Kossman v. Calumet County
Decision Date | 20 June 1988 |
Docket Number | Nos. 87-1401,87-1439,s. 87-1401 |
Citation | 849 F.2d 1027 |
Parties | 47 Fair Empl.Prac.Cas. 236, 47 Empl. Prac. Dec. P 38,109 Donald J. KOSSMAN and Warren Jodar, Plaintiffs-Appellants, Cross-Appellees, v. CALUMET COUNTY, Defendant-Appellee, Cross-Appellant. |
Court | U.S. Court of Appeals — Seventh Circuit |
Robert W. Lutz, Bonk, Lutz, Burnett & McDermott, Derek McDermott, Chilton, Wis., for plaintiffs-appellants, cross-appellees.
David Leo Uelmen, Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, Chilton, Wis., for defendant-appellee, cross-appellant.
Before WOOD, Jr., COFFEY, and RIPPLE, Circuit Judges.
This is the second time an appeal in this matter has been before this court. The first appeal resulted in a holding that Calumet County had willfully discriminated against Donald Kossman and Warren Jodar in violation of the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634. Kossman v. Calumet County, 800 F.2d 697, 704 (7th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1294, 94 L.Ed.2d 151 (1987). Because willfulness triggers the liquidated damages provisions of the ADEA, the case was remanded to the district court for a determination of the amount of such damages to be awarded Kossman and Jodar. This court also directed the district court to determine what insurance premiums and overtime wages, if any, were recoverable from the County. On remand, the district court calculated the amount of compensatory damages (including health insurance and overtime wages) and subtracted any amounts in mitigation to derive the liquidated damages award. Awarding an amount equal to the compensatory damage award is the method prescribed by the ADEA to determine the amount of liquidated damages. The district court also awarded Kossman and Jodar attorney's fees incurred in bringing the first appeal.
In the present appeal Kossman and Jodar challenge the method of calculating liquidated damages, arguing that the proper method requires figuring the amount prior to subtracting any amounts in mitigation. The plaintiffs-appellants also challenge as inadequate the amount of the attorney's fees awarded. Calumet County cross appeals, claiming that the retirement benefits and health insurance premiums should not have been included in the amount used to determine liquidated damages and that there was insufficient evidence to support a recovery of overtime wages. We vacate the attorney's fees award and remand for further proceedings. As to all other issues, we affirm.
We will accompany our discussion of the issues with the facts pertinent to each. For a full recital of the factual background of this case see Kossman v. Calumet County, 800 F.2d at 698-99.
We are asked to determine whether an award of liquidated damages pursuant to the ADEA is calculated before or after any amounts in mitigation have been subtracted from the compensatory damages amount. If the determination is made before mitigation, Kossman receives liquidated damages of approximately $104,000 and Jodar approximately $82,000, whereas if the determination is made after mitigation, Kossman receives liquidated damages of approximately $47,000 and Jodar approximately $32,000. The district court chose the latter, relying on a Fourth Circuit decision, Fariss v. Lynchburg Foundry, 769 F.2d 958, 967 (4th Cir.1985).
Kossman and Jodar argue that this circuit's Orzel v. City of Wauwatosa Fire Dep't, 697 F.2d 743 (7th Cir.), cert. denied, 464 U.S. 992, 104 S.Ct. 484, 78 L.Ed.2d 680 (1983), reached a contrary conclusion and requires that we reverse the district court decision. Orzel affirmed a magistrate's decision that held the plaintiff had demonstrated a willful violation of the ADEA and therefore was entitled to liquidated damages. Id. at 759-60. The magistrate's Decision and Order stated that Orzel v. City of Wauwatosa Fire Dep't, No. 79-C-444, Decision and Order at 22 (E.D.Wis. filed Aug. 21, 1981). Orzel is neither controlling nor persuasive in the circumstances of the present case because the correctness of the magistrate's decision to mitigate after calculating liquidated damages was not argued to the Orzel panel. On this issue Orzel does no more than hold that liquidated damages were awardable.
This issue was expressly decided, however, on September 23, 1987, in an opinion released on the day oral argument was held in this case. Coston v. Plitt Theatres, Inc., 831 F.2d 1321, 1330 (7th Cir.1987), held, in pertinent part, that 1 The Supreme Court has recently vacated the judgment in Coston and remanded for further proceedings to consider the issue of willfulness, which is not an issue here, and in a separate decision the Court has denied review of Coston 's method of calculating liquidated damages. 2 We find the Coston reasoning regarding the calculation method sound and adopt that reasoning as our own. See id. at 1328-30. The method that we adopt is the same as that utilized in the Fourth Circuit's Fariss decision, relied on by the district court when it subtracted the amounts in mitigation prior to doubling. Therefore the district court correctly computed the liquidated damages.
In the district court Kossman and Jodar sought an award of attorney's fees and costs incurred in successfully bringing the first appeal in this case. The district court determined that 175 hours at $80 an hour represented the reasonable hours and hourly rate, respectively, for the appeal. The district court also awarded costs of $571. In their brief Kossman and Jodar complain that they reasonably incurred 225 hours (the district court's Decision and Order, as well as the plaintiffs' fee application to the district court, shows that fees for 235 hours were requested) and should have been compensated for these hours. Likewise they argue that they incurred necessary costs for such items as the filing and docketing fee, long distance telephone charges, meals and lodging, postage, and mileage to Chicago, and that the mere award of statutory costs was insufficient.
Kossman and Jodar also note that upon remand from the first appeal they asked the district court to reconsider its earlier determination that only 400 of the 851 hours requested for trial work would serve as the basis for an award of attorney's fees. The plaintiffs argue that the district court had reduced the amount by the hours spent on preparation and presentation of the liquidated damages claim, which the district court originally denied, and once the liquidated damages claim was deemed meritorious by this court, the compensable hours must be adjusted upward. The district court considered the matter and left its earlier fees determination undisturbed. The trial fees issue was not raised in the first appeal, and Kossman and Jodar do not explain how this issue is now properly before us. Without more we will not review the earlier award but instead will proceed to review only the award of attorney's fees and costs incurred in bringing the first appeal.
"The district court, in its discretion may set the amount of attorneys' fees awarded." Freeman v. Franzen, 695 F.2d 485, 494 (7th Cir.1982), cert. denied, 463 U.S. 1214, 103 S.Ct. 3553, 77 L.Ed.2d 1400 (1983). Harrington v. DeVito, 656 F.2d 264, 269 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 854 (1982). The district court's entire discussion regarding fees and costs is contained in one brief paragraph:
The plaintiffs maintain that they are entitled to $29,375 (235 hours X $125 per hour) in attorney fees. I have reviewed the affidavits filed by the plaintiffs' attorneys, and I find that a reasonable award is $14,000. This represents 175 hours at a rate of $80 an hour. The plaintiffs are also entitled to recover $571 in costs.
Kossman v. Calumet County, No. 81-C-419, Decision and Order at 5 (E.D.Wis. filed Feb. 18, 1987). We are not concerned with the genesis of the $80 figure because in this appeal Kossman and Jodar do not specifically challenge the amount of the hourly rate, however, we do concern ourselves with the genesis of the district court's 175 hour award. A review of the record does not suggest an obvious basis for the reduction from 235 hours to 175 hours. (Calumet County suggests that the reduction may be the district court's carryover of its reasoning from its award of fees for trial work in which it awarded substantially less than requested because "it took 4 days of trial to put in the evidence[, and it] should have been presented in no more than the two days originally set as an estimate.") The choice is important because using the 235 figure generates an attorney's fees award of $18,800 whereas the 175 figure generated the court's actual award of $14,000, a difference of $4,800. As for the $571 award of costs, apparently the amount is the total of Kossman and Jodar's docketing fee ($65) and the costs of copying and collating the briefs and appendix ($506), which they submitted in their bill of costs pursuant to Federal Rule of Appellate Procedure 39. The district court's Decision and Order...
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