Gusman v. Unisys Corp.

• Decision Date: 25 February 1993
• Docket Number: Nos. 92-2415,92-3134,s. 92-2415
• Citation: 986 F.2d 1146
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 382, 61 Empl. Prac. Dec. P 42,075, 61 USLW 2533 Edsel GUSMAN, Plaintiff-Appellee, Cross-Appellant, v. UNISYS CORPORATION, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1146

986 F.2d 1146

61 Fair Empl.Prac.Cas. (BNA) 382,

61 Empl. Prac. Dec. P 42,075, 61 USLW 2533

Edsel GUSMAN, Plaintiff-Appellee, Cross-Appellant, v. UNISYS CORPORATION, Defendant-Appellant, Cross-Appellee.

Nos. 92-2415, 92-3134.

United States Court of Appeals Seventh Circuit.

Argued Jan. 6, 1993.

Decided Feb. 25, 1993.

Charles Barnhill, Jr. (argued), Sarah Siskind, Davis, Miner, Barnhill & Galland, Madison, WI, for plaintiff-appellee.

Patricia J. Hruby, Kathleen M. Paravola, Philip A. Miscimarra (argued), Sally J. Scott, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, John M. Loomis, E. Vanessa Jones, Beck, Chaet, Loomis, Molony & Bamberger, Milwaukee, WI, for defendant-appellant.

Before EASTERBROOK and RIPPLE, Circuit Judges, and MILLER, District Judge. ^*

EASTERBROOK, Circuit Judge.

Fierce competition produces better products at lower prices. Progress that bestows great benefits on consumers is cruel to producers that lag behind their rivals, as Unisys Corporation has. While other manufacturers of computers have grown, Unisys has been shrinking almost from the day it was formed by the merger of Burroughs and Sperry in 1986. In 1989 Unisys gave a pink slip to Edsel Gusman, who for 33 years had serviced and repaired its machines. The jury found that Unisys held Gusman's age, 59, against him and awarded $54,000 in damages for lost wages. Because the jury found that the age discrimination was wilful, the judge doubled this sum; he added $75,000 in front pay, for total damages of $183,000. Gusman's attorneys received a little more than $73,000 for their efforts. Unisys contests the decision on the merits, and Gusman contends that the sum allocated to fees should be increased.

Unisys reduced the size of Gusman's unit from 14 to 12. He does not deny that this was a genuine reduction, caused by the erosion in the firm's business, but he persuaded the jury that age rather than ability or some other proper reason led Unisys to exclude him from the 12. Unisys does not deny that the jury could reach this conclusion, although it does contend that the record does not support a decision that the discrimination was wilful. Because Unisys did not object to the jury instructions defining wilfulness, we need not await the Supreme Court's decision in Hazen Paper Co. v. Biggins, --- U.S. ----, 113 S.Ct. 960, 122 L.Ed.2d 117 (1993). See also EEOC v. Century Broadcasting Corp., 957 F.2d 1446, 1457-60 (7th Cir.1992). Ample evidence warranted a conclusion that Gusman's immediate superior, Donald Troudt, believed that older workers are inferior--a thought he conveyed not only to his subordinates but also to the lawyers conducting his deposition in this litigation. Troudt made the recommendation that led to Gusman's discharge. Reasonable jurors could conclude that Troudt lied to his superiors about Gusman's skills, ensuring that they would approve his recommendation. (Troudt asserted, for example, that Gusman could repair only the computers that Unisys was phasing out rather than those it was currently selling; actually Gusman's skills lay in the newer batch of machines, and another person had to be trained to do that work after Gusman departed.) An employer cannot escape responsibility for wilful discrimination by multiple layers of paper review, when the facts on which the reviewers rely have been filtered by a manager determined to purge the labor force of older workers. Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.1990).

Unisys does not want Gusman back and does not say that the judge should have awarded reinstatement rather than front pay. Instead it says that the judge should have denied both reinstatement and front pay, insisting that Gusman would have been sacked during the next reduction in staff, or the one after that, even if age accounted for the decision in 1989. Maybe so, but the judge was not obliged to agree. (Front pay, as an alternative to the equitable remedy of reinstatement, is the judge's decision rather than the jury's, Fortino v. Quasar Co., 950 F.2d 389, 398 (7th Cir.1991), but a judge may accept advice from the jury on the subject. Here, as in Price v. Marshall Erdman & Associates, Inc., 966 F.2d 320, 324 (7th Cir.1992), the judge properly endorsed the jury's recommendation after giving the subject independent consideration.) As Gusman was making approximately $45,000 per year in salary and benefits, an award of $75,000 is appropriate if Gusman could have worked 1 1/2 years after (a hypothetical) reinstatement. A judge might conclude that Gusman's skills and seniority would have given him that much breathing space. And front pay was otherwise entirely appropriate. Gusman's human capital was not portable: he could repair Unisys's computers, not IBM's or Apple's. A skilled technician, however, could learn to work on other devices more quickly than a novice; an award of front pay tides him over until Gusman could regain his former productivity.

Only one arrow remains in Unisys's quiver. Sarah Siskind, one of Gusman's lawyers, testified during the trial. The roles of attorney and witness usually are incompatible. A witness is supposed to present the facts without a slant, while an attorney's job is to advocate a partisan view of the significance of the facts. One person trying to do both things is apt to be a poor witness, a poor advocate, or both. See United States v. Trapnell, 638 F.2d 1016, 1025 (7th Cir.1980); United States v. Johnston, 690 F.2d 638, 642-44 (7th Cir.1982) (in banc); ABA, Model Rule of Professional Conduct 3.7(a). Yet the limits on being lawyer and witness in the same case are not absolute. The ABA's Model Rule, for example, makes exceptions for uncontested issues and cases in which disqualification of counsel "would work a substantial hardship on the client". So we must examine the circumstances.

Claims of discrimination are hard to prove one case at a time. An employer can offer some proper explanation for almost any decision. A pattern of treating older (or black, or female) employees worse than others speaks more loudly. The law of large numbers smoothes over the quirks and turns of fate that make finding "the" cause of a particular discharge so hard. Gusman's lawyers obtained discovery that they hoped would enable them to show that Unisys had it in for older employees. Attorney Siskind, who reviewed the materials Unisys furnished, used them to construct a chart that, she believed, demonstrated such a pattern. Unisys wanted to prevent use of the chart and objected on substantive grounds. Unexpectedly (so Gusman's lawyers say) Unisys also objected on foundation grounds. That is, Unisys required Gusman to establish that the chart actually summarized the information Unisys had provided in discovery. Now one would expect that any questions about the provenance of such a chart could be resolved behind the scenes. Gusman's lawyers could show Unisys's lawyers how the chart had been compiled. Whether such a meeting took place we do not know. Unisys demanded that the foundation be laid before the jury. And as Siskind had prepared the chart herself (rather than turning the mass of discovery materials over to a paralegal for duplicative review and compilation), the only way to lay the foundation was by her testimony. So she took the stand, and in two pages of transcript (followed by two pages of cross-examination) described how she had prepared the chart.

As the district court observed, Unisys did not need to force this appearance by counsel. Judge Shabaz suspected, as do we, that Unisys precipitated this episode in the hope of salting the record with reversible error. Well, we are not cooperating. Truculent litigation tactics should be discouraged, not rewarded. It may be that Gusman's team should have taken more precautions, preparing another way to lay the foundation in case Unisys decided to play hardball. Here the principle of "no harm, no foul" governs. Ultimately, the judge excluded the chart on substantive grounds. Siskind's testimony did not present the sort of conflict in roles that underlies the attorney-witness rule. Only errors affecting substantial rights permit reversal in civil litigation. See 28 U.S.C. § 2111; Fed.R.Civ.P. 61. If permitting Siskind to testify was a mistake, that error was harmless.

Having prevailed, Gusman is entitled to collect from Unisys a "reasonable attorney's fee" with which to compensate his lawyers. 29 U.S.C. § 626(b), incorporating 29 U.S.C. § 216(b). Gusman submitted a request for a little more than $103,000, accompanied by time sheets, affidavits, and sample billings to other clients showing rates of $200 per hour for Siskind, $225 per hour for senior partner Charles Barnhill, and $140 per hour for a third lawyer. The affidavits asserted that these are the lawyers' usual rates, which they receive when working for paying clients--not only in Chicago, where their firm has its principal office, but also in Madison, Wisconsin, where the firm has a branch (and where the trial occurred). Unisys did not contest the reasonableness of the time counsel devoted to the litigation but contended that $200 per hour is too steep for Madison. The district judge agreed, reducing the rate for Barnhill and Siskind to $150 per hour (and $125 per hour for the junior litigator). The court allowed that the rates solvent clients are willing to pay Barnhill and Siskind are interesting but added:

[F]ar more persuasive are the affidavits of Madison attorneys suggesting a relevant prevailing rate in the Madison area of $125 to $150 per hour.... This Court is familiar with the billing rates for legal services provided by attorneys [names omitted] and others who litigate discrimination cases in the Madison community. It is of the opinion that it does, indeed, know the value of lawyers' legal services as well as the market itself, which suggests a rate between $125 and $150 per hour.... A reasonable fee should approximate the prevailing market rate in...