# Opposition Brief — Hajoca Corp. v. Herold

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 1107

## Text

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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
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ARGUMENT WITH RESPECT TO REASONS FOR
ng ei 6

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

Eee 3
ee 7

No. 88-1697

a
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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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15

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,

A-21

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

A-22

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1219%3A2. Public record. Not legal advice.