*2 Before WELLFORD, KEITH and Judges, Circuit EDWARDS, Senior Circuit Judge.
KEITH, Judge. Circuit Appellant, First Tennessee Production Credit (“FTPCA”), Association appeals from a verdict in favor Appellee, Boyd Fite, Walker in this brought action pursuant Age to the Discrimination in Em- ployment (“ADEA”), Act U.S.C. et § seq. Appellant appeals also jury’s from the damages award of $270,000 totaling the district court’s award of attorney’s fees and costs in $71,373.93. the amount of For below, reasons set forth we affirm the judgment of Judge Julia Smith Gibbons. I. 30, 1984,
On October appellee brought against suit appellant, employer record, and the Federal Intermediate Credit (“FICB”),1 Bank alleging that he had been discharged in violation of the ADEA. In the of discovery, course both FTPCA objected and FICB to the disclosure cer- tain information contained in relating credit reviews which were claimed to be privileged. Appellee sought an order com- pelling the discovery, which granted by the United Magistrate States on Janu- ary 7, 1986. appeal In the magis- ruling trate’s court, to the district joined FICB by States, were the United Suggestion filed a of Interest assert- ing that the credit reviews were deemed regulations under of the Farm Credit Ad- ministration governmental to be records covered privilege against disclosure. After conducting hearing, court, on Trotter, Jr., Charles L. Huntingdon, 4, 1986, March entered an compelling order Tenn., Hampton Charles (argued), White both FICB and FTPCA to comply with the Collins, Nashville, Cornelius Tenn., & for discovery request. When failed or defendant-appellant. refused to abide the order compelling Roger Rutledge Keith (argued), Mem- discovery, appellee sought and obtained at- phis, Tenn., for plaintiff-appellee. torney’s fees as sanctions.2 1. Basеd FICB’s supervisory on exercise of au dispute, connection with this on December thority appellant, appellee magistrate, over pursuant filed suit an order reference, "single it employer” under denied a motion doctrine. of the United See States protective Quinn, for a preclude order to Armbruster introduc- F.2d 1332 Cir. tion into 1983). evidence of information obtained from concerning the United States the financial con- dition of FTPCA. by FTPCA for employed Appellee for trial, two motions filed FICB Prior appellee to forced years. FTPCA liability nineteen on issue summary judgment mo- December early retirement effective both court denied take appellee. employment end- However, April At the time on tions. partial for old fifty-seven years ed, motion FICB’s granted punitive for related vice-president сlaims ser- appellee’s assistant dismissal damages. capacity liquidated served vices. that, served Prior years. three discovery and completion of Upon appellee was While president-credit. vice per- motions, jury of seven preliminary cred- FTPCA received president-credit, 9, vice February impaneled, and sons was accept- ninety percent ratings of quality it theAt close trial commenced. *4 FICB. from or better case-in-chief, FICB able and FTPCA appellee’s The verdict. a directed for filed motions head- in the central Appellee worked conclu- At the motions. denied these Covington he was in when quarters office FICB FTPCA and proofs, all the sion of originating Loans president-credit. vice The verdicts. directed moved for again typical- county offices would field from motion, grаnted but denied they if county level approved at the ly be “single on to FICB verdict directed Larger amount. a certain did not exceed employer” issue. office approved at central loans were which jury, charged court then The committee, was com- by the loan 1987, 13, February on and deliberated FTPCA, vice president posed of the and assessed appellee in favor found and and the chairman credit president of $270,000. The in the amount damages Directors Board of of the chairman vice 19, February on judgment court entered (“Board”).3 1987, 27, FTPCA February On managers for county ofOne notwithstanding the judgment for a moved president-credit vice appellee was while April On trial. (“JNOV”) or a new verdict Spring In the Moore. H. Michael an for the court 1987, moved 9, appellee FTPCA, German, president 1980, Bobby servic- to сover all attorney’s fees re- falsified thought were he found what litiga- with the in connection es rendered files. Ripley office in the by Moore ports May an order on entered The court tion. Fed- in the and called Moore fined German for motion denying FTPCA’s (“FBI”). Be- Investigation Bureau eral attor- awarding trial and or a new JNOV ques- of the some appellee initiated cause $69,378.75,plus amount of in ney’s fees he concluded German reports, tioned $1,955.88 costs. involved. II. resulted prosecution No criminal two and German’s investigation, FBI principal its corporation is a posi- appellee from attempts to remove part It is Tennessee. Covington, office German by the Board.4 rejected tion were chief System, its Farm Credit of the effective of FTPCA president resigned as money to assist farmers to lend is function Frank The Board elected 1, 1980.5 June operations. farming in their appellee as- as supervisor, with credit respon- dent and appellee was president-credit, overseeing As vice super- administration, credit and assistant president but vice sistant credit sible for decisions con- at 995. responsible Appendix solely visor. Joint not Thus, he credit. cerning to extend whether loan solely responsible a if be not held could resigned frustra- out of claims 5.German default. into went appellee. concerning How- matter over the tion re, also ever, German shows record on meeting Board of the from the 4. Minutes to follow want signed he did because 14, 1980, recommended German April show that Cov- move to that he Board’s recommendation county assigned as assistant appellee be that manager Also, following Appendix at 995. ington. Joint Ipton Counties. Shelby resignation, announcement German's presi- vice approved Friedman Gerald Board Burnett to succeed German. Burnett made deny that talk budget of the may have several changes personnel assignments, up.8 come including the transfer of to assist- On December appellee entered president ant vice for related services and hospital kidney stone; with a he re- the assignment McQueen of William to vice mained in hospital until January 1, president-credit.6 president As vice for re- 1984. After returning home, his sick leave services, lated appellee was responsible for was extended due to a reaction to medi- handling process loans in the liquidation cation. January On Giles called (215loans), public as well as Ap- relations. appellee at home and informed him that he pellee charge was also in crop hail had retired effective December program insurance and the maga- 1983.9 Giles offered trigger appellee’s zine. This new position increased appel- benefits; retirement lee’s workload told Giles and elevated him in the command, that he chain of would although salary office the following Monday benefits remained the get things same. straightened out. economy The farm declined during 1980 Appellee reported work Monday through 1983, and FTPCA increas- again informed Giles that he *5 ing problem number of loans. Such loans was retired. asked for letter a failed due declining to the economy, as well explaining why being he was terminated. as judgment bad part on the of county later, days Three on Thursday, Giles fur- managers and personnel central office on nished the letter. Appellee claims that his the loan committee. Credit reviewers from receipt of this letter was the first time that FICB identified analyzed problem he put on notice job that his perform- loans, but analysis their provide did not ance was poor. Appellee claims that Giles sufficient information to ascribe fault to a had neither any performance administered particular individual. evaluations, given nor had he any warning In merged FTPCA with Jack- letters reprimands, or despite specific son Production Credit Association. Bur- provisions for such in 235 of the FTPCA § nett chose the occasion of merger to employer manual. resign president. successor, Burnett’s Appellee’s supported claims are Wayne Giles, assumed the presidency in testimony of Giles. appellee’s Prior to ter- Covington on May 1983. On October mination, Giles did not comment job on his approached Giles appellee about performance. Giles retiring admits that early.7 knew Giles he insists that he men- nothing appellee’s about job performance job performance. tioned as a reason for the Giles recommended further admits prior retirement. Appellee, that to how- the time ever, states he only approached appellee Giles talked about about early taking the fact that $20,000 retirement, was losing he to talked appellee with only $30,000 per month and that he was at- once quality appellee’s about work. tempting to budget. balance the Giles did This discussion appellee occurred when appellee Board acting named president- During vice 8. period, this same Giles remarked to credit. McQueen having he that was getting trouble budget prepared because give FICB would not 6. Burnett testified pro- that FTPCA was in the approval appellee’s its with salary in it. forms, changing cess of thought credit and he McQueen further stated that Giles never talked McQueen would be better able to handle the appellee’s job to him performance. about new forms. During period, 9. 7. same Within a Giles approaching appellee week after also terminated retirement, early president about approached former Giles of Jackson anoth- Production Association, employee, Virginia er Pierce, Credit age Collins. Collins was Howard over years Kirk, old and years worked Giles also wanted to age terminate Bill FTPCA. Giles informed Collins but that he wanted instead demoted president him vice suggested make cutbacks and manager. McQueen, she field According take office retirement, early effective approach December Giles anyone did concerning ter- voluntarily Collins retired. mination was not who age. of retirement (1st Cir. Textron, Inc., $2,000 involving a bankruptcy attending a 1979)). suggested loan, and Giles larger time on the use might better lower court argues that accounts.10 for a directed denying its motion erred appellee’s case-in- end of at verdict he as- appellee, terminated After Giles disagree. We chief. presidents vice of the three signed each the 215 handle department credit facie case prima a To make out increased in an This resulted accounts. discrimination, avoiding directed thereby To com- presidents. the vice evidence, workload plaintiff’s at the close of verdict manager this, moved (1) Giles he was a pensate that: establish plaintiff must office, Frank County class; (2) was the Hardemna he protected member of Covington. at office for the Moore, (3) qualified the central discharged; into he was analyses (4) loan replaced him do assigned he was position; and Giles packages Wilkins, com- F.2d at 520 loan person. younger new precalculations offices, omitted). applying duties the above (citations the field ing in from presi- case, by the vice we find to this handled test previously were crop hail facie case. prima over the established also took Moore dents. maga- program insurance fifty- Appellee established early thirties. inwas zine. Moore the ADEA seven, a member he was testimony, plus Appellee’s main- retirement, appellee protected class. Following his McQueen, Robert Wooten testimony reinstated. to be desire tained his FTPCA) and Board of (the temporary Chairman about few contacts only a made per- Burnett, year established However, in the second employment. *6 satisfactorily, and there job his making formed retirement, began he following his It is performance. his of no criticism made been jobs. other applications to re- forced appellee was undisputed that and all applications in twenty-eight about 31, 1983, and December effective tire position temporary accepted a that McQueen established testimony of appraiser. property a of Tennessee as State early thir- in his Moore, employee an Frank 20, January employment He commenced of portion рerform a ties, to hired was paid ap- job The County. 1987, Tipton in precalcula- loan to do appellee’s duties per month. proximately $924 could presidents three vice tions so that Thus, find accounts. we 215 over the take III. denying in not err did that lower At Verdict For Directed A. Motion FTPCA’s motion. Appellee’s End Case-In-Chief Of At Directed Verdict For B. Motion case, the age an discrimination And Motion All Evidence Close Of per burden the ultimate plaintiff carries Notwithstanding Judgment For by preponderance establish suasion to The Verdict protect that, an individual the evidence the standard set forth has This court because ADEA, dismissed he by was ed mo- of a the denial appeal review on Corpora Eaton v. Wilkins age. his verdict: directed tion for Cir.1986). Al (6th 515, 520 tion, F.2d 790 preclude to is sufficient reason than Evidence may more one though thеre verdict directed motion for granting can discharge, plaintiff employee’s for an “ in the reviewing evidence when, in for’ his that ‘but he shows if prevail non-moving to the favorable light against most discriminate motive to employer’s jury a reasonable permit party, it would not he would age, of his him because party. favor of that find v. Loeb (quoting discharged.” Id. been cutting costs preoccupied with was offices and the five months that stated 10. Giles poor financial condition. appellee re- about because of approached tenure before county tirement, traveling all was Giles 890 Rose v. Register National Corp., plight Cash Thus, FTPCA. argues 225, (6th Cir.), F.2d denied, cert. 464 that “the evidence sup suffice to ‘[did] 939,
U.S.
104 S.Ct.
port
L.Ed.2d 317
as a
probability
reasonable
the infer
(1983) (citation omitted). Thus, “if, from ence that but for
age
claimant’s
he would
”
‘thе
presented
facts
in plaintiff’s proofs
not have been discharged.’ Wilkins, 790
there
simply no reasonable inference to
[is]
F.2d at
(quoting
Lovelace v. Sherwin-
suggest
plaintiff
that
Co.,
discriminated
Williams
(4th
Cir.
age,’
because of his
1982)).
then
disagree.
We
has
present
failed to
prima
case
facie
argues
the evidence was
trial
required
court is
to direct a
overwhelming that appellee’s performance
verdict for defendant.”11
(quoting
Id.
Sa
marginal
and was
subject
of criti-
Reynolds Chemical,
hadi v.
FTPCA does not
the reason
result.” Id.
[Hensley,
appellee’s
attorney’s
ableness
U.S.
hourly
rate;
rather,
103 S.Ct. at
Moreover,
argues
FTPCA
any
the suc
1940].
award based on
cess achieved
action taken
de
was sufficient
satisfy
fendants other than FTPCA
factor,
should be
the second
de
Plaintiff received es
clared
spent
void.
portion
of his
sentially complete relief. Simply be
time unsuccessfully litigating the matter of
plaintiff
cause
prevail
did not
on all the
FICB’s status as
single
employer with
issues raised in
complaint
and did not
FTPCA because of
alleged
FICB’s
supervi
get judgment against all of
originally
sory relationship with FTPCA. A directed
named defendants does not alter the fact
verdict
granted
in favor of FICB on
he is
prevailing
party entitled to
this issuе.
appellee spent time at
reasonably
be
compensated
all
time
obtain,
tempting to
through discovery,
spent on a matter.
credit
against FTPCA,
reviews
FICB
Appendix
(citations
Joint
omitted).
at 96
government,
federal
which had filed a
Suggestion
argues
Interest asserting
that the
the lower
credit reviews
court erred in allowing
were
privi
deemed to
fee
be
to multi
leged pursuant
governmental
plied by
regula
1.75.
argues
that the dis
tions.
trict court did not
Supreme
adhere to the
Court’s mandate
Stenson,
in Blum v.
plaintiff
aWhere
is deemed “prevailing,”
U.S.
104 S.Ct.
895 “attorney spends many the in which one justify multipli- firm-cannot the use of the years of months period a over hours disagree. We er. is if suit any pay the of assurance with no noted: Court Blum, Supreme the In contingent fee at- unsuccessful.” the novelty of nor complexity Neither in expenses substantial torney may incur in factor appropriate an is ... issues action. litigation of an preparation and the the ba- to increase determining whether of the deny all consideration “[t]o award. sic fee an attor- risks additional and burden added justify an may district court] ... [The agreement fee contingent the ney under rare case only in the adjustment upward us not strike does to bear may have specific offers applicant the fee where ” at 613. Id. 'reasonable.' of ser- quality the that to show evidence one that superior to was rendered vice addition, counsel the fact that In the light of in expect reasonably should is relevant. firm two-person worked in suc- the and that charged rates hourly stated, “[essentially the district court As “exceptional.” was cess performed was the case work on all at 898-99, S.Ct. 104 at Blum, 465 U.S. result, counsel plaintiffs As a him.... at 461 U.S. Hensley, (citing 1548-49 of oth amount forego a substantial had to that found 1940). The Court at 103 S.Ct. expense to at considerable work er reprеsentation, of quality of the factors at 97. Appendix complexity firm.” Joint novelty or small and obtained results accounted satisfactorily are the issues forth the reasons set Accordingly, for rate, so and hourly by the reasonable Judge judgment above, the affirm we an justify used to not be ordinarily should Gibbons. Smith Julia except fee adjustment the upward at Blum, 898- 465 U.S. cases. in unusual Judge, WELLFORD, Circuit However, the at 1548-50. 104 S.Ct. dissenting in part concurring that the out pointed aptly district part: con- declined specifically in Blum Court the contingent nature sider whether favor- full benefit Giving plaintiff fee ad- upward justify could fee award case, in this proof inferences able at S.Ct. n. at 901 Id. justment. found, could have that the I concur 1550 n. poor mediocre generally Fite’s despite held Davis, F.2d we In eco- difficult and the record employment upward ad a basis must be there defendant, First circumstances nomic court, noting after district The justment. Credit Association Production Tennessee post-Blum held in circuits had that several Fite’s factor (FTPCA), that contingent nature decisions therefore, disagree not, I do termination. increase, La Duke see justify the fee could “reasonably con- jury could Cir.1985), (9th Nelson, F.2d v. argu- performance cluded (1986); Sierra Club F.2d 309 modified, Slip op. at 12. pretext.” a mere ment Cir.1985); (8th Wild Clark, the con- certainly evidence There Corp. 771 Stores Lerner man v. right gives claimant ADEA trary, but Co., Soya Cir.1985); v. Central (1st Jones legitimate factu- jury determination to a Cir.1984), held Inc., F.2d 586 disputes. al arrangement fee contingency lies first two-person case disagreement My worked counsel fact that con- agree. We multiplier. Plaintiff damage award. justified firm other attempt to find he did not ceded that justifies arrangement contingent fee otherwise, for temporary or employment, Wildman, 771 multiplier. the use of At the his termination. year after over stated correctly F.2d at secured moreover, he trial, time differentiate figure does the lodestar $11,- nearly earning employment retainer full taken on a case between *12 year 000 a exclusive of job other viability benefits.1 operation during Fite, course, unquestioned had the duty question the time in Fite, and whether or mitigate damages to and for a year he any other senior employee, could continue had made no effort to do this. Assuming at the same salary in light mounting that Fite would have continued to work for sum, losses. In I find the jury award to be FTPCA, absent a factor of discrimina- grossly speculative. excessive and It tion, salary, at the same after reducing this should have subject been to a remittitur or value, current award was clear- reduction of at least one-fourth to one-third ly excessive and must have erroneously in order to a avoid new trial on ques- $38,000 included premium over “thrift damages.2 tion of money” which Fite claimed as damages The award is disproportionate to the because he was expend forced to this fund amount the “front end” award made in as a result of his termination and over Davis v. Inc., Combustion Engineering, $13,000 which Fite years’ claimed for three Cir.1984), which stated lost plan. interest on the thrift jury’s “an award pay of front gov- must be inclusion equivalent of these two sums is erned the sound discretion the trial adding to an ADEA damage award either may court and not appropriate in all amount a savings claimant’s account cases.”3 Id. at 923. or the total value of other assets which the Finally, I disagree with and dissent frоm claimant exhausted because of an allegedly attorney’s award fee made in this case. discriminatory discharge. There is no ba- In place, the first some of the spent sis in hours law for such an allowance. in pursuit of unsuccessful claims or conten- addition, termination, after his Fite against parties tions other than FTPCA receiving $5,500 more than annual should Moreover, been allowed. early retirement benefits he would not there justification is no for enhancing a have received but for early discharge. “lodestar” simply plaintiff’s because (He claimed that had he retired counsel was practicing in person a two law prescribed age, retirement he would have No authority office. is cited for this novel then considerably this, received more than proposition. spent That Fite’s lawyer a $5,500 but annually rеceived should large number of hours preparing the case have been against offset loss claimed simply means that he could not devote $28,000 of an salary.) annual Fite cannot these hours to other clients. there have it ways. both He cannot claim the certainly should not be a increment full salary loss 75% and the anticipated loss of solely based on the size of attorney’s retirement benefits without taking into ac- practice. There can be no count basis for award- benefits he did and would receive ing lawyer in very between small firm an 1984 amd incre- 1991. No evidence of legal ment for life expectancy services that presented lawyer give large jury guidance firm about would receive earnings merely loss due to be- work expectancy. life cause worked in large firm. was, moreover,
There The other abundant basis for an evidence increase was the that other contingent senior employees fee arrangement were attorney faced with the early choice of had with retirement client. The fact that Fite during period agreed demotion 1983-84 pay a contingent due fee means that economic distress of was, FTPCA. There between Fite attorney, and his Fite may then, questioning evidence the continued be liable fees after the court’s assessed job 1. Fite temporary classified this as a one. separate set my opinion Davis, 3.As out in 924,1 742 F.2d at believe that a front end award $46,000 I find damage claimed elements of involving in a case the circumstances here (representing plan the thrift and interest there- present, should be limited and should take into on) clearly to be unallowable. There also account employment. likelihood of other should salary have been an offset for the Fite reasonably expected earned or to earn between 1984 and 1991. under fees reasonable by the no statement There was ADEA. *13 unusual, this case district to the respect with novel, complex or rather, was, It involved. issues ADEA fac straightforward case fought with hard gone either might have disputes tual conformity was not way. 886, 104 Stenson, U.S. 465 v. Blum with (1984); Pennsyl 79 L.Ed.2d S.Ct. Coun Citizens’ Valley v. Delaware vania — U.S. -, 107 S.Ct. Air, Clean cil for believe, nor, I (1987), 97 L.Ed.2d Eckerkart, U.S. Hensley v. (1983). See 1933, 76 L.Ed.2d 103 S.Ct. Inc., F.2d Inns, Holiday v. Dean also Lovely, 834 Cir.1988); v. Contelin (6th multiplier Cir.1987). If a something case, in this appropriate were articulated reasons by the not borne out is novel finding of (no district community re complexity, sues, unusual one-third
sentment), consider I would See Dela generous.
multiplier factor S.Ct. 3078. Valley,
ware remand reverse
Accordingly, I would the attor- damages issue both stated. the reasons fee issue for
ney’s al., MUSTO, et
Robert L.
Plaintiffs-Appellees, GENERAL AMERICAN al.,
CORPORATION, et
Defendants-Appellants. 85-5865, 85-6092.
Nos. Appeals, States Court
United Circuit.
Sixth 17, Oct.
Argued 15, 1988. Nov.
Decided