67 F.3d 1470 (9th Cir. 1995), 94-15287, Mangold v. California Public Utilities Com'n

Docket Nº:94-15287, 94-15696.
Citation:67 F.3d 1470
Party Name:Prac. Dec. P 43,752, 95 Cal. Daily Op. Serv. 8118, 95 Daily Journal D.A.R. 13,962 Arthur MANGOLD; Maurice F. Crommie, Plaintiffs-Appellees, v. CALIFORNIA PUBLIC UTILITIES COMMISSION; William Ahern; Jeff O'Donnell; Catherine Yap; Ed Texeira; David Morse; Terry Murray; Mark Ziering; Doug Long; Wes Franklin; Jim Pretti; Leona Fong; and Sandy Barsell,
Case Date:October 17, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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67 F.3d 1470 (9th Cir. 1995)

Prac. Dec. P 43,752,

95 Cal. Daily Op. Serv. 8118,

95 Daily Journal D.A.R. 13,962

Arthur MANGOLD; Maurice F. Crommie, Plaintiffs-Appellees,



Jeff O'Donnell; Catherine Yap; Ed Texeira; David Morse;

Terry Murray; Mark Ziering; Doug Long; Wes Franklin; Jim

Pretti; Leona Fong; and Sandy Barsell, and Does 1 through

20, inclusive, Defendants-Appellants.

Nos. 94-15287, 94-15696.

United States Court of Appeals, Ninth Circuit

October 17, 1995

Argued and Submitted Aug. 17, 1995.

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[Copyrighted Material Omitted]

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Andrea G. Asaro, Rosen, Bien & Asaro, San Francisco, California (Sanford Jay Rosen and Tom Nolan, on the briefs) (merits counsel) and Elliot L. Bien, Law Offices of Elliot L. Bien, San Francisco, California (special attorneys' fees counsel), for defendants-appellants.

Richard Rogers, Mayo & Rogers, San Francisco, California, (Madeleine Tress, with him on the brief) and Richard M. Pearl, San Francisco, California, for plaintiffs-appellees.

Appeals from the United States District Court for the Northern District of California.

Before: D.W. NELSON and T.G. NELSON, Circuit Judges, and KING, [*] District Judge.

SAMUEL P. KING, District Judge:

Defendants/appellants the California Public Utilities Commission and various individual employees (collectively "the PUC") appeal from judgment after a jury verdict awarding (1) plaintiff/appellee Maurice Crommie $151,920 plus 10% interest and costs, and (2) plaintiff/appellee Arthur Mangold $164,052 plus 10% interest and costs against the PUC for violating the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621, et seq. (ADEA), the California Fair Employment and Housing Act, Cal.Gov.Code Secs. 12940, et seq. (FEHA), and California common law. The PUC also appeals from the award of $724,380 in attorneys' fees. We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm the judgment and fee award, but remand for recomputation of post-judgment interest.


These two consolidated cases arise from allegations of age discrimination in promotions by the PUC from the mid-1980s to the early-1990s. Mr. Crommie filed his action in state court October 12, 1989; Mr. Mangold, on February 21, 1989. After the cases were removed, Plaintiffs filed amended complaints, and the cases were consolidated. Meanwhile, the EEOC filed class action suits against the PUC on behalf of 43 other PUC workers who were denied promotion opportunities.

Both plaintiffs are engineers. Mr. Crommie had applied for, and was denied, promotion to various regulatory analyst positions from 1983 until 1990 or 1991. Mr. Mangold had applied for, and was denied, supervisor positions from 1986 until 1990. Mr. Crommie began work at the PUC in 1981 at age 54, after extensive experience in the aerospace industry. He has an engineering

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undergraduate degree, three master's degrees, and has completed all course work for two doctorate programs. Mr. Mangold has a Bachelor of Science degree with graduate work in engineering, economics and business administration. He spent his entire career at the PUC.

Plaintiffs alleged that, beginning as early as 1983, the PUC had a policy and practice of discrimination against older workers for promotions. The discrimination charges were based on promotional examinations that favored younger employees. The promotional process consisted of several steps. After a position was announced, the employee would apply by submitting a self-evaluation. The applicant's supervisor would comment on the self-evaluation and rate the applicant on a five-point scale. The next-level supervisor would concur or disagree. A promotional readiness examination followed. At issue here are several examinations from 1986 through 1990.

The promotional readiness examinations generally consisted of oral examinations conducted by panels of three or four directors or assistant directors. The questions were subjective. The PUC has argued throughout that the Plaintiffs were not qualified for promotions based on their performance during the examinations. On the other hand, the Plaintiffs' theory at trial was that the examinations were "fixed" because (1) the subjective questions were based on certain "high profile" assignments or positions that were given to younger employees, (2) they were denied access to these high-profile jobs, (3) supervisor evaluations of older employees were lowered so as to rank younger employees higher, (4) the subjective, "consensus" scoring method was biased, (5) standards and entry requirements were lowered for certain positions to allow younger employees to qualify, and (6) the examination panels were staffed with directors for whom younger employees worked.

After Plaintiffs administratively appealed the promotional decisions, the EEOC investigated and issued determinations of reasonable cause in June of 1989 and April of 1991. In addition to witness testimony and documentary evidence, the EEOC relied on statistics of various examinations showing that the older an employee, the lower the examination score. The EEOC also took issue with some of the questions being asked on the examinations.

The matter was tried before a jury in February and March of 1993. At trial, the Plaintiffs' evidence consisted of witness testimony, documentary evidence, and statistical evidence of an economics expert, Dr. Betty Blecha. The jury found the PUC itself liable for age discrimination under the ADEA and the California FEHA; found retaliation in violation of the ADEA; found individual defendants William Ahern, Catherine Yap, Jeff O'Donnell, and Ed Texeira liable under FEHA; and found that the PUC and the individuals violated state public policy for failure to promote, and for conspiracy to fail to promote. It awarded damages for loss of earnings, liquidated damages, and emotional distress. The court later awarded attorneys' fees under state law. The fees totalled $724,380 after applying a contingent-fee multiplier of two. These appeals followed.


A. Liability for discrimination under federal law.

The PUC asserts that the trial court prejudicially erred by allowing the Plaintiffs to proceed on a disparate impact theory of discrimination. 1 Although disparate impact is an appropriate theory under Title VII, the PUC contends it is inappropriate in an age discrimination context. "A failure to submit a proper jury instruction is a question of law reviewable de novo, but an error in instructing the jury in a civil case does not require reversal if it is more probably than not harmless." Benigni v. City of Hemet, 879 F.2d 473, 479 (9th Cir.1988) (citations omitted).

"A plaintiff alleging discrimination under ADEA may proceed under two theories of liability: disparate treatment or disparate impact." Rose v. Wells Fargo & Co., 902 F.2d 1417, 1421 (9th Cir.1990) (citing Palmer v. United States, 794 F.2d 534, 536 (9th Cir.1986)).

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"Disparate treatment" is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, or other protected characteristics. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.

Claims that stress "disparate impact" by contrast involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive is not required under a disparate-impact theory.

Hazen Paper Company v. Biggins, 507 U.S. 604, ----, 113 S.Ct. 1701, 1705, 123 L.Ed.2d 338 (1993) (citations, brackets and ellipses omitted).

Although the Supreme Court applies disparate treatment to the ADEA, the Court acknowledged in Hazen Paper that it has "never decided whether a disparate impact theory of liability is available under the ADEA, and we need not do so here." 507 U.S. at ----, 113 S.Ct. at 1706 (citation omitted). Further, there is some indication that the theory should not apply. Id. at ----, 113 S.Ct. at 1710 (Kennedy, J., concurring) ("nothing in the Court's opinion should be read as incorporating in the ADEA context the so-called 'disparate impact' theory of Title VII ... and there are substantial arguments that it is improper to carry over disparate impact analysis from Title VII to the ADEA.").

Here, the PUC argues that disparate impact is improper in light of Hazen Paper. At least one circuit appears to have so held. See EEOC v. Francis W. Parker School, 41 F.3d 1073 (7th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2577, 132 L.Ed.2d 828 (1995). 2 However, existing Ninth Circuit precedent approves of a disparate impact theory under the ADEA. E.g., Rose, 902 F.2d at 1421; see also EEOC v. Local 350, 998 F.2d 641, 648 n. 2 (9th Cir.1993) ("in this circuit a plaintiff may challenge age discrimination under a disparate impact analysis").

We need not address here whether disparate impact is a proper theory under the ADEA because the jury found intentional discrimination under a disparate treatment theory. 3 True, the verdict form combined two theories into one interrogatory: "Using the disparate treatment or disparate impact theory of age discrimination, did the [PUC] violate the ADEA federal law and/or the FEHA state law by discriminating against plaintiffs on the basis of age?" However, the jury also found that the plaintiffs' ages were motivating factors in the PUC's employment decisions. It found that the PUC would not have made the same employment decisions regardless of plaintiffs' ages. It found retaliation. It found that some individual defendants violated FEHA by aiding, abetting, inciting, compelling, or coercing an act...

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