What Cases Under Costa Could Look Like - Plaintiffs Winning the Battle, Losing the War
by Michael Fox
Although the Supreme Court's decision in Costa is not mentioned in Wheeler v. Missouri Dept. of Transportation (8th Cir. 10/31/03) it nevertheless represents a case where liability attached, but no damages were awarded since the jury was charged and found that the employer would not have given the plaintiff the promotion anyway. The facts were interesting in that plaintiff alleged he had not been given a promotion because of pressure on the Defendant to select a female for the position. Since liability was found, plaintiff was entitled to attorneys' fees. Significantly his attorney's request of just over $250,000 in fees was reduced to $21,250. In part, the Court held that the reduction was proper because one of the factors to be taken into account was the degree of success, and given that plaintiff did not ultimately prevail, he was only entitled to a limited recovery. It probably also didn't help that plaintiff's counsel took 37 depositions, many of which the court noted "were not warranted."