1988)..............

Lovelace v. Sherwin-Williams Company, 681 F.2d 230

Sa «5 a

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

Taylor v. The Home Insurance Company, 777 F.2d 849

(4th Cir. 1985), cert. denied, 476 U.S. 1142 (1986) .

Texas Department of Community Affairs v. Burdine, 450

Shey Oe REM ena ke cup Naas een eke le a

STATUTES

oe Mian Why WE i cates ect c rene

Oe SA. BD Eo as wa noes en tine deus

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No. 88-1697

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In. The

Supreme Court of the United States

October Term, 1989

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HAJOCA CORPORATION

Petitioner,

WARREN G. HEROLD

Respondent.

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BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

Lp

—

The Respondent, Warren G. Herold, by counsel,

hereby submits his Brief in Opposition to Petition tor a

Writ of Certiorari to the United States Court of Appeals

for the Fourth Circuit.

OPINIONS BELOW

The opinion of the Fourth Circuit Court of Appeals

(the “Fourth Circuit”), dated December 22, 1988, is

reported at 864 F.2d 317, and appears in the appendix to

this brief (“Brief Appendix”) at A-2 to A-15. The opinion

of the United States District Court for the Western Dis-

trict of Virginia, dated February 18, 1988, is reported at

682 F. Supp. 297, and is reproduced in the Brief Appendix

at A-16 to A-24. The order of the Fourth Circuit, dated

January 19, 1989, denying Petitioner’s Petition for

Rehearing is unreported and is reproduced in the Brief

Appendix at A-1.

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a

JURISDICTIONAL STATEMENT

The Respondent adopts the Jurisdictional Statement

of the Petitioner.

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STATUTE INVOLVED

The Respondent adopts the statement of Statute

Involved of the Petitioner.

STATEMENT OF THE CASE

The Respondent, Warren G. Herold (“Herold”), was

continuously employed by the Petitioner, Hajoca Corpo-

ration, (“Hajoca”) from 1955 to 1982. Joint Appendix at

34.1 Hajoca operates a wholesale and retail plumbing and

heating supply business nationwide and has a branch

office in Staunton, Virginia (“Staunton Branch”). Herold

' The Respondent joins the Petitioner in referring to the

“Joint Appendix” as that part of the record contained in the

joint appendix filed in connection with Petitioner’s appeal to

the Fourth Circuit.

worked exclusively in the warehouse/delivery depart-

ment of the Staunton Branch. He was laid off from the

Staunton Branch on March 12, 1982, at the age of 56, Joint

Appendix at 34, which resulted in this case under the Age

Discrimination in Employment Act, 29 U.S.C. § 621, et

seq. (the “ADEA”).

Herold filed his ADEA complaint in the United States

District Court for the Western District of Virginia on

October 14, 1983. The case was tried to a jury on January

6 and 7, 1987, which returned a verdict for Herold in the

amount of $40,642.66 in actual damages and an equal

amount as liquidated damages on account of a willful

violation of ADEA. On February 18, 1988, the district

court granted Hajoca’s motion for J.N.O.V. with respect to

the claim for liquidated damages and denied Hajoca’s

motion for J.N.O.V. with respect to compensatory dam-

ages. The district court also awarded Herold retroactive

pension benefits, costs and attorneys’ fees. Hajoca

appealed and Herold cross-appealed. The Fourth Circuit

affirmed the district court’s decision in all respects,

including that court’s denial of Hajoca’s motion for a

directed verdict, the subject of this petition. In reviewing

Hajoca’s motion for a directed verdict? the Fourth Circuit

stated:

2 The Fourth Circuit reviewed Hajoca’s motion for a

directed verdict under the applicable standard stated in Ander-

son v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986): “[t]his stan-

dard [for summary judgment] mirrors the standard for a

directed verdict under Federal Rule of Civi! Procedure 50 (a),

which is that a trial judge must direct a verdict if, under the

(Continued on following page)

When viewed in the light most favorable to Herold,

and when all reasonable inferences are drawn in

Herold’s favor, the jury could properly have found

that Hajoca’s proffered reasons for dismissing Herold

were mere pretexts and that it was more likely that

age was the real reason for his firing.

Brief Appendix at A-7.

Herold first worked at the Staunton Branch as a truck

driver and was promoted to inside “order picker” in

1962, the warehouse employee responsible for preparing

orders for delivery to customers. Joint Appendix at 34.

Herold was promoted to shipping clerk in 1965, the posi-

tion he held until his layoff. Id. at 35. The other positions

in the warehouse of the Staunton Branch consisted of

truck driver, receiving clerk, counter man (who was

responsible for inside sales to walk-in customers) and

warehouse superintendent. Id. at 36. In addition to hav-

ing been a truck driver, Herold had experience working

as the counter man, and believed he was qualified to do

that work. He also relieved the warehouse superinten-

dent when that person was on vacation or sick leave;

during those periods, he performed the duties of superin-

tendent, as well as his own functions as shipping clerk.

Vernon Garber, the Staunton Branch manager (“Garber”),

admitted that during those periods Herold was respons-

ible for virtually everything that went on in the ware-

house and reported directly to Garber. Id. at 74. Herold

(Continued from previous page)

governing law, there can be but one reasonable conclusion as

to the verdict. If reasonable minds could differ as to the import

of the evidence, however, a verdict should not be directed.” Id.

(citations omitted).

and other witnesses testified that the jobs in the ware-

house were interchangeable, that each warehouse

employee performed the various job functions in the

warehouse and that Herold was qualified to perform the

other jobs in the warehouse. Id. at 37, 59, 102, 106-109,

114-115.

Contrary to Hajoca’s assertion that Garber was the

only person to testify on the existence of a “bumping”

policy, Petition at 6, n. 4, Herold testified that the Staun-

ton Branch had a policy of laying-off employees accord-

ing to years of service in the event of a reduction in force,

and that he was first informed of this when he was hired

in 1955. The policy was also stated by Garber in an

employee meeting called in 1975. Herold testified that

this policy was followed until he was laid off. Joint

Appendix at 38. After the 1975 meeting, and consistent

with the reduction-in-force policy, Richard Tanksley, the

most junior person in the warehouse, was laid off accord-

ing to years of service. Later, warehouse worker Danny

Doyle was also laid off according to years of service, as

were two female office workers. Id. at 39. Other evidence

corroborating Herold’s testimony concerning the reduc-

tion-in-force policy of bumping was offered at trial, but

was barred by the district court, in response to Hajoca’s

objection that the existence of such a “bumping policy”

was irrelevant. Joint Appendix at 98-100.

On the morning of March 12, 1982, Herold went to

work as usual and was directed to Garber’s office where

Garber told him that he was being laid off. Garber gave

no response to Herold’s questioning as to why he was

being laid off contrary to the stated rule and custom. His

only justification for the layoff was the need to reduce the

number of workers in the warehouse. Id. at 41. Garber

first testified that he would have given Herold a good

reference, that the quality of his performance was not in

question in the layoff, id. at 81, and that his work had

been entirely satisfactory. Id. at 85. He later testified that

his decision to lay off Herold was based on the decision

to keep the “best” people. Id. at 94. Garber also admitted

that he retained the two younger truck drivers in the

warehouse, and laid off Charles Howdyshell, the oldest

truck driver in the warehouse, on the same day as Herold

was terminated. Id. at 45, 91. When Herold was laid off,

there were other men working in the warehouse who

were both younger than him and who had fewer years of

service with Hajoca, one of whom was less than forty

years old and, therefore, outside the scope of ADEA

protection. Id. at 44.

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ARGUMENT WITH RESPECT TO REASONS

FOR DENYING THE WRIT

I. THE DECISION BELOW IS IN ACCORD WITH

THE PRINCIPLES ESTABLISHED BY THIS COURT

Both the district court and the Fourth Circuit prop-

erly applied the familiar scheme of proof established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and

Texas Department of Community Affairs v. Burdine, 450 U.S.

248 (1981) to the evidence of record. As Circuit Judge

Murnaghan noted, the essential issue in this case was one

of credibility:

The evidence at trial presented two versions of what

happened and resolution of the case depended on

which witnesses were credible. Determining witness

credibility is the job of the jury. The district judge

—————————————— a

was correct in not taking that task away from the jury

and in not overturning the verdict of the jurors once

they had made a judgment about which witnesses to

believe.

Brief Appendix at A-7 and A-8.

Hajoca seeks to recast this ordinary evidentiary dis-

pute into one in which a “fundamental issue of Federal

employment discrimination law” is involved. Petition at

7. No such case is presented. In substance, Hajoca urges

that the jury should have believed Hajoca’s witnesses and

disbelieved those of Herold. The jury found evidence

sufficient to support a determination that Herold was the

victim of intentional age discrimination. Both the district

court and the Fourth Circuit viewed the evidence as

sufficient to allow the case to be decided by the jury and

to support the jury’s verdict. Hajoca now seeks a fourth

review of the factual dispute in this case, already

resolved three times in Herold’s favor.

Hajoca’s essential criticism of the Fourth Circuit’s

decision is that it purportedly allowed Herold to prevail

“without presenting any evidence, direct or indirect, that

[Herold’s] employer’s judgment was in fact motivated by

an intent to discriminate.” Petition at 8. That criticism

ignores the plain language of the Fourth Circuit’s opinion

and the evidence of record. The Fourth Circuit began its

analysis of this case by pointing out that, in ADEA cases,

the plaintiff is entitled to use the three-stage McDonnell

Douglas scheme of proving discrimination originally for-

mulated for cases under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. 2000e, et seq.:

First, the plaintiff must establish a prima facie case of

age discrimination. If he succeeds, the burden of

production shifts to the defendant to articulate a

nondiscriminatory reason for treating the plaintiff as

he did. Once the defendant does that, the plaintiff

must bear the burden cf proving that he was the

victim of intentional discrimination. He can do this by

demonstrating that the defendant’s proffered reason

was a mere pretext and that, as between the plain-

tiff’s age and the defendant’s explanation, age was

the more likely reason for the dismissal.

Brief Appendix at A-5. (citations omitted, emphasis

added).

The Fourth Circuit also appropriately applied the

McDonnell Douglas scheme of proof to this reduction in

force case:

In a reduction-in-force case... a plaintiff must show

four things to make out a prima facie case under

ADEA: (1) that he is in the protected age group, (2)

that he was discharged, (3) that at the time of the

discharge, he was performing his job at a level that

met his employer’s legitimate expectations, and (4)

that persons outside the protected age class were

retained in the same position or that there was some

other evidence that the employer did not treat age

neutrally in deciding to dismiss the plaintiff.

Id. (citations omitted). As the Fourth Circuit stated, a

plaintiff could satisfy this standard for establishment of a

prima facie case by showing that his employer treated an

older worker differently than younger employees in simi-

lar positions. Id.

The Fourth Circuit held that Herold established a

prima facie case. It observed that Herold presented evi-

dence that he was dismissed while younger workers in

similar positions, at least one of whom was under 40,

were retained. Brief Appendix at A-6. He presented evi-

dence that all of the jobs in the Staunton Branch ware-

house were virtually interchangeable and that he could

perform all of those jobs, with the possible exception of

one position which would have required minimal

retraining.

Each worker had a job designation and primary

responsibilities from day to day. Each of them had not

only substituted for one another on occasion but had held

many of these other jobs. All of the witnesses testified

that Herold was a capable worker and as good a worker

as anyone in the warehouse. Id. Even Garber testified that

he would have given Herold a good recommendation and

that the quality of his work was not in question in the

layoff. Joint Appendix at 81. Herold presented evidence

that Hajoca had laid off an older truck driver, while

retaining two younger truck drivers, on the same day as

Herold was dismissed. Joint Appendix at 45, 91; Brief

Appendix at A-7. It was Herold’s evidence that Hajoca’s

long-standing policy of laying off less senior employees

first when faced with an economic turndown was vio-

lated in his case.3 As the Fourth Circuit correctly pointed

3 As it has throughout this case, Hajoca continues to argue

that Herold presented no evidence concerning this “bumping

policy” (see, Petition at 6-7, n. 4), in the face of clear record

evidence to the contrary as set forth in the Statement of the

Case above. Apparently, Hajoca believes that since Herold did

not expressly describe the reduction-in-force policy as a

“bumping” policy that there was no evidence on the point.

That position flies in the face of common sense and crdinary

English usage. The position asserted by Hajoca in its Petition is

also inconsistent with its position at trial that the existence of

(Continued on following page)

10

out, Herold did not claim that he was entitled to relief

merely because he was dismissed while less experienced

or less senior workers were retained. The violation of the

reduction-in-force policy was introduced solely to dem-

onstrate that Hajoca had deviated from its established

procedures when it came to dismissing Herold. Brief

Appendix at A-7, n. 4. The Seventh Circuit has also

recognized that an employer’s failure to follow its own

reduction-in-force policy may support a finding that its

asserted reason for the employment action was a pretext

for age-related discrimination. Christie v. Foremost Insur-

ance Company, 785 F.2d 584, 586 (7th Cir. 1986).

The purported justification for Garber’s decision to

terminate Herold was to‘reduce the work force. Garber

suggested that he chose to eliminate Herold’s job because

someone else could do the work. In fact, the evidence

before the jury showed that statement could have been

made of every job in the warehouse, not just Herold’s job;

Herold’s evidence further demonstrated that, for all

material purposes, these younger men were performing

the same job functions interchangeably. The treatment

afforded Charles Howdyshell, who was terminated on

the same day as Herold, also revealed much about

Hajoca’s motivation in this group of layoffs: Howdyshell

was the oldest of three truck drivers in the warehouse,

but was laid off in favor of the two younger drivers who

were performing the same job functions. Joint Appendix

at 45, 91.

(Continued from previous page)

such a policy was irrelevant, and with which Hajoca suc-

cessfully blocked Herold’s attempt to introduce the testimony

of other workers to corroborate his statement with regard to

that policy. Joint Appendix at 98-100.

11

The pretextual nature of Garber’s explanation for the

layoff, and Garber’s lack of credibility, was further dis-

closed in his testimony concerning the alleged need to

“retrain” Herold for the position of truck driver. Garber

testified initially that he did not believe Herold would

qualify to perform the duties of truck driver; when cross-

examined, however, Garber admitted that the only

“retraining” Herold would require in order to qualify asa

truck driver would be the receipt of a highway map and

the addresses for deliveries. Id. at 91. The jury was able to

observe Garber’s demeanor on the stand, in this as well

as other instances, and make their own determination of

his credibility.

The record shows substantial, albeit circumstantial,

evidence from which the jury could reasonably have

inferred both pretext and an intent to discriminate

against Herold on the basis of his age. Wrongful acts of

discrimination are not normally committed in the clear

light of day; they are done covertly, sometimes even

under the guise of rational decision-making. Ordinarily,

the only available evidence is circumstantial. The McDon-

nell Douglas framework appears to have been designed, in

part, to address these problems of proof.

This case is readily distinguishable from Harbison-

Walker Refractories v. Eugene F. Brieck, No. 86-3068, slip op.

(3d Cir. June 19, 1987), cert. granted, 108 S.Ct. 1218 (1987),

cert. withdrawn, 57 U.S.L.W. 4063 (December 12, 1988),

which Hajoca plainly seeks to imitate. There, the district

4 It cannot be coincidental that the question presented as

phrased in the Petition in this case is almost word-for-word

identical to the one contained in the Petition in

(Continued on following page)

12

court granted summary judgment on the grounds that the

plaintiff failed to present evidence that age was a “deter-

minative factor” in the employer’s decision or that the

employer’s justification for its decision was a pretext for

age discrimination. Brieck v. Harbison-Walker Refractories, a

Division of Dresser Industries, 624 F. Supp. 363, 366 (W.D.

Pa. 1985). The Third Circuit reversed, holding that an

ADEA plaintiff could defeat a summary judgment motion

by presenting evidence “of inconsistencies and implausi-

bilities in the employer’s proffered reasons for discharge

(which) reasonably could support an inference that the

employer did not act for (those) nondiscriminatory rea-

sons.” Harbison-Walker Refractories v. Eugene F. Brieck, No.

86-3068, slip op. at 2a, (3d Cir. June 19, 1987). On the

record before-it, the Third Circuit held that the plaintiff

had sustained his burden at the summary judgment

stage: “The question is not whether the employer’s

asserted reason is plausible, but whether there is also

evidence of record which, if credited, could render the

reason implausible.” Id. at 5a, 6a.

Herold did more than demonstrate the implausibility

of Hajoca’s proffered reason for the lay-off, or that

Hajoca’s decision constituted no more than an unwise

(Continued from previous page)

Harbison: “Whether a plaintiff who alleges intentional discrimi-

nation can survive summary judgment merely by questioning

his employer’s business judgment, without presenting any evi-

dence, direct or indirect, that his employer’s judgment was in

fact motivated by an intent to discriminate.” This Court origi-

nally granted a writ of certiorari in Harbison, which was later

withdrawn as having been improvidently granted.

13

personnel move, although his evidence did that as well.

Herold presented evidence from which the jury could

properly have determined that Hajoca treated Herold

differently from its other similarly situated Staunton

Branch warehouse employees because of his age.

It is apparent that the actual basis for Hajoca’s

request for review is simply its belief that the jury should

have reached a different result. Its petition presents no

other supportable basis for review. It points to no error in

this case except its belief that the Fourth Circuit requires

no “nexus between [the plaintiff’s evidence] and age

discrimination.” Petition at 14. In light of the Fourth

Circuit’s express requirement of proof of intentional dis-

crimination, Hajoca cannot, in good faith, argue that the

Fourth Circuit does not view intentional age-related dis-

crimination as an essential element of an ADEA claim.

Instead, it must take the position that there was insuffi-

ciente -ence to support such a finding. Hajoca is simply

not entitled to a fourth review of the facts on this issue.

The only issue presented for review by this Court

depends on no more than an assessment of which wit-

nesses should have been believed. That issue has signifi-

cance only to the parties to this case.

II. THE DECISION OF THE COURT BELOW IS NOT

IN CONFLICT WITH OTHER CIRCUITS

Hajoca states that the decision below allows an

ADEA plaintiff to sustain his burden of “pretext” by

merely questioning an employer’s business judgment

without a showing of intent to discriminate, thus creating

a conflict among the circuits as to the appropriate legal

14

standard. This proposition misstates the opinion of the

Fourth Circuit and asserts a conflict where none exists.

As in this case, the Fourth Circuit has consistently

held elsewhere that proof of an intent to discriminate on

account of age is essential to a claim under ADEA. See,

Goldberg v. B. Green And Company, Inc., 836 F.2d 845 (4th

Cir. January 14, 1988) (to establish a cause of action under

ADEA, the plaintiff must prove, inter alia, that, but for

the employer’s motive to discriminate against him

because of his age, he would not have been dismissed);

Taylor v. The Home Insurance Company, 777 F.2d 849, 851

(4th Cir. 1985), cert. denied, 476 U.S. 1142 (1986), (the

plaintiff has the burden of proving adverse action would

not have been taken “but for” a motive to discriminate);

Lovelace v. Sherwin-Williams Company, 681 F.2d 230, 239

(4th Cir. 1982) (“where - as here, and ordinarily — cover-

age [under the ADEA] and unfavorable action are not

disputed, the dispositive and only issue is the difficult,

but narrow, motivational one: whether the employee was

[treated unfavorably] because of his age”).

In the Fourth Circuit a plaintiff cannot meet his bur-

den of proof merely by questioning his employer’s busi-

ness judgment: “an employer may not properly be found

in violation of the ADEA simply because it exercised poor

business judgment, gauged objectively, in treating unfa-

vorably an employee within the protected age group on

grounds other than age.” Cline v. Roadway Express, Inc.,

689 F.2d 481, 487, n. 7 (4th Cir. 1982). The Fourth Circuit is

entirely in accord with, and not in conflict with, those

circuits to which Hajoca refers.

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CONCLUSION

For the foregoing reasons, the Respondent

respectfully requests that the Petition for a Writ of Cer-

tiorari to the United States Court of Appeals for the

Fourth Circuit be denied.

Respectfully Submitted,

WarREN G. HEROLD

By Counsel

EpwarpD B. Lowry

(Counsel of Record)

Ropert W. JACKSON

for Micniz, HAMLETT, Lowry, RASMUSSEN & TWEEL, P.C

500 Court Square Suite 300

Charlottesville, Virginia 22901

(804) 977-3390

Counsel for the Respondent

Dated: May 18, 1989

APPENDIX

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 88-3955

No. 88-3967

WARREN G. HEROLD,

Plaintiff-Appellee,

v.

FAJOCA CORPORATION,

Defendant-Appellant.

ON PETITION FOR REHEARING WITH

SUGGESTION FOR REHEARING IN BANC

The petition for rehearing and suggestion for re-

hearing in banc of Hajoca Corporation were submitted

to this Court. AS no member of this Court or the panel

requested a poll on the suggestion for rehearing in banc,

and

As the panel considered the petition for rehearing

and is of the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and

suggestion for rehearing in banc are denied.

Entered at the direction of Judge Murnaghan, with

the concurrence of Judge Chapman and Judge

Williams, United States District Judge sitting by

designation.

FOR THE COURT

s/ JOHN M. GREACEN

CLERK

Dated: January 19, 1989

A-J

Bad

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 88-3955

No. 88-3967

WARREN G. HEROL)N,

Plaintiff-Appellee,

v.

HAJOCA CORPORATION,

Defendant-Appellant.

ON PETITION FOR REHEARING WITH

SUGGESTION FOR REHEARING IN BANC

Argued Oct. 6, 1988.

Decided Dec. 22, 1988.

Rehearing and Rehearing In Banc

Denied Jan. 19, 1989.

Before: MURNAGHAN and CHAPMAN,

Circuit Judges, and WILLiAMS,

United States District Judge

for the Eastern District of Virginia,

sitting by designation.

WALTER H. FLAMM, JR., ESQ.

JOSEPH A. EAGAN, JR., ESQ. (on brief)

Clark, Ladner, Fortenbaugh & Young

32nd Floor — 1818 Market Street

Philadelphia, PA 19103

MATTHEW B. MURRAY, ESQ. (on brief) Richmond &

Fishburne

Queen Charlotte Square

A-3

214 East High Street

Charlottesville, VA 22902-0559

Attorneys for Defendant — Appellant

EDWARD B. LOwrRy, ESQ.

ROBERT W. JACKSON, ESQ. (on brief)

Michie, Hamlett, Donato & Lowry

500 Court Square — Suite 300 P.O. Box 298

Charlottesville, VA 22902-0298

Attorneys for Plaintiff — Appellee

OPINION OF THE COURT

MURNAGHAN, Circuit Judge

An Age Discrimination in Employment action! con-

fronts us here. The plaintiff, Warren G. Herold, was in

part successful. His compensatory award should prevail

over defendant Hajoca Corporation’s motions for sum-

mary judgment, directed verdict and judgment non

obstante veredicto, because Herold was able to demon-

strate a failure of Hajoca to follow an announced policy

of laying off the shorter time employees among those

qualified when lack of work result in termination. He-

rold showed there were several (perhaps four) younger

employees retained when he was terminated who had

less time in service than he did. However, as to the jury’s

award of a liquidated (punitive) damages amount equal

to the compensatory award, the district judge correctly

ordered entry of judgment non obstante veredicto. 682

F.Supp. 297.

1. Under the Age Diseritaination in Employment Act of 1967,

29 U.S.C. §§ 621-634, hereinafter “ADEA”.

A-4

I.

In considering a motion for directed verdict or for a

JNOV, the trial court is to apply the same standard:

whether, viewing the evidence in the light most favor-

able to the nonmoving party and giving him the benefit

of all reasonable inferences, there is sufficient evidence

in the record to support a jury verdict in his favor.-

Taylor v. Home Ins. Co., 777 F.2d 849, 854 (4th Cir.

1985), cert. denied, 476 U.S. 1142, 106 S.Ct. 2249, 90

L.Ed.2d 695 (1986); Wilhelm v. Blue Bell Inc., 773 F.2d

1429, 1433 (4th Cir. 1985), cert. denied, 475 U.S. 1016,

106 S.Ct. 199, 89 L.Ed.2d 313 (1986). The court must

not weigh the evidence or assess the credibility of

witnesses. Taylor, 777 F.2d at 854. In reviewing a grant

or denial of a motion for a JNOV or directed verdict, the

appellate court is to apply the same standard that

governed the trial court’s determination. Lust v. Clark

Equipment Co., 792 F.2d 436, 438 (4th Cir. 1986).

The Court has cautioned against granting motions

for directed verdict and JNOV in discrimination cases

where motive and causation are at issue:

Determination of motive is ordinarily a function

within the purview of the fact finder because so

much depends on an assessment of the credibility of

the witnesses. A finding of motive should not be set

aside by the reviewing court unless the evidence

clearly compels rejection.

‘

2. A decision on the compensatory aspect of the case against

Hajoca on its JNOV and directed verdict motions eliminates the

need for this Court to address the summary judgment argument.

The standard for considering a motion for summary judgment

“mirrors the standard for a directed verdict under Federal Rules of

Civil Procedure 50(a).” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

A-5

Taylor, 777 F.2d at 854 (trial court did not err in

denying defendant’s motion for directed verdict and

JNOV in ADEA case).

In ADEA cases, the Fourth Circuit permits plaintiffs

to use the three-stage scheme of proof originally formu-

lated for Title VII cases.3 EEOC v. Western Electric Co.,

713 F.2d 1011, 1014 (4th Cir. 1983). See Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct.

1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668

(1973). First, the plaintiff must establish a prima facie

case of age discrimination. If he succeeds, the burden of

production shifts to the defendant to articulate a nondis-

criminatory reason for treating plaintiff as he did. Once

the defendant does that, the plaintiff must bear the

burden of proving that he was the victim of intentional

discrimination. He can do this by demonstrating that the

defendant’s proffered reason was a mere pretext and

that, as between the plaintiff’s age and the defendant’s

explanation, age was the more likely reason for the

dismissal. Western Electric, 713 F.2d at 1014; Lovelace

v. Sherwin-Williams Co., 681 F.2d 230, 240-41 (4th Cir.

1982).

[1] In a reduction-in-force case, such as we have

here, a plaintiff must show four things to make out a

prima facie case under ADEA: (1) that he is in the

protected age group, (2) that he was discharged, (3) that

at the time of the discharge, he was performing his job

at a level that met his employer’s legitimate expecta-

tions, and (4) that persons outside the protected age

class were retained in the same position or that there

was some other evidence that the employer did not treat

age neutrally in deciding to dismiss the plaintiff. West-

ern Electric, 713 F.2d at 1014-15. An individual must be

at least 40 years of age to fall within the protections of

ADEA. 29 U.S.C. § 631(a). Herold was.

3. Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e

et seq.

A-6

[2] Concededly Herold established the first three

elements of his prima facie case. Hajoca argues, how-

ever, that the fourth requirement remained unsatisfied

because no younger workers were retained in the same

job (z.e., shipping clerk) that Herold held. It is true that

the remaining younger workers not discharged when

Herold was did not hold jobs with the same title as that

assigned to Herold’s job and that, on his discharge, his

job duties were assigned to a worker older than Herold.

But that does not mean that Herold failed to satisfy the

fourth element of his prima facie case. Western Electric

provides that a plaintiff can satisfy that element either by

showing that persons outside the protected class were

retained in the same position or by producing some other

evidence indicating that the employer did not treat age

neutrally. Western Electric, 713 F.2d at 1014-15. Thus,

the plaintiff can satisfy the standard by showing that his

employer treated an older worker differently than

younger employees in similar positions.

[3] The evidence, when viewed in the light most

favorable to Herold, would support a jury finding that his

employer treated him differently than a number of

younger workers who were in similar positions and that

Herold thus had made out a prima facie case of age

discrimination. He presented evidence that he was dis-

missed while younger workers, at least one of whom was

under 40 and therefore outside the ADEA-protected

class, were retained. He presented evidence that he was

qualified to perform the jobs of those younger workers,

including the one under 40. In addition, he presented

evidence that the company had a long-standing policy of

laying off the workers with the least seniority first

whenever faced with an economic downturn, but that

the defendant had failed to follow that procedure in the

instant case.

Hajoca responded by articulating four facially non-

discriminatory reasons tor dismissing Herold instead of

the younger employees. First it was contended that

A-7

Herold’s job was the easiest to eliminate. Second, Ha-

joca contended that company policy did not permit an

employee to displace or “bump” a worker with less

seniority if the two employees were in different job

classifications. Third, Hajoca argued that Herold was

less versatile in performing other jobs. Finally, it was

argued that Herold was not as good a worker as the

others.

Herold then bore the burden of proving that Hajo-

ca’s proffered reasons were pretexts. Herold produced

evidence that all the jobs in the Staunton, Virginia,

branch were virtually interchangeable. He testified that

the company policy, if followed, would have allowed him

to “bump” workers with less seniority, even if they were

in other job classifications.* Herold presented evidence

that he could perform all jobs but one and could have

performed that one if he had received nominal training.

Hr presented evidence from his supervisor and co-

workers that his job performance had been good. Herold

also presented evidence that when faced with cutbacks,

the employer laid off an older truck driver while retain-

ing two younger ones in the same job category.

When viewed in the light most favorable to Herold,

and when all reasonable! inferences are drawn in He-

rold’s favor, the jury could properly have found that

Hajoca’s proffered reasons for dismissing Herold were

mere pretexts and that it was more likely that age was

the real reason for his firing.

The evidence at trial presented two versions of what

happened and resolution of the case depended on which

4. Hajoca has argued that the company’s “bumping” policy is

irrelevant to the case because a mere violation of seniority rights

does not give rise to an ADEA action. The argument misses the

point. Herold does not claim that he is entitled to relief merely

because he was dismissed and less experienced workers retained.

He has introduced evidence of the “bumping” policy only to

demonstrate that the company deviated from its normal procedure

when it came time to apply the policy to a 56-year-old employee.

A-8

witnesses were credible. Determining witness credibility

is the job of the jury. The district judge was correct in

not taking that task away from the jury and in not

overturning the verdict of the jurors once they had made

a judgment about which witnesses to believe.

Hajoca points to four ADEA cases in which it has

been held that no discrimination was proved and argues

that those decisions compel the same result in the

instant case. However, there are crucial differences

between the facts of those cases and the facts of this one.

In Western Electric, supra, we reversed a finding of

discrimination because the trial court misconstrued the

law by requiring the plaintiff to prove only the first three,

rather than all four, elements of the prima facie case.

713 F.2d at 1015. In addition, the Western Electric court

found that, even if plaintiffs had made out a prima facie

case, many of the defendant's proffered reasons for

demoting the employees had gone unchallenged by the

plaintiffs. Jd. at 1015-16. Likewise, in three other cases

relied cn by the appellant — Fink v. Western Electric

Co.,5 Lovelace v. Sherwin-Williams Co.,®° and Smith v.

Flax,’7 — the plaintiffs failed to present adequate evi-

dence contradicting most of the defendants’ proffered

explanations for their personnel decisions. In the instant

case, by contrast, Herold presented evidence directly

challenging all of the reasons offered by Hajoca to

explain its decision to dismiss him.

In sum, the evidence, when viewed in the light most

favorable to the plaintiff, would allow the jury to find

that the employer treated Herold differently than

younger workers and that Herold’s age, rather than the

reasons proffered by Hajoca, more likely accounted for

708 F.2d 909 (4th Cir. 1983)

681 F.2d 230 (4th Cir. 1982)

681 F.2d 1062 (4th Cir. 1980)

NAM

A-9

the dismissal of Herold. Therefore, the trial court prop-

erly denied the motions for a directed verdict and a

JNOV on the compensatory damages claim.

II.

Turning to Hajoca’s motion for a new trial, we

Should not reverse a denial of a motion for a new trial

unless the trial court clearly abused its discretion. Tay-

lor, 777 F.2d at 855. Unlike motions for JNOV or

directed verdict, a motion for a new trial allows the trial

court to weigh the evidence and assess credibility of

witnesses. Jd. at’'855. A court may grant a new trial if the

verdict was against the clear weight of the evidence, was

based upon false evidence or would result in a miscar-

riage of justice. Abastekong v. Shelby, 744 F.2d 1055,

1059 (4th Cir. 1984).

Hajoca has argued that the trial court erroneously

believed that the standard for ruling on motions for a

new trial was identical to that for considering a JNOV

motion. Because of this, the contention is made that the

trial court only considered the evidence favorable to the

plaintiff, rather than the entire evidence in ruling on the

motion. :

As already explained there was sufficient evidence

presented to allow the jury to conclude that Hajoca’s

proferred explanations for dismissing Herold were mere

pretexts and that age was the more likely reason for

Herold’s discharge. The district judge had authority to

assess the credibility of witnesses in light of the evi-

dence. Nothing suggests that he abused his discretion

when he concluded that the jury verdict should stand.

Ill.

[4] We must not disturb the trial court’s ruling on

the relevancy of the statistical evidence offered by Ha-

joca unless such decision constituted an abuse of dis-

cretion. See Ward v. Johnson, 690 F.2d 1098, 1113 (4th

nl

A-10

Cir. 1982) (en banc). The district judge did not abuse his

discretion in excluding Hajoca’s statistics on relevancy

grounds. The district judge agreed to allow Hajoca to

present statistical evidence concerning employees who

were terminated at the company’s Staunton branch for a

period 18 months before and 18 months after the

dismissal of Herold. The court refused to allow statistical

evidence for the company’s Mid-Atlantic region as a

whole. It was reasonable to conclude that such region-

wide statistics would be of limited probative value in

determining whether discrimination took place in one

particular branch. Furthermore, the court had to take

precautions to emsure against juror confusion.

Fed.R.Evid. 403. The district judge could reasonably

have concluded that the confusion the statistics might

cause for the jury would outweigh their probative value.

Hajoca also sought to introduce statistical information

for the Staunton facility that covered a period beginning

as much as three years before the firing of Herold and up

to two years after his layoff. Again, the juror confusion

over such statistics could outweigh their probative value.

In sum, the district court was well within its discre-

tion. Therefore, there is no reason to consider the

appellee’s argument that such statistics could only have

been presented with the assistance of experts.

IV.

[5] We will not disturb a trial court’s award of

attorney’s fees and costs absent an abuse of discretion.

Cooper v. Dyke, 814 F.2d 941, 950 (4th Cir. 1987)

(attorneys’ fees); Barber v. Kimbrell’s, Inc., 577 F.2d

216, 226 (4th Cir., cert. denied, 439 U.S. 934, 99 S.Ct.

58 L.Ed.2d 330 (1978) (same); Flint v. Haynes, 651

F.2d 970, 973 (4th Cir. 1981), cert. denied, 454 US.

1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982) (costs).

This court emphasized in Barber that:

A-11

[T]he allowance of attorneys’ fees “‘is within the

judicial discretion of the trial judge, who has close

and intimate knowledge of the efforts expended and

the value of the services rendered... .’”

577 F.2d at 226 (citations omitted).

Abuse of discretion did not arise in the matter of an

award of $47,382.25 in attorney’s fees to Herold’s law-

yers. Hajoca contends that, because of the contingent

fee arrangement, there was abuse of discretion because

the district court awarded Herold nearly four times as

much as Herold was obligated to pay his counsel. Hajoca

argues that the amount due counsel under the contin-

gent fee arrangement imposes a ceiling on the amount

of the attorney fees the court may award. We have

clearly held to the contrary. Cooper, 814 F.2d at 951

(attorneys’ fees under 42 U.S.C. § 1988),® relying on

City of Riverside v. Rivera, 477 U.S. 561, 576-80, 106

S.Ct. 2686, 2695-97, 91 L.Ed.2d, 466 (1986).

[6] Appellant also argues that paralegal and law

clerk time is by definition not encompassed within the

term “attorney’s fees.” Two of our cases have assumed

that paralegal and law clerk time was to be included in

attorney’s fees. See Lilly v. Harris-Teeter Supermarket,

842 F.2d 1496, 1510 (4th Cir. 1988) (paralegals); Yohay

v. Alexandria Employees Credit Union, Inc., 827 F.2d

967, 974 (4th Cir. 1987) (law clerks). We are similarly

inclined.

Apart from the contingent fee and lawyer/paralegal

issues, which we have dealt with, Hajoca has failed to

point to a single example where the trial court erred in

setting the attorney’s fees. The district court clearly

explained the basis for its decision examining the twelve

factors the court has emphasized should be weighed in

setting attorney’s fees. See Barber, 577 F.2d at 225 &

8. The standard for award of attorneys’ fees in age discrimina-

tion Cases is the same as that applied in § 1988 actions. Smith v.

University of North Carolina, 632 F.2d 316, 350 (4th Cir. 1980).

A-12

n.28. The district court has made a careful examination

of each factor and reached a reasonable conclusion.

Accordingly, there has been no abuse of discretion.

[7] Next we meet the argument that the district

court erred in taxing as costs expenses for deposition

transcripts. Hajoca relies on 28 U.S.C. §1920(4), which

allows a judge to tax as costs “[f]ees for exemplification

and copies of papers necessarily obtained for use in the

case.” The district court found that the deposition tran-

script costs fell within §1920(4) because portions of

those transcripts were used at trial. The court did not

specify how they were used. Hajoca claims that unless

the transcripts themselves were introduced into evi-

dence their cost is not taxable to the defendant. The two

district court cases Hajoca has relied on do not support

such a proposition. See Sun Pub. Co. v. Mecklenburg

News, Inc., 594 F.Supp. 1512, 1524 (E.D. Va. 1984);

Wolfe v. Wolfe, 570 F.Supp. 826, 829 (D.S.C. 1983).

Both decisions would permit taxing deposition expenses

as costs if those depositions were used for impeachment

purposes. When the district judge said that portions of

such depositions were used at trial, no doubt he meant

that, although they were not actually introduced in

evidence, they were used to impeach witnesses.

[8] Finally, Hajoca has argued that attorney travel

expenses are not properly taxable as costs. Hajoca

reasons that because neither the ADEA nor the Fair

Labor Standards Act,? 29 U.S.C. §201, et seq., specifi-

cally lists travel expenses as recoverable, a prevailing

ADEA plaintiff may only recover for those items enu-

merated in 28 U.S.C. $1920, the general statutory

provision governing taxation of costs. To buttress the

argument, appellant relies on Crawford Fitting Co. v.

J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96

9. The ADEA incorporates the attorneys’ fees provisions of the

Fair Labor Standards Act, 29 U.S.C. § 216(b). See 29 U.S.C.

§ 626(b).

A-13

L.Ed.2d 385 (1987). Hajoca misunderstands the Su-

preme Court’s decision and Fourth Circuit precedents.

Crawford held that §1920 defines the term “costs”

as used in Fed.R.Civ.P. 54(d), which gives trial courts

discretion to impose costs on losing parties. Jd. 107 S.Ct.

at 2497. Thus, the Supreme Court reasons, Rule 54(d)

does not provide authority to tax as costs those expenses

not enumerated in 1920. We have emphasized, how-

ever, that, where attorney’s fees are expressly authorized

by statute (as they are in 29 U.S.C. §216(b)),!° the trial

court is not limited to Rule 54(d), but, in addition, has

authority to include litigation expenses as part of a

“reasonable attorney’s fee.” Wheeler v. Durham City

Board of Education, 585 F.2d 618, 623 (4th Cir. 1978).

We have defined such litigation expenses to include

“necessary travel.” /d. Therefore, the trial court did not

abuse its discretion in including as costs the travel

expenses of the attorneys.

if

[9] We proceed to consider the propriety of the

JNOV overturning the jury’s award of liquidated dam-

ages. When reviewing a JNOV, an appellate court must

view the evidence in the light most favorable to the

non-moving party to determine if the jury could properly

have found in that party’s favor. Taylor, 777 F.2d at 854.

The ADEA provides that a plaintiff may recover liqui-

dated damages whenever his employer “willfully” vio-

lates the Act. 29 U.S.C. §626(b). The jury found a willful

violation and assessed liquidated damages against Ha-

joca. The district judge then granted Hajoca’s motion for

a JNOV.

The ADEA does not define “willful” but this court

has recently provided some guidance in interpreting the

term. See Gilliam v. Armtex, Inc., 820 F.2d 1387 (4th

10. See note 9, supra.

Fe —

A-14

Cir. 1987). Although Gilliam failed to offer an all-

inclusive definition of “willful,” it upheld a JNOV after a

jury finding of willfulness because there was no evi-

dence that “the employer acted in bad faith or with

knowledge that its action was so lacking in justification

as tO warrant a jury’s characterization of its conduct as

willful.” Jd. at 1390. The Court also cited a Third Circuit

case that equated willfulness with outrageousness. See

Dreyer v. Arco Chemical Co., 801 F.2d 651 (3d Cir.

1986). We did not, however, explicitly state that we were

adopting such a definition. The Gilliam court made

clear, nevertheless, that mere knowledge that the ADEA

prohibited age discrimination and mere failure to obtain

legal advice before dismissing an older employee did not

constitute willfulness. Otherwise, reasoned the court in

Gilliam, nearly every ADEA violation would result in

liquidated damages. Gilliam further suggested that the

Fourth Circuit would be hesitant to find willfulness

where an economic downturn was a factor in the plain-

tiff’s dismissal. /d. at 1390.

In light of Gilliam, the district court was correct in

granting the motion for a JNOV.!! Herold’s counsel

argues that three facts support the jury finding of

willfulness: (1) the defendant knew that ADEA prohib-

ited age discrimination; (2) the defendant knew that

employees laid off were older than some of the workers

retained; and (3) the defendant failed to seek or receive

any legal advice or guidelines for complying with ADEA.

The arguments do not suffice to validate a liquidated

damages award.

11. Herold’s assertion that JNOV is improper because Hajoca

failed to object to the jury instructions on willfulness is without

merit. The Fourth Circuit decided Gilliam between the time of the

jury instruction and the granting of the JNOV motion. At the time

of trial Hajoca could not be held to anticipate the Fourth Circuit

Gilliam decision

A-15

VI.

In conclusion:

A. The district court did not err in denying

Hajoca’s motions for Summary judgment, for a

directed verdict and for JNOV.

B. The district court did not abuse its discretion

in denying Hajoca’s motion for a new trial.

C. The district court did not abuse its discretion

in excluding Hajoca’s statistical evidence.

D. The district court did not abuse its discretion

in awarding attorney's fees and costs to Herold.

E. The district court did not err in entering a

JNOV overturning the jury’s award of liquidated

damages.

[n all respects the judgment is

AFFIRMED.

A-16

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF VIRGINIA

HARRISONBURG DIVISION

WARREN G. HEROLD CIVIL ACTION

Plaintiff, |

wy

HAJOCA CORPORATION

Defendant. NO. 83-0128-H

MEMORANDUM OPINION

MICHAEL, District Judge

This matter comes before the court upon plaintiff's

motion for equitable relief and attorneys’ fees. Plaintiff's

age discrimination claim was tried to a jury on January

6 and 7, 1987. The jury returned a verdict against the

defendant NHajoca Corporation awarding plaintiff

$40,642.66 in actual damages and an equal amount as

liquidated damages based on the jury’s finding that the

defendant willfully violated the Age Discrimination in

Employment Act (ADEA). 29 U.S.C. §626(b). The par-

ties agreed that the remaining claims for relief, includ-

ing attorneys’ fees and costs, would be decided by the

court at a later date. The court postponed entering

judgment on the jury verdict pending resolution of the

present motion and a motion by the defendant for

judgment notwithstanding the verdict.

On May 1, 1987, the court heard argument on

defendant’s motion for judgment notwithstanding the

verdict. The court denied the motion and entered an

order to that effect on June 12, 1987. On June 25, 1987,

the Court of Appeals for the Fourth Circuit issued its

A-17

opinion in Gilliam v. Armtex, Inc., 820 F.2d 1387 (4th

Cir. 1987), which discusses the showing a plaintiff must

make to receive an award of liquidated damages under

the ADEA. Before addressing the plaintiff’s motion,

therefore, the court believes it should reexamine its

ruling on the defendant’s motion for judgment notwith-

standing the verdict in light of the Fourth Circuit’s

conclusions in Gilliam.

Defendant’s Motion for

Judgment Notwithstanding the Verdict

[1] In Gilliam, a jury had returned verdicts for both

compensatory and liquidated damages against the em-

ployer. The district court judge granted the defendant’s

motion for judgment notwithstanding the verdict as to

the liquidated damages, but denied the motion as to the

compensatory damages. On appeal, the Court of Appeals

for the Fourth Circuit affirmed the ruling of the district

court. The appeals court began its analysis by noting

that in providing for liquidated damages for willful

violations of the ADEA, Congress had neglected to

define the term “willful.”

The omission has led to contentions, such as that

advanced substantially by the plaintiff here, that a

finding of willfulness is appropriate if the employer

knows that there is such a thing as the ADEA

protecting older employees and takes an adverse

employment action with respect to an older em-

ployee because of his age. This is not enough to

support the willfulness finding, however.

&20 F.2d at 1390. The court went on to conclude that

evidence that an employer was aware of the ADEA and

failed to seek advice about compliance with its terms

does not constitute a sufficient basis for a finding that

the employer willfully violated the statute. In the present

case, Vernon Garber, who was manager at the Staunton

branch where the plaintiff worked, testified that he was

A-18

aware of the existence of the ADEA and that the statute

prohibited discrimination against workers on account of

age. He further testified that he never sought or received

any advice from his home office as to how to conduct

layoffs without violating the statute. Under Gilliam, this

evidence is insufficient to justify a finding that the

defendant willfully violated the ADEA. As the court of

appeals stated, “[T]here must be something more than a

retrospective finding by a jury that there was a simple

violation of the statute.” 820 F.2d at 1390.

Accordingly, the court will vacate its previous order

and grant defendant’s motion for judgment notwith-

standing the verdict as to the judgment for liquidated

damages. The court will deny the motion as to the

judgment for compensatory damages for the reasons

stated at the hearing on May 1, 1987.

Plaintiff's Motion for

Equitable Relief and Attorneys’ Fees

The parties have stipulated to the facts necessary for

the court’s disposition of the motion, and have waived

oral argument. For the reasons set forth below, the court

will grant plaintiff’s motion for equitable relief and

award $47,382.25 in attorneys’ fees and $1,042.42 in

costs.

1. Equitable Relief

In addition to the damages awarded by the jury, the

plaintiff seeks equitable relief in the form of lost pension

benefits. Based on the record adduced at trial, the court

concludes that such relief is appropriate. The parties

have stipulated that had the plaintiff voluntarily retired

on January 7, 1987, the date the verdict was returned,

his monthly pension benefit would have been $154.99.

Accordingly, the court will order that the plaintiff's

monthly pension benefit be increased to $154.99, retro-

active to January 7, 1987.

A-19

2. Attorneys’ Fees

The Age Discrimination in Employment Act

(ADEA), at 29 U.S.C. §626(b), incorporates by reference

the attorneys’ fees and costs provisions of the Fair Labor

Standards Act, 29 U.S.C. § 216. In applying these

provisions, courts have generally used the analysis used

for other civil rights statutes. See Smith v. Univ. of North

Carolina, 632 F.2d 316, 350 (4th Cir. 1980); Spagnuolo

v. Whirlpool Corp., 641 F.2d 1109, 1115 (4th Cir. 1981)

(citing Walston v. School Bd. of Suffolk, 566 F.2d 1201,

1204-05 (4th Cir. 1977) and approving use of criteria

therein for fixing fees in an ADEA case). This analysis,

based on factors set forth in Johnson v. Georgia High-

way Express, Inc., 488 F.2d 714 (Sth Cir. 1974), has

been refined as a result of the Supreme Court’s decision

in Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79

L.Ed.2d 891 (1984). In Daly v. Hill, 790 F.2d 1071,

1078 (4th Cir. 1986), the Court of Appeals for the Fourth

Circuit stated:

Consequently, Blum has shifted the timing of the

Johnson analysis, as it has been applied in this

~ circuit. The proper point at which the Johnson

factors are to be considered is in determining the

reasonable rate and the reasonable hours. A fee

based upon reasonable rates and hours is presumed

to be fully compensatory without producing a wind-

fall. In “exceptional circumstances,” this presump-

tively fair lodestar figure may be adjusted to account

for results obtained and the quality of representa-

tion. (Footnote omitted.)

A-20

Following Daly, this court will use the Johnson factors to

determine whether the fee claimed by plaintiff's attor-

neys is based on reasonable rates and reasonable hours.

Attorneys for plaintiff seek compensation for hours

and rates as follows:

Attorney Hours Rate Fee

Edward B. Lowry 143.9 $110.00 $15,829.00

Elizabeth P. Coughter 119.5 75.00 8,962.50

Robert W. Jackson 314.4 70.00 22,008.00

Subtotal $46,799.50

Paralegals 46.2 $ 35.00 $ 1,617.00

Law Clerks 78.4 35.00 2,744.00

Total $51,160.50

Plaintiff’s attorneys have submitted detailed summaries

of their time records, as well as an affidavit from a

member of the local bar attesting that the rates re-

quested are reasonable and customary rates for local

attorneys of like experience, skill, and reputation. The

court will consider each of the Johnson factors in light of

these materials and the record of the case.

(2, 3] As to the time and labor required (factor 1),

counsel for plaintiff unquestionably devoted « great deal

of both to the case. Some of this time and labor, however,

was consumed developing and presenting a disparate

impact theory of discrimination, which plaintiff with-

drew at a hearing on November 25, 1985. At the court’s

request, plaintiff’s attorneys submitted a memorandum

detailing the hours devoted to the disparate impact

theory:

Attorney Hours Rate Fee

Edward B. Lowry 21.4 $110.00 $2,354.00

Elizabeth P. Coughter 43.0 75.00 3,225.00

Robert W. Jackson 16.9 70.00 1,183.00

Paralegal 22.7 35.00 794.50

Total $7,556.50

Because this work was not required for the plain-

tiff’s ultimate victory on a disparate treatment theory,

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the court would ordinarily disallow the fees claimed.

Here, however, a substantial portion of the fees resulted

from preparing and arguing a motion to compel discov-

ery which the court granted. The court therefore will

allow one half of the fees claimed for work on the

disparate impact claim.

With regard to the second and third Johnson factors,

the court finds that the questions presented by the case

were not novel, but that the case certainly posed diffi-

culties from an evidentiary standpoint and required a

high degree of skill to win. Certainly, the skills of Mr.

Lowry, an experienced trial attorney, were not wasted on

the case.

The amount of time devoted to this case over a

four-year period necessarily precluded acceptance of

some other cases at the going rate (factor 4). In addition,

the attorneys represented plaintiff for this matter only;

they do not represent him generally. These two factors

weigh in favor of fixing the fee at the attorneys’ normal

hourly rate. The parties have stipulated that the rates

requested are the customary hourly rates for plaintiff’s

attorneys (factor 5). The affidavit of a local attorney

indicates that the rates are reasonable for this area.

[4] Plaintiff’s attorneys undertook representation

upon a contingent fee agreement (factor 6). Because

they would have received no fee at all had plaintiff lost,

they seek an upward adjustment of the overall award.

Since the award based on the requested hours and rates

exceeds the amount counsel could have received under

the normal contingent fee arrangement, however, the

court will decline to adjust the fee award upward.

Counsel obtained the best results possible in the case,

and the amount involved was certainly not insubstantial

(factor 8). Nevertheless, the court finds that a fee

computed on the basis of the hours and rates requested

will be fully compensatory.

As to the remaining Johnson factors, the experience,

reputation and ability of the attorneys (factor 9) is

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reflected in their hourly rates. The parties agree that no

time limitations were imposed by the client or the

circumstances (factor 7) and that the case was not of an

undesirable nature (factor 10). An award based on the

hours and rates requested by counsel, minus one half

the hours spent on the disparate impact claim, is in

keeping with awards made in similar cases in this court

(factor 12).

Weighing all of these factors, the court finds that the

rates requested by plaintiff's attorneys are reasonable.

The court will award the following fees based upon the

reasonable rates requested and approved by the court

and reasonable hours as calculated by the court:

Attorney Hours Rate Fee

Edward B. Lowry 133.2 $110.00 $14,652.00

Elizabeth P. Coughter - 93.5 75.00 7,350.00

Robert W. Jackson 305.95 70.00 21,416.50

Subtotal $43,418.50

Paralegals 34.85 $ 35.00 $ 1,219.75

Law Clerks 78.4 35.00 2,744.00

Total $47,382.25

[5] In making this determination, the court notes

that in the Fourth Circuit, fees for paralegal and law

clerk assistance are recoverable as part of an overall

award of attorneys’ fees and costs. Payne v. Travenol

Laboratories, Inc. 74 F.R.D. 19, 23 (N.D. Miss. 1976),

cited in Wheeler v. Durham Bad. of Educ. 585 F.2d 618,

624 (4th Cir. 1978). Having determined the lodestar

figure, the court finds no exceptional circumstances

which would justify adjusting this figure and concludes

that an award of $47,382.25 is fully compensatory

without producing a windfall.

Cost and Expenses

[6] Plaintiff’s attorneys have requested $1,042.42 in

costs and expenses, consisting of the filing fee, witness

fees, mileage for attorneys, and fees for deposition

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transcripts and a trial transcript. The filing fee and

witness fees are taxable as a matter of course in all

actions in federal court under 28 U.S.C. $1920. The fee

for the trial transcript would likewise be routinely taxed

as costs §1920, since the transcript was necessarily

obtained to argue against the defendant’s motion for

judgment notwithstanding the verdict and motion for

new trial. The court therefore will award all of these

costs.

[7] In civil rights cases, taxable costs are not limited

to those listed in §1920. In Wheeler v. Durham City Bd.

of Educ., 585 F.2d 618 (4th Cir. 1978), the Court of

Appeals for the Fourth Circuit held that the statutory

authorization of reasonable attorney’s fees in civil rights

cases includes litigation expenses. Attorneys’ fees

awards under the ADEA are specifically limited to

prevailing plaintiffs. 29 U.S.C. §216 (b). A prevailing

defendant may recover only those costs set forth in 28

U.S.C. $1920. Hackett v. Stuckey’s, Inc. 670 F.Supp.

172 (W.D. Va. 1987).

[9] In addition to the costs provided for in §1920,

plaintiff here has claimed attorneys’ mileage and fees for

deposition transcripts. The cost of necessary travel is an

expense specifically mentioned in Wheeler, 585 F.2d at

623. As for the depositions, the court finds that they

were reasonably taken in preparation for trial; indeed,

portions of the depositions were actually used at trial.

The costs of the depositions are certainly recoverable as

litigation expenses. See Marcoin, Inc. v. Williams, 88

F.R.D. 588, (E.D. Va. 1980).

Defendant argues that the Supreme Court’s recent

decision in Crawford Fitting Co. v. J.T. Gibbons, U.S..,

107 S.Ct. 2494, 96 L.Ed.2d 385 (1987) forbids taxing

costs which are not listed in 28 U.S.C. §1920. The court

disagrees. Crawford is specifically limited to the ques-

tion of reimbursement for fees paid to expert witnesses.

The Court of Appeals for the Fourth Circuit previously

addressed this question in Wheeler, concluding that

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such fees were not recoverable. 585 F.2d at 624. Thus,

the rule announced in Crawford is not a new one in the

Fourth Circuit.

For the foregoing reasons, the court will award the

full $1,042.42 in costs, along with $47,382.25 in attor-

ney’s fees. An appropriate order shall this day issue.

ORDER

For the reasons stated in the accompanying Memo-

randum Opinion, it is this day

ADJUDGED AND ORDERED

as follows:

1. The Order ot this court entered June 12, 1987,

shall be, and it hereby is, vacated.

2. Defendant’s motion for judgment notwithstand-

ing the verdict shall be, and it hereby is, granted as to

the verdict for liquidated damages.

3. Defendant’s motion for judgment notwithstand-

ing the verdict shall be, and it hereby is, denied as to the

verdict tor compensatory damages.

4. Judgment shall be, and it hereby is, entered in

favor of plaintiff in the amount of $40,642.66.

5. The defendant shall be, and it hereby is, ordered

to increase plaintiff’s monthly pension benefit to

$154.99, retroactive to January 7, 1987.

6. Plaintiff’s counsel shall be, and they hereby are,

awarded $47,382.25 in attorney’s fees.

7. Plaintiff shall be, and he hereby is, awarded

$1,042.42 as costs, to be taxed according to the bill of

costs filed by plaintiff on October 13, 1987.

8. This action shall be, and it hereby is, dismissed

and stricken from the docket of this court.