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.
Pau lBevan brought this age discrimination suit against his former employer , Honeywe ll, Inc., alleging violations of the Age Discrimination in Employment Ac t (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 & Sup p. 1997). Bevan2

won a jury verdict on the ADEA claim, which Honeywell appeals, and th e district court found in favor of Honeywell on t he 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

Forthe pur pose of reviewing the ADEA claim, we recite the facts in the ligh t 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 workingfor Honeywell as a field
s ales representative in New Jersey. He left Honeywell on good terms for a period of ap proximately six months in the 1970s, after which he returned to Honeywell as a branchmanager trainee. During the late 1970s, Bevan was promoted to the position of branch manager in Santa Ana, California, on the recommenda tion 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, Ho me and Building International, was organized in three segments -- the Protection Services Division, the Commercial B uildings Group, and the Residential Building Control Division.

In Janu ary 1987, Bevan was named the director of systems marketing for th e Commercial Buildings Group, selling ha rdware to perform climate control functions in commercial buildings. On the same day, Ke vin Gilligan assumed the office of director of services marketin g for the Commercial Buildings Group, maintaining and servicing the hardware after its installation. In 1988, B evan's immediate supervisor was Richard Egan, vice president of marketing, manufacturing, and engineering for the Commercial Build ings Group. Egan reported to David Larkin, the vice president and genera l manager for the Commercial Buildings Group.3

Honey well's company personnel file and evaluations of Bevan reflect nothin g les s than positive improvement and above average performance on his part. Beva n alw ays received high performance ratings in annual reviews. Consistent with thes e reviews, he was awarded regular merit raises throughout his career.
Although there were no negativ e comments in Bevan's performance evaluations
co ncerning his management style or personality, Bevan decided to participate in a program at Personnel Decisions, Inc. (P.D.I.), designe d to enhance his executive skills. Honeywell paid approximately $11,160 for his participation in the program. Th e
assess ment

and evaluation reports from the program contained some negativ e
comm ents about Bevan's confrontational style, noting that his "communication skill s
are hampered by his abrasive, domineering management style." (Trial Tr. at 467. ) Bevan c ompleted this program in early 1991 and immediately thereafter receive d positive comments about perceived improvements in his interpersonal skills. His last perfo rmance evaluation, which was conducted in the summer of 1990, reflected a n outstand ing 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 fo r th e Home and Building International operations. Bonsignore chose Manfred Fiedle r 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 shor

t notice if such a position became available due to illness or death of a management head. Prior to the revitalization campaign, this talent rev iew process had always e valuated 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
resourc e heads of the three divisions within Home and Building International , reques ting information pertinent to the talent review process. The memo asked th e divi sionheads to begin considering some specifically listed points that would b e imp ortant for the 1991/92 developmental plan, noting that "various elements" of th e 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 specifi c 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, vic e president of the Commercial Buildings Group, testified that he received this memo. He said tha t he was disappointed with the language of the memo and that he though t Ru ppel had misinterpreted the corporation's intent in searching out talent for th e
co rporation's long-range leadership goals. In response to this reaction, Ruppe l circul ated a revised and "sanitized" memo which omitted the language directl y evidencing a preference for the younger talent. Nevertheless, the human res ources head for the Comme

rcial 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 Oct ober 14, 1991, Larkin reorganized the Commercial Buildings Group' s marketi ng forces by combining what had been the systems marketing departmen t (h eaded by Bevan) with the services marketing department (headed by Gilligan)

. Honeywell claimed that this reorganization was an effort to correct and eliminat e disputes th at existed between the actual sales and installation people and the peopl e who were d eveloping marketing policy and strategy, such as Bevan. Thi s 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 an d 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 th e reorganization was annou nced, Bevan had a previously scheduled meeting with Egan. Egan then informed Bevan that Bevan would no longer b e in marketing and that Larkin had chosen Kevin Gilliga

n (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, be cause of Bevan's experience and age.

On Decem ber 13, 1991, however, Gilligan created a marketing position fo r Bevan as director of contractor ma rketing and distribution. Before beginning this new position, Bevan took three weeks of vacati on, 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 ne w position, Honeywell announced that it was combining the three separate units of Home and Building International -- the Protection Services Division, the Commercia l Buildings G

roup, and the Residential Building Control Division -- into one integrated unitcal led the Honeywell World-Wide Home and Building Control Organizatio n (H&BC ). Bonsignore appointed Jean-Pierre Rosso, formerly the president o f Honeywell i n Europe, as president of the new H&BC. On January 20, 1992, whe n Bevan returned from his fac ial surgery to start his new position, he learned that Rosso had replaced David Larkin with Richard Cathcart and ordered that Bevan be removed6

fro m marketing. Gilligan, then age 37, and Marty Griemal, age 34, assumed Bevan's responsibilities. B evan 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
mo nths 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 Beva n. Honeywell represented to Bevan that it remained committed to finding him a po sition, and Cathcart and Ron Pederson, a human resources person, were allegedl y att empting to help Bevan find a new opportunity within Honeywell. In reality, onl y 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 po int, Pederson reported to Bevan that Mannie Jackson, vice president of sales , had said he had a job for Bevan. Pederson told Bevan, "Unfortunately, Jean-Pierr e Rosso b locked that." (Trial Tr. at 366.) Bevan was very interested in a branc h manager opening in Los Angeles, and Pederson discussed this possibility with Bria n McGourty, vice president of field operations. After this, Pederson reported to Bevan that "it's not getting easier. Jean-Pierre Ros so and Brian McGourty have got their own ideas about this organization." ( Id. at 367.) McGourty did not off er Bevan the position b u t 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 pre sented a letter dated March 1992 from Loring Knoblauch, president of Honeywell Asian Pacifi c, addressed to Rosso. In the letter, Knoblauch asks Rosso to consider an employee named Wade Smith for a position in the new revitalize d organiz ation. Knoblauch apparently felt the need to plead that Smith not "be tarre d with the same brush as some of his compatriots in Marketing." (Appellee's App. at7

249.) Knoblauch a sked Rosso to find a place for Smith after the reorganization, even thoughSmith was not a "young high talent" like the "Stanford or Wharton kids" they were recruiting. ( Id. at 250.)

On Apri l 20, 1992, Bevan was presented with a termination package, whic h included a requirement that Bevan sign a general release of all claims agains t 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 terminatio n pack age 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 se veral commonlaw claims, which the district court dis missed before trial. The ADEA claim was tried to a jury.
At trial, for its legitimate, nondisc riminatory reason for the adverse employment actions, Honeywell asserted that Bevan's argumentative personality and abrasiv e management style made him difficult to work with, caused tension between the group's fiel d branch (sales and installation people) and the marketing branch (those makin g marketing strategies and policies such as Bevan), as well as conflict w ith the Europeans at a time w hen globalization was vital to the company. Some Honeywell peopl e testifi ed that Bevan has an abrasive personality, resulting in a reputation among hi s peers and superiors as being confrontational, difficult, and argumentativ e. While Bevan acknowledged suc h 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, H oneywell's vice president and general manager of the western area, who had a ttended heated meetings with Bevan and had often disagreed with Bevan, could not recall any time when he thought Bevan acte d inappropriately. Also, Kellebrew did not recall any tension or disputes between field and marketing.8

Honeywell asserted that Bevan's personali ty cost him a promotional opportunity in Februa ry 1990 (not an employment decision at issue in this suit). At that time , Loring Knoblauch, head of the Honeywell Asia-Pacific organization, brought Beva n andhis 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 decidedthat 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 no t chosen for the Hong Kong position. Honeywel l asserted that this was typical behavior forBe van and that his personality ultimately prevented him from finding a suitabl e 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 h uge 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.

Additi onally, Honeywell pointed to the P.D.I. program (where negativ e statements about Bevan's management style emerged) as proof that the advers e employmen t

actions were due to Bevan's poor interpersonal skills. Beva n acknowledged the statements but a sserted that diagnosing any managerial weaknesses
was the pu rpose of the program. As noted above, Bevan demonstrated tha t immediat ely after participating in the program, he received compliments about hi s imp rovedskills. Also, any such weaknesses were not enough of a problem to eve r have been mentioned in any company evaluations of his performance.

The jury i n the ADEA case returned special verdicts finding that age was a determ ining factor in Honeywell's adverse employment actions against Bevan, that Honeywe ll's conduct was not willful, and that Bevan was entitled to back pay in th e amount of $275,217 and front pay in the amount of $214,137.9

The MHRA c laim was tried to the court. Contrary to the jury findings, th e district court found that Honeywell did not engage in unlawful age discrimination i n violation of the MHRA and dismissed the state claim with prejudice.

Bevan app lied for an award of attorney's fees roughly equal to the total jury
awa rdin this case. The district court concluded that the fee application did no t 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.
Judgmen t as a matter of law is appropriate only when the nonmovin g party fa ils to present enough evidence to permit a reasonable jury t o decide in his favor. We do not judge witnesses' credibility, we give the nonmoving pa

rty the benefit of all reasonable inferences, and we look at the evidence

in the light most favorable to him. The evidence must point unsw ervingly to only one reasonable conclusion. This demandin g standard reflects our concern that, if misused, judgme nt 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 insufficien t evidence unless, after viewing the evidence in the light most favorable to the verdict, we conclude that no reasona ble 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 , 65In 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 motive s; additionally, this is not a pretext case t

hat arose out of a reduction in force. See Ryther , 108 F.3d at 836 n.1. Atoral argument, Honeywell asserted for the first time that the adverse employmen t 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. 3 694 (U.S. Apr. 4, 1997) (No. 96-1571). In other words, judgment as a matte r of law is not appropriate "'if reasonable persons could differ as to th e conclusions to be drawn from the evidence.'" Id. at 844 (quoting Haynes v. Bee-Line Trucking Co. , 80 F.3d 1235, 1238 (8t h Cir. 1996)) (other internal quotations omitted).

Our standard for reviewi ng the sufficiency of the proof in an age discrimination pr etext case tried to a jury is set forth in Ryther , 108 F.3d at 836-38, 848; and i s 1 modeled on St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 507-512 (1993), Tex as Dep't of Communi ty Affairs v. Burdine , 450 U.S. 248, 252-56 (1981), and McDonnel l Douglas Corp. v. Green , 411 U.S. 792, 800- 06 (1973). A pretext case is one in which the plaint iff proves unlawful discrimination by presenting a prima facie case o f discr imination, the burden of production then shifts to the employer to assert a legi timate, 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 8 36-37. Within this framework, the plaintiff is not required to present direc t "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] produce d sufficient evi dence 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 e mployment decisions at issue are Larkin's October 1991 removal of Bevan from director of systems marketing and the appointment of Gilligan instead11

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

marketing; McGourty's rejection of Bevan with regard to the Los Angeles branch office; and Cathcart's ultimate decision to terminate Bevan from employmen t with Honeyw ell on June 17, 1992. Bevan established a prima facie case o f di scrimination, which required Honeywell to demonstrate a legitimat e nondisc riminatory 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 co uld conclude that the company's revitalization campaign, instigated b y Bonsignore, consisted of a new company policy to weed out the older leaders an d replace them with talented yo ung ones. Bevan's performance ratings had always been high, and although he may have had a so mewhat abrasive management style, which he attempted to improve through the P.D.I. program, his per formance ratings had revealed no criticism of his management style or personal conduct. Based upon the d ocumentary evidence of Bevan's performance at Honeywell, the jury could have reasonabl y disbelieved H oneywell'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 consider ation in the talent review process. Additionally, Larkin and Pederso n had both made age-based comments about Bevan. Larkin was a decis ionmaker

who was aware of Ruppel's memo emphasizing the identification o f younger talent. He commented that Bevan would be unable to report to the younger Gill igan. Pederson was a human resources director who had responded to Ruppel' s memo with age-based information a nd who was ostensibly in charge of helping Bevan find a su itable position within Honeywell after he was removed from marketing, bu t who also was at the same time preparing Bevan's termination package. Pederson told12

Bevan that it was "getting tough to fit the old farts from Commercial Building grou p into this organization." (Trial Tr. at 367-68.)
Honeywell argues that stray remarks of nondecisionmakers such as Peders on and Ruppel a re not sufficient to raise an inference of age discrimination. We agree that such comments, standing alone, would not raise an inference of disc rimination. Ryther , 108 F.3d at 844. It is well-settled that stray remarks by nondeci sionmakers, 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 mix ed motives framework of Price Waterhouse v. Hopkins , 490 U.S. 228, 25 8 (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 whic h 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 ne w
or ganizationand Ruppel's human resources memo, which directly stated a compan y preference for younger talented individual s, constituted proper circumstantial evidence for the jury to consider in combination with all the other evidence. Honeywell also argues that the allege d discriminatory statement by Larkin, who clearly was a de cisionmaker, does not constitute proof of age discrimination, because the com ment was irrelevant to the adverse employment decisions. Larkin remove d Bevan from his marketing position in October 1991 and promoted Gilligan instead of Bevan. View ed in the light most favorable to Bevan, the record indicates that Ega n (Bevan's immediate supervisor) said, "Larkin felt that [Bevan] would not be able t o report to Kevin Gilligan . . . because [Bevan] had a lot more experience, and [Bevan]
was a l ot older than he [Gilligan] was . . . ." (Trial Tr. at 259.) This statement i s relevant to the jury's determination of whether Honeywell engaged in age13

discrimination, because it evi dences an age-based reason that factored into an adverse employm ent

decision. Even accepting arguendo Honeywell's contention that th e 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
ver dict when considered together with other evidence of pretext, such as a compan y trend toward younger employees. See Ryther , 108 F.3d at 844.
Honeywell contends t

hat the statement attributed to Larkin was double hearsay andthat the district court erroneously admitted it into evidence. By failing to timely
o b ject 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 pa rty 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 tes tifying to what an authorized agent of the employer said, the statement is a n admission of a party opponent).

Bevan dem onstrated through his testimony and statistical charts that after th e
r e organization, the director-level positions were all occupied by younger individuals. Bevanwas the only director-level person over age 45 in Gilligan's organization afte r it was reorganized, and he was the only one removed from that organization.
Honey well contends that Bevan's statistical evidence was incompetent as a
ma tter of law and should not have been considered by the jury on the issue o f intenti onal discrimination. Honeywell objected to the admission of this statistica l evidence for lack of foundation. The district court admitted the evidence in the jury trial, bu t 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 "assume14

certain prem

ises 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. It s "nonpersuasive" finding is one of weight, not admissibility.

We conclud e that the district court did not abuse its discretion in admittin g Bevan's statistical charts. Contrary to Honeywell's assertion, Bev an was not attempting to make a claim of disparate impact through statistics. Instead, as in MacDissi , 85 6 F.2dat 1058, he offered his statistics, which are more accurately described as charts compiledfrom information in Honeywell's personnel directory, as one component o f Be van's circumstantial proof that Honeywell's proffered reason for the advers e emplo yment

decisions was a pretext for age discrimination. Introduced for thi s purpose, "[Bevan's] quantitative evidence does not need to reach the d egree of certainty required o f plaintiffs who present no proof of discrimination besides a statistica l pattern." Id. at 1058; see also id. at 1058 n. 3 ("Even where quantitative evidence does not alone de monstrate discrimination to some judicially created standard of statistical conclusiveness, it is still relev ant in conjunction with all other evidence in determining intentional discrimination."). Bevan's us e of the evidence in an attempt to demonstrate a company-wide t

rend toward placing younger persons in director-level positions and eliminati ng older persons after the reorganization was permissible. See id. at 105 9 ("c ompany-wide statistics are useful in establishing the presence or absence of a gen eral climate of age bias"). While Bevan's charts were not competent as statistical proof of intentional discrimination, they were admissible as probative circumstantia l evidence of pretext to be considered with all other evidence of pretext. Honeywell argues that the statistical evid ence is not probative because it fails to analyze the treatment of comparable employee s by a common decisionmaker. Bevan's charts demonstrate the age differences between directors before and after th e reorganizationof the three major divisions into the single unit named H&BC. All of Be van's charts involve age comparisons between director-level persons before th e reorganization and director-level positions after the formation of the H&BC. There was15

evidenc e in this case that at least one of Bevan's adverse employment decisions (th e removal of Bevan from his director-level po sition in the new H&BC organization) was taken at the specific direction of Rosso, the new president of the H&BC. Rosso, a s president of the new organization, was a common decisionmaker to all director-level positions in the H&BC.

Certai nly, "statistics must evaluate comparable employees to be meaningfu l indicators of pretext," Schultz v. McDonnel l Douglas Corp. , 105 F.3d 1258, 1259 (8th Cir. 1997), petition for cert. file d , (U.S. May 21, 1997) (No. 96-1855), and "statistical evide nce that does not reflect significant differences among employees would b e prejudicial and misleading." Id. at 1259-60. When a director-level employee claims age discriminatio n, use of company-wide statistics may provide the only comparisons available. It is significant th at Bevan was not terminated for poor performance, which

w o uld be a significant difference between Bevan and other director-level employees,
see id. , and Bevan presented evidence to rebut Honeywell's assertion that he wa s selecte d for adverse employment action because of his personality. This recor d provides no other substantial differences between Bevan and the director-leve l empl oyees in his charts. Cf. Hopper v. Hallmark Cards, Inc. , 87 F.3d 983, 989 (8th Cir. 1996) (statistics comparing managerial-level employees discharged from othe r
un its and excluding other younger managers discharged just prior to the data did no t raise a reasonable infere nce of age discrimination). Furthermore, Honeywell took full adv antage of its opportunity to impeach the validity, impact, and meaning of th e information on those charts. Although the district court found the charts to b e unpersuasiv e in considering the MHRA claim, the jury, a separate fact finder, coul d
re asonably and independently determine to afford them more weight in deciding th e 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 pre sented sufficient evidence from which a reasonable jury could16

find that Ho neywell discriminated against Bevan on the basis of his age. Hi s outs tanding performance record that mentions no major interpersonal problems , Larkin's age-based statement about Bevan, the company's lack of effort at providin g 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 ag e discrimination sufficient to allow this case to go to the jury. As we stated i n Morgan , "[a]ltho ugh 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 evi dence 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 t

he 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 disc retion of the district court, and we review only for a clear abuse o f discretion. Slathar v. Sather Trucking Co rp. , 78 F.3d 415, 419 (8th Cir.), cert. denied , 117 S. Ct. 179 (19 96); O'Dell v. Hercules, Inc. , 904 F.2d 1194, 1200 (8th Cir. 1990). Anew trial is not warranted on the basis of an evidentiary ruling unless the evidence was so prejudicial that a new trial would likely produ ce 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 mad e warrants a new trial.
C. Front Pay

In this case, the parties stipulated that reinstatement would not be a prope r remedy. Thus, there is no dispute tha t 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 t he 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 dis trict court, taking all aspects of the case into consideration and reducing th e award to its present value. See id. at 641. In Newhouse , we held that th e determination of what amount of front pay toaward is an equitable issue to be decided by the district court. Id. at 643. While the district court may, in its equitabl e 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 determina tion. 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

Beva n cross-appeals the district court's finding in the MHRA claim that Honeywell did not engage in intentional age discrimination. The district court found tha t Bevan did not successfully rebut the legitimate nondiscriminatory reasons fo r Honeywell's adverse employment deci sions. Bevan argues that he produced sufficient evidence to prevail on his claim.18

The Min nesota Supreme Court has consistently construed MHRA claims i n 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, In c. , 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 tha t judgment
as a matter of

law is not appropriate "if reasonable persons could differ as to th e conclus ions to be drawn from the evidence." Ryther , 108 F.3d at 844 (interna l quot ations omitted). Two different fact finders may permissibly draw differin g inferences fro m the same evidence. The district court was free to give greater weight to the evidence supporting Honeywell's articulated legitimate nondiscrimi natory reasons th an 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 o f discretion standard. Lee v. Rapid City Area Sch. Dist. No. 51-4 , 981 F.2d 316, 319-20 & 333 (8th Cir. 1992) (en banc).

Beva n 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 th e district court determined that Honeywell did not intentionally discriminate agains t Bevan in vio lation of the MHRA. The district court awarded Bevan $250,000 i n attorne y's fees. Bevan contends that the district court abused its discretion by no t awarding the full amount of attorney's fees that Bevan claimed.19

The distr ict court criticized both parties for "over-lawyering" this case an d 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 conduc ted this analysis, reviewing all the circumstances of this case, and made an appropriate equitable adjustment to the fee request. The district court provi ded a rational reason for the reduction of the award and did not abuse it s 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 aw ard 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 opi nion with one exception. I dissent from the vacation of

the jury's award of front pay and the remand to the district court t o calculate a proper front pay award in its discretion.
The court holds that our recent opinion in Newhouse v. McCormick & Co. , 110 F. 3d635 (8th Cir. 1997), controls this issue. I must respectfully disagree. I n Newhouse , after a jury had returned a plaintiff's verdict finding age discriminatio n under the ADEA, the district court faced the equitable de cision whether to reinstate the employee or to award front pay. Under those circumstances , the district court does not20

facethe 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 ordinaril ywill be discharged and the court then will hear from the parties regardin g 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 on ly issue remaining was whether the ADEA was violated and, if so, what th e 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 it s award. Under these circumstances, I f eel the proper application of the Supreme Court's decision in Lorillard v. Pons , 434 U.S. 575 (1978), requires a jury determination o f frontpay. I n Lorillard , the Court interpreted 29 U.S.C. § 626(c)(2) and found tha t Congress inte nded to confer a right to trial by jury in ADEA actions to determin e "amounts owing" as a result of a violation of the Act. The Court did not specifically decide wh ether the jury should determine front pay. In Dominic v. Consolidate d Edison Co. , 822 F.2d 1249 (2d Cir. 1987), cited with approval in Newhouse , th e Second Circuit held that both the determination of whe ther to award front pay and how
muc h front pay to award are questions reserved to the district court's equitabl e discretion

. However, Dominic and Newhouse are dissimilar to this case in on e importan t regard: Neither case reached the court on the stipulated fact tha t reinstatement was not an appropriate remedy. The o blique discussions in Dominic and Newhousedo not mandate that determining the amount of front pay, once the question of re instatement 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 jur ies 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's21

impaired future earning c apacity 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 evidentiar ysupport in products liability case for jury's award of past and future los t wages). The fact that we are dealing with front pay under the ADEA should make little diffe rence when the choice of reinstatement is precluded. The issue at that poin t becomes a legal claim to be determined under the facts of the case.
To avoid any misunderst anding, I do not urge that once a judge determines that reinstatem ent

is not a proper remedy that a jury should be recalled to determine th e 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 them selves 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 decide d 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 sup ported by the facts of the particular case, the court may reduce the awar d accordingly.

In the prese nt case, the court reviewed the jury's front pay award and entere d jud gment upon the verdict. Under the circumstances, it seems to me inefficient an d im proper 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.