The Honorable Paul A. Magnuson, Chief Judge, United States

1

District Court for the District of Minnesota, sitting by

designation. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

Nos. 96-1456/1535 

_____________

Richard Newhouse, *

 *

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

* District Court for the

v. * District of Nebraska.

*

McCormick & Co., Inc., *

*

Appellant/Cross-Appellee. *

_____________

 Submitted: November 19, 1996

 Filed: April 14, 1997 

_____________

Before FAGG and HANSEN, Circuit Judges, and MAGNUSON, District Judge.

1

_____________

HANSEN, Circuit Judge.

Richard Newhouse brought this suit against McCormick & Co., Inc.,

alleging age discrimination in violation of the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1994), and in violation of the

Nebraska Act Prohibiting Unjust Discrimination in Employment Because of

Age, Neb. Rev. Stat. §§ 48-1001 through 48-1010 (Reissue 1993). A jury

decided the ADEA claim in favor of Newhouse, and the district court decided

the claim under the Nebraska Act, also concluding that McCormick 
2

intentionally discriminated against Newhouse on account of his age.

McCormick appeals on several grounds, and Newhouse cross-appeals the

district court's refusal to provide him with an enhanced attorney fee

award. We affirm in part and reverse in part. 

I. Background

We recite the facts in the light most favorable to the jury verdict

and the district court's findings. See Parrish v. Immanuel Medical Ctr.,

92 F.3d 727, 731 (8th Cir. 1996). On February 1, 1993, Richard Newhouse,

then 61 years old, interviewed with McCormick & Co., Inc., for a position

as a sales representative for McCormick's product line of Schilling spices,

a job he had held in the past. Despite Newhouse's excellent credentials

and spice sales experience, McCormick gave the job to a less-experienced

37-year- old man. 

Newhouse had previously worked as a successful sales representative

for McCormick, selling its line of Schilling spices for approximately 23

years. In 1987, McCormick terminated Newhouse's employment when it

eliminated its direct sales force, electing instead to use a food broker

to sell Schilling spices. Newhouse then obtained a job with the food

broker, marketing McCormick products for the broker as he had done as a

McCormick employee. The sales representatives whom McCormick terminated

understood from representations of McCormick's vice president, Mr. Harris,

that if McCormick decided to use a direct sales force again, they would be

given first priority in the rehiring process. 

Newhouse continued working for the food broker through 1992. While

working in this capacity, Newhouse dealt with several grocery stores that

purchased through a grocery wholesaler named Affiliated 
3

Foods. In late 1992, Affiliated Foods agreed to carry McCormick spices,

but it required McCormick to deal with Affiliated through a direct sales

force rather than a food broker. Thus, McCormick once again needed a

direct sales force in Nebraska. McCormick created four sales positions.

 

The food broker for which Newhouse was working eliminated his

position in January 1993. Newhouse had heard about an opening with

McCormick and was very interested in returning to McCormick as a sales

representative. Newhouse contacted Dale DeWit, the zone manager at

McCormick who was in charge of hiring the new sales force, and expressed

his interest in obtaining one of the sales positions. DeWit initially told

Newhouse to contact him later because they were not yet ready to begin the

hiring process. Newhouse called DeWit several times after that, and

finally, DeWit agreed to interview him. 

On January 15, 1993, DeWit interviewed Michael Soflin, a 37-year-old

man with grocery and food sales experience. On February 1, 1993, DeWit

interviewed Newhouse. Newhouse had sold McCormick's Schilling spices very

successfully for approximately 29 years. He had received the C. P.

McCormick award, which is the company's top sales award. Newhouse had

routinely ranked among the top sales representatives for his zone and

possessed a thorough knowledge of Schilling spices. DeWit assured Newhouse

that he would not be making a hiring decision for some time. He did not

tell Newhouse that he had obtained approval on January 29, 1993, to hire

Soflin, two days prior to Newhouse's scheduled interview. Furthermore,

DeWit hired Michael Soflin for the sales position the day after Newhouse's

interview.

Of the four available positions, one was filled by a current

McCormick employee, and DeWit interviewed applicants for the 
4

remaining openings. The applicants did not apply for positions at certain

locations. DeWit decided which location to consider each applicant for,

and once compartmentalized as he saw fit, he did not consider them for the

other available locations. In each instance, DeWit passed over the oldest

applicants for the position, regardless of qualifications. When one 59-

year-old applicant inquired about the salary, DeWit responded, "normally,

I hire younger people and start them out at $17,000 a year." (Trial Tr.

at 542.) That applicant was not offered a job. DeWit also rejected

another older applicant, who had 30 years of experience selling Schilling

spices, as overqualified. Yet, DeWit initially told Newhouse that he was

not qualified for the position (though Newhouse had 29 years of sales

experience with McCormick spices). 

McCormick offered various and changing reasons for not hiring

Newhouse. DeWit initially told Newhouse that he was not qualified, while

McCormick conceded at trial that Newhouse was qualified for the position,

and the record amply supports the fact. Later, McCormick sent a letter

explaining that Newhouse was not hired because Soflin had direct experience

with its new customer, Affiliated Foods, yet DeWit rejected a 59-year-old

applicant who was better known to Affiliated Foods than Soflin. In his

affidavit, DeWit said that Soflin was hired not so much for his experience

with Affiliated as for his ideas about expanding the business, while Soflin

testified at trial that during his interview he did not present any ideas

for expanding the business. DeWit also said that Soflin performed better

in the interview than Newhouse, but he used no objective scoring or ranking

devices, so no evidence was presented to corroborate this statement. 

After learning that McCormick did not offer him a position, Newhouse

sought other full-time employment. He applied with various food brokerage

companies and sought help through the 
5

Nebraska job service, but his search proved unsuccessful in securing fulltime employment. Newhouse did not want to retire, but because he was only

able to obtain part-time work, he applied for and began receiving social

security retirement benefits beginning in August 1994. He would not have

retired at that time had he been employed full-time by McCormick. 

On April 19, 1994, Newhouse filed this suit alleging age

discrimination in violation of the ADEA, 29 U.S.C. §§ 621-634, and in

violation of the Nebraska Act Prohibiting Unjust Discrimination in

Employment Because of Age, Neb. Rev. Stat. §§ 48-1001 through 48-1010. He

requested and received a jury trial on the ADEA claim, and the Nebraska

claim was tried to the court. The jury found in favor of Newhouse and

awarded him $59,426.76 in back pay and $206,359 in front pay from the date

of the verdict until the date Newhouse normally would have retired. The

jury also found that McCormick's conduct was willful, and based on this

finding, the district court awarded an additional $59,426.76 in liquidated

damages. The district court also awarded Newhouse attorney fees in the

amount of $31,240.02, plus costs and interest on the judgment but denied

Newhouse's request for enhanced attorney fees and prejudgment interest. 

On the Nebraska claim, the district court issued findings of fact and

concluded that McCormick had intentionally discriminated against Newhouse

on the basis of his age. The district court awarded back pay in the amount

of $59,426.76, front pay in the amount of $84,062, attorney fees in the

amount of $31,240.02, plus costs and interest on the judgment. The

judgment provided that Newhouse was entitled only to the greater of the

cumulative awards under either the ADEA claim or the state law claim, but

not to both. 
6

Following the entry of the judgment, McCormick filed motions for

judgment as a matter of law, for a new trial, or alternatively, to alter

or amend the judgment in this case. The district court denied the posttrial motions, except to conclude that it would grant a new trial as to

damages unless Newhouse agreed to a remittitur of the jury's front pay

award on the ADEA claim within ten days of the court's order. Newhouse

timely consented to reducing the jury's front pay award to $158,365.96, and

the district court denied McCormick's motion for a new trial.

McCormick appeals, arguing that the district court erred in the ADEA

claim by submitting the issue of front pay to the jury and by denying its

motions for judgment as a matter of law, for a new trial, and to alter or

amend the judgment. McCormick also argues that the district court erred

in its findings of fact, conclusions of law, and order of relief in the

Nebraska state claim. Newhouse cross appeals the district court's refusal

to grant him enhanced attorney fees. 

II. Discussion

A. Judgment as a Matter of Law

McCormick moved for judgment as a matter of law at the close of

Newhouse's evidence, at the close of its own case, and at the end of the

case. In each instance, the district court denied the motion. "It is well

settled that 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 a verdict

for the non-moving party." Ryther v. KARE 11, No. 94-3622, slip op. at 5

(8th Cir. Mar. 6, 1997) (en banc). 
7

Our standard for reviewing the sufficiency of proof in an age

discrimination case tried to verdict by a jury is set forth in Ryther. See

id., slip op. at 5-10, 33-35. 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., slip op. at 10-11. McCormick contends that Newhouse

failed to establish that its articulated reasons for not hiring him were

a pretext for discrimination. While McCormick offered several

nondiscriminatory reasons for not hiring Newhouse, our review of the

evidence reveals sufficient evidence presented by Newhouse from which a

reasonable jury could conclude that those reasons were not credible and

were in fact a pretext for age discrimination. 

DeWit initially said that Newhouse was not qualified, but there is

no question that he was qualified for the job, and McCormick even admitted

this at trial. A letter from McCormick dated May 12, 1993, states that

Soflin was hired instead of Newhouse because of Soflin's experience with

Affiliated Foods, a new customer. In an affidavit, DeWit stated that

Soflin's relationship with Affiliated Foods was not the primary reason he

selected Soflin; instead it was Soflin's "concepts for expanding

McCormick's position in the spice industry." (Appellant's App. at 161.)

At trial, however, Soflin testified that he did not present any ideas for

improving the spice business during the interview but presented his ideas

after their first spring food show, about four months after he had been

hired. Additionally, though McCormick advanced Soflin's experience with

Affiliated Foods as an important factor, DeWit bypassed another older

applicant who had a stronger relationship with Affiliated Foods than

Soflin. DeWit cited Soflin's enthusiasm and desire to work for McCormick

as important, yet the record also reveals great enthusiasm and desire on

the part of Newhouse, who had much more sales experience with the product
8

and had a great deal of success while working for McCormick in the past.

Because McCormick's "nondiscriminatory reasons" for not hiring Newhouse

were various and always changing, McCormick's motive becomes suspect. See

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993) ("The factfinder's

disbelief of the reasons put forward by the defendant (particularly if

disbelief is accompanied by a suspicion of mendacity) may, together with

the elements of the prima facie case, suffice to show intentional

discrimination.") Viewing this together with the other evidence in the

record demonstrating that DeWit consistently hired younger applicants

instead of the older ones, even when the older applicants were much better

qualified for the position (including his own statement that he normally

hires younger people), a reasonable jury could conclude that the real

reason Newhouse was not hired was his age. Having carefully considered the

entire record in this case, we conclude that the evidence was sufficient

for a reasonable jury to conclude that McCormick intentionally

discriminated against Newhouse on the basis of his age. 

McCormick argues that there was insufficient evidence from which a

jury could conclude that it willfully violated the ADEA. "Under § 7(b) of

the ADEA, 29 U.S.C. § 626(b), a `willful' violation gives rise to

liquidated damages." Hazen Paper Co. v. Biggins, 507 U.S. 604, 606 (1993).

Liquidated damages amount to a punitive double recovery, "intended to deter

willful conduct." Wiehoff v. GTE Directories Corp., 61 F.3d 588, 593 (8th

Cir. 1995). An ADEA violation is "`willful' if the employer knew or showed

reckless disregard for the matter of whether its conduct was prohibited by

the ADEA." Hazen Paper Co., 507 U.S. at 614 (quoting Trans World Airlines,

Inc. v. Thurston, 469 U.S. 111, 126 (1985)). In determining whether a

violation is willful, "[t]he question is not whether the evidence used to

establish willfulness is different from and additional to the evidence used

to establish a violation 
9

of the ADEA, but whether the evidence -- additional or otherwise --

satisfies the distinct standard used for establishing willfulness." Brown

v. Stites Concrete, Inc., 994 F.2d 553, 560 (8th Cir. 1993) (en banc). 

 

Considering the evidence in the light most favorable to Newhouse and

giving him the benefit of all favorable inferences, Parrish, 92 F.3d at

736, the evidence shows that DeWit knew of the ADEA, yet he disregarded it

and rejected Newhouse on the basis of his age. Age was not a "bona fide

occupational qualification" in this case, Hazen Paper Co., 507 U.S. at 616,

and the decision not to hire Newhouse was not "based on reasonable factors

other than age." 29 U.S.C. § 623(f)(1) (1994). A reasonable jury could

have concluded that DeWit only agreed to interview Newhouse to give the

appearance that he was complying with the ADEA, though he had already

decided to hire Soflin. This is not a case where the person making the

hiring decision incorrectly but in good faith believed that the statute

permitted an age-based decision. See Hazen Paper Co., 507 U.S. at 616.

The jury's determination that McCormick willfully violated the ADEA is

supported by the record.

McCormick also contends that Newhouse's failure to mitigate his

damages by not actively seeking full-time employment after he began

receiving social security benefits should reduce the back pay award and cut

off his right to front pay as a matter of law. A successful ADEA plaintiff

must show that he or she attempted to mitigate damages or face a reduction

in the damage award. Parrish,

92 F.3d at 735. This duty to mitigate requires a plaintiff to use

reasonable diligence in finding other suitable employment and not to refuse

a job that is substantially equivalent to the one at issue. Id. (citing

Ford Motor Co. v. EEOC, 458 U.S. 219, 231-32 (1982)). Our review of the

record convinces us that Newhouse did use reasonable diligence in seeking

suitable full-time employment. 
10

He applied to various food brokerage companies looking for comparable work

and sought the help of the Nebraska job service. He accepted the only job

offered to him, which happened to be part-time work. Later, he attempted

to supplement this income with social security retirement benefits.

Thereafter, he applied for only one other job, but he testified that there

were no openings available in his field. Newhouse also testified that he

would have given up his social security benefits had he been offered a

full-time position. The burden to mitigate damages "is not onerous and

does not requires success." Brooks v. Woodline Motor Freight, Inc., 852

F.2d 1061, 1065 (8th Cir. 1988). "All that is required by law is an

honest, good faith effort." Id. We are satisfied that Newhouse's efforts

were reasonable and that he made a good faith, albeit unsuccessful, effort

to secure full-time employment. Thus, the district court did not err in

refusing to grant judgment as a matter of law on this issue. 

For the same reasons as set forth above, we also conclude that the

district court did not abuse its discretion by refusing to grant a new

trial or to alter or amend the judgment. The jury was free to believe

Newhouse instead of DeWit on material factual issues, and the verdict is

not against the great weight of the evidence. 

B. Front Pay

McCormick argues that the district court abused its discretion by

choosing front pay in lieu of reinstatement as the appropriate form of

equitable relief and by submitting the issue of front pay to the jury.

"Front pay is an equitable remedy, which the district court in its

discretion may award under the ADEA to make the injured party whole."

Smith v. World Ins. Co., 38 F.3d 1456, 1466 
11

(8th Cir. 1994). Front pay consists of monetary damages that may be

awarded in lieu of reinstatement in situations where reinstatement is

"impracticable or impossible." Philipp v. ANR Freight Sys., Inc., 61 F.3d

669, 674 (8th Cir. 1995). In making a front pay award, the district court

is not free to reject or contradict findings by the jury on issues that

were properly submitted to the jury, but the district court "retains its

discretion to consider all the circumstances in th[e] case when it

determines what equitable relief may be appropriate." Gibson v. Mohawk

Rubber Co., 695 F.2d 1093, 1101 (8th Cir. 1982). 

McCormick first argues that the district court erred because

reinstatement is the preferred remedy absent some evidence of hostility,

and the tension caused by the litigation process alone does not make

reinstatement impracticable or impossible in this case. See Brooks, 852

F.2d at 1065. We review only for an abuse of discretion. Philipp, 61 F.3d

at 674. The district court rejected reinstatement, finding that the suit

had strained the relationship between Newhouse and McCormick, and in

particular, Mr. DeWit, who would have been Newhouse's zone manager.

(Appellant's Addend. at 11.) The district court stated that Newhouse's

testimony to the effect that he did not think he could go back to work for

McCormick was "not probably inaccurate, listening to both Mr. Soflin and

Mr. Newhouse." (Trial Tr. at 685-86, as amended by the district court,

Appellee's App. at 4.) DeWit was the McCormick representative who

reluctantly interviewed Newhouse, made the willful discriminatory decision

not to hire Newhouse, and told Newhouse that he was not qualified for the

job. This evidence supports the district court's conclusion that

reinstatement is not appropriate. Additionally, by the time of trial,

Newhouse was receiving social security retirement benefits due to his

inability to secure full-time employment, rendering reinstatement

impractical. See Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424 (4th 
12

Cir.) ("If a plaintiff is close to retirement, front pay may be the only

practical approach."), cert. denied, 502 U.S. 963 (1991). Viewing the

record in this case as a whole, the district court did not abuse its

discretion by ordering front pay in lieu of reinstatement. 

Newhouse asked the court to submit the front pay issue to the jury,

and McCormick objected, arguing that front pay is an equitable matter to

be determined by the court. The district court concluded that the issue

of "whether or not the facts support a front pay award is no different in

principle than many other damage questions that we present to jurors in an

employment context or outside of an employment context, and for that

matter, it seems to me in this case entirely appropriate to submit it to

the jury . . . " (Trial Tr. at 686.) Thus, the district court submitted

to the jury the decision of what amount of front pay should be awarded.

Acknowledging some uncertainty about the proper procedure, however, the

district court also made a corollary finding that, had the court determined

the front pay issue for the ADEA claim, the court would have awarded front

pay reduced to the present value of $84,062. 

The choice between the two equitable remedies of reinstatement and

front pay clearly belongs to the court. See Doyne v. Union Elec. Co., 953

F.2d 447, 450 (8th Cir. 1992). Once front pay is chosen, whether the

district court must determine the amount or whether the court may submit

that determination to the jury is still an open question in this circuit.

We have stated, "Although the calculation of a front-pay award necessarily

involves some uncertainty, it is a matter of equitable relief which we

leave to the sound discretion of the District Court." MacDissi v. Valmont

Indus., Inc., 856 F.2d 1054, 1060 (8th Cir. 1988). Yet we have not

directly decided whether the district court's discretion includes 
13

the authority to submit the determination of the amount of front pay to the

jury. See Doyne, 953 F.2d at 451 (stating, "This circuit has not addressed

this issue, and it is not necessary to reach it in this case . . . .").

In Doyne, we reversed a magistrate judge's decision to reduce the amount

of front pay awarded by a jury, but we expressly refused to decide whether

a trial court is permitted to submit the front pay issue to the jury in the

first instance. Id. We now have the opportunity to address this issue

squarely. 

Our sister circuits have expressed differing opinions on the question

of whether a jury can determine the amount of front pay. The Third, Fifth,

Sixth, and Ninth Circuits have held that while the district court must

initially determine whether a plaintiff is entitled to front pay in lieu

of reinstatement, the jury determines the amount of front pay damages. See

Hansard v. Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461, 1470 (5th Cir.),

cert. denied, 493 U.S. 842 (1989); Fite v. First Tennessee Prod. Credit

Ass'n, 861 F.2d 884, 893 (6th Cir. 1988); Cassino v. Reichhold Chem., Inc.,

817 F.2d 1338, 1347 (9th Cir. 1987), cert. denied, 484 U.S. 1047 (1988);

Maxfield v. Sinclair Int'l, 766 F.2d 788, 796 (3d Cir. 1985), cert. denied,

474 U.S. 1057 (1986). These courts have adopted this view without any

analysis, merely reciting the one statement of dicta from Maxfield in which

the Third Circuit, without citation to any authority, stated that "the

amount of damages available as front pay is a jury question." 766 F.2d at

796. 

To the contrary, the Second, Fourth, Seventh, and Tenth Circuits hold

that both the determination of whether front pay is appropriate and the

determination of how much front pay to award are questions for the district

court's equitable discretion, and thus, the issue of the amount of front

pay should not be submitted 
14

to the jury. See Fortino v. Quasar Co., 950 F.2d 389, 398 (7th Cir. 1991);

Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1426 (10th Cir. 1991); Duke

v. Uniroyal, Inc., 928 F.2d 1413, 1424 (4th Cir.), cert. denied, 502 U.S.

963 (1991); Dominic v. Consol. Edison Co. of New York, Inc., 822 F.2d 1249,

1257 (2d Cir. 1987). We agree with this rule and find that the Second

Circuit's Dominic case best enunciates the rationale. 

In Dominic, the Second Circuit set forth a thorough and well-reasoned

discussion, concluding that the amount of front pay must be determined by

the court. 822 F.2d at 1257-58. The court concluded that the language,

structure, and history of 29 U.S.C. § 626 all indicate Congress's intention

"to limit jury trials to factual issues underlying claims for legal

relief." Id. at 1257 (emphasis added). Additionally, the court reasoned

as follows: 

There is much overlap between the facts relevant to whether an

award of front pay is appropriate and those relevant to the

size of the award. For example, both questions turn in part on

the ease with which the employee will be able to find other

employment. To divide the fact-finding responsibilities in

such circumstances would be anomalous and would risk

inconsistent decisions. . . . [For example,] a judge might

find front pay appropriate, but the jury might award only a

nominal sum based on its belief that the employee could secure

immediate employment. 

Id. 

We agree with the Second Circuit's cogent analysis and now expressly

hold that front pay, including the determination of how much front pay to

award, is an equitable issue for the court. The district court erred in

this case by submitting the front pay determination to the jury.

Nevertheless, we need not remand on this issue because the district court

made a corollary finding that 
15

had it not submitted the issue to the jury, the court would have awarded

Newhouse front pay reduced to the present value of $84,062 on the ADEA

claim. McCormick does not challenge this factual finding. Thus, Newhouse

is entitled to $84,062 in front pay, as determined by the district court.

McCormick also argues that the receipt of liquidated damages cuts off

Newhouse's entitlement to front pay as a matter of law. We disagree. As

previously noted, liquidated damages are punitive in nature under the ADEA.

Thurston, 469 U.S. at 125. Front pay, on the other hand, is equitable

relief that may be obtained in lieu of reinstatement. The jury's finding

of willfulness and the resulting award of liquidated damages simply does

not affect the district court's determination of appropriate equitable

relief. 

C. Nebraska State Law Claim

McCormick argues that the district court erred in several respects

in its findings of fact, conclusions of law, and order of relief on the

state law claim. The Nebraska state courts interpret the Nebraska Act

Prohibiting Unjust Discrimination in Employment Because of Age as requiring

the same proof of age discrimination as we require under the ADEA. See

Allen v. AT&T Technologies, Inc., 423 N.W.2d 424, 431 (Neb. 1988) (noting

that "[a]gain, we follow the lead of the federal courts" in evaluating an

age discrimination claim). Our review of the record indicates that the

district court's findings of fact and conclusions of law are not clearly

erroneous. Although differing inferences could have arisen from the

evidence presented, the district court as fact finder was free to make its

own findings, and those findings have support in the record. 
16

Finally, McCormick contends that the district court erred by awarding

attorney's fees under the state law claim. The Nebraska Act does not

explicitly provide for an award of attorney's fees but gives the court

jurisdiction to grant legal or equitable relief as the court may deem

appropriate to effectuate the purposes of the Act. Neb. Rev. Stat. § 48-

1009. We need not decide whether Nebraska law allows an award of

attorney's fees in an age discrimination case, because this issue of state

law is not material to the outcome of this case. The judgment of the

district court provides that the plaintiff is entitled to the total of all

amounts awarded under either the state law claim or the ADEA claim,

whichever is greater -- but not both. The total judgment under the ADEA

claim is greater than the total judgment under the state law claim, even

if attorney's fees were properly included under Nebraska law, an issue we

do not decide. Thus, Newhouse is entitled only to the amounts awarded

under the ADEA claim. 

D. Enhanced Attorney's Fees

Newhouse claims in his cross appeal that the district court abused

its discretion by not awarding him an enhanced contingency fee. Newhouse

asserts that an enhanced contingency fee award is necessary due to the

difficulty plaintiffs encounter when trying to obtain counsel for

employment discrimination cases where the Nebraska Employment Opportunity

Commission makes a finding of no cause. In support of his argument,

Newhouse relies on our opinion in Morris v. American Nat'l Can Corp., 952

F.2d 200, 204 (8th Cir. 1991), rev’d, 988 F.2d 50 (1993). We reject this

argument as meritless. 

The Supreme Court has held that an enhancement above the lodestar fee

for contingency is not permitted. City of Burlington 
17

v. Dague, 505 U.S. 557, 567 (1992) (specifically referring to the

attorney's fee provision of the Solid Waste Disposal Act, 42 U.S.C.

§ 6972(e)); id. at 561-62 (including within its discussion the similar

language of other federal fee-shifting statutes); Hukkanen v. Int'l Union

of Operating Eng'rs, 3 F.3d 281, 287 (8th Cir. 1993) (noting the Supreme

Court held in Dague that "the federal fee shifting statutes do not allow

enhancement of a fee award beyond the lodestar amount to reflect that a

party's attorneys were retained on a contingency basis"). Our opinion in

Morris, on which Newhouse relies, has been reversed by this court in

response to the Supreme Court's opinion in Dague. We conclude that the

holding of Dague applies with full force to the ADEA fee shifting statute,

see 29 U.S.C. §§ 626(b) & 216(b), thus prohibiting a fee enhancement beyond

the lodestar amount on the basis of a contingency arrangement. Therefore,

the district court did not abuse its discretion by denying an enhanced

contingency fee award in this case. 

III. Conclusion

We reverse the district court's decision to submit the front pay

award to the jury, and remand for entry of judgment on the district court's

corollary front pay finding, awarding $84,062 in front pay on the ADEA

claim. In all other respects, we affirm the judgment of the district

court. We grant McCormick's motion to strike a portion of Newhouse's

cross-appeal reply brief for its failure to conform to Fed. R. App. P.

28(c). 

A true copy.

Attest:

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