Jottings By An Employer's Lawyer

Tuesday, May 20, 2003

5th Circuit Age Ruling - Guidance on Liability, Wilfullness, Mitigation and Even Attorneys Fees


Today's opinion in West v. Nabors Drilling USA, Inc., (5th Cir. 5/20/03) [pdf] discusses a number of issues that arise in discrimination cases in general, and the age cases in particular. Judge Fitzwater, a district judge in the Northern District of Texas, clearly explains the standard of reviewing the evidence after a jury finding of liability. The Reeves decision means that proving pretext alone may be enough. Judge Fitzwater's analysis of the evidence is a good example of the conclusions that can be made to get to that point. (And it certainly didn't help that one of the employer's witnesses had served 21 months in prison for a drug offense between the termination and the time of trial and that another witness gave a false affidavit only 4 months before trial.)

The Court not only upheld liability, but it rejected a heightened standard of egregious facts to support liquidated damages. Instead it harmonized prior 5th Circuit law to be squarely within the confines of the U.S. Supreme Court decision in Trans World Airlines, Inc. v. Thurston, which holds willfulness is present "if the employer knew or showed reckless disregard for whether its conduct violated the ADEA." Judge Fitzwater noted that the jury found that Nash, who made the termination decision, did it because of West's age. With that finding, there is no way to conclude that he did it in the mistaken belief that his action was legal under the ADEA.

Although upholding the verdicts on both liability and exemplary damages, the employer's pain was lessened significantly by the the Court's holding on mitigation. Finding that after two months trying to get Nabers to rehire him, West elected to apply and work as a truck driver at a much lower wage than he was earning as a toolpusher for Nabers. That was not sufficient mitigation. The Court cut off his damages as of the date he applied for and accepted the lower paying job, finding he had an obligation to continue to seek work of a similar nature to that he was doing. Finally, although it upheld an award of attorneys fees, it sent the amount back for further review since it was likely that the damage award following its ruling on mitigation would be substantially lower. Although noting that proportionality of the fee to the damage award is not required in the 5th Circuit, it is certainly one of the factors to be considered. An admonition that I am sure that Judge Fitzwaters' fellow district court judge will consider on remand.

Although lengthy, this case provides a good example of the legal complexities of even a "simple" case, and a good summary of some of the basic principles of discrimination law.

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