Joseph Dominic, Cross-Appellant v. Consolidated Edison Company of New York, Inc., Cross

Partner, Equidyne, of the Partner and “an affiliate General as to whom we re- co-contracting driller ... for the verse and remand proceedings for further [sic] Partnership’s development prop- oil consistent herewith. Plaintiff should be erties,” 118; “an Eastland as affiliate of opportunity allowed no further to amend Partner, the General which ... sublet coal complaint (except necessary as to con- 119; properties Partnership,” hereto), to the and form in view of his election to Properties subsidiary Equidyne as “a upon present complaint. stand amended manager syndi- ... serves as a [which] investments,” Equidyne

cator of real estate allegations These inadequate

1111. liability these defendants with

misrepresentations Offering in the Memo-

randum. Equidyne

None of the individual

defendants, Ross, Beeler, Rock and Lieb mann, Offering is tied to the Memorandum Joseph DOMINIC, Plaintiff-Appellee, any specific way, alleged or even to have Cross-Appellant, any been an officer or director of non-indi Equidyne vidual defendant when the Offer speci Memorandum was issued or the CONSOLIDATED EDISON COMPANY plaintiffs bought

fied class of their limited YORK, INC., OF NEW partnership interests. Amended See Com Defendant-Appellant, Cross-Appellee. plaint, 111112-15. 86-7915, Nos. Dockets 86-7945. might Some of these defects be curable. United States Appeals, Court of earlier, however, As stated juris- we have Second Circuit. diction plaintiff because ir- made an election, giv- revocable in the face of leave Argued Jan. 1987. further, en below to complaint amend the June Decided to stand or fall complaint on the amended present its Accordingly form. that com- plaint only against can stand the Partner-

ship, Partner, the General Equidyne.

2) The Lawyer Defendant, the Account-

ant and Inland. Defendants correctly district court dis complaint 9(b)

missed the under Rule as to

these allegations defendants. No in the complaint

amended are sufficient to de any

scribe of them affiliates, as insiders or

and there allegation is no linking any of any specific

them in way to any fraudulent

misrepresentation or omission.

III. CONCLUSION

The order of the district court dismissing

the complaint is affirmed as to all defend-

ants except the Partnership, the General appeals Edison now of its Walker’s denial ‍​​‌​‌‌‌​‌‌‌​​‌​​‌​​​‌​​​‌​‌​‌​‌‌‌‌‌‌‌​‌​​​‌​‌​​​‍fоr a directed verdict and for motions

judgment notwithstanding the verdict judgment new trial from his final $169,804.00, awarding damages of and at- torneys’ costs in amount of fees and $121,076.25 $7,919.44,respectively, F.Supp. cross-appeals, claim- 815. when ing Walker erred he re- re- pay, duced the fused to liquidated damages of front-pay the award as double willful for Con Edison’s attorneys’ violation and limited Dominic’s fees to the amount. We affirm. lodestar

BACKGROUND primary appeal The claim on this is the sufficiency underlying of evidence jury’s finding retaliatory discharge. of must of course view that evidence in the light plaintiff. See, most favorable to the e.g., Champlain Valley Physi Konik v. Center, Hosp. cians Medical 1007, (2d Cir.), denied, 1013 cert. 469 U.S. 253, (1984). 105 S.Ct. L.Ed.2d Dominic’s career in Con Edison’s management began in 1971 when he be- came program. in an instructor training in-house By he had risen to Train- charge Director was in and of the Training for Center Con Edison’s Power Isakoff, Peter Washington, D. D.C. Department. Generation In capacity, (Richard Ben-Veniste, & Ben-Veniste Sher- seventy he managed offerings, oversaw course noff, Washington, D.C., Jacobson, Martin development of new courses counsel), City, New York pellee-cross-appellant. of plaintiff-ap- and supervised twenty and thirty between employees, primarily During instructors. McTiernan, Jr., Charles E. New York Training Director, his rise to until and ear- City, for defendant-appellant-cross-appel- ly 1981, Dominic received substantial merit lee. performance ratings. raises and excellent April In Dominic was informed NEWMAN, CARDAMONE, Before and that, reorganiza- company as a of a result WINTER, Judges. Circuit tion, position Training Director was merged position tо be into a new called WINTER, Judge: Circuit Training Safety. Manager Despite On June plaintiff promise Joseph supervisor, Dominic’s James Do- minic, age then forty-nine, Fry, promoted that Dominic would be was fired from job with position, May defendant in Consolidated new was filled Company (“Con McNulty. of New McNulty York John was seven Edison”). Dominic brought Dominic, appoint- this years action older than Age under the Training Discrimination Manager Safety ment as constituted a Employment Act (“ADEA”), po- from his former seq. demotion et §§ jury rejected Manager at claim that sition as Plant Con Edison’s his dis- product power Simultaneously, East River station. age discrimina- tion but newly found that Con Dominic was demoted to the created Edison had willful- ly Management Training fired Dominic in Coordina- position tor and reduced retaliation for his earli- er complаints age grade discrimination. level twelve Con pay. no decrease in to eleven but with ation when his reviews thereby superi- McNulty became May pursuant him in provided were late changes implemented by or. These Daryl request made at March that he had Wall, had become Con Edison’s who to Wall on June meeting. wrote Director of Power Genera- 3, change Services protesting the retroactive early Department in tion rating again objecting to what he Later in perceived as discrimination. 1982, McNulty apparent- January In June, Dominic was transferred from the ly disgruntled over his demotion and left Training corporate Edison’s Center Con expressed Edison. Dominic interest Place, headquarters Irving where he position again McNulty’s former but was personal supervi- came under Wall’s direсt over, passed Henry this time for Howe. sion. The floor to which Dominic was as- signed forty-eight years old Dominic was while fourteenth floor—was occu- —the thirty-five. Because Dominic Howe was pied by fifty management employees possessed experience than more Howe and Department Power Generation and was un- promotion, he deserved the believed that dergoing renovation when Dominic arrived. request meeting. a Fry called to At the renovation, Because of the required Dominic was 5, on meeting Fry with and Wall March change his work location sever- 1982, expressed disappoint- Dominic his al ing to endure times and substandard work- ment and his at Howe’s selection belief eventually conditions. He was as- statutory rights that his had been violated. Wall under the ADEA signed to a modular office on that new responded by criti- floor. cizing performance. Dominic’s Dominic requested then Wall’s chain his to be transferred from Place, Irving assigned At Dominic was authority, but Wall denied tasks, relatively certain ministerial such as request. schedules, preparation training previously performed had been clerical employees at Con Edison Management personnel. Dominic also continued to be supervisors rated their periodically manage- entrusted with most of his former employees “performance reviews.” in receive an overall responsibilities. respon- rial Wall became appraisal” “performance reviewing performance sible for after his transfer to Dominic’s “T,” high a de- range from that can Irving Place. Jan- On “F,” “E,” “S,” through scending uary gave perform- she Dоminic a 1982, Dominic’s January “U.” In low of (meets “F” ance review of minimum re- gave Dominic an McNulty, supervisor, then quirements ment). clearly requires improve- but consistently ex- rating (performance “E” report specific Her recited nine de- During previous requirements). ceeds performance ficiencies Dominic’s counted the difficult and dis- November, however, McNulty had Fry and working conditions time, rating. At that Dominic’s discussed McNulty faced, commenting that Dominic had rating, “E” but proposed an had [Irving people “most of the Place] (performance only an “S” Fry believed that gone through office similar inconven- ha[d] require- exceeds fully satisfactory and report iences.” Wall’s directed Dominic to areas) Over was deserved. ments in some organizing develop both a method of rating disagreement, аn “S” McNulty’s “very specific work to meet deadlines company’s official on the was authorized required Finally, report results list.” In March salary sheets. December provided that Dominic would “be rerated in meeting, Fry after the March days, agreed upon on the based results McNulty had the first time that learned for rated required.” meeting January At a performance “E” on the an Dominic protested negative this re- “S” as of the authorized review instead listed ‍​​‌​‌‌‌​‌‌‌​​‌​​‌​​​‌​​​‌​‌​‌​‌‌‌‌‌‌‌​‌​​​‌​‌​​​‍on the view. Wall told Dominic that she con- Fry then salary sheet. him on the borderline an sidered between review rat- changed performance Dominic’s weak, (generally “F” and a “U” does not rating Fry also raised the ing to an “S.” requirements) minimum but was rat- meet ing Howe, promoted over had been who hope him “F" in the that he would Dominic, McNulty in No- had receivеd performance. improve his “E.” to an vember 1981 from an “S” changes departed from These retroactive thereafter, Shortly Dominic told Patricia procedures. Con Edison’s usual Conroy, personnel supervisor for the Pow- rating that his Dominicwas not informed er Department Generation and Wall’s as- the alter- had been altered. He discovered sistant, planned that he to file formal $67,- was entitled to recover that Dominic charges. On March discrimination $378,000 pay in front pay. 902 in back complaint he did in fact file a with York New State Division of Human judgment Con Edison moved for notwith- Rights. day, fifty-two The next rather trial, or standing the verdict for a new specified ninety days than the after the claiming that the verdict willful retalia- January meeting, Wall confronted Do- unsupported the evidence. tion was minic performance with new review. argued Edison also that the decision This review concluded Dominic had pay whether to award and the progress “made developing plan no equitable matters amount to be decided any projects” schedule for and had court, jury. not the responded requests “not to the for im- opposed ap- Finally, Con Edison provement the January defined in Perform- plication attorneys’ fees. Walk- given ance rating, Review.” He was a “U” judg- motion for er denied Con Edison’s possible, placed the lowest on formal notwithstanding verdict. He ac- ment ninety-day unacceptable. performance notice knowledged could jury that the have be- apparently had de- events, lieved Con Edison’s version i.e., veloped tempted required a “results list” and at- legitimate Wall’s dissatisfaction with present prior Wall performance, but concluded that March appointments but Wall had cancelled several supported sufficient evidence Dominic’s ac- result, him. As with Do- that the count as well. He concluded minic had fulfill “agreed failed to was entitled to infer a motive upon” component required by the January (i) lowering from: the retroactive of Do- performance review. rating minic’s after his first (ii) complaints; that Wall evidence had de- progress A of Dominic’s in review meet- assignments liberately deluged him with to required” period for the “results after fail; (iii) early perform- him cause to meeting the March 18 reveals that he was reappraisal in March 1983 that cut ance short the required assigned twenty more than tasks. On June complete had Dominic to his time 17, 1983, aftеr ninety days the March 18 work; (iv) his transfer to dif- review, that Dominic Wall concluded had Irving working ficult Moreover, conditions at Place. in requirements not met his most areas and concluded, Judge Walker evi- accordingly employment terminated his purposefully retali- dence of Con Edison’s atory appeal with Con Edison. Dominic filed an coupled with its awareness behavior pursuant company guidelines Wall with to age complaints of Dominic’s discrimination response. on June 23 but claimed never to no Wall received a of justify sufficient to verdict willful was retaliation. appeal. received his have however, testimony, Conroy There was forwarded it to her. n pay, Judge On the issue of front Walker jury held that “the court rather than the should equitable evaluate factors to deter- only pay mine not front whether is war- ranted but also the to be awarded.” amount PROCEEDINGS BELOW He found that Dominic was well educated After receiving right-to-sue letter from $34,000, $378,000, than and sufficient front rather was Equal Employment Opportunity Com- compensate pay to him for mission, Dominic complaint filed his in the reasonably the time it would take him to district court on claiming October comparable find employment. He further several violations of the ADEA. Two award, eq- held that the as an first, claims were that jury: submitted to the reinstatement, uitable substitute for was discharged Dominic was on June 17 subject liquidated not ages provision. to the ADEA’s dam- age, because of his in violation of 29 U.S.C. did, however, He double 623(a)(1), second, and, that he was dis- § jury’s back-pay liquidated award as charged allegations because his age of of damages. discrimination, in of violation 623(d). The jury found that Con Finally, Judge Walker awarded Dominic had against not discriminated Dominic attorneys’ equivalent be- fees the lodestar cause of age amount, his had willfully but the fees incurred retaliated reduced against him complaints of his proceedings. because of He refused to de- EEOC age The discrimination. figure spent concluded crease the lodestar for time he four Judge claims because Walker relied on incidents as unsuccessful Dominic’s found that inextricably for the evidentiary jury’s claims basis those a sufficient finding retaliatory motive. The retaliatory the successful of a first intertwined with Nevertheless, Fry’s declined compen- of Domin- retroactive alteration discharge claim. ratings. performance amount Howe’s Con lodestar ic’s and Edison to double the they attornеys argues risks that this action cannot for the have sate faced, Fry amount was because had told noting that lodestar been attorneys McNulty early have as as December well greater than would far age they previ- complaints of discrim- been limited to before Dominic’s ination, received had given percentage Dominic’s that Dominic could ously agreed-upon Indeed, rating. “E” the December 15 sala- recovery. sup- ry confirm that sheets judg- Accordingly, Walker entered Even if no posed to receive an “S.” infer- $169,804.00 in ment the amount dam- Fry’s flow from ence of retaliation can $128,995.69 ages and costs. fees and McNulty’s subsequent appar- correction of appeal cross-appeal This followed. however, error, Con Edison has offered ent no similar alteration explanation for the retroactive performance rating. Howe’s action, therefore, DISCUSSION supports the This infer- deliberately ence that Con Edison made Sufficiency the Evidence competitor look inferior to argues that there is insuffi- age for his accusations of dis- retaliation sup- cient evidence as matter of law crimination. port finding that Dominic was Second, Dominic’s transfer Irving complaints discharged in retaliation for his Place, which occurred after he attributed retalia- discrimination that the change rating to tion was willful. age discrimination, and his working condi- Irving tions at support Place a finding of a (a) Retaliation retaliatory motive part on the of Wall. However, Con Edison notes that Dominic case in chief established himself asked to be transferred from the prima charge. showing retaliatory dis facie Training Center. It also that reas- Edison was aware of com signment to Irving logical Place was be- discrimination, plaints age which were fifty cause other management employees by soon adverse such as followed actions of the Power Department Generation poor subsequent his dis evaluations and addition, located there. In the Manage- charge. See Davis v. State New Univ. of Training ment Development & Department, York, (2d Cir.1986). The with which Dominic to cooperate, was going burden of forward with evidence nearby. located Con Edison concedes that legitimate for discharge reasons the shifted working the conditions on the fourteenth to the performance. by Con Edison. This burden was carried Irving floor of time but notes that all Place were difficult at that poor evidence of considerable Dominic’s employees the locat- the Dominic thus bore ulti ed there shared similar conditions. More- persuading jury mate burden that the “ over, according Edison, to Con Dominic lost in play[ed] part ‘a motive ” private Training office at the Center (quot adverse employment actions.’ Id. when he was demoted in before he Corp., Grant v. Bethlehem Steel age filed his complaints. discrimination On (2d Cir.1980)). F.2d hand, the other fer, did seek a trans- therefore, us, question The before is get away but to from Wall. whether found jury a reasonable could have Moreover, he testified that he had retained discharged that Con Edison Dominic his office at the Training Center until his complaints age because of his discrimi- transfer and that the employees othеr who Although very nation. this was a close suffered the adverse conditions Irving might case that we well have decided dif- Place were of significantly grade lower lev- fact, ferently were we trier of con- els he. than clude that there was sufficient evidence jury adopt allow the version It province is not our to resolve these of the events. conflicting factual claims. jury however, jury and the could have inferred of events. version credit Dominic’s free that word of this intention reached Wall. retal- Wall had that thus conclude could It Thus, Wall’s decision to rerate Dominic af- bringing him by complaints iated fifty-two days, proposed ter instead of the supervi- heavy-handed and her direct within ninety, day age on the after he filed formal him to unreason- subjecting then sion charges, supports discrimination the infer- working conditions. able retaliating ence that Wall was charges. for those Third, found from jury could have assignments at pattern of deluged him had Irving Place that Wall support There was thus evidence to complete impossible to that was with work conclusion that Dominic’s dis him to fail. designed to cause and was purposes of was for retaliation. many of these as- that testified argues response that such a largely of time-con- consisted signments legally light impermissible conclusion is previously had suming work that clerical of evidence Dominic’s crimination employer was dissatisfied with him, him, he when done for been was ical performance prior to his dis in cler- Training An increase Director. complaints. An legitimately be ex- responsibilities can supervisor already dissatisfied in 1982. demotion plained by Dominic’s employee’s with an work However, evidence that Do- there was also very negatively to a claim of well react discrimination and become even more in assignments given numerous minic was have been as- might appropriately discharge employee. clined to over, More jury staff. The signed clerical to Wall’s usually fol claims of discrimination these concluded that could thus have employer, low adverse actions who to interfere with projects were intended justify poor perform them will as based designated per- reach other attempts to employee. prior ance Evidence of sup- goals. conclusion is This formance present virtually dissatisfaction thus Dominic was testimony that ported by the every case in which a claim of retaliation is agreement upon a Wall’s unable to obtain prohibition made. The ADEA’s of retalia required list because she failed results meaningless tion would thus be if such purpose. made for keep appointments Furthermore, finding precluded jury evidence re evidence there was moreover, note, taliation. We that in the assignments subjected Domin- Wall’s work ic to inconsistent evidentiary instant case the effect of Wall’s changing demands. prior expressions of was un dissatisfaction have found example, could For dissatisfac dermined evidence her to work with instructed Dominic that Wall various committees to tion increased after March 1982. goals clarify ideas, later excori- develop but 1983-84 that Dominic’s Edison also the commit- having unsatisfactory him for attended ated performancе was fact meetings. tee by Wall. For the actions taken justified during while example, 1982 and Finally, January per- in Dominic’s employee at management a full-time was review, gave formance him “F” Wall an Edison, at Dominicattended law school Con rating, indicated various areas which he thirty-six hours night spent more than improve, should him told that he “will degree. How- pursuing a law per week in ninety days, be rerated the based on ever, existence of a foundation the agreed upon required.” results March On per- with Dominic’s Wall’s dissatisfaction 17,1983, complaint Dominic filed a with the retaliatory does not exclude formance motive as the cause Rights. New York Division of Human discharge. of Dominic’s day, 18, next gave March Wall Dominic a the performance verdict new ceived on formal Edison attacks Finally, review which re- Con no offered rating. placed ground a “U” He was then that the on performance ninety-day per- that notice that his evidence affirmative How- 1982. March unacceptable. satisfactory formance was Edison after Con was sole- not based ever, was jury’s that there was no evidence that verdict the testimony and Wall complaint was aware of the of Wall’s upon when she a disbelief ly upon oppo- the prepared that the March inference 18 review. Dominic a resultant Citibank, Martin must be true. See testified that he had told Wall’s assistant site Cir.1985). (2d N.A., 212, Conroy of his 217-18 complaint, intention to file a 762 F.2d found that Con of a mo- Independent evidence showed reckless dis- regard as change in retroactive whether in the tive exists retaliatory conduct prohibited was rating, the trаnsfer to the Howe’s Irving suming ADEA. In reaching this conclusion, of time-con- Place, imposition agree we the with Powell v. Rockwell shifting Int’l Corp., and Wall’s work (5th clerical 788 F.2d 279 Cir.1986), rating Because we which periods. held that demands cannot “find could have even if an em- ployer “did not reasonable fact-finder that no ‘know’ firing that an em- ployee in plain- for the retaliation illegal, a verdict for filing reached an ADEA claim 217, tiff,” must affirm then at that id. action was cer- tainly ‘reckless.’” Judge Walker’s de- liability and Id. finding 286; at see also Rose v. Hearst Magazines n.o.v. judgment Div., nial of (7th Cir.1987) (where employee filed claim, ADEA jury finding of retalia- (b) Finding Willfulness tion is irreconcilable with finding that viola- tion jury’s back- was “nonwillful”). doubled the Judge Walker We therefore hold found Con where an employee because is discharged or demoted against Dominic was retaliation because of opposition Edison’s to practice 626(b). made unlawful “willful.” See 4(d) Section § ADEA, is insufficient evi see argues that there ‍​​‌​‌‌‌​‌‌‌​​‌​​‌​​​‌​​​‌​‌​‌​‌‌‌‌‌‌‌​‌​​​‌​‌​​​‍Edison dence to U.S.C. 623(d), and where that opposition finding of willfulness. support the specific includes a claim that his or has held that a viola her Supreme Court statutory The tion of the rights under the “ ADEA employ being if ‘the violated, ADEA is willful a trier of fact can disregard find reckless or showed er ... knew for the matter willfulness as defined Thur- ston. its conduct was of whether ” ADEA.’ Trans by the World prohibited Thurston, Airlines, 469 U.S. Inc. v. This conclusion is consistent awith L.Ed.2d 523 105 S.Ct. liability two-tiered scheme and will not (1985) Ass’n Int’l Air Line Pilots (quoting every finding cause of intentional retalia Airlines, Inc., 713 F.2d v. Trans World automatically finding tion to lead willfulness. For ployee lawful (2d Cir.1983), part rev’d example, an em where 105 S.Ct. 469 U.S. grounds, other “opposed any practiсe has made un Thurston, (1985)). In 83 L.Ed.2d 523 ADEA, 623(d), by” 29 U.S.C. § explicitly rejected a standard Court by expressing general disagreement with finding of willful required a would have practice, referring statutory the rights without that the employer an knew ness whenever ADEA, finding under the of inten picture.” “in The Court ADEA might always tional retaliation alone not “Congress intended a two-ti concluded ered finding support sufficient to of willful than one that liability scheme” rather ness. need not of course define the dam in an award of double would result universe of conduct that will will every 469 U.S. ages “in almost case.” support finding. such a We hold 127-28, 105 S.Ct. at a trier of fact conclude that an em ployer disregard has shown reckless Con Edison contends that there no conduct, illegality of his and has there evidence that it was aware that the ADEA Thurston, under willfully acted when prohibits complaints retaliation for employee’s complaints put employer discrimination. such If willfulness is found specifically might on notice that it be vio circumstances, argues, ev- lating intentionally retal the ADEA and it ery finding of intentional retaliation will complaints. iates for those circumstances, Under automatically carry finding with it a of of longer the ADEA is no willfulness, contrary teaching to the Thurston, merely picture,” “in 469 U.S. Thurston. We of at 625. The award S.Ct. be af liquidated damages must therefore Given that jury the firmed. found that Con against retaliated Dominic for his age discrimination complaints and that 2. Front-Pay Reduction Award those complaints of specifically referred to his statutory rights ADEA, under the In Whittlesey con Corp., Union Carbide clude that jury the could reasonably (2d Cir.1984), have F.2d we held pay front is U.S. S.Ct. 55 L.Ed.2d 40 award of monetary a “ (1978), which held that suсh ‘equitable relief relief under necessary as sometimes “legal.” However, ADEA purposes the the Loril to effectuate appropriate ... ” liquidated did decide (quoting 29 U.S.C: lard not whether dam of ADEA]’ [the legal employ- ages equitable in nature and where 626(b)), particularly irreparably thus did determine whether the has been seventh relationship ment flowing provided right jury from amendment a to a animosity trial by the damaged course, cases, on such claims. The concluded, however, Report Conference In such litigation. “[bjecause pay liqui in lieu front to award decision whether damages in equitable legal one en- dated are the nature of is reinstatement relief, party it is manifest that a is entitled judge. the trial trusted underlying the factual issues have jury.” a claim decided Rep. H.R. Conf. Dominic nevеrtheless 13-14, Cong., No. 95th 2d Sess. judge found an award of once the trial has reprinted Cong. in 1978 U.S.Code & Ad pay appropriate, to be the amount front Congress min.News intended to thus necessary compensate reasonably right provide jury a trial on is a factual issue that must be plaintiff “legal” all claims that considered to in be jury under the ADEA. to the submitted nature, including liquidated claims for dam analysis of the lan Our We ages. Congress effectuated that intent guage structure of Section 626 indi providing recovery jury for a trial in actions for Congress jury intended to limit cates owing.” of “amounts The infer underlying issues claims trials to factual legislative ence to be drawn from this his 626(b) provides legal relief. Section tory Congress’ is that simply intention was may of the ADEA be remed that violations comply to providing with the amendment seventh first, by two kinds of reliеf. The ied jury for a trial of factual issues owing a result of ... as a viola “[a]mounts underlying such claims. There is no evi tion,” unpaid wages as well as includes Congress dence that intended depart liquidated damages for willful violations. from the traditional distinction le between legal equitable The second is “such gal equitable claims embodied in the appropriate,” including may relief as be amendment. seventh Finally, jury provi trial reinstatement. sion, 626(c)(2), provides for a trial believe Section this is a common sense result. any in There is by jury only such action for as a result any “of issue fact much overlap between the facts recovery owing relevant to amounts whether an award of pay front added). (emphasis appropriate of a violation” and those relevant to the size of the awаrd. For example, ques- both conflicting subject to language is This tions turn part on the ease with which interpretation is One interpretations. the employee will be able to find other legal recov- plaintiff’s a relevant to facts employment. To divide the fact-finding re- owing,” “amounts namely recovery of ery, sponsibilities in such circumstances would equitable if by jury a even to be tried be anomalous and would risk inconsistent con- sought, that issues also but relief is decisions. A jury might conclude that the tried relief are not to be cerning equitable employee would never find other work and is that interpretation jury. Another a large sum in pay, front while the sought, all legal relief is some whenever judge found that he or she would find work tried action are to be issues in the factual immediately and that no award was aрpro- by jury. priate. Or, a judge might find appropriate, but the jury might award only a nominal sum based on its belief that the legislative history of Section 626(c)(2) supports interpreta- former employee could secure employ- immediate Report identi- tion. The House Conference ment. owing” components of “amounts fied wages, pecuniary loss such as as “items Our decision is job-related Congress’ consistent with firing, and other benefits” provision for Providing jury trial on damages. trial liquidated in ADEA actions for lost issue of future earnings lost wages un- cases under the Jones Act and Employers’ Federal light Liability the then-recent Su- controversial Act. Defendants Pons, held preme decision Lorillard v. liable under Court damages him mitigated does not entitle personal injuries caused those statutes calculating In front-pay аward. lifetime plaintiffs’ claims for by negligence, front-pay of a award the court the size legal in nature. In wages are future lost plaintiff’s ability to miti- (cid:127)must estimate hand, case, the other front on present damages in the future. Such a deter- gate for the exercise of the trial matter pay is a mination is committed to that court’s dis- discretion.1 But see Max equitable judge’s Dominic offers no basis from (3d cretion. Int’l, 766 F.2d v. Sinclair field, (amount pay is for Cir.1985) Judge award we can conclude which abused his discretion in Walker finding jury). two years awas reasonable amount of time for comparable employment. Dominic to find argues Dominic also that even if it were Judge within the Walker’s discretion to reduce front-pay award, $34,000 Second, jury’s also find no reason his eq clearly Judge too exercise of award was lоw. Walker’s That award disturb Judge awarding was based that Dominic’s loss the Walker’s conclusions discretion uitable $17,000 years per year, $17,000 each of the two “approximate dissat difference” Edison was front-pay period. between the salary earning performance, he was at as evi Con Edison when with Dominic’s isfied denced discharged salary finding and the he is that he was paid at his present job years In that two was a discrimination. “rea- not the victim negative opinion sonable allotment of time in light Dominic, which Con Edison’s [Domin- expected required can be employment Judge find was not Walker ic] comparable to that which he have received lost at find that Dominic would argues ConEd.” Dominic not been dis ‍​​‌​‌‌‌​‌‌‌​​‌​​‌​​​‌​​​‌​‌​‌​‌‌‌‌‌‌‌​‌​​​‌​‌​​​‍steady pay that the court’s raises had he conclusion that he could easily compa- find that he would not have charged or even employment rable and of “was most An award of unrealistic” another demotion. suffered front erroneously placed equivalent on him the to the difference be pay burden proving mitigated damages. salary had the time of dis tween Moreover, Dominic contends that of trial was salary uncontra- at time testimony dicted had he his at trial Judge established that Walker’s discretion. thus within stay Edison, been allowed to at Con salary by the time of trial would have $14,000higher been than it was at the time Finally, Dominic claims that discharge, and thus Judge Walker’s pay of front award cause Con Edison’s violation was willful. should be doubled be $28,000 ($14,000 was at least x years) too low. 626(b) pro Again, we Section' owing vides that ... as a result “[a]mounts persuaded by are not these of a of” the ADEA violation bе treated First, arguments. position mis unpaid the same manner as minimum mitigation-of- understands the role of the wages compensation and overtime under damages proved 216(b) issue. Had Con Edison Section of the Fair Labor Standards mitigate damages— (“FLSA”). that Dominic failed to for equivalent job provides in turn Act for a The FLSA example, by refusing substantially mandatory liquidated award of dam back-pay award ages for those amounts. See —Dominic’s 216(b). However, would have cut off or reduced at the provi been the remedial mitigate any time of his failure to front-pay sions of the ADEA and the FLSA “are not identical,” Thurston, 111, 125, award would have been foreclos 469 U.S. EEOC, (1985). ed. See Ford Motor Co. v. 219, 233-34, S.Ct. 83 L.Ed.2d 523 3057, 3066-67, expressly U.S. 73 L.Ed.2d 721 S.Ct. ADEA thus limits the award of (1982). However, Con Edi liquidated damages to cases of “willful vio importantly, previ- son’s failure to show that Dominic had not Most as our lations.” unhap- has waived which he was fired because he that Dominic remained 1. Con Edison demotion, pay py and front about an earlier his efforts to claim to both reinstatement regain job prevent genuinely seeking his for- that earlier us from reinstatement conclud- not concedes, however, genuinely pur- position. reinstatement was not mer event, any sought to his sued. In it was within Walk- that Dominic has reinstatement Training previous position Cen- er’s discretion to award front and to take as head of the though have been into account Dominic’s lack of serious desire for Even ter. setting job prior job seriously particular the amount. interested in the 1259 indicates, discussion ous is not simply provides Section 1988. Each for an meaning owing” within the of “amounts attorney’s award of a “reasonable fee.” 626(b). Accordingly, discharged Section employee Second, question addressed in Wheat- liquidated no entitlement has ley, whether to a contingent agree- enforce damages equal front-pay to his award. upper award, ment as an limit on a fee contingent cannot arise until a ment has rights agree- fee already béen entered into a civil point, case. At that attorneys 3. Counsel Fee Award already have determined that the case is argues Judge Con Edison that Walker sufficiently attractive for them to offer limiting erred in not the award of counsel representation contingent on a basis. Civil fees to the amount his counsel would have rights subject cases to the rule in Wheatley contingent received under the agree- fee likely are not significantly to differ from reducing ment and not by the lodestar amount potential ADEA cases in their recoveries. legal expended the value of services on We are therefore bound Wheatley to Dominic’s unsuccessful claims. Dominic uphold Judge Walker’s decision. argues Judge that Walker erred in re- fusing to increase the counsel fee award beyond the lodestar amount to compensate (b) Adjustments to Lodestar Amount for the risk faced his counsel. parties argue Both Judge Walker by awarding erred an amount of fees roughly equivalent amount, to the lodestar i.e., the number of hours reasonably ex- Agreement (a) Contingent Fee pended multiplied by a hourly reasonable of counsel award Judge Walker’s They rate. agree, however, do not on the coun the amount fees exceeded manner which he supрosedly erred. the contin under have received would sel gent Dominic. they had with agreement fee Judge in a civil fee awards context In the Walker should have excluded from we under rights case lodestar amount spent of an fees for time in excess upheld an have agreed-upon claims, Dominic’s unsuccessful Wheatley such as his contingent fee. See Cir.1982). claim (2d age that he was the victim of 1041 discrim Ford, 679 F.2d v. “[wjhere ination. It is clear that explicitly articulate ... claims not Although we did separable, conclusion, upon are and one relied or more are found this rationale merit, n. 3 to be without then the Patel, 1185 district court Buxton portion should decline to requested would award that Cir.1979), noted that (9th “[i]t which discourage con fees which relate to the unsuc courts anomalous allowing cessful claim.” Coughlin, McCann v. arrangements tingent fee (2d Cir.1983) (footnote F.2d arrangements omit when such recovery of fees ted). hand, plaintiff’s On the other they when a recovery when denying are absent claims for relief “involve a core of ratio common endorse this We Id. present.” are legal facts or based on related awards theo to fee applicable [are] nale and believe under the ries,” the “lawsuit cannot be viewed as a ADEA. series of discrete claims.” Hensley v. Eck erhart, 461 U.S. 103 S.Ct. in- Wheatley is argues that (1983). Rather, L.Ed.2d rights cases the civil applicable because signifi district court “should focus on the result generally by Section governed in cance of the overall relief obtained employ- than damage awards plaintiff smaller in relation to the reasonably hours The formеr actions. ment discrimination expended litigation.” Judge on the Id. attorneys induce likely thus less legal Walker concluded that the factual and contingent basis. cases on underlying handle From theories nation claim were discrimi premise, factual indisputable that not inextricably intertwined inapposite. Wheatley they conclude underlying those with dis in no First, Congress has Consequently, fully claim. com underlying policies way indicated that justified pensatory fee award was because underlying 216(b) those differ Section Dominic recovered same relief on the he would have on his does apply claim Walker failed to retaliation claim discrimination claim. setting these standards his award. recognized, “[contingency As Lems is but Judge one of twelve.” F.2d at 575. 801 agree. The issues basic at trial were expressly Walker also considered counsel’s substantially Thus, intertwined. the facts agreement represent on a con- that underlie Dominic’s claim age of dis basis, tingency a consideration that Lewis crimination, demotion, e.g., his were used strong militating against held “is a factor a prior Con Edison to show its dissatisfac percentage arrange- bonus award as the ment tion with his work in rebut agreement in any takes into ting the Moreover, retaliation claim. al possibility losing of account the the case.” though the of merits Dominic’s retaliation Accordingly, Judge 801 F.2d at 576. Walk- claim did not depend the validity of his er’s decision not to double lodestar complaints age discrimination, of Davis, see amount of his discretion. was not an abuse 642, 802 F.2d there authority is Dominic could recover on his retaliation only complaints claim if discrimi

nation had a CONCLUSION reasonable foundation. See Co., F.Supp. 868 617 J.I. Case Because we find no error in any Judge Wolf v. Judge acted well (E.D.Wisc.1985). Walker Walker’s rulings, we affirm. fully awarding his discretion within compensatory fee. ON REHEARING PETITION FOR Dominic contends that the fee In petition its rehearing, appellant upward should remanded for award be ad contends that our statement that “Dominic justment light Coughlin, Lewis v. 801 ... bore the burden ultimate of persuading Cir.1986). (2d Lewis, F.2d In 570 we held the jury that ‘a motive play[ed] “[although losing the risk of will not ” apartinthe employment actions,’ adverse bonus, justify significant alone risk of at 1254 (quoting Davis State Univ. coupled prevailing contingent awith York, (2d 1986)), New erroneously Cir. fee arrangement be sufficient to merit applicable weakened the test upward adjustment” in the lodestar [an] causation, of “but for” which was properly amount. Id. at 576. We therefore re ‍​​‌​‌‌‌​‌‌‌​​‌​​‌​​​‌​​​‌​‌​‌​‌‌‌‌‌‌‌​‌​​​‌​‌​​​‍charged to the jury in the instant case. We fifty percent up versed the district court’s ward “A retaliatory ‘plays motive adjustment and remanded for find part’ in employment an adverse decision ings of fact on the existence of a contin causally when it is connected to the gent arrangement fee probability or, adverse language action in the of Mc of failure. Dominic asks us to remand this Donald v. Transp. Co., Fe Trail Santa findings. case for similar U.S. 282 n. 96 S.Ct. 2580 n. 10, 49 (1976)], L.Ed.2d 493 when it is the however, Lewis, In the district court ‘but for’ cause adverse action.” making explicit awarded a without bonus Davis, (Newman, J., F.2d at 645 con contrast, findings. In Walker con curring). sidered claim that his counsel great faced risk before he declined to rehearing accordingly petition The requested percent bonus. denied. that should con twelve factors fixing sidered in a fee award were set forth prior City to Lewis in Riverside v. Riv —era, U.S. -, 106 S.Ct. 2691 & 3,n. (1986), L.Ed.2d and

Case Details

Case Name: Joseph Dominic, Cross-Appellant v. Consolidated Edison Company of New York, Inc., Cross

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 29, 1987

Citation: 822 F.2d 1249

Docket Number: 739, 875, Dockets 86-7915, 86-7945

Court Abbreviation: 2d Cir.