Cannada v. Old Dominion Brush Co.

WARREN CANNADA, Plaintiff, v. OLD DOMINION BRUSH, COMPANY, INC., Defendant.

Civil Action No. 3:20-cv-952-HEH

United States District Court, E.D. Virginia, Richmond Division

April 25, 2022

MEMORANDUM OPINION (RESOLVING POST-TRIAL MOTIONS AND ENTERING JUDGMENT)

HENRY E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE

In his Complaint, Plaintiff Warren Cannada ("Cannada") alleged that his former employer, Old Dominion Brush Company Inc. ("ODB"), terminated him because of his age in violation of the Age Discrimination in Employment Act (the "ADEA"). (Compl., ECF No. 1.) After a four-day trial concluding on March 3, 2022, the jury announced a verdict for Cannada and awarded him $113, 283.12 in back pay. (ECF No. 77.)

The Court is now tasked with resolving three post-trial motions filed by Cannada. First, Cannada's attorneys have filed a motion for attorneys' fees and costs pursuant to 29 U.S.C. §§ 216(b), 626(b). ("Motion for Fees & Costs," ECF No. 79.) Second, Cannada has moved for pre- and post-judgment interest and front pay. ("Motion for Interest & Front Pay," ECF No. 81.) Third Cannada has asked for the Court to enter judgment on the jury verdict. (Motion for Entry of Judgment, ECF No. 83.) The Motion for Entry of Judgment can be dealt with expeditiously because the parties both agree that entry of judgment under Federal Rule of Civil Procedure 54 is proper at this time. Consequently, the Court will grant the Motion for Entry of Judgment.

Regarding the Motion for Fees & Costs, the ADEA requires a court to award reasonable attorneys' fees and costs to any prevailing plaintiff. 29 U.S.C. §§ 2 l 6(b) 626(b); EEOC v. Clay Printing Co., 13 F.3d 813, 817 (4th Cir. 1994). In determining the amount of fees and costs to award, the Court considers the reasonable number of hours expended on the case and the reasonable rate charged per hour. McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013). The factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), guide the Court's assessment as to the reasonableness of the fees and costs. McAfee, 738 F.3d at 88.

Cannada's lead attorney, Mr. James Thorsen, spent 223.24 hours on the case at a rate of $550.00 per hour. (Pl.'s Mem. Supp. Fees at 3, ECF No. 80.) His other attorney, Mr. Jesse Roche, spent 135.55 hours at $350.00 per hour. (Id.) Lastly, Mr. Thorsen's paralegal, Ms. Kim Maiden, spent 60.65 hours at $135.00 per hour. (Id.) In total, Cannada's attorneys ask for $178, 412.25 in fees and an additional $5, 611.37 in costs. (Id. at I.) To justify the reasonableness of these amounts, Cannada's attorneys filed affidavits from themselves and other attorneys practicing in the Richmond metropolitan area. (See ECF Nos. 80-1-5.) ODB offers no specific arguments why Cannada's attorneys' fees or costs should be reduced, and the Court has not discovered any independently. Considering the evidence set forth in the memoranda, affidavits, and declarations, the outcome of this case, the legal issues involved, the experience of the attorneys, and the other Johnson factors, the Court finds that the fees and costs are reasonable. Johnson, 488 F.2d at 717-19; McAfee. 738 F.3d at 88. The Court will grant the Motion for Fees & Costs and award Cannada's attorneys $178, 412.25 in fees and $5, 611.37 in costs.

Next, the Court considers Cannada's Motion for Interest & Front Pay. First, Cannada asks for post-judgment interest on his full award. Post-judgment interest at a rate published by the Federal Reserve is prescribed by statute. 28 U.S.C. § 1961. The parties agree that, pursuant to that statute, post-judgment interest is appropriate in this case. Thus, the Court will award post-judgment interest in accordance with 28 U.S.C. § 1961.

Cannada also asks for pre-judgment interest on his jury-awarded back pay. Unlike post-judgment interest, awarding pre-judgment interest on back pay in an employment discrimination case is within the discretion of the district court. Maksymchuk v. Frank, 987 F.2d 1072, 1077 (4th Cir. 1993). Yet, the United States Court of Appeals for the Fourth Circuit has cautioned against refusing to award pre-judgment interest in most cases. Id. ("A dollar tomorrow, unless interest is added, does not equal a dollar today."); see Crump v. U.S. Dep't of Navy, 205 F.Supp.3d 730, 748 (E.D. Va. 2016). Generally speaking, pre-judgment interest should be awarded unless the back-pay award was not computed with certainty or the plaintiff did not timely request pre-judgment interest. Crump, 205 F.Supp.3d at 748 (surveying other cases).

In this case, Cannada's back-pay award is certain and was agreed upon by the parties. Cannada also timely asked for pre-judgment interest to be included in his award. Thus, while the award of pre-judgment interest is discretionary, the Court sees no reason why it should not award it here. Unlike the rate of post-judgment interest, "[t]he rate of pre-judgment interest for cases involving federal questions is a matter left to the discretion of the district court." Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1031 (4th Cir.1993). Cannada asks for the Virginia statutory pre-judgment interest rate. (Pl.'s Mem Supp. Interest & Front Pay at 6, ECF No.81); Va. Code Ann.§ 6.2-30 2. Nonetheless, the Court finds it more appropriate to award pre- and post-judgment interest at the same rate. Therefore, the Court will award pre-judgment interest on Cannada's back-pay award according to the rate calculated in 28 U.S.C.§ 1961.

Finally, Cannada asks for an award of front pay to supplement his back-pay award. The goal of any remedy under the ADEA is "to make the plaintiff whole." Duke v. Uniroyal Inc., 928 F.2d 1413, 1423 (4th Cir.1991). To that end, a front-pay award is appropriate where "intervening historical circumstances can make [reinstatement] impossible or inappropriate." Id. The parties and the Court agree that reinstating Cannada as an employee at ODB is inappropriate in this case, and thus, front pay could be awarded.

However, awarding front pay is entirely discretionary and "because of the potential for windfall, ...its use must be tempered." Id. at 1424. Front pay should be awarded "to complement a deferred order of reinstatement or to bridge a time when the court concludes the plaintiff is reasonably likely to obtain other employment." Id. Moreover, considering "the broad array of potential circumstances of a terminated employee's future income makes any attempt at finding damages a speculative venture." Id. at 14 23. Nevertheless, while there is no bright line or exact test for awarding front pay, the Fourth Circuit has approved a list of factors for courts to consider. Hunter v. Town of Mocksville, N. C. (Hunter II), 897 F .3d 53 8, 563 (4th Cir. 2018). ^[1]

Working through those factors, the Court first considers Cannada's age, work expectancy, life expectancy, his intention to remain in the position, and his ability to work. Id. Cannada is now approximately 63 years old and, absent ODB's discrimination, would have worked until he was 66 years and 10 months old. (Cannada Decl. ¶¶ 2, 5, ECF No. 82-1.) There is no evidence that Cannada's life expectancy or inability to work would have shortened his working period. A plaintiff being closer to retirement weighs in favor of awarding front pay. Hunter v. Town of Mocksville (Hunter I), 291 F.Supp.3d 750, 759 (M.D. N.C. 2016); Duke, 928 F.2d at 1423.

Next, the Court considers Cannada's length of employment, likelihood of staying with ODB, and related factors. Hunter II, 897 F.3d at 563. Cannada worked for ODB for almost 32 years before his termination. (Cannada Decl. ¶ 4.) However, on June 27, 2017, Alamo Group, Inc. ("Alamo") purchased ODB from the former owners. (Answer ¶ 15, ECF No. 14.) There was extensive evidence at trial that the expectations and the environment at ODB markedly changed after the Alamo purchase. Therefore, it is also important that Cannada only worked for two years under Alamo management. A shorter period with the employer before termination weighs against awarding front pay because it makes an award more speculative. Cf Hunter I, 291 F.Supp.3d at 259.^[2]

Relatedly, Alamo's new work environment makes it less likely that Cannada would have continued his employment absent the age discrimination. There was evidence at trial that Cannada was slow to adapt to Alamo's expectations at times. This is not to say that the Court doubts the jury's decision that Cannada was terminated because of his age. However, the Court cannot ignore the evidence that ODB, under Alamo management, was a changing workplace with new standards, practices, and expectations. The Court cannot predict whether Cannada would have lived up to those expectations or fallen short. See Duke, 928 F .2d at 1423 (recognizing that infinite factual circumstances could have occurred if a plaintiff was not terminated); Hunter I, 201 F.Supp.3d at 759-60 (noting that an employee's status "trending downward" before the discrimination weighs against a front-pay award).^[3]

Further, Cannada was an at-will employee at ODB. (De['s Mem. Opp'n at 4.) ODB could have terminated him for any lawful reason during his employment. The Court cannot predict whether, in a hypothetical world where Cannada was not terminated because of his age, ODB would have lawfully terminated him two years later. Perhaps the pandemic would have triggered layoffs at ODB. Perhaps the company would have consolidated some of its manufacturing facilities or perhaps not. Again, Cannada's at-will status weighs against front pay because it contributes to the speculative nature of an award. See Hunter I, 201 F.Supp.3d at 760.

Lastly the Court considers the length of time it would take for Cannada to secure comparable employment and...