Appendix — Blue Bell, Inc. v. Wilhelm

So -= ] 0 vd 3 (y) : "ei L & dD

No. 85- pec 1%

BANIOL, JR.

1989

IN THE :

Supreme Court of the United States

OCTOBER TERM, 1985

BuvE BELL, INc.,

Petitioner,

FRANK WILHELM and Haro_p L. Kocut.

Petition For A Writ of Certiorari To

The United States Court of Appeals

For the Fourth Circuit

APPENDIX

WILLIAM L. AUTEN

W. T. CRANFILL, JR.

JOHN O. POLLARD

Attorneys for Petitioner

and Counsel of Record

3700 NCNB PLaza

Cuar.orte, N.C. 28280

(704) 372-3680

Of Counsel:

BLAKENEY, ALEXANDER & MACHEN

Charlotte, N.C.

TABLE OF CONTENTS

Page Number

OPINION AND DECISION, IN

UNITED STATES COURT

OF APPEALS FOR THE

FOURTH CIRCUIT,

SEPTEMBER 18, 1985 1-27

ORDER, IN THE UNITED

STATES DISTRICT COURT,

OCTOBER 11, 1984 28

FINAL JUDGMENT, IN THE

UNITED STATES DISTRICT

COURT, JULY 3, 1984 29-36

ORDER GRANTING EQUIT-

ABLE RELIEF, IN THE

UNITED STATES DISTRICT

COURT, JULY 3, 1984 37-43

ORDER AWARDING

ATTORNEYS' FEES,

IN THE UNITED STATES

DISTRICT COURT,

JULY 3, 1984 44-54

ORDER, IN THE UNITED

STATES DISTRICT COURT,

APRIL 30, 1984 $5-57

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NO. 84-1854

Frank E. Wilhelm, Karl F.

Gatlin and Harold L. Kogut,

Appellees,

versus

Blue Bell, Inc.,

Appellant.

Appeal from the United States District Court

for the Western District of North Carolina,

at Charlotte. James B. McMillan, United

States District Judge. (C/A 82-0507).

Argued: June 4, 1985 Decided: Sept. 18,1985

Before PHILLIPS, CHAPMAN and WILKINSON, Cir-

cuit Judges.

W.T. Cranfill, Jr. (John O. Pollard; Blake-

ney, Alexander § Machen on brief) for Appel-

lant; Samuel M. Millette; Ernest S. DeLaney,

III (DeLaney, Millette §& McKnight, P.A. on

brief) for Appellee.

ete

CHAPMAN, Circuit Judge:

Plaintiffs Frank Wilhelm, Karl Gatlin,

and Harold Kogut brought this age discrimina-

tion suit against their former employer,

Blue Bell, Inc., under the Age Dis-

crimination in Employment Act of 1967

(ADEA), 29 U.S.C. §621 et seq. Plaintiffs

Wilhelm and Gatlin alleged that Blue Bell

had discharged them because of their ages

and that their respective discharges were

without just cause and in violation of an

implied covenant of good faith and fair

dealing. Plaintiff Kogut later intervened

and alleged that Blue Bell had discharged

him because of his age. The plaintiffs'

state law claims were dismissed prior to

trial.

The jury found that Blue Bell had dis-

charged plaintiffs Wilhelm and Kogut because

of their ages in violation of the ADEA,

awarded them damages, and concluded that

me

Blue Bell's discrimination was "willful"

within the meaning of §7(b) of the ADEA, 29

U.S.C. §626(b). The jury also found that

plaintiff Gatlin had not filed his age claim

with the Equal Employment Opportunity Com-

mission within the applicable time period

and accordingly awarded him no damages. In

conformity with the jury's verdict the dis-

trict court awarded Wilhelm and Kogut back

pay, liquidated damages equal to the back

pay amounts, reinstatement, attorneys' fees

and costs. These orders were stayed pending

appeal.

Blue Bell appeals claiming that the dis-

trict court erred in denying its motions for

judgment notwithstanding the verdict or a

new trial and in instructing the jury on the

issue of willfulness. We affirm the district

court's denial of Blue Bell's motion for

judgment notwithstanding the verdict but

remand the case for a new trial on the issue

whe

of damages under a proper willfulness in-

struction.

I

Blue Bell manufactures and markets outer

wearing apparel. Its most common product

lines are blue jeans and related sportswear

bearing the "Wrangler" brand name. Plain-

tiffs Wilhelm and Kogut were both Field Sales

Representatives in the Southeastern Region

of Blue Bell's Wrangler Boyswear Division.

Wilhelm was responsible for the western half

of North Carolinal and Kogut was responsible

for the southern half of Florida.

Wilhelm was fired on February 2, 1982.

Wilhelm was forty-nine years old and had

been employed by Blue Bell for eight and

one-half years when he was fired. At trial,

Blue Bell claimed that it fired Wilhelm

lprior to mid-1981 Wilhelm was respon-

sible for forty-one counties in North Carol-

ina that ran from the Tennessee border to

Wilmington.

eee

ate

because he refused to make "line presenta-

tions" as instructed by his supervisor, Wil-

liam Wise, and because he essentially ceased

working in January 1982 after finishing a

one year probationary period. Specifically,

the evidence reveals that Wilhelm had worked

only thirty accounts since January 1, the

lowest of any salesman in the region. Blue

Bell also notes that Wilhelm's relative

salesman efficiency was the lowest in the

region and his total number of accounts

developed was the lowest in the region. In

addition, Wilhelm's own contact reports in-

dicate that he had made only one line pre-

sentation the first week in January, only

two the second week, and only four the third

week instead of the twenty per week required.

As a result, Wilhelm had the lowest bookings

in the region. |

Wilhelm presents an entirely different

picture of his performance. According to

sin

Wilheim, as of January 29, i982, he had

secured four new accounts, was twenty-four

percent ahead of his prior year's sales, was

number one in the Southeastern Region in

sales, and was number eleven out of eighty-

five sales persons in the nation. Further-

more, Wilhelm notes that these figures do

not even take into account sales for the

last week in January. Wilhelm states that

had he received credit for all of the sales

he made, his actual percentage ahead of sales

for the year before would have been thirty-

four percent and his position nationally

would have been number nine out of eighty-

five.

Kogut was fired on May 16, 1983. Kogut

was fifty-two years old and had been employed

by Blue Bell for twelve years when he was

fired. At trial, Blue Bell claimed that it

fired Kogut and an under forty salesman named

Randy Cloud because they both failed, after

a eT oe Neen ee |

~ =

specific counseling and warning, to fulfill

the evaluation criteria imposed on all the

Boyswear salesmen in the Southeastern Region

as part of an intensive eight-week period

of evaluation. Blue Bell replaced Kogut

with a twenty-eight year old salesman.

Kogut also presents a different picture

of his performance. According to Kogut, at

the time he was fired he was number one in

the six-man district in accomplishing per-

cent of sales quota and was number two in

the entire Southeastern Region in acquiring

new accounts. Kogut's immediate supervisor

during the evaluation period, District Mana-

ger Joe C. Glover, testified that as of

May 19, 1983, Kogut was at seventy-eight

percent of quota with approximately four and

one-half months laft in the fiscal year. In

addition, Kogut notes that Blue Bell fired

him approximately one month after he gave

deposition testimony unfavorable to Blue

a

xe

Bell as part of the discovery proceedings

in the Gatlin and Wilhelm lawsuit.

II

To establish discrimination in an age

discrimination case, the plaintiff must

prove by a preponderance of the evidence

that "but for" the defendant's motive to

discriminate against an older employee, he

would not have been terminated. E.E.0.C.

v. Western Electric Co., Inc., 713 F.2d 1011,

1014 (4th Cir. 1983); Lovelace v. Sherwin-

Williams Co., 681 F.2d 230, 239 (4th Cir.

1982); ioeb v. Textron, Inc., 600 F.2d 1003,

1019 (lst Cir. 1979). The plaintiff may

meet this burden "under ordinary principles

of proof by any direct or indirect evidence

relevant to and sufficiently probative of

the issue...." Lovelace, 681 F.2d at 239.

Alternatively, the plaintiff may rely on the

judicially created proof scheme for Title

VII cases, see McDonnell Douglas Corp. v.

at.

Green, 411 U.S. 792 (1973); Texas Department

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

248 (1981), which has been adopted for appli-

cation in ADEA litigation. See E.E.0.C. v.

Western Electric Co., Inc., 713 F.2d at 1014;

Fink v. Western Electric Co., Inc., 708 F.2d

909 (4th Cir. 1983); Smith v. University of

North Carolina, 632 F.2d 316 (4thCir. 1980).

In this case it is undisputed that plain-

tiffs Wilhelm and Kogut were in the protected

age bracket when Blue Bell fired them. Ac-

cordingly, the sole issue for trial was

whether age was a determining factor in the

discharge of each plaintiff. In Lovelace

this court established that the dispositive

motivational issue of whether the plaintiff

was discharged because of his age can be

proven without resort to the McDonnell Doug-

las format:

«ie

Where -- as here, and ordinarily

-- coverage and unfavorable action are

not disputed, the dispositive and only

issue isadifficult, but narrow, moti-

vational one: whether the employee

"was [discharged] because of his age."

This may of course be proved under

Ordinary principles of proof by any

direct or indirect evidence relevant

to and sufficiently probative of the

issue,...without resort to any

special judicially created pre-

sumption or inferences related to the

evidence.

681 F.2d at 239 (emphasis added)(quoting

Loeb, 600 F.2d at 1017).

In Lovelace this court held that direct

evidence of age discrimination is sufficient

to overcome a motion for a directed verdict

or judgment notwithstanding the verdict.

There, this court stated that in ruling upon

a sufficiency motion in an ADEA case:

The first question is whether plain-

tiff's evidence may have carried the

Original production burden without

need to invoke the McDonnell-Douglas

presumption. This may have occurred,

for example, through direct evidence

of a stated purpose to disfavor be-

cause of age....If this is the judi-

Cial assessment, inquiry of course

ceases, no further production burdens

ait.

are put in play, and the motion can

be denied.

681 F.2d at 240 (emphasis added)(citation

omitted). Furthermore, in Spagnuolo v.

Whirlpool Corp., 641 F.2d 1109 (4th Cir.

1981), this court ruled that where the

plaintiff in an ADEA case relies primarily

upon direct evidence of a discriminatory

motive by the employer, the case "'simply

does not fit the mold of the McDonnell Doug-

las forumula,''' and the plaintiff has no

need to prove independently that the defend-

ant's articulated reasons for a discharge

were "pretextual." Id. at 1113 § n.2 (quo-

ting Loeb, 600 F.2d at 1018).

In considering the motion for judgment

notwithstanding the verdict, the district

court was required to view the evidence in

the light most favorable to Wilhelm and Kogut

and to draw all reasonable inferences in

their favor. The district court could not

weigh evidence or assess the credibility of

Ǥ%

witnesses. 9 Wright §& Miller, Federal Prac-

tice § Procedure §2524 at 543-45 (1971).

The test for determining whether judgment

notwithstanding the verdict should be en-

tered is whether, viewing the evidence in

the light most favorable to the appellee-

plaintiff, there is substantial evidence in

the record to support the jury's findings.

Brady v. Allstate Insurance Co., 683 F.2d

86, 89 (4th Cir. 1982), cert. denied, 459

U.S. 1038 (1982); Miller's Mutual Insurance

Association v. Southern Ry. Corp., 483 F.2d

1044 (4th Cir. 1973).

Unlike the motion for judgment notwith-

standing the verdict, the district court may

weigh evidence and assess credibility in

ruling on a motion for a new trial. See

Wyatt v. Interstate §& Ocean Transport Co.,

623 F.2d 888, 891-2 (4th Cir. 1980). Indeed,

the district court had a duty to order a new

trial if "this action [was] required in order

sits

to prevent injustice." 11 Wright § Miller,

Federal Practice §& Procedure §2805 at 38

(1973). However, the grant or denial of a

motion for a new trial is within the sound

discretion of the district court and will

not be disturbed absent a clear showing of

some abuse of discretion. See Abasiekong

v. City of Shelby, 744 F.2d 1055, 1059 (4th

Cir. 1984); United States v. Horton, 622

F.2d 144, 147 (Sth Cir. 1980).

III

A

The first issue on appeal is whether the

district court erred in denying Blue Bell's

motions for judgment notwithstanding the

verdict or a new trial. Blue Bell argues

that the plaintiffs have failed to establish

a prima facie case of age discrimination

because the record:conclusively shows that

neither Wilhelm nor Kogut was subjected to

any disparate treatment because of his age.

«the

Blue Bell emphasizes that between 1977 and

1983 only two over-forty Boyswear salesmen

in the Southeastern Region (plaintiffs Wil-

helm and Kogut) were discharged. During the

same period, however, four other under-forty

salesmen were also discharged. Furthermore,

Blue Bell maintains that it fired both Wil-

helm and Kogut because they failed ade-

quately to discharge their duties as mea-

sured by objective criteria. Blue Bell also

argues that there is no substantial evidence

to support the jury's findings that both

Wilhelm and Kogut had successfully rebutted

Blue Bell's legitimate, nondiscriminatory

reasons for its employment decisions.

The plaintiffs introduced ample direct

evidence suggesting that Blue Beli fired

them because of their ages. This direct

evidence of age discrimination consisted of

testimony relating how various Blue Bell

officials had indicated an intent to replace

+ i.

Older salesmen with younger salesmen. For

example, plaintiffs introduced evidence of

a conversation between Wilhelm and his imme-

diate supervisor, William Wise, in February

1981, less than one year before Wilhelm's

discharge, relating to various personnel

changes in the company. Wilhelm testified

that Wise told him that "eventually Blue

Bell is going to have $15,000 a year college

boys for salesmen....Blue Bell cannot stand

these five and six percent commission rates;

so, in time they will have all young college

guys on a salary, being paid expenses and

going around taking inventory in Blue Bell

accounts." App. at 406.

The plaintiffs also introduced evidence

of a conversation between Wilheim and Wise

in September 1981 when Wise placed Wilhelm

on probation. At that time Wilhelm protested

that his performance was better than the

other salesmen in the Region and accused

athe

Blue Bell of being "on a youth campaign" and

wanting "to get rid of the older guys and

replace them with younger people.™ App. at

423. Instead of denying that accusation,

Wise confirmed that he believed that "older

people tend to become complacent whereas

younger people generally have more crive and

ambition."" Id. Wilhelm testified that Wise

told him that "He was going to take care of

him first and then there were going to be

some others." Id.

Kogut testified that in September or Octo-

ber 1981 Wise conceded that he believed that

"younger salesmen do a much better job than

Older salesmen."" App. at 580. According

to Kogut, Wise further stated that "in the

not too distant future, all Wrangler sales-

men would be young, college boys driving

leased Chevrolets, taking inventory on big

Wrangler accounts." Id. Kogut testified

to these statements by Wise while he was a

a =

Blue Bell employee and prior to becoming a

plaintiff in this case.

Wilhelm and Kogut testified that they

informed Jerry Poole, the president of the

Boyswear Division of Blue Bell, about the

statements made by Wise that younger sales-

men do a much better job than older salesmen

and that the future Blue Bell salesman would

be a young college boy. According to Wilhelm

and Kogut, in each instance Poole responded,

"That really doesn't bother me too much."

App. at 440, 776. At trial Poole admitted

that Wilhelm and Kogut had informed him of

Wise's age related remarks prior to their

termination and that he had, in fact, re-

sponded to each that the statements did not

bother him. App. at 776. Poole explained

that these threats to terminate older sales-

men and replace them with "college boys" did

not bother him because he was not "going to

let it happen." Id. Furthermore, the

«tin

uncontradicted evidence at trial estab-

lished that when Poole was first informed

that Wise had placed Wilhelm on probation

in September 1981, five months prior to his

firing, Poole responded, "you have to under-

stand that Bill Wise is of the opinion that

the younger salesmen do a much better job

than you older fellows. You older fellows

have a tendency to become complacent after

you have been around a while and run out of

steam."" App. at 579.

Wise ceased to be Kogut's manager and was

replaced by Joe Glover. The plaintiffs

offered evidence that in December 1981

Glover told Kogut, Wilhelm and another Blue

Bell salesman that "Blue Bell doesn't want

salesmen with good records anymore....They

want young men who can do the work for a lot

less money." App. at 445-46, 597-98. The

plaintiffs further offered evidence that in

December 1981, one month prior to Wilhelm's

ott.

firing, the National Sales Manager of Blue

Bell, Ed Weymeth, approached Wilhelm, Kogut,

and one other older salesman and said, ''My

God, [are] you old guys still around. I

thought we got rid of you at the last sales

meeting.'"' App. at 596, 445.

We conclude that there is substantial

evidence in the record to support the jury's

findings that Blue Bell discharged Wilhelm

and Kogut because of their ages. The plain-

tiffs introduced ampie direct evidence of

age discrimination from which the jury could

have concluded that Blue Bell fired Wilhelm

and Kogut because of their ages. This direct

evidence of age discrimination, if believed

by the jury, was sufficient by itself to

support a verdict for the plaintiffs and,

concomitantly, to r CRA We a motion for a

directed verdict or a judgment notwith-

standing the verdict. Lovelace v. Sherwin-

Williams Co., 681 F.2d at 240. In addition,

-20-

this direct evidence of age discrimination

obviated the need for an independent showing

by plaintiffs that Blue Bell's articulated

reasons for their discharges were "pre-

textual.'"' Spagnuolo v. Whirlpool Corp., 641

F.2d at 1113. Thus, the district court did

not err in denying Blue Bell's motion for

judgment notwithstanding the verdict. For

the same reasons, the district court did not

abuse its discretion in denying Blue Bell's

motion for a new trial.

B

The second issue is whether the district

court erred in instructteg the jury on the

issue of willfulness. Section 7(b) of the

ADEA, 29 U.S.C. §626(b), provides that a

prevailing plaintiff is entitled to double

damages in the case of a "willful" violation

of the ADEA. In this case the district court

awarded the plaintiffs liquidated damages

"based upon the jury verdict, and all the

x

evidence before the court" and because the

"discriminatory actions of defendant to-

wards {Wilhelm and Kogut] were willful and

not effected in good faith."

Despite its failure to object at trial,

' Blue Bell argues that the district court

erred in instructing the jury on the issue

of willfulness. It claims that the instruc-

tion was inconsistent with the Supreme

Court's recent decision in TransWorld Air-

ways, Inc. v. Thurston, U.S. » 405

S.Ct. 613 (1985), decided during the pen-

dency of this appeal. We analyze the fas

struction in light of TransWorld. See United

States v. The Schooner Peggy, 5 U.S. 1 (1

Cranch) 102 (1801); Bradley v. School Board

of the City of Richmond, 416 U.S. 696, 711-

12 (1974).

In TransWorld the Supreme Court approved

the Second Circuit's definition that a vio-

lation is willful if "'the employer either

-22-

knew or showed reckless disregard for the

matter of whether its conduct was prohibited

by the ADEA.'" 105 S.Ct. at 625 (quoting

the Second Circuit below, 713 F.2d 940, 956

(2d Cir. 1983). This holding prevents an

award of liquidated damages when a diligent

employer, fully aware of the ADEA and pur-

suing a mistaken path to comply with it,

acts reasonably and in good faith. 105S.Ct.

at 625 n.22, 626. The Supreme Court expressly

rejected the argument that a violation of

the ADEA is willful if the employer simply

knew of the potential applicability of the

Act:

Even if the “in the picture" standard

were appropriate for the statute of

limitations, the same standard should

not govern a provision dealing with

liquidated damages. More important-

ly, the broad standard proposed by the

respondents would result in an award

of double damages in almost every

case. As it would be virtually

impossible for an employer to show

that he was unaware of the Act and its

potential applicability. Both the

legislative history and the structure

i

of the statute show that Congress in-

tended a two-tiered liability scheme.

Id. at 625 (footnote omitted).

In this case the district court initially

instructed the jury as follows:

If you find that the discharge of one

of the plaintiffs was knowingly and

intentionally done, with the know-

ledge that the transaction was subject

to the Age Discrimination Act and

that...it was intentionally done know-

ing what the consequences would be and

that conduct was in violation of the

law to the knowledge of the actor,

then you would answer that issue yes.

Otherwise, you would answer it no.

After its initial instructions, the district

court gave counsel for both sides an oppor-

tunity outside the presence of the jury to

object to the instructions or to propose

additional instructions. Plaintiffs' coun-

sel objected to the court's instruction that

Blue BeJ)1] must have intentionally violated

the law in order for its conduct to have

been willful and proposed an additional in-

struction on that issue. The district court

24a

then gave an additional two sentence in-

struction on the issue of willfulness:

Conduct is willful when it is done

intentionally, knowingly, with the in-

tention to accomplish the result of

firing and with awareness on the part

of the actor that the conduct is

covered by the Age Law. It doesn't

quite go so far as to require that

there be proof of an intentional act

to violate the law but there does have

to be a consciousness of the appli-

cation of the law in order for it to

be willful. (emphasis added).

The district court's second willfulness

instruction is similar to the "in the pic-

ture" standard rejected in TransWorld. As

‘the Supreme Court noted in TransWorld, this

type of standard would result in an award

of double damages in nearly every case.

Thus, we reverse the district court's award

of liquidated damages and remand the case

for a new trial on the issue of damages under

a willfulness instruction consistent with

the Supreme Court's decision in TransWorld.

a,

C

The third issue concerns various evi-

dentiary rulings. Blue Bell contends the

district court committed four separate evi-

dentiary errors in (1) refusing to allow

counsel for Blue Bell to cross-examine Kogut

about whether there was a territory that

encompassed the northern half of Florida,

the southern part of Georgia, and the part

of South Carolina including Charleston; (2)

refusing to allow Blue Bell to introduce

into evidence during the testimony of Joe

Glover part of a chart which contained sun-

maries of information from other Blue Bell

records concerning the performance of sales-

men in both the northern and southern dis-

tricts; (3) admitting into evidence a letter

written by William Holt, the president of

Blue Bell's Maverick Division, to all retail

distributors of Blue Bell's products; and

(4) refusing to allow Blue Bell to introduce

testimony and exhibits concerning the sales

-26-

performance of Wilhelm's twenty-four year

old replacement, Wayne Knighton.

The admission or exclusion of evidence

rests within the sound discretion of the

district court and cannot be reversed absent

abuse of that discretion. DeBenedetto v.

Goodyear Tire § Rubber Co., 754 F.2d 512,

518 (4th Cir. 1985); Reed v. Tiffin Motor

Homes, Inc., 697 F.2d 1192 (4th Cir. 1982).

After carefully reviewing the record we are

unable to conclude that the district court

abused its discretion in this case.

IV

In summary, we affirm the district

court's denial of Blue Bell's motion for

judgment notwithstanding the verdict but

remand the case for a new trial on the issue

of damages under a proper wilifulness in-

struction. On remand, the district court

should instruct the jury on willfulness in

conformity with the Supreme Court's recent

= 27m

decision in TransWorld Airways, Inc. v.

Thurston, U.S. , 105 S.Ct. 613 (1985).

REMANDED.

-28-

DISTRICT COURT OF THE UNITED STATES

WESTERN DISTRICT OF NORTH CAROLINA

Charlotte Division

C-C-82-507-M

FRANK WILHELM, KARL F.

GATLIN and HAROLD L. KOGUT,

Plaintiffs,

ORDER

Vv.

BLUE BELL, INC.,

a. ss _

Defendant.

Defendant on September 5, 1984, filed a

motion for stay of judgment pending appeal

from this court's orders of July 3, 1984.

Plaintiffs' counsel has not opposed this

motion.

The motion for a stay is GRANTED.

IT IS SO ORDERED, this the 11 day of

October, 1984.

s/

James B. McMillan

United States District

Judge

=29.

DISTRICT COURT OF THE UNITED STATES

WESTERN DISTRICT OF NORTH CAROLINA

Charlotte Division

C-C-82-507-M

FRANK WILHELM, KARL F.

GATLIN and HAROLD L. KOGUT,

Plaintiffs,

FINAL

v. JUDGMENT

BLUE BELL, INC.,

i. a

Defendant.

This case was tried before a jury begin-

ning on February 27, 1984, and on March 5S,

1984, the jury returned verdicts as follows:

As to the plaintiff Frank E. Wilhelm:

1. Did defendant discharge plaintiff

because of his age, in violation of the

Age Discrimination in Employment Act?

ANSWER: Yes.

2. If so, what amount is plaintiff

entitled to recover for loss of earnings

up to the present?

ANSWER: $108,300

3. If so, was defendant's discharge

of the plaintiff in violation of the age

law wilful?

«ttn

ANSWER: Yes.

As to the plaintiff Karl F. Gatlin:

1. Did defendant Blue Bell fail to

post and keep posted in conspicuous

places on its premises notices approved

by the Secretary of Labor advising em-

ployees of their rights under the Age

Discrimination in Employment Act?

ANSWER: No.

2. Did the plaintiff file a charge

of age discrimination within 180 days of

the time he retained a lawyer or obtained

actual knowledge of his rights under the

Age Discrimination in Employment Act?

ANSWER: No

3. Did defendant discharge plaintiff

because of his age in violation of the

Age Discrimination in Employment Act?

ANSWER: Yes

4. If so, what amount is plaintiff

entitled to recover for loss of earnings

up to the present?

ANSWER: $ 0

S. If so , was defendant's discharge

of the plaintiff in violation of the age

law wilful?

ANSWER: Yes.

=

As to the plaintiff Harold L. Kogut:

1. Did defendant discharge plaintiff

because of his age, in violation of the

Age Discrimination in Employment Act?

ANSWER: Yes

2. Did defendant discharge plaintiff

because plaintiff gave a deposition in

the age discrimination suits of Wilhelm

and Gatlin?

ANSWER: Yes

3. If so, what amount is plaintiff

entitled to recover for loss of earnings

up to the present?

ANSWER: $55,660

4. If so, was defendant's discharge

of the nlaintiff in violation of the age

law wilful?

ANSWER: Yes.

Claims for equitable relief were tried

to the court simultaneously. With this

judgment the court is entering an order

granting equitable relief and an order al-

lowing attorneys' fees.

On the basis of the foregoing, IT IS

ORDERED, ADJUDGED, AND DECREED:

=u

1. That plaintiff Gatlin shall have and

recover nothing of defendant.

2. That plaintiff Frank E. Wilhelm shall

have and recover of defendant the sum of

$108,300.00 for the loss of earnings up to

the time of the verdict of the jury.

3. That plaintiff Wilhelm shall have and

recover of defendant an additional amount

of $108,300 as liquidated damages.

4. That defendant shall reinstate plain-

tiff Wilhelm as a salesman in the Boys Wear

Division of the southeast region, having the

same western North Carolina territory that

he had at the time of his discharge, or to

a position in the same location and of stat-

ure, compensation, future prospects, and

responsibility equal to the position he had

at the time he was unlawfully discharged.

5. That defendant shall provide plain-

tiff Wilhelm with all the rights and bene-

fits, including pension and profit sharing

-33-

benefits, life insurance, medical insur-

ance, travel and accident insurance, and

disability income insurance which would have

accrued to plaintiff if he had not been

illegally discharged by defendant.

6. That from the date of the verdict of

the jury until such time as plaintiff Wilhelm

is reinstated, defendant shall pay plaintiff

the same salary, benefits and emoluments,

including increases ansd bonuses, as have

been or are being and will be paid to other

sales representatives in the Wrangler Boys

Wear Division of the southeast region with

no less seniority than plaintiff, less such

amounts as plaintiff earns, or is able to

earn with reasonable diligence, during that

period.

7. That plaintiff Harold Kogut shall

have and recover of defendant the sum of

$55,660.00 for the loss of earnings up to

the time of the verdict of the jury.

Shin

8. That plaintiff Kogut shall have and

recover of defendant an additional amount

of $55,660.00 as liquidated damages.

9. That defendant shall reinstate plain-

tiff Kogut as a salesman in the Boys Wear

Division of the southeast region, having the

same southern Florida territory that he had

at the time of his discharge, or toa position

in the same location and of stature, compen-

sation, future prospects, and _ respon-

sibility equal to the position he had at the

time of his discharge.

10. That defendant shall provide plain-

tiff Kogut with all the rights and benefits,

including pension and profit sharing bene-

fits, life insurance, medical insurance,

travel and accident insurance, and dis-

ability income insurance which would have

accrued to plaintiff if he had not been

illegally discharged by defendant.

+

11. That from the date of the verdict

of the jury until such time as plaintiff

Kogut is reinstated, defendant shall pay

plaintiff the same salary, benefits and emol-

uments, including increases and bonuses, as

have been or are being and will be paid to

other sales representatives in the Wrangler

Boys Wear Division of the southeast region

with no less seniority than plaintiff, less

such amounts as plaintiff earns, or is able

to earn with reasonable diligence, during

that period.

12. That plaintiffs Wilhelm and Kogut

shall recover attorneys' fees of $116,624.25

to be paid to the firm of DeLaney, Millette,

DeArmon and McKnight.

13. That plaintiffs Wilhelm and Kogut

shall recover the costs and expenses of this

action, including the expenses incurred by

the law firm of DeLaney, Millette, DeArmon

and McKnight, in the sum of $5,388.10.

7” a

14. That interest shall be paid on all

sums now payable, at the maximum rate allowed

under North Carolina law, from the date of

entry of the jury's verdict.

This 3 day of July, 1984.

s/

James B. McMillan

United States District

Judge

-37-

DISTRICT COURT OF THE UNITED STATES

WESTERN DISTRICT OF NORTH CAROLINA

Charlotte Division

C-C-82-507-M

FRANK WILHELM, KARL F. )

GATLIN and HAROLD L. KOGUT, )

)

Plaintiffs, )} ORDER GRANTING

) EQUITABLE RELIEF

v. )

)

BLUE BELL, INC., )

)

Defendant. )

This case was tried before a jury, which

on March 5, 1984, returned a verdict in favor

of plaintiffs Frank E. Wilhelm and Harold

L. Kogut. Plaintiffs also seek equitable

relief, including reinstatement to the posi-

tions they held before the actions of defend-

ant which culminated in their illegal dis-

charge. Specifically, plaintiff Wilhelm

seeks reinstatement to his former position

as a salesman in the Boys Wear Division of

defendant's southeast region; plaintiff Ko-

gut also seeks reinstatement to his former

="

position as a salesman in the Boys Wear

Division of defendant's southeast region.

Based upon the jury verdict, and all the

evidence before the court, I find the fol-

lowing:

1. That age was the principal and deter-

mining factor in defendant's decision to

discharge plaintiff Wilhelm from his posi-

tion as a salesman with the Wrangler Boys

Wear Division of defendant's southeast re-

gion on February 2, 1982, and that the dis-

criminatory acts of defendant toward plain-

tiff Wilhelm were wilful, and not effected

in good faith.

2. That plaintiff Wilhelm is entitled

to an order granting him reinstatement to

his former position with defendant.

3. That age, and retaliation for plain-

tiff Kogut having testified at a deposition

in this case brought under the Age Discrimin-

ation in Employment Act (ADEA) were the

(

. =

principal and determining factors in defend-

ant's decision to discharge plaintiff Kogut

from his position as a salesman with the

Wrangler Boys Wear Division of defendant's

seutheast region on May 16, 1983, and that

the discriminatory actions of defendant to-

_ ward plaintiff Kogut were wilful, and not

effected in good faith.

4. That plaintiff Kogut is entitled to

an order granting him reinstatement to his

former position with defendant.

Accordingly, the prayers for equitable

relief are allowed as follows:

1. Defendant is enjoined to reinstate

plaintiff Frank E. Wilhelm as a salesman in

the Boys Wear Division of the southeast

region, having the same western North Carol-

ina territory that he had at the time of his

discharge, or to a position in the same

location and of stature, compensation, fu-

ture prospects, and responsibility equal to

-40-

the position he had at the time he was

unlawfully discharged.

r Defendant is further enjoined to

provide plaintiff Wilhelm with all the

rights and benefits, including pension and

profit sharing benefits, life insurance,

medical insurance, travel and accident in-

surance, and disability income insurance

which would have accrued to plaintiff if he

had not been illegally discharged by defend-

ant.

3. From the date of the verdict of the

jury until such time as plaintiff Wilhelm

is reins*ated, defendant shall pay plaintiff

the same salary, benefits and emoluments,

including increases and bonuses, as have

been or are being and will be paid to other

sales representatives in the Wrangler Boys

Wear Division of the southeast region with

no less seniority than plaintiff, less such

amounts as plaintiff earns, or is able to

aia.

earn with reasonable di‘igence, during that

period.

4. Defendant shall pay $108,300.00 to

plaintiff Wilhelm as liquidated damages for

wilful violation of the Age Discrimination

in Employment Act.

S. Defendant is enjoined to reinstate

plaintiff Harold Kogut as a salesman in the

Boys Wear Division of the southeast region,

having the same southern Florida territory

that he had at the time of his discharge,

or to a position in the same location and

of stature, compensation, future prospects,

and responsibility equal to the position he

had at the time of his discharge.

6. Defendant is further enjoined to

provide plaintiff Kogut with all the rights

and benefits, including pension and profit

sharing benefits, life insurance, medical

insurance, travel and accident insurance,

and disability income insurance which would

=42-

have accrued to plaintiff if he had not been

illegally discharged by defendant.

7. From the date of the verdict of the

jury until such time as plaintiff Kogut is

reinstated, defendant shall pay plaintiff

the same salary, benefits and emoluments,

including increases and bonuses, as have

been or are being and will be paid to other

Sales representatives in the Wrangler Boys

Wear Division of the southeast region with

no less seniority than plaintiff, less such

amounts as plaintiff earns, or is able to

earn with reasonable diligence, during that

period.

8. Defendant shall pay $55,660.00 to

plaintiff Kogut as liquidated damages for

wilful violation of the ADEA.

These decisions shall be incorporated

into the judgment.

ai te

IT IS SO ORDERED, this 3 day of July, 1984.

s/

James B. McMillan

United States District

Judge

otic

DISTRICT COURT OF THE UNITED STATES

WESTERN DISTRICT OF NORTH CAROLINA

Charlotte Division

C-C-82-507-M

FRANK WILHELM, KARL F. )

GATLIN and HAROLD L. KOGUT,

)

)

Plaintiffs, )

) ORDER AWARDING

Vv. ATTORNEYS' FEES

)

)

)

BLUS BELL, INC.,

Defendant.

On this date, the court entered a final

judgment on the jury's verdict in favor of

plaintiffs Wilhelm and Kogut, and in favor

of defendant with respect to the claim of

plaintiff Gatlin, in this action brought

under the Age Discrimination in Employment

Act (ADEA), 29 U.S.C. §621 et seq. Attorneys

for the plaintiffs have filed a petition for

an award of attorneys' fees and costs pur-

suant to 29 U.S.C. §626(b) and 4¥§216(b). As

prevailing parties, plaintiffs Wilhelm and

Kogut are entitled under these sections of

the statute to a reasonable attorneys' fee.

«ie

In calculating a ‘re’ sonable attorneys’

fee" the court is guided by the Supreme

Court's recent decision in Blum vy. Stenson,

__ ULS. ___, $2 U.S.L.W. 4337 (March 21,

1984). Pursuant to tue guidelines set forth

in that opinion, the court must make an

initial estimate of a reasonable fee by

multiplying the number of hours reasonably

expended on the litigation by a reasonable

hourly rate. A reasonable hourly rate is

generally deemed to be the prevailing market

rate for the services rendered; the burden

is on the fee applicant to produce evidence

that the requested rates are in line with

those prevailing in the community for simi-

lar services by lawyers of reasonably compar-

able skill, experience, and reputation.

U.S. __, S52 U.S.L.W. at 4379, n.1l.

The court, in its discretion, may con-

sider a number of factors in determining a

reasonable hourly rate, including’ the

elie

experience and special skills of the

attorney, the quality of representation, the

novelty and complexity of issues, and the

results obtained in the action. —__ U.S.

___, 52 U.S.L.W. at 4380. This court will

also consider the factors set forth in

Johnson v. Georgia Highway Express, 488 F.2d

714 (Sth Cir. 1974), as adopted by the Fourth

Circuit in Barber v. Kimbrell's Inc., 577

F.2d 216 (4th Cir.), cert. den., 439 U.S.

974 (1978), and Anderson v. Morris, 658 F.2d

246 (4th Cir. 1981). See also, Hensley v.

Eckerhart, U.S. __, 51 U.S.L.W. 4552

(May 16, 1983).

Counsel for the plaintiffs have submitted

affidavits showing that Mr. Samuel M. Mil-

lette spent 905.8 hours working on this case;

Mr. Ernest S. DeLaney, III, spent 329.3 hours

working on this case; and Mr. Timothy G.

Sellers spent 9.8 hours working on this case.

Mr. Millette and Mr. DeLaney have each

art, Pe

claimed an hourly rate of $125.40; Mr. Sel-

lers has claimed an hourly rate of $85.00.

In determining the reasonableness of the

hours claimed and the requested rates, the

court has considered the following:

1. The special skill, experience and

reputation of counsel. -- Mr. Millette has

practiced law in North Carolina since 1951,

and is widely experienced in all levels of

trial and appellate litigation. Mr. Mil-

lette may well have had more experience in

the prosecution of age discrimination case

than any other attorney in the State of North

Carolina. Mr. Millette enjoys an excellent

reputation as a highly skilled attorney.

Mr. DeLaney has been a member of the North

Carolina bar for over eleven years. During

that time he has had extensive experience

in federal litigation of employment dis-

crimination suits, particularly actions

«48~

brought under the ADEA. His reputation in

the community is also excellent.

2. The quality of representation.

-- Plaintiffs' counsel remdered a high

quality of service to their clients. Counsel

vigorously and successfully pursued

contested matters of pretrial discovery, and

compiled and organized a substantial factual

record by the time of trial. The five-day

trial was smooth and Galueerructed by delay,

and plaintiffs' evidence was presented in

an exceptionally clear and concise manner.

a The results obtained. -- Counsel

acheived excellent results for both plain-

tiffs Wilhelm and Kogut. The jury found

that both of these plaintiffs had been dis-

Criminated against in violation of the law,

and it awarded damages fully commensurate

with those findings. Plaintiffs will re-

ceive not only the monetary compensation for

the detriment they have suffered, but they

-&9-

will also ultimately be returned to their

rightful places.

Despite counsel's best efforts, plain-

tiff Gatlin did not prevail on his claim.

Nevertheless, plaintiff Gatlin's presence

in this lawsuit was significantly beneficial

to the claims of plaintiffs Wilhelm and

Kogut; his testimony provided valuable evi-

dence to support the jury's finding that

defendant had discriminated against Wilhelm

and Kogut in violation of the ADEA.

4. The novelty and complexity of the

issues. -- This case did not involve novel

issues of law; however, it involved complex

and hotly contested factual issued that were

hard fought at every stage. Plaintiffs'

counsel were required to organize an exten-

sive and complicated factual record, based

on both circumstantial and direct evidence;

they did so in a manner that rendered the

-50-

case readily comprehensible to both judge

and jury.

5. The preclusion of other employment

by the attorneys because they handled this

case. -- This factor is not significant in

determining a reasonable fee in this case.

6. Time limitations imposed by the client

or the circumstances. -- This factor is not

Significant in determining a reasonable fee

in this case.

7. The undesirability of the case within

the legal community. -- This factor is not

Significant in determing a reasonable fee

in this case.

8. The nature and length of the profes-

sional relationship. -- This factor is not

Significant in determing a reasonable fee

in this case.

9. Time and labor expended. -- Plain-

tiffs' counsel, among them, devoted 1,244.9

hours to this case. The court finds that

sain

the time and labor expended by counsel was

reasonable and fully commensurate with both

the seriousness of the case and the level

of their ability.

Plaintiff Gatlin did not prevail on his

claim and, therefore, most of the hours

expended on his behalf will not be included

in the award. The court will not reduce the

number of compensable hours by one-third,

however, because the time spent by counsel

preparing plaintiff Gatlin's case was neces-

sarily beneficial to plaintiffs Wilhelm and

Kogut, in that there was a substantial over-

lap of facts relevant to all three cases.

Therefore, the court will reduce the compen-

sable hours claimed by plaintiffs' counsel

by twenty-five percent. The resulting com-

pensable hours are as follows:

- 52-

Mr. Millette: 905.8 hours minus 226.45

(25% x 905.8) = 679.35 hours.

Mr. DeLaney: 3239.3 hours minus 82.325

(25% x 329.3) = 246.98 hours

10. Customary fee for like work. -- The

court has considered the affidavits of coun-

sel, the supporting affidavits submitted by

reputable and experienced attorneys in the

community, and all of the foregoing factors,

and finds that a reasonable hourly rate for

Mr. Millette is $125.00 and for Mr. DeLaney

is $125.00, and for Mr. Timothy G. Sellers

is $85.00.

Accordingly, the court has calculated its

initial estimate of a reasonable fee in the

following manner:

Mr. Samuel M. Millette

679.35 hours x $125.00

per hour = $ 84,918.75

Mr. Ernest S. DeLaney, III

246.98 hours x. $125.00

per hour = 30,872.50

Mr. Timothy G. Sellers

9.8 hours x $85.00

per hour = 833.00

Total: $116,624.25

a§Ss

\

In addition to fees, plaintiffs are en-

titled to recover costs and expenses related

to the litigation. Plaintiffs' counsel have

submitted affidavits setting forth the fol-

lowing expenses paid or incurred during the

course of the action:

1. Filing fees, other cost

of court and witness

fees $ 488.10

2. Expenses of

depositions $5,392.91

3. Federal Express and

express mail expenses 59.85

4. Preparation of poster

exhibits and payment

to Blakeney, Alexander

§& Machen for copying

expense of personnel

files 265.95

5. Xerox and other

copying expenses 237.38

6. Telephone expense 540.95

Total: $7,184.14

These costs and expenses are

reasonable and are fully compensable under

entirely

wSiin

the ADEA. Cf. Wheeler v. Durham City Board

of Education, 585 F.2d 618, 623-24 (4th Cir.

1978); however, consistent with the fee

award, the court will reduce the amount

awarded to cover expenses by twenty-five

percent, or $1,796.04.

Subtracting $1,796.04 from $7,184.14,

the court finds that plaintiffs are entitled

to receive from defendant $5,388.10 as rea-

sonable costs and expenses of litigation.

IT IS THEREFORE ORDERED that defendant

pay to counsel for plaintiffs the following

sums:

Attorneys' fees $116,624.25

Costs and expenses 5,388.10

Total: $122,012.35

This 3 day of July, 1984.

s/

James B. McMillan

United States District

Judge

«$S~

DISTRICT COURT OF THE UNITED STATES

WESTERN DISTRICT OF NORTH CAROLINA

Charlotte Division

C-C-82-507-M

FRANK WILHELM, KARL F.

GATLIN and HAROLD L. KOGUT,

Plaintiffs,

ORDER

v.

BLUE BELL, INC.,

Defendant.

ee ee

This case was heard today on the various

motions. It is ORDERED as follows:

1. The motion of the defendant for judg-

ment notwithstanding the verdict as to the

plaintitf Wilhelm is denied.

2. The motion of the defendant for judg-

ment notwithstanding the verdict with res-

pect to the plaintiff Kogut is denied.

3. Plaintiff Gatlin's motion for a judg-

ment notwithstanding the verdict in favor

of the defendant is denied.

4. Ruling is deferred on the question

of attorneys' fees. Counsel for all parties

-56-

are directed to examine the recent decision

of the Supreme Court, Blum versus Stinson,

and consider the rearrangement of thought

required by that decision in the matter of

assessing attorneys fees and also to con-

Sider the sufficiency of proof which at

present lacks affidavits from lawyers re-

garding the question of reasonableness of

fees. Affidavits from both sides will be

received if offered.

In further comment on the verdict:

All the verdicts are supported by ade-

quate evidence.

The evidence in favor of plaintiffs Wil-

helm and Kogut was, in my opinion, especially

strong and it fully meets all of the most

stringent requirements of Burdine and McDon-

nell-Douglas and similar cases with regard

to the shifting of the burden of production

of evidence and the sufficiency of the plain-

tiffs' case.

ate

In their research on the question of fees,

counsel are requested to advise the Court,

specifically with reference to Fourth Cir-

cuit and United States Supreme Court deci-

sions, whether they have any doubt that the

Court can enter a judgment regarding fees

after an appeal has been taken from a judg-

ment on the verdict. The Court agrees that

judgment on all the verdicts should be

entered but does not want to proceed with

that action until receipt of advice by

counsel,

As soon as memoranda have been received

from both sides, final action will be taken

on all the matters left in suspense by this

order.

The Court would like to receive from

counsel anything else they wish to write not

later than May 14.

This 30th day of April, 1984.

s/

James B. McMillan

United States District

Judge