Tyler v. Union Oil Co of CA

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 16, 2002
• Docket: 01-50479
• Status: Published

Opinion

REVISED SEPTEMBER 16, 2002

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-51112 Consolidated with No. 01-50479

DONALD RAY TYLER; DONALD R. POWERS; M. LEON EARLES; THOMAS L. HOUGH; DAVID BURKETT,

Plaintiffs-Appellees-Cross-Appellants,

JESSIE G. PRICE,

Plaintiff-Appellant,

versus

UNION OIL COMPANY OF CALIFORNIA, doing business as UNOCAL,

Defendant-Appellant-Cross-Appellee-Appellee.

------------------------

DONALD RAY TYLER; DONALD R. POWERS; JESSIE G. PRICE; M. LEON EARLES; THOMAS L. HOUGH; DAVID L. BURKETT,

UNION OIL COMPANY OF CALIFORNIA, doing business as UNOCAL, Defendant-Appellant-Cross-Appellee.

Appeals from the United States District Court for the Western District of Texas

August 27, 2002

Before KING, Chief Judge and GARWOOD and HIGGINBOTHAM, Circuit Judges.

GARWOOD, Circuit Judge:

These appeals and cross-appeals bring before us a variety of

issues in this suit under the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. §§ 621 et seq., and the Fair Labor Standards Act

(FLSA), 29 U.S.C. §§ 201 et seq.

The plaintiffs, former employees of Union Oil Company of

California (Unocal), filed this suit against Unocal on March 19,

1998, alleging violations of the ADEA and the FLSA. A jury trial

was held on the ADEA claims. On December 12, 1999, the jury

returned a verdict in favor of all plaintiffs on their ADEA claims.

Beginning on December 12, 1999, a bench trial was held on the FLSA

claims. On September 19, 2000, the district court granted in part

and denied in part Unocal’s motion for judgment as a matter of law

(JMOL) on the ADEA claims. The court set aside the verdict in

favor of plaintiff Jessie G. Price (Price) and rendered judgment

for Unocal on Price’s claims. It upheld the liability verdicts in

favor of each of the other plaintiffs, but lowered the jury’s

2 damage awards. Also on September 19, 2000, the district court

issued its ruling on the FLSA claims, ruling in favor of plaintiff

Donald R. Powers (Powers) and against plaintiffs Price, M. Leon

Earles (Earles), and Thomas Hough (Hough).

The plaintiffs moved for an award of attorneys’ fees and

expenses. On May 11, 2001, the district court granted in part and

denied in part that motion.

Plaintiff Price appeals the JMOL in favor of Unocal on his

ADEA claims. Unocal appeals the judgments in favor of plaintiffs

Donald Ray Tyler (Tyler), Powers, Earles, Hough, and David Burkett

(Burkett) on their ADEA claims. Plaintiffs Tyler, Powers, Earles,

Hough, and Burkett cross-appeal the damage award and the judgment

against Earles and Hough on their FLSA claims. Unocal filed a

separate appeal contesting the award of attorneys’ fees and costs.

Plaintiffs cross-appealed the amount of the fees and costs award.

The fees and costs appeal has been consolidated with the appeals on

the merits.

We affirm in part. We vacate and remand as to the amount of

liquidated damages.

Facts and Proceedings Below

For clarity, this section is divided into sub-sections, some

presenting facts generally relevant to the entire case, others

specific to particular plaintiffs or issues. Also for clarity,

the following designations are used hereinafter: The Appellees

3 will refer collectively to all the plaintiffs except Price (who

was the only plaintiff to lose on all his claims at trial). The

Plaintiffs will refer collectively to all the plaintiffs,

including Price.

1. General Background Facts

In late 1996, Unocal, an oil company, began a reorganization

of its domestic operations in the lower forty-eight states. The

reorganization resulted in a new business unit, Spirit Energy 76

(Spirit). The reorganization involved a reduction in force (RIF)

plan. Under the RIF, employees who did not get positions in

Spirit were eligible to be placed in a “redeployment pool” (the

pool), from which Unocal could choose employees for available

jobs. Employees who were laid off and placed in the pool

received, in addition to other benefits, salary for up to four

months, depending on length of service. The Plaintiffs were

eligible to receive redeployment benefits and remain on Unocal’s

payroll until April 30, 1997. Employees could also opt to

participate in Unocal’s Termination Allowance Plan (TAP), which

provided termination pay for employees displaced by the RIF in

exchange for signing a release that purported to waive

permanently all potential claims against Unocal relating to the

adverse employment decision.

At the time of the RIF, the Plaintiffs were Unocal employees

in the Permian Basin region in West Texas. Their positions, ages

4 at the time of the RIF, and their years of service at Unocal were

as follows: Price: Production Foreman over the Moss Unit, age

fifty-five, thirty-three years; Hough: Health, Environment &

Safety (HES) Coordinator in Andrews, age fifty-five, twenty-four

years; Earles: Production Technician in Andrews, age fifty-three,

twenty-two years; Burkett: Senior General Clerk in Midland, age

fifty-five, thirty-seven years; Powers: Production Clerk in

Andrews, age fifty-five, thirty-four years; Tyler: Field

Superintendent, age fifty-five, twenty-seven years.

The Appellees all ended their job assignments with Unocal on

December 31, 1996. Price ended his assignment on January 15,

1997. Tyler and Hough were officially terminated on January 31,

1997. Burkett, Earles, Powers, and Price remained on the payroll

until April 30, 1997. Each plaintiff participated in the TAP

and, after signing the required releases, received termination

pay.

Jack Schanck, age forty-five, was made president of Spirit.

As part of their attempt to show discriminatory animus, the

Plaintiffs produced, inter alia, a memorandum from Schanck, dated

March 14, 1996, which contained the following:

“Keep in mind that although you may consider that less experienced employees may not currently have as much of an impact on the company as those at higher T C P levels, their performance may actually be superior, and they may have greater technical potential.”

This memorandum was issued to managers and directed the forced

5 ranking of employees prior to the RIF. The Plaintiffs also

pointed to excerpts from a letter written by Schanck to all

employees in August 1996 which stated that Spirit Energy would be

a “lean, quick-reacting organization” that would “not be

constrained by an old Unocal way.”

The Plaintiffs produced a Unocal policy manual that advised

employees conducting a reorganization to ensure that plans

“minimize the risk that personnel decisions can be viewed as

being illegal employment discrimination” and that stressed the

need to document non-discriminatory reasons for personnel

decisions. In connection with the 1996 reorganization, Larry

Love, a Senior Resources Consultant at Unocal, prepared an

adverse impact study of the proposed RIF (the Love analysis).

The Love analysis showed that there was a possibility the RIF

would have an adverse impact correlated with age. Love submitted

his analysis to Vice President of Human Resources Peter Vincent.

2. Equitable Estoppel Issue Facts

Texas is a “deferral” state (i.e., a state with a state law

prohibiting age discrimination in employment and a state

authority to grant or seek relief from such discriminatory

practice, 29 U.S.C. §§ 626(d) and 633(b)). Conaway v. Control

Data Corp., 955 F.2d 358, 363 & n.3 (5th Cir. 1992). Under the

ADEA, in a deferral state the limitations period for filing an

age discrimination charge with the EEOC is effectively 300 days.

6 29 U.S.C. § 626(d). Thus, a Texas employee’s ADEA claims are

normally time-barred if the employee fails to file an age

discrimination charge with the EEOC within 300 days from the date

of the unlawful employment practice. Plaintiffs Tyler, Powers,

Price, Earles, and Hough filed their EEOC claims on March 9,

1998; Burkett filed his on March 13, 1998. The EEOC issued the

Plaintiffs notices of right to sue on March 19, 1998, and the

Plaintiffs filed their complaint on the same day. The Plaintiffs

do not dispute that their EEOC claims were filed outside the

applicable 300 day window. The district court held that

equitable estoppel barred Unocal from asserting a limitations

defense. The district court had previously denied earlier (pre-

verdict) motions by Unocal to dismiss the Plaintiffs’ claims as

time-barred.

The Plaintiffs testified that they believed they had signed

away all potential claims and rights under the ADEA when they

signed their release forms. Each of the Plaintiffs had signed a

release form purporting to discharge Unocal from “all claims,

liabilities, demands and causes of action” related directly or

indirectly to the termination of employment. Hough signed an

older version of the form that did not contain a specific

reference to the ADEA. The other plaintiffs signed a newer

version, drafted in 1996, that added a specific reference to the

ADEA (the 1996 Release). In 1990, the Older Workers Benefits

7 Protection Act (OWBPA), 29 U.S.C. § 626(f), amended the ADEA.

Under the OWBPA, for a release of ADEA claims to be effective,

the release must meet certain requirements, including making

specific mandatory disclosures. Blakeney v. Lomas Info. Sys., 65

F.3d 482, 484 (5th Cir. 1995). Richard Ettensohn, an in-house

attorney for Unocal and an employment law specialist, testified

that he had drafted the release language and that it did not

comply with the OWBPA. He admitted that the releases were not

effective to release the Plaintiffs’ ADEA claims. Unocal does

not dispute that the releases were not effective as to ADEA

claims.

Plaintiff Tyler testified that, in August or September 1997,

he happened to discuss the release forms when he visited with an

attorney on an unrelated matter. The attorney suggested that

Plaintiffs consult with an employment attorney to determine

whether the releases were valid. Plaintiffs met with an attorney

to discuss the matter in early 1998 and discovered that the

releases were not effective to release ADEA claims. In March

1998, on the attorney’s advice, they filed their EEOC charges.

The issue whether Unocal’s conduct induced the Plaintiffs to

refrain from filing their claims within the 300 day window was

submitted to the jury, which found in the affirmative. The

district court found that the testimony given at trial was

sufficient to support the jury’s finding. According to the

8 district court’s opinion in ruling on Unocal’s JMOL motion, the

language of the releases would have misled most laymen to believe

that they had released their ADEA claims and Unocal should have

“unmistakably understood” that Plaintiffs would have been so

misled. Thus, the district court held that Unocal was equitably

estopped from asserting the limitations defense. Unocal appeals

this ruling and argues that the ADEA claims of all Plaintiffs

were time barred.

3. The Plaintiffs’ Statistical Evidence

At trial, the Plaintiffs offered expert statistical evidence

from Dr. Blake Frank. Dr. Frank’s expert testimony was presented

to support an inference of motive for disparate treatment.

Dr. Frank is an industrial/organizational psychologist. He

testified that his analysis showed that Unocal employees over age

fifty were less likely to be promoted and more likely to be

placed in the pool. Dr. Frank also testified that his analysis

showed that the relationship between superior performance

evaluations and retention was statistically insignificant.

Unocal challenged the admissibility of Dr. Frank’s testimony

in a Daubert v. Merrell Dow Pharmaceuticals, 113 S.Ct. 2786

(1993), motion and in a motion in limine. At the close of the

Plaintiffs’ case and again after presentation of all the

evidence, Unocal made Rule 50 motions for JMOL. After the

verdict was returned, Unocal filed its post-verdict JMOL motion.

9 The district court considered Unocal’s objections and overruled

them. On appeal, Unocal challenges the court’s finding that this

statistical evidence was admissible.

4. Price

Price appeals the district court’s holding, in its JMOL,

that he did not prove that he suffered an adverse employment

action. Prior to the December 1996 RIF, Price was employed as a

production foreman at Unocal’s South Cowden location known as the

Moss Unit. Don Umsted, age 39, served as production foreman at

the North Cowden location. During the RIF, Unocal consolidated

these two locations into a single unit with a single production

foreman. In mid-December 1996, field superintendent Diane Van

Deventer, Price’s supervisor, informed Price that Umsted had been

chosen to be production foreman over the new combined unit. She

further informed Price that he had been reassigned to work as an

HES coordinator, with the same salary and benefits. Price had no

previous formal experience in HES and asserts that he would have

lost seniority and supervisory responsibility.1 Price expressed

his dissatisfaction with the reassignment, but agreed to take the

HES position. Price testified that he was discouraged by the

amount of training he needed for the new position. After working

for a few days, he resigned and asked for the redeployment

1 In his brief, Price also asserts that he would have lost salary in the new position. But Price testified that he was told his salary would remain the same.

10 package. On his unemployment compensation form, Price noted that

he “quit – I volunteered for a package and was accepted.” Price

testified that he viewed the reassignment as a deliberate attempt

to humiliate him into quitting.

Price produced evidence that, as production foreman, he had

received positive evaluations from his supervisors, including Van

Deventer. The decision to name Umsted as the production foreman

for the new combined unit was made by D.J. Ponville, Unocal’s new

Onshore Operations Manager, with input from Van Deventer. In

November 1996, Ponville had chaired a meeting with field

superintendents Van Deventer, Craig Van Horn, and Greg

Leyendecker to discuss filling positions, including production

foreman positions. Ponville and other Unocal decision-makers

testified that they made personnel decisions on factors other

than age. There was testimony that Van Deventer had made age-

related remarks to Price and others on several occasions.2

Evidence at trial, including Van Deventer’s own testimony,

indicated that Van Deventer was heavily involved in personnel

2 Plaintiff Earles testified that Van Deventer told him, in the mid 1990s, that “she didn’t think that anyone would be able to retire with Unocal at that point in time” and that he understood this to mean that Unocal would push senior employees into early retirement. Earles also testified that Van Deventer often referred to Price as “the old man” or a “senior citizen” and that she had referred to “the geriatric group”. Price also testified that she had referred to him as “the old man.” Powers testified that, when he asked Van Deventer whether she would be the office boss after the reorganization, she replied “You old son-of-a-bitch, your ass will be gone before that ever happens.”

11 decisions.

With regard to Price, the district court found that it did

not need to consider Price’s evidence of discriminatory intent

because Price had not suffered an adverse employment action. He

was not discharged. He was transferred to a different position

with the same salary and benefits and then voluntarily decided to

resign rather than learn new skills. The district court found

that Price’s reassignment was the sort of business decision,

typical in a reorganization, that the courts will not second

guess.

5. Hough

In the district court, Unocal asserted that plaintiff Hough

did not suffer an adverse employment action and that he

voluntarily elected to leave Unocal. Unocal argued that Hough

was offered a job and declined it. Hough argued that any offer

made to him was so vague and uncertain that it did not qualify as

a real job offer.

Hough was the Health, Environment, & Safety (HES)

coordinator in South Andrews. Hough testified that, on the

morning of December 11, 1996, field superintendent Van Horn came

to his office “to tell me that I would have a job with Unocal but

it would no longer be in HES.” Van Horn told Hough that he was

uncertain as to what the job would be, how much it would pay, or

where it would be located. Van Horn said it was likely that it

12 would be some type of technician job in Midland and pay less than

Hough was earning as an HES coordinator. Van Horn requested a

decision by noon that day, but extended the deadline to two

o’clock p.m. That morning, Hough conferred with Steve Gregory,

the head of HES at Unocal, about the availability of other HES

positions. Gregory informed him that none were available at that

time, but he would be notified if one became available. Hough

testified that he ultimately declined Van Horn’s offer because of

the uncertainty regarding what the job, salary, and location

would be. Hough was also concerned about losing a significant

percentage of his retirement if he accepted the new position.

Hough took the redeployment package instead. Hough further

testified that he felt he should have been offered the HES

position that opened when Price left and that his former duties

were assigned to a person he considered less qualified than

himself.

The district court found that there was sufficient evidence

to permit the jury to find that Van Horn did not actually make a

firm employment offer to Hough.

6. Earles

Unocal asserted that plaintiff Earles also declined an offer

of employment and thus did not suffer an adverse employment

action.

Earles was a production technician. On November 19, 1996,

13 Van Deventer notified Earles, by letter, that he was being placed

in the redeployment pool. The letter stated that he might still

be offered a position, but that his continued employment was

doubtful. It said that Earles would be notified of a final

decision by December 20, 1996.

Earles testified that, at that time, he asked Van Deventer

if she knew of any available positions and she said that she did

not. Earles spoke to Gary Dupriest, the South Permian Asset

Manager, and told Dupriest that he had an offer from another

company. Earles asked Dupriest to level with him about his

chances of being offered another position at Unocal and Dupriest

advised him to try to find something outside of Unocal.

Later, Van Horn contacted Earles by telephone. Earles and

Van Horn offered conflicting testimony about the conversation.

Earles testified that Van Horn told him “That he didn’t really

have anything to offer me, but if there was a job, and he wasn’t

sure what it was going to be . . . it might be HES.” According

to Earles, Van Horn further said that any possible job would

“almost certainly involve some salary compression” and Van Horn

asked Earles if he would have any interest. Van Horn demanded an

answer before he hung up the telephone. Van Horn testified that

he did not want to make Earles ineligible for retirement benefits

by making him a formal offer of employment before knowing whether

Earles was interested in the new position, so he contacted Earles

14 to gauge his interest. Van Horn testified that he told Earles

that an HES position was being vacated by Hough in Andrews and

Van Horn asked Earles if he would be interested in the position

if it were offered to him. Van Horn testified that Earles asked

only what the job entailed and where he would be located, and did

not inquire into the salary. According to Van Horn, Earles told

him that he had a foreman position with another oil company and

that he was not interested in the Unocal HES job. Van Horn

reported to Ponville that he did not extend a formal employment

offer to Earles because Earles was not interested in the possible

offer.

The district court determined that, since several witnesses

testified almost no one was hired out of the redeployment pool,

sufficient evidence was presented to allow the jury to conclude

that placement in the pool constituted a discharge. Unocal does

not challenge that determination. The court concluded that the

jury could find that the phone call from Van Horn did not

constitute a true offer of employment and that Earles, for all

practical purposes, was terminated by being placed in the pool

against his will.

7. Burkett

Unocal asserts that Burkett was terminated because of a good

faith mistake, not because of age discrimination.

Burkett was a senior general clerk in Midland with thirty-

15 seven years of experience at Unocal. In December 1996, Burkett

was given the redeployment package. Unocal does not dispute that

Burkett suffered an adverse employment action, but argues that

Ponville had a mistaken belief that Burkett wanted the package

rather than reassignment. Burkett contends that he made it clear

to Ponville and other decision-makers that he wanted any job in

the new Unocal organization.

Burkett testified that, in November 1996, Ponville held a

meeting of the clerical staff and told them that the RIF would

reduce the number of clerical jobs in the organization.

According to Burkett, Burkett then approached Van Deventer and

told her that he would take any clerical position that was

available. On December 11, Ponville gave Burkett a redeployment

package. Burkett testified that he met with Dupriest after he

received the package and told him that he needed a job and would

take any position available. Ponville, Dupriest, and Van

Deventer all testified that they thought Burkett wanted the

package rather than reassignment.

Before December 11, Unocal had offered a clerical position

to Tammy Kennedy, who turned it down. According to Burkett,

Unocal never offered this position to Burkett or to co-plaintiff

Powers. Burkett presented evidence that Unocal had retained four

younger employees with less experience in the Permian Basin area

– Tamara Powers (age 37), Amanda Armstrong (24), and Tina Carter

16 (31). The district court determined that this evidence was not

probative of age discrimination because, although these employees

were clearly younger and less experienced, there was insufficient

evidence that they were actually less qualified that Burkett.

Nevertheless, the court held that Burkett had presented

sufficient evidence that Unocal’s mistake defense was a mere

pretext for discrimination.

8. Damages

The district court reduced the back pay damages awarded by

the jury. The jury had not reduced the gross back pay amount

awarded by the amount of the interim wages that the Appellees had

earned since their employment with Unocal ended. The Appellees

conceded that this adjustment was appropriate and required by

law. The district court denied Unocal’s request to offset the

damage awards by the amount of the termination allowances that

the Appellees received in exchange for signing the releases.

Unocal does not challenge that holding on appeal.

The district court entered final judgment on September 19,

2000. The court extended the back pay period from the date the

verdict was returned – December 21, 1999 – to May 25, 2000. As

of May 25, Unocal and Spirit ceased to exist in the Permian

Basin. Unocal’s Permian Basin assets were sold as part of a

transaction that resulted in the creation of a new company, Pure

Energy Resources, Inc. (Pure). Unocal terminated all of its

17 employees in the region on or before May 25, 2000. According to

Unocal, approximately thirty percent of those terminated were not

hired into Pure. Unocal admitted that it was possible that some

or all of the Plaintiffs would have been hired by Pure if they

had still been employed by Unocal. The Appellees note that

Unocal owns sixty-five percent of Pure and controls its board of

directors. The district court held a hearing and heard evidence

regarding the cessation of Unocal’s operations and the creation

of Pure. The district court held that, because the Appellees

would have been terminated by Unocal by May 25, that date was the

appropriate cut-off date for the extension of back pay awards.

The Appellees challenge this holding on appeal.

The district court denied the Appellees’ request for front

pay awards. Reinstatement was not a feasible remedy since some

of the Appellees’ positions were eliminated during the RIF and

the rest were eliminated when Unocal ceased operations in the

Permian Basin on May 25, 2000. Thus, the district court found,

any front pay award would be purely speculative and require the

court to guess whether each plaintiff would have been hired by

Pure. The Appellees appeal the denial of front pay.

The district court awarded each of the Appellees $2,500 in

liquidated damages. To receive liquidated damages under the

ADEA, a plaintiff must prove that the violation was willful. 29

U.S.C. § 626(b). The district court found that there was

18 sufficient evidence to support the jury finding that Unocal’s

violations were willful. Specifically, the court found that the

evidence that Unocal ignored the in-house adverse impact study

conducted by Love, the evidence of age-based remarks by Van

Deventer, and the secrecy surrounding Unocal’s decision-making

process were sufficient to permit the jury to infer willfulness.

The district court found that, though this evidence of

willfulness was sufficient, it was still sparse. Thus the court

limited the liquidated damages amount to $2,500 per Appellee. On

appeal, Unocal argues that there was insufficient evidence of

willfulness and thus there should have been no liquidated damages

award. The Appellees argue that, once the district court had

found the evidence sufficient to support a willfulness finding,

liquidated damages were mandatory in an amount equal to the back

pay award.

9. FLSA Claims

Plaintiffs Price, Hough, Earles, and Powers asserted FLSA

claims for unpaid overtime compensation. The district court

severed these claims from the ADEA claims and held a bench trial

on the FLSA claims. The court found that production foreman

Price, HES coordinator Hough, and production technician Earles

all fell within the administrative exemption to the FLSA. Under

the administrative exemption, employees in “bona fide executive,

administrative, or professional” positions are not statutorily

19 entitled to overtime pay. 29 U.S.C. § 213(a)(1). The district

court found that plaintiff Powers, who worked as a production

clerk, was non-exempt and thus entitled to an award of $7,700.32

for unpaid overtime. Unocal does not challenge the award to

Powers, and Price does not challenge the determination that he

was an exempt employee. However, Hough and Earles each challenge

the ruling that they were exempt employees.

10. Attorneys’ Fees and Expenses

In their motion for fees and expenses, the Plaintiffs

requested $946,366.12 in attorneys’ fees. They arrived at this

figure as follows: $559,574.75 for 3,257.95 attorney hours billed

at rates varying from $100 to $225 per hour plus $71,336.00 for

1,115.20 hours of legal assistant work billed at rates from $30

to $80 per hour yielded a sum of $630,910.75. The Plaintiffs

urged that this sum be enhanced by fifty percent, pursuant to the

twelve factors listed in Johnson v. Georgia Hwy. Express, Inc.,

488 F.2d 714, 717-19 (5th Cir. 1974), for a total lodestar amount

of $946,366.12. Unocal argued that the Johnson enhancement was

improper and that fifteen percent of the Plaintiffs’ billing

could be attributed to the unsuccessful claims.

The district court found that the twelve Johnson factors did

not warrant enhancement of the lodestar figure. The court agreed

with Unocal that a fifteen percent reduction was proper due to

the limited nature of the Plaintiffs’ success. The court

20 accepted the Plaintiffs’ contention that the $630,910.75 figure

already included about a ten percent reduction from the hours

actually billed. Reducing it by a further five percent, the

court set the lodestar fee figure at $590,000.

The court agreed with Unocal that the Plaintiffs could not

recover $75,424.81 attributable to expert witness fees. Thus the

court awarded the Plaintiffs $45,841.94 in trial costs, rather

than the $121,266.75 the Plaintiffs had requested. The court

also awarded the Plaintiffs their requested fees and costs for

preparation of the motion and for anticipated appeal. The total

fees and costs award was $694,141.94.

On appeal, Unocal argues that its successful appeal on the

merits would render the Plaintiffs ineligible to recover any fees

and, in the alternative, that the total fees and costs award set

by the district court was appropriate. The Plaintiffs ask this

court to grant a delay enhancement and appeal the district

court’s holding that expert witness fees are not recoverable.

Discussion

I. Standards of Review

Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144 (5th Cir.

1995), describes the general standard of review for a JMOL when

the defendant moved for JMOL both before and after the verdict:

“[J]udgment as a matter of law is appropriate if the facts and inferences point so strongly and overwhelmingly in favor of one party that a reasonable jury could not have concluded that the ADEA was violated. A mere scintilla of evidence is

21 insufficient to present a question for the jury. There must be a conflict in substantial evidence to create a jury question. . . . [T]he district court's judgment should be reversed only if the facts and accompanying inferences would not permit reasonable people to conclude that” the ADEA was violated. Id. at 148 - 49 (internal citations omitted).

See also Boeing Co. v. Shipman, 411 F.2d 365, 374 - 75 (5th Cir.

1969) (en banc); Fed. R. Civ. P. 50(a).

“The district court's determination of attorney's fees is

reviewed for abuse of discretion, and the findings of fact

supporting the award are reviewed for clear error.” Shipes v.

Trinity Industries, 987 F.2d 311, 319 (5th Cir. 1993).

Specific considerations related to the standard of review

for particular questions arising in this appeal are noted below

as appropriate.

II. Equitable Estoppel

Unocal challenges the district court’s holding that

equitable estoppel saved the Plaintiffs’ ADEA claims from being

time-barred. We affirm the district court on this issue.

There is no dispute that the Plaintiffs failed to file their

discrimination charges with the EEOC within 300 days from the

date of the allegedly unlawful employment practice and that their

ADEA claims would be time-barred unless equitable estoppel or

equitable tolling operated to save them.3

3 Because Texas is a “deferral” state, see Conaway, 955 F.2d at 363 & n.3, under the ADEA, the limitations period for filing an age discrimination charge with the EEOC is 300 days, 29 U.S.C. § 626(d).

22 “The EEOC filing requirement functions as a statute of

limitations rather than a jurisdictional prerequisite. . . . The

filing deadline is thus subject to equitable modification, i.e.

tolling or estoppel, when necessary to effect the remedial

purpose of ADEA.” Rhodes v. Guiberson Oil Tools, 927 F.2d 876,

878 (5th Cir. 1991) (Rhodes I) (internal citations omitted).

The doctrine of equitable estoppel “may properly be invoked when

the employee's untimeliness in filing his charge results from

either the employer's deliberate design to delay the filing or

actions that the employer should unmistakably have understood

would result in the employee's delay.” Clark v. Restistoflex

Co., 854 F.2d 762, 769 (5th Cir. 1988) (internal quotation marks

omitted) (emphasis added).

The equitable estoppel inquiry involves questions of fact

and law. Questions such as whether the employer misled the

employee are questions of fact and determinations by the trier of

fact are reviewed for clear error. See Rhodes I, 927 F.2d at

880; Clark, 854 F.2d at 769. The applicability of equitable

estoppel to the facts is a question of law that this court

reviews de novo. Rhodes I, 927 F.2d at 881. Equitable estoppel

“does not hinge on intentional misconduct on the defendant's

part. Rather, the issue is whether the defendant's conduct,

innocent or not, reasonably induced the plaintiff not to file

suit within the limitations period.” McGregor v. Louisiana State

23 Univ. Bd. of Supervisors, 3 F.3d 850, 865 - 66 (5th Cir. 1993).

The district court correctly concluded that the evidence was

sufficient to support the jury’s finding that Unocal’s conduct

induced Plaintiffs from timely filing their claims.4 Ettensohn,

an in-house attorney for Unocal and an employment law specialist,

testified that he prepared the language used in the 1996 Release.

He also testified to his belief that the releases signed by the

Plaintiffs specifically referenced age discrimination claims.

Ettersohn admitted that the releases were not actually effective

to release the ADEA claims because they did not fully comply with

the OWBPA’s requirements. But the release language could easily

suggest to a layman that all ADEA claims had been effectively

waived. They state affirmatively that Unocal is discharged from

“all claims, liabilities, demands and causes of action.” With

the exception of the release signed by Hough, all the release

forms specifically referenced the ADEA as one type of claim being

released. (The release signed by Hough expressly purported to

release all claims, which would include ADEA claims.) The

Plaintiffs testified that they did in fact believe that they had

signed away all potential claims and rights under the ADEA.

Plaintiff Tyler testified that he only began to think otherwise

4 The jury instruction on this issue were as follows: “For each of the following plaintiffs, do you find that the defendant’s conduct induced him to refrain from filing his claim with the EEOC within 300 days of the alleged unlawful practices?” The jury answered “yes” with regard to each plaintiff.

24 when he happened to mention the releases to an attorney in August

or September 1997. As the district court found, the evidence

supported a finding that Unocal should have “unmistakably have

understood,” that the releases would mislead the Plaintiffs in

this way.5

III. Admission of the Plaintiffs’ Statistical Evidence

We apply an abuse of discretion standard when reviewing a

trial court’s decision to admit or exclude expert testimony.

Kumho Tire Co. Ltd. v. Carmichael, 119 S.Ct. 1167, 1176 (1999).

The district court’s ruling will be sustained unless manifestly

erroneous. Boyd v. State Farm Ins. Cos., 158 F.3d 326, 331 (5th

Cir. 1998).

Unocal attacks the statistical evidence presented by Dr.

Frank on five specific grounds: (1) the statistical groupings;

(2) assumptions that terminations were involuntary; (3)

unreliable data; (4) failure to control for factors other than

age; (5) use of age as a continuous variable; and (6) Unocal’s

own statistical analysis does not indicate discrimination.6

5 The jury charge did not ask for a specific finding as to what Unocal “unmistakably understood.” But Unocal did not object to the form of the jury question on equitable estoppel. The district court was entitled to make the finding on this issue in light of the jury’s finding that each plaintiff was induced from timely filing his claim. See Fed. R. Civ. P. 49(a). 6 Unocal’s objections to the statistical evidence were adequately preserved. Among other things, the district court granted a running objection to Dr. Frank’s testimony.

25 Under the abuse of discretion standard, the district court

did not commit manifest error in admitting Dr. Frank’s testimony.

As the district court noted, many of Unocal’s arguments go to the

weight of Dr. Frank’s testimony rather than to its admissibility.

Some of Unocal’s arguments are simply without merit.

Unocal’s argument that Dr. Frank’s testimony should be

excluded because his statistical groupings compared employees

over fifty with those under fifty, rather than comparing those

over forty with those under forty, is without merit. Although

the ADEA protects employees over the age of forty, this court and

the Supreme Court have recognized that the relevant age groupings

for a particular ADEA case will vary by the circumstances of the

case. See O’Connor v. Consolidated Coin Caterers Corp., 116

S.Ct. 1307, 1310 (1996) (fact that one person in the ADEA

protected class has lost out to another person in the protected

class is not determinative as long as the person lost out because

of his age); Fields v. J.C. Penney Co., Inc., 968 F.2d 533, 536 &

n.2 (5th Cir. 1992) (per curiam) (ADEA plaintiff may prove prima

facie case by showing he was replaced by someone younger, even if

replacement was within the protected class); Bienkowski v.

American Airlines, Inc., 851 F.2d 1503, 1506 (5th Cir. 1988)

(same). In the instant case, each of the Plaintiffs was over age

fifty at his termination and each plaintiff who was replaced was

replaced with an employee under age fifty.

26 Unocal’s argument that Dr. Frank improperly counted as

“terminated” all employees who received the redeployment package

is without merit. There was sufficient evidence that almost no

one who was placed in the redeployment pool was rehired and that

placement in the pool was effectively equivalent to termination.

Under the evidence here, Unocal’s objection that Dr. Frank

created his own database, which was unreliable, goes to probative

weight rather than to admissibility. Dr. Frank compiled his

database from documents provided by Unocal during discovery.

Unocal did not show that Dr. Frank’s compilation of the data

provided him was itself unreliable. Cf. Munoz v. Orr, 200 F.3d

291, 301 (5th Cir. 2000) (“Both the determination of reliability

itself and the factors taken into account are left to the

discretion of the district court consistent with its gatekeeping

function under Fed. R. Evid. 702.”). Unocal instead attempts to

show that the underlying data – provided by Unocal -- was itself

unreliable. This is an issue that Unocal could – and did – raise

in cross-examination.

Unocal asserts that Dr. Frank failed to control for factors

other than age. But Dr. Frank did control for other relevant

variables. Dr. Frank ran tests showing that the correlation

between employee performance evaluations and retention was

statistically insignificant. Dr. Frank also controlled for

geographical location by confining his analysis to the Permian

27 Basin Asset Group. Omission of variables may render an analysis

less probative than it might otherwise be, but, absent some other

infirmity, an analysis that accounts for the major factors will

be admissible. Bazemore v. Friday, 106 S.Ct. 3000, 3009 (1986)

(Brennan, J., joined by all other members of the Court,

concurring in part).

Unocal criticizes Dr. Frank’s use of age as a continuous

variable. The tests run using age as a continuous variable were

far from the only tests Dr. Frank performed on the data. Cf.

Koger v. Reno, 98 F.3d 631, 636 - 37 (D.C. Cir. 1996) (regression

analysis that was the sole evidence presented in support of age

discrimination and which used age as a continuous variable was

not legally relevant). Even if flawed, these tests do not render

Dr. Frank’s entire analysis irrelevant. Further, Dr. Frank

verified that the ages of Unocal’s employees were normally

distributed.

Finally, Unocal asserts that its own statistical analysis,

performed by Dr. Baxter, does not support an inference of

discrimination. The district court, acting within its

discretion, found that Dr. Baxter’s opinion was not conclusive

enough to discredit entirely Dr. Frank’s methodologies. Cf.

Daubert v. Merrell Dow Pharms., 113 S.Ct. 2786, 2795 (1993) (it

is the trial judge’s function to ensure that expert testimony is

reliable). Given that finding, Dr. Baxter’s conflicting opinion

28 goes to the weight of Dr. Frank’s testimony, not its

admissibility.

The district court did not abuse its discretion by admitting

Dr. Frank’s statistical evidence.

IV. Price’s ADEA Claim

We agree with the district court that Price did not produce

sufficient evidence of an adverse employment action to support

the jury’s award of damages on his ADEA claim.

The district court held that Price “did not establish a

prima facie case.” Price relies on several cases, e.g., U.S.

Postal Service Bd. of Govs. v. Aikens, 103 S.Ct. 1478 (1983);

Russell v. McKinney Hospital Venture, 235 F.3d 219 (5th Cir.

2001), to argue that the prima facie case is no longer relevant

after a case has gone to the jury. These cases on which Price

relies are distinguishable because they involved elements of the

prima facie case that went to proving discrimination, not injury.

Aikens, 103 S.Ct. at 1481 (ultimate question was discrimination

vel non); Russell, 235 F.3d at 224 (issue was plaintiff’s proof

of discrimination). The McDonnell Douglas evidentiary framework

is primarily concerned with the plaintiff’s initial burden when

attempting to prove discrimination by circumstantial evidence.

Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2105

(2000). A plaintiff who proves discrimination must still prove

injury to recover damages. Armstrong v. Turner Indus., 141 F.3d

29 554, 560 (5th Cir. 1998) (to recover, a discrimination plaintiff

will have to prove a cognizable injury, usually an adverse

employment decision).

It is clear from the district court’s discussion that the

district court found that the employment actions Price

established – his transfer and subsequent resignation – did not

amount to adverse employment action. Adverse employment action

is part of the prima facie showing in an ADEA case because that

is normally an element that the plaintiff will have to prove in

order to receive a remedy under the ADEA. See 29 U.S.C. §

623(a)(1) (under ADEA, it is unlawful for employer “to fail or

refuse to hire or to discharge any individual or otherwise

discriminate against any individual” because of age); Armstrong,

141 F.3d at 560. The money damages awarded to Price by the jury

verdict were compensatory damages for the loss of his job with

Unocal. To support this verdict, Price had to prove that his

termination was a cognizable injury caused by the age

discrimination. See Armstrong, 141 F.3d at 562 (when plaintiff

did not identify any cognizable and compensable injury caused by

the allegedly discriminatory act, he could not recover).

When, as here, a plaintiff resigned, he may satisfy the

injury element by proving constructive discharge. See Faruki v.

Parsons S.I.P., Inc., 123 F.3d 315, 319 (5th Cir. 1997). Because

Price was transferred to another position and then resigned, a

30 constructive discharge analysis is appropriate for determining

whether Price suffered an adverse employment action. Price did

not request a constructive discharge jury instruction and Price

did not produce evidence sufficient to support an implied finding

of constructive discharge.

“To prove constructive discharge, a plaintiff must establish

that working conditions were so intolerable that a reasonable

employee would feel compelled to resign.” Id.

“Stated more simply, [the plaintiff’s] resignation must have been reasonable under all the circumstances. Whether a reasonable employee would feel compelled to resign depends on the facts of each case, but we consider the following factors relevant, singly or in combination: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement on terms that would make the employee worse off whether the offer was accepted or not.” Barrows v. New Orleans S.S. Ass’n., 10 F.3d 292, 297 (5th Cir. 1994).

Price did not produce evidence that his transfer from

production foreman to HES coordinator created conditions so

intolerable that a reasonable employee would feel compelled to

resign. Price testified that the HES job was to be at the same

salary.7 Although Price asserts that the HES job was a demotion,

7 On appeal, Price asserts that he would have lost salary. However, Price testified that he understood “[t]he salary was to be the same.” He went on to state, “I also felt like that I probably wouldn’t get any more raises.” Price offered no testimonial or other evidence to prove that his salary was lower or that his

31 there was no evidence presented sufficient for a jury to reach

this conclusion. Cf. Sharp v. City of Houston, 164 F.3d 923, 933

(5th Cir. 1999) (transfer may be a demotion if the new position

proves objectively worse). The HES job was not menial or

degrading. Hough, Price’s co-plaintiff and a former HES

coordinator, provided testimony suggesting that the

responsibilities of an HES coordinator, though different in kind

from those of a production foreman, were at least comparable in

degree. Hough testified that he worked as a production foreman

from 1979 to 1990. He then moved over to work in HES. Hough

testified, “[B]eing an HES is quite different than being a

production foreman. Grant you, a production foreman has to know

a lot of things as far as regulations of environmental laws and

safety regulations, but being responsible for all the individuals

in the area where you work, it’s a whole lot different.” There

is no evidence that Price’s new position was objectively worse

than his old one.

Although Price testified that Van Deventer made age-based

comments to him at various times, there was no evidence of

anything approaching “badgering” during the HES job. Price was

not specific regarding the dates of Van Deventer’s comments, so

it cannot be simply assumed that they occurred during the HES

concern about a lack of future raises was anything but speculative.

32 job, which Price only held for a few days. The only evidence

Price presented that the HES job was intolerable was his

testimony as to his subjective belief that he was set up to fail

in this job which would require him to get new training. That

does not meet the objective “reasonable employee” standard

articulated in Barrows. See Guthrie v. J.C. Penney Co., Inc.,

803 F.2d 202, 207 (5th Cir. 1986).

We affirm the district court’s holding that the evidence did

not support an award of damages to Price.

V. The Appellees’ ADEA Claims

With regard to plaintiffs Hough, Earles, and Burkett,

Unocal’s argument asserts particularized non-discriminatory

reasons for their terminations: Unocal asserts that Hough and

Earles were offered new jobs and voluntarily chose to take the

severance package instead and that Burkett was placed in the

redeployment pool because of a good faith mistake. Unocal argues

that there was insufficient evidence to prove that these three

plaintiffs were discriminated against based on age. Unocal’s

arguments regarding Hough and Earles also raise issues as to

whether they actually suffered adverse employment actions.

A. Sufficiency of Discrimination Evidence

When the defendant employer comes forward with evidence of a

legitimate, non-discriminatory reason for an adverse employment

action, the presumption of discrimination raised by the

33 plaintiff’s prima facie case drops out and the plaintiff may

attempt to prove discrimination by offering evidence that the

employer’s stated reason is pretextual. Reeves, 120 S.Ct. at

2106. The burden of persuasion at all times remains on the

plaintiff. Id. In a disparate treatment case, such as the case

at bar, a plaintiff must produce sufficient evidence to rebut a

showing by the employer that there was a legitimate, non-

discriminatory reason for discharging a particular employee. See

Bauer v. Albemarle Corp., 169 F.3d 962, 968 (5th Cir. 1999). In

the instant case, Hough, Earles and Burkett produced sufficient

evidence for a reasonable jury to conclude that Unocal’s asserted

reasons were pretextual and that the real reason was intentional,

age-based discrimination. See Reeves, 120 S.Ct. at 2109 (“[A]

plaintiff's prima facie case, combined with sufficient evidence

to find that the employer's asserted justification is false, may

permit the trier of fact to conclude that the employer unlawfully

discriminated.”).

In November 1996, Ponville, Unocal’s new Onshore Operations

Manager, chaired a several-hour long meeting with field

superintendents Van Deventer, Van Horn, and Leyendecker at which

decisions affecting the Plaintiffs were made. All four of the

meeting participants were in their thirties. Although Ponville

testified that he did not really know any of the Plaintiffs

34 except Tyler,8 he asserted generally that employment decisions

about who would fill the positions in the reorganized business

unit were based on employee performance.

Van Horn testified that he did not recall any discussion

regarding any of the Plaintiffs at the November meeting. In her

testimony, Van Deventer acknowledged that she participated in the

meeting but was not asked to go into detail with regard to

discussions at the meeting. Ponville admitted that he did not

retain any documentation reflecting reasons for employment

decisions resulting from the meeting.

With the exception of Tyler, Ponville did not state any

specific performance-based reasons why any of the individual

Plaintiffs were not assigned positions in the reorganized unit.

With regard to Tyler, Ponville provided some specific comparisons

between Tyler’s performance as a field superintendent and that of

Van Horn, Van Deventer, and Leyendecker.9 Ponville admitted that

8 Ponville testified that he had seen Burkett in the office and that he may have participated in a meeting with Hough. 9 In its reply brief, Unocal argues for the first time that there was insufficient evidence of age discrimination against Tyler. Unocal Red Brief at 46. In its initial brief to this court, Unocal’s only assignments of error with respect to the judgment in favor of Tyler were the claims that the entire suit was time-barred and that, in the alternative, there was insufficient evidence to support the willfulness finding. Only for Hough, Earles, and Burkett did Unocal initially assert that there was conclusive evidence of legitimate, non- discriminatory reasons for the adverse employment actions. Unocal’s argument that Tyler did not prove age discrimination came too late. “This Court will not consider a claim raised for the first time in a reply brief.” Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

35 Tyler was ranked ahead of Van Horn in the forced ranking and that

Ponville had never reviewed Tyler’s performance appraisals in

detail or spoken with Tyler’s supervisors about Tyler. Following

the meeting, four former field superintendent positions were

consolidated into three positions, which were filled by Van Horn,

Van Deventer, and Leyendecker. Van Horn took over the field that

had previously been under Tyler.

As evidence of Unocal’s policies, the Plaintiffs proffered

Unocal’s Human Resources Policies and Procedures manual. The

manual included, inter alia, a statement that “planning [for a

RIF] should include . . . Documentation of non-discriminatory

reasons for adverse personnel decisions.” Ponville testified

that he was aware that Unocal policy called for keeping such

documentation. Ponville admitted that, the policy

notwithstanding, he failed to keep documentation of non-

discriminatory reasons for adverse decisions. Ponville shredded

whatever documentation he had. Ponville further conceded that

the human resources department would have no way of knowing the

reasons for the adverse personnel decisions.

An employer’s conscious, unexplained departure from its

usual polices and procedures when conducting a RIF may in

appropriate circumstances support an inference of age

discrimination if the plaintiff establishes some nexus between

36 employment actions and the plaintiff’s age. See EEOC v. Texas

Instruments, 100 F.3d 1173, 1182 (5th Cir. 1996); Moore v. Eli

Lilly Co., 990 F.2d 812, 819 (5th Cir.), cert. denied, 114 S.Ct.

467 (1993). Here, such a nexus was established. Ponville

testified that he based his decisions on performance, yet he

testified that he was not familiar with Hough, Earles and Burkett

and their job performance. Hough, Earles and Burkett introduced

evidence that they had received positive performance appraisals

in recent years. Cf. Risher v. Aldridge, 889 F.2d 592, 598 - 98

(5th Cir. 1989) (plaintiff failed to allege a nexus with failure

to consider written performance appraisals when employer

explained why the written appraisals were unreliable and that

decision-maker was personally familiar with plaintiff’s

performance). Ponville knew that he was supposed to keep

documentation of the reasons for adverse employment decisions,

yet he did not do so.

Hough, Earles and Burkett’s evidence of satisfactory

performance, Ponville’s failure to keep documentation and his

admission that he was not familiar with Hough, Earles and Burkett

and their job performance, were sufficient to permit an inference

that the performance rationale was a pretext for intentional

discrimination in the conduct of the RIF. But, Hough, Earles,

and Burkett still had to rebut Unocal’s evidence of

particularized, non-discriminatory reasons for their discharges.

37 B. Hough and Earles

With regard to Hough and Earles, Unocal’s position is that

each of these plaintiffs chose the termination package after they

were approached by Van Horn about whether they were interested in

reassignment and expressed to Van Horn that they were not

interested. The testimony concerning the conversations with Van

Horn conflicted. Both Hough and Earles testified that, in their

respective conversations with Van Horn, Van Horn was vague as to

what the new positions would entail and what they would pay.

According to these plaintiffs’ testimony, the only thing Van Horn

was certain about was that the new jobs would likely pay less

than their old jobs. Hough did indicate that Van Horn definitely

said that he would have a job. Earles testified that Van Horn

told him that there was only a possibility that he would have a

job. Van Horn demanded to know whether Earles was interested

before he hung up the telephone. Hough testified that Van Horn

demanded an answer within a few hours, even though Van Horn could

not tell Hough what or where the job would be.

The jury could reasonably have chosen to believe the

plaintiffs’ version of the Van Horn conversations and could infer

that any “job offers” were so indefinite that they were not bona

fide and did not present Hough or Earles with a real choice

between accepting termination or continued employment. Unocal

does not dispute that, at least, new jobs for these plaintiffs

38 would have involved salary compression. An act affecting

compensation is itself a type of adverse employment action that

is actionable in a discrimination case. See Mattern v. Eastman

Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997). The testimony that

Van Horn pressured these plaintiffs to make quick decisions about

these questionable uncertain job “offers” was bolstered by

Earles’s testimony that Van Deventer had admitted that Unocal had

such a practice of pressuring older employees into early

retirement. Cf. Guthrie v. J.C. Penney Co., 803 F.3d 202, 208

(5th Cir. 1986) (jury could infer that repeated inquiries about

plaintiff’s retirement plans were intentional harassment).

The jury could rationally infer that Hough and Earles

suffered adverse employment actions because evidence was

presented that these plaintiffs were not extended bona fide

offers but were offered only a “choice” between uncertain

continued employment, in unspecified jobs at unspecified but

lower pay, and accepting termination benefits. We affirm the

district court’s holding in favor of Hough and Earles on their

ADEA claims.

C. Burkett

With regard to Burkett, Unocal asserts that it gave him the

redeployment package because of a good faith mistaken belief that

he desired the redeployment package rather than reassignment to

another job. Burkett testified that, after a meeting about the

39 RIF and before his redeployment, he told Van Deventer that he

would accept any job. He further testified that right after he

got his redeployment package, he met with Dupriest and said that

he would take any available job. The jury was entitled to

believe Burkett’s testimony and to infer that Unocal’s decision-

makers were on notice that Burkett wanted to keep working. We

affirm the district court’s judgment in favor of Burkett on his

ADEA claim.

VI. Liquidated Damages

The district court awarded $2,500 in liquidated damages to

each of the Appellees. Unocal argues that the evidence was

insufficient to support the finding of willful discrimination

that is necessary for a liquidated damages award under the ADEA.

The Appellees argue that, once there is a finding of willfulness,

the ADEA mandates liquidated damages in an amount that doubles

the back pay award.

A. Willfulness

Under the ADEA, liquidated damages are only payable for

“willful” violations. 29 U.S.C. § 626(b). A 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. v. Biggins, 113 S.Ct. 1701, 1708 (1993) (quoting

Trans World Airlines, Inc. v. Thurston, 105 S.Ct. 613, 624

(1985)). An employer who knowingly relies on age in reaching a

40 decision does not invariably commit a knowing and reckless ADEA

violation. Id. “If an employer incorrectly but in good faith

and nonrecklessly believes that the statute permits a particular

age-based decision, then liquidated damages should not be

imposed.” Id. at 1709.10 The district court found that there

was sufficient evidence to support the jury’s finding of

willfulness. We affirm this holding.

A finding of willfulness does not require a showing that the

employer’s conduct was “outrageous.” Id. at 1710. We have

upheld jury findings of willfulness when a jury’s finding of

intentional violation of the ADEA necessarily implied a finding

that the employer’s proffered explanation for the adverse

employment action was pretextual. See Burns v. Tex. City

Refining, Inc., 890 F.2d 747, 751 - 52 (5th Cir. 1989); Powell v.

Rockwell Int'l Corp., 788 F.2d 279, 288 (5th Cir. 1986); but see

Russell, 235 F.3d at 230 (plaintiff’s evidence of ADEA violation

was not sufficient to support willfulness finding) (we conclude

that the willfulness evidence here is materially stronger than

that in Russell). Ettensohn’s testimony and the policy manual

make it clear that Unocal was aware that the ADEA applied to the

implementation of the RIF and Unocal does not claim that it

10 For example, the employer may in good faith but mistakenly believe that an exemption permitting an age-based decision applied. See Hazen Paper, 113 S.Ct. at 1708.

41 believed any exemption applied permitting it to make age-based

decisions as to the Appellees. Unocal’s proffered explanation

for the employment decisions made during the RIF was that the

decisions were premised on a forced ranking based on performance.

Yet Ponville, the primary decision-maker, testified that he was

not personally familiar with the performance of Earles, Hough or

Burkett. The Appellees presented evidence of their satisfactory

performance records. Ponville destroyed all documentation

relating to the adverse employment decisions, although Unocal

policy called for retention of a record of non-discriminatory

reasons for such decisions. This and the other evidence

discussed above suffices to support the jury’s finding that

Unocal knew or showed reckless disregard for whether its conduct

violated the ADEA.

B. Amount of Liquidated Damages

We must now consider whether the finding of willfulness

necessitated a mandatory liquidated damages award equal to the

amount of the back pay award. We hold that it does.

The ADEA statute provides for liquidated damages by means of

cross-reference to the FLSA. See 29 U.S.C. § 626 (b) (providing

that ADEA remedies shall be enforced in accordance with, inter

alia, 29 U.S.C. § 216 and that back pay under ADEA is treated as

unpaid minimum wages and overtime compensation for purposes of

applying FLSA provisions); 29 U.S.C. § 216(b) (employers who

42 violate minimum wage and overtime compensation provisions of FLSA

shall be liable for the back pay “and in an additional equal

amount as liquidated damages”).11

11 29 U.S.C. § 626(b) provides in full: “(b) Enforcement; prohibition of age discrimination under fair labor standards; unpaid minimum wages and unpaid overtime compensation; liquidated damages; judicial relief; conciliation, conference, and persuasion.

The provisions of this title shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section. Any act prohibited under section 623 of this title shall be deemed to be a prohibited act under section 215 of title. Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title: Provided, That liquidated damages shall be payable only in cases of willful violations of this chapter. In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section. Before instituting any action under this section, the Equal Employment Opportunity Commission shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion.”

29 U.S.C. 216(b) provides: “Damages; right of action; attorney's fees and costs; termination of right of action

Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Any employer who

43 This circuit has never ruled on the precise question posed

by this case – whether the ADEA mandates an award of liquidated

damages in an amount equal to the back pay award upon a finding

of willfulness.12 In Thurston, the Supreme Court assumed that

violates the provisions of section 215(a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages. An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action. The right provided by this subsection to bring an action by or on behalf of any employee, and the right of any employee to become a party plaintiff to any such action, shall terminate upon the filing of a complaint by the Secretary of Labor in an action under section 217 of this title in which (1) restraint is sought of any further delay in the payment of unpaid minimum wages, or the amount of unpaid overtime compensation, as the case may be, owing to such employee under section 206 or section 207 of this title by an employer liable therefor under the provisions of this subsection or (2) legal or equitable relief is sought as a result of alleged violations of section 215(a)(3). “

12 In at least two post-Thurston cases, we have commented on the issue in dicta. See Smith v. Berry Co., 165 F.3d 390, 395 (5th Cir. 1999) (“[L]iquidated damages may not exceed the back pay award. That is, a finding of willfulness can double the damages awarded to

44 the double recovery was required after any finding of

willfulness. See Thurston, 105 S.Ct. at 625 (observing that too

broad a standard for willfulness “would result in an award of

double damages in almost every case”). In at least one post-

Thurston decision, this court has assumed the same thing. Burns

v. Texas City Refining, 890 F.2d 747, 752 (5th Cir. 1989)

(“Pursuant to 29 U.S.C. § 626(b), a finding of willfulness

entitles the plaintiff to a doubling of any back pay award.”

(emphasis added)). A majority of our sister circuits have

expressly held or have assumed that double damages were mandatory

after a finding of willfulness: Four circuits have expressly

held that this is the case. Mathis v. Phillips Chevrolet, Inc.,

269 F.3d 771, 777 (7th Cir. 2001); Greene v. Safeway Stores,

Inc., 210 F.3d 1237, 1246 (10th Cir. 2000); Spencer v. Stuart

Hall Co., Inc., 173 F.3d 1124, 1129 (8th Cir. 1999); Hill v.

a successful ADEA plaintiff.” (emphasis added)); Purcell v. Seguin State Bank & Trust Co., 999 F.2d 950, 956 (5th Cir. 1993) (“[E]ven when the plaintiff has proved willfulness, the court has discretion about whether to award liquidated damages.”). The precise issue we decide today was not necessary to the decision of either case. In Smith, the district court had awarded double damages and the appellate court affirmed the willfulness finding and the damage award. Id. at 395. In Purcell, there was no evidence supporting the willfulness finding, so no liquidated damages were awarded. Id. at 958. The dicta in Purcell can be further distinguished because it relied for support on the pre-Thurston case of Elliot v. Group Medical & Surgical Service, 74 F2d 556, 558 (5th Cir. 1983), which in turn relied on Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir. 1976). Hays was expressly disapproved in Thurston. Thurston, 105 S.Ct. at 625 n.22.

45 Spiegel, Inc., 708 F.2d 233, 238 (6th Cir. 1983). Three circuits

have at least assumed that it was so. See McGinty v. State, 193

F.3d 64, 71 & n.6 (2d Cir. 1999); Starceski v. Westinghouse Elec.

Corp., 54 F.3d 1089, 1099 (3d Cir. 1995) (“ADEA provides double

damages when the employer's discriminatory conduct is willful”);

Biggins v. Hazen Paper Co., 953 F.2d 1405, 1416 (1st Cir. 1992),

vacated on other grounds, 113 S.Ct. 1701 (1993).13

We hold that the plain language of the statutes requires the

interpretation that liquidated damages in an amount equal to the

back pay award are mandatory upon a finding of willfulness.14

Accordingly, we remand this portion of the case to the district

13 A case from the Eleventh Circuit seems to have assumed that a willfulness finding “entitles” the plaintiff to liquidated damages, but did not address whether double recovery was a mandatory amount. Day v. Liberty Nat. Life Ins. Co., 122 F.3d 1012, 1016 (11th Cir. 1997). Cases from the Fourth and Ninth Circuits seem to have assumed that liquidated damages were permitted, but perhaps not mandatory, after a finding of willfulness. Herold v. Hajoca Corp., 864 F.2d 317, 323 (4th Cir. 1998) (plaintiff “may recover” liquidated damages); AARP v. Farmers Group, Inc., 943 F.2d 996, 1006 (9th Cir. 1991) (statute “authorizes” liquidated damages). 14 This conclusion is further bolstered by 29 U.S.C. § 260, which provides an employer with a “good faith” defense under the FLSA. In an FLSA case, the liquidated damages provided for in 29 U.S.C. § 216(b) are mandatory unless the employer satisfies the requirements for the good faith defense, in which case 29 U.S.C. § 260 expressly provides the district court with discretion to award no liquidated damages or to award such damages in an amount not to exceed the amount provided for in § 216(b). 29 U.S.C. § 216(b); Mireles v. Frio Foods, Inc., 899 F.2d 1407, 1414 - 15 & n.8 (5th Cir. 1990). But “the ADEA does not incorporate [29 U.S.C. § 260].” Thurston, 105 S.Ct. at 625 n.22. Thus, there is no provision in the ADEA for discretion in the award of liquidated damages once a willfulness finding has been made.

46 court with instructions to enter judgment awarding liquidated

damages in an amount equal to the back pay award for each of the

Appellees.

VII. Compensatory Damages – Back Pay and Front Pay

In reviewing a district court’s damage award, this court

reviews all issues of law de novo. Rhodes v. Guiberson Oil Tools

Div’n, 82 F.3d 615, 620 (5th Cir. 1996) (Rhodes II). “Absent an

error of law, a district court's award of compensatory damages

presents an issue of fact, subject to the clearly erroneous

standard of review.” Id. If the district court’s factual

findings are plausible in light of the evidence presented, this

court will not reverse its decision even if this court would have

reached a different conclusion. Patterson v. P.H.P. Healthcare

Corp., 90 F.3d 927, 936 (5th Cir. 1996).

The Appellees, on their cross-appeal, challenge the district

court’s limitation of the back pay award to compensation through

May 25, 2000 – the date Unocal/Spirit’s Permian Basin operation

ceased to exist – rather than through September 29, 2000 – the

date of the final judgment. The Appellees also appeal the

district court’s denial of a front pay award.

A. Backpay

The purpose of ADEA back pay compensation is to restore the

plaintiff to the position he would have been in absent the

discrimination. McKennon v. Nashville Banner Public Co., 115

47 S.Ct. 879, 886 (1995). The purpose is not to restore a plaintiff

to a better position than he would have been in. Cf. id.

(compensatory principle is difficult to apply when there is

after-acquired evidence of plaintiff’s wrongdoing that would have

led the employer to terminate plaintiff anyway for a legitimate

reason). As a matter of law, the district court did not err in

finding that it could award back pay for some period less than

the entire time up to the date of the judgment. Cf. Brunneman v.

Terra Intern. Inc., 975 F.2d 175, n.5 (5th Cir. 1992) (affirming

jury award of back pay up to date of judgment, but not suggesting

such an award was mandatory).

The determination of the proper period for awarding back pay

is a factual matter that should be set aside only if clearly

erroneous. Id. In the instant case, the district court’s

conclusion that back pay should only be awarded through the May

25, 2000 cessation of Unocal/Spirit’s operation was not clearly

erroneous. Cf. McKennon, 115 S.Ct. at 361 (in awarding back pay,

district court can take account of “factual permutations” in the

particular case). The factual finding that the business entity

that employed the Appellees ceased to exist on May 25 is

undisputed. Even absent discrimination, the Appellees would no

longer be employed by Unocal and would not have received wages.

The Appellees argue, however, that Pure was the alter ego of

Unocal. They emphasize that Unocal was the majority shareholder

48 in Pure and controlled Pure’s board of directors and that about

seventy percent of Spirit employees moved to Pure. But the

district court heard the evidence concerning the sale of Unocal’s

operations to Pure and impliedly found that Pure was not Unocal’s

alter ego or agent. The Appellees’ assertions do not, without

more, demonstrate that the district court’s finding was clearly

erroneous.

We decline to disturb the district court’s award of back

B. Front pay

Front pay is an equitable remedy that is normally employed

when the ADEA’s preferred remedy of reinstatement is

impracticable. Patterson, 90 F.3d at 937 n.8; Brunnemann, 975

F.2d at 180. A front pay award is intended to compensate the

plaintiff for wages and benefits he would have received from the

defendant employer in the future if not for the discrimination.

Burns, 890 F.2d at 753. This court reviews a district court’s

determination regarding a front pay award for abuse of

discretion. Id.

In the instant case, if, as we hold above, the district

court’s back pay finding was not clearly erroneous, then the

district court did not abuse its discretion by holding that the

Appellees were not entitled to front pay. The back pay finding

was effectively a finding that the Appellees would not have

49 received future wages from Unocal, even absent the

discrimination. See id. at 753 (front pay award would be “purely

speculative” when defendant employer sold assets to another

company and many employees were terminated).

We affirm the district court’s holding that the Appellees

were not entitled to an award of front pay.

VIII. Whether Hough and Earles Were Exempt Under the FLSA

Hough and Earles appeal the district court’s bench trial

holding that they were “exempt” administrative employees under

the FLSA and therefore not entitled to compensation for unpaid

overtime.

The FLSA imposes maximum work hour standards and requires

employers to compensate employees who work overtime. 29 U.S.C. §

207. Employees who are classified as “exempt” are not entitled

to such compensation; in pertinent part, 29 U.S.C. § 213(a)(1)

exempts “any employee employed in a bona fide executive,

administrative, or professional capacity.” These exemptions are

construed narrowly against the employer and the employer has the

burden of proving that an employee is exempt. Dalheim v. KDFW-

TV, 918 F.2d 1220, 1224 (5th Cir. 1990) The district court’s

findings as to whether an employee is exempt are reviewed under a

mixed standard of review. In Dalheim, this court recognized that

it can be difficult to discern which issues in this inquiry are

questions of law and which are questions of fact. Id. at 1225.

50 The Dalheim court explained that questions of “historical fact”

(e.g., whether an employee’s work was reviewed by a supervisor)

and inferences drawn from historical facts (e.g., whether an

employees work is “original and creative”) are fact findings

reviewed for clear error. Id. at 1226. The ultimate finding

whether the employee is exempt, though based on historical fact

and factual inferences, is a legal conclusion subject to plenary

de novo review. Id. Thus, the proper inquiry in the instant

case is (1) whether the district court’s historical factual

findings and factual inferences were clearly erroneous and, (2)

whether they support the district court’s legal conclusion that

Hough and Earles were exempt under the administrative exemption.

The Secretary of Labor has defined the test for the

administrative exemption for employees who, like Hough and

Earles, earned more than $250 per week, in 29 C.F.R. 541.2: An

administratively exempt employee is one whose “primary duty”

consists of “office or nonmanual work directly related to

management policies or general business operations” and who

“customarily and regularly exercises discretion and independent

judgment.”15 The district court made findings of historical

15 The employee must also meet the following criteria: “(c)(1) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined in the regulations of this subpart), or

(2) Who performs under only general supervision work along

51 fact concerning Hough and Earles’s employment and reached the

legal conclusion that they met the test for the administrative

exemption.

Hough and Earles assert that they do not seek to set aside

the district court’s factual findings and they do not argue that

the specific findings listed by the district court are erroneous.

They do, however, assert that the record contains additional

evidence supporting further findings of fact. This amounts to

requesting de novo review of the facts and is inappropriate for

this court’s review of the district court’s factual findings made

after a bench trial. See Owsley v. San Antonio Indep. Sch.

Dist., 187 F.3d 521, 523 n.1 (distinguishing Dalheim, in which

the court reviewed factual findings following a bench trial only

for clear error, from Owsley, in which the court was reviewing a

summary judgment de novo). The district court considered the

evidence cited by Hough and Earles in reaching its understanding

of the pertinent facts and implicitly rejected the further

specialized or technical lines requiring special training, experience, or knowledge, or

(3) Who executes under only general supervision special assignments and tasks; and

(d) Who does not devote more than 20 percent, or, in the case of an employee of a retail or service establishment who does not devote as much as 40 percent, of his hours worked in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (c) of this section.” 29 C.F.R. 541.2.

52 findings that they now urge. Because Hough and Earles have not

shown that the court’s factual findings are clearly erroneous,

and because they have not shown that the district court clearly

erred in refusing to make the additional factual findings that

they now assert, we take the district court’s factual findings as

established and review its conclusions of law de novo.

In Lott v. Howard Wilson Chrysler-Plymouth, 203 F.3d 326

(5th Cir. 2000), this court offered guidance for applying the

administrative exemption:

“The exercise of discretion and independent judgment necessitates consideration and evaluation of alternative courses of conduct and taking action or making a decision after the various possibilities have been considered. 29 C.F.R. § 541.207(a). This exercise of discretion and independent judgment must relate to matters of consequence. 29 C.F.R. § 541.207(b)-(c)(1). Final decision making authority over matters of consequence is unnecessary.

As a general rule, an employee's ‘primary duty’ involves over 50% of the employee's work time. And yet, flexibility is appropriate when applying this rule, depending on the importance of the managerial duties as compared with other duties, frequency of exercise of discretionary power, freedom from supervision, and comparative wages.” Id. at 331 (case citations omitted).

Further guidance is found in 29 C.F.R. § 541.201, in which the

Secretary offers examples of staff employees who may typically

qualify for the administrative exemption, provided they meet all

the tests required in 29 C.F.R § 541.2. The district court’s

factual findings concerning Hough’s position as HES Coordinator

accord with the “safety director” position contemplated in 29

53 C.F.R. § 541.201(a)(2)(ii). Earles’s production technician

position is analogous to the “field representatives of utility

companies” and “district gaugers for oil companies” contemplated

in 29 C.F.R. § 541.201(a)(3). The district court did not err in

its legal conclusion that Hough and Earles were exempt employees.

We affirm the district court’s holding that Hough and Earles

were not entitled to compensation for unpaid overtime on their

FLSA claims.

IX. Whether Plaintiffs Were “Prevailing Parties” Entitled to

Legal Fees

The ADEA, by reference to the FLSA, mandates that a district

court award attorneys’ fees to a plaintiff who is a “prevailing

party.” Purcell, 999 F.2d at 961. The court has discretion in

deciding what is reasonable. Id. In the context of a 42 U.S.C.

§ 1988 action in which a plaintiff was awarded only nominal

damages, the Supreme Court explained that “to qualify as a

prevailing party, a civil rights plaintiff must obtain at least

some relief on the merits of his claim.” Farrar v. Hobby, 113

S.Ct. 566, 573 (1992).

As detailed above, we affirm the district court’s judgment

in favor of the Appellees as to several of their claims. These

plaintiffs have obtained “at least some relief on the merits” and

thus qualify as prevailing parties. We have held that liquidated

damages must be awarded in an amount equal to the back pay award.

54 In light of this holding, we instruct the district court to

consider on remand what, if any, adjustment should be made to the

amount of the legal fees award.

X. Expert Witness Fees

The Appellees seek to add their expert witness fees to the

fees and costs award. The Supreme Court has explained that the

interrelation of Fed. R. Civ. P. 54(d)(1) (relating to costs

other than attorneys’ fees), 28 U.S.C. § 1920 (listing “costs”

that may be taxed by a federal court), and 28 U.S.C. § 1821

(authorizing per diem and travel expenses for witnesses) means

that expert witness fees in excess of the standard witness per

diem and travel allowances cannot be taxed in the absence of

express statutory authority to the contrary. Crawford Fitting

Co. v. J.T. Gibbons, Inc., 107 S.Ct. 2494, 2496 (1987);16 see

also Leroy v. Houston, 831 F.2d 576, 584 (5th Cir. 1987)

(applying Crawford to fee-shifting provision of the Voting Rights

Act). There is no express statutory authority in the ADEA or the

16 The wording of Rule 54(d)(1) has been slightly amended since Crawford. Compare Fed. R. Civ. P. 54(d)(1) (2001) with Crawford, 107 S.Ct. at 2497. But the operative language remains substantially the same in pertinent part. In relevant part, current Rule 54(d)(1) reads: “Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs.” The Crawford Court explained that § 1920 defines “costs” as used in Rule 54(d)(1) and enumerates the expenses that a federal court may tax as costs. Crawford, 107 S.Ct. at 2497. Section 1920 permits compensation for expert witnesses only when those witnesses are appointed by the court. 28 U.S.C. 1920(6).

55 FLSA to award expert witness fees for other than court-appointed

expert witnesses. The district court did not err in refusing to

award the Plaintiffs expert witness fees.

XI. Delay Enhancement

Following the district court’s judgment on the fees and

costs request, the Appellees moved for a delay enhancement in a

motion to alter or amend the judgment filed pursuant to Fed. R.

Civ. P. 59(e). The district court denied the motion. On appeal,

the Appellees argue that the delay enhancement should be granted

to compensate for the approximately two year (that is, up to the

present time) delay in payment.

Denial of a Rule 59(e) motion to amend or alter a judgment

is generally reviewed for abuse of discretion. Fletcher v.

Apfel, 210 F.3d 510, 512 (5th Cir. 2000). Issues that are purely

questions of law are, however, reviewed de novo. See id.

In the instant case, the Appellees did not request the delay

enhancement in their original motion for attorneys’ fees,

although they did request a lodestar enhancement, which was

denied. Their Rule 59(e) motion was not a motion to reconsider

the judgment on its merits, rather it was a motion to consider a

new issue. The Appellees do not argue that the district court

erred in a question of law. The district court’s application of

the law to the facts is therefore subject to an abuse of

discretion standard of review. The Appellees have not addressed

56 the standard of review for this issue and have not shown that the

district court abused its discretion. The Appellees’ concession

that the district court’s calculation of the lodestar amount was

not an abuse of discretion weighs against finding in their favor

on the delay enhancement issue. See Walker, 99 F.3d at 773

(district court may either grant unenhanced lodestar based on

current rates or calculate lodestar using rates applicable when

work was done and grant delay enhancement, but not both). The

district court already awarded the Appellees $50,000 in

attorneys’ fees and $2,500 in costs for this appeal. We affirm

the district court’s denial of a delay enhancement.

Conclusion

With regard to the appeals on the merits, we affirm the

district court in all respects except as to the amount of

liquidated damages. As we have explained, the ADEA mandates a

liquidated damages award in an amount equal to the back pay

award. We vacate and remand the damages award with instructions

to award liquidated damages to each of the Appellees in an amount

equal to his back pay award.

With regard to the fees and costs appeals, we affirm the

district court in all respects except that we instruct the

district court to consider, on remand, whether (and, if so, to

what extent) an adjustment to the fees award is appropriate in

light of the adjustment to the liquidated damages award.

57 AFFIRMED in part; VACATED in part; and REMANDED with

instructions.