United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

Nos. 96-1394/1490

_____________

Paul Bevan, *

*

Cross-Appellant/Appellee, * Appeal from the United States

* District Court for the

v. * District of Minnesota.

*

Honeywell, Inc., *

*

Appellant/Cross-Appellee. *

_____________

Submitted: November 18, 1996 

Filed: July 3, 1997

_____________

Before FAGG, LAY, and HANSEN, Circuit Judges.

_____________

HANSEN, Circuit Judge.

Paul Bevan brought this age discrimination suit against his former employer,

Honeywell, Inc., alleging violations of the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. §§ 621-634 (1988 & Supp. IV 1992), and the Minnesota Human

Rights Act (MHRA), Minn. Stat. Ann. §§ 363.01-363.15 (1991 & Supp. 1997). Bevan
2

won a jury verdict on the ADEA claim, which Honeywell appeals, and the district court

found in favor of Honeywell on the MHRA claim, which Bevan cross appeals. Bevan

also cross appeals the district court's award of attorney's fees. We affirm in part and

reverse in part. 

I. Background

For the purpose of reviewing the ADEA claim, we recite the facts in the light

most favorable to the jury verdict. See Parrish v. Immanuel Med. Ctr., 92 F.3d 727,

731 (8th Cir. 1996). In May 1968, Paul Bevan began working for Honeywell as a field

sales representative in New Jersey. He left Honeywell on good terms for a period of

approximately six months in the 1970s, after which he returned to Honeywell as a

branch manager trainee. During the late 1970s, Bevan was promoted to the position

of branch manager in Santa Ana, California, on the recommendation that "[h]e is quick,

intelligent, and talented with a desire for both challenge and success." (Appellee's App.

at 42.) In 1981, he relocated to the Minneapolis area to serve as director of marketing

for the Protection Services Division of Home and Building International. At that time,

Honeywell's umbrella group, Home and Building International, was organized in three

segments -- the Protection Services Division, the Commercial Buildings Group, and the

Residential Building Control Division. 

In January 1987, Bevan was named the director of systems marketing for the

Commercial Buildings Group, selling hardware to perform climate control functions in

commercial buildings. On the same day, Kevin Gilligan assumed the office of director

of services marketing for the Commercial Buildings Group, maintaining and servicing

the hardware after its installation. In 1988, Bevan's immediate supervisor was Richard

Egan, vice president of marketing, manufacturing, and engineering for the Commercial

Buildings Group. Egan reported to David Larkin, the vice president and general

manager for the Commercial Buildings Group. 
3

Honeywell's company personnel file and evaluations of Bevan reflect nothing

less than positive improvement and above average performance on his part. Bevan

always received high performance ratings in annual reviews. Consistent with these

reviews, he was awarded regular merit raises throughout his career. 

Although there were no negative comments in Bevan's performance evaluations

concerning his management style or personality, Bevan decided to participate in a

program at Personnel Decisions, Inc. (P.D.I.), designed to enhance his executive skills.

Honeywell paid approximately $11,160 for his participation in the program. The

assessment and evaluation reports from the program contained some negative

comments about Bevan's confrontational style, noting that his "communication skills

are hampered by his abrasive, domineering management style." (Trial Tr. at 467.)

Bevan completed this program in early 1991 and immediately thereafter received

positive comments about perceived improvements in his interpersonal skills. His last

performance evaluation, which was conducted in the summer of 1990, reflected an

outstanding performance rating, and Bevan was awarded a merit increase in salary

effective January 1, 1991. 

On January 1, 1991, a new president, Michael Bonsignore, was appointed for

the Home and Building International operations. Bonsignore chose Manfred Fiedler

to act as human relations planner, and Fiedler appointed Jack Ruppel, human resource

manager, as his aide. Bonsignore began a "revitalization" campaign for the company.

For years, Honeywell's human resource department had used an annual talent review

process to identify talented persons who could be prepared to fill significant managerial

positions on short notice if such a position became available due to illness or death of

a management head. Prior to the revitalization campaign, this talent review process had

always evaluated the talent pool in a neutral fashion, without regard to age. With the

revitalization campaign came a change in this policy. Succession planning documents

for the Commercial Buildings Group dated March 1991, included a list of high talent

persons and their ages. With one exception, all were under age 50.
4

On May 16, 1991, Ruppel (human resource manager) sent a memo to the human

resource heads of the three divisions within Home and Building International,

requesting information pertinent to the talent review process. The memo asked the

division heads to begin considering some specifically listed points that would be

important for the 1991/92 developmental plan, noting that "various elements" of the

review process would "be somewhat different from what you're used to." (Appellant's

App. at 125.) The memo stated that the 1991/92 plan "requires your best thinking as

to specific action plans to prepare your key talent and/or younger (35 year olds)

promising talents." (Id.) The memo directed the department heads to "[f]ocus on your

younger, promising talents (in the 35 year old range or younger)," and provided that

each would have 45 minutes "to present 2-3 key or promising younger talents." (Id. at

126.) Finally, the memo warned that "candidates should not be compromises, but really

excellent choices, specifically, younger, promising talents." (Id.) Larkin, vice

president of the Commercial Buildings Group, testified that he received this memo. He

said that he was disappointed with the language of the memo and that he thought

Ruppel had misinterpreted the corporation's intent in searching out talent for the

corporation's long-range leadership goals. In response to this reaction, Ruppel

circulated a revised and "sanitized" memo which omitted the language directly

evidencing a preference for the younger talent. Nevertheless, the human resources head

for the Commercial Buildings Group, Ronald Pederson, responded to Ruppel's memo

by identifying young, high-potential employees, all of whom, with one exception, were

under the age of 50. 

On October 14, 1991, Larkin reorganized the Commercial Buildings Group's

marketing forces by combining what had been the systems marketing department

(headed by Bevan) with the services marketing department (headed by Gilligan).

Honeywell claimed that this reorganization was an effort to correct and eliminate

disputes that existed between the actual sales and installation people and the people

who were developing marketing policy and strategy, such as Bevan. This

reorganization eliminated Dick Egan's position as vice president of marketing, 
5

engineering, and production (Bevan's boss) as well as Bevan's position as director of

systems marketing.

Bevan had been aware that this reorganization, combining the marketing and

services departments, would take place at some time. Having received only positive

feedback concerning his performance prior to that time, Bevan had remained confident

that there would be a place for him in the new organization. On the day the

reorganization was announced, Bevan had a previously scheduled meeting with Egan.

Egan then informed Bevan that Bevan would no longer be in marketing and that Larkin

had chosen Kevin Gilligan (who was 36 years old at the time) to be the vice president

of the new unitary marketing and services department. Bevan asked Egan why he was

being removed from marketing, and he responded that Larkin felt he (Bevan) would not

be able to report to or support the younger Gilligan, because of Bevan's experience and

age. 

On December 13, 1991, however, Gilligan created a marketing position for

Bevan as director of contractor marketing and distribution. Before beginning this new

position, Bevan took three weeks of vacation, during which he had facial surgery in an

attempt to look younger. Bevan had noticed that every new director-level person was

under the age of 40 after the reorganization.

On December 20, 1991, one week after Gilligan announced Bevan's new

position, Honeywell announced that it was combining the three separate units of Home

and Building International -- the Protection Services Division, the Commercial

Buildings Group, and the Residential Building Control Division -- into one integrated

unit called the Honeywell World-Wide Home and Building Control Organization

(H&BC). Bonsignore appointed Jean-Pierre Rosso, formerly the president of

Honeywell in Europe, as president of the new H&BC. On January 20, 1992, when

Bevan returned from his facial surgery to start his new position, he learned that Rosso

had replaced David Larkin with Richard Cathcart and ordered that Bevan be removed
6

from marketing. Gilligan, then age 37, and Marty Griemal, age 34, assumed Bevan's

responsibilities. Bevan was the only director-level marketing person within Gilligan's

organization who was over the age of 45, and he was the only one removed. 

Bevan was removed from his position, but he was not terminated for another five

months and he was given no work in the interim. Several employees asked Bevan to

help with projects during this time, but they never received permission to give work to

Bevan. Honeywell represented to Bevan that it remained committed to finding him a

position, and Cathcart and Ron Pederson, a human resources person, were allegedly

attempting to help Bevan find a new opportunity within Honeywell. In reality, only

three days after Bevan was removed from his position, Pederson had already prepared

a termination agreement detailing the terms of Bevan's separation from Honeywell. At

one point, Pederson reported to Bevan that Mannie Jackson, vice president of sales,

had said he had a job for Bevan. Pederson told Bevan, "Unfortunately, Jean-Pierre

Rosso blocked that." (Trial Tr. at 366.) Bevan was very interested in a branch

manager opening in Los Angeles, and Pederson discussed this possibility with Brian

McGourty, vice president of field operations. After this, Pederson reported to Bevan

that "it's not getting easier. Jean-Pierre Rosso and Brian McGourty have got their own

ideas about this organization." (Id. at 367.) McGourty did not offer Bevan the position

but instead hired a 38-year-old man for the Los Angeles job. At one point, Pederson

told Bevan, "It's getting tough to fit the old farts from Commercial Building group into

this organization." (Id. at 367-68.) After this remark, Pederson, who was in his fifties

himself, mused that he would likely also be affected by this new organization. 

As further evidence of a youth movement and age-biased animus on the part of

Rosso, Bevan presented a letter dated March 1992 from Loring Knoblauch, president

of Honeywell Asian Pacific, addressed to Rosso. In the letter, Knoblauch asks Rosso

to consider an employee named Wade Smith for a position in the new revitalized

organization. Knoblauch apparently felt the need to plead that Smith not "be tarred

with the same brush as some of his compatriots in Marketing." (Appellee's App. at 
7

249.) Knoblauch asked Rosso to find a place for Smith after the reorganization, even

though Smith was not a "young high talent" like the "Stanford or Wharton kids" they

were recruiting. (Id. at 250.) 

On April 20, 1992, Bevan was presented with a termination package, which

included a requirement that Bevan sign a general release of all claims against

Honeywell. Bevan did not want to release his right to file an age discrimination suit.

On June 11, 1992, Bevan was informed that he must either take the termination

package or be terminated. Bevan refused to sign the general release, and Cathcart

placed him on layoff status on June 17, 1992.

Bevan brought this age discrimination suit, alleging that Honeywell violated both

the ADEA and the Minnesota Human Rights Act. Bevan also alleged several commonlaw claims, which the district court dismissed before trial. The ADEA claim was tried

to a jury. 

At trial, for its legitimate, nondiscriminatory reason for the adverse employment

actions, Honeywell asserted that Bevan's argumentative personality and abrasive

management style made him difficult to work with, caused tension between the group's

field branch (sales and installation people) and the marketing branch (those making

marketing strategies and policies such as Bevan), as well as conflict with the Europeans

at a time when globalization was vital to the company. Some Honeywell people

testified that Bevan has an abrasive personality, resulting in a reputation among his

peers and superiors as being confrontational, difficult, and argumentative. While Bevan

acknowledged such negative comments, he presented testimony that his interpersonal

skills had much improved after his participation in the P.D.I. program in 1990. John

Kellebrew, Honeywell's vice president and general manager of the western area, who

had attended heated meetings with Bevan and had often disagreed with Bevan, could

not recall any time when he thought Bevan acted inappropriately. Also, Kellebrew did

not recall any tension or disputes between field and marketing. 
8

Honeywell asserted that Bevan's personality cost him a promotional opportunity

in February 1990 (not an employment decision at issue in this suit). At that time,

Loring Knoblauch, head of the Honeywell Asia-Pacific organization, brought Bevan

and his wife to Hong Kong to consider Bevan for a position there. Staff members in

Hong Kong reported personality conflicts with Bevan after meeting him. Knoblauch

decided that Bevan would not be culturally adaptable to the position and also that he

lacked the necessary "people skills" and "tact." (Trial Tr. at 1291.) Bevan was not

chosen for the Hong Kong position. Honeywell asserted that this was typical behavior

for Bevan and that his personality ultimately prevented him from finding a suitable

position within Honeywell after the reorganization. 

Bevan offered his own version of the Hong Kong incident. He was disenchanted

by certain cultural and societal aspects of life in Hong Kong, such as the huge economic

disparity that is commonplace and the pervasive use of household servants.

Consequently, he was happy not to be chosen for that position in 1990.

Additionally, Honeywell pointed to the P.D.I. program (where negative

statements about Bevan's management style emerged) as proof that the adverse

employment actions were due to Bevan's poor interpersonal skills. Bevan

acknowledged the statements but asserted that diagnosing any managerial weaknesses

was the purpose of the program. As noted above, Bevan demonstrated that

immediately after participating in the program, he received compliments about his

improved skills. Also, any such weaknesses were not enough of a problem to ever

have been mentioned in any company evaluations of his performance. 

The jury in the ADEA case returned special verdicts finding that age was a

determining factor in Honeywell's adverse employment actions against Bevan, that

Honeywell's conduct was not willful, and that Bevan was entitled to back pay in the

amount of $275,217 and front pay in the amount of $214,137. 
9

The MHRA claim was tried to the court. Contrary to the jury findings, the

district court found that Honeywell did not engage in unlawful age discrimination in

violation of the MHRA and dismissed the state claim with prejudice. 

Bevan applied for an award of attorney's fees roughly equal to the total jury

award in this case. The district court concluded that the fee application did not

accurately reflect the relationship between the fee requested and the results obtained.

The court made an equitable adjustment, taking into account Bevan's limited success

in this case, and concluded that $250,000 was a reasonable award of attorney's fees.

Both parties appeal. 

II. Discussion

A. Judgment as a Matter of Law

Honeywell appeals, arguing that the district court erred in denying its motion for

judgment as a matter of law on the ADEA claim. 

Judgment as a matter of law is appropriate only when the nonmoving

party fails to present enough evidence to permit a reasonable jury to

decide in his favor. We do not judge witnesses' credibility, we give the

nonmoving party the benefit of all reasonable inferences, and we look at

the evidence in the light most favorable to him. The evidence must point

unswervingly to only one reasonable conclusion. This demanding

standard reflects our concern that, if misused, judgment as a matter of law

can invade the jury's rightful province.

Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir. 1996) (internal citations omitted). In

accordance with this principle, "we will not reverse a jury's verdict for insufficient

evidence unless, after viewing the evidence in the light most favorable to the verdict,

we conclude that no reasonable juror could have returned [such] a verdict." Ryther v.

KARE 11, 108 F.3d 832, 836 (8th Cir. 1997) (en banc), petition for cert. filed, 65 
In the context of age discrimination, it is important to recognize at the outset that 1

we are dealing with a pretext case, not a case of mixed motives; additionally, this is not

a pretext case that arose out of a reduction in force. See Ryther, 108 F.3d at 836 n.1.

At oral argument, Honeywell asserted for the first time that the adverse employment

actions at issue in this case resulted from a reduction in force. Our review of the record

satisfies us that the district court properly tried this case as one of pretext. We will not

consider the belated argument that this claim arose from a reduction in force. 

10

U.S.L.W. 3694 (U.S. Apr. 4, 1997) (No. 96-1571). In other words, judgment as a

matter of law is not appropriate "'if reasonable persons could differ as to the

conclusions to be drawn from the evidence.'" Id. at 844 (quoting Haynes v. Bee-Line

Trucking Co., 80 F.3d 1235, 1238 (8th Cir. 1996)) (other internal quotations omitted).

Our standard for reviewing the sufficiency of the proof in an age discrimination

pretext case tried to a jury is set forth in Ryther, 108 F.3d at 836-38, 848; and is

1

modeled on St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-512 (1993), Texas Dep't

of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981), and McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 800-06 (1973). A pretext case is one in which

the plaintiff proves unlawful discrimination by presenting a prima facie case of

discrimination, the burden of production then shifts to the employer to assert a

legitimate, nondiscriminatory reason for the adverse employment action, and finally,

the plaintiff must demonstrate that the employer's articulated legitimate reason for the

adverse employment action is a mere pretext for age discrimination. Ryther, 108 F.3d

at 836-37. Within this framework, the plaintiff is not required to present direct

"smoking gun" type proof of discrimination in order to make out a submissible case for

the jury. Id. at 836. The fundamental issue is "whether [the plaintiff] produced

sufficient evidence to allow a jury reasonably to find that [the employer] intentionally

discriminated against him on the basis of his age." Id. at 838.

The adverse employment decisions at issue are Larkin's October 1991 removal

of Bevan from director of systems marketing and the appointment of Gilligan instead
11

of Bevan; Rosso's January 1992 removal of Bevan from the position of director of

contractor marketing; McGourty's rejection of Bevan with regard to the Los Angeles

branch office; and Cathcart's ultimate decision to terminate Bevan from employment

with Honeywell on June 17, 1992. Bevan established a prima facie case of

discrimination, which required Honeywell to demonstrate a legitimate

nondiscriminatory reason for the adverse employment decisions. On appeal,

Honeywell argues that the evidence presented was not sufficient to raise an inference

that Honeywell intentionally discriminated against Bevan on the basis of his age. 

We have set forth above, in the light most favorable to the verdict, the evidence

that was admitted at trial. Our review of the evidence convinces us that a reasonable

jury could conclude that the company's revitalization campaign, instigated by

Bonsignore, consisted of a new company policy to weed out the older leaders and

replace them with talented young ones. Bevan's performance ratings had always been

high, and although he may have had a somewhat abrasive management style, which he

attempted to improve through the P.D.I. program, his performance ratings had revealed

no criticism of his management style or personal conduct. Based upon the documentary

evidence of Bevan's performance at Honeywell, the jury could have reasonably

disbelieved Honeywell's assertion that Bevan's personality was the nondiscriminatory

reason for Honeywell's adverse employment decisions. 

The human resources department quite blatantly indicated in Ruppel's memo that

age would be a major consideration in the talent review process. Additionally, Larkin

and Pederson had both made age-based comments about Bevan. Larkin was a

decisionmaker who was aware of Ruppel's memo emphasizing the identification of

younger talent. He commented that Bevan would be unable to report to the younger

Gilligan. Pederson was a human resources director who had responded to Ruppel's

memo with age-based information and who was ostensibly in charge of helping Bevan

find a suitable position within Honeywell after he was removed from marketing, but

who also was at the same time preparing Bevan's termination package. Pederson told
12

Bevan that it was "getting tough to fit the old farts from Commercial Building group

into this organization." (Trial Tr. at 367-68.) 

Honeywell argues that stray remarks of nondecisionmakers such as Pederson and

Ruppel are not sufficient to raise an inference of age discrimination. We agree that

such comments, standing alone, would not raise an inference of discrimination. Ryther,

108 F.3d at 844. It is well-settled that stray remarks by nondecisionmakers, or remarks

by decisionmakers that are unrelated to the decisional process, do not suffice to show

that discrimination was a motivating factor in an employment decision so as to invoke

the mixed motives framework of Price Waterhouse v. Hopkins, 490 U.S. 228, 258

(1989). Nitschke v. McDonnell Douglas Corp., 68 F.3d 249, 253 (8th Cir. 1995);

Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991). In a pretext case, however,

such comments are "surely the kind of fact which could cause a reasonable trier of fact

to raise an eyebrow," MacDissi v. Valmont Indus., Inc., 856 F.2d 1054, 1058 (8th Cir.

1988), thus providing "additional threads of evidence," Morgan v. Arkansas Gazette,

897 F.2d 945, 951 (8th Cir. 1990), that are "relevant to the jury." Ryther, 108 F.3d at

844. Pederson's statement that it was difficult to place "the old farts" in the new

organization and Ruppel's human resources memo, which directly stated a company

preference for younger talented individuals, constituted proper circumstantial evidence

for the jury to consider in combination with all the other evidence.

Honeywell also argues that the alleged discriminatory statement by Larkin, who

clearly was a decisionmaker, does not constitute proof of age discrimination, because

the comment was irrelevant to the adverse employment decisions. Larkin removed

Bevan from his marketing position in October 1991 and promoted Gilligan instead of

Bevan. Viewed in the light most favorable to Bevan, the record indicates that Egan

(Bevan's immediate supervisor) said, "Larkin felt that [Bevan] would not be able to

report to Kevin Gilligan . . . because [Bevan] had a lot more experience, and [Bevan]

was a lot older than he [Gilligan] was . . . ." (Trial Tr. at 259.) This statement is

relevant to the jury's determination of whether Honeywell engaged in age 
13

discrimination, because it evidences an age-based reason that factored into an adverse

employment decision. Even accepting arguendo Honeywell's contention that the

comment was not directly related to the adverse employment decisions (and as such is

not, standing alone, direct proof of discrimination), statements of a decisionmaker that

are unrelated to the adverse employment decision are nevertheless relevant to the jury's

verdict when considered together with other evidence of pretext, such as a company

trend toward younger employees. See Ryther, 108 F.3d at 844. 

Honeywell contends that the statement attributed to Larkin was double hearsay

and that the district court erroneously admitted it into evidence. By failing to timely

object to the admission of this testimony, however, Honeywell failed to preserve this

issue for appeal. Baxley-DeLamar Monuments, Inc. v. American Cemetery Ass'n, 938

F.2d 846, 854 (8th Cir. 1991). Even had the issue been preserved, we would find no

error because each layer of the out-of-court statement was admissible as a statement

of a party opponent. Fed. R. Evid. 801(d)(2)(D). See Thomas v. International Bus.

Machs., 48 F.3d 478, 485 (10th Cir. 1995) (stating in an ADEA case that if the witness

is testifying to what an authorized agent of the employer said, the statement is an

admission of a party opponent).

Bevan demonstrated through his testimony and statistical charts that after the

reorganization, the director-level positions were all occupied by younger individuals.

Bevan was the only director-level person over age 45 in Gilligan's organization after

it was reorganized, and he was the only one removed from that organization. 

Honeywell contends that Bevan's statistical evidence was incompetent as a

matter of law and should not have been considered by the jury on the issue of

intentional discrimination. Honeywell objected to the admission of this statistical

evidence for lack of foundation. The district court admitted the evidence in the jury

trial, but in its written findings regarding the MHRA claim, the district court stated in

a footnote that it found Bevan's statistical charts "unpersuasive" because they "assume
14

certain premises for which there is no foundation." (Appellant's Addend. at 24 n.19.)

Notably, the district court did not retreat from its decision to admit the charts. Its

"nonpersuasive" finding is one of weight, not admissibility. 

We conclude that the district court did not abuse its discretion in admitting

Bevan's statistical charts. Contrary to Honeywell's assertion, Bevan was not attempting

to make a claim of disparate impact through statistics. Instead, as in MacDissi, 856

F.2d at 1058, he offered his statistics, which are more accurately described as charts

compiled from information in Honeywell's personnel directory, as one component of

Bevan's circumstantial proof that Honeywell's proffered reason for the adverse

employment decisions was a pretext for age discrimination. Introduced for this

purpose, "[Bevan's] quantitative evidence does not need to reach the degree of certainty

required of plaintiffs who present no proof of discrimination besides a statistical

pattern." Id. at 1058; see also id. at 1058 n.3 ("Even where quantitative evidence does

not alone demonstrate discrimination to some judicially created standard of statistical

conclusiveness, it is still relevant in conjunction with all other evidence in determining

intentional discrimination."). Bevan's use of the evidence in an attempt to demonstrate

a company-wide trend toward placing younger persons in director-level positions and

eliminating older persons after the reorganization was permissible. See id. at 1059

("company-wide statistics are useful in establishing the presence or absence of a

general climate of age bias"). While Bevan's charts were not competent as statistical

proof of intentional discrimination, they were admissible as probative circumstantial

evidence of pretext to be considered with all other evidence of pretext. 

Honeywell argues that the statistical evidence is not probative because it fails to

analyze the treatment of comparable employees by a common decisionmaker. Bevan's

charts demonstrate the age differences between directors before and after the

reorganization of the three major divisions into the single unit named H&BC. All of

Bevan's charts involve age comparisons between director-level persons before the

reorganization and director-level positions after the formation of the H&BC. There was
15

evidence in this case that at least one of Bevan's adverse employment decisions (the

removal of Bevan from his director-level position in the new H&BC organization) was

taken at the specific direction of Rosso, the new president of the H&BC. Rosso, as

president of the new organization, was a common decisionmaker to all director-level

positions in the H&BC. 

Certainly, "statistics must evaluate comparable employees to be meaningful

indicators of pretext," Schultz v. McDonnell Douglas Corp., 105 F.3d 1258, 1259 (8th

Cir. 1997), petition for cert. filed, (U.S. May 21, 1997) (No. 96-1855), and "statistical

evidence that does not reflect significant differences among employees would be

prejudicial and misleading." Id. at 1259-60. When a director-level employee claims

age discrimination, use of company-wide statistics may provide the only comparisons

available. It is significant that Bevan was not terminated for poor performance, which

would be a significant difference between Bevan and other director-level employees,

see id., and Bevan presented evidence to rebut Honeywell's assertion that he was

selected for adverse employment action because of his personality. This record

provides no other substantial differences between Bevan and the director-level

employees in his charts. Cf. Hopper v. Hallmark Cards, Inc., 87 F.3d 983, 989 (8th

Cir. 1996) (statistics comparing managerial-level employees discharged from other

units and excluding other younger managers discharged just prior to the data did not

raise a reasonable inference of age discrimination). Furthermore, Honeywell took full

advantage of its opportunity to impeach the validity, impact, and meaning of the

information on those charts. Although the district court found the charts to be

unpersuasive in considering the MHRA claim, the jury, a separate fact finder, could

reasonably and independently determine to afford them more weight in deciding the

ADEA claim. We conclude that the charts were probative and not unfairly prejudicial

or misleading. 

Viewing the totality of the circumstances in the light most favorable to Bevan,

we conclude that he presented sufficient evidence from which a reasonable jury could
16

find that Honeywell discriminated against Bevan on the basis of his age. His

outstanding performance record that mentions no major interpersonal problems,

Larkin's age-based statement about Bevan, the company's lack of effort at providing

him a new opportunity, the youth movement in the company evidenced by Ruppel's

memo, Bevan's charts, Knoblauch's letter to Rosso, and Pederson's observations, and

also the proof of the elements of the prima facie case all combined to raise an inference

of age discrimination sufficient to allow this case to go to the jury. As we stated in

Morgan, "[a]lthough this was a close case, our task on review is not to act as the trier

of fact." 897 F.2d at 951. 

B. Motion for a New Trial

Honeywell contends that it is entitled to a new trial because the verdict is against

the greater weight of the evidence. Honeywell also contends that the district court

improperly admitted into evidence Bevan's statistical evidence and the double hearsay

statement attributed to Larkin. 

"We review the denial of a motion for a new trial under an abuse of discretion

standard." Schultz, 105 F.3d at 1259. A district court's determination that the verdict

is not against the weight of the evidence is virtually unassailable. Pulla v. Amoco Oil

Co., 72 F.3d 648, 656 (8th Cir. 1995). The admission of evidence is committed to the

sound discretion of the district court, and we review only for a clear abuse of

discretion. Slathar v. Sather Trucking Corp., 78 F.3d 415, 419 (8th Cir.), cert. denied,

117 S. Ct. 179 (1996); O'Dell v. Hercules, Inc., 904 F.2d 1194, 1200 (8th Cir. 1990).

A new trial is not warranted on the basis of an evidentiary ruling unless the evidence

was so prejudicial that a new trial would likely produce a different result. Schultz, 105

F.3d at 1259. 
17

For the reasons set forth above, we conclude that the verdict is not against the

weight of the evidence, and no evidentiary ruling the district court made warrants a new

trial. 

C. Front Pay

In this case, the parties stipulated that reinstatement would not be a proper

remedy. Thus, there is no dispute that an award of front pay in lieu of reinstatement is

the proper remedy here. Over Honeywell's objection, the district court submitted the

calculation of the front pay award to the jury. Honeywell contends that this was error,

and we agree. 

Our recent opinion in Newhouse v. McCormick & Co., 110 F.3d 635, 641-43

(8th Cir. 1997), controls this issue. Front pay is an equitable issue to be determined by

the district court, taking all aspects of the case into consideration and reducing the

award to its present value. See id. at 641. In Newhouse, we held that the

determination of what amount of front pay to award is an equitable issue to be decided

by the district court. Id. at 643. While the district court may, in its equitable

discretion, submit the issue to a jury in an advisory capacity, the district court in this

case improperly submitted the issue to the jury for a conclusive determination. Because

this is contrary to our opinion in Newhouse, we reverse and remand this issue,

instructing the district court to calculate a proper front pay award. 

D. The Minnesota Human Rights Act

Bevan cross-appeals the district court's finding in the MHRA claim that

Honeywell did not engage in intentional age discrimination. The district court found

that Bevan did not successfully rebut the legitimate nondiscriminatory reasons for

Honeywell's adverse employment decisions. Bevan argues that he produced sufficient

evidence to prevail on his claim. 
18

The Minnesota Supreme Court has consistently construed MHRA claims in

accordance with federal precedent, thus we review the MHRA claim under the same

standards as we applied to the ADEA claim. Rothmeier v. Investment Advisors, Inc.,

85 F.3d 1328, 1338-39 (8th Cir. 1996); Feges v. Perkins Restaurants, Inc., 483 N.W.2d

701, 710 (Minn. 1992). With respect to Bevan's ADEA claim, we affirmed the denial

of Honeywell's motion for judgment as a matter of law under the standard that judgment

as a matter of law is not appropriate "if reasonable persons could differ as to the

conclusions to be drawn from the evidence." Ryther, 108 F.3d at 844 (internal

quotations omitted). Two different fact finders may permissibly draw differing

inferences from the same evidence. The district court was free to give greater weight

to the evidence supporting Honeywell's articulated legitimate nondiscriminatory reasons

than to Bevan's evidence of pretext. We have reviewed the record and conclude that

the district court's findings and conclusions on the MHRA claim are supported by the

record. Once again, we recognize our role is not to be the trier of fact. 

E. Attorney's Fees

We review an award of attorney's fees in an ADEA suit under an abuse of

discretion standard. Lee v. Rapid City Area Sch. Dist. No. 51-4, 981 F.2d 316, 319-20

& 333 (8th Cir. 1992) (en banc).

Bevan sought attorney's fees in the amount of $440,394.66. The jury awarded

Bevan $275,217 on his ADEA claim, Bevan received no liquidated damages, we are

remanding the front pay award for a proper calculation by the district court, and the

district court determined that Honeywell did not intentionally discriminate against

Bevan in violation of the MHRA. The district court awarded Bevan $250,000 in

attorney's fees. Bevan contends that the district court abused its discretion by not

awarding the full amount of attorney's fees that Bevan claimed. 
19

The district court criticized both parties for "over-lawyering" this case and

concluded that the fee application did not accurately reflect "the relationship between

the amount of the fee [requested] and the results obtained" in the suit. Hensley v.

Eckerhart, 461 U.S. 424, 437 (1983). It is appropriate for the district court in making

a fee award to balance "the amount of effort against the plaintiff's overall success."

ARC v. Schafer, 83 F.3d 1008, 1011 (8th Cir.) (citing Hensley), cert. denied, 117 S.

Ct. 482 (1996). "Partial success may justify only a partial fee award." Id. The district

court adequately conducted this analysis, reviewing all the circumstances of this case,

and made an appropriate equitable adjustment to the fee request. The district court

provided a rational reason for the reduction of the award and did not abuse its

discretion. 

III. Conclusion

Accordingly, we vacate the jury's award of front pay, reverse the district court's

decision to submit the front pay issue to the jury, and remand for the district court to

calculate a proper front pay award in its equitable discretion. In all other respects, we

affirm the judgment of the district court. 

LAY, Circuit Judge, concurring and dissenting.

I concur in Judge Hansen's excellent opinion with one exception. I dissent from

the vacation of the jury's award of front pay and the remand to the district court to

calculate a proper front pay award in its discretion.

The court holds that our recent opinion in Newhouse v. McCormick & Co., 110

F.3d 635 (8th Cir. 1997), controls this issue. I must respectfully disagree. In

Newhouse, after a jury had returned a plaintiff's verdict finding age discrimination

under the ADEA, the district court faced the equitable decision whether to reinstate the

employee or to award front pay. Under those circumstances, the district court does not
20

face the choice between reinstatement and front pay until the jury has made a finding

of age discrimination under the ADEA. After the jury determines liability, the jury

ordinarily will be discharged and the court then will hear from the parties regarding

whether to reinstate or to award front pay. 

In the present case the district court was not faced with that decision because the

parties stipulated before the jury was instructed that reinstatement was inappropriate.

The only issue remaining was whether the ADEA was violated and, if so, what the

award of front pay should be. The court determined to submit this as a legal claim to

the jury under appropriate instructions, and the jury included front pay as part of its

award.

Under these circumstances, I feel the proper application of the Supreme Court's

decision in Lorillard v. Pons, 434 U.S. 575 (1978), requires a jury determination of

front pay. In Lorillard, the Court interpreted 29 U.S.C. § 626(c)(2) and found that

Congress intended to confer a right to trial by jury in ADEA actions to determine

"amounts owing" as a result of a violation of the Act. The Court did not specifically

decide whether the jury should determine front pay. In Dominic v. Consolidated

Edison Co., 822 F.2d 1249 (2d Cir. 1987), cited with approval in Newhouse, the

Second Circuit held that both the determination of whether to award front pay and how

much front pay to award are questions reserved to the district court's equitable

discretion. However, Dominic and Newhouse are dissimilar to this case in one

important regard: Neither case reached the court on the stipulated fact that

reinstatement was not an appropriate remedy. The oblique discussions in Dominic and

Newhouse do not mandate that determining the amount of front pay, once the question

of reinstatement is out of the case, is an equitable issue suitable only for a judge's

determination. Determining an appropriate amount of front pay to be awarded involves

consideration of factual circumstances, and is an exercise juries perform in many kinds

of litigation where litigants seek future wages. See, e.g., Martinez v. Union Pacific R.

R., 82 F.3d 223 (8th Cir. 1996) (jury in FELA action determining injured employee's
21

impaired future earning capacity at particular employment); United Paperworkers Int'l

Union v. Champion Int'l Corp., 81 F.3d 798 (8th Cir. 1996) (reversing on other grounds

where jury in Labor Management Relations Act case awarded front pay to improperly

discharged employee); Gander v. FMC Corp., 892 F.2d 1373 (8th Cir. 1990) (finding

evidentiary support in products liability case for jury's award of past and future lost

wages). The fact that we are dealing with front pay under the ADEA should make little

difference when the choice of reinstatement is precluded. The issue at that point

becomes a legal claim to be determined under the facts of the case.

To avoid any misunderstanding, I do not urge that once a judge determines that

reinstatement is not a proper remedy that a jury should be recalled to determine the

issue of front pay. In that situation, the award and amount of front pay is an integral

concern to be balanced together with the court's equitable discretion as to whether to

order reinstatement. That situation lends itself to the court's equitable discretion.

However, where the parties themselves formulate the issue by removing reinstatement

as an option, there is no equitable issue remaining and the factual calculation of front

pay becomes a purely legal claim that should be decided by the jury. Cf. Dairy Queen,

Inc. v. Wood, 369 U.S. 469 (1992) (holding money judgment incidental to injunctive

relief is legal claim triable by jury). If the district court determines the award cannot

be supported by the facts of the particular case, the court may reduce the award

accordingly. 

In the present case, the court reviewed the jury's front pay award and entered

judgment upon the verdict. Under the circumstances, it seems to me inefficient and

improper under the law to vacate the award only to have the trial court effect its own

fact finding to decrease or increase an award already carefully considered.
Since I feel that the statute provides for legal relief under the circumstances, 2

it is not necessary to comment upon whether the Seventh Amendment requires a

jury trial on this fact issue.

22

I therefore dissent. I feel the order vacating the award of front pay is contrary

to the ADEA and the Supreme Court's interpretation of the Act in Lorillard.

2

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.