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Jones v. National American University

July 8, 2009


The opinion of the court was delivered by: Karen E. Schreier Karen E. Schreier Chief Judge


Plaintiff, Kathy Jones, moves the court for an order granting front pay and attorney's fees pursuant to the Age Discrimination and Employment Act (ADEA). Defendant, National American University (NAU), opposes the motion. Additionally, both Jones and NAU move the court to review and modify the Clerk's taxation of costs in this matter.


I. Front Pay A plaintiff who succeeds in proving that impermissible discrimination was a motivating factor in an employment decision may receive front pay as a form of relief. Excel Corp. v. Bosley, 165 F.3d 635, 639 (8th Cir. 1999). Reinstatement represents another form of relief. In some situations, however, reinstatement is impossible or impracticable. Id. Where the court decides against reinstatement, "it then has discretion whether or not to award front pay." Standley v. Chilhowee R-IV Sch. Dist., 5 F.3d 319, 322 (8th Cir. 1993). Plaintiff has the burden of proving the basis for an award of front pay. Curtis v. Elecs. & Space Corp., 113 F.3d 1498, 1503 (8th Cir. 1997).

The jury's verdict does not control the question of front pay, even though the court cannot reject findings that were properly submitted to the jury. Curtis, 113 F.3d at 1504. The court must determine whether front pay is appropriate based on the totality of the circumstances. Excel, 165 F.3d at 640.

The Eighth Circuit has determined that generally, employees are entitled to reinstatement only if they were actually or constructively discharged. Major v. Rosenberg, 877 F.2d 694, 695 (8th Cir. 1989). "Front pay is an alternative remedy to reinstatement." Sellers v. Mineta, 358 F.3d 1058, 1065 (8th Cir. 2004). Accordingly, it necessarily follows that as a general rule, employees are entitled to awards of front pay only if they were actually or constructively discharged from their employment.

Other circuits have reached similar conclusions. See Betts v. Costco Wholesale Corp., 558 F.3d 461, 475 (6th Cir. 2009) (finding that front pay was not available to a plaintiff that had not been actually or constructively terminated); Hertzberg v. SRAM Corp., 261 F.3d 651, 659 (7th Cir. 2001) (opining that an individual that leaves his or her employment as a result of the discrimination must show either an actual or constructive discharge in order to receive reinstatement or front pay); and Mallinson-Montague v. Pocrnick, 224 F.3d 1224, 1236-37 (10th Cir. 2000) (determining that the plaintiffs were not entitled to front pay because the jury rejected their claims that they were constructively discharged). Other district courts have determined that front pay is not available when a plaintiff voluntarily leaves his or her employment. See Bexley v. Dillon Cos., 2006 WL 758474, at *4 (D. Colo. Mar. 23, 2006) (explaining that if the plaintiff voluntarily left his or her employment, the plaintiff was not allowed to recover front pay); Brady v. Wal-Mart Stores, Inc., 2005 WL 1521407, at *6 (E.D.N.Y June 21, 2005) (declining to award the plaintiff front pay because the plaintiff failed to prove his constructive discharge); Donnell v. England, 2005 WL 641749, at *2 (D.D.C. Mar. 17, 2005) (stating that because the "[p]laintiff [did] not claim constructive termination, nor would the record support such a finding[, the plaintiff's] resignation was voluntary, and accordingly no reinstatement or front pay will be awarded"); and Smith v. Monsanto Co., 9 F. Supp. 2d 1113, 1118 (E.D. Mo. 1998) (stating that "[b]ecause the jury found that [the] defendant did not constructively discharge [the] plaintiff, and [was] not otherwise liable for the cessation of [the] plaintiff's employment with [the] defendant . . . , [the] plaintiff [was] not entitled to any front pay").

Applying this general rule to this case, the court finds that Jones is not entitled to front pay. In its order granting in part and denying in part NAU's motion for summary judgment, the court found that Jones failed to set forth sufficient evidence to prove her constructive discharge claim. Docket 57 at 15. The court noted that even when viewing the facts in the light most favorable to Jones, the working conditions were not so intolerable that a reasonable person would be forced to quit. Id. As such, it would not be appropriate to award Jones front pay in this case because she was not actually or constructively discharged from her employment. Rather, she voluntarily left her position. Accordingly, Jones is not entitled to recover front pay and her motion is denied.

II. Attorney Fees

A prevailing plaintiff in an ADEA action is entitled to an award of reasonable attorney's fees.*fn1 A prevailing party is defined as a party who succeeds "on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed. 2d 40 (1983). Here, the $17,565 verdict against NAU makes Jones a prevailing party, thereby entitling her to a reasonable attorney's fee award.

"[T]he proper method for determining a reasonable attorney's fee is to multiply the number of hours reasonably expended on the litigation times a reasonable hourly rate." McDonald v. Armontrout, 860 F.2d 1456, 1458 (8th Cir. 1988). The resulting product is called the "lodestar," which is presumed to be the reasonable fee to which counsel is entitled. Id. The court should consider the factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), to set the reasonable number of hours and reasonable hourly rate components of the fee award formula. Id. at 1459. These factors are:

(1) the time and labor required; (2) the novelty and difficulty of the question; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 562 n.7, 106 S.Ct. 3088, 3097 n.7, 92 L.Ed. 2d 439 (1986). See also Cleverly v. Western Elec. Co., 594 F.2d 638, 642 (8th Cir. 1979) (using these twelve factors when determining whether attorney's fees were reasonable under the ADEA).

The determination of the lodestar does not end the inquiry. "There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the 'results obtained.' " Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed. 2d 40 (1983). In determining whether to adjust the award, the court may also consider the other Johnson factors, but the "results obtained" factor is particularly important where the plaintiff succeeded on only some of her claims for relief. Id. at 434 n.9.

A. Lodestar

First, the court must determine the number of hours reasonably expended by Jones's attorney, and the reasonable hourly rate for his services. The court will consider the relevant Johnson factors in making this determination.

1. Time and Labor Required

Jones requests an award of fees for work performed by her attorney, Jon LaFleur. Jones initially requested fees for 259 hours of work performed by LaFleur. To demonstrate the hours that Jones's counsel spent working on this case, Jones submitted a log indicating how many hours her counsel spent on various matters relating to the case from March 8, 2007, to December 9, 2008. Docket 155-2. Jones subsequently requested fees for 36.40 hours. Attached to this supplemental request, Jones included a log of hours spent by her attorney on ...

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