### The Honorable Paul A. Magnuson, Chief Judge, United State s 1 

### Distri ct Court for the District of Minnesota, sitting b y 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. , allegi ng age discrimination in violation of the Age Discrimination i n Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1994), and in violation of th e Nebraska Act Prohibiting Unjust Discrimination in Employment Because o f Age, Neb. Rev. Stat. §§ 48-1001 through 48-1010 (Reissue 1993). A jur y decided the ADEA claim in favor of Newhouse, and the district court decide d the claim under the Nebraska Act, also concluding that McCormick

### 2

inten tionallydiscriminated against Newhouse on account of his age

. Mc Cormick appeals on several grounds, and Newhouse cross-appeals th e distric t court's refusal to provide him with an enhanced attorney fe e 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 cour t'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, in terviewed 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 i t eliminated its direct sales force, electing instead to use a food broker to sell Schilling spices. Newhouse then obtained a job with the foo d broker, m arketing 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 v ice 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 capac ity, 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 for ce 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 hi s position in January 1993. Newhouse had heard about an opening wit h McCor mick and was very interested in returning to McCormick as a sale s repres entative. Newhouse contacted Dale DeWit, the zone manager a t McCormick who was in charge of hiring the new sales force, and expressed his interest in obtaining one of the sales positions. DeWit initially tol d Newhouse to contact him later because they were not yet ready to begin the hiri ng process. Newhouse called DeWit several times after that, an d finally, DeWit agreed to interview him.
On January 15, 1993, DeWit interview ed Michael Soflin, a 37-year-old
man with grocery and food sales experience. On February 1, 1993, DeWi t interviewed Newhouse. Newhouse had sold McCormi ck's Schilling spices very successfu llyfor approximately 29 years. He had received the C. P

. McCor mick award, which is the company's top sales award. Newhouse ha d routine lyranked among the top sales representatives for his zone an d possessed a thorough knowledge of Schilling spices. DeWit assured Newhous e 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 positio n the day after Newhouse's interview.

Of the four available positions, one was filled by a curren t McCormick employee, and DeWit interviewed applicants for the

### 4

remaining openings. The applicants did not appl y for positions at certain locations. DeWit decided which location to consider each applicant for, and once compartmentalized as he saw fit, he didnot consider them for the other available locations. In each instance, De Wit passed over the oldest applicants for the position, regardless of qualifications. When one 59- year-old applicant in quired 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 rejecte d another older applica nt, who had 30 years of experience selling Schilling spices, as overqualif ied. Yet, DeWit initially told Newhouse that he was not qualif ied for the position (though Newhouse had 29 years of sale s experience with McCormick spices).

McCormick offered various and changing reasons for not hirin g Newhouse. DeWit init ially told Newhouse that he was not qualified, while McCormick conceded at trial that Newhouse was qualified for the position, and the r ecord amply supports the fact. Later, McCormick sent a lette r explaining that Newhouse was not hired because Soflin had direct experienc e with its new customer , Affiliated Foods, yet DeWit rejected a 59-year-old applicant who was better known to Affiliated Foods than Soflin. In hi s affidavit, DeWit said that Soflin was hired not so much for his experience with Affiliated as for his ideas about expanding the business, while Sofli n testified at trial th at during his interview he did not present any ideas for expanding the bus iness. DeWit also said that Soflin performed better in the interview than Newhouse, but he used no objective scoring or rankin g devices, so no evidence was presented to corroborate this statement.
After learning that McCormick did no t offer him a position, Newhouse sought other full-time employment. He applied w ith various food brokerage companies and sought help through the

### 5

Nebraska job service, but his search proved unsu ccessful in securing fulltime employment. Newhouse did not want to retir e, but because he was only able to obtain part-time work, he applied for and began receiving social security retirement b enefits 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 ag e discrimina tionin violation of the ADEA, 29 U.S.C. §§ 621-634, and i n violation of the Nebraska Act Prohibiting Unjust Discrimination i n 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 Nebrask a clai mwas tried to the court. The jury found in favor of Newhouse an d 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 juryalso found that McCormick's conduct was willful, and based on thi s finding, the district court awarded an additiona l $59,426.76 in liquidated damages. The district court also awarded Newhouse attorney fees in th e 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 fa ct and concluded that McCorm ick had intentionally discriminated against Newhouse
on the basis of his age. The district court awarded back pay in the amoun t of $59,42 6.76, front pay in the amount of $84,062, attorney fees in th e amount of $31,240.02, plus costs and interest on the judgment. Th e judgment provided that Newhouse was entitled only to the greater of th e cumulative awards und er either the ADEA claim or the state law claim, but not to both.

### 6 Following the entry of the judgment, McCormick filed motions fo r 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 m otions, except to conclude that it would grant a new trial as t o damag es unless Newhouse agreed to a remittitur of the jury's front pa y award o n the ADEA claim within ten days of the court's order. Newhous e timely consented to reducing the jury's front pay award to $158,365.96, an d 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 t he 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 th e Nebraska state claim. Newhouse cross appeals th e district court's refusal to grant him enhanced attorney fees.

II. Discussion A. Judgment as a Matter of Law

McC ormick moved for judgment as a matter of law at the close o f 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 wel l settled that we will not reverse a jury's verdict for insufficient evidenc e unless, af ter viewing the evidence in the light most favorable to th e verdict, we conclude that no reasonable juror could have returned a verdic t for the non-moving pa rty." 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 ag e discrimination case tried to verdict by a jury is set forth in Ryther

. Se e id. , slip op. at 5-10, 33-35. The fundamental issue is "whether [th e 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 Newhous e failed to establish that its articulated reasons for not hiring him were
a pr etext for discrimination. While McCormick offered severa l nondis criminatoryreasons for not hiring Newhouse, our review of th e eviden ce reveals sufficient evidence presented by Newhouse from which a
rea sonable jury could conclude that those reasons were not credible an d were in fact a pretext for age discrimination.

DeWit in itially said that Newhouse was not qualified, but there i s no question that he was qualified for the job, a nd McCormick even admitted this at trial. A letter from McCormick dated May 12, 1993, states tha t Soflin was hired instead of Newhouse because of Soflin's experience with Affiliated Foods, a new customer. In an affidavit, DeWit stated tha t Soflin's relationshipwith Affiliated Foods was not the primary reason he select ed Soflin; instead it was Soflin's "concepts for expandin g McCormick's position in the spice industry." (Appellant's App. at 161.) At trial, however, So flin testified that he did not present any ideas for improving the spice b usiness during the interview but presented his ideas after the ir first spring food show, about four months after he had bee n hired. Additionally, though McCormick advanced Soflin's experience with Affili ated Foods as an important factor, DeWit bypassed another olde r applic ant who had a stronger relationship with Affiliated Foods tha n 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. Becau se McCormick's "nondiscriminatory reasons" for not hiring Newhous e were various and always changing, McCormick's mo tive 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 i f disbelief is accompanied by a suspicion of mendacity) may, together with the e lements of the prima facie case, suffice to show intentiona l dis crimination.") Viewing this together with the other evidence in th e
rec ord demonstrating that DeWit consistently hired younger applicant s instead of the older ones, even when the older a pplicants were much better qualified for the position (including his own statement that he normally hires y ounger people), a reasonable jury could conclude that the rea l
reason Newhouse was not hired was his age. Having carefully considered th e entire record in this case, we conclude that the evidence was sufficient for a reasonable jury to conclude that McCormick intentionall y 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 t he ADEA. "Under § 7(b) of the ADEA , 29 U.S.C. § 626(b), a `willful' violation gives rise t o liquidated damages." Hazen Paper Co. v. Biggins , 507 U.S. 604, 606 (1993)

. Liquidated damages amount to a punitive double recovery, "intended to dete r willful conduct." Wiehoff v. GTE Directories Co rp. , 61 F.3d 588, 593 (8th Cir. 1995). An ADEA violation is "`willful' if the employer knew or showe d 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 use d to establish a violation

### 9

of the AD EA, but whether the evidence -- additional or otherwise -

- satisfies the distinct standard used for establi shing willfulness." Brown
v. Stites Concrete, Inc. , 994 F.2d 553, 560 (8th Cir. 1993) (en banc).

Considering the evidence in the ligh t most favorable to Newhouse and giving him the benefit of all favorable inferences, Parrish , 92 F.3d a t 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 "b ased 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 th e appearance that he was complying with the ADEA, though he had alread y decid ed to hire Soflin. This is not a case where the person making th e hir ing decision incorrectly but in good faith believed that the statut e permitted an age-based decision. See Hazen Paper Co. , 507 U.S. at 616

. The ju ry's determination that McCormick willfully violated the ADEA i s supported by the record.

McC ormick also contends that Newhouse's failure to mitigate hi s damage s by not actively seeking full-time employment after he bega n receiving social security benefits should reduce the back pay award and cu t off his right to front pay as a matter of law. A successful ADEA plaintif f must show that he or she attempted to mitigate d amages or face a reduction in the damage award. Parrish , 92 F.3d at 7 35. This duty to mitigate requires a plaintiff to us e reasonable diligence in finding other suitable employment and not to refus e
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 t hat Newhouse did use reasonable diligence in seeking suitable full-time employment.

### 10

He applied to various food brokerage companies l ooking 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 su pplement this income with social security retirement benefits

. Thereafter, he applied for only one other job, b ut he testified that there were no openings avai lable 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 an d 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 a n honest, good faith effort." Id. We are satisfi ed that Newhouse's efforts were reasonable and that he made a good faith, a lbeit 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 th e same reasons as set forth above, we also conclude that th e district court did not abuse its discretion by refusing to grant a ne w tria l or to alter or amend the judgment. The jury was free to believ e 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 b y choos ing front pay in lieu of reinstatement as the appropriate form o f equitable relief and by submitting the issue of front pay to the jury

. "Fr ont pay is an equitable remedy, which the district court in it s discretion may award under the ADEA to make the injured party whole. " Smith v. World Ins. Co. , 38 F.3d 1456, 1466

### 11

(8th C ir. 1994). Front pay consists of monetary damages that may b e awarde d in lieu of reinstatement in situations where reinstatement i s "impracticable or impossible." Philipp v. ANR F reight 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 tha t
were properly submitted to the jury, but the district court "retains its discreti onto consider all the circumstances in th[e] case when i t det ermines what equitable relief may be appropriate." Gibson v. Mohaw k Rubber Co. , 695 F.2d 1093, 1101 (8th Cir. 1982).

McCo rmick first argues that the district court erred becaus e reinstatement is the preferred remedy absent some evidence of hostility, and the tension caused by the litigation process alone does not mak e 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.3 d at 674. The district court rejected reinstatement, finding that the suit had st rained the relationship between Newhouse and McCormick, and i n partic ular, Mr. DeWit, who would have been Newhouse's zone manager

. (Ap pellant'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. Newho use." (Trial Tr. at 685-86, as amended by the district court , Appellee 's App. at 4.) DeWit was the McCormick representative wh o reluctantly interviewed Newhouse, made the willf ul 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 tha t reinstatement is not appropriate. Additionally, by the time of trial , Newhou se was receiving social security retirement benefits due to hi s ina bilityto secure full-time employment, rendering reinstatemen t 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 th e record in this case as a whole, the district court did not abuse it s 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 th e facts support a front pay award is no different in principle than many other damage questions that we present to jurors in an empl oyment context or outside of an employment context, and for tha t matter, it seems to me in this case entirely appropriate to submit it to the jury . . . " (Tr ial 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, th e district court also made a corollary finding that, had the court determine d the front pay issue for the ADEA claim, the cour t would have awarded front pay reduced to the present value of $84,062.

The choice between the two equitable remedies of reinstatement an d 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 th e 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 f ront-pay award necessarily invol ves some uncertainty, it is a matter of equitable relief which w e leave to the sound discretion of the District Co urt." MacDissi v. Valmont Indus., Inc
. , 856 F.2d 1054, 1060 (8th Cir. 1988). Yet we have no t directly decided whether the district court's discretion includes

### 13

the authority to submit the determination of the amount of front pay to th e jury. See Doyne , 953 F.2d at 451 (stating, "This circuit has not addresse d 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 th e first i nstance. Id. We now have the opportunity to address this issu e squarely.
Our sister circuits have expressed differing opinions on the qu estion 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 mus t initiallydetermine whether a plaintiff is entitled to front pay in lieu of reinstatement, the jury determines the amount of front pay damages. Se e 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. Credi t 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 an y analysis, merely reciting the one statement of dicta from Maxfieldin whic h the Third Circuit, without citation to any authority, stated that "th e amount of damages available as front pay is a ju ry question." 766 F.2d at 796.
To the contrary, the Second, Fourth, Seventh, and Tenth Circuit s hold that both the determination of whether front pay is appropriate and th e determination of how much front pay to award are questions for the distric t 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); Duk e v. Uniroyal, Inc. , 92 8 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 Secon d Circuit's Dominic case best enunciates the rationale.

In Dominic , the Second Circuit set forth a thorough and well-re asoned discussion, concludin g 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 intentio n "to limit jury trials to factual issues underlying claims for lega l relief." Id. at 1257 (emphasis added). Additionally, the court reasoned as follows:
There is much overlap be tween the facts relevant to whether an award o f front pay is appropriate and those relevant to th e size of the award. For example, both questions tur n in part on th e ease with which the employee will be able to find othe r employment. To divide the fact-finding responsibilities i n such circumstances would be anomalous and would ris k inconsi stent decisions. . . . [For example,] a judge migh t find fr ont 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 c ogent 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 th is case by submitting the front pay determination to the jury

. Nevertheless, we neednot 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 ADE A claim. McCormick does not challenge this factua l finding. Thus, Newhouse is entitled to $84,06 2 in front pay, as determined by the district court.
McCormick also argues that the receipt of liquidated damages cu ts off Newhouse's entitlemen t 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 equitabl e relief that may be ob tained 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 equitabl e relief.

C. Nebraska State Law Claim

McCormick argues that the district court erred in several respect s in its findings of fact, conclusions of law, and order of relief on th e state law claim. The Nebraska state courts interpret the Nebraska Ac t Prohibiting Unjust Discrimination in Employment Because of Age as requirin g the sam e proof of age discrimination as we require under the ADEA. Se e Allen v. AT&T Technol ogies, Inc. , 423 N.W.2d 424, 431 (Neb. 1988) (noting that "[a]gain, we fol low the lead of the federal courts" in evaluating an age discrimination claim). Our review of the record indicates that th e district court's findings of fact and conclusions of law are not clearly
errone ous. Although differing inferences could have arisen from th e evidence presented, the district court as fact f inder 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 aw arding att orney's fees under the state law claim. The Nebraska Act does no t expli citlyprovide for an award of attorney's fees but gives the cour t jurisdicti on to grant legal or equitable relief as the court may dee m appropriate to effect uate the purposes of the Act. Neb. Rev. Stat. § 48- 100 9. We need not decide whether Nebraska law allows an award o f attorney's fees in an age discrimination case, b ecause this issue of state law is not material to the outcome of this case. The judgment of th e district court provides that the plaintiff is en titled to the total of all amounts a warded under either the state law claim or the ADEA claim , whichever is greater -- but not both. The total judgment under the ADEA claimis greater than the total judgment under the state law claim, even if attorney's fees we re properly included under Nebraska law, an issue we do not decide. Thus, Newhouse is entitled only to the amounts awarde d under the ADEA claim.

D. Enhanced Attorney's Fees

Newhouse claims in his cross appeal that the district court abuse d its discretion by not awarding him an enhanced contingency fee. Newhouse
asser ts that an enhanced contingency fee award is necessary due to th e dif ficultyplaintiffs encounter when trying to obtain counsel fo r employment discrimina tion cases where the Nebraska Employment Opportunity Commis sion makes a finding of no cause. In support of his argument , Newhouse relies on ou r opinion in Morris v. American Nat'l Can Corp. , 952 F.2d 200, 204 (8th Ci r. 1991), rev’d , 988 F.2d 50 (1993). We reject this argument as meritless.

The Supreme Court has held that an enhancement above the lodest ar fee for contingency is not permitted. City of Burlington

### 17

v. Da gue , 505 U.S. 557, 567 (1992) (specifically referring to th e 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 simila r language of other fed eral 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 enhanceme nt of a fee award beyond the lodestar amount to reflect that a party's attorneys wer e retained on a contingency basis"). Our opinion in Morr is , on which Newhouse relies, has been reversed by this court i n 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 beyon d the lodestar amount on the basis of a contingenc y arrangement. Therefore, the d istrict court did not abuse its discretion by denying an enhance d contingency fee award in this case. III. Conclusion

We reverse the district court's decision to submit the front pa y award to the jury, and remand for entry of judgment on the district court' s corol laryfront pay finding, awarding $84,062 in front pay on the ADE A cla im. In all other respects, we affirm the judgment of the distric t 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.