Petition for Writ of Certiorari — Salvatori v. Westinghouse Electric Corp.

Le eo OE

9911 02 DEC 29 3999

No. ___ OFFICE OF THE CLERK

In The

Supreme Court of the United States

¢

ROMANO SALVATORI,

Petitioner,

Vs.

WESTINGHOUSE ELECTRIC CORPORATION,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

c

PETITION FOR A WRIT OF CERTIORARI

¢

ALFRED S. PELAEZ

(Counsel of Record)

WILLIAM PIetRAGALLO, II

Eric P. Rew

BRYAN K. SHRECKENGOST

PIETRAGALLO, Bosick & GORDON

38th Floor, One Oxford Centre

Pittsburgh, PA 15219

(412) 263-2000

Counsel for Petitioner

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

OR CALL COLLECT (402) 342-2831

YS Pr

|

PL OR TS,

QUESTIONS PRESENTED

The Age Discrimination in Employment Act

(“ADEA”) provides the court “shall, in addition to any

judgment awarded to the plaintiff . . . allow a reasonable

attorney’s fee to be paid by the defendant, and -costs of

the action.”

A jury specifically found that employee was wrong-

fully terminated in violation of the ADEA, but awarded

zero dollars ($0.00) in damages because employee was

successful in fully mitigating his wage losses in the years

between wrongful termination and trial. The trial court

entered judgment for employee on the jury’s verdict, and

instructed employee to make application for costs and

attorney’s fees. The Court of Appeals reversed, holding

the judgment that employee was discriminated against in

violation of the ADEA was insufficient to make employee

a prevailing party entitled to attorney’s fees and costs

because the jury awarded no damages.

The questions presented are:

1. Whether an employee who is awarded a

judgment on the merits of an age discrimination

claim must, in addition, establish that he or she

is a “prevailing party” before the statutorily

mandated attorney’s fees and costs can be

awarded?

2. Alternatively, whether reasonable attor-

ney’s fees are an integral part of a judgment on

the merits of an ADEA claim, making the judg-

ment winner a “prevailing party” as defined by

this Court?

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED «00.0 ccsscsccccessecsscns i

TABLE OF CURGTRIGO 6.65 0. 5 A a ec deine ii

SA SIE PASTA EB US 6c vb po cneevencdsendsisens iv

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

RAs FEET EER GRMCRIES. 6S boa 8s bad aR TEAST OSG OR 1

OPINIONS BEI iis Ss i AEE, Ea 1

Fe BRIE sb env dew Ra CORN Eg REE 1

STATUTORY PROVISIONS INVOLVED............. 1

STATEMENT OF THE CASE... ... cocnni vids sw'olniny wen 3

REASONS FOR GRANTING THE PETITION....... 8

I. THE DECISION OF THE COURT BELOW IS

CONTRARY TO, AND FRUSTRATES, A CON-

GRESSIONAL POLICY OF THE HIGHEST PRI-

ORITY BY IMPEDING THE ABILITY OF

EMPLOYEES TO EXPOSE DISCRIMINATORY

EMPLOYMENT PRACTICES 6. o5 ccc ccccesucss 8

Il. THE DECISION OF THE COURT OF APPEALS

DISREGARDS THE ADMONITIONS OF THIS

COURT, AND IS CONTRARY IN PRINCIPLE

TO THE DECISIONS OF THIS COURT........ 14

A. By Applying A “Prevailing Party” Standard,

the Court Below Ignored the. Unambiguous

Language of the ADEA and the Holding of

this Court in Lorillard v. Pons............... 14

:

OLS TAME NE OER NEG Ne Ler, te

PSE SOIT: Bt

ili

TABLE OF CONTENTS - Continued

Page

B. The Opinion Below, Allowing an

Employee’s Subsequent Mitigating Efforts

to Absolve a Discriminating Employer from

the Obligation to Pay Attorney’s Fees and

Costs, is Contrary in Principle to the Deci-

sion of this Court in McKennon v. Nashville

Banner Publishing Company ................ 17

lil. THE DECISION OF THE COURT BELOW MIS-

CONSTRUES, AND MISAPPLIES, THE DECI-

SIONS OF THIS COURT DEFINING THE TERM

EES SUGCE D . Wi bases dvisne recess 19

aia Ws Sk gis Nin ds WhG eee K tee bose > owe ee 24

a RS Sy aa Sa gy Car la

iv

TABLE OF AUTHORITIES

Page

CASEs: .

Abrams v. Interco, Inc., 719 F.2d 23 (2d Cir. 1983) .... 22 |

Aleyska Pipeline Service Company v. The Wilderness

Soriety, 421. US, S00 (1075)... oon occ sc ccuv seen 19

Bankston v. State of Illinois, 60 F.3d 1249 (7th Cir. ‘

ONE eon sia a ka a 21 F

Blanchard v. Bergeron, 489 U.S. 87 (1989).........20.- 10 |

Christianburg Garment Co. v. Equal Employment

Opportunity Commission, 434 U.S. 412 (1978)....13, 19

Connecticut National Bank v. Germain, 503 U.S. 249

CRED veer hee LO by bo dead ae beeen ee ea aes 19

Dutcher v. Randall Foods, 546 N.W.2d 889 (Iowa

Bs oi iu eds ck oe ka cds RR Eee Re 21

Equal Employment Opportunity Commission v. O &

G Spring and Wire Forms Specialty Company, 38

F.3d 872 (7th Cir. 1994), cert. den., 513 U.S. 1198

ANI RE AMS ae Le > eye

Ay SERRE NE fae ei eM Pee ae i Shy Day amr a para 21

Farrar v. Hobby, 506 U.S. 103 (1992) .......... 15, 20, 23

Fegley v. Higgins, 19 F.3d 1126 (6th Cir. 1994), cert.

OG, Sha Go OIE CAPONE Fok ORR CIT ose iRb es eee 21

Ford Motor Company v. Equal Employment Oppor-

tunity Commission, 458 U.S. 219 (1982)........... 8, 14

Hewitt v. Helms, 482 U.S. 755 (1987).............00. 15

J.J. Schneider & Son, Inc. v. Justice, 293 Ky. 126, 168

VE Se Ce is ev os FUR vc entacacaeds 22

i aia.

Vv

TABLE OF AUTHORITIES - Continued

Page

Johnson v. University of Bridgeport, 629 F.2d 828 (2d

Oe RIN sais a ina ks hci k's re bale se sake oo cbe ke ens 22

Laffey v. Northwest Airlines, Inc., 746 F.2d 4 (D.C.

Cir. 1984), cert. den., 472 U.S. 1021 (1985), over-

ruled on other grounds, 857 F.2d 1516 (D.C. Cir.

Rig Ab mnie pa meg ene Is Rane Ear ne ne nee DUNE 11

Lorillard v. Pons, 434 U.S. 575 (1978) ..... 10, 14, 15, 16

McDonnell v. Miller Oil Company, Inc., 134 F.3d 638

Ya RS SO o err an eney were: ore ey ee Pree 21

McKennon v. Nashville Banner Publishing Company,

Da ae ee ME < ce eee Ck se Vilickn wil eGoees passim

Nance v. Maxwell Federal Credit Union, 186 F.3d

pe Ba a... Sn ere nn were Te 7

Pierce v. F.R. Tripler & Co., 955 F.2d 820 (2nd Cir.

| Eee Sr RRO nS BE ey ner re Taney A ee 11

Purcell v. Seguin State Bank and Trust Co., 999 F.2d

950 (5th Cir. 1993), cert. den., 513 U.S. 875 (1994) .... 21

Rhodes ©. Stewart, 260 US. 1 (iGO inci cess tceccccs 15

Sabey v. United States, 6 Cl. Ct. 36 (U.S. Cl. Ct.

CAs ak sx bh nek ee ee wSGRD DOW AV CRRKOEKES OAS 21

Shelton v. Ervin, 830 F.2d 182 (11th Cir. 1987)........ 22

Smith v. Great American Restaurants, 969 F.2d 430

i Ch Re. , 4 Se ay rer orr rer error carrer 11

Taylor v. Texgas Corp., 831 F.2d 255 (11th Cir. 1987) .... 22

Texas State Teachers Assn. v. Garland Independent

SOE EASE... Te OLS. TO COO oe cick sn vest etnes 15

vi

TABLE OF AUTHORITIES - Continued

Page

STATUTES:

ZO UBL. BAGO iis neh ae eis ee evens passim

29 UG asc ks viking eas A USa atk s a pare ene 8

29 USC: BORU) 6 oi ei ce ae Gk Vie ee Re passim

23 aes + | A ere E yer rrr e erry Tie sen 21

Bs Leg | Sr rbeeir cre rere. 7, 16, 21

ih Ae ee (| Se ee ee Pere err sa) 17

Rdee BO ooo oo 7

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Petitioner respectfully requests that a Writ of Cer-

tiorari be issued to review the judgment of the United

States Court of Appeals for the Eleventh Circuit in this

case.

OPINIONS BELOW

The opinion of the Court of Appeals (App., infra,

la-7a) is reported at 190 F.3d 1244. The order of the

district court (App., infra, 8a-13a) is unreported. The

judgment of the district court (App., infra, 14a) is repro-

duced in the Appendix hereto.

¢

JURISDICTION

The Court of Appeals entered its judgment on Sep-

tember 30, 1999. (App., infra, 7a).

The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

Section 626(b) of the Age Discrimination in Employ-

ment Act (“ADEA”), 29 U.S.C. §626(b) provides:

The provisions of this chapter shall be enforced

in accordance with the powers, remedies, and

procedures provided in sections 211(b), 216

(except for subsection (a) thereof), and 217 of

this title and subsection (c) of this section. Any

act prohibited under section 623 of this title

shall be deemed to be a prohibited act under

section 215 of this title. Amounts owing to a

person as a result of a violation of this chapter

shall be deemed to be unpaid minimum wages

or unpaid overtime compensation for purposes

of sections 216 and 217 of this title: Provided,

That liquidated damages shall be payabie only

in cases of willful violations of this chapter. In

any action brought to enforce this chapter the

court shall have jurisdiction to grant such legal

or equitable relief as may be appropriate to

effectuate the purposes of this chapter, includ-

ing without limitation judgments compelling

employment, reinstatement or promotion, or

enforcing the liability for amounts deemed to be

unpaid minimum wages or unpaid overtime

compensation under this section. Before institut-

ing any action under this section, the Equal

Employment Opportunity Commission shall

attempt to eliminate the discriminatory practice

or practices alleged, and to effect voluntary

compliance with the requirements of- this chap-

ter through informal methods of conciliation,

conference, and persuasion.

29 U.S.C. §216(b), containing the attorney’s fee and

costs provision applicable to actions under the ADEA

provides, in relevant part:

... The court in such action shall, in addition to

any judgment awarded to the plaintiff or plain-

tiffs, allow a reasonable attorney’s fee to be paid

by the defendant, and costs of the action... .

4

ne TF

STATEMENT OF THE CASE

The end of Romano Salvatori’s twenty-nine and one

half (29+) year career with Westinghouse was fore-

shadowed in mid-1993 when Michael Jordan became the

company’s C.E.O., and brought with him a management

philosophy of pushing young executives upward.

(R18-160-90; R18-160-91; R18-160-119 to 120) Older execu-

tives interfered with Jordan’s philosophical goals by

blocking advancement opportunities. (R18-160-91 to 92;

R18-160-120 to 121; R18-160-128 to 129) This was graph-

ically evidenced at a 1994 Chairman’s Initiative session in

which a participant commented:

“In many of our businesses we have an older work-

force .. . [OJur low growth businesses can strain

opportunities for younger workers. Somehow we

must provide those opportunities. We have to get the

‘blockers’ out of the way.”

(Pitf. Ex. 26.)

And Mr. Jordan responded:

“As we roll out this Leadership Development Process

over the next year, we have to put ourselves in a

position of getting high [potentials] into more

responsible jobs and move the blockers aside. That's

hard to do, and no one likes to do it, but we’re

paying the price now for our inability to do it in

the past.”

(Pitf. Ex. 26.)

Shortly after that exchange, Mr. Salvatori was

replaced as manager of the Power Generation Projects

Division of the Power Generation Business Unit [a divi-

sion he had created five years before, and which achieved

annual earnings of a half-billion dollars] by a thirty-nine

year old. (R18-160-81 to 82; R18-160-141) He was reas-

signed as General Manager of the newly-created Strategic

Affairs Division of the Power Generation Unit, a position

eliminated a few months later as a “cost reduction mea-

sure.” (R18-160-141; R18-160-171 to 172)

At age fifty-six, and after being awarded his com-

pany’s highest honor (the Westinghouse Order of Merit,

which must be approved by the Board of Directors),

Romano Salvatori’s career at Westinghouse was over.

(Pltf. Ex. 107; R18-160-49; R18-160-88)

After receiving his termination notice, Petitioner

accepted an offer from Tucson Electric Power Company

to organize and manage Nations Energy, a new subsid-

iary. (R18-160-56; R18-160-178 to 179) He began work

with Nations Energy on December 1, 1994 — the day after

his termination became effective - at a salary Twenty

Thousand Dollars ($20,000.00) lower than his Westing-

house salary. (R18-160-180 to 183)

It is uncontroverted that, while still receiving a lower

salary, Mr. Salvatori commenced this action in the United

States District Court for the Middle District of Florida to

recover the wage losses and attorneys’ fees caused by the

wrongful termination of his employment. Id. Jurisdiction

was invoked under the Age Discrimination in Employ-

ment Act, 29 U.S.C. §§621-634, and under 28 U.S.C. §1331.

(R1-1) Petitioner then set about to grow Nations Energy.

Mr. Salvatori was successful in building Nations

Energy, and was rewarded with increased salary and

bonuses. (R18-160-185 to 187; R19-161-315) As a result, by

the time the case reached trial, he had off-set the wage

differential, and could seek as wage loss damages only

the difference between stock options he may have

received from Westinghouse and bonuses he received at

Nations Energy.

At the conclusion of the trial, the jury was given, and

answered, the following Interrogatories:

ke

Do you find that Plaintiff has proved by a

preponderance of the evidence that Defen-

dant discriminated against him because of

his age?

YES X NO _

+ * *

What is the amount of back pay, if any, that

Plaintiff has proved by a preponderance of

the evidence he is entitled to receive from

the date of his termination until the date of

your verdict?

$ +

What is the amount of front pay, if any, that

Plaintiff has proved by a preponderance of

the evidence he is entitled to receive from

and after the date of your verdict?

$ -0-

What is the amount of pension benefits, if

any, that Plaintiff has proved by a prepon-

derance of the evidence he is entitled to

receive?

$+

5. Do you find that Plaintiff has proved by a

preponderance of the evidence that Westing-

house willfully violated the law?

YES NOX

(R14-119)

The District Court then entered the following judg-

ment order:

IT IS ORDERED AND ADJUDGED that the jury

in the above entitled cause having found in

favor of the plaintiff on his claim of Age Dis-

crimination in Employment, and the jury having

found that such discrimination was not willful

and awarded no monetary damages on the

issues of back pay, front pay or pension benefits,

judgment is hereby entered in favor of plaintiff

ROMANO SALVATORI on his claim and against

the defendant WESTINGHOUSE ELECTRIC

CORPORATION. Plaintiff may make application

for his costs of action in accordance with the law

and Rules of this Court.

(R14-123; App. 14a)

Respondent filed a motion to alter or amend the

judgment in which it argued, inter alia, that Plaintiff was

not a “prevailing party” entitled to attorney’s fees and

costs.! (R14-126; R17-170-58 to 62) Respondent, Westing-

house also argued that it should be awarded fees and

costs because the jury’s failure to award damages made

1 Petitioner filed a motion for costs and attorney’s fees

which was referred to a Magistrate Judge. (R14-128; R14-129;

R14-130) The Magistrate Judge denied that Motion, without

prejudice, pending resolution of Westinghouse’s appeal from

the order denying its motion to alter or amend judgment.

a

Westinghouse — the party specifically found to have vio-

lated the law - the prevailing party in the case. Id.

The District Court denied Respondent’s motion to

alter or amend the judgment, holding that the award of

attorney’s fees and costs to the judgment winner is man-

dated by, and consistent with the purposes of, the ADEA;

and is not governed by whether the plaintiff is a “prevail-

ing party” within the meaning of F.R.Civ.P. 54(d), Title VII

or 42 U.S.C. §1988. (R16-153; App. 9a-13a)

Westinghouse appealed the order denying its motion

to alter or amend the judgment. (R16-157) A panel of the

United States Court of Appeals for the Eleventh Circuit

reversed and remanded. (App. 1la-3a) The panel believed

it was bound by Nance v. Maxwell Federal Credit Union, 186

F.3d 1338 (11th Cir. 1999), in which another panel of the

same court held that an employee who never sustained

damages as a result of employment discrimination was

not a “prevailing party” entitled to an award of attorney’s

fees. (App. la-7a) Circuit Judge Birch, concurring said:

“I write separately to note that our decision to

construe the ADEA as requiring what is tanta-

mount to a ‘prevailing party’ status for purposes

of a litigant’s entitlement to attorney’s fees is

not self-evident from the plain language of the

statute.”

(App. 3a-4a)

Senior Circuit Judge Bright, also concurring sep-

arately, wrote:

“If I were to decide this issue on a clean

slate . . . I would not so hold. Although the

Supreme Court’s opinion in Hewitt v. Helms

...and its progeny generally limit the availabil-

ity of attorney’s fees under both Title VII and 42

U.S.C. §1988(b), it is not at all clear to me that

such limitations should be adopted wholesale

into the developing law of the ADEA... . The

[ADEA’s] substitution of the phrase ‘any judg-

ment’ for ‘prevailing party’ is an important

modification, and I believe it warrants a differ-

ent analysis.”

(App. 6a-7a)

+

REASONS FOR GRANTING THE WRIT

I. THE DECISION OF THE COURT BELOW IS CON-

TRARY TO, AND FRUSTRATES, A CONGRES-

SIONAL POLICY OF THE HIGHEST PRIORITY BY

IMPEDING THE ABILITY OF EMPLOYEES TO

EXPOSE DISCRIMINATORY EMPLOYMENT

PRACTICES.

By bringing to light his employer’s discriminatory

practices, Romano Salvatori furthered the primary pur-

pose Congress sought to achieve in enacting the Age

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

The ADEA is not merely a means of compensating

employees who suffer age discrimination. Rather, the

expressly stated congressional purpose is to end age dis-

crimination in the workplace. 29 U.S.C. §621(b).2 Discrim-

inated-against employees are the instrument Congress

2 In this limited respect, the ADEA-mirrors Title VII. See,

Ford Motor Company v. Equal Employment Opportunity

Commission, 458 U.S. 219, 230 (1982): “Title VII’s primary goal, of

course, is to end discrimination; the victims of job

discrimination want jobs, not lawsuits. But when unlawful

has chosen to vindicate the Act’s purpose; and that pur-

pose is furthered every time a discriminatory employ-

ment practice is brought to light. As made clear in

McKennon v. Nashville Banner Publishing Company, 513 U.S.

352, 358-359 (1995):

“The objectives of the ADEA are furthered when

even a single employee establishes that an

employer has discriminated against him or her.

The disclosure through litigation of incidents or

practices that violate national policies respecting

nondiscrimination in the work force is itself

important, for the occurrence of violations may

disclose patterns of noncompliance resulting

from a misappreciation of the Act’s operation or

entrenched resistance to its commands, either of

which can be of industry-wide significance. The

efficacy of its enforcement mechanisms becomes

one measure of the success of the Act.”

To effectuate the Congressional policy, the remedial

provisions of the ADEA are aimed toward encouraging

employees to bring discriminatory practices to light by

providing both compensation for wage losses and by

mandating that the employee be awarded reasonable

attorney’s fees and costs. Accordingly, the enforcement

provisions of the ADEA, 29 U.S.C. §626(b), expressly

incorporate the remedial provisions of the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. §216(b). Section 216(b)

of the FLSA mandates that, in addition to any reinstate-

ment, promotion and compensation remedies awarded to

discrimination does occur, Title VII’s secondary, fallback

purpose is to compensate the victims for their

injuries.” (Emphasis in original)

7

10

the discriminated-against employee, the court shall

award reasonable attorney’s fees and costs:

“The court in such action shall, in addition to

any judgment awarded to the plaintiff or plain-

tiffs, allow a reasonable attorney’s fee to be paid

by the defendant, and costs of the action.”

This Court has recognized that the mandatory lan-

guage was purposefully chosen by the Congress, and is

distinctly different from the “prevailing party” language

in the remedial provisions of other Civil Rights statutes.

See, Lorillard v. Pons, 434 U.S. 575 (1978), discussed infra

this Petition.

This Court has also expressly recognized that the role

private litigants play in exposing discriminatory employ-

ment practices “vindicates the important congressional

policy against discriminatory employment practices. .. . ”

McKennon, 513 U.S. at 358.3 It is evident that an

employee’s ability to recover attorney’s fees is indispens-

able if private litigants are to be encouraged to fulfill that

role and bring discriminatory practices to light. That is all

the more evident because employees who suffer age dis-

crimination are those who are most likely to lack the

resources required to fund the litigation. As stated in

3 See also, Blanchard v. Bergeron, 489 U.S. 87, 95-96 (1989):

“The intention of Congress was to encourage successful civil

rights litigation, not to create a special incentive to prove

damages... . [W]e reject the notion that a civil rights action for

damages constitutes nothing more than a private tort suit

benefiting only the individual plaintiffs whose rights were

violated. Unlike most private tort litigants, a civil rights plaintiff

seeks to vindicate important civil and constitutional rights that

cannot be valued solely in monetary terms.”

11

Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 11 (D.C. Cir.

1984), cert. den., 472 U.S. 1021 (1985), overruled on other

grounds, 857 F.2d 1516 (D.C. Cir. 1988):

“Fair Labor Standards Act of 1938 and Title VII

of the Civil Rights Act of 1964 authorize district

courts to award a reasonable attorney’s fee... .

The purpose of such provisions is to encourage

private litigants to act as ‘private attorneys gen-

eral’ on behalf of enforcement of the civil rights

laws. Congress clearly hoped to provide an ade-

quate economic incentive for private attorneys

to take employment discrimination cases, and

thereby to ensure that plaintiffs would be able

to obtain competent legal representation for the

prosecution of legitimate claims.”

However, the ADEA also obligates victims of age

discrimination to make reasonable efforts to mitigate

wage losses caused by an employer’s discriminatory

practices and, employees who do not fulfill that duty or

who are successful in mitigating wage loss damages are

not entitled to damages for wage losses. See, Smith v.

Great American Restaurants, 969 F.2d 430, 438 (7th Cir.

1992) and Pierce v. F.R. Tripler & Co., 955 F.2d 820, 829-830

(2nd Cir. 1992).

Faithful to the duty to mitigate damages, Romano

Salvatori commenced new employment the day following

his wrongful termination and, although starting at a sub-

stantially lower salary, eradicated the salary loss caused

by his wrongful termination before trial commenced.

(R18-160-185 to 187; R19-161-315) Thus, although speci-

fically finding that Romano Salvatori was the victim of

age discrimination, the jury awarded him neither the

back-pay nor front-pay damages he initially sought, but

al

12

which he had mitigated. (R14-119) The Court of Appeals,

ignoring the jury’s verdict that Romano Salvatori was the

victim of age discrimination, and the judgment entered

on that verdict, focused upon the fact the jury awarded

no back-pay or front-pay damages and held that because

no damages were awarded, Mr. Salvatori was not a “pre-

vailing party”. (App. la-7a) That holding absolved the

employer of all liability for the payment of the substantial

costs and attorney’s fees incurred in exposing the

employer’s discriminatory employment practices.

(R14-128; R14-129; R14-130)

The decision of the Court of Appeals denying recov-

ery of attorney’s fees and costs, to an employee who

establishes wrongful discrimination, but who mitigates

wage loss damages, frustrates congressional policy by

discouraging employees from pursuing valid discrimina-

tion claims. ADEA litigation is expensive, particularly

when the unlawful practices are committed by a multi-

national corporation with vast resources. Moreover, it

often pits a worker who has lost his or her job against an

employer better able to assume the cost of litigation. The

ADEA mandate that an employee who receives a judg-

ment shall be awarded attorney’s fees and costs is

intended to level that playing field by enabling

employees with factually strong claims to obtain compe-

tent counsel and vindicate the important congressional

policy the ADEA is intended to effectuate.

Most terminated employees with factually compel-

ling claims will have an immediate wage loss. However,

the victims of employment discrimination must mitigate

damages. And, because attorney’s fees and costs can be

awarded only after judgment, 29 U.S.C. §216(b), neither

13

the victim of age discrimination nor any attorney he or

she consults will know prior to trial whether there will be

any back-pay or front-pay damages to recover.

While some wrongfully discharged employees may

be willing to pursue factually strong ADEA claims if a

judgment of discrimination alone triggers the allowance

of the costs and fees such a suit will entail, few

employees are likely to “gamble” they will be unable to

offset their wage losses in the long interval between

discharge and trial. The message sent by the Circuit

Court’s decision is that a discriminated against employee

who might possibly mitigate damages cannot afford the

risk of litigation, no matter how badly he or she has been

treated and no matter how egregious the employer’s

conduct.

By making the statutorily mandated attorney’s fees

and costs subject to the award of wage loss damages, and

not to the finding of discrimination, the Court of Appeals

frustrates the congressional purpose by discouraging and

impeding the ability of terminated employees to bring

discriminatory employment practices to light. The ADEA

makes clear that discriminated against employees are

“the chosen instrument of Congress to vindicate ‘a policy

that congress considered of the highest priority.’ ”4 Thus,

any holding that impedes the employee’s ability to bring

4 The quoted language is from Christianburg Garment Co. v.

Equal Employment Opportunity Commission, 434 U.S. 412, 418

(1978), dealing with Title VII of the Civil Rights Act of 1964 and

the Equal Employment Opportunity Act of 1972. That the

language is equally applicable to ADEA plaintiffs is clear. See,

McKennon, 513 U.S. at 358.

14

discriminatory practices to light is contrary to, and frus-

trates, the “highest priority” congressional policy set

forth in the ADEA.

Moreover, the decision of the Court below subverts

congressional policy by elevating the ADEA’s “secondary,

- fallback purpose” of providing compensation to victims

of discrimination above its primary purpose of putting an

end to discrimination. Ford Motor Company, 458 U.S. at

230; McKennon, 513 U.S. at 358-359.

Because the decision of the Court of Appeals is con-

trary to, and subverts, the ADEA’s expressly stated pur-

pose, review is warranted.

Il. THE DECISION OF THE COURT OF APPEALS

DISREGARDS THE ADMONITIONS OF THIS

COURT, AND IS CONTRARY IN PRINCIPLE TO

THE DECISIONS OF THIS COURT.

A. By Applying A “Prevailing Party” Standard,

the Court Below Ignored the Unambiguous

Language of the ADEA and the Holding of this

Court in Lorillard v. Pons:

The ADEA states in clear and unambiguous terms

that “[t]he court . . . shall, in addition to any judgment

awarded to the plaintiff . . . allow a reasonable attorney’s

fee to be paid by the defendant, and costs of the action.”

See, 29 U.S.C. §626(b), incorporating the remedial provi-

sions of the FLSA, 29 U.S.C. §216(b). The ADEA does not

condition the award of legal fees and.costs upon plaintiff

being a “prevailing party”, as do numerous other civil

rights statutes; nor does the ADEA contain any mention

15

of or reference to the term “prevailing party”. Nonethe-

less, the Court of Appeals determined that Romano Sal-

vatori is not entitled to attorney’s fees and costs because

he is not a “prevailing party” as that term has been

defined by this Court. See, Hewitt v. Helms, 482 U.S. 755

(1987); Rhodes v. Stewart, 488 U.S. 1 (1988); Texas State

Teachers Assn. v. Garland Independent School Dist., 489 U.S.

782 (1989); and Farrar v. Hobby, 506 U.S. 103 (1992). How-

ever, in every one of those cases, the applicable statute

makes the award of legal fees discretionary and expressly

authorizes the award of such fees only to a “prevailing

party”. Conversely the ADEA mandates that such fees be

given to a plaintiff who is awarded a judgment.

In basing the right to ADEA-mandated attorney’s

fees and costs upon decisions interpreting the remedial

provisions of the Civil Rights Acts, the Court of Appeals

disregarded the clear admonition of this Court in Lorillard

v. Pons, 434 U.S. 575 (1978), that it is the expressly

selected remedial provisions of the FLSA, and not the

remedial provisions of other Civil Rights Acts, that are

controlling in interpreting the ADEA. Lorillard makes

clear the enforcement scheme of the ADEA was not inad-

vertent, but was the product of considerable congres-

sional attention. As stated in Lorillard, supra:

“The enforcement scheme of the [ADEA] statute

is complex - the product of considerable atten-

tion during the legislative debates preceding

passage of the Act....

The bill that was ultimately enacted is some-

thing of a hybrid, reflecting, on the one hand,

Congress’ desire to use an existing statutory

16

scheme and a bureaucracy with which

employers and employees would be familiar

and, on the other hand, its dissatisfaction with

some elements of each of the pre-existing

schemes. .

This selectivity that Congress exhibited in incor-

porating provisions and in modifying certain FLSA

practices strongly suggests that but for those

changes Congress expressly made, it intended to

incorporate fully the remedies and procedures of the

FLSA.”

434 U.S. at 577-583 (emphasis and bracketed matter

added).

Moreover, focusing specifically upon the remedial

provisions of the FLSA and of the Civil Rights Acts — the

very provisions at issue in this case — this Court recog-

nized there are significant differences in the two statutes:

“{I]n deciding whether a statutory right to jury

trial exists, it is the remedial and procedural provi-

sions of the two laws that are crucial and there we

find significant differences.”

Lorillard, 434 U.S. at 584 (emphasis added). Thus, in the

instant matter, as in Lorillard, the remedial provisions

governing the award of attorney’s fees under Title VII or

42 U.S.C. §1988 “shed[s] no light on congressional intent

under the ADEA”. Lorillard, 434 U.S. at 585. By ignoring

the very different language of §216(b) of the FLSA, and

focusing entirely upon the “prevailing party” analysis

applicable to civil rights statutes with significantly differ-

ent remedial provisions, the Court of Appeals ignored

17

both the applicable statutory language and the admoni-

tions of this Court.

It is uncontroverted the jury found that Westing-

house discriminated against Romano Salvatori because of

his age; and that the trial court entered judgment on the

jury’s verdict as mandated by Fed.R.Civ.P. 49(b).

(R14-119; R14-123; App. 14a) No decision of this Court

supports the lower court’s ruling that such a judgment is

insufficient to trigger the award of attorney’s fees and

costs the ADEA mandates be awarded to the judgment

winner. In relying upon wholly inappropriate “prevailing

party” cases to deny the judgment winner his legal costs,

the lower court misconstrued, misapplied and ignored

the teachings of this Honorable Court, and ran roughshod

over the language Congress deliberately set forth in the

ADEA. That blatant disregard of language and precedent,

if unremedied, will chill the willingness of victimized

employees to pursue age discrimination claims and

thwart the congressional purpose.

B. The Opinion Below, Allowing an Employee’s

Subsequent Mitigating Efforts to Absolve a

Discriminating Employer from the Obligation

to Pay Attorney’s Fees and Costs, is Contrary in

Principle to the Decision of this Court in

McKennon v. Nashville Banner Publishing Com-

pany.

McKennon v. Nashville Banner Publishing Company, 513

U.S. 352 (1995), makes clear that termination of an

employee in violation of the ADEA is not remedied by

the employer’s subsequent obtaining of information that,

had it been known, would have justified the termination.

18

The reason for that holding is that the allowance of post-

discrimination occurrences to obviate the discriminatory

conduct is contrary to the ADEA’s stated goal of eliminat-

ing discrimination in the workplace. As this Court stated:

“Congress designed the remedial measures in

these statutes to serve as a ‘spur or catalyst’ to

cause employers ‘to self-examine and to self-

evaluate their employment practices and to

endeavor to eliminate, so far as possible, the last

vestiges’ of discrimination... .

It would not accord with this scheme if after-required

evidence of wrongdoing that would have resulted in

termination operates, in every instance, to bar all

relief for an earlier violation of the Act.”

McKennon, 513 U.S. at 358 (emphasis added).

If the legislative scheme prohibits use of an

employee’s subsequently discovered wrongful conduct to

excuse an employer’s violation of the ADEA, it neces-

sarily follows that the employee’s subsequent lawful con-

duct in mitigation cannot be used for that purpose. Yet,

that is precisely what the Court of Appeals did in this

case.

The legislative goal in enacting the ADEA was to end

discrimination in the workplace. Thus, consistent with

that goal, the employee’s efforts in mitigation can only be

used to reduce or eliminate back-pay and front-pay dam-

ages. Those lawful efforts cannot be used to absolve an

employer who is expressly found to have acted in viola-

tion of the ADEA from the mandatory duty of paying the

legal fees and costs incurred by an employee who is

awarded a judgment on his or her discrimination claim,

19

and was successful in exposing the discriminatory prac-

tice.

By absolving Westinghouse of all consequences of its

unlawful conduct, and imposing the cost of the litigation

upon the employee who exposed that wrongful conduct,

the Court of Appeals has rendered a decision that con-

flicts with the principle of McKennon and which does

violence to the expressly stated goal of the Congress.

Ill. THE DECISION OF THE COURT BELOW MIS-

CONSTRUES, AND MISAPPLIES, THE DECI-

SIONS OF THIS COURT DEFINING THE TERM

“PREVAILING PARTY”.

The ADEA conditions a plaintiff’s right to attorney’s

fees and costs upon the award of a judgment; and man-

dates that such fees be given to a judgment winner.> The

Act does not require that the judgment winner also be a

“prevailing party”. Thus, by reading that additional

requirement into the ADEA, the Court of Appeals went

beyond the scope of permissible judicial inquiry. As made

clear in Connecticut National Bank v. Germain, 503 U.S. 249,

253-254 (1992):

“We have stated time and again that courts must

presume that a legislature says in a statute what

° This Court has repeatedly observed the award of 29

U.S.C. §216(b) attorney fees are mandatory. See, McKennon, 513

U.S. at 362 (“[W]e think the authority for the courts to award

attorney’s fees, mandated under the statute, 29 U.S.C. §§216(b),

626(b) . . . will deter most abuses.”); Aleyska Pipeline Service

Company v. The Wilderness Society, 421 U.S. 240, 261 n. 34 (1975);

and Christianburg Garment Co., 434 U.S. at 415 and n. 5.

20

it means and means in a statute what it says

there. . . . When the words of a statute are

unambiguous, then, this first canon is also the

last: ‘judicial inquiry is complete.’ ”

Moreover, the Court of Appeals’ holding that a plain-

tiff who receives a judgment on the merits of an age

discrimination claim is not a “prevailing party” is con-

trary to the decisions of this Court defining that term. In

summarizing those decisions, this Court said:

“Under our ‘generous formulation’ of the term,

plaintiffs may be considered ‘prevailing parties’

for attorney’s fees purposes if they succeed on

any significant issue in litigation which achieves

some of the benefit the parties sought in bring-

ing suit.”

Farrar, 506 U.S. at 109. A plaintiff who obtains a judgment

on the merits of an ADEA claim both “succeed[s] on a

significant issue in litigation” and “achieves some of the

benefit sought”. Thus, such a plaintiff satisfies all require-

ments this Court enumerated in Farrar, supra.

In obtaining a judgment on the merits of his ADEA

claim, Romano Salvatori exposed the employer's discrim-

inatory practices. Because “[t]he objectives of the ADEA

are furthered when even a single employee establishes

that an employer has discriminated against him or her”,

McKennon, 513 U.S. at 358, it is evident Mr. Salvatori

succeeded on a significant issue in the litigation, satisfy-

ing the first part of the Farrar test.

Moreover, as the Complaint makes clear, Romano

Salvatori sought to recover from his employer both the

21

wages he claimed to have lost and the statutorily manda-

ted attorney’s fees and costs. (R1-1) Courts have no dis-

cretion to deny the statutorily mandated fees to plaintiffs

awarded judgment on the merits of an ADEA claim. See,

Fegley v. Higgins, 19 F.3d 1126, 1134 (6th Cir. 1994), cert.

den., 513 U.S. 875 (1994); Sabey v. United States, 6 Cl. Ct. 36

(U.S. Cl. Ct. 1984); and Dutcher v. Randall Foods, 546

N.W.2d 889, 895 (Iowa 1996). See also, Bankston v. State of

Illinois, 60 F.3d 1249, 1255 (7th Cir. 1995) (§216(b) of FLSA

directs award of reasonable fees and costs); Equal Employ-

ment Opportunity Commission v. O & G Spring and Wire

Forms Specialty Company, 38 F.3d 872, 882 (7th Cir. 1994),

cert. den., 513 U.S. 1198 (1995) (ADEA attorney’s fee pro-

vision is mandatory); Purcell v. Seguin State Bank and Trust

Co., 999 F.2d 950, 961 (5th Cir. 1993), cert. den., 513 U.S.

875 (1994) (same).° Thus, an integral part of any judgment

on the merits is an award of legal fees. After the judg-

ment, only the amount of the fees, and not the defen-

dant’s legal duty to pay them, remains to be determined.

As recognized by the district court in this case, and by an

earlier panel of the Court below, the statutorily mandated

attorney's fees are an integral part of, and not collateral

to, the judgment that Romano Salvatori was terminated

in violation of federal law. As stated by the Court:

“We find that the language of the two statutes

[42 U.S.C. §1988 and 29 U.S.C. §216(b)] differs

significantly regarding the award of attorney

6 The Fourth Circuit has reached the same conclusion

applying the identical attorney’s fee language of the Family and

Medical Leave Act, 29 U.S.C. §2601 et seq. McDonnell v. Miller Oil

Company, Inc., 134 F.3d 638, 640-41 (4th Cir. 1998).

22

fees. Section 216 provides for an award of attor-

ney’s fees, as opposed to granting the court

discretion in awarding such fees, to the prevail-

ing plaintiff in FLSA cases. In consideration of the

language of section 216(b) and its underlying pur-

pose, we hold that attorney fees are an integral part

of the merits of FLSA cases and part of the relief

sought therein.”

Shelton v. Ervin, 830 F.2d 182, 184 (11th Cir. 1987).

(Emphasis and bracketed matter added).’”

7 Two weeks after Shelton v. Ervin was decided, another

panel of the Eleventh Circuit held that ADEA attorney’s fees are

“extraneous to, rather than central to, the merits” of the case.

Taylor v. Texgas Corp., 831 F.2d 255, 258 (11th Cir. 1987). The

panel did not cite, nor mention, the earlier opinion in Shelton.

The fact that the panel decision in Shelton is binding upon other

panels of the same court (including the panel subsequently

deciding Taylor), coupled with the fact that the issue is not

whether the mandatory award of attorney’s fees is “extraneous”

or “central” to the merits, but whether it is an integral part of

any judgment on the merits, deprives Taylor of precedential

worth. The panel in the instant case did not refer to either

Shelton or Taylor, nor did it discuss the crucial issue of whether

the attorney fees authorized by §216(b) are an integral part of

the relief afforded to the victim of age discrimination.

The holding in Shelton that attorney’s fees are an integral

part of the judgment on the merits is consistent with the holding

in Johnson v. University of Bridgeport, 629 F.2d 828, 829 (2d Cir.

1980), overruled on other grounds, Abrams v. Interco, Inc., 719 F.2d

23 (2d Cir. 1983), where the court held that the statutorily

mandated legal fees are “just another part of the relief sought by

the plaintiffs” in age discrimination cases; and J.J. Schneider &

Son, Inc. v. Justice, 293 Ky. 126, 168 S.W.2d 591, 592-593 (1943),

holding that “the federal act [FLSA] clearly indicates . . . that the

reasonable attorney’s fees to be allowed . . . is an integral part of

the amount sought to be recovered.”

Se

i

2g ee ee

23

Because it is the judgment on the merits of the ADEA

claim, and not any subsequent judicial action, that deter-

mines the employer’s legal obligation to pay fees, the

holding that such fees are an integral part of the judg-

ment is both logically and legally sound. And, because

the judgment carries with it the right to an award of the

substantial legal fees, sought as damages in the Com-

plaint, it is evident Romano Salvatori achieved a portion

of the benefit he sought in bringing suit. While recovery

of legal fees and costs may be a small portion of the

substantial wage loss damages initially sought, they are

more than equal to the nominal damages this Court has

recognized are sufficient to make one a “prevailing

party”. Farrar, supra.

It does not matter if Romano Salvatori fully or par-

tially mitigated damages. It does not matter how or why

the jury concluded he sustained no wage loss damages.

All that matters is that the jury found that Westinghouse

discriminated against Romano Salvatori because of his

age; and that the ADEA mandates the award of attorneys’

fees as part of the damages.

The court below misapplied this Court’s precedents

by holding an ADEA judgment winner must be a “pre-

vailing party” to receive attorneys’ fees; and by holding

that an employee who receives a judgment on the merits

of an age discrimination claim is not a “prevailing party”.

Because the decision of the Court of Appeals conflicts

in principle with decisions of this Court, and because it

frustrates an important congressional policy, review is

warranted.

24

CONCLUSION

The message sent by the opinion of the court below

discourages employees from exposing, and employers

from remedying, discriminatory employment practices.

Moreover, it encourages employers to “dig in their heels”

and engage in protracted and costly litigation in the hope

that both wage losses and the employee’s ability to pur-

sue the claim will disappear. This message is contrary to

the ADEA’s stated goals of ending age discrimination in

the workplace.

Petitioner respectfully requests that this petition be

granted so that the final message is compatible with the

congressional intent.

Respectfully submitted,

PIETRAGALLO, Bosick & GORDON

ALFRED S. PELAEZ

(Counsel of Record)

WruraM PIETRAGALLO, II

Eric P. Reir

BryAN K. SHRECKENGOST

PIETRAGALLO, Bosick & GORDON

38th Floor, One Oxford Centre

Pittsburgh, PA 15219

(412) 263-2000

Counsel for Petitioner

la

Romano SALVATORI, Plaintiff-

Appellee,

V.

WESTINGHOUSE ELECTRIC

CORPORATION, Defendant-

Appellant.

No. 98-2257.

United States Court of Appeals,

Eleventh Circuit.

Sept. 30, 1999.

Glen D. Nager, Rayne Rasty, Deborah A. Sudbury,

Atlanta, GA, John Nalbandian, Jones, Day, Reavis &

Pogue, Washington, DC, for Defendant-Appellant.

Eric P. Reif, William Pietragallo, Il, Bryan K. Shreck-

engost, Pittsburgh, PA, for Plaintiff-Appellee.

Appeal from the United States District Court for the

Middle District of Florida.

Before TJOFLAT and BIRCH, Circuit Judges, and

BRIGHT™, Senior Circuit Judge.

PER CURIAM:

Romano Salvatori, a former employee of Westing-

house Electric Corporation (“Westinghouse”), filed this

action pursuant to the Age Discrimination in Employ-

ment Act (“ADEA”), 29 U.S.C. § 621-34 (1994). Following

* Honorable Myron H. Bright, Senior U.S. Circuit Judge for the

Eighth Circuit, sitting by designation.

7

2a

a jury trial, the jury found that Westinghouse had dis-

criminated against Salvatori based on his age, but that

Salvatori was not entitled to the damages he sought. The

district court entered judgment in favor of Salvatori and,

as part of that judgment, allowed him to apply for attor-

ney’s fees. Westinghouse filed a motion to alter or amend

the judgment. In that motion, Westinghouse asked the

court to enter judgment in favor of Westinghouse, to

allow Westinghouse to recover its costs, and to eliminate

that portion of the judgment that allowed Salvatori to

apply for costs. Salvatori subsequently moved for reason-

able attorney’s fees and costs. Westinghouse opposed the

motion on the ground, inter alia, that Salvatori was not a

“prevailing party” and, therefore, was not entitled to

attorney’s fees. See R15-138 at 3-5. The district court

denied Westinghouse’s motion to alter or amend the

judgment, and concluded that Salvatori was entitled to

attorney’s fees and costs. The court noted that, although

other analogous civil rights legislation required that a

plaintiff “prevail” in a lawsuit to give rise to an entitle-

ment to attorney’s fees, the ADEA did not share identical

fee-shifting language to that present in statutes identified

by Westinghouse. The court further found that the ADEA

mandated an award of attorney’s fees to a plaintiff who

had been awarded “any judgment,” see R16-153 at 5, and

that term encompassed a judgment based solely on the

merits. Westinghouse appeals the district court’s decision

to deny its motion to alter or amend the judgment and,

again, argues that Salvatori is not entitled to attorney’s

fees.

While this appeal was pending, we addressed and

decided precisely the question at issue in this case — that

3a

is, whether a plaintiff who obtains a favorable jury ver-

dict on the merits of an ADEA claim, but receives no

damages, is entitled to attorney’s fees. In Nance v. Max-

well Fed. Credit Union, __ F.3d __, (11th Cir.1999), we

determined that a plaintiff who had succeeded on the

merits of an ADEA claim nonetheless had failed to prove

injury based on that discriminatory conduct. Based on

this finding, we vacated the district court’s award of back

pay and front pay. See id. at __. Furthermore, we rea-

soned that, because the plaintiff had not received an

enforceable judgment and, as a result, had not “pre-

vailed,” as that term has been used in other civil rights

contexts, she also was not entitled to attorney’s fees. See

id. at

We conclude that our decision in Nance directly con-

trols our disposition of the instant case. Like the plaintiff

in Nance, Salvatori has achieved success on the merits of

his claim but has not obtained a judgment, either in the

form of damages or equitable relief, that the court may

enforce against Westinghouse. Consistent with our deci-

sion in Nance, therefore, we determine that Salvatori is

not entitled to attorney’s fees. We therefore REVERSE the

district court’s order denying Westinghouse’s motion to

alter or amend the judgment, and REMAND this case for

further proceedings in light of this opinion.

REVERSED AND REMANDED.

BIRCH, Circuit Judge, concurring:

I write separately to note that our decision to con-

strue the ADEA as requiring what is tantamount to a

“prevailing party” status for purposes of a litigant’s enti-

tlement to attorney’s fees is not self-evident from the

:

4

§

x

5

4a

plain language of the statute. In fact, notwithstanding the

frequent and consistent use of the term “prevailing

party” by our court and other circuit courts to refer to a

successful litigant within the context of the ADEA, the

statute contains no such language. The ADEA, which

incorporates selected provisions of the Fair Labor Stan-

dards Act (“FLSA”), including those pertaining to attor-

ney’s fees, see 29 U.S.C. § 626(b), mandates that “[t]he

court in such [an] action [filed pursuant to this section]

shall, in addition to any judgment awarded to the plain-

tiff or plaintiffs, allow a reasonable attorney’s fee to be

paid by the defendant, and costs of the action.” 29 U.S.C.

§ 216(b).

Unlike the ADEA, however, both Title VII, 42 U.S.C.

§ 2000e-5k, and 42 U.S.C. § 1988(b), the primary vehicles

for the majority of civil rights litigation, provide that “the

court, in its discretion, may allow the prevailing par-

ty ...a reasonable attorney’s fee (including expert fees)

as part of the costs, and the Commission and the United

States shall be liable for costs the same as a private

person.’” The Supreme Court has held explicitly that “a

favorable judicial statement of law in the course of litiga-

tion that results in judgment against the plaintiff does not

suffice to render him a ‘prevailing party’ ” under § 1988.

Hewitt v. Helms, 482 U.S. 755, 763, 107 S.Ct. 2672, 2677, 96

L.Ed.2d 654 (1987). Moreover, we have applied the

Supreme Court’s directive in Hewitt to cases brought

1 Section 1988 does not duplicate Title VII’s provision

regarding either expert fees or the potential liability of the

United States or the Commission as tantamount to that of

private parties.

5a

under Title VII. In Walker v. Anderson Elec. Connectors, 944

F.2d 841 (11th Cir.1991), for instance, we found that,

although the plaintiff had won a favorable determination

on the ultimate factual issue in the case — that is, that she

had been sexually harassed - , the reasoning of Hewitt

mandated that “such a finding, without more, will not

ordain a litigant the prevailing party.” 944 F.2d at 847. We

further observed that “to be a prevailing party for pur-

poses of [Title VII] requires the attainment of something

more tangible than a jury finding of sexual harassment.”

Id.

Although it is critical to note that the procedural

framework of Title VII and section 1988 is not identical to

that set forth in the ADEA, it is reasonable to extrapolate

salient aspects of the Supreme Court’s discussion of what

constitutes a “prevailing party” under Title VII and sec-

tion 1988 for purposes of our analysis of what constitutes

“any judgment” under the ADEA. in Hewitt, again, the

Court expressly observed that

[t]he real value of the judicial pronouncement -

what makes it a proper judicial resolution of a

“case or controversy” rather than an advisory

opinion —~ is in the settling of some dispute which

affects the behavior of the defendant towards the

plaintiff.

Hewitt, 482 U.S. at 761, 107 S.Ct. at 2676. It is fair

to say that the Court’s reasoning in Hewitt,

_ while not conclusively controlling or dispositive

of an analogous ADEA case, necessarily informs

our decision relative to the question of whether

a litigant who has succeeded only on the merits

of her claim - but has received no “judicial

i resolution,” id., is entitled to attorney’s fees.

6a

Thus, while I do not believe that we may, in essence,

import the term “prevailing party” into the ADEA, I

agree that, in light of the Supreme Court’s directive in

Hewitt as applied by our court in the context of both Title

VII and section 1988, an ADEA plaintiff is only entitled to

attorney’s fees if, in addition to succeeding on the merits

of any part of her claim, the judicial resolution of the

action settles some dispute that affects the behavior of the

defendant toward the plaintiff. Because no such judicial

resolution transpired as a result of the jury verdict in this

case, I agree that Salvatori is not entitled to attorney's

fees.

BRIGHT, Senior Circuit Judge, separately concurring:

—

I agree that this court’s recently announced decision

in Nance v. Maxwell Federal Credit Union (11th Cir. (Ala.)),

controls the disposition of the case now before us. It is

now the rule, at least in this circuit, that unless there is an

“enforceable judgment” - irrespective of whether a

defendant has been found liable for unlawful discrimina-

tion — attorney’s fees are not available under the ADEA. |

therefore concur in the result reached by our panel.

If I were to decide this issue on a clean slate, how-

ever, I would not so hold. Although the Supreme Court’s

opinion in Hewitt v. Helms, 482 U.S. 755, 107 S.Ct. 2672, 96

L.Ed.2d 654 (1987), and its progeny generally limit the

availability of attorney’s fees under both Title VII and 42

U.S.C. § 1988(b), it is not at all clear to me that such

limitations should be adopted wholesale in to the devel-

oping law of the ADEA. While it is true that the ADEA

joins the aforementioned statutes under the nominal ban-

ner of federal civil rights legislation, the structure and

ee —— ee en ee

?

“ol

,

.

¥

4

7a

relevant language of the ADEA are significantly different

than those of the analogous sections of either Title VII or

§ 1988(b). The substitution of the phrase “any judgment”

for “prevailing party” is an important modification, and I

believe it warrants a different analysis.

8a

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO FLORIDA

ROMANO SALVATORI,

Plaintiff,

v. CASE NO. 96-371-CIV-ORL-19

WESTINGHOUSE ELECTRIC

CORPORATION,

Defendant.

ORDER

This cause came before the Court on the following

matters:

1) Defendant Westinghouse Electric Corporation’s

Motion To Alter or Amend Judgment (Doc. No. 126, filed

October 9, 1997), Defendant Westinghouse Corporation’s

Brief in Support of Its Motion To Alter or Amend Judg-

ment (Doc. No. 127, filed October 9, 1997), and Plaintiff's

Memorandum in Opposition to Westinghouse Electric

Corporation’s Motion to Alter or Amend Judgment (Doc.

No. 136, filed October 21, 1997).

2) Plaintiff’s Motion for an Award of Attorneys’ Fees

and Costs (Doc. No. 128, filed October 9, 1997), Mem-

orandum in Support of Plaintiff’s Motion for Attorney’s

Fees and Costs (Doc. No. 129, filed October 9, 1997), and

Defendant Westinghouse Electric Corporation’s Brief in

Opposition to Plaintiff's Motion for Attorneys’ Fees and

Costs (Doc. No. 138, filed October 23, 1997).

8 Sehr Fe i I Rey Al ELT CA,

x

%

4

9a

3) Plaintiff’s Supplemental Motion for an Award of

Costs (Doc. No. 130, filed October 10, 1997) and Defen-

dant Westinghouse Electric Corporation’s Brief in Oppo-

sition to Plaintiff’s Motion for Attorneys’ Fees and Costs

(Doc. No. 138, filed October 23, 1997).

Defendant Westinghouse Electric Corporation

(“Westinghouse”) contends that, because Plaintiff sought

only monetary damages and recovered none, Plaintiff is

not a “prevailing party” and cannot, therefore, recover

attorney’s fees or costs. Defendant also asserts that the

evidence presented at trial was legally insufficient to

support the jury’s verdict that Westinghouse discrimi-

nated against Plaintiff due to his age and that, accord-

ingly, judgment should be rendered for Defendant.

Plaintiff Romano Salvatori (“Salvatori”) contends

that he is entitled to fees and costs pursuant to the

express terms of the Age Discrimination in Employment

Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”). Plaintiff

asserts that he is not seeking fees and costs pursuant to

Federal Rule of Civil Procedure 54(d) and that law relat-

ing to this provision is inapplicable to his motions for

fees and costs. In addition, Plaintiff maintains that the

principles applied to fee awards under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., and

the Civil Rights Attorney’s Fee Act, 42 U.S.C. § 1988, are

not pertinent here.

The Court begins its analysis with a basic observation

that the terms of the Title VII and section 1988 fee-

shifting provisions differ significantly from those of the

ADEA fee-shifting provision. The Title VII and section

1988 provisions state that a court, in its discretion, may

10a

allow the prevailing party to recover a reasonable attor-

ney’s fee as part of costs.1 However, the ADEA fee and

costs provision provides for a mandatory award of attor-

ney’s fees in addition to any judgment awarded the plain-

tiff. See Shelton v. Ervin, 830 F.2d 182, 183-84 (11th Cir.

1987); Fegley v. Higgins, 19 F.3d 1126, 1134 (6th Cir. 1994),

cert. denied, 513 U.S. 875 (1994). The provision states, “The

court in such action shall, in addition to any judgment

awarded to the plaintiff or plaintiffs, allow a reasonable

attorney’s fee to be paid by the defendant, and costs of

the action.” 29 U.S.C. § 626(b).2 Unlike the Title VII and

section 1988 provisions, the ADEA provision makes no

1 The Title VII provision states:

In any action or proceeding under this subchapter the

court, in its discretion, may allow the prevailing

party, other than the Commission or United States, a

reasonable attorney’s fee (including expert fees) as

part of the costs, and the Commission and the United

States shall be liable for costs the same as a private

person.

42 U.S.C. § 2000e-5(k). Section 1988(b) provides in pertinent

part: .

In any action or proceeding to enforce a provision of

sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this

title, title IX of Public Law 92-318 [20 U.S.C.A. § 1681

et seq.], the Religious Freedom Restoration Act of

1964 [42 U.S.C.A. § 2000d et seq.], or section 13981 of

this title [,] the court, in its discretion, may allow the

prevailing party, other than the United States, a

reasonable attorney’s fee as part of the costs.

42 U.S.C. § 1988(b).

2 This provision is incorporated into the ADEA by

reference to 29 U.S.C. § 216(b) of the Fair Labor Standards Act

(“FLSA”).

Pe Dae Det enta wlieetite

lla

mention of a court’s discretion or a party’s “prevailing”

status. Moreover, the Eleventh Circuit has held that attor-

ney’s fees sought pursuant to section 216(b) are an inte-

gral part of the merits of the case and part of the relief

sought therein. Shelton, 830 F.2d at 184.

The issue in this case is not whether Plaintiff is a

“prevailing party” within the meaning of Rule 54(d) or

the Title VII or section 1988 fee provisions, but rather is

whether Plaintiff was awarded any judgment within the

meaning of the ADEA fee provision. In other words, does

a jury finding that Defendant discriminated against Plain-

tiff entitle Plaintiff to an award of attorney’s fees and

costs even though the jury determined that Plaintiff was

owed no damages? The cases cited by Defendant are not

helpful in deciding the precise issue before the Court.

Defendant has cited cases concerning Federal Rule of

Civil Procedure 54(d) and the Title VII and section 1988

fee-shifting provisions,? but no cases addressing the

% According to Eleventh Circuit precedent cited by

Defendant, “to be a prevailing party for purposes of 42 U.S.C.

§ 2000e-5(k), requires the attainment of something more

tangible than a jury finding” of discrimination. Walker v.

Anderson Electrical Connectors, 944 F.2d 841, 847 (11th Cir. 1991),

cert. denied, 506 U.S. 1078 (1993). According to United States

Supreme Court precedent relating to section 1988 and cited by

Defendant, “a plaintiff ‘prevails’ when actual relief on the

merits of his claim materially alters the legal relationship

between the parties by modifying the defendant's behavior in a

way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S.

103, 111-13 (1992); see also Texas State Teachers Ass’n v. Garland

Indep. School Dist., 489 U.S. 782, 791-92 (1989); Hewitt v. Helms,

482 U.S. 755, 760 (1987); Hensley v. Eckerhart, 461 U.S. 424, 433

(1983). In Farrar, the Supreme Court found that a plaintiff who

wins even nominal damages is a prevailing party pursuant to

12a

ADEA provision in a context similar to the instant one.

Neither the cases cited by Plaintiff nor the Court’s inde-

pendent research has revealed any ADEA or FLSA cases

on point. The plain meaning of the terms of the provision

indicate that a court must award a plaintiff a reasonable

attorney’s fee and costs if the plaintiff received any judg-

ment in his favor. In this case, Plaintiff received a favor-

able judgment that Defendant had violated the ADEA.

Accordingly, it appears that this Court must award Plain-

tiff a reasonable attorney’s fee and costs. This Court’s

interpretation of this provision furthers the ADEA’s pur-

pose of making Plaintiff “whole” and restoring Plaintiff

to the economic position Plaintiff would have occupied

but for the action Plaintiff undertook because of the ille-

gal discrimination of Defendant. See Castle v. Sangamo

Weston, Inc., 837 F.2d 1550, 1561 (11th Cir. 1988). It also

fosters a public purpose in support of eliminating age

discrimination in the workplace.

Based on the foregoing, the Court concludes that

Defendant has not shown that it is appropriate for this

Court to alter or amend its judgment by disallowing

Plaintiff reasonable attorney’s fees and costs. In addition,

Defendant Westinghouse has not shown that there was

insufficient evidence to support the jury verdict and,

section 1988 because a judgment for damages in any amount

modifies the defendant’s behavior to the plaintiff’s benefit. Id.

However, even though a plaintiff who receives nominal

damages is eligible to receive fees pursuant to section 1988, fees

may still be denied because the degree of plaintiff’s overall

success goes to the reasonableness of the fee award. Id. at

113-15.

ov scradestange gianna (Bn dit Ue CARAT Ne cc aN Ae CAE ds a a

13a

therefore, altering or amending the judgment on this

basis is not warranted.

CONCLUSION

Based upon the foregoing, the Court makes the fol-

lowing ruling:

1) Defendant Westinghouse Electric Corporation’s

Motion to Alter or Amend Judgment (Doc. No. 126) is

DENIED.

2) Plaintiff’s Motion for an Award of Attorneys’ Fees

and Costs (Doc. No. 128) is REFERRED to the United

States Magistrate Judge for Report and Recommendation.

3) Plaintiff’s Supplemental Motion for an Award of

Costs (Doc. No. 130) is REFERRED to the United States

Magistrate Judge for Report and Recommendation.

DONE AND ORDERED at Orlando, Florida this, 4th

day of February, 1998.

/s/ Patricia C. Fawsett

PATRICIA C. FAWSETT

UNITED STATES

DISTRICT JUDGE

Copies to:

All Counsel of Record

14a

United States District Court

MIDDLE DISTRICT OF FLORIDA

Orlando Division

ROMANO SALVATORI, JUDGMENT IN A

Vv. CIVIL CASE

WESTINGHOUSE ELECTRIC CASE NUMBER:

CORPORATION. 96-371 Civ-Orl-19

[XX]

Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the

jury has rendered its verdict.

Decision by Court. This action came to trial or

hearing before the Court. The issues have been

tried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that the jury in

the above entitled cause having found in favor of

the plaintiff on his claim of Age Discrimination in

Employment, and the jury having found that such

discrimination was not willful and awarded no

monetary damages on the issues of back pay, front

pay or pension benefits, judgment is hereby

entered in favor of plaintiff ROMANO SALVATORI

on his claim and against the defendant WESTING-

HOUSE ELECTRIC CORPORATION. Plaintiff may

make application for his costs of action in accor-

dance with the law and Rules of this Court.

September 26th, 1997

date

FILM ROLL: #93

DOCUMENT: #3998

/s/ RICHARD D. SLETTEN

Clerk

/s/ Louis Pirone

Louis Pirone -

(By) Deputy Clerk

ot elo